On The Abolition Of The Crime Of Picking Quarrels And Provoking Trouble

Defiance and affray crime is a unique crime in China's criminal law,which is not stipulated in foreign criminal law.Its predecessor was the crime of hooliganism stipulated in the criminal law of 1979.After the latter was decomposed,part of it was defined as Defiance and affray crime as a new crime in the criminal law.Since legislators use a lot of vague words and expressions,the objective aspect of this crime is very open,which not only makes this crime become a very controversial and discussed crime in the theoretical circle,but also causes some difficulties for judges in the judicial practice in determining this crime."Criminal law amendment(eight)" modify for stir-up-trouble crime legislation,introduced in July 2013 "about to deal with troublemakers to explain some issues of applicable law in criminal case further to explain the behavior of troublemakers in the limit,it takes the form of enumeration,which is often difficult to exhaust,it left a larger space to the discretion of the judge,to a great extent has produced stir-up-trouble crime appears as the present situation of the "whole".Stir-up-trouble crime in the value orientation of legislation,criminal law applicable clear standards and operation status quo of criminal proceedings,as well as a lot of problems,also it is because of the existence of these problems,waste problems of this crime in the theoretical circle has launched a fierce discussion,consensus from the legislative defects and judicial plight this dual path to question the legitimacy and rationality of stir-up-trouble crime mainly embodied in "reserved" and "end" two basic points of view,including "reserved" and can be subdivided into "out" "keep perfect said," "Abolishment theory" can be further divided into "complete abolishment theory","elimination abolishment theory" and "decomposition and combination abolishment theory".Tend to be abolished in favour of decomposition combined type theory,this paper advocates stir-up-trouble crime should be canceled,and will be involved in the crime of criminal behavior,respectively,into the other relevant charges,easier to judicial practice,and from stir-up-trouble crime as a whole legal effect question,stir-up-trouble crime and administrative law bridging role in doubt and stir-up-trouble crime laws particularity dubious reasons are given three angles.In the first part of this paper,the author mainly sorts out and puts forward his own views on the two opposite views about the crime of abolishing quarrels and causing troubles.As stir-up-trouble crime is widely used in judicial practice,whether should be abolished stir-up-trouble crime this pocket forattention again,in fact,positions keep stir-up-trouble crime and the repeal of rival stir-up-trouble crime has a long history,many experts and scholars have written his own views and opinions.The second part mainly demonstrates that the crime of picking quarrels and causing trouble violates the principle of crime and punishment prescribed by law from the two aspects of the crime of picking quarrels and causing trouble and the crime of picking quarrels and causing trouble and the strict crime and punishment prescribed by law,as the first reason to abolish the crime of picking quarrels and causing trouble.The third part from the crime of picking quarrels and provoking trouble in criminal law and administrative law in the application of differences,the crime of picking quarrels and causing trouble regulated by the behavior of other charges has been included in the objective aspects of two aspects questioned the crime of picking quarrels and causing trouble and administrative law cohesion,as the second reason to abolish the crime of picking quarrels and causing trouble.The fourth part questions the necessity of the crime from the Angle of legal interest.The crime of causing trouble protects double legal interests,but the social and personal legal interests it protects have been protected by relevant crimes.In the aspect of protection interests,the crime of causing trouble can be completely replaced and there is no need to exist,which is the third reason for abolishing the crime of causing trouble.