Research On “Soft Violence” Identification Standards

On October 31,2019,the Communist Party of China adopted " the Central Party's Decision on Adhering to and Perfecting the Socialist System with Chinese Characteristics,Promoting the Modernization of the National Governance System and Capabilities" at the Fourth Plenary Session of the 19 th Central Committee.Crime governance is an important part of state governance.Combating new forms of criminal behavior and improving crime governance capabilities are important guidelines for measuring state governance capabilities.With the diversified development of crime models,"soft violence" has entered the category of new crime governance.I take the "soft violence" criminal case as the breakthrough point,combine judicial data analysis,arrange the theoretical analysis and practical disputes of the "soft violence" identification standard,put forward my opinions and discuss them.I review the legislative evolution,concept definition and concept classification of "soft violence".During the analysis of the conceptual structure,it was found that the issue of the scope of application of the Opinions on Several Issues in Handling Criminal Cases of "Soft Violence" was controversial.Whether the judiciary can judge the cases of soft violence that occurred before the entry into force of the document is based on the principle of applying the old law to the light of the criminal law.I believe that this document has the function of attention in criminal law and does not involve the application of the principle of "from old to light".In addition,using behavior as the classification criterion,soft violence can be divided into "nuisance-type" and "coerciontype".This classification method has played a role in discriminating against convicted crimes.I present the data trends of "soft violence" cases in the form of charts.Data retrieval is conducted according to the order of first instance judge,case type and second instance judge.After comprehensive research and judgment on data deviation and data trends,I find that in judicial practice,there are controversial points such as the scope of time application,the victim's fault,the carrying of a weapon,illegal interests,and atypical means.Retrieve the judicial adjudication documents to elicit controversial issues that need to be researched and provide data support for the argument of this paper.I divide the criteria for identifying soft violence into subjective criteria and objective criteria.In the process of discussing subjective identification standards,it mainly involves the identification of illegal interests and illegal influences.First of all,through a variety of interpretation methods to solve the problem of the logical relationship between the two,namely,the two have connotation synonymous.Given that "soft violence" is not a specific crime,but an intermediate concept,the task of identifying illegal interests should be assigned to the determination of specific crimes,and its connotation boundary should not be over-restricted.When assessing the intensity of illegal impacts,special time,special identity,characteristics of the victim group,and the victim's fault should be taken as important evaluation indicators.Based on the logic of the judicial arbitration,I find that the semantic structure of the objective identification standard presents an order of recognition from strong to weak.In analyzing the objective constituents of soft violence,I believe that the scope of the identification of the "weapon" in "carrying a murder weapon" should be expanded to include carrying devices such as fake guns and fake daggers that are not of real personal danger.The understanding of the organizational connotation of "organized implementation" should not be expressed in a unified manner.Instead,reverse thinking should be used to consider the contextual characteristics of different crimes and identify according to the different legal benefits protected by the chapter of the criminal law to which they belong.Finally,two types of behaviors,including “suicide” and “advocacy”,also belong to the methods of behavior of soft violence,but should be evaluated as atypical and included in the punishment category.In the face of complex case facts and disputes over the application of law,how to use strategic technology for reasonable regulation is a problem faced by every judicial practitioner.Attention to legal thinking and legal methods is an important way to solve problems in practice.This paper reviews the controversial issues of soft violence in judicial practice and provides some reference solutions.