Study On Judicial Determination In Crime Of Affray Transformation Conviction

The crime of affray has always been a common and frequently of crime,a larger proportion in judicial practice.This crime is easy to cause loss of life or personal injury.It may also be the breeding and spreading of crimes committed by Mafia-like gangs.Therefore,it is so significant to cracking down on the crime of affray in accordance with the law to safeguard national security andsocial stability.And also important to safeguard life and property safety.At present,China has fewer supporting articles of law on the transformation conviction of the crime of affray.The current "Criminal Law" Article 292,paragraph 2 of the transformation about crime of affray is too simplified and there is no clear description of relevant judicial interpretations.But it is a complex problem,There are much controversy and divergent between academic circles and judicial practice on how to transform the situation of affrays crime.The nature of the transformation clause,the scope of the subject of transformation,and the subjective crimes of the perpetrator are subject to considerable controversy,which has led to many disputes in judicial practice.For example,if it is not possible to ascertain whether the offense is applicable,the principle of suspicion never applies,and the principal element Whether it is uniformly transformed,whether the victim is responsible,etc.Regarding controversial issues in theory and practice,China has not yet issued a unified judicial interpretation.Although Shanghai,Jiangsu,Tianjin,and Zhejiang have successively issued guidance opinions,due to the differences in regional judicial concepts,there are many inconsistencies in local regulations.Other provinces and cities,including Jiangxi,have been controversial about how to deal with the issue of conviction for the conversion of the affray crime.Through the investigation of Jiangxi's judicial practice,it was found that it also showed regional laws and characteristics in the conviction for the conversion of the affray crime,that is,the unilateral conversion theory of the perpetrators was consistently adhered to,and the partial conversion theory,the principle of subjective and objective consistency,and the principle ofself-responsibility were mainly favored.However,in the individual case,due to conflicts of opinion from the academic circles and blind obedience to the relevant regulations of other provinces and cities,the two defendants who had more differences in the legal examination,had greater disputes in different courts,and were convicted.There are issues such as major objections,which exist to varying degrees in various parts of Jiangxi.First of all,the differences between the court and the prosecutor organs are reflected in the serious injuries caused by the affray crime,whether the death was converted or directly convicted,and when it is unclear how the principals and active participants of the two sides converted convictions and found out that they were not directly perpetrators.Whether the principals and active participants have converted their convictions and what crimes they should be converted into when they have died.These differences are in different cases.Some prosecutors hold this view.The courts hold the other view.Secondly,the disputes in the courts around the province are mainly: whether the conviction for congregation is based on results,whether it is converted when the principal is not directly injurious,and why the active participant should be converted when it is directly injurious,although the number of disputed cases is not Many,most of them are cases judged by grassroots courts,but these controversial issues essentially reflect the conflict of positions of the grassroots judicial organs in judicial principles and trial rules.In the end,the objections raised by the defendant who has been converted and convicted mainly include: do not constitute a crime,should not be converted to a conviction,should not be converted to this crime or another crime.Judging from the defendant's defense opinions and grounds of appeal,in most cases,the defendant has little objection to the facts found in the judgment,but because there is currently no uniform law enforcement standard,some of the judgments have insufficient argumentation for the conversion of conviction.The defendant has a large space for defense and appeal.Most of the appeal cases maintain the original judgment,and the rate of retrial is extremely low.However,to a certain extent,judicial resources are wasted and it is not conducive to improvingjudicial efficiency.Taking Jiangxi's judicial practice as an example,in order to effectively punish the crime of the affray crime in accordance with the law,the judicial determination of the transformation of the affray crime into convictions should be regulated from the following aspects.First,adhere to the principle of subjective and objective agreement,and should not be based on results.The principle of subjective and objective agreement is the core principle of China's criminal law theory.we should adhere to the subjective and objective adaptations,and we must specifically distinguish between the intentional aspect of the harm or the intentional killing.Only actors whose subjective and objective aspects meet the elements of the crime of intentional injury and intentional homicide can be regarded as the subject of transformation responsibility.Second,adhere to the principle of balanced crime and punishment,and realize "less serious crimes,less severe punishments,and more serious crimes." The core value of the principle of the balance of crime and punishment is fairness and justice.When congregating and fighting in congregations,especially in the grasp of the nature of the crime,we should retrospectively consider whether the conviction of a person involved in the congregation and condemning it is a crime.Realize self-responsibility,achieve the purpose of retribution,and achieve fairness and justice.Third,uniformly apply the applicable judicial standards for convictions and provide objective compliance for judicial practice.When congregating in the affray crime for conversion and conviction,make clear the prerequisite basis and principled basic requirements of conversion conviction.Guided by the principle of subjective and objective consistency and the principle of equilibrium of crime and punishment,make a reasonable distinction between conversion convictions of the chief elements and active participants;Under the circumstances,clear regulation should be made on the conversion and conviction of all the actors who have gathered in the affray crime,and unified the law enforcement thinking to avoid the widening of differences.Finally,it is necessary to improve the case handling mechanism,aiming at the difficulty ofidentifying subjective deliberate content in the conviction of congregation,and make full use of the case handling mechanism on the premise of exhausting the facts and evidence of the case to further ensure the accuracy of the subjective deliberate content determination.Minimize the risk of objective imputation.At the same time,for such cases that need to be combined with the criminal facts and evidence of specific cases to transform the identified cases,the guidance of judicial cases should be strengthened,and the legal thinking,logic and judicial principles of case handling should be clarified through typical cases to provide front-line judicial personnel.Handling cases for reference,effectively solving the problem of transformation and conviction.