Research On The Application Of Criminal Law Of "Illegal Petitioning"

Since the reform and opening-up,the rapid economic development has brought about great social changes.Due to the limitation of governance system and capbilities,Chinese government has not fulfill the goal of good governance,the commitment to liberty,order,democracy and the rule of law so far.A large number of letters and visits flooded into complaint reporting handling office,the surge in “illegal petitioning” behavior has overwhelmed the Petition system.It is necessary to integrate criminal governance into the “illegal petitioning” multiple management system.The word “illegal petitioning” is an idiom summed up by petition staff in their practice of petition work.“Illegal petitioning” means the petitioner made an appeal against the “People's Republic of China Letters and Visits Regulations”.“Illegal petitioning” contains forms such as “pestering and scrambling petitioning”,“group petitioning”,“skip-level petitioning” and so on.“Illegal petitioning” is often repetitive,intensive and seditious,which can easily leads to unexpected social mass incidents.When the illegal petition behavior becomes more and more serious,violates the legal interests protected by the criminal law and subject to punishment,the petition management method should also been transferred from administrative governance to criminal governance.This research report is divided into the following four parts:The first chapter analyzes the general situation and existing problems of “Illegal petitioning” Judgment in L province based on the sample of 1402 criminal appeal cases accepted by the Higher People's Court of L Province from 2016 to 2018.The second chapter introduces the statues and existing problems of convicting “pestering and scrambling petitioning” behavior with defiance and affray crime of “creating disturbances type”,summarizes the judging criterion for objective and subjective elements of defiance and affray crime of “creating disturbances type”,elaborates the criterion for the objective and subjective elements of defiance and affray crime of “creating disturbances type” based on criminal law theory,current legislation,judicial interpretation and guiding cases of the Supreme Court,and proposes judicial suggestions of “pestering and scrambling petitioning” behavior.In addition to defiance and affray crime of “creating disturbances type”,courts of L Province also apply other public order disturbance crime convicting “group petitioning”,such as the Crime of assembling a crowd to disturb the order of a public place.Therefore,the third chapter clarified the constitutive elements of the crime of assembling a crowd todisturb social order,the crime of assembling a crowd to disturb the order of a public place,and the crime of assembling a crowd to disturb traffic order,analyzes the relationship between the above charges,proposes judicial suggestions on circumstance when the crime of defiance and affray and the crime of disturbing public order become concurrent.The fourth chapter first briefly introduces the Status of judicial evaluation of asking the government for property during the petition in L Province,elaborates the problems existing in the criminal evaluation of this behavior with the crime of extortion and the crime of defiance and affray,and makes the tentative exploration of criminal law evaluation path for this behavior.