| With the rapid development of China’s social economy,China is currently undergoing social transformation,and various complex social contradictions are constantly emerging.Among them,the most obvious is the current phenomenon of violent resistance to law enforcement,and even a large number of violent attacks on police.In order to strengthen social governance,and realize the rule of law in society as soon as possible,the 2015 Criminal Law Amendment(9)added a new paragraph in Article 277 as the fifth paragraph: "Violent attacks on people who are performing their duties according to law The police shall be punished severely in accordance with the provisions of the first paragraph." The promulgation of this clause has a certain deterrent and deterrent effect on the violent assaults on police in the current society.However,there is some controversy in the application of this clause in judicial practice.For this reason,on January 10,2020,the Supreme People’s Court,the Supreme People’s Procuratorate,and the Ministry of Public Security jointly issued the "Guidelines for Punishing Criminal Offences by Assaulting Police According to Law." The Opinions(hereinafter referred to as the "Guiding Opinions")provide a clear basis for the application of the "violent assault police" clause,but there are still some questionable points.In order to reasonably apply this clause,it is not only conducive to ensuring the smooth conduct of official business activities,but also avoiding excessive restrictions on the rights of citizens,this article studies some controversial issues in this clause and gives its own opinions.This article is divided into three parts:In the first part,the meaning and characteristics of "violence" in Article 277(5)of the Criminal Law are discussed in detail by discussing the meaning of "violence".There are three different views on the meaning of violence in the crime of obstructing public affairs.The author believes that violence in this crime refers only to tangible violence,invisible violence is not a form of violence in this crime,and the "violence" in "violent attack on police" can only be direct.In the case of direct violence against persons,not including indirect violence against objects,smashing and destroying police vehicles,police equipment and other police equipment being used by the police,and thus indirectly attacking the police is not a violent attack on the police.However,conviction and punishment can be based on the crime of obstructing official duties.Violence should be violent,damaging,and immediate.Secondly,it discusses the degree of violence of this crime and what kind of violence reaches the standard of conviction and punishment.Regarding the lower limit of violence,the two-step method is used to determine what level of violence has the conviction standard for the crime of obstructing public affairs,and acts that do not meet the method of judgment can be administratively punished according to law,so as to distinguish between criminal law and administrative law.Regarding the limits of assault on police;regarding the upper limit of violence,it is considered that since the consequences of violence are not explicitly stipulated in Article 277 of the Criminal Law,the crime of obstructing official duties is still established when serious injury or death is caused,but the intentional killing is based on the principle of imaginary competition Crimes,intentional injury and obstruction of official duties shall be punished with one felony.At the same time,if the violent act of the perpetrator complies with other crimes,it shall be punished with one felony.Finally,the identification of "attacks" is inconsistent based on the case.It is agreed that "attacks" should have the characteristics of being aggressive and targeting the police.Passive resistance to law enforcement cannot be severely punished in accordance with the violent assault police provisions.The second part mainly discusses how to determine that “duty is being performed according to law”.Article 5 of the "Guiding Opinions" stipulates that in the non-working hours,the police shall be deemed to perform their duties in accordance with the law.Article 6 of the "Guiding Opinions" stipulates that in the non-enforcement time,civilian police who have been violently attacked for their duties due to their duties comply with the provisions of Articles 234,232,293 of the Criminal Law,etc.conviction.However,it did not specify the issue of the determination that “the position is being performed according to law”.First of all,the legality conditions of "performing duties according to law" are discussed.The official duties performed by the people’s police must meet the conditions of legality,that is,(1)the duties performed by the people’s police belong to the abstract duties or general duties of the people’s police;(2)the people’s police have the specific duties to perform the duties(3)The duty behavior of the people’s police must comply with important legal conditions,methods and procedures.After satisfying the conditions of legality,further discuss what position to use to judge the validity of legality.This article agrees with the position of objective theory among the three viewpoints of subjective theory,objective theory,and eclectic theory,and further discusses the point of time when using the referential benchmark theory as the judgment of legality when objective theory is adopted.Secondly,the time conditions of "being performing duties according to law" were discussed,and three different viewpoints were listed and evaluated separately.The provisions of Article 5 of the "Guiding Opinions" reflect that the time determination of "being performing duties according to law" should be grasped in substance.The third part,first defines the scope of the "People’s Police",explains the meaning and scope of the People’s Police,and defines the legal duties of the People’s Police in conjunction with relevant legal provisions.Secondly,the phenomenon of auxiliary police assisting the people ’s police is common in China ’s current actual situation.Because the “Guiding Opinions” does not stipulate whether violent attacks to assist the police in enforcement of the police’s enforcement of the “violent assault police” clause will be severely punished.There are different views.Therefore,the legal status of the auxiliary police is analyzed,and it is considered that the violation of the auxiliary police who assists the law enforcement of the people’s police can constitute an offence against official duties.Finally,it is discussed whether the violent attack on the auxiliary police can apply the provisions of Article 277(5)of the Criminal Law.The author considers that the legal benefit of the crime of obstructing the protection of official duties is the normal performance of official activities.When the police and the auxiliary police are enforcing law at the same time,the personal rights of the auxiliary police are also worthy of protection.Therefore,the "violent assault police" clause can be applied for severe punishment for violent attacks on the auxiliary police. |
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