| The crime of picking quarrels and provoking troubles originated from the crime of hooliganism in the criminal law in 1979,which was dissolved after the crime of hooliganism,and the crime of picking quarrels and provoking troubles was separated from it and became a new crime stipulated in the criminal law in 1997.However,the crime has been criticized as one of the "crimes of mouth bag" in the current criminal law,because it inherits the subjective motive of hooliganism and the protection of interests and other aspects,and was also a pocket charge in the chapter of "crimes of obstructing the social management order".Though as China's socialist legal system is built,and the country under the rule of law gradually,in the maintenance of social order,this crime punishment to the detriment of the social management order have played a role,but because of its law set contains a lot of vague and abstract,and after a lot of the expansion of the judicial explanation to explain,expand the regulating scope of this crime,makes stir-up-trouble crime in the judicial practice had been expanded,which leads to the charges "pocket" trend is more obvious.By studying relevant cases,the author analyzes the current judicial application of the crime of picking quarrels and causing trouble,analyzes the causes and consequences of the abuse of the crime,and puts forward some Suggestions for the improvement of the relevant theories and the application of judicial practice.In addition to theintroduction,this paper mainly contains the following four parts.The first part mainly analyzes the traditional and new types of online disturbances.In the current criminal law of our country,the law about the crime of picking quarrels and causing trouble objectively sets up four specific types of behavior to describe the crime.It can be seen from the listing of the four forms of objective manifestations that the legislator,when establishing this crime,intentionally sets the criminal motive of this crime as the same "hooligan motive" as the crime of hooliganism of its predecessor.Generally speaking,the initiation of criminal motive of the actor must have some conditions,namely,some internal desire of the actor and external inducement of the actor.Back to the four forms of objective manifestation of the crime of causing trouble,the first three kinds of ACTS infringe on the legal interests of public order or social order,and the fourth type of heckling and making trouble explicitly stipulates the ACTS of destroying the public order.Then the application of the crime of picking quarrels and causing troubles in the information network has been further developed."Two high" issued "on the handling of the use of information network to carry out defamation and other criminal cases of several issues of the interpretation of the law,so that the Internet information world has become the control of the crime of provoking trouble.But fundamentally,the behavior of abusing,threatening,fabricating and spreading false information on the Internet is destructive to the order of the real society and has no impact on the order of the Internet itself.This behavior only presents the traditional criminal behavior of picking quarrels and provoking troubles by means of the Internet.However,due to the wide scope of cyberspace,citizens can comment on any current news and express their own opinions freely,some of which are biased,which leads to an increasing number of cases of people being convicted and sentenced for provoking troubles for online speech.The second part mainly explores the manifestations and consequences of the judicial expansion of the crime of picking quarrels and provoking troubles.Through the analysis of a large number of precedents,it can be found that the judicial expansion of the crime of picking quarrels and provoking troubles in recent years ismainly manifested in three aspects.Firstly,"soft violence",as a way of psychological violence by the perpetrator or providing help to the perpetrator,has been gradually increasing in various types of crimes in recent years.Because this kind of crime is mainly manifested as gathering people to make trouble and causing trouble to others,the perpetrator is usually convicted and punished for the crime of picking quarrels and causing trouble.However,as the existing laws and regulations do not make a clear provision for this,the judicial department is prone to the phenomenon of "incriminating crimes" in the judicial process,so that the crime of picking quarrels and provoking troubles is widely used.Second,with the rapid development of Internet technology,citizens' comments on the information network may touch the law.As mentioned above,the number of convictions for online speech has increased significantly,which is another manifestation of the judicial expansion of the crime of provoking troubles.Third,in order to adapt to the actual situation of the region,the local judicial organs have expanded the upper law.This is understandable,but some provisions have gone beyond the justice of the upper law,which not only lowered the threshold of the crime of picking quarrels and provoking troubles,but even increased the statutory punishment of the crime,which makes the "pocketing" trend of picking quarrels and provoking troubles more and more serious.The phenomenon of judicial expansion of the crime of provoking troubles has inevitably caused a series of adverse consequences.The author believes that this phenomenon not only violates the basic principles of criminal law,but also violates the spirit of modesty of criminal law,and will reduce the prestige and credibility of law and judicial departments in the public mind.The third part mainly discusses the Suggestions and measures to deal with the phenomenon of judicial expansion of the crime of picking quarrels and provoking troubles from the judicial level.In the author's opinion,the most direct and effective way to curb the "pocketing" trend of the crime of picking quarrels and provoking troubles is to restrict it at the judicial level.First of all,the crime can be typecized and there is a unified standard for determining the crime of picking quarrels and causing trouble.This requires that judicial personnel should strictly limit the application of thecrime of picking quarrels and stirring up troubles in judicial activities,make a clear distinction between crime and non-crime,and reduce the application of criminal punishment.In addition,it is necessary to limit the criminal motive of the instigator strictly according to the constitution of the crime.Secondly,it is necessary to construct the judicial rules for the crime of picking quarrels and provoking troubles,to distinguish the crimes of picking quarrels and provoking troubles from other crimes of the same or similar interest with its protection law,to analyze the crimes that may constitute imaginary contesting one by one,and to define the abuse of the crime of picking quarrels and provoking troubles with a set of detailed judicial rules.In addition,the expanded application of the crime of provoking troubles should be restricted by judicial interpretation,and the law reservation principle in administrative law can be used for reference.If the law is clearly stipulated,the judicial interpretation should not expand the interpretation arbitrarily or even analogify the interpretation,and the literal interpretation should be made within a reasonable scope.The fourth part discusses how to limit the application of the crime of picking quarrels and causing troubles from the legislative level.First of all,it is necessary to clarify the legislative intention of the crime of provoking quarrels and provoking troubles.The establishment of the crime of provoking quarrels and provoking troubles should focus on the purpose of preventing the behavior of disturbing social order,clarify the connotation of the crime,and visualize the legal interest protected by the crime in order to reduce the scope of application of the crime.In addition,in the legislative form of this crime,the specific expression content should be standardized and the wording should be standardized,so as to reduce the abstract,vague and undefined words.Moreover,the amendment to the criminal law can be used to supplement and explain the minor points in the legal provisions,so as to avoid the expanded interpretation by the judicial organs. |
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