The Study Of The Assault On The Police From The Perspective Of The Doctrine Of Criminal Law

At present,with the sustained and rapid development of Chinese social and economy,the traditional structure between urban and rural areas has been constantly impacted,problems such as urban-rural differences,regional differences,and excessive gap between the rich and poor come one after another.Due to the influence of many factors such as history and reality,Chinese public security organs and people's police have been fighting for a long time to fight against different kinds of illegal crimes and maintain the stability of social order.which invisibly increases the gap between law-enforcement subjects and law-enforcement objects.More seriously.people's police are often reported to be abused or even attacked by law-enforcement object in the course of performing their duties.For some time,there has been an endless debate between criminal law scholars on whether the Criminal Law should establish the crime of assaulting police.Since the Criminal Law Amendment(IX)has been implemented from 2015.the legislature still insists on not establishing the crime of assaulting police independently.But the legislature formally criminalizes violent attacks on police,and severely punished it according to the crime of disturbing public service.these measures calm the debates on whether legislature should establish the crime of assaulting police independently between criminal law scholars.However,due to the limitation of the current criminal law theory on the crime of disturbing public service,there are still many deviations on the understanding of the elements of constitution of crime,such as "violence" and "attack".At the same time,Chinese judicial authority adopts a two-element system to punish illegal acts.Assaulting police occurs not only in public security violations but also in criminal offence,and it is difficult to describe a clear boundary between them.More importantly,the crime of disturbing public service belongs to misdemeanor(the maximum penalty is less than three years of fixed-term imprisonment),this is not enough to cope with assaulting police.However,the perspective of doctrinal criminal law seems to provide some ideas for solving the above problems.At present,the more pragmatic approach is to rely on the elements of constitution of crime of disturbing public service and to set caps and collars for the crime.The assaulting police behaviors between the caps and collars may constitute the crime of disturbing public service by assaulting police The behaviors which exceed the caps and collars will not constitute the crime of disturbing public service,but may constitute other serious crimes or public security violations.In the view of the perspective of doctrinal criminal law.just for protecting the legal interest.we should follow the two-level criminal theory system from unlawfulness to responsibility.Due to the difference between the general clause and the assaulting police clause of the crime of disturbing public service in the article 277 of the Criminal Law of the PRC,there are adequate reasons to believe that there has special legal interest to protect the police in the assaulting police clause of the crime of disturbing public service except the general legal interest.In order to maintain a reasonable tension in the criminal circle and avoid to adjudge arbitrarily by the judiciary,someone who take active ways to attack the people's police who are performing their duties can be evaluated as assaulting police in the sense of criminal law.In general,someone who take negative omission or minor physical contact will not be evaluated as a crime.In practice,the judiciary should interpret the definition of violence in a broad sense.It includes not only the direct imposition of coercive force on the body of public servants,but also the imposition of coercive force on the objects closely related to the performance of their official duties.However,for the "atypical" crime of assaulting police,which is different from the traditional violence in recent years,we should insist that the violence of "assaulting police" is limited to "tangible violence",and the so-called "invisible violence" can not be arbitrarily extended to the behaviors of the crime of assaulting police.After satisfying the requirement of "unlawfulness",it is necessary to examine whether the suspect has the responsibility when he assaults the police.The suspect should have criminal intent subjectively and have the criminal purpose of "violating the law enforcement" when assaulting the police.At the same time,as an element of responsibility independent of intent and negligence,whether the suspect has a clear understanding of illegality does not need to be judged by the judge alone,it only needs the judge to judge the possibility that the suspect has the knowledge of illegality in general.