On Several Problems In The Objective Elements Of The Crime Of Obstructing Public Service

In recent years,the cases of the crime of obstructing public service are happening with increasing frequency,which cause wide public concern.The research shows that the most majority of cases handled by judicial organs are appropriate.However,it is not appropriate for judicial organs to deal with some minor cases that could have been dealt with by the law of public security administration penalty with criminal law.The occurrence of some cases is related to the flaws of the public functionary's law enforcement behaviors,which often become an important inducement for the occurrence of the crime of obstructing public service.Some cases with almost the same facts lead to the disunity of law application due to the different understanding of different judicial organs,etc.These phenomena are due to the problems existing in the application of law by judicial organs and the deficiencies in legislation.In order to correctly apply the crime of obstructing public service and make up for the shortcomings in the legislation,this paper makes a detailed exploration on some difficult problems in the objective aspects of the crime of obstructing public service.The article holds that the forms of violence of the crime of obstructing public service should include direct violence,indirect violence and tangible force,but not intangible force.The expanded interpretation of the "violence" should conform to the spirit of strict interpretation principle,and intangible force should belong to other means besides violence and threaten.This paper agrees with the view that the crime of obstructing public service belongs to the concrete dangerous criminal,and holds that the theory of "abstract dangerous criminal" will lead to the abuse of the power of the public functionary,however,the theory of "actual damage offense" is even more unfavorable to the stability of the national public service execution order.Meanwhile,this paper argues that the upper limit of violence should not include the results of serious injury and death.The threat should reach the level that makes it difficult for public functionary to implement.This article also denies that self-inflicted injury and suicide belong to the threat means of the crime of obstructing public service,becausethe threat of self-inflicted injury and suicide does not completely control the will of the public functionary,and the actor is sentenced to the crime of obstructing public service for self-inflicted injury and suicide without legal basis.On the identification of the targets of the crime of obstructing public service,this paper holds that deputies to the National People's Congress have the status of functionaries of state organs during the performance of their functions and powers.Temporary workers,contract workers with the power of law enforcement and equipment and facilities necessary for the performance of official duties shall be recognized as the target of the crime of obstructing public service,but the auxiliary personnel without the alone power of law enforcement shall be excluded.On the identification of " official business " behavior in the crime of obstructing public service,this paper argues that legitimacy is a necessary element of official business behavior;The scope of "law" in the legality mentioned here should include laws and regulations as well as non-normative legal documents within the unit of public functionary;we should narrow down the scope of official duties to the official business of state,and exclude social affairs;"Objective theory" should be used to judge the legitimacy of the official business——the court is responsible for fair judgment.To explore the time starting and ending point of official business behavior,we should not only consider the time element of public functionary's work,but also consider the behavior element of them.In view of the lack of legislation on the objective aspects of the crime of obstructing public service,this paper puts forward three legislative proposals: appropriately expanding the mode of conduct,defining the limits of violence and expanding the scope of the criminal targets.