| In order to crack down on the underworld and evil forces,the state has issued many laws and related documents,and determined a clear criminal policy.After the promulgation of the guiding opinions on Several Issues concerning the handling of criminal cases committed by evil forces(hereinafter referred to as the opinions on handling criminal cases committed by evil forces),it provides clear guidance for the determination of judicial organs.Following the release of the opinions on Several Issues concerning the handling of criminal cases involving "soft violence"(hereinafter referred to as "opinions on handling soft violence"),it further clarifies the identification standards of crimes involving "soft violence",and also clarifies that "soft violence",which has always been used as a judicial idiom,has a "semi formal" status,and the relationship between "soft violence" means and specific charges The role of "soft violence" in the identification of evil organizations and the repeated evaluation of sentencing have also been positively responded and clearly defined.After the implementation of "opinions on handling evil forces" and "opinions on handling soft violence",to a certain extent,many problems in the identification of "soft violence" of Mafia and evil forces have been solved.However,after a period of implementation,the unsolved problems and new problems after the implementation of the document gradually appear in judicial practice.Based on the trend analysis of the data obtained from the network of judicial documents,this paper summarizes the general trend of the current related crimes,and concludes that the number of forced trading crimes,crimes involving "soft violence" and crimes involving "soft violence" will increase significantly in 2019.From January 2020 to July 2020,57 judgments which are closely related to "soft violence" and the crime of forced trading are selected,and the 57 judgments are analyzed in detail,summarizing the problems still existing in the process of identifying "soft violence" in the crime of forced trading,mainly including two aspects: first,the judicial authorities identify different "soft violence" in the crime of "soft violence" Second,the identification of "soft violence" behavior type is expanded and the identification standard is reduced.This article further abstracts the above-mentioned problems into the identification of crimes involving "soft violence" in judicial practice,and all point to a problem,that is,the identification of “soft violence” in judicial practice has an expanding trend,overly highlighting the influence of criminal policies,and severe punishment is obvious.The reasons for the above problems are summarized in this article as the confusion of normative expressions and the excessive understanding of criminal policies by judicial organs.When identifying crimes involving “soft violence”,the core is to measure and analyze the harm caused by “soft violence”.Therefore,this article focuses on solving the problem and restricts the evaluation criteria of “soft violence” behavior in conjunction with the subject of the crime.,Mainly from the judicial point of view.The behavior evaluation standard for ordinary criminals is to revise the harm standard in Article 1 of the "Opinions on Handling Soft Violence" on the meaning of "soft violence",delete "enough",and remove the harmful consequences of "soft violence" from possible modification is realistic,and the rationality of this modification proposal will be explained;for non-ordinary criminal subjects,the "soft violence" behavior evaluation standard still applies to Article 3 of the "Opinions on Handling Soft Violence",but for the third item The main body makes limited modification.Empirical analysis emphasizes to enrich the rules by focusing on the atypical and looking back on the typical.Therefore,a comprehensive analysis of the actual case,found that the problems,even if the problem occupies a minority,still should pay attention to the analysis of the problem,improve the rules.Through the analysis of the identification of "soft violence" in the crime of forced transaction,we find the problems existing in the "opinions on handling soft violence" and improve it,so as to ensure that the human rights protection function of the criminal law is taken into account when using the means of punishment,and adhere to the principle of modesty of the criminal law. |
