Research On The Controversial Issues In The Legislation Evolution And Determination Of The Crime Of Assault On Police

The crime of assaulting police is a hot issue with high incidence and serious harm in our society.In different periods,my country has adopted active regulatory measures and formulated corresponding legislation and regulations.Although the Criminal Law of People’s Republic of China(Hereinafter referred to as Criminal Law)amended in 1979 and 1997 only stipulate the crime of impairing public affairs,the constitution of the crime includes the act of assaulting police with violence.In 2015,the amendment(9)to the Criminal Law added special clauses on violent assaulting police,and provided for heavier punishment on the basis of the crime of impairing public affairs,which made up for the lack of legal provisions to a certain extent and curbed the proliferation of assaulting police.At present,China is in a critical period of social transformation.The interests of the people’s police,who are at the forefront of maintaining social order and the interests of the people,are frequently violated in the process of law enforcement,and violent assaults on the police show a high incidence trend.In 2020,the amendment(11)to the Criminal Law added a piece of the crime of assaulting police,provided a separate legal punishment,and added the provisions of heavier punishment for some special violent assaults on police,which further improves China’s criminal legislation,and maintains the public order and police authority to a certain extent.However,there are many controversies about the determination of the crime of assaulting the police in theory and practice.For instance,how to identify the external forms and limits of "violence" ? Does the target include auxiliary police and relatives and friends of police? There are different opinions on how to identify "performing duties according to law" and what forms of crimes and standards of accomplishment are.In judicial practice,there are also different opinions on these issues.Significantly,no specific and detailed provisions in the contents of Criminal Law and relevant judicial interpretations.The external manifestations of violence should include violence against objects,people and auxiliary police.The lower limit of violence should be determined according to whether it causes slight wound or not.If it does not cause slight wound,it can also be defined according to whether the perpetrator’s violent means of attacking the police are abominable,and whether it causes serious results,such as a traffic jam at the scene of law enforcement and the large number of onlookers.The upper limit of violence should include the result of serious injury and death.For the part that can not be fully evaluated in legal aspect,a felony to be punished according to the principle of imaginative concurrence should be chosen,so as to coordinate the adaption of offense and punishment.According to the compromise theory to judge the legitimacy of the duty,the judgment subject and the judgment time point are defined by the objective theory and the objective situation when the duty occurs respectively;non working time performance is also legal;the time to perform the duty should include the early-stage preparation,the mid-term implementation,including standby state in the middle of hereinbefore and the whole process of the post-implementation.When the auxiliary police officers and the official police are in law enforcement,they are protected by the Clause of the Violent Assault on the Police,but the close relatives of the police do not belong to the protection scope of this clause.The form of the crime of assaulting police must have the intention of interfering with the normal conduct of public affairs.The crime is a specific dangerous crime,which requires that as long as the perpetrator subjectively has the intention of interfering with public affairs,or has the intention of additional personal injury to the police,objectively implements the violence to the police who are performing their duties,and produces specific and realistic danger to the public service execution,it can be identified as the accomplished crime of assaulting the police.