Example:
Recently, the Leiyang court concluded a case of obstruction of official duties in the first instance and sentenced the defendants Wang Dongdong, Wang Jiaozi and Wang Jinfeng to one year and six months' imprisonment respectively. The defendant Tan Cuifeng was sentenced to one year and six months in prison and suspended for two years.
The court found that at 6: 00 pm on August 3 1 2007, all police officers in Renyi District of leiyang city Public Security Bureau, led by Deputy Director Zhang, took part in a special campaign organized by the whole city to ban Renyi illegal manganese mine. On their way back, they arrested Wang Zhaohuai, a fugitive captured in this village, and summoned Wang Conghua, an illegal person. In the course of performing official duties, the police were obstructed by defendants Wang Dongdong, Wang Jiaozi, Wang Jinfeng, Tan Cuifeng and some people who did not know the truth. They snatched the captured fugitive Wang Zhaohuai from the police car, forcibly released Wang Conghua who had been summoned to the police station at the Renyi Center, blocked roads with stones, blocked traffic and beat police officers who were performing official duties. Until that night 10: 30, the police of the riot brigade of leiyang city Public Security Bureau arrived and rescued the trapped police.
After the trial, the court held that the defendants Wang Dongdong, Wang Jiaozi, Wang Jinfeng, Tan Cuifeng and others used violent threats, which seriously hindered the public security police from arresting criminals and summoning criminals, and hindered the public security organs from performing their official duties according to law. The actions of the four defendants have constituted the crime of obstructing official duties. The four defendants played a major role in the crime, all of whom were principal offenders. The defendant Tan Cuifeng was able to plead guilty voluntarily and showed repentance. Accordingly, the above judgment was made.
The crime of obstructing official duties refers to the act of obstructing the staff of state organs from performing their duties according to law by violence or threat.
Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or a fine.
A good lawyer can plead not guilty.
There is little point in doing police work when the lawsuit goes to court.
Specific reference is as follows:
(A) the object elements
This crime infringes on complex objects, in which the normal management activities of the state are its main objects, and the personal rights of state organs and Red Cross staff are its random objects.
The crime of nuisance of official duties violates the normal management activities of the country. If any country wants to exist and develop in a stable and orderly way, it must enjoy a series of management functions and carry out a series of management activities, which is usually realized by the staff of state organs and other organizations performing their duties according to law. Therefore, criminal acts that hinder state organs and Red Cross staff from performing their official duties according to law will inevitably interfere with and undermine the normal management activities of the country. This is the focus of the social harmfulness of this crime, and it is also the key to distinguish this crime from criminal acts that simply infringe on the personal and property of public servants.
The crime of obstructing official duties usually infringes on the personal rights of the staff of state organs and the Red Cross. The constitution of this crime must be based on the perpetrator's use of violence and threats. When people use violence or threats to interfere with official duties, the harmful results will not only interfere with the official activities of state organs or Red Cross staff, but also adversely affect the normal management activities of the country, which will inevitably infringe on the health or other personal rights of the above-mentioned public servants. The fourth paragraph of this article stipulates that anyone who intentionally obstructs a state security organ or a public security organ from performing the tasks of state security according to law, even if violence or threats are not used, as long as serious consequences are caused, also constitutes this crime.
The object of this crime is the staff of state organs who perform their duties according to law. It does not constitute this crime to hinder the staff of non-state organs from engaging in certain activities, or to be a staff member of state organs, but their activities are not within the scope of their duties, or their activities are not within the scope of their duties being performed according to law. In other words, the object of this crime, first, must be before the staff of state organs have begun to perform their duties; Second, it must be carried out in accordance with the law and cannot exceed the authority. "Performing duties" includes both official activities in the working hours and places of state organs and official activities in other places according to specific orders. For example, public security personnel perform their duties according to law whenever and wherever they arrest a criminal suspect who is committing a crime. However, activities that exceed the scope of their functions and powers, or activities that abuse their powers and infringe upon the interests of the state and the masses, which are stopped by others, do not constitute a crime of obstructing official duties. According to the provisions of paragraphs 2 and 3 of this article, the targets of this crime also include NPC deputies and Red Cross staff. The so-called deputies to the National People's Congress refer to the deputies to the National People's Congress and local people's congresses at various levels elected in accordance with the provisions of the Constitution and the electoral law of our country and in accordance with legal procedures. The so-called Red Cross refers to an international voluntary rescue group, which mainly helps the wounded and civilians in wartime and the victims of other disasters. The above-mentioned personnel can only constitute this crime if they perform their duties according to law.
(b) objective factors
This crime is objectively manifested in the following situations:
1. Acts of obstructing state functionaries from performing their duties according to law by violence or threats.
The so-called performance of duties according to law means that the staff of state organs use their statutory powers to engage in official activities within the scope prescribed by the state. This kind of official activities includes not only the official activities of state staff during working hours or work units, but also the official activities of state staff at other times or places according to relevant regulations or orders. For example, public security personnel have the right to arrest criminal suspects who are engaged in criminal activities at any time and anywhere, and obstruct them by violence or threat, which constitutes a crime.
Secondly, the staff of state organs must perform their duties according to law. That is to say, his management activities really belong to his legal authority, and the way of activities conforms to the conditions stipulated by law. For example, industrial and commercial administrative personnel supervise and manage market trade according to law, and customs personnel inspect import and export articles according to law. State functionaries who engage in other illegal activities beyond the scope of their duties, or abuse their powers, abuse power for personal gain, violate the law and discipline, infringe upon the interests of the state and the people, arouse public anger, and are hindered cannot be regarded as obstructing official duties.
At the same time, the actor must obstruct the execution of official duties by violence or threat. The term "violence" as mentioned in this article refers to violent attacks such as beating, binding or personal coercion against state functionaries who are performing their duties according to law. If the perpetrator's violent behavior leads to serious injury or death of state functionaries, or even intentional killing of state functionaries, he shall be convicted of intentional injury (serious injury) or intentional homicide, and shall be severely punished according to the principle of dealing with implicated offenders. The term "threat" as mentioned in this article refers to the act of intimidation or coercion by the actor against the staff of state organs who are performing their duties according to law by means of killing, injuring, destroying property, damaging reputation and taking hostages. In an attempt to force the staff of state organs to give up their duties.
If the perpetrator does not use violence or threats, but uses other methods to interfere with the performance of duties by the staff of state organs, such as abusive and noisy behavior, although it is harmful to the performance of duties, it does not constitute this crime. This kind of behavior can be criticized and educated, and can also be punished by public security management. If the circumstances are bad, it may constitute an insult or other crimes.
2. Obstructing deputies to people's congresses at all levels from performing their duties by violence or threats.
Deputies to people's congresses at all levels include those from townships, towns, counties, cities, banners, prefectures, cities, leagues, provinces, autonomous regions, municipalities directly under the Central Government and even the National People's Congress. The so-called representative position refers to the duties that people's deputies have the right to perform in the people's congresses at the corresponding levels as stipulated in the organic laws of the National People's Congress and local people's congresses at various levels, such as guarding state secrets; Assist in the implementation of the Constitution and laws in the production, work and social activities they participate in; Attend the meeting of the people's congress of the original electoral unit; Listen to and reflect the opinions and demands of the people; Attend meetings of people's congresses as nonvoting delegates; To put forward suggestions, criticisms and opinions on all aspects of work to the people's congresses at the corresponding levels and their standing committees; Candidates determined by voting; Publicity of laws and policies; To assist the people's governments at the corresponding levels in their work; To reflect the opinions and demands of the masses to the people's congresses, their standing committees and the people's governments; Contact voters according to law; Inspection, investigation and inspection; Wait a minute. Whether performing duties according to law during the session of the people's congress at the corresponding level or when the people's congress at the corresponding level is not in session, as long as it belongs to a representative position, it can constitute this crime by violence or threat. It should be pointed out that some representatives themselves belong to the staff of state organs. If they are performing their duties, it should be the objective situation of this crime, that is, obstructing the staff of state organs from performing their duties according to law. If he is not performing his job duties, but performing his representative duties, it constitutes this situation of this crime. If the representative is a staff member of a non-state organ, this crime can only be constituted when performing his duties as a representative.
3, in natural disasters and emergencies, by means of violence or threats to prevent the Red Cross staff from performing their duties according to law.
According to the provisions of the Red Cross Law, the China Red Cross Society is a unified Red Cross organization of the people of China and a social relief group engaged in humanitarian work. The purpose of its activities is to protect human life and health, carry forward the humanitarian spirit and promote the cause of peace and progress. The China Red Cross Society follows the basic principles established by the International Red Cross and Red Crescent Movement, and independently carries out its work and performs its duties according to the Geneva Conventions and their Additional Protocols to which China is a party and the Constitution of the China Red Cross Society. According to the provisions of Article l2 of the Red Cross Law, which was passed on 1993 1 October 30th, the Red Cross Society performs the following duties: (1) Carry out disaster relief preparations; Rescue the wounded and other victims in natural disasters and emergencies; (2) popularize the knowledge of health care and disease prevention, carry out primary health care training, and organize the masses to participate in on-site rescue; Participate in blood transfusion and blood donation, and advocate voluntary blood donation; Carry out other humanitarian service activities; (3) Carry out Red Cross youth activities; (4) Participating in international humanitarian relief work; (five) to publicize the basic principles of the International Red Cross and Red Crescent Movement and the Geneva Conventions and their Additional Protocols; (six) according to the basic principles of the International Red Cross and Red Crescent Movement, to complete the matters entrusted by the people's government; (7) Work in accordance with the relevant provisions of the Geneva Conventions and their Additional Protocols. The Red Cross has the right to dispose of the relief materials it receives; In natural disasters and emergencies, vehicles carrying out rescue missions and marked with the Red Cross sign have priority. If it is in natural disasters and emergencies, it can constitute this crime to prevent Red Cross staff from performing their duties by violence or threats. In this case, we must pay attention to three aspects, namely: (1) must be the staff of the Red Cross. If it is not the staff of the Red Cross, even if it is engaged in some humanitarian work, it will not constitute this crime by violence or threat. (two) must perform their duties according to law. (three) must be in a natural disaster or emergency, and must be prevented from performing their duties by violence or threat. Although violence or threats are used to hinder the Red Cross staff from performing their duties according to law, it does not constitute this crime if it is not in natural disasters or emergencies.
4. Deliberately obstructing the state security organs and public security organs from performing the tasks of state security according to law, without using violence or threats, but causing serious consequences.
This situation refers to means other than the above-mentioned violence and threats, such as besieging, making trouble, ignoring or delaying the requirements of the staff of relevant state organs to provide convenient conditions for carrying out national security tasks, and obstructing the execution of official duties related to national security. If it is directly obstructed by violence or threat, it belongs to the first objective aspect of this crime, that is, the situation of obstructing the staff of state organs from performing their duties according to law by violence or threat cannot be punished. According to the relevant provisions of the National Security Law, the following acts should be to prevent national security personnel from performing official duties according to law by non-violent and threatening methods: (1) When performing national security duties, staff of state security organs and public security organs show their certificates to verify their identity according to law, and ask the relevant organizations and personnel about the situation, and the perpetrator refuses to submit identity certificates and provide relevant information (knowing that others are engaged in espionage, when the state security organs investigate the situation and collect evidence from them, (2) The personnel who perform national security work want to enter the relevant places, areas, places and units whose entry is restricted according to law, or view and consult the relevant files, materials and articles, and are refused by the actor; (3) When performing an emergency task according to law, the personnel who perform national security work show their certificates and ask for priority to take public transport, and when encountering traffic obstacles, they ask for priority to pass, but the actor refuses; (4) State security organs and public security organs may give priority to the use of means of transport, communication tools, venues and buildings of state organs, organizations, enterprises, institutions and individuals when necessary, but the perpetrator obstructs or even deliberately makes things difficult; (5) Personnel who perform national security work want to check the electronic communication tools, equipment and other equipment and facilities of organizations or individuals in order to safeguard national security, but the actor refuses to allow them; (6) Because of the need of national security work, the state security organs and public security organs, in accordance with the relevant provisions of the state, require the customs and frontier inspection personnel to inspect the relevant personnel, materials and equipment, and the relevant inspection organs refuse to assist; Wait a minute.
The actor must hinder the personnel who perform national security work from performing national security official duties according to law. The so-called obstruction means that the actor prevents the personnel who perform national security work from exercising their functions and powers and performing their duties normally through various means. It not only shows that the personnel who perform national security work are forced to stop performing national security official duties, but also shows that they are forced to change the content of national security official duties that should be performed according to law. It does not constitute this crime if it does not hinder the staff of state security organs or public security organs from performing their duties, or if it hinders the staff of the above-mentioned organs from performing their duties but fails to perform their duties of state security, and the public security organs are arresting people who intentionally kill or trying to hinder them from performing their duties of state security but not their duties. It does not constitute a crime to refuse to carry out the requirements of national security personnel first and let them perform national security official duties in time after the work is completed.
Obstructing the personnel who perform national security work from performing national security official duties must also cause serious consequences to constitute this crime. Serious consequences refer to delaying state-owned security work, indulging criminals, or causing serious damage to the safety of trapped families, such as causing criminal suspects to escape, interrupting investigation clues, losing criminal evidence, and transferring stolen money and goods.
(3) Main elements
The subject of this crime is the general subject, and any natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility can constitute this crime.
(4) Subjective factors
Subjectively, this crime is intentional, that is, knowing that the other party is a staff member of a state organ, a deputy to the National People's Congress, or a staff member of the Red Cross Society who is performing his duties according to law, he deliberately uses violence and threats to prevent him from performing his duties. Actors' motives are often varied. For example, it involves the interests of the actor; In order to safeguard others; Have personal grievances with the staff member, take the opportunity to vent and take revenge; Wait a minute. However, the motive does not affect the establishment of this crime, and it can be considered as a plot in sentencing. However, if the perpetrator does not know that the other party is a staff member of a state organ, a deputy to the National People's Congress or a staff member of the Red Cross Society who is performing his duties according to law, it does not constitute a crime.
Second, identify
(A) the boundaries between this crime and non-crime
1, draw a clear line between the crime of obstructing official duties and the people's resistance to the illegal behavior of state functionaries. In the course of performing official duties, a very small number of state functionaries abuse their powers, violate the law and discipline, harm the interests of the masses and cause public outrage. The masses should support and guide them to resist and struggle.
2, draw a clear line between the crime of obstructing official duties and the people's quarrels, sieges, contradictions and entanglements with the staff of state organs because they make reasonable demands, or they don't understand policies, or they are outspoken. People besiege and contradict state functionaries, usually because they don't understand a certain policy, decision and measure announced by state functionaries according to law, have opinions and ask state functionaries to explain, explain and answer, but because of extreme emotions, uncoordinated attitudes and improper methods, village state functionaries besiege and contradict. In the process of siege and confrontation, threatening language and similar violent shoving are often accompanied, which objectively hinders official duties.
(2) The boundary between this crime and crimes endangering national security such as secession, armed rebellion, riot and subversion of state power.
They have some similarities. If both are harmful to national interests, they will inevitably interfere with and undermine the normal management activities of the country. There are some intersections between behavior mode and behavior direction; The subject is a general subject; Subjective aspects are intentional. The difference between the two is that:
1, the direct object of crime is different. The main object of the former infringement is the normal management activities of the state; The latter is national security.
2. The objective aspects of crime are different. First of all, in the direction of behavior, the former is often specific, that is, the staff of a specific state organ or the staff of the Red Cross who perform official duties according to law; The latter's behavior is aimed at the whole state power, and it is usually random and uncertain in terms of specific infringement objects.
In terms of criminal methods, the former must usually be implemented by means of violence and threats; The latter is not limited to this, but also constitutes a crime of endangering state power and undermining national unity by peaceful evolution (except the crime of armed rebellion and riot). Finally, judging from the harmfulness of crime, the former is an abstract dangerous crime or an actual harmful crime in criminal law theory, and the latter needs to cause actual harmful consequences and reach a serious level; The latter is a behavior crime, that is, once it is implemented, it is accomplished, and there is no need to investigate whether the behavior has caused danger to national security.
3. From the subject of crime, although both of them can be composed of any natural person with criminal responsibility, in practice, the subject of the latter, especially the ringleaders, are mostly people who steal important positions of the state and have great political influence; The main body of the former is mostly ordinary citizens.
4. The subjective aspects of crime are different. This is the most essential and critical difference between the two. Subjectively, the former can be expressed as direct intention or indirect intention, and the actor usually has the purpose of obstructing the execution of official duties, but is not limited to this; The latter can only come from direct intention, and the actor must have the purpose of endangering national security. In practice, criminals who endanger national security will hinder or resist state organs or Red Cross staff from performing their official duties according to law by violence or threats. This is a crime of nuisance of official duties, a crime of secession, armed rebellion, riot, subversion of state power and other crimes. We should apply the basic legal rules to this kind of crime-paying more attention to the law is better than paying less attention to it, and punish the latter.
(3) The boundary between the crime of obstructing official duties and the crime of gathering people to obstruct the rescue of bought women and children.
Their differences in crime constitution are easy to understand:
1, the main criminal targets are different. The former is a crime of disturbing social management order, and the main object of infringement is the normal management activities of the country; The latter belongs to the crime of infringing citizens' personal rights, and the main object of infringement is the personal freedom of abducted women and children.
2. The objective elements of crime are different. The former is usually manifested in the act of preventing the staff of state organs from performing their duties according to law or the staff of the Red Cross from performing their duties according to law by means of violence or threats, and it is not necessary to gather people instead of gathering people; The latter can only prevent the staff of state organs from gathering to rescue the bought women and children. As for the method of crime, it is not necessary to use violence or threats, but it can also constitute a crime. If a small number of people (less than three) use violence or threats to prevent the staff of state organs from rescuing the bought women and children, they shall be punished as the crime of obstructing official duties in accordance with the relevant provisions of Article 242nd L and Article 277th 1 of this Law.
3. The subject of crime is different. The subject of the former is the general subject, and any natural person with criminal responsibility can constitute the crime; The latter is a special subject, and only the ringleaders who play the role of organizing, planning and directing in the activities of gathering people to hinder the rescue of the bought women and children can become its subject. For other activities involved in obstruction, if violence or threats are not used, it should not be considered as a crime according to law; Whoever uses violence or threats shall be punished for obstructing official duties in accordance with the provisions of the second half of the second paragraph of Article 242 of this Law. In addition, the two are also different in the subjective aspect of crime.
(four) the difference between this crime and the crime of refusing to execute the judgment or ruling.
The crime of refusing to execute a judgment or ruling refers to the act of refusing to execute a judgment or ruling of a people's court if the circumstances are serious. There are some similarities between the crime of obstructing official duties and the crime of refusing to execute judgments and orders: first, both of them may be acts that hinder the normal exercise of functions and powers of state organs; Second, both of them are intentional crimes, and both of them may be intentional against state official activities; Third, the crime of refusing to execute a judgment or ruling shows that when the actor obstructs the people's court from executing activities by violence or threat, his objective behavior is exactly the same as the crime of obstructing official duties. The key to the difference between them lies in the objective aspects of their crimes and the differences between the criminal subjects: the crime of obstructing official duties must usually be carried out by means of violence and threats, and the behavior of the actor against public servants must occur in the process of the latter performing official duties according to law, while the crime of refusing to execute the judgment or ruling does not need to use violence or threats, and it can be any method that can damage the binding force and authority of court decisions, such as deception, concealment, passive resistance and unreasonable troubles. Moreover, the crime of refusing to execute a judgment or ruling does not require that it must occur during the people's court's performance of its duties according to law; The subject of the crime of disrupting public service is the general subject, and the subject of the crime of refusing to execute the judgment or ruling is the special subject, that is, the party who must be obliged to execute the judgment or ruling or the person who is obliged to assist in the execution of the judgment or ruling according to law. Compared with article 3 13 (crime of refusing to execute a judgment or ruling), the former should be common law and the latter should be special law. Therefore, such cases should be convicted and sentenced for refusing to execute the judgment or ruling in accordance with the provisions of Article 3 13 of this Law.