Since 1997 criminal law listed it as a separate crime, it has been criticized in judicial practice and belongs to the "pocket crime" in criminal law to some extent. There are 422 crimes stipulated in China's criminal law, but in recent years, about 3% of the cases were convicted of the crime of provocation, and even reached more than 3% in the first two years, which clearly shows that the crime of provocation is universal in judicial practice and application, and its utilization rate is higher than other crimes. This makes us have to pay attention to and think about the problems existing in the judicial determination of the crime of stirring up trouble.
Subjective will is difficult to identify, "arbitrary" or "arbitrary"?
On the one hand, it refers to the unpredictability of the actor in the implementation of a certain behavior, that is, for the general rational person, the beating behavior taken by the actor is difficult to be implemented, accepted and understood by the general rational person; On the other hand, it also refers to the uncertainty of the behavior object, that is, the behavior object is unpredictable before the behavior occurs, and there is no causal relationship between the victim's related behavior and the beating behavior carried out by the perpetrator in the sense of criminal law. The degree of "arbitrariness" is lower than that of "arbitrariness", which means that the actor carries out certain behaviors at will, which is a psychological state that violates the will of others and is not authorized by law, and emphasizes the lack of legal basis. Generally speaking, both "free" and "free" can mean that the actor does something completely according to his own thoughts and consciousness, that is, he can do whatever he wants. In the crime of stirring up trouble, arbitrariness and arbitrariness are a subjective will. Although arbitrariness and arbitrariness are one of the constitutive elements of the crime of stirring up trouble, there is no clear legal or judicial interpretation to define or explain them clearly. For example, beating others, if it constitutes a crime of seeking trouble, then the beating behavior should generally have nothing to do with the victim's previous behavior, and it can only constitute a crime of seeking trouble for fun. But ... from the common sense, it is impossible for the perpetrator to infringe on others without any reason, and it is impossible for no reason. That is to say, the behavior of the actor is naturally out of his personal subjective will, choice or motivation. Even if the same person performs the same behavior on the same object, his subjective will may be different due to the difference in time or place. Therefore, in judicial practice, if the perpetrator does not admit that he is "random" after beating others, it is difficult for judicial personnel to judge that he is "random".
What are the criteria for disturbing social order?
The object of protection of the crime of stirring up trouble is social order, and the criminal act to be cracked down is the act of undermining social order. Of course, the social order here refers to the social public order, that is, the order of public places under the current social conditions in China. This is a state of existence, but this state and state are neat and orderly, which means consistency, continuity and stability to some extent under certain circumstances, and it is a kind of stability. However, social order is a relatively abstract and broad concept. In judicial practice, judicial personnel often judge whether the relevant behavior occurs in public places. In criminal judgment, whoever finds the crime of picking quarrels and stirring up trouble will often have expressions such as "the actor chases others in public places with bad circumstances" or "the actor makes trouble in public places with bad circumstances", which shows that judicial personnel are trying to make social order and public places. Public places refer to unspecified places where most people can freely enter and leave and move freely. They are places where the public can engage in various public affairs and all the places, buildings or other facilities used. The important feature is "public * * *". Public order in public places also has multiple meanings: on the one hand, the use of public places must be used for public purposes, which is different from private purposes. Of course, shared houses are not public places, and only the order used in public places belongs to public order. On the other hand, it is linked to time. Even in public places, whether the order at that time belongs to public order depends on the number of people at different times and places. For example, if the behavior takes place in a park, if there are many people in the park during the day on weekends, and if the perpetrator attacks others, it may disturb social order. However, if it is late at night, there are only perpetrators and victims in the whole park. At this time, although the beating occurred in public places, it did not reach the level of disturbing public order. Public * * * order is definitely not equal to public * * * place order. Considering the public order of public places, we must make a comprehensive judgment according to the time, number of people, scope and influence degree of the places at that time. So formally speaking, it is relatively easy to define whether a place is a public place, but it is more difficult to define whether the order of public places belongs to public order.
Chen Ying, lawyer of Beijing Yingke Law Firm, master of law. Worked in Beijing Higher People's Court, specializing in criminal defense. He is good at major, complex and difficult cases, and has achieved good defense results in the defense of many difficult cases such as withdrawal, non-prosecution, and sentencing below the statutory penalty. Solid legal theory foundation, rich experience in handling cases, serious and responsible practice attitude, widely trusted and praised by clients.
Some criminal cases with social impact have been handled:
* Li Moumou, an electric power system in Heilongjiang Province, is suspected of organizing and leading criminal cases of organized crimes of underworld nature.
* Tian, Hebei Province, is suspected of organizing and leading a criminal case of organized crime of a triad nature.
* Lin, Hainan Province, is suspected of organizing and leading organized crimes of a triad nature.
* Sun Mou, Jilin Province is suspected of "routine loan" case.
* Beijing Wang Moumou was suspected of illegally absorbing public deposits.
* Shanghai Zhang is suspected of fund-raising fraud.
* Wang Moumou in Shandong Province was suspected of embezzlement and misappropriation of public funds.
* Li Moumou in Inner Mongolia is suspected of intentional injury and death.
* Luo Mou in Jiangsu Province was suspected of accepting bribes and dereliction of duty.
* Xinjiang Fang Moumou is suspected of contract fraud.
* Henan Zhang is suspected of forging financial tickets.
* Wang Moumou in Anhui Province is suspected of fraud.
* Zhang (Zhengke), a traffic bureau in Shandong Province, was sentenced to probation for accepting bribes.
* Zhou of Ningxia was commuted to a suspended death sentence for drug trafficking.
* Beijing Wang forged the company seal.