Wen | Wu Bin, lawyer, economic crime defense lawyer, fraud crime defense lawyer, lawyer of Guangdong Guangqiang Law Firm.
The crime of provoking trouble, which has attracted much attention from the legal profession, has once again appeared publicly in major news media. This time, a student who graduated for nearly 20 years was detained in criminal detention and sought "revenge" from the teacher. By watching the online video, we can see that the student stopped the teacher who had taught him on the side of the road and slapped him several times in a row, with a condemning tone.
The reason why this incident caused such a sensation is that respecting teachers and attaching importance to education is a fine tradition of the Chinese nation. Another more important factor is that with the online fermentation of video and the promotion of "plot", things seem to have changed "taste". All kinds of statements emerge one after another. Some people say that it is not too late for a gentleman to take revenge for ten years. Others say that it is God's will to bully teachers and destroy ancestors. After several months of online fermentation, the teacher called the police and the police filed a case. Later, the student was arrested by the police of hangzhou east railway station police station in Zhejiang province while buying a train ticket home. At this point, a case of seeking trouble was born.
As a legal person, after watching online news reports and online videos, I think this student's behavior is too reckless and he doesn't know how to respect teachers. Even if the teacher made mistakes in the past, he should not be so narrow-minded. He should grasp it well. But returning to rationality, as a lawyer's rationality, I think that the student's behavior is obviously illegal and does not constitute a crime, and criminal punishment may be inappropriate.
The criminal detention of public security organs for the crime of stirring up trouble completely confuses the essential difference between illegality and crime.
In recent years, the voice of the legal profession about abolishing the crime of stirring up trouble has never stopped, because it is an out-and-out "pocket crime", which is popularly understood as a crime that many illegal acts can fall into. The predecessor of the crime of stirring up trouble is hooliganism. Readers can inquire about this charge separately, and this article will not repeat it.
According to the provisions of Article 293 of the Criminal Law of People's Republic of China (PRC), the crime of picking quarrels and provoking troubles refers to the act of wantonly provoking, arbitrarily beating and harassing others, or arbitrarily damaging or occupying public or private property, or creating troubles in public places, which seriously undermines social order. There are four kinds of objective manifestations of the crime of stirring up trouble in criminal law: 1 beating others at will, with bad circumstances; 2 chasing, intercepting, insulting or intimidating others, and the circumstances are bad; (three) extortion or arbitrary damage, occupation of public or private property, if the circumstances are serious; (four) in public places, causing serious disorder in public places.
The objective behavior of the crime of stirring up trouble is stipulated as follows
1. Beat others at will, and the circumstances are bad.
Beating others at will refers to beating people you know or don't know for no reason or for no reason, because of unhealthy motives such as being overbearing and having fun. The "bad plot" here refers to people who beat others at will by cruel means and beat others at will many times; Causing the beaten person to commit suicide and other serious consequences.
(1) As long as a physical force is applied to the human body, even if it does not touch the human body, it is still a beating. For example, if you wave a stick at another person's body without touching it, this is beating.
(2) In our country, beating is not an attempted crime of injury, so beating is not based on the danger of causing injury results. In other words, if an act can only cause physical pain to others, but it can't cause harm, it is also beating.
(3) If the actor exerts tangible force on the object and has a strong physical influence on the human body, it should not be considered as beating because it does not exert tangible force on the human body.
(4) Using tangible methods does not mean exercising tangible power. For example, although it is a tangible way to make others have stomachache after eating unsanitary food, it should not be evaluated as hitting people.
(5) Because the crime of stirring up trouble is a supplementary crime, beating is not based on the premise of causing injury (more than minor injuries). But on the one hand, the injury behavior that causes the injury result undoubtedly meets the requirements of beating behavior; On the other hand, as mentioned above, the statutory punishment for the crime of stirring up trouble is heavier than the statutory punishment for intentional minor injuries. Therefore, if the beating causes minor injuries, it can also be considered as a random beating of the crime of seeking trouble.
(6) In the same way, beating is not based on gathering people, let alone meeting the constitutive requirements of the crime of affray. However, the act of gathering people to fight usually conforms to the constitutive requirements of the crime of stirring up trouble.
Casual generally means that even according to the criminal's rationality, beating behavior does not have the reasons and motives that ordinary people can "understand" and "accept". The rationality of criminals is different from that of ordinary people, but ordinary people may also think from the standpoint of criminals and criminals. When ordinary people think from the perspective of criminals and can't accept the beating behavior of criminals, the beating behavior is random. From the actor's point of view, randomness means that the actor beats others without any self-control. Criminal law theory and judicial practice often like to judge whether it is random by whether there is a cause, that is, if there is a cause, it is not random; If nothing happens for no reason, it is random. However, any intentional crime cannot be unprovoked, in other words, any intentional crime has its subjective reasons or motives. The so-called "everything happens for a reason" refers to the reason that ordinary people can "understand" and "accept" according to the rationality of criminals; Things happen for no reason, because it is difficult to "understand" and "accept" based on the rationality of criminals. But whether the beating behavior is random is not a purely subjective judgment, but a judgment based on objective facts. Objectively speaking, the more times you are beaten, the more people are beaten, and the greater the possibility of being judged as "hitting people at will". Moreover, the "understanding" and "acceptance" of ordinary people are not only based on the motivation of the actor, but also must consider other related factors. Therefore, "random" judgment is relative. For example, although the perpetrator only hit others once, the reason for hitting others is that others gave good advice to the perpetrator. This should be evaluated as random beating, because even from the standpoint of pedestrians, you will think that the reason for beating is incredible. For another example, only one of several people did something bad to the abuser, but the abuser beat several people present. This should also be evaluated as random beating, because the behavior of the abuser beating the innocent is "incomprehensible" and "acceptable" to ordinary people. On the contrary, the perpetrator hit others seven or eight times because others satirized the perpetrator's behavior. Even though the reason for hitting people may be "understood" by ordinary people, the number of times of hitting people is beyond ordinary people's understanding. So randomness is not a simple subjective factor, but a judgment based on objective facts.
At the present stage in our country, it is impossible to establish the crime of minor injury. Therefore, the criminal law has made the requirement of "bad plot". Whether the circumstances are bad or not should be judged around the extent to which legal interests are infringed or threatened. For example, the act of beating at will causes minor injuries or minor injuries, the means of beating others at will is harsh and cruel, the weapon is used at will, and others are beaten at will; Those who gather many people to beat others at will, beat others at will for many times or beat many people at once, and beat vulnerable groups such as the disabled and children at will shall be deemed as having a bad plot. However, the judiciary must pay attention to the fact that the "randomness" of beating others cannot be evaluated as bad circumstances; Only when the beating behavior is random and bad at the same time can it be punished as the crime of provoking trouble.
2. Chasing, intercepting, insulting or intimidating others, and the circumstances are bad.
Chasing, intercepting, insulting and intimidating others refers to chasing, intercepting, insulting, intimidating others for no reason with unhealthy motives such as having fun and seeking spiritual stimulation, which is mostly manifested in chasing, intercepting and insulting women. The "bad plot" here mainly refers to people who constantly chase, intercept, abuse and intimidate others; Causing bad influence or arousing public anger; Cause other consequences and so on. It should be pointed out that if the perpetrator uses violence, coercion or other methods to force lewdness and humiliation of women, it constitutes the crime of forced lewdness and humiliation of women.
Chasing generally refers to the behavior of preventing others from staying in a certain place; Interception generally refers to the act of preventing others from moving places. Obviously, these two behaviors are behaviors that hinder the freedom of movement of others. Hunting and interception can be carried out by violence or threat. Abuse refers to contempt for others' value judgments with words. The crime of abuse does not need a specific object, and the abuse of ordinary people may also constitute the crime of abuse. Intimidation is to threaten others by harming their rights and interests or the interests of the public, making them feel fear and panic. In many countries, it is a criminal offence whether violence is committed against the other party or not, even if it is only a verbal threat to the victim (the other party), and there is a death threat or injury to the party or his family, company, property rights, etc. Including death threats, bomb fraud threats, suicide threats, etc. If the intention is to obtain other people's property or benefits in this way, it is called "threatening money". The judgment of bad circumstances must be centered on the extent to which legal interests are infringed or threatened. Those who chase, intercept, insult or intimidate others and cause minor injuries or commit suicide, those who chase, intercept, insult or intimidate others with a weapon, those who chase, intercept, insult or intimidate others for many times, and those who chase or intercept vulnerable groups such as the disabled and children shall be deemed as having bad circumstances. Compared with item 1 of Article 293 of the Criminal Law, the requirement of item 2 seems to be more relaxed. Because 1 requires not only beating others, but also "arbitrary" and "bad circumstances"; The second item only sets a restrictive condition of "bad plot" outside the behavior. However, in the case that the charges are the same as the statutory punishment, the two charges cannot be explained to varying degrees. So generally speaking, the circumstances of the second crime should be higher than the severity of 1.
3. Forcibly seize or arbitrarily damage or occupy public or private property, and the circumstances are serious.
Extortion or arbitrary destruction or occupation of public or private property refers to extortion of commodities in markets and shops and other people's property by unreasonable hooliganism, or arbitrary destruction or occupation of public or private property. Serious circumstances here refer to forcibly seizing or arbitrarily damaging or occupying a large number of public and private property; Causing adverse effects; Repeatedly extorting money or arbitrarily damaging or encroaching on public or private property; Causing serious losses to public and private property and so on.
For example, after taking a taxi, forcing the other party not to accept the rent should also be interpreted as coercion. Although the act of extorting something by force is mandatory, it does not need to be enough to suppress the resistance of the victim. Damage to property refers to all acts that reduce or lose the use value of public and private property. The meaning of arbitrariness is similar to arbitrariness, but its degree is lower than arbitrariness, which means that there is no legal basis and reason for the behavior. As far as destroying property is concerned, arbitrariness means that the behavior goes against the will of the victim. Embezzlement of public and private property refers to all improper and illegal use of public and private property.
"Arbitrariness" is not only a restriction on the destruction of public and private property, but also a restriction on the embezzlement of public and private property. The act of encroaching on public or private property must be illegal, but the perpetrator is not required to have the purpose of illegal possession.
Whether the circumstances are serious or not depends on the amount of property acquired, damaged or possessed by the actor, the degree of coercion, the degree of arbitrariness and the number of acts. Because this crime has comprehensive characteristics, the interests it protects are not pure property, so the result of this behavior is not limited to property losses. If coercion causes others to commit suicide, it can also be evaluated as serious. Similarly, in a free market, extortion or arbitrary destruction of other people's goods, which makes others forced to give up operating in the market, or makes it difficult to operate smoothly in the market, should also be assessed as serious. Extortion, arbitrary destruction or possession of a large number of public or private property is of course serious (whether it constitutes other crimes is another matter).
4. Making troubles in public places, causing serious disorder in public places.
Making trouble in public places refers to the act of making trouble in public places and disturbing the order of public places because of unhealthy motives such as having fun and seeking spiritual stimulation. Refers to the serious chaos in which the normal order of public places is destroyed, causing people to panic and flee.
The judgment of whether the act of heckling and making trouble has caused serious public disorder should be based on all the specific circumstances when the act occurred. The nature of public places, the importance of public activities, the number of people entering public places, the time of trouble, the scope and degree of public activities affected, etc. , is an important material to judge whether the behavior caused serious confusion in public places. For example, whether the actor makes noise at the beginning or at the end of public activities, whether the behavior causes a few people in public places to be unable to engage in normal activities or causes most people in public places to be unable or difficult to engage in normal activities will have a great impact on the judgment conclusion.
As long as the actor has any of the above four situations, it constitutes the crime of picking quarrels and provoking troubles. However, in the trial practice, the actor often "forcibly takes" and "randomly beats others", or "chases, intercepts and insults others" first, and then "arbitrarily damages and occupies public and private property". In order to satisfy the rogue motivation of seeking spiritual stimulation and having fun, the actor usually carries out multiple acts, and then only considers this crime as one crime.
To sum up, only from the understanding of the law, it is obvious that students' behavior did not cause minor injuries to teachers, nor did they arbitrarily damage or occupy public and private property worth more than 2,000 yuan. There is no doubt that it has destroyed the social order. In addition, there is a reason for students to slap the teacher, not to make trouble. And there are more than a dozen students who haven't contacted for more than ten years who are willing to testify. The teacher did not call the police after the incident, which also shows that the student did not beat others at will.
In this paper, based on common sense and judicial practice, the author made an analysis and rational judgment, and concluded that the student did not constitute the crime of stirring up trouble.
For the student's behavior, the public security organ can impose administrative detention according to the relevant provisions of the Law on Public Security Administration Punishment, which should not be considered as a crime at all. After all, the criminal law must be restrained, otherwise the public security organs will be suspected of abusing the right of criminal detention.
Written in Guangzhou 20 18 12 2 1.