First, the constitutive elements of the crime of obstruction of official duties
1, criminal object
The object of the crime of obstructing official duties is the staff of state organs who perform their duties according to law. Some scholars believe that the object of this crime should be a compound object, the main object is the normal management order of the state to society, and the secondary object is the personal rights of the staff of state organs, deputies to the National People's Congress and staff of the Red Cross. (1) This view cannot be established, because the fourth paragraph of Article 277 of the Criminal Law stipulates that anyone who intentionally obstructs a state security organ or a public security organ from carrying out the tasks of state security according to law and does not use violence or threats, thus causing serious consequences, shall be punished according to the provisions of Article 1. In this case, the personal rights of the staff of state organs have not been violated, so it is inappropriate to think that the object of this crime is a complex object.
The object of this crime is the staff of state organs and the staff of the Red Cross. The so-called staff of state organs refers to those who are engaged in public service in state power organs, administrative organs, judicial organs and military organs at all levels, excluding those engaged in public service in state-owned enterprises, institutions and people's organizations. However, in judicial practice, it is still controversial whether the persons who are engaged in official duties in the organs of the People's Political Consultative Conference in the Communist Party of China (CPC) and China, and those who are authorized by laws and regulations to engage in official duties or entrusted by state organs but do not have the status of staff of state organs can become the object of this crime. We believe that the former should not be the object of this crime, while the latter can. Because according to the provisions of China's Constitution, state organs refer to the organs of state power, that is, people's congresses at all levels, state administrative organs, that is, the State Council and local people's governments at all levels, judicial organs, that is, procuratorial organs and people's courts. Although China's political system is a multi-party cooperative political consultation system led by China's * * * production party, the organs at all levels of China's * * * production party, as the ruling party, are not state organs stipulated by the Constitution, so their staff members do not have the status of state organs. Although in real life, there is a phenomenon that the party and the government are not divided, especially the phenomenon that the staff of the party's grass-roots organizations directly engage in social management activities is not uncommon. However, we believe that adhering to the general plan of governing the country according to law is to clarify the relationship between the party and the government. Upholding the party's leadership means upholding the party's political, ideological and organizational leadership, rather than engaging in specific administrative affairs. The goal of our political system reform is to separate the party from the government. If the staff in Party organs at all levels are included in the crime of nuisance of official duties, there is no basis on one hand, and the other hand, it may encourage the malpractice of not distinguishing between the party and the government and replacing the government with the party. Persons authorized by laws and regulations or entrusted by authorized state organs to engage in public affairs are qualified to engage in public affairs management according to law, but they do not have the status of state organ staff. If they perform their duties according to law and are not protected by criminal law, it will not be conducive to maintaining the normal management order of the state to society. These two types of personnel should be interpreted in an enlarged way and listed as the objects of the crime of obstructing official duties. On April 24th, 2000, the Supreme People's Procuratorate issued the Official Reply on whether the behavior of the infringer who obstructs the staff of the agency entrusted to engage in administrative law enforcement activities by threatening violence can be punished as the crime of obstructing official duties. ②
2. The objective aspect of crime
The objective aspect of this crime is manifested in the behavior of the perpetrator who obstructs state organs and Red Cross staff from performing their duties according to law by violence or threat, or who seriously affects the state security work of state security organs and public security organs without violence or threat.
First of all, the object of criminal behavior must be to perform duties according to law. Performing duties according to law refers to the act of performing duties within the scope of statutory functions and powers and in accordance with the procedures prescribed by law. In judicial practice, there are some differences in the understanding of "performing official duties according to law". Take Yang's case of obstructing official duties as an example. In May 2003, Yang blocked the road being built in front of his house with stainless steel, wooden sticks and stones on the grounds of house disputes. After the police of the police station forcibly removed the roadblocks according to law, the police failed to perform the relevant procedures and wanted to take the stainless steel away. Yang and others scratched the police on the grounds that stainless steel was their own property. The public security organ arrested Yang on suspicion of obstructing official duties. After examination, the procuratorate believes that Yang did not hinder the police from performing official duties and did not constitute a crime. (3) The first criterion for judging "performing official duties according to law" is to advocate the legality of the content of the act, that is, as long as the act of performing official duties is within the abstract authority of civil servants and has the general form necessary for performing official duties, it is considered legal. The second is that the legitimacy of official duties requires the legitimacy of both content and behavior. The former view has been gradually abandoned in modern countries ruled by law, and China is building a modern country ruled by law. Administration according to law is becoming the normal state of state organs at all levels in China, and the connotation of administration according to law determines that the latter can only be used as the only criterion. The specific requirements of administration according to law include: (1) subject legitimacy. That is, only the staff of state organs prescribed or authorized by law, or those entrusted by state organs to engage in official activities, can become the main body of job behavior. For example, in 2002, in accordance with the requirements of the county government documents, a joint law enforcement team composed of the town government, the police station, the court and the cultural broadcasting service station was set up to clean up and ban the illegally installed satellite TV ground receiving facilities in a certain place, and the illegally installed satellite TV ground receiving facilities were confiscated by Xie Jia. In the process of law enforcement, it was blocked and detained by the other party. The court of first instance found Xie guilty, and after the appeal, the court of second instance found Xie innocent because the subject of law enforcement violated the law. (2) The duty behavior shall conform to the scope of functions and powers of the subject. (3) The content of the act should be legal and appropriate. (4) The behavior conforms to legal procedures.
Secondly, the object of criminal behavior must be to perform duties or perform duties. This is the time limit for performing duties. The so-called performance of duties or performance of duties means that the above-mentioned personnel have started to perform their duties or are performing their duties, but they have not yet completed their duties or their duties have not yet been completed. It does not constitute this crime if the perpetrator uses violence or threats to vent personal anger against the staff of state organs or the Red Cross after performing their duties.
Finally, the perpetrator used violence, threatened or obstructed official behavior without threatening violence, which seriously affected the work of state security. The so-called violence refers to the acts of beating, binding, etc. to beat or intimidate the body of state employees. The so-called threat refers to the act of killing, injuring, destroying property, damaging reputation, exposing privacy, etc. to state personnel orally or in writing, which hinders the execution of official duties. If the perpetrator does not use violence or threats, but uses the form of soft grinding and hard foam, insults and deception to make trouble unreasonably, even if it objectively interferes with official duties, it generally does not constitute this crime. However, the fourth paragraph of Article 277 of the Criminal Law stipulates that it constitutes this crime to cause serious consequences to the security work of state security organs and public security organs by means other than violence or threats.
3. Subject of crime
The subject of this crime is the general subject, that is, a natural person with criminal responsibility at the age of 16. The unit cannot be the subject of this crime. If a unit organizes violence to prevent the staff of state organs from performing official duties according to law, the person directly responsible shall be investigated for criminal responsibility.
4. Subjective aspects of crime
The subjective aspect of this crime is intentional, that is, the perpetrator knows that the object of his infringement is the state organ or the staff of the Red Cross who are performing their duties according to law, and prevents them from performing their duties. If the perpetrator does not know that the object of infringement is the above-mentioned personnel, or although he knows that it is the above-mentioned personnel, he does not know that he is performing his duties according to law, or mistakenly believes that performing his duties is illegal and hinders it, it does not constitute this crime. ④
Second, the characteristics of cases of obstruction of official duties
1. Obstructing state functionaries from performing their duties according to law by violence or threats. The object of this crime is the staff of state organs who perform their duties according to law. The so-called state organ staff performing their duties according to law means that state organ staff use their statutory powers to carry out official activities within the scope prescribed by law. For example, the traffic police maintain traffic order according to law. The above-mentioned acts must be directed against the staff of state organs who are performing official duties, and violence against the staff of state organs who have not yet started or have finished performing official duties, which no longer constitutes an obstacle to performing official duties. Performing duties according to law here means that the staff of state organs use their statutory positions to engage in official duties within the scope prescribed by law. Whether it is violence against people or destruction of goods, as long as it is enough to hinder the staff of state organs from performing official duties according to law, it constitutes this crime. Threats include killing, wounding, disfiguring and robbing property in written or oral form, but do not include general noise and abuse. If noisy and abusive language belongs to personal insult, it directly infringes on the personality and reputation of others, and serious circumstances constitute the crime of insult.
2. Acts of obstructing deputies to the National People's Congress and local people's congresses at various levels from performing their duties according to law by means of violence or threats. According to Article 6 of the Law on Deputies to the National People's Congress and Local People's Congresses passed by the National People's Congress/KLOC-0 on April 3, 1992, deputies' work during the work of the people's congress at the corresponding level, as well as their activities when the people's congress is not in session, such as contacting voters, inspecting and inspecting, are all duties of deputies. It is a crime to use violence or threats to stop all this.
3 in natural disasters and emergencies, the use of violence and threats to prevent the Red Cross staff from performing their duties according to law. Specifically, it includes the following two factors: on the one hand, the perpetrator objectively carried out violence and threats. On the other hand, the above-mentioned behavior of the actor must be enough to hinder the Red Cross staff from performing their duties according to law. This specifically includes the following meanings; First of all, the actor's behavior is aimed at the Red Cross Society of the People's Republic of China, which is a social relief group engaged in humanitarian work. Secondly, it hinders the staff of the Red Cross from performing their duties. When identifying the behavior that hinders the staff of the Red Cross from performing their duties, we should examine it from the following three aspects: (1) Whether the perpetrator objectively commits violence or threats. If this crime is constituted, the perpetrator must objectively use violence or threats to prevent the Red Cross staff from performing their duties according to law. If the perpetrator does not use violence or threats to obstruct, but uses noisy, accusing, insulting or other negative and uncooperative methods to influence the Red Cross staff to perform their duties according to law, the perpetrator's behavior does not constitute this crime, but public security punishment can be given. (2) Whether the obstructive behavior of the actor occurs in natural disasters and emergencies. This is the requirement of time and space that constitutes this crime. If the actor's behavior is not in natural disasters and emergencies, but in a normal state, then the actor's behavior does not constitute this crime. (3) whether the actor's behavior is enough to prevent the Red Cross staff from performing their duties according to law. "It is enough to hinder the Red Cross staff from performing their duties according to law", that is, there is a dangerous state, on the contrary, there is no dangerous state.
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, thus causing serious consequences. The so-called non-use of violence and threats means that the nuisance behavior carried out by the perpetrator is carried out by means other than violence and threats, and there are no factors of violence and threats in the whole process of nuisance behavior, that is, it does not include acts such as siege, impact on relevant organs, personal killing, injury, binding and beating. Or non-violent, threatening obstruction methods threatened by killing, injuring, destroying property, damaging reputation, etc. The object that the actor objectively hinders is the national security task that the state security organ and the public security organ are carrying out according to law. In addition, what constitutes this crime must objectively cause serious consequences. The so-called serious consequences mainly mean that the activities of national security organs and public security organs in carrying out national security tasks are seriously hindered, such as the detection of crimes endangering national security or causing serious political influence. The establishment of this crime does not require the use of violence or threats, mainly considering the importance of national security work. For those who cause serious consequences, as long as the perpetrator deliberately obstructs, even if violence or threats are not used, criminal responsibility should be investigated according to law. Whether the perpetrator's non-violent and threatening behavior has caused serious consequences objectively is the key to whether this crime can be constituted. This crime belongs to the actual crime without violence or threat, and the necessary condition for the establishment of the crime is to cause serious consequences. Therefore, if the perpetrator intentionally carried out the related obstruction by non-violent and threatening methods, but did not cause serious consequences, the perpetrator does not constitute this crime.
Third, the value evaluation of the crime of obstructing official duties.
Where is the boundary between the crime of obstructing official duties and non-crime? This problem is very important and complicated in judicial practice. The general measure of crime is: it should not only meet the formal requirements of the crime of obstructing official duties as stipulated in the specific provisions of criminal law, but also meet the essential requirements of the crime as stipulated in the general provisions of criminal law, that is, social harm. Whether the former meets the constitutive requirements of the crime of disrupting public service is a matter of fact evaluation, while the normative evaluation of social harm is a matter of value evaluation. The fact evaluation based on evidence can be relatively accurate, while the value evaluation is somewhat vague. Social harmfulness is a kind of value evaluation of social mainstream culture. From the lightest to the most extreme, it is a process of gradual increase, and there is no critical point in itself. For example, the actor only pulls the staff of state organs who are performing official duties according to law, causing minor injuries to the staff of state organs, which is both negative and socially harmful. From general pulling to minor injury, this harmfulness is a gradual process in quantity, and there is no critical point in the middle. However, from the perspective of normative evaluation, the results of its value evaluation are different because of the different degree of social harm. Although the criminal law does not stipulate that this crime must be serious, in practice, any act that hinders the execution of official duties can never be regarded as a crime. Judging from the social harmfulness, the former is obviously just a general illegal act, while the latter constitutes a crime. In the gradual process of social harmfulness, there are obviously critical points between crime and non-crime, felony and misdemeanor, which are the boundaries between crime and non-crime.
It is easy to identify general illegal acts with obvious slight social harm and criminal acts with great social harm, but at the critical point of crime and non-crime, different conclusions may be drawn between victims and defendants, and between public security organs and different investigators. In judicial practice, a large number of cases are at the critical point of the crime of obstructing official duties. What should I do at this time? Is there a fair and just standard? There is a problem of value orientation here. In the past, criminal law, as a dictatorship tool of class struggle, strengthened the social protection function of criminal law for the purpose of restraining crime, while the human rights protection function of criminal law was often ignored. When the value of order conflicts with the value of freedom, order is superior to freedom. Therefore, based on establishing the authority of administrative law enforcement and maintaining the management order of state organs, even if the circumstances are minor, acts that hinder the execution of official duties are often treated as crimes. With the development of social civilization, in a society ruled by law, crime is regarded as a kind of dispute and conflict between countries and individuals, and the purpose of criminal law has also changed from simply fighting crime to fighting crime and protecting human rights. According to the values of the rule of law in modern criminal law, criminal law should embody a spirit of tolerance, which brings kindness and progress to mankind and promotes the development of human civilization. This spirit of tolerance is the principle of modesty in criminal law. The modesty of criminal law lies in that only when civil and administrative legal means and measures are insufficient to resist, can the state make it a crime and punish it by using criminal law. Therefore, the use of criminal law to solve social contradictions should meet two conditions: First, the harmful behavior must have a considerable degree of social harm. Second, as a response to harmful behavior, punishment should be inevitable. The so-called inevitability means that if the harmful behavior is not punished by punishment, it will not be enough to effectively maintain social order. When handling major cases according to the principle of modesty, it must be beneficial to the defendant. When the boundary between a felony and a misdemeanor is blurred, it is treated as a misdemeanor, and when the boundary between a crime and a non-crime is blurred, it is treated as a non-crime.
In judicial practice, actors suspected of obstructing official duties systematically oppose state government organs and resist law enforcement activities of administrative organs. The parties to the case are mostly improvisation, which is mostly caused by the intensification of contradictions between management and being managed, punishment and being punished. Some people don't understand a certain policy, decision and measure announced by the staff of state organs, and have opinions, so they ask the staff of state organs questions and ask for explanations and answers. Because of extreme emotions, the attitude is not calm, often accompanied by threatening tone and similar violent contradictions and pulling behaviors. In some cases, the parties did not intend to obstruct administrative law enforcement by violence at first. Because the law enforcement officers broke the law or did not give the necessary explanation to the parties, or their attitude was blunt and rude, the parties violently resisted law enforcement under passion. There are also a few state employees who abuse their powers in the course of performing official duties, violate the law and discipline, harm the interests of the masses, and the masses resist. However, due to the wrong attitude and method of resistance and struggle, it even violated the personal rights of the national staff concerned and hindered the execution of official duties. The parties to such cases have little subjective malice towards the government. Conflicts could have been avoided if the administrative organs had strictly administered according to law and civilized law enforcement. There is no need to use criminal law to resist. If it is punished as a crime, it may intensify the contradiction between state organs and the masses, especially in the third case. If treated as a crime, it will dampen people's courage to resist illegal acts, which is not conducive to the formation of a good social atmosphere. Punishment is not only ineffective, but also harmful. Therefore, in the above three situations, if a person uses violence or threats, the consequences are not serious, or if the actor uses obvious and slight violence or threats, if it is just a general pulling behavior and does not cause harmful consequences, it should not be punished as a crime. No matter what the case is, it depends on the real situation of the plot and is executed in a way that combines reality with theory.
Four, several problems in the judicial determination of the crime of obstruction of official duties
1, the boundary between the crime of obstructing official duties and other similar crimes
Because the criminal object of the crime of nuisance of official duties is the official activities carried out by the state organs according to law, and because the criminal law has made special provisions on the acts of nuisance of certain official activities, there may be overlapping cases between the crime of nuisance of official duties and other crimes of nuisance of public order, such as the crime of refusing to execute judgments and rulings, the crime of disturbing court order, and the crime of gathering people to hinder the rescue of bought women and children. The latter is obviously a special protection granted by criminal law, and should be handled according to the principle that special law is superior to common law.
2. Determination of the number of crimes against official duties
Because the crime of nuisance of official duties is usually carried out by means of violence and threats, which may cause personal injury to state organs or Red Cross staff, the crime of nuisance of official duties is easily involved with the crime of intentional injury and intentional homicide. The implicated offender shall be punished according to "choose a felony", that is, if the personal injury caused is only minor injury, he shall be convicted and punished for the crime of obstructing official duties, and if the injury caused reaches serious injury and degree or causes the death of staff, he shall be convicted and punished for the crime of intentional injury or intentional homicide.
3, the standard of proof of the crime of obstruction of official duties
The so-called standard of proof refers to the degree and level that judicial proof must reach. In China, the standard of proof stipulated in the Criminal Procedure Law is "the facts of the case are clear and the evidence is true and sufficient". How to determine whether the evidence is true and sufficient? That is, the cited evidence can prove that all four elements of a crime are met, that is, it constitutes a crime. As far as the case of obstruction of official duties is concerned, the evidence about the fact that the actor obstructed the execution of official duties is usually sufficient and not controversial. However, there are still quite a few cases in which the defendants do not plead guilty after prosecution, mainly because whether the perpetrator intentionally obstructs official duties and whether the act of performing official duties is legal is controversial. As for whether the duty behavior is legal, it should cite the relevant evidence that the content and procedure of the duty behavior are legal, and the standard of proof should adopt the standard of proof of the administrative procedure law. Whether the perpetrator intentionally obstructs official duties subjectively depends on whether the behavior of performing duties has fulfilled the corresponding obligation of informing, whether the staff clearly shows their identity, and whether the staff has violated their duties. The words "the facts of the case are clear and the evidence is true and sufficient" are very important and must be taken seriously.
V. Prevention and Countermeasures of Duty Crimes
The purpose of punishment is to prevent crime. Hundreds of years ago, Beccaria wrote in On Crime and Punishment, "The purpose of punishment is only to prevent criminals from infringing on citizens again and to warn others not to make the same mistakes." As a tool of social defense, punishment should be necessary and as light as possible. Only when social order and public interests are really infringed, is it necessary to defend, and as long as the vested interests of crime are lost, the punishment is enough. Undeniably, punishment has the function of deterring and preventing crime. As far as the crime of obstructing official duties is concerned, individual prevention of punishment can be better realized, and criminals who obstruct official duties are less likely to commit crimes again; But as far as general prevention is concerned, punishment is no longer omnipotent, and its role in crime prevention is limited. There are many factors that induce the crime of obstructing official duties. The internal cause is the conflict caused by the state's intervention in citizens' personal freedom according to the needs of managing public order, and the external cause is often the attitude, manner and language of state organs in law enforcement. Therefore, unlike natural crimes such as murder and injury, the crime of obstructing official duties is not only influenced by the deterrent effect of punishment, but also by moral sense and fear of public opinion. The deterrent effect of punishment alone is often unfavorable to its universal prevention, and the law enforcement authority of state organs cannot be established by punishment alone. From the perspective of judicial practice, only increasing the crackdown on the nuisance of official duties can not effectively improve the law enforcement environment, and sometimes it will be counterproductive, intensifying the contradiction between the masses and state organs, and the crime rate of nuisance of official duties cannot be effectively controlled. To sum up, the prevention of duty crimes should address both the symptoms and the root causes. The temporary solution is to increase the punishment for crimes that seriously disrupt official duties, and the permanent solution depends on the strict administration by state organs, civilized law enforcement by state functionaries, and enhanced legal awareness of the whole society. ⑤
On April 24th, 2000, the Supreme People's Procuratorate issued "Reply on whether the infringer can be punished for the crime of obstructing the execution of official duties by violence or threat", which pointed out that if the infringer is prevented from performing administrative duties according to laws and administrative regulations by violence or threat, or if the infringer is prevented from performing administrative law enforcement duties by violence or threat, the infringer can be investigated for criminal responsibility for the crime of obstructing the execution of official duties.
"In accordance with the provisions of laws and administrative regulations" in the Reply refers to the staffing basis for performing administrative law enforcement duties. For road law enforcement personnel, the basis of administrative law enforcement is the Regulations on Road Administration issued by the Ministry of Communications 1990. The purpose of "Reply" is to ensure the normal conduct of administrative law enforcement activities according to law. Article 2 of the Regulations on Highway Administration clearly stipulates that "highway administration" refers to the administrative management carried out by highway management institutions in order to maintain highways and highway facilities, safeguard the legitimate rights and interests of highways and develop highway undertakings according to the authorization of highway authorities and the provisions of national laws, regulations and rules. Highway law enforcement personnel, in accordance with the provisions of laws and regulations, should exercise the act of safeguarding the legitimate rights and interests of highways, which should be a legitimate administrative law enforcement act. When people are illegally infringed and their work is obstructed, they should be regarded as obstructing official duties and threatening administrative law enforcement personnel to perform official duties according to law by violence, and should be punished by law.
Precautions:
(1) Wang, editor-in-chief of Practical Research on Specific Provisions of Criminal Law, p. 103~ 106.
(2) Xian Tieke/Zhou Yuhua "Who is the object of the crime of obstructing official duties", East China University of Science and Technology Press 1998, pp. 56~57.
(3) Ma Youjun's "Criminal Prosecution in China" China Legal Publishing House 1 99765438+February1Edition 137~ 138.
(4) Xian Tieke/Zhou Yuhua's Crime of Obstruction of Public Service, East China University of Science and Technology Press, p. 12~ 13.
⑤ Qin Jiangze and Chen Chunyu's Judicial Research on the Crime of Obstruction of Public Service, China University of Political Science and Law Press, p. 78.