If the circumstances are not serious, they will generally be punished in accordance with the provisions of the Law on Public Security Administration Punishment. If the circumstances are serious, criminal responsibility will be investigated according to law. Suspected of nuisance of official duties, sentenced to fixed-term imprisonment of not more than three years. It is suggested to entrust a lawyer to defend him and give him a lighter punishment.
First, the subject of duty behavior and the legitimacy of authority are indispensable. First of all, the subjects who exercise their functions and powers according to law only include state administrative organs, organizations authorized by laws and regulations, and other organs, social organizations and individuals entrusted by administrative organs and organizations authorized by laws. Secondly, the identity of the personnel who perform their duties is legal, that is, the public servants who perform their duties on behalf of the main body of power must have legal identity and legal duties, and the two sides form a job entrustment relationship and can exercise power externally. If it can be proved that there is a job entrustment relationship with the authority subject, the identity of administrative staff, public employees and contract appointment staff is legal when performing their duties. However, unlike the official staff who naturally form a job entrustment relationship with the authority subject based on the organization and personnel relationship, the contract appointees need to prove that they have formed a job entrustment relationship with the authority subject because they are engaged in specific work, and the transactional auxiliary staff without special entrustment cannot be considered as having the legal status to engage in specific work behavior. Third, the act of performing duties must be carried out within the statutory authority of the power subject and must not exceed the restrictive requirements of the law on matters, regions and time limits. Never abuse your power.
Secondly, the legitimacy of behavior content is the basic element of the legitimacy of job behavior. Specifically, it should include two points: first, the purpose of the act is legal. The decision to carry out such official activities is for a legitimate purpose, that is, for the needs of the state and society, not because of the abuse of power by individual organs or individuals, which cannot harm the interests of the state and the collective and the legitimate rights and interests of citizens. Second, the content of the act is clearly stipulated by law and the law is applied correctly. Take the police law enforcement behavior with high incidence of obstruction of official duties as an example. According to Article 14 of the Working Rules for Receiving and Handling Police issued by the Ministry of Public Security, 1 10 accepts reports from the masses in five areas: criminal cases and public security cases (incidents), which endanger personal and property safety or social order. Therefore, for the law enforcement police who receive the "1 10" alarm and deal with the police situation, only the behavior carried out in view of the above situation is the legal duty behavior, and those beyond the scope do not have clear legal authorization.
Third, the performance of duties should comply with legal procedures. In the theory of administrative law, the legitimacy of procedure plays an important role in determining the legitimacy and effectiveness of administrative actions. Whether law enforcement officers can abide by legal procedures in the process of performing their duties is an important basis for the person being executed to directly judge whether their duties are legal or not. If there are major procedural flaws, the person subjected to execution may have reasonable doubts about the legality of his position and resist it. In practice, to judge the legality of the procedure, we should examine it from the following two aspects: First, whether the executed person has shown his specific identity to the executed person as required and the purpose of performing his duties, so as to prove whether the executed person has fulfilled his obligation of informing and whether the executed person has subjectively and intentionally obstructed his official duties. Second, whether the person subjected to execution carries out activities in accordance with the form, steps and time limit prescribed by law, and whether there is any violation of the legal form and time limit, so as to prove whether the person subjected to execution has reasonable reasons to question the legality of law enforcement. If the duty behavior does not have the legal requirements, that is, the person who performs the duty cannot prove the legality of his behavior, then the act of resisting this behavior should not be considered as a crime of obstructing official duties.
The establishment of the crime of disrupting public service needs serious harmful consequences. First, it conforms to the guidelines of the general principles of criminal law. In judicial practice, the general criterion for judging whether the crime of obstructing official duties constitutes a crime is that it must conform to the specific constitutive requirements of the crime stipulated in the specific provisions of the criminal law and the substantive requirements stipulated in the general provisions of the criminal law, that is, it has serious social harm. Therefore, in judicial practice, we must adhere to the principle of modesty of criminal law, and cases with obvious minor criminal circumstances and little harm should not be treated as crimes.
It meets the requirements of the specific form and degree of the crime of obstructing official duties. In the practice of handling cases, we should distinguish different situations, adhere to the principle of combining leniency with severity, pay attention to the effect of handling cases and adopt flexible disposal methods. Specifically, the methods of identifying violence and threats and the degree of crime can refer to the following standards: (1) using violent means to cause minor injuries to public servants; Although the use of violent means did not cause minor injuries to public servants, but the means were bad or threatened by personal attacks, destruction of property, damage of reputation, disclosure of privacy and other words, which hindered public servants from performing their official duties, caused crowds to watch and traffic jams, and caused serious public disorder at the scene; Intentionally damaging special vehicles and necessary equipment used by public servants in the course of performing official duties, resulting in economic losses of more than 2,000 yuan; Using or threatening to use weapons to hinder civil servants from performing their official duties; Use motor vehicles to forcibly drag and crash public servants.
Criminal punishment is required for the crime of obstructing official duties stipulated in the criminal law, which causes minor injuries to the police. According to the related crime of obstructing the law enforcement of state functionaries, they are sentenced to fixed-term imprisonment of not more than three years or criminal detention fines. If a public servant causes serious injury or death in the process of obstructing law enforcement, the serious case will be executed according to the heavier punishment attitude of intentional injury.
legal ground
Criminal law of the people's Republic of China
Article 277 Whoever obstructs a functionary of a state organ from performing his duties according to law by violence or threat shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or a fine.
Whoever obstructs deputies to the National People's Congress and local people's congresses at various levels from performing their duties according to law by violence or threats shall be punished in accordance with the provisions of the preceding paragraph.
In natural disasters and emergencies, those who obstruct Red Cross staff from performing their duties according to law by violence or threats shall be punished in accordance with the provisions of the first paragraph.
Whoever intentionally obstructs a state security organ or a public security organ from performing the tasks of state security according to law without resorting to violence or threats and causing serious consequences shall be punished in accordance with the provisions of the first paragraph.
Whoever violently attacks the people's police who perform their duties according to law because of assaulting a police officer shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance; Whoever causes accidents by using guns, controlled knives or driving a motor vehicle, which seriously endangers personal safety, shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.