Research On The Punishment Basis And Scope Of Creating Disturbance Crime

Creating Disturbance Crime is a very important crime in the Chapter VI ’Crime of Disrupting the Order of Social Administration’ of the Specific Provisions part of Chinese Criminal Law.But because of the vagueness and elasticity of the criminal provision,the objective behaviors of this crime are very difficult to be determinate and judged in the judicial application,leading to the confusion to make clear boundaries of creating disturbance crime and other crimes.According to the complementary and supplementary functions of creating disturbance crime,the punishment scope of this crime has been enlarging and expanding in recent years.If the judges couldn’t find the proper accusation to punish the actions which were seriously disturbed the social order,they always choose creating disturbance crime as the last but the most effective method.So this crime has been considered as a pocket crime and been criticized by many people nowadays.In the author’s opinion,the punishment basis and scope of creating disturbance crime are not only directly related to the criminal cognizance of this crime,but also intimately connected to the relationship of social order and individual freedom,and the conflicts between collective legal interest and individual legal interest.This issue is a key issue of the research of criminal law and has important theoretical and practical significances.So the author chooses the topic of ’Research on the Punishment Basis and Scope of Creating Disturbance Crime’as the subject of doctor degree dissertation,and hope to make reasonable restraints of the judicial application of this crime both in quality and quantity through in-depth and meticulous research.Besides the brief concluding remarks,this dissertation is divided into four chapters,about 110 thousands words in all.In the first chapter,the author reflects on the legislative stipulation and judicial application of creating disturbance crime.This chapter consists of four sessions.The first section mainly discusses the legislative evolution of creating disturbance crime,and compares this crime with related crimes of Germany,Japan,the USA,England,Russia and so on.In the second session,the author researches on the present situation of the judicial application of creating disturbance crime with lots of judicial judgments,authority files and real cases.In the third section,the author focuses on the reasons and reflections of the judicial practice of creating disturbance crime in three aspects:the value orientation of criminal legislation,the clarifying criterion of criminal justice,and the actual operation of criminal procedure.The author claims that we should make strict restrictions to the judicial application of creating disturbance crime,in order to severely punish crimes instead of abusing of authority.In the final session,the author responses to a heated discussion which happened among scholars:the argument of the abolishment or preservation of creating disturbance crime.In the author ’s opinion,now we should not abolish this crime directly,but must strictly control the standards and scopes of constitution of this crime.The second chapter is the theory basis of this dissertation,which is mainly discussing the criminal protection of social order.Because the legal interest of disturbance crime is social order,the main content of social order and the basis and scope of criminal protection of social order are the key issues to research the punishment basis and scope of creating disturbance crime.This chapter consists of three sessions.The main content of the first session are the historical origins and the basic connotation of social order,and the close relationship between criminal law and social order.The author thinks that although criminal law is indispensable to the protection of social order,they still will conflict to some degree.In the second session,the author deeply and thoroughly studies the issues that why and how the criminal law will protect social order in two aspects.According to legal interest principle,social order is a kind of collective legal interest.And in the harm principle,the damage to social order is definitely a sort of ’harm’.So the criminal law should protect social order no matter in civil law system or case law system.The third session focuses on the boundary which criminal law to protect social order.In the author’s opinion,individual freedom is prior to social order,and individual legal interest is also prior to collective legal interest.Chapter Ⅲ is about the the punishment scope of creating disturbance crime.This chapter includes four sessions.In the first session,the author studies the subjective aspect,the kinds,modes and scope of the objective aspect of creating disturbance crime,and hold the opinion that the hooligan’s motives would not be an element of this crime.In the second session,the author firstly compares creating disturbance crime with intentional injury crime,then analyzes the case of ’Xiao Chuanguo assaulted Fang Zhouzi’.In the third session,the author introduces the background of’double-layer society’,researches the definition of ’public places’ and the limits of criminal interpretation,queries about the related judicial interpretation,and briefly discusses the criminal boundary of free speech on internet.In the fourth session,the author claims that maintaining rights is the basis and ultimate purpose of maintaining stability.We should consider the following elements to judge whether the extreme appeals to the higher authorities for help conduct creating disturbance crime:the exist of reasonable basis for appeals,the subject intents of petitioners,the role which the government plays in compensation procedure,and the damage degree to social order.In Chapter IV,the author mainly discusses the punishment limits of creating disturbance crime.This chapter includes two sessions.In the first session,the author mainly researches’ gravity of the circumstances’ in criminal law and makes specific analysis of the concept and legislative reasons of circumstance crime,the kinds and roles of gravity of the circumstances’ in criminal law.In the second session,the author firstly makes clear of ’gravity of the circumstances’ for each type of conduct through integral analysis,and then discusses the treatment method for the existence of two or more types of conduct.