The Theoretic And Practical Study On Crime Of Affray

The amended Criminal Law of 1997 separated the crime of affray from another crime as under the Criminal Law of 1979 and stipulated it as an independent crime, in consideration that this offence always seriously disturbs the social order. However, there have been lots of deferent opinions on its definition, elements, forms, judicial determination and penalty among the circles of criminal law professionals and criminal law practice departments so far. This article, based on the basic theory of constitution of a crime, combining the theory and practice, try to clear up the important issues on this crime and provide an answer for how to apply the law on this crime in the judicial practice.The legislature uses the model of basic elements and aggravated elements to stipulate the crime of affray.Therefore, this article firstly analyzes the basic elements of this crime. The subject who may commit this crime is the average subject, without specific requirement on identity or social position. The ringleader and active participator, as two kinds of subject of this crime, all can be classified into the principal criminal and accessorial criminal. The subjective element of this crime shall be direct intention, and the different parties involving in the affray shall have the same intention. The motive and purpose are not the necessary elements of this crime and not the standard for determining whether the act constitute an offence or discriminating it from other crimes. However, to review the purpose of this crime has very important meaning in the determination of this crime. The object of this crime is the social public order. The objective element of the crime is compounded and corresponded with the acts of gathering a mob and fighting each other. On the analysis of its aggravated elements, this article places the emphasis on the aggravated circumstances of "gathering a crowd to engage in affrays for several times", "gathering a crowd to engage in affrays involving many persons and on large scale and causing a flagrant social influence", "in public places or on main traffic roads, gathering a crowd to engage in affrays and causing a serious disturbance of social order" and "gathering a crowd to engage in affrays with weapons". This article analyzes and discusses these circumstances from the aspects of theory and practice. The inchoate of this crime as an intentional crime shall has the forms of criminal attempt, crime preparation and desistance of crime. This crime belongs to the unnecessary joint offence according to the law, but there are still some exceptions in the legal practice, which also is a random joint offence under some situation. The determination of excessive offence, which is a common situation in this crime, shall be based on the subjective and objective elements of the offenders. The constitution of this crime is the necessary ground for other transformed offences under this crime. The determination of transformed offences shall follow the principle of consistency in the subjective and objective elements. The object of this crime's transformed offences is a complex object, which includes the social public order and the healthy, life reserving right of other people. The standard of determining whether an act constitutes an offence or discriminating this crime from other crimes shall be in light of its specific constitution of crime. However, as for the boundary of this crime and joint offence of assault and battery, to review the purpose of offence have a significant meaning in the criminal law practice.