Some Problems Of The Crime Of Affray

The guilt of gathering people to engage in affrays is divided from the guilt of rascal in the criminal law enacted in 1979. Many arguments in theory and legal practice about it, such as its unfinished situation, conversion and how to establish it, arise from single provision in law.This thesis is composed of there parts to discuss these arguments according to Chinese criminal theory.ChapterⅠ" How to establish the guilt of gathering people to engage in affrays " analyse its definition and integrants. Section 1 is about "the definition of the guilt of gathering people to engage in affrays". After doing research on the different conceptions, I think that the guilt of gathering people to engage in affrays is an act of gathering more than two persons to engage, or taking an active part in affrays to disrupt public order out of private and primitive revenge, or the motives of defying rules such as lording over the people in an area. Section 2 is about "object of the guilt of gathering people to engage in affrays". In my opinion, there exists only single object, not complex object in this guilt which only infringes in or outside public places upon public order, a common rule formed from people's common life. Section 3 is about "objectivity of the guilt of gathering people to engage in affrays", including an act of gathering people and an act of affrays. The debate about an act of gathering people focus on if: (1) two sides of affrays should not gather people, (2)only one side of affrays should gather people, or (3) two sides of affrays should gather more than three persons. The author insists that an act of gathering people is in one-side nature to ask the amount of only one side, not each side of affrays more than three persons. But an act of affrays is in corresponding nature to ask the purpose of each side in engaging in affrays. Section 4 is about "subjective of the guilt of gathering people to engage in affrays". The offenders who commits this guilt should be directly intent on demolishing public order. Section 5 is about "actors of the guilt of gathering people to engage in affrays". It concludes that the ringleaders and the active participants as the common actors should be punished in the guilt.ChapterⅡexpounds "unfinished situation of the guilt of gathering people to engage in affrays ". Section 1 is about "the commence of the guilt of gathering people to engage in affrays". I think that guilt commences when the offender starts to gather people with the intention of gathering people to engage in affrays. According to it, we can distinguish the preparation phase from the proceeding phase in the guilt. Section 2 is about "preparation, attempt and discontinuation of the guilt of gathering people to engage in affrays ". In consideration of light harms to society, we usually can't regard the criminal preparation which may be happened in this guilt as a crime. The criminal attempt may be occurs in this guilt in the course of proceeding to gather people when the following affrays has not been caused yet. Discontinuation of this guilt may also be exist in which the ringleaders and the active participants should be punished differently.ChapterⅢdiscusses "the conversion of the guilt of gathering people to engage in affrays ". Section 1 elucidates the reasons of the conversion. I decide that the conversion of the guilt of gathering people to engage in affrays is caused by the change of the legal circumstances, such as the offender's intention and his action. Section 2 talks about the basic conditions of the conversion. Section 3 relates to the intention of conversion of the guilt of gathering people to engage in affrays. Due to the negligence which possibly leads to the conversion, the intention in this guilt may be unchangeable when the guilt has been developed into a new crime. Moreover, what the criminal intention is may be conflict with what the criminal results are. Section 4 concerns the joint crime in the conversion of the guilt of gathering people to engage in affrays. I think it reasonable that a new crime based on the joint criminal intention which evolves from the guilt of gathering people to engage in affrays ,should be established.