A Study On The Judicial Application Of The Crime Of Provocation

The crime of provocation derives from the crime of hooliganism in the 1979 Criminal Law, which is called by some scholars as the"new pocket"---all-inclusive crime. At present, there is a dispute over the concept of the crime and for lack of the corresponding judicial interpretation, the identification standards for the four objective behaviors are not clear. All these factors result in the ambiguity between crime of provocation and other similar crimes, which arouses controversy in the process of judicial application. The judiciary is not consistent across the country, even among public security organs, procuratorial organs and people's courts in the same area. This situation causes different results for the same cases, undermining the judicial authority, integrity and fairness, inevitably violating the legal rights of citizens. In view of this situation, the author probes into the related issues on the crime of provocation in its judicial application.In the first place, the author details the history of the crime and specifies the definition and constitution features of the crime with different views of the scholars in the academia. As a response to the battle for the abolition or demonstration, it expounds the reasonable location and value of the crime in the charge system of the specific provisions of the criminal law.The crime refers to such kind of behavior, i.e., to beat another person at will and with a flagrant circumstance; to pursue, intercept or abuse another person with a flagrant circumstance; to extort forcibly or at will, destroy or possess public or private property with a serious circumstance; or to boo and hoot and make trouble in a public place, thus causing serious disturbance therein. The subject is the general subject, which means the units cannot be the subject of crime. After an indication of the single object---the public order, the author elaborates on the connotations of public order. The so-called public order is the normal state of the society maintained by laws and the public life rules, which are established by social ethics. The subjective aspect is the actual intent rather than the indirect intent. Such motive as seeking mental stimulation is not a subjective constituent element of the crime, which serves only as a discretion factor in convictions and sentencing. In the charge system of the specific provisions of the criminal law, the crime is in the general provision, which plays a significant role in the reflection and implementation of the principle of a legally prescribed punishment for a specified crime and the principle that punishment should be adapted to the crime. It remedies the possible holes of the net of justice and maintains the coordination between the legal and social effects.。Then, the author elaborates on the four objective behaviors of the crime and made a detailed analysis. For the specific provision to beat another person at will, the paper tries to give a clear definition for"at will", which, rather than relying only on unilateral factors such as purposes, motives or causes, should combine the subjective and objective factors together with application of the"double replacement rules". As for the specific connotation and manifestations of"flagrant","serious","serious disturbance", the author does a superficial analysis, quoting relevant provisions of other provinces and cities as a reference. Time and place, motive and purpose, means and tool, the scale and frequency, the targets, extents of damage as well as consequences and other subjective and objective factors should all be taken into consideration.Due to the similarity and confusion in terms of behavior and targets among crimes of provocation, intentional injury, forcible filth and dishonoring a woman, robbery, along with crime of affray, the third part focuses on the comparisons and analysis of the subjects and objects between to beat a person at will with intentional injury, to pursue, intercept or abuse another person with forcible filth and dishonoring a woman, to extort forcibly or at will with robbery, provocation with affray, which has established the basis points and standard for the comparison and found a preliminary solution to the difficult problem of distinguishing crime of provocation form other similar crimes in practice.Finally, the author analyzes the judicial identification of the crime in terms of crime quantity and joint crimes. To beat a person at will with severe bodily injury or death as the result belongs to imaginative joinder of offences rather than the transformed offices, which, punishable for deliberate injury or homicide, should be given a felony penalty. If the offender resists arrest, leading to serious consequences such as police casualties or firearms robbed, he or she should be punished for deliberate injury, homicide or robbery under the principle of the imaginative joinder of offences. While without the severe consequences, the offender could be convicted and punished of the crime of provocation. As the crime does not belong to the serious crimes, specialized criminal group of the crime won't exist. Therefore, there can be only the common joint crime and the random joint crime. The principal criminal, the accomplice, the compelled criminal and the instigator should take the rap according to the general provisions of the criminal law. In the joint offence, the crime is committed mainly by the criminal gangs, whose ringleader should undertake all the criminal responsibilities and consequences for the crimes he organizes or commands. The principal criminal who gathered others to commit the crime more than once should be severely punished in accordance with the second provision in the Eighth Amendment of Criminal Law. Yet to the crime beyond the scope of the criminal's intent and command, he or she may not take the responsibility.