| The Criminal law in China defines crime of affray as a simple crime.As regulations are over-general and vague,there are many disputes on affirmation of affray acts during judicial cases and trials.How to converse a crime when there are people seriously injured or die during affray becomes a difficulty in handling cases and the focus of dispute in court pleads at present.Therefore,it is extremely important to comprehend relevant regulations of affray correctly and objectively,and to distinguish different crimes.This article carries on researches of crime of affray from four parts.Section 1,concept of crime of affray and objective constitution of crime.Surrounding the dispute focus of a case and the concept of crime of affray,this part mainly analyzes "gathering" and "fighting"."Gathering" is defined if there are three or more than three people on both sides.Crime of affray can be declared by an unilateral side."Fighting" needs duality,which means both sides have the intention of exchanging blows."Gathering" and "fighting" are the objective components and executive acts of crime of affray.Section 2,the subjects of crime of affray.According to article 292 of the Criminal Code,crime of affray only penalizes ringleaders and protagonists,thus how to distinguish protagonists and general participants directly affacts crime and noncrime.Generally speaking,there are differences in mental state,behaviour expression and consequence between protagonists and general participants.Only those who neither create risks nor implement risks but are at the fight site are general participants.Section 3,the justifiable defense in the affray.Although crime of affray penalizes ringleaders and protagonists,it does not mean that legitimate interest of these people and general participants are not protected.As there is a chance that legitimate right is in danger,the justifiable defense is also possible in affray.Its cognizance should center on defense intention,defense cause,defense time,defense object and defense limit.Section 4,the study of the boundary between crime of affray and crime of intentional injury.The difference between these two kinds of crimes is components of crime.Regulation about converted crime in article 292,paragraph 2 of the penal law is provision of attention.The precondition of conversion is that the act conforms to the constitution of crime of affray and deliberate affray converse to deliberate injury subjectively.As this regulation is over brief and general,and no unified judicial interpretation to specify it,it is necessary to perfect this regulation from legislation and judicial interpretation aspects and introduce guiding cases to serve the judicial practices better at the same time. |
