Study On Identification Of Active Participants In Affray Crime

Among the three kinds of subjects of affray crime,the principal element is easy to be identified,while the distinction between active participants and general participants has always been a difficulty in practical and theoretical circles.The paper studied the cases of mass affray on the Chinese online judicial documents in 2017,and found five situations in which the active participants of the crime of mass affray were identified..In all the five cases,there are different degrees of contradictory sentences and different degrees of different sentences in the same case.This also shows that China’s criminal law in the identification of affray crime active participants in the chaotic state.The reason is traceability.The first is that the statement of affray crime is simple and there is no clear definition for the active participants.There is no unified judicial interpretation and case guidance on this issue,and the practice varies from region to region.In the practice of all over the country,Shanghai,jiangsu and zhejiang provinces have clear normative documents when identifying the active participants of affray crime.Other provinces and cities that do not have clear normative documents on the issue do not have a unified approach.Second,the crime of affray is not clear about the relevant issues.The third,there are three main theories:comprehensive theory,objective theory and subjective theory.And the three theories can not cover all the cases,for some cases there are contradictory views.In addition,the paper mainly studied Japan,Germany and Taiwan,which have similar provisions with the crime of affray in China’s criminal law.On this basis,the paper puts forward the standard of identifying the active participants of affray crime,that is,"the objective theory based on functional domination".Starting from direct objective functional dominance and indirect objective functional dominance,this paper clarifies the identification criteria and puts forward how to identify difficult problems.This point of view makes up for the deficiency of the practical department and the theoretical circle and has strong guiding significance.