| n our social life,gathering behavior is a relatively common crime,which has a very serious impact on social public order and requires criminal law to regulate it.However,because the criminal law of 1997 used simple crimes for the regulation of the crime of gathering people,the provisions on the crime of gathering people are too abstract and simple,which makes the theoretical circles and the judicial practice community have many discussions and disputes on how to correctly apply the crime of gathering people..In view of the current situation,the author puts forward his own views on the identification of the crime of gathering people in this article.The thesis is divided into four chapters.The first chapter is the author’s identification of the objective aspect of the crime of gathering people.First of all,the author believes that "the crowd" only needs the requirement that one of the parties reaches the "public",that is,more than three people can be reached.There should be no restrictions on where there is no need for confrontation and where fighting behavior occurs.As for the question of how the connection between "gathering" and "fighting" should be recognized,the author believes that the crime of gathering people should be a behavioral crime.Although the act of "gathering the crowd" is indispensable in the crime of gathering people,it cannot be considered as " The act of gathering people is the practice of gathering people to fight crimes.Finally,the author discusses how to determine the "armed" behavior in the aggravating circumstances of the crime of gathering people,and believes that to constitute "armed" needs to be analyzed according to the specific situation,and only the perpetrator used in the process of fighting.The destructive things can be regarded as "arms." The second chapter is about the author’s views on how to identify the criminal subject of the crime of gathering people.First of all,the author believes that actors can be identified as “primary elements” and that they need to implement at least one of three functions,namely,organize,plan and direct one of them;then introduce some theoretical controversies about “active participants” and think that To be recognized as an "active participant" requires the unity of subjectivity and objectivity,the enthusiasm and active participation of the crowd-fighting activities,and the behavioral person who has taken certain objective behaviors and played a certain role can be considered as the crime.Active participants.The third chapter is about the author’s view on the application of the conversion clause of the crime of gathering people.Firstly,it discusses the legal nature of the conversion clause of the crime of gathering people.The author believes that compared with the regulations,the law is more in line with the conversion clause of the crime of gathering people.The characteristics of the nature of the law are also more in line with the legislative purpose of the legislator;then the theoretical controversy about the scope of the subject of the conversion clause of this crime is introduced,which should include conspirators,helpers and injurers;and finally the conversion clause of the crime of gathering people The theoretical disputes applying subjective conditions were introduced,and it was considered that whether it was intentional or negligent,it was one of the subjective sins of the application of the conversion clause.The last chapter is about the application of legitimate defense in the crime of gathering people.Firstly,it puts forward four theoretical foundations for the application of legitimate defense in the crime of gathering people.First,in some cases,the essence of the parties involved in fighting is a defense to protect themselves.Behavior;Secondly,the criminal subject of this crime has only the primary elements and active participants.Other actors often do not actively take the subjective intentions of the other party.These actors encounter subjective differences in their participation in the fight.In the case of vicious violence,in order to protect their legitimate rights and interests,the criminal law should allow them to defend properly;thirdly,if the strength of the two sides’ fighting is obviously not equal,there should be room for the establishment of legitimate defense for the safety of the perpetrators;Fourth,if one party has given up the fight,in order to avoid a deeper infringement caused by giving up the fight,it should also have room for the establishment of legitimate defense.Finally,the conditions for applying proper defense in the crime of gathering people are put forward,that is,the objective one gives up the fight or the strength of the two sides is obviously not equal,and the subjective defense awareness and defense purpose must exist at the same time. |
