The Determination Of "Armed" In The Crime Of Affray

The essential difference between armed crowd fighting and general crowd fighting is that the social harm is more serious,which is why it is stipulated as an aggravating punishment by the criminal law.However,in judicial practice,there are many disputes on how to identify the armed circumstances,mainly focusing on how to understand "armed" and "armed",as well as the identification of "armed".In view of this,this paper mainly focuses on the understanding and identification of "hold" and "hold" in the behavior of armed crowd fighting,and discusses the practical disputes in the identification of "hold".The full text is divided into the following parts:The first part is the dispute about the crime of armed affray.In the current judicial practice,it is difficult to identify the armed circumstances of each actor when investigating the criminal cases of affray.According to the academic view,armed mob fighting mainly refers to the situation in which the participants in the mob fight with sticks,knives and various guns and weapons.In practice,the identification of weapons includes the actual use,preparation and carrying to the scene of the fight,and the active participation in the fight by obtaining equipment from the scene temporarily.The second part is the understanding of "weapon" in armed crowd fighting.Because of the Supreme People’s Procuratorate and the Supreme People’s Court does not have the official explanation about the meaning of "machinery",in this paper,the characteristics and nature of the machinery,this paper explicitly recognize the rules of "machinery",namely the machinery is equal to the second paragraph of article two hundred and sixty-seven of the criminal law weapon understanding,should have hard physical attributes,conspicuously can cause serious injury or death.The third part is the understanding of "chi" in armed crowd fighting."Holding" can be understood as both an act and a continuous state.In the objective form,it is manifested as the continuous state of the actor’s realistic control or domination of the instrument,and only the intentional holding of the instrument can reach the degree of infringement of legal interest which is worth aggravating the punishment,and the "armed crowd fighting" can be identified from the objective and subjective aspects.The fourth part discusses the dispute under the circumstance that the actor premeditated to hold the weapon.In affrays crime premeditated armed,if a person known to their own personnel armed,prior to their own personnel to provide equipment or knowingly is armed fights,and fights to contact each other time,place,or actively involved personnel,active implementation of fights,even if its actual armed not personally participate in the fight,according to the theory of accomplice should also be considered armed gang war;If the actor has only premeditated intention of holding weapons and carries instruments but has not actually used them,he shall not be punished for the aggravated circumstances of holding weapons and gathering people to fight,but shall be punished for the crime of ordinary gathering people to fight according to the actual situation of the case.The fifth part is the dispute under the circumstance that the actor has not premeditated to hold the weapon.In the process of fighting,the actor temporarily seeks and USES the equipment,the actor snatches and USES the equipment of the other party,and the person who wears the equipment on the basis of occupation participates in the crowd fighting and USES the equipment.In the above three cases,the actor subjectively recognizes that his behavior may cause injury consequences and objectively participates in the fight,which has a positive role in promoting the outcome.It should be identified as armed affray.