Study On The Boundary Of The Crime Of Picking Quarrels And Provoking Troubles

The separation of provocations from hooliganism is considered a major advance in criminal legislation.However,due to the high degree of vagueness and generality of the code itself,and the fact that the judicial interpretation in 2013 broadened the field of application of this crime,the application of this crime has become increasingly dodgy."Sin of pocket" hat,the sound of abolition.The determination of the exclusive the scope of the quarrel first needs to clarify the legal interest,it has very important theoretical and practical significance.Secondly,it is necessary to clarify the connotation and extension of behavior types and control the lower limit of the illegality of behaviors.In this way,quarrel and troublesome behavior belonging to the administrative category and the behavior regulated by other crimes can be directly excluded from the definition,so that the scope of punishment can be further determined.Due as a social harm phenomenon,provoking trouble is a problem of understanding and application in judicial application.When the punishment is unreasonable or the social effect is not good,there will also be the question of whether the legislation should be modified,so to study the boundary problem of the application of quarreling trouble,the structure will be divided into four parts:The first part analyzes the dispute of the applicable boundary of the crime of picking quarrels and provoking troubles.Combined with typical cases,hot from the constitutive requirements of understanding the judicial practice on the application of the crime,through the observation found that the application of the judicial practice to this crime is more ambiguous attitude,even break through this crime is the bottom line that cases is unfair,makes this crime the function of maintaining social order can’t effectively play,even against the principle of a legally prescribed punishment for a specified with the spirit of the austerity of criminal law.The second part discusses the reasons for the wrongful use of quarrels and troubles.Firstly,from the perspective of judicial practice,it is analyzed that,on the one hand,it is influenced by the traditional criminal law view and values.In the past,under the influence of the theory of social harmfulness,judicial organs habituated to add subjective judgment when determining the harmfulness of behaviors,failing to balance the relationship between order maintenance and freedom protection.On the other hand,it is influenced by the actual operation of judicial proceedings,such as the different understandings of judicial interpretations by different organs,the connection between different judicial procedures,and the emergence of emotional justice.Secondly,from the perspective of norms,it is mainly influenced by legislative concepts,legislative terms and description of crimes.The above problems make the application of the crime of picking a disturbance expand irrationally.The third part defines the boundary of the crime from the perspective of constitutive elements.The reason why the application of this crime is vague is that there are differences in the basis for the application of this crime.The constitution of crime is an important theory in the criminal law of our country,which determines the social harmfulness and degree of behavior.Firstly,this paper discusses the defect,connotation and function of the legal benefit of this crime.The legal benefit is the value principle of qualitative and quantitative accusation.The punishable behavior of harm is positively correlated with the degree of infringement of legal interest.Secondly,under the framework of legal interest,the objective elements and subjective elements are interpreted to establish the applicable standards of this crime.The fourth part explores the reasonable application of this crime with the boundary.Based on the basis established above,in order to solve the existing disputes,firstly,the value and orientation of the quarrel trouble should be clarified,and its independence should be firmly preserved and advocated.Secondly,it puts forward the perfect path from the judicial level and the standard level respectively.In the judicial application,it strictly takes the principle of legality as the precondition,changes the position of the former order centralism,pays attention to the specific investigation of the infringement degree of the law of behavior,and implements the principle of prudence in the application.On the normative level,under the guidance of the spirit of modesty and suppression of criminal law,vague terms should be clarified,and the connection between criminal law and administrative law should be paid attention to,so as to provide feasible standards for the exercise of judicial organs’ discretion.