The Criminal Law Cognizance Of The Act Of Gathering Crowds To Fight Caused Death

The second paragraph of Article 292 of the Criminal Law stipulates: "Assembling a crowd to fight causing serious injury or death shall be convicted and punished in accordance with the crime of intentional injury and intentional homicide." Can the process of gathering a crowd be caused not deliberately? If the victim is seriously injured or killed,it shall be deemed as the crime of intentional injury or intentional homicide.The doctrine of paying attention to the rule,the theory of legal fiction,and the theory of legal presumption are different,and there is no conclusion yet.Note that the regulation emphasizes that the conviction and punishment of the crime of intentional injury or intentional homicide for acts that cause serious injury or death must fully meet all the elements of the crime.The legal fiction theory regards this provision as a special provision,regardless of whether the perpetrator is subjectively based on intention or negligence,as long as there is a serious injury result,it is determined as the crime of intentional injury.As long as the result of death occurs,it is determined to be the crime of intentional homicide.The legal presumption is that in order to reduce the burden of proof for the prosecution agency,it is presumed that the perpetrator has a subjective intention to the occurrence of the consequences of the damage,which constitutes the crime of intentional injury or the crime of intentional homicide respectively.The presumption has the effect of inverting the burden of proof,and the defense refutes this presumption to a convincing degree.In trial practice,although there are no adjudication viewpoints that support the legal presumption theory,there is still a situation in which the two factions of legal fiction theory and attention regulation theory are opposed to courtesy.Based on empirical research,this article sorts out 80 cases of death caused by gatherings in fights and finds that most of the courts’ judgment opinions in the trial practice are biased toward the rule of attention.At the same time,under the different interpretations of the legal fiction doctrine and the attention-regulation doctrine,the final sentencing of the perpetrator differs greatly between different courts,and the phenomenon of different judgments in the same case is more prominent.After placing this clause under the interpretation of each theory and comparing and analyzing it,it is found that the qualitative provision of this clause by legal drafting regulations mainly has the problem of result-only objective incriminating,which in turn causes the perpetrator to bear excessive penalties.This clause is presumed by law,although it gives the perpetrator the right to prove his innocence,but in our litigation model,it is difficult for the perpetrator to effectively provide evidence to refute the presumed subjective sin,and there is still the possibility of excessive punishment of the perpetrator.Moreover,the validity of the criminal presumption generally comes from the express provisions of the criminal law or judicial interpretation,and there is still doubt whether the provision has the validity of the presumption.The provision of legal attention to qualitative this clause,although objectively increases the burden of proof for procuratorial organs and the possibility of indulging in crimes,it meets the basic requirements of the theory of crime constitution in our country after all,and it is the proper meaning of the criminal law to protect human rights.Relatively speaking,it is more reasonable.In summary,the three doctrines have their own special criminal law value and their own insurmountable dilemmas.Therefore,this article is based on the standpoint of attention to the rule of law,in order to solve the problem of the second paragraph of Article 292 of the Criminal Law.Two options are proposed for qualitative questions.First,on the premise that the criminal law is not revised,judicial interpretations should be issued to regulate the determination of subjective sins of perpetrators in such cases.Second,legislative amendments have been made to the provisions of Article 292 of the Criminal Law to include the circumstances of "gathering crowds to fight,causing serious injury or death due to negligence" into the aggravating circumstances of the crime of gathering crowds,and to include them in the aggravating circumstances of the crime of assaults.In the second paragraph,it is clear that "intentionally causing serious injury or death" is the basis for the conversion of a conviction for gathering a crowd to fight,so that it can fundamentally settle disputes over the determination of the behavior of gathering a crowd to cause death.