Research On Judicial Determination Of The Crime Of Picking Quarrels And Provoking Trouble

The object of this article is the controversial crime since its inception—the crime of quarreling and provoking trouble.It was born out of the "hooligan crime" and has a congenital "genetic defect".The description of the crime is vague,leading to many problems in the judicial determination process.The “Eighth Amendment to the Criminal Law” in 2011 and the “Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Provocation and Provocation of quarrels” promulgated by the Supreme People’s Court and the Supreme People’s Republic of China in 2013 revised the crime of provoking quarrels and made reasonable measures in terms of behavior types and characteristics Perfect,so that the conviction and sentencing of the crime of creating trouble and provoking trouble is more scientific.However,these measures alone are far from fundamentally changing the flaws of the crime of provoking troubles,and drastic reforms are still needed.This article is divided into three parts as a whole.The first part explores the status quo of the different application conditions of each case in the judicial determination process of the crime of provocation and provocation.Through the analysis of six typical cases,it aims to prove that different judicial organs have different standards for whether the behavior can be recognized as a criminal element under the situation of similar behavior types,which is the so-called phenomenon of "different judgments in the same case".The second part explores the specific reasons for the above phenomenon.This article believes that there should be two reasons: one important reason lies in the flaws in the legislative theory,and the other reason is that the judicial interpretation oversteps the legislative interpretation and the judicial staff’s different understanding of the standard of crime constitution leads to the deviation of the application.The third part of this article combines the content of the first two parts,and puts forward some suggestions on the improvement and development of the crime of provoking trouble.