On The Existence Or Abolition Of The Crime Of Provoking Troubl

The crime of provoking and causing trouble evolved from the crime of hooliganism in the Criminal Law in 1979.The debate on whether to establish the crime of provoking and causing trouble was the source of the debate on whether to abolish the crime of provoking and causing trouble when the Criminal Law was revised in 1997.Since its establishment,although the crime of provoking and causing trouble has been perfected continuously through criminal law amendment and judicial interpretation,many problems have been exposed in practice.In judicial practice,the scope of application of the crime of provoking and causing trouble continues to expand,showing the characteristics of "pocketing",which has both legislative and judicial reasons.The norm of the crime of provoking and causing trouble in legislation itself has the attribute of "pocket",and the judicial identification of the crime of provoking and causing trouble also has deviation.In view of the pocketing of the crime of picking quarrels and its solution,on the basis of the study of interpretive theory and legislative theory,there has long been a debate on the existence and abolishment of the crime of provoking and causing trouble in the theoretical circle of criminal law,which can be summarized into two positions: "reservation theory" and "abolishment theory".The "reservation theory" recognizes the existence value of the crime of provoking and causing trouble,and is more inclined to the function of the protection of interests."Abolishing theory" holds that the existence of the crime of provoking and causing trouble does more harm than good and is not conducive to the protection of human rights.In the specific debate about whether the crime of provoking and causing trouble exists or not,the idea of "decomposition and abolition" of the crime of provoking and causing trouble is reasonable,necessary and feasible.Necessity is manifested that the legislative defects of the crime of picking quarrels and picking quarrels and the "pocking" of judicial application violates the basic principles of criminal law.Feasibility mainly reflects that it is in line with our criminal policies and the development trend of criminal law,and that there is no legal loophole after abolishing the crime of picking quarrels and picking quarrels is feasible with reference to outside legislative experience based on our national conditions.Decomposition and abolition of the crime of provoking and causing trouble must follow the requirement of clarity and modesty,and the different behavior types of the crime of provoking and causing trouble should be decomposed and confirmed,so that our criminal law system and legal system will be more perfect.