The Judicialapplication Of The Crime Of Assaulting Police

In December 2019,the Supreme People’s Court,the Supreme People’s Protectorate,Ministry of Public Security jointly issued the "Guiding Opinions on punishing illegal and criminal behavior of assaulting a police officer in accordance with the guidelines",to share the crime of assaulting activities strictly sentencing issues such as the specific standard of scale has made a detailed interpretation,reflects the state of great determination to punish the crime activity and assaulting a police officer determined crackdown.However,the definition of crime and non-crime is unclear,the punishment is too light,and there is a lack of specific judicial standards for retaliatory attacks on police.Until the introduction of the Amendment(Xi)of criminal Law,the crime of assaulting police was established from the perspective of criminal law.Therefore,this article no longer demonstrates the feasibility and necessity of establishing this crime,but mainly focuses on the difficult problems of the crime in the application of law.At present,the criminal law of Our country coexists two kinds of charges,obstruction of public service and assault on police,which belongs to the relationship between general law and special law.Only by conforming to the constitutive elements of obstruction of public service crime,can the possibility of constituting assault on police be further discussed.According to Professor Zhang Mingkai,"violent assault" is no less harmful than or even better than the crime of obstructing official duties.However,as a specific dangerous crime,the legal determination of the crime of assaulting police must be cautious to prevent the crime from enlarging and violating the original intention of legislation.The establishment of the crime of assaulting police in China is not accomplished overnight,but a gradual process of several decades.To correctly understand the connotation of this crime,we need to understand the legislative intention of the establishment of the crime of assaulting police and the differences between the supporters and opponents of the establishment of the crime.In this crime,the identification of "violent attack","performing duties","people’s police" and other elements still exists misunderstanding.It should be made clear that assaulting a police officer can be an offence only if the perpetrator acts in a positive manner,and that purely negative omission or accidental physical contact without the possibility of causing harm should not be an offence under the law.Duty time should not only include normal working hours,but should extend to the time when you are performing your duties.The content of the job should belong to the abstract police job category.When the police and auxiliary police work together,attacking auxiliary police may constitute the crime of assaulting police.In addition,the target of violence must be the people’s police who are performing their duties,affecting the development of normal duties and having the possibility of causing serious consequences.That is to meet the requirements of time,object,condition and other levels.At the same time,China adopts a unique sanctions system under the background of dual regulations.If the offender is identified as having minor circumstances and insufficient social harm,it should be regulated by administrative law,while those causing bad consequences should be regulated by criminal law.In judicial practice,the distinction between this crime and other crimes should be based on the treatment rules of imaginary co-crime.As for the joint crime of assaulting police,the principle of "full responsibility for the minority" should be applied.