| The new criminal law of 1997 provides for the crime of provocation,which is a decomposition of the crime of hooliganism stipulated in the old Criminal Code.Due to certain deficiencies in the legislative provisions and the erroneous use of judicial practice personnel,the scope of this crime,known as "pocket crime," has been continuously expanded.By using methods such as empirical analysis,induction,and value analysis,a large number of cases of provocation and trouble making crimes were studied and analyzed,and it was found that there are phenomena in judicial practice such as criminalization of non criminal behavior,abusc of supplementary status of this crime,and different judgments for the same case.The reason for this is not only due to legislative mistakes,but also due to judicial errors.There are two main legislative reasons for the pocketization of the crime of provocation and trouble.Firstly,Article 293 of the Criminal Law uses vague legal terms such as "arbitrary","arbitrary","serious circumstances",and "public places";Secondly,the description of the crime is not accurate,the legal interest protected by this crime is more abstract,the subjective motive is not clear,and the objective mode of conduct is not clearly demarcated from other crimes.The determination of these unclear contents in specific cases relies on the value judgment of judges,leading to the occurrence of different judgments in the same case.The reasons at the judicial level are more important,Firstly,the vagueness of the legal terminology has led to the difference in understanding of judicial personnel and the arbitrary judicial operation,which has led to the abuse of this crime.Second,a series of judicial interpretations issued by the Supreme People’s Court and the Supreme People’s Procuratorate in 2013,which improperly expanded the crime and strengthened the degree of"pocketing" of the crime.On the premise that it is clear that this crime cannot be easily abolished from the legislative perspective,a legislative restriction path has been proposed for this crime,which includes clarifying the meaning of legal terms,clearly describing the charges of this crime,and adding clauses that "if there are other provisions in this law,they shall be followed".However,due to the difficulty in achieving the expected goals through legislative means in the short term,adopting restrictive measures at the judicial level is the effective solution to correctly address the "pocket" of the crime of provocation and trouble making:first,the judicial organ should interpret the law in accordance with the specific requirements of the literal interpretation and the logical interpretation method,and avoid making improper judicial interpretation;Second,in the judicial trial should strictly grasp the criteria of incrimination and criminalization,specifically from the motive and circumstances of the crime and other elements,the judgment of incrimination as a necessary procedure to evaluate the crime as well as to exclude the influence of factors unrelated to the facts of the case itself on the conviction and sentence;Finally,guidance cases should be added as a reference for the judgment of this crime.In order to solve the theoretical controversy and practical problems,improve judicial efficiency and reduce the occurrence of wrongful cases,we propose legislative modifications and a path to limit judicial practice,in order to solve theoretical disputes and practical difficulties,improve judicial efficiency,and reduce the occurrence of wrongful cases. |
