On Difficult Issues In Judicial Determination Of The Crime Of Assaulting Police Officers

The crime of assault on police refers to the act of violent attacks on the police who are performing their duties legally.The Criminal Law Amendment(XI)defines violent attacks on the police as an independent crime.Since then,there have been many cases of applying the crime of assault on police to evaluate violent assault on police in criminal trials.However,some cases show that there are disputes over the boundary between crime and non-crime and crime in the regulation of violent assault on police in judicial practice.Behind these practical disputes are the differences in understanding of the various components of the crime of assault on police.Defining the constituent elements of a crime is the premise of conviction and the basis of distinguishing the boundary between crimes.Therefore,in order to solve a certain kind of practical disputes about the crime of assault on police,we must clearly identify the corresponding constitutive elements.Based on the four aspects of the objective behavior mode,precondition and object of behavior of the crime of assault on police,as well as the subjective intent of the crime,this paper summarizes the practical disputes in the conviction of the crime of assault on police,analyzes the identification of the corresponding constituent elements,and tries to solve the practical disputes.Specifically,firstly,the empirical research method is used to summarize the unresolved practical disputes in the judicial identification of the crime of assault on police and the corresponding differences in the application of the constituent elements,such as the type and degree of "violence" in the crime of assault on police,the time limit and legal conditions of the execution of duties,whether the auxiliary police belong to the people’s police in the crime and whether the crime of assault on police can be established indirectly and intentionally.Secondly,through the literature research method,combined with the analysis of the existing theories,the opinion suitable for the judicial application of the crime of assault on the police,in order to solve the corresponding practical disputes: first,the "violence" of the crime of assault on the police can be divided into the type of violence directly or indirectly acting on the police;In the boundary of crime,"violence" should be enough to hinder the execution of duties.Second,the definition of the time limit of the performance of the job should be taken close association theory,rather than strict theory,expansion theory or association theory,in the judgment of the case should be based on the standard of the job as the main supplement to the standard of working time;The legal conditions of the execution of the duties are divided into two conditions: entity legal and form legal,should adopt both theory to deal with the "defective law enforcement" legal judgment disputes caused by different emphasis on the two,in the case of judgment should pay attention to the people’s court as the judgment subject and take the standard of behavior as the judgment time point.Thirdly,the term "people’s police" should be interpreted appropriately in the application of the crime of assault on police.When defining the crime of assault on police as the object,the duty theory should be adopted,rather than the identity theory.When meeting certain restrictive conditions,auxiliary police can become the object of the crime of assault on police.Fourthly,the criminal intention of the crime of assaulting police is not limited to direct intention,but also constitutes the crime of assaulting police based on indirect intention.The indirect intention of the crime of assaulting police is embodied in the laissez-faire of obstructing the enforcement of police or laissez-faire of endangering the personal safety of police.