The Cognizance Of The Objective Elements Of The Crime Of Assaulting Police

Amendment(11)to the Criminal Law of the People’s Republic of China changes the provision of the fifth paragraph of the crime of obstructing public service to the crime of assaulting police,not only conforms to the needs of national management,also responded to the society has been called for.As a new charge,the establishment of the crime of assaulting police has indeed become an important means to combat assaulting police behavior and protect the personal safety of the people’s police.However,there are still many disputes to the understanding and identification of the crime of assaulting police in theory and practice,especially in the identification of the objective elements of the crime of assaulting police.Therefore,the objective elements of the crime of assaulting police reasonably identified to help solve the dispute of judicial application of the crime.Based on the empirical investigation of 417 sample cases,it is found that the judicial determination of the objective elements of the crime of assaulting police mainly focuses on the following issues: First,ignoring the particularity of violent assaulting police,according to the elements of the crime of obstructing public service to explain the "violent attack" in the crime of assaulting police,the indirect violence is evaluated as "violent attack".Secondly,there is no uniform standard for the definition of the scope of the people’s police.Some cases judge the violent attack on the auxiliary police personnel as the crime of assaulting the police,but some judgments do not judge it so,resulting in the phenomenon of different judgments in the same case.Thirdly,the crime of assaulting a police officer is defined as the act of violently attacking an illegal post or the act of violently attacking a police officer after the completion of the execution of the post.The trend of expanding the criminal circle is obvious.The causes of crime objective important document assaulting a police officer identified problems lies in: First of all,the concept of "violent attack" in the understanding of theory and practice there are many views on the "violent attack" on the upper and lower limits of the dispute.Secondly,whether the object of "violent attack" on the people’s police can include police auxiliary personnel or include the situation that the violence against police equipment indirectly affects the police’s body.Finally,there is an unreasonable judgment on the violent attack "performing duties according to law".Whether the violent attack on the police who does not obstruct the performance of duties or the violent attack on the people’s police in the face of defective performance of duties can also be regarded as the crime of assaulting the police.These unreasonable judgments will also lead to judicial personnel ignore the pre-role of administrative law,will be a lower degree of illegal acts mistakenly promoted to criminal offences.The cognizance of the objective elements of the crime of assaulting police should return to the analysis of the provisions of the criminal law itself.Since the fifth paragraph of article277 of the Criminal Code is a special provision of the first paragraph,its application should be based on the premise that the act conforms to the provisions of the first paragraph.Therefore,as one of the constituent elements of the crime of assaulting police,the illegal degree of obstructing the police duty being executed should be heavier than the crime of obstructing public service,that is to say,the "violent attack" in the crime of assaulting police is limited to the narrow sense of violence,and the violent act hinders the people’s police from performing their duties according to law,excluding non-sudden violence and pure passive resistance.In order to perfect the connection of execution,we should make clear the inherent value tendency of different department laws,grasp the degree of "violent attack",take the protection legal interest of the crime of assaulting police as the basis,apply the administrative regulations to the acts that do not meet the standard of assaulting police crime but do not hinder the police law enforcement,so as to maintain the unity of legal order.On the basis of detailed interpretation of the legal provisions,this thesis analyzes and summarizes the application of the crime of assaulting the police in the sample cases,so as to determine the scope of the people’s police.The police auxiliary personnel who assist the people’s police to perform their duties according to law can be conditionally interpreted as "people’s police".Although the "violent attack" of the crime of assaulting police can indirectly infringe upon police equipment,the ultimate object of its infringement must be personal rights,that is to say,the subjective aspect of the crime of assaulting police must regard the people’s police as the object of attack,and achieve the purpose of resisting law enforcement by attacking the people’s police.At the same time,we should reasonably determine the legality and timeliness of the execution of duty corresponding to the violent attack,and analyze the time condition of the execution of duty from the perspective of the legality of the police action,also can reduce the practical operation difficulty.