Research On The Attribute Of "Elastic Pocket Crime" Of The Crime Of Picking Quarrels And Provoking Trouble

In a sense,the crime of picking quarrels and provoking troubles inherits the "pocket crime attribute" of hooliganism in the Criminal Law of 1979.The distinctions between crime and noncrime,and crime of picking quarrels and provoking troubles and other related crimes are not clear,which easily leads to the arbitrary expansion of judicial discretion and is criticized as contrary to the principles of legal punishment..A further study on the "attribute of pocket crime" of this crime is an important link to promote the construction of socialist criminal rule of law,In this paper theoretical analysis and empirical analysis methods are combined to analyze the reasons and judicial performance of the crime with "pocket crime attribute",and solutions are put forward.The full text is divided into three parts:The first part analyzes the reason why the crime of picking quarrels and provoking troubles has the attribute of "pocket crime" in criminal policy legislation and judicial practice.In the aspect of criminal policy,the crime of picking quarrels and provoking trouble is embodied both in "strike hard policy and the" order-based criminal law concept".In terms of legislation,it is mainly attributed to the vagueness of the wording of the offence.In the judicial aspect,it is mainly due to the fuzzy criterion of the identification of criminal motive,the fuzzy standard of filing and prosecution,and the vacancy of guiding cases.The second part is the judicial empirical analysis of the crime of picking quarrels and provoking trouble with the attribute of "pocket crime".Based on the time axis,this paper has selected the relevant cases in the resource databases such as Poly Law Case and Peking University Magic Weapon for empirical analysis.After comparing the case occurrence rate of this crime and other crimes in general,the paper has classified statistics according to the four behavior types stipulated by this crime,and proved the judicial status of its "pocket crime attribute" from multiple perspectives.The third part suggests the ways to eliminate the "pocket crime" attribute of this crime.Mainly in legislative efforts,it suggests that the crime of picking quarrels and provoking troubles should be abolished,and its current provisions of the content of the act should be defined as a separate crime or combined with other existing charges.Specifically,it includes: adding the crime of violence,adding the crime of coercion,modifying the crime of forcible seizure and intentional destruction of property,and modifying the crime of gathering a crowd to disturb social order to the crime of disturbing social order.At the same time,there is still room for sound judicial interpretation,including limiting the motive of crime to " making trouble out of nothing" reducing the application of vague provisions in the standards of case filing and prosecution,and strengthening the guidance of guiding cases.