Research On Some Problems In Judicial Identification Of Assault On Police

On December 26,2020,the 11 th Amendment to the Criminal Law of the People’s Republic of China(hereinafter referred to as the 11 th Amendment to the Criminal Law)was deliberated and adopted at the 24 th session of the Standing Committee of the 13 th National People’s Congress of the People’s Republic of China,which amended the fifth paragraph of Article 277 of the Criminal Law.Separate assault on police from the heavy clause of the crime of obstructing public service constitutes a separate crime of assault on police.In the understanding and application of the crime of assault on police,it should be noted that the legal interests protected by this crime are compound legal interests,including both legitimate official activities and personal security legal interests of the people’s police,in which official activities are the main legal interests and personal security is the secondary legal interests.The act of "violent attack" of this crime should be identified from the form and degree.In the form of violence,it belongs to the narrow sense of violence,that is,it is limited to the imposition of physical force on the people’s police,and violence to objects and indirect violence are not within the scope of violence of this crime.At the same time,the violence of this crime must also have the characteristics of suddenness,instantaneity,accident and initiative.The degree of violence should be to the extent of substantial infringement of legal interests,which can be divided into three situations: first,causing minor personal injury or more to the people’s police and effectively obstructing the execution of official duties;Second,it causes more than minor injury to the people’s police and causes specific danger enough to interfere with the performance of official duties;Third,there is a specific danger that is sufficient to cause more than minor injury to the people’s police and effectively impede the execution of official duties.The restrictive condition of this crime,"He is performing his duties according to law",should be interpreted moderately,and the overall investigation of "he is" should be carried out,including the integrated and inseparable behavior state closely related to the performance of duties,including the standby state during the performance of duties.The legitimacy of "according to law" should adopt the compromise theory,that is,both form and essence should be taken into account.The judgment subject adopts objective theory,that is,a fair and independent court to adjudicate.The time of judgment is determined by the standard of behavior,that is,the specific conditions existing at the time of behavior are judged by the standard.The object of the act of this crime shall include auxiliary police;Subjectively,this crime belongs to the double intention of "knowing",that is,knowing that the people’s police are performing their duties according to law and knowing that it will cause or may cause harm to the performance of official duties;This crime exists indirect intent,but only for official activities,for personal injury can only be direct intent.