Comment: Mo Rings provocation has become a ＂crime of pocket＂ for petitioning

Source: Beijing News

Author: Wang Gu Zuo Zuo (Legal Scholar)

The crime of provoking nourishment has a tendency to be generalized in China in recent years.

According to the Southern Metropolis Daily, a latest survey report from the Fourth Division of the Criminal Trial of the Supreme People's Court states that the sinfulness of provoking trouble is obvious that the border is unclear, which leads to an generalization of generalization.The report announced on August 16th should increase the trial guidance of the criminal case of provocative trouble, and guide the local courts to accurately apply laws in the form of judicial documents or typical cases.Among them, "the case of provocation caused by petitions and petitions is particularly emphasized.

The crime of provoking trouble is "reborn" for controversial rogue crimes.The expression is blurred, covered with broad, crime thresholds are randomly, and it is difficult to cause sentencing.

Although the crime of hooligan was abolished in 1997, it was only the crime of "gangsters", and its content was forced to obtain obscenity, the crime of obscenity, the crime of gathered prostitution, the crime of gathering, and the crime of provoking trouble.Carry out.Relative to the first four crimes, the provocative trouble has inherited the characteristics of vague gangsters, widely covered, and free of freedom of crimes. In judicial practice, it has developed into a new "pocket crime".

Different from the discussion in the past, the survey report released by the Supreme Court has given more informative data.According to the report, in the past 10 years, the number of rural provocation cases in Zhejiang, Fujian has ranked at the forefront of various crimes.Most of the defendants are young people, and most of them are migrant workers or no legitimate professional.Cases of criminal liability for being charged for illegal petitions also occur from time to time.

The crime of provoking trouble is not from the beginning of its birth, it has become a "legal weapon" for some places to respond to letters, petitions, and visits.In 2011, there were only 892 cases of provocative nourishment in the national first -instance procedures released by the China Morning Document Network, and by 2019, it climbed to 4,3776.As a result, many people in the industry believe that the generalization of provocation is not due to legislation, but more law enforcement and judicial factors.

A noteworthy time point is that on December 28, 2013, the Standing Committee of the National People's Congress passed the decision to abolish the regulations on labor education, and officially abolished the labor education system that has been implemented for nearly 60 years.This is generally considered to be an important milestone in the progress of China's rule of law.

However, after the labor camp system was abolished, some local leaders felt that there were fewer "legal tools" and "policy tools" in response to petitions, petitioners, and visits.It is also since then that the number of cases of provocative nourishment has shown an increasing trend, and has rapidly developed from a "niche crime" to "common multiple cases."Data show that the proportion of provocation crimes in all criminal cases has exceeded 5%in 2019 and entered the top ten of the crime rate.

A basic fact is that the criminal law has provoked the crime of provocation, and the labor camp system is abolished behind, and the time is far apart.The crime of provoking trouble is not set up to fill the gaps left after the labor camp is abolished, let alone the "legal weapon" used to deal with petitions, petitions, and visits.If you are guilty of provoking trouble to "deal with" petitions, petitioners, and visits, it is obviously the interpretation of the original meaning of the legislative legislation of criminal law, and it is also suspected of "provoking" the petition system.

The survey report released by the Supreme Court pointed out that there are the following problems in the identification of the provocation: first, the subjective motivation of the defendant is difficult to grasp and it is easy to fall into objective attribution;Third, the tendency to be easily applied due to the unclear boundary is obvious; the fourth is that it is difficult to distinguish between other related crimes; the fifth is that the junction is not smooth, which can easily lead to the increase in administrative violations as criminal criminal treatment.

It is clear that even if there are many problems in the identification of provocations, letters and visits do not cannot constitute a crime of provocative trouble, but first of all, we must admit that letters and visits are the rights of citizens to protect their legitimate rights and interests.And the exercise of any rights must be legal, including the way of exercise of rights, and not violate the law.

A typical case announced by the Supreme Court in 2021 explains this reason well.

A certain location discussed with others. In order to put pressure on the local government to solve the problem of operating rights after the outcome of their passenger vans, more than 50 van drivers will park the car at a passenger station to put the passenger.Standing order is seriously chaotic, and a large number of passengers stay.The court sentenced Duan to 10 months in prison for gathered public places and traffic order.

In the above cases, the petitioners are not convicted because of the legitimate exercise of letters and visits, but because they have been convicted of public places and traffic order.Although there is a reason for the petitioners and the specific content of letters and visits, the form and means of rights protection have violated related sins.This has nothing to do with the provocation of "nothing wrong" or "borrowing wrong".

From the perspective of judicial practice, the Supreme Court and the Supreme Procuratorate jointly released in 2013 on the explanation of several legal issues in the application of criminal cases of provoking trouble.There are many.

To solve the problem of generalization of provocative nourishment and become a "pocket crime" problem, on the one hand, judicial interpretation needs to be respected by law enforcementers and judiciary, and strengthen the uniform application in the case; on the other hand, it is necessary to review it.There are still vague parts in the judicial interpretation to further modify and improve.

The survey report released by the Supreme Court stated that "the case of provocative trouble caused by petitions and petitions should be" cautious. "Before the criminal law was revised, the Supreme Court enhanced the judicial interpretation by publishing typical cases and other methods, and guided the local courts to accurately apply laws.