DOC

Penal Code Article 20, paragraph 3, ;the attack; in the theoretical study_6073

By Kenneth Gonzales,2014-10-31 17:24
7 views 0
Penal Code Article 20, paragraph 3, ;the attack; in the theoretical study_6073

    Penal Code Article 20, paragraph 3, "the attack" in the theoretical study

     Summary how to understand the Penal Code article 20, paragraph 3, the "perpetrators", criminal law theory and judicial practice, both in highly controversial. This should be a discussion on this issue, saying that "the attack" refers to the concrete can not be judged as a serious violation of civil rights crimes of violence against acts of serious violence, it has a violent, means limited to qualitative level of serious , as well as the

    specific charges, etc. can not be scheduled for several characteristics. The article points out, such an interpretation, "the assailant" has a logical and reasonable and practical rationality, and in line with legislative intent.

     Penal Code Article 20, paragraph 3, stipulates that "the ongoing assailant, murder, robbery, rape, kidnapping and other serious threat to the safety of violent crime, to take defensive actions, resulting in illegal infringement of casualties, and not over-defense, be held

    criminally responsible. "How to understand the terms of the" assailants ", criminal law theory and judicial practice, both in a great controversy, and on the" assailant "and an accurate understanding of defensive behavior is directly related to the characterization of the problem. Therefore, in order to promote criminal law theory to further explore the issue, thus an accurate application of criminal law in judicial practice of article 20, paragraph 3, to provide a meaningful theoretical guidance, the author

    proposed for the meaning of "acts" to make some superficial view.

     1, the "perpetrators" Analysis of the existing interpretation of

     "Assailant" is a daily mass language rather than legal language, wishing to accurately explain it clearly there is considerable difficulty. However, the application of this provision also requested to be as accurate as possible to understand "the attack." Therefore, since the new Criminal Code after the promulgation of

    刑法理论界the "perpetrators" of the word are not being stopped. Taken

    together the following main point:

     The first death in that. This view is up from the consequences of the definition of the attack, saying that "the perpetrators of the attack is severe, that may cause serious injury, death of the assailant." (Note:

    Gao, Ke-Chang Ma editor: "Criminal Law" (the series), China Legal Publishing Society in 1999 edition, p. 242.)

     Second, intentional injury, said. That "murderers" should specifically refer to intentional harm, intentionally causing bodily harm,

    may result in serious injury or even death to others the serious consequences of crime. The general law of assault is not included. (Note: See Du Baoqing: "No excessive application of the law defense," containing "China Journal of Criminal Law" in 1999 3; Zhen-Feng: "On several issues

    of self-defense", in LIU Shou-fen, Huang Ding-quan editor: "Criminal Legal

    research on thematic issues, "the masses Press, 1998, p. 253; Wang pre-

    existence, Zhen-Hua Xu:" Criminal Law in the citizen's right to due

    process ", in Ding Mu Ying, Li Chun, Hu Yunteng editor:" Criminal Law of the key and difficult problems in the implementation of research " , Law Press, 1998, p. 437; Lu Zhong-jun: "theory" does not belong to over-

    defense "of the special provisions," contained YANG Dun first, Su Yue, LIU Sheng-Rong Hu Yunteng editor: "The new criminal laws and research and apply to difficult problems "China Procuratorate Press 1999 edition, p. 244; Gao Hongbin:" On an infinite right to due process ", in" Politics and

    the law "in 1998 4.) the kinds of ideas for most scholars have long advocated, and therefore also on" the assailant, "the most representative view.

     Third, the anti-wrote. That "the meaning of the Penal Code

    'perpetrators', is to impose lethal violence to others, a serious threat to a person's life, health, rights and interests of behavior" that is "anti-other people's behavior", but this destruction was not a clear nor does it have to determine mens rea, in other words, is a "kill or fatal

    injury to another person with the uncertainty mens rea" behavior. The commentators further noted that if the defense were using lethal violence but not a threat to other people's lives, health, rights and interests, not the assailant; If you are using a non-lethal violence, it is generally

    impossible to endanger the lives of others, health benefits, and thus is not the assailant. (Note: see Qu Xue-Wu: "being the assailant and the non-

    excessive defense right," Criminal Law in 1999 academic year, paper, 3-4

    pages.)

     Fourth, the violence, said. To say there are two different views. First, violent crime, said. That the assailant with the Penal Code article 20, paragraph 3, listed in murder, rape, robbery, kidnapping of the same nature of serious violent crimes. (Note: see Marden China, Wang Editor: "The new solution and application of penal fine", Nankai University Press, 1997, p. 32.) 2 is to use the weapon of violence, said. View of what constitutes excessive non-defense assailants, only the "perpetrators of

    violence limited to the use of weapon," specifically "refers to the use of weapon, for the victims of violent attacks, seriously endangering the

safety of the victim" behavior. (Note: See Chen Xingliang: "On the non-off

    when the defense", in "Law" in 1998 No. 6.)

     So, how to look at the above four kinds of view? In my opinion, the above-mentioned the "murderers" in a variety of understanding are questionable. Here I analyze them one by one.

     On the first view. The kinds of views that "the perpetrators of the

    attack is severe, that may cause serious injury, death of the assailant." Clearly, this type of view is a kind of circular explanation, it is actually the structure of such a logic, that "the attack is ... ... assailant, "" assailant ... ... that ... ... the attack. " Although in the "perpetrators" before using some phrase such as "serious", "may result in serious injury and death," and these attributive also have a certain rationality, but these attributive only on the "perpetrators" limited

    quantity, rather than the "assailant" nature of the definition of what is "the attack" is still unclear.

     That "the attack" refers specifically to the crime of intentional injury to the second point of view there are two problems, first, if the

    "perpetrator" is a deliberate assault, legislators will be directly provided in the provisions. Because, in the article, the legislature has clearly provided for murder, robbery, rape, kidnapping and other specific types of crime, the crime of intentional injury as the Criminal Law is

    expressly provided for a serious violation of civil rights crimes, if you need a clear provisions are directly provided in the provision, so that they both clear and simple, but there is no need to introduce a criminal

    law norms great pains never used the words - "murderers" instead of, this

    simple homes on the legislative Fan way in any case is to explain not make sense. Second, if the "perpetrator" is the intentional injuries, you can not explain the "perpetrators" and a provision for a "serious threat to

    the safety of other crimes of violence" (To read a concise, hereinafter referred to as "other") relationship. The use of criminal law provisions from the "other" such wording is intended to look at, and both are due to

    legislation in order to prevent the failure of 11 of the conditions listed for France, while the unmodified law happens Shiyou the embarrassment of widely adopted take advantage of a legislative solution. In Article 20, paragraph 3, the same is true of crime can apply it in self-defense is

    certainly not just by the provision of out of the four counts listed in the Penal Code, there are still a number of violent crime or the criminal use of violent means would be a serious threat to citizens personal safety, in order to prevent omissions, so using the "other" to this general provision. According to here, "other" provisions of intentional assault course also included the. If it is considered "murderers" is also intentional injuries, then would not such an outcome, that "the attack" is

    the intentional injuries, "other" crimes of violence also includes intentional injuries. As a result, one and the same article twice before and after the emergence of the provisions of the crime of intentional injury. Such a low level, meaningless repetition of the possibility of legislation is almost zero. Because the average person need not repeat the

    same thing Shangju know to provide for one articles, let alone have a basic professional knowledge and long experience in legislative practice

    of legislators. Moreover, the crime of intentional injury caused great harm to the big men, but nor should it be bigger than intentional homicide, and even intentional homicide in the provision expressly provided only once, what is the reason for the crime of intentional injury

    before and after the 2 sub-regulations? So, I think, the second view is

    unreasonable. This type of view is too intuitive understanding of the question of whether legislators underestimated the intelligence level?

     With regard to the third point of view. The commentators suggested that "the attack" the (anti-) behavior objectively, "not obvious" in the

    subjective is a kind of "uncertainty mens rea," the proposition that should be said is quite new. However, the theory does not hold down the

    value proposition in depth, but also against the second point of view to follow the second view of the ideas are still trying to "perpetrators" concrete into a specific crime. Because Lunzhe Suo said "uncertainty mens rea" in the content actually is some "OK", that is "kill or fatal injuries to others," corresponding, "the attack" behavior that is "anti - the

    actions of others. " Since the killing or fatal injury to others, criminal intent, is a threat to other people's lives, health, anti-rights acts of

    lethal violence, then the Lun Zhesuo that the "attackers" actually is the intentional killing or intentional harm. The only difference is that acts of killing or injury of "mens rea is OK." (Note: see Qu Xue-Wu: "being the

    assailant and the non-excessive defense right," Criminal Law in 1999

    academic year, papers, 3-4 pages.) In other words, is a mens rea vague

    acts of killing or injury. The problem is, no matter how mens rea uncertain behavior of the final properties are still only two, namely,

    homicide and injuries. Such a view does not escape the "assailant" concrete ideas. As the provisions have been clearly enumerated intentional homicide, but also due to be interpreted as the crime of intentional injury to unreasonable foregoing discussion. Therefore, the third point of

    view also debatable.

     As regards the fourth point of view, whether it is violent crime that is still using the weapon of violence that have a common advantage that they broke through the second and third views were not always consciously

    or unconsciously, the "perpetrators" be interpreted as a the idea of the specific charges and therefore have a relatively more reasonable. However, these two viewpoints have a common flaw, that is, they did not as "murderers" violence to be a more detailed description and analysis of the kinds of ideas involved in the problem, such as how to explain it with "other" provisions of The relationship between violence and violent crime, and so elaborate. And thus lost the simple, easy to understand and

    operate. In addition, these two views of their problems that still exist. First look at violent crime, said. The kinds of view, the attack is a kind of article 20 of Criminal Law listed in paragraph 3, kill, rape, robbery, kidnapping of the same nature of serious violent crimes. Since it is with murder, rape, robbery, kidnapping, serious violent crimes of the same nature, then, that is, "murderers" as if "other" requirements, there is an