(a) the current situation of regulation of competitive sports violence

In recent years, the sports arena violence of It is often seen. and have become increasingly fierce, can only be prosecuted under criminal criminal liability caused by athletes to prevent such incidents from happening again. However, so far we have not seen any athlete be convicted or punished. Investigate its reason, is a sports field emphasize profession autonomy ", the principle of exhaustion of Internal Remedies" as the only way to resolve internal disputes, administrative punishment instead of punishment, rejection of criminal law. For example, China Football Association charter fifty-seventh stipulates: "Chinese Football Association Standing Committee has the highest jurisdiction, shall be submitted to the people's court dispute." For the implementation of physical violence athletes, the football association to give punishment is fine, stop the game, the most serious is banned for life. Other sports association also established similar articles of association. In 1995 China promulgated and implemented the "sports law" does not apply to physical violence should be how to punish. The article 234Th of the criminal law has stipulated the crime of intentional injury, but the theory about violence in sport and the proper business behavior between the two boundaries are controversial, nature of behavior caused the other casualties to the athletes in the judicial practice it is difficult to judge, coupled with the implementation of physical violence are invisible, forensic, identification of the work the difficulty is very big, "which makes the sword of the criminal law becomes blunt not blunt, people to punish evil, maintaining the order of weapons -- criminal law, have strange lost its proper role, prosecution does not seem to value, the jury did not seem to have make a decision, decision seems to exist. This leads to the fact, in most instances, punish the behavior of responsibility does not in the criminal law, but in control dominate the referees and be trained with regularity of athletes in the game."[1]Visible, sports legislation and criminal judicial negative make sports rules became the umbrella of athletes, illegal income is greater than the illegal cost, resulting in some athletes reckless, frequency "black", "black feet", the so-called "foul" lost legal bottom line finally, sports arena violence rampant.

(two) the criminal law should be competitive sports violence behavior regulation

1, physical violence with serious social harm, should be regulated by the criminal law

Physical violence is not only a violation of athlete's right to health and life, resulting in physical and mental suffering to the athletes, but also a serious violation of the principle of fair competition, hinder, restricted the healthy development of competitive sports, national relevant project athletics level enhancement, adversely affect the country's international reputation, image. Physical violence with serious social harm, to use legal means to punish. Some scholars pointed out: "if you don't make the similar in the athletic contest the intentional or negligent injury of its legal liability, is not conducive to the healthy and smooth development of sports competition, it will only encourage competition rude action flooding, sportsmanship is not correct, even under the black hand, without the occurrence of any liability phenomenon...... That will be a disaster for the sports competition."[2]Sports Association is the administrative agencies of the state sports industry, the industry rules only has the role of norms and constraints, not force, absolute, can only deal with some general foul. Physical violence beyond industry autonomy authority control rules, regulation of such behavior can not only physical violence, criminal involvement can frequently appear on court to punish. "Should be recognized, all social sectors including sport, if too much emphasis on the self regulating system to the exclusion of legal control, the end can only be persistent until collapse; if only the law, especially criminal law, as the color film to fill their own glorious words, the final feedback in the law will also be ruthlessly exposed and thorough negation."[3]

2, the field of sports industry autonomy cannot be ruled out criminal jurisdiction

"The law can not be contrary to law" is China's "legislative law" in order to maintain the legal system in the logical consistency has established a basic principle. This principle means that, the law must follow the spirit of law, and does not violate the law of legal principle or specific provisions formulated in. The provisions of the rules and regulations of the sports industry must follow the law, once the confrontation that violate the rules and regulations of sports industry and the confrontation clause is invalid. China's criminal law provisions of article thirteenth of the infringement of citizens' rights of the person's behavior should be punished in accordance with the law, is a crime. The provisions of article 234Th of the crime of intentional injury. The violence in competitive sports should be in accordance with the criminal law to the crime, the sports industry regulations in the exclusion of criminal jurisdiction clause is invalid.

(three) the criminal law to regulate the violence in competitive sports

Using the criminal law to regulate the competitive sports violence, a pressing matter of the moment is to smooth the channel of criminal law. Changes in the criminal judicial attitude, emphasizing the criminal compulsory intervention at the same time, we should also realize that, regulate and punish the competitive sports violence only by criminal law itself is not enough, also need to complete the relevant laws and regulations and the.

1, modify the sports industry regulations, make clear the scope of industry self-regulation, to lay the foundation of criminal law

Foundation

We need to change the field of athletic sports will be "the principle of exhaustion of Internal Remedies" as the only way to resolve internal disputes, exclusive jurisdiction practices, such as China Football Association charter fifty-seventh of these Provisions shall be abolished. At the same time should be made clear in the sports industry regulations: profession autonomy is limited to sports dispute, sports crime should be transferred to the judicial department.

2, perfect sports law, provisions of legal liability of sports illegal harm behavior, provides for criminal law

Basis

Need to pay attention to is, we are using "sports illegal harm behavior", which is based on two points: one is the concept of violence we speak of competitive sports is defined from the angle of the criminal law, the understanding of different concepts and Sport scholars, in order to avoid the concept. Chaos, are considering how to improve the sports law should not be used when the "violence" competitive sports ". The two is the connotation of sports illegal harm behavior more than violence we defined competitive sports, including the illegal and criminal behavior, criminal behavior is undoubtedly should bear criminal responsibility, criminal acts and violations should bear civil liability. In order to thoroughly punish the behavior person, two kinds of legal liability should be stipulated in "sports law". Therefore, we should increase the provisions in the "sports law" fifty-first article: "in competitive sports athletes, one party breach of competition rules, intentionally or negligently causing the other player injuries or death, shall bear civil liability according to law; constitute a crime, shall be investigated for criminal responsibility according to law."

3, strengthen the judicial interpretation of criminal law and criminal law legislative work, to clear away the obstacles

In the framework of the current criminal law, the violence in competitive sports shall be punished according to the crime of intentional injury. In the use of punishment for such crime, need to solve two problems: one is the boundary with the proper business behavior of competitive sports violence both what is; two is the competitive sports violence occurred in the sports body collision unavoidable confrontation and behavior to match for the purpose, compared with intentional injury in general, not only social harmfulness is relatively small and has particularity, should apply special rules and consider the lenient punishment. These two issues need to be explicitly by the judicial interpretation. Only in this way, we can eliminate the negative practice of criminal justice in the face of such crimes, accurate and appropriate punishment for physical violence crime. However, the existing provisions in the criminal law judicial interpretation on individual practice is just a matter of expediency, is only a partial solution, thorough solution is to establish sports crime in legislation, the physical violence, match-fixing, black whistle, the use of "doping" behavior be regulation. (published with Wu Yuping in 2010 third,)