Abstract: "violent" itself is not a special legal term, refers to the all violent attacks on police behaviour. In recent years, "violent" the increasing number of incidents. There are a number of experts and scholars proposed the creation of "attacking police crime in the criminal law". We intend to interpretation of the criminal law to violent behavior, in order to and understanding of violence assaulting benefit.

Key word: violent criminal law interpretation

A, problem

In recent years, violent problems become a hot topic. According to the latest statistics, the Ministry of public security in 2001, caused the police hurt 3510 people, 68 people died by violence; in 2002, hurt 3663 people, the death of 75 people; in 2003, hurt 4000 people, the death of 84 people; in 2004, 3786 people died, 48 people injured; the first half of 2005, injuring 1803 people, the death of 23 people; according to incomplete statistics, only in 2006 1 to May, the national total impede law enforcement, violence assaulting case (thing) 1545, monthly average of more than 300, killing 11 policemen sacrificed, 164 policemen were wounded or injured by, 1733 policemen were causing slight injury[1]. In recent years, frequent violent incident, many experts and scholars have suggested, "added the crime of assaulting a police officer in Chinese criminal law". Wang Shizhou professor of Peking University law school, have positive attitude to the proposal[2]. In recent years, when the National People's Congress, also have some representative suggested adding this kind of crime.

Think positive point of view, the defects of article 277th of the criminal law on the crime of obstruction of official business protection of violence assaulting. It mainly embodies in: first, the narrow scope of objects of protection. Criminal law requirements in the "duty" is the official time, but "police law" nineteenth stipulates: "the people's police in non working time, in case of emergency within the scope of its responsibilities, when performing their duties." Secondly, behavior not fully regulated. The criminal law in the form of obstructing official business must be based on "violence, threat" method, only in the way of performing a task for state security, not only to the threat of violence method. Therefore, only the means of violence or threat, not enough. Finally, the conviction and sentencing inconsistency. Violent casualties were not specified. Other crimes such as crime of affray causing death, according to the crime of intentional homicide, punish the crime of intentional injury. In addition, the scholars put forward in accordance with the law, police duty use weapons to deter crime damage irresponsible. Though supporters voice constantly, but the opposition and questioned voice is quite prominent.

So, for many controversial violent existence, the author tries to analyze, the violent behavior from the theory of criminal law perspective. Thus for violent conduct theoretical research and judicial cognizance to provide certain reference.

For two, violent criminal

Violent behavior if it constitutes a crime, Is it right? Only in accordance with the provisions of article 277th of the criminal law of the crime of obstruction of official business of conviction and punishment? The crime of obstruction of official business legal punishment up to 3 years in prison, once the serious consequences, such as causing serious injury, death, how to deal with? This was one of the focuses of dispute. The author tries to analyze the following application of the criminal law on the violent, so as to solve violent behaviors exist in the criminal law issues.

(a) for the crime of obstruction of official business

China's criminal law article 277th paragraph first, fourth respectively, the provisions of the two kinds of disturbance in civil cases. One is the method of violence, threat, to hinder the state organs carry out their duties according to law; two, intentionally obstructs a state security organ, the public security organ from carrying out tasks for state security according to law without the use of violence, threats, methods, resulting in serious consequences. That is to say, in the criminal law, methods as long as the behavior of using violence, threats may constitute the crime of obstruction of official business. Then, in the judicial practice, the act of using violence are performing their duties or tasks. Whether or not to cause serious consequences, shall be convicted and punished in article 277th of the criminal law of the crime of obstruction of official business. It is beyond question.

(two) for the crime of intentional injury, intentional homicide

If the acts of violence, resulting in serious consequences of serious injuries or deaths, how should handle? Obviously, the conviction and sentencing is not coordinated to the conviction of obstruction of official crime punishment would clearly lead. Professor Zhang Mingkai think, the crime of obstruction of official business of lighter punishment, that this crime does not include causing serious injury, death[3]. Usually the scholars in the study of violence, only to limit. I also agree with the views of Professor zhang. Think of the violence is in fact the existence of a limit. Violent behavior to a certain degree and has certain consequences, can constitute a crime. If the violence commits the crime, police physical damage caused to more than minor injuries, which caused the serious injury, death, is generally believed that violates the intentional homicide or intentionally damage and other charges, shall be in accordance with the punishment principle of the imaginative joinder of offenses, the heavier one[4]. But also the scholar thinks, should be in accordance with the principle of punishment of implicated offense[5]. The author thinks, the crime of obstruction of official business legal punishment is low, whether it is in accordance with the imaginative joinder of offenses or implicated in accordance with the processing, the final results are the same, that is no longer the obstruction of official crime. Thus the act of using violence police violence not including intentionally causing serious injury, death, violence, and only limited in scope to minor injuries. (Note: at the time, causing minor injuries despite its legal punishment standard and the crime of obstruction of official business the same, but should be convicted as the crime of obstruction of official business punishment, because the charges with warning function, important if the obstruction of official crime, the better to reflect the state maintains the intention of public order). And the Supreme People's court "on the trial of refusing to implement the decision, ruled that several issues concerning the specific application of law cases the interpretation of" the sixth stipulation: violent resistance to the people's court judgment or ruling, killed, wounded personnel, in accordance with the provisions of article 232nd of the criminal law, article 234Th paragraph second of conviction and punishment. Can say, the judicial interpretation is to comply with the penalty model.

(three) in accordance with the cognizance and punishment of implicated offense

In addition to the above we have to constitute the crime of assaulting police. Other violent acts constitute a crime, the author thinks, the general can according to situations that implicated offense. The principle of punishment of implicated offense is "choose a felony criminal law", but otherwise.

1, in accordance with the provisions of criminal law provisions of punishment

(1) production and sales of fake and shoddy goods crime: the Supreme People's court, the Supreme People's Procuratorate "for production, several issues concerning the specific application of laws and the sale of fake and shoddy merchandise criminal case explanation" by April 5, 2001. The judicial interpretation, the provisions of article eleventh: the implementation of article 140th of the criminal law to the provisions of article 148th of the criminal, but also by violence, threats to resist the investigation, constitutes another crime, shall be punished in accordance with the provisions of graft.

(2) the provisions of the second paragraph of article 157th of the criminal law: by violence, threats to resist the anti smuggling, the smuggling and the law 277th stipulation hindered state functionaries from performing their duties according to law shall be punished in accordance with the provisions of the crime, a combined punishment for several crimes. Methods the threat of violence to resists the seizure cases, composed of means behavior and purpose behavior implicated offense, but according to the criminal law, no longer "choose a felony", but the smuggling and obstruction of official crimes.

(3) article 225th of the criminal law on the crime of illegal business operation, the Supreme People's Procuratorate "Several issues about the specific application of law in the handling of criminal cases of illegal salt interpretation"In July 8, 2002 through the. The fifth explanation, by violence, threat of administrative law enforcement personnel to exercise the salt industry management duties according to law, in accordance with the provisions of article 277th of the criminal law on the crime of obstruction of official business, shall be investigated for criminal responsibility; the illegal act constitutes a crime, shall be investigated for criminal responsibility in accordance with the provisions of graft.

(4) the provisions of the second paragraph of article 318th of the criminal law: the crime mentioned in the preceding paragraph, killing, rape, trafficking and other damage, criminal acts to the organization, or has committed the crime of killing, injuring the inspectors shall be punished in accordance with the provisions, the combined punishment for several crimes.

(5) the provisions of the third paragraph of article 321st of the criminal law: two paragraphs are committed, the persons being transported, injury, rape, murder and other crimes, or has committed the crime of killing, injuring the inspectors shall be punished in accordance with the provisions, the combined punishment for several crimes.

2, in accordance with the charges in specific provisions of criminal law

(1) the provisions of the second paragraph of article 242nd of the criminal law: to prevent functionaries of a state organ save the ringleaders bought women, children, is less than five years imprisonment or criminal detention, the crowd to obstruct rescue was bought as women, children of sin; other participants in the use of violence, threat, shall be punished in accordance with the provisions of the crime of obstruction of official business.

(2) the provisions of Article 313 of criminal law: refusing to implement the decision, ruled that the crime. If the behavior of the attack is a people's Court judicial police, constitute a crime, by refusing to implement the judgment be convicted and punished. Although, the penalty and the crime of obstruction of official business legal punishment, but because the object infringed is the obstruction of justice order. So according to article 313rd of the criminal law shall be convicted and punished, and no longer to obstruction of official crime. This form of overlap of articles of law, in accordance with the "principle of special law is superior to general law".

(3) the provisions of the first paragraph fifth criminal law 318th: organize people to secretly cross the national boundary (border) environment, by violence, threats to resist inspection, department for more than seven years of fixed-term imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property.
   (4) the provisions of the second paragraph of article 321st of the criminal law: transported people seriously injured, the death caused by transporting other persons in the border, or by means of violence or threat, resist inspection, office for more than seven years in prison, fined.
  (5) article 347th of the criminal law second section provision: armed smuggling, trafficking, transporting, manufacturing drugs, was sentenced to life imprisonment or the death penalty, fifteen years, confiscation of property, namely to smuggling, trafficking, transporting, the crime of manufacturing drugs.

3, in accordance with the principle of punishment of implicated offense punishment

Outside the specified above two kinds of criminal law, other violent behavior can be convicted and punished in accordance with the implicated offense, will be "choose the heavier one". Because the perpetrators have two independent criminal behavior, violates different charges, between cause and effect, the existence and behavior between means and purposes, this accords with the characteristics of implicated offense, but not with the characteristics of the imaginative joinder of offenses.

Three, some problems about the objective aspect of the crime of obstruction of official business

(a) violent forms of identification

About violence, the author thinks that should be understood in a broad sense, which includes not only the direct violence, should also include indirect violence; includes not only physical force, should also include the invisible force, the reason is: the first, the crime of obstruction of official business only need to act with prejudice official meaning, and application of nuisance behavior, do not need to have the right results the occurrence, namely the accomplishment (obstruction of the state security organs, except public security organs perform national security task according to law), and indirect violence with violence can have the same function[6]. At the same time, the violence is personnel of state functionaries to perform their duties, fulfill their duties or the Red Cross, the non ordinary citizens. Therefore, in the explanation of whether direct or indirect violence violence, are regarded as violence, in order to better conform to the criminal legislation of the criminal law protection of interests, social function. Second, mesmerize, drunk with wine, drug use and other intangible force and beaten, tied up, detention, physical force, will have a business can not be normal major hazard or actual harm, has obvious causal link between the results and the state and acts against the normal management activities cause interference and destruction, therefore shall be regarded as violent crime called ""[7]. Therefore, some scholars proposed the crime of obstruction of official business behavior shall not comprehensive statement, I beg to differ. We think, the unity of subjective and objective principle is a basic principle in our criminal law, this principle is embodied in the crime of obstruction of official business is the behavior of people in the intention, attitude control, the implementation of obstruction of official business behavior, therefore, the violence can't will this crime of violence and robbery in force consistent.

(two) identify the legality of act of duty

In defining the legal duty behavior, scholars in our country have little debate on this issue. But in foreign countries and Taiwan of our country criminal law theory, scholars have different views, some scholars from emphasizing national prestige or interests, advocating the establishment does not have to be legal for the elements, as long as the behaviors of civil servants in accordance with the "common sense" can be regarded as the official actors can. But most of the scholars think that legitimacy is necessary, legislation is also a more positive view of. This view has been recognized by the academia and practice circle of criminal law in our country.

So how to judge the behavior of duty legitimacy? Theoretically there are generally three kinds of Views: one is the essence, said. The said that as long as the civil service job behavior within the abstract authority, and has the general form of the required to perform their duties, which have the legality; two, form. The said that the job is legal or not key should be to see whether they have the required legal form; three is the essence and form, said. The theory that the form and content of the combination of legality judgment duty behavior. The essence that legitimacy only emphasize the content, regardless of whether the legal execution, the relevant provisions of the procedural law is ignored, the powers of the state of laissez faire and contempt for the rights of citizens; form that emphasizes the legal form, will inevitably give criminals posing as the national staff and self serving civil servants to provide an opportunity for. Essence and form that requires people to pay attention to the investigation of legal form, but not rigidly adhere to the form, but through the grasp of essence in public activities, abandon the defects of the first two points, more desirable. Specifically, to judge from the following aspects:

First, the execution of business is to perform the official permission, if obviously belong to beyond the remit of behavior, the behavior is illegal. Jurisdiction here, first refers to an abstract authority or general rights, namely the personnel can most widely significance in post activities such as the Department of industry and commerce authority, personnel can be issued a business license, to participate in market management, but not the tax, the staff is generally assigned to specific business activities, only the internal division of labor, does not affect the abstract authority. Secondly, should also look at the staff whether has the specific duties and powers of the execution of a business. In many cases, have the abstract official authority personnel do not have specific official authority, the duty behavior must be through the Commission, the relevant organs of the assignment. If the abstract authority had not been specifically authorized or entrusted to perform an official activities, the unauthorized execution behavior cannot be considered legitimate. It should be noted that, to perform their duties according to law activities, although the vast majority of cases are in the working hours or work unit, but it does not become the only standard to judge whether the behavior of duty form of legitimacy, it also includes outside working hours or work unit business activities.

Second, official duties duty is for legitimate purposes, and no damage to the state, the collective and the legitimate interests of the individual citizens. If the execution of business people breach of privilege, such as job, carrying the private revenge, to perform object implementation of unreasonable behavior, constitute illegal performing official duties.

Third, the execution of business behavior is in accordance with the law, must comply with the conditions and procedures. The effective elements of the duty behavior, often in the laws and methods for certain conditions, the relevant personnel shall comply with the conditions and methods in the performance of their duties. For example, executives should be performed to show that a specific identity of its own, to produce the relevant documents, in accordance with legal procedures to carry out their activities. In practice, some executive act is fully consistent with the requirements of the content and form of the executive, but due to various reasons, gruff, violent methods, as long as the implementation of the faults is light, nature of behavior is not very bad, will give the country, social cause great loss and stop execution of business, it should be identified to perform this behavior as the legitimate. Only the execution behavior obviously belong to the abuse of power is no longer recognized the legitimacy of official acts necessary. However, although from the unity of form and content to determine the legality of official behavior is the most desirable, but the execution of duties sometimes behaving is lack of form elements are also permitted by law, for example, when an arrest, detention, in case of emergency, the relevant personnel do not produce a warrant search, is legal, so that legitimate duty behavior, we should adhere to the unity of principle and flexibility[8].

That is to say, "police law" nineteenth stipulates: "the people's police in non working time, in case of emergency within the scope of its responsibilities, when performing their duties." At this time, the people's police behaviour can still be considered in performing duties. Therefore, don't need to worry about, in this case, the violent acts, can not fully protect the interests of the police.

Four, the police defense right and self-defense

Police defense and the justifiable defense has many acquaintances, but between these two very different.

First, the exercise of the rights of different subjects. The main right of justifiable defense is the exercise of ordinary citizens, while the main police defense right is only the police.

Secondly, the different nature of rights. The right of self-defense is only a kind of right, but the police defense right is not only the power of the police, and the police duties and obligations. It is pointed out that in 1993 three houses jointly issued the "about the implementation of self-defense people's police on duty in the specific provisions": "when the people's police, implements the justifiable defense behavior in must give up their duties, cause public property, interests of the country and the people suffer serious losses, shall be investigated for criminal responsibility according to law."

Thirdly, the exercise of the rights of different intensity. Justifiable defence of ordinary citizens in the proper limit of unlawful infringement. The police used national weapon, specially equipped police, the exercise of police defense right deterrent greater.

Fourth, excessive defense after the subject of compensation for civil liability is different. Ordinary citizens over defense, the citizen shall bear civil liability for compensation. The police over defense, can only be undertaken by the public security organs of civil liability. Because the behavior of the police's duty behavior.

The police's right to defend this point, in the criminal law of our country works in little about recent. However, released in 1983 on the implementation of self-defense "people's police on duty in the specific provisions", indicates that China must be in the judicial practice position.

The same on the understanding, issued in October 10, 1996, "the people's Republic of China Criminal Law (Draft)" (Draft) set up a special provisions, the public security officers, armed police on duty during the exercise of right of defense made expressly. But the revised March 14, 1997 formally adopted after the "PRC Criminal Law" and delete this provision. The author thinks, the abolition of the "post prescribed defense right", the right of defense only gave citizens is entirely correct, because the public security officers, armed police on duty during the encounter violence or to stop at the national, social and public interests, the counter (or even the use of guns and other weapons when necessary), completely is a to perform their duties, is its duty. If the attack behavior is not in accordance with the law, such as the abuse of guns and other weapons (such as violation of "the people's Republic of China the use of police equipment and weapons Ordinance" behavior), or unfinished duty, not fulfill obligations are back, will suffer adverse consequences of law may even criminal responsibility. All of these, are "private relief" defense the essence of the right of citizens and law to be quite different. In fact, to perform the duty counter actions has obvious "public power" in nature, the implementation process should be very strict control, if we define "self-defense rights" in the law, and with the "civil defense right" put on a par with, which is tantamount to again encourage and promote positive exercise state power the strong stronger, lead, effectively safeguarding the legitimate rights of citizens will be more difficult. In this sense, the scope of strictly limit the right of defense, is the need to prevent the abuse of state power, guaranteeing human rights.

Article third of the criminal law of twentieth in the comprehensive consideration of the views on the right, the unlimited defense stipulated. From the provisions of view, although not on the people's police of the unlimited defense right provisions, but does not mean that the law does not recognize the people's police have unlimited defense right. It should be considered, the provisions of the new "criminal law" the twentieth paragraph third also apply to the people's police, the people's police in by the violence, as with ordinary citizens, enjoy the same unlimited defense right. In other words, the people's police not unlimited authority or power, but the unlimited defense right. The provisions of the new "criminal law" the twentieth paragraph third, did not restrict the people's police to fight the hands and feet and criminals in performing duties.

Combining with the above discussion, the author thinks, the violent behavior in the judicial practice, the criminal law is entirely possible to regulate, to protect the police don't hurt. If there is no more eloquent facts to prove the necessity of setting up the crime of assaulting a police officer, imbalance is hasty expansion of creating the crime of assaulting police will inevitably lead to the police authority, for the protection of civil rights, is very harmful. Secondly, if only because the criminal law is not suitable for some acts of violence assaulting, afraid of indulgence criminals, thus adding a new accusation. The result is of criminal charges dummy, waste of legislative resources, also do not accord with the criminal law modest request. I agree with Professor Ruan Qilin of China University of Political Science and Law's point of view: the people's police should first of all people, establish the belief of law enforcement for the people, establish the justice of law enforcement, and efficient image, the establishment of a harmonious relationship between the police and the public. This is the prerequisite for the people's police law enforcement support, but also to reduce the violence anti law of assaulting incident.