How to determine the act of gathering people to fight, and the two parties have only one person
Yao Wen/Comic
Basic facts: On the afternoon of October 18, 2020, Zhao had an argument with Xie in the hotel, which resulted in a physical conflict. Later, Zhao called Zhu and Zhang to hold wooden sticks, and Xie gathered Pei, Yang and others. Seven people came to help fight. In the evening, when the personnel from both sides arrived at the agreed scene, Zhao and Xie started to fight each other. Zhu and others did not do anything. During this time, Zhao beat Xie with a stick carried by his accomplice, and Xie used it with him. The dagger carried hurt Zhao's buttocks, and it was determined that Zhao's degree of injury constituted a minor injury level.
Disagreement: In this case, the two parties agreed to gather several people to participate in the fight after the parties agreed to gather a crowd to participate in the fight, and there were differences in the determination of the conduct of only one person on the scene.
The first view is that after the two parties agreed to gather a crowd to fight, they gathered several people to participate in the fight, but in fact only one of the two parties performed the beating, and there were not three persons who actually did it. Therefore, the perpetrator did not constitute the crime of gathering a crowd to fight.
The second view is that gathering crowds is just a way of fighting. In practice, the behavior of both parties should be evaluated as a whole, rather than just the number of people who actually did it. Therefore, the perpetrator constitutes the crime of gathering crowds for fighting.
Comment: The author agrees with the second point of view.
First of all, both parties have a clear criminal intention to gather crowds to fight subjectively.
The criminal law stipulates that for gatherings to fight subjectively requiring both parties to have the intention to fight each other, one party has the intention to fight each other and gathers more than three persons to commit a fight against multiple or unspecified persons of the other party, and the other party has not committed each other. In the case of intentional assault, the party who did not intentionally assault shall not be regarded as gathering a crowd to fight.
In this case, Zhao and Xie clearly agreed to fight in advance, and then they separately gathered several people to the scene of the case to participate in the fight. The personnel of both parties arrived at the scene with weapons as agreed, indicating that they had a clear criminal intention to gather people to fight.
Second, objectively, both parties have committed acts that violated the public order of society.
Since it is not necessary to infringe legal interests as long as the people are gathered, the author believes that in practice, it is necessary to analyze the specific case in detail.
The act of assembling a crowd usually occurs in a public place, and its behavior infringes not only the personal and property interests of both parties, but also the personal and property interests of others. It reflects the contempt for social morality and social order. Therefore, the legal benefit of the crime of assembling is the social public order. .
Specifically, in this case, Zhao and Xie agreed to fight due to a temporary dispute, and the number of people gathered reached a dozen; both parties arrived at the designated place after the agreement, and both parties were in the same place in space; on the equipment they held, several people brought them together. There are sticks and daggers.
From the perspective of the general public, the above-mentioned factors are sufficient to threaten the health of the other party, cause the public to panic, and have legal interests infringement.
And different from the general situation where the gathering is not done, the two parties in this case have a weapon fight, but only one person of each party does it.
Third, from the overall behavior of both parties, it is determined that there have been three persons "during a fight".
In the crime of gathering a crowd for an affray, it generally refers to gathering more than three persons, and in some places there are even regulations on the number of persons in the fight.
For example, the "Opinions of the Higher People’s Court of Jiangsu Province, the People’s Procuratorate of Jiangsu Province, and the Department of Public Security of Jiangsu Province on Several Issues Concerning the Application of Laws in the Handling of Crowd Affray Cases" clearly stated that “if one party reaches more than three persons in an affray, and one party has less than three persons, it shall be opposed The above party can be regarded as gathering people to fight."
This means that if there are not more than three persons in the fight, it is not considered to gather people to fight.
Obviously, how to understand "during a fight" will determine the direction of the case.
If you simply think that the time of fighting refers to the time of actual hands-on, then neither party constitutes the crime of gathering people to fight. This view is not free from indulgence of crime and does not conform to the principle of crime, responsibility and punishment.
The author believes that the fighting behaviors of both parties should be evaluated as a whole, and the "during fighting" should be comprehensively identified, rather than the number of actual hands as the only standard.
Specifically, in this case, although only two gatherers were actually involved, the two gathered more than a dozen people to make trouble in public, and some of them were holding wooden sticks and other equipment. As mentioned earlier, their behavior has seriously violated Social public order, and the violation of public order is not caused by one party or a person who gathers a crowd to fight, but is caused by the actions of both parties. Therefore, the behavior of both parties must be judged as a whole, and the number of both parties should be considered to be equal to More than three people, not just the actual number of hands.
Finally, the judgment of the cause of the comprehensive case, the means of crime, etc. only gathers two persons to construct a crime.
The Criminal Law stipulates that the crime of gathering people to fight only punishes the chief elements and active participants.
In this case, with the exception of Zhao and Xie, although some of the other personnel held wooden sticks, they all arrived at the scene with sticks under the notice of Zhao and Xie. No one actively provided weapons and was on the scene. No actual hands-on and use, as a bystander, should not be regarded as an active participant.
At the same time, in judicial practice, "arms" refers to the fact that people who participate in a crowd fight directly use the equipment to fight, or carry and display in the fight but not actually use it.
The act of assaulting Zhao and Xie with wooden sticks and daggers in this case should be regarded as armed.
In summary, Zhao and Xie should be held criminally responsible for the crime of armed gathering in an affray, and the other persons gathered do not constitute a crime.
(Author's unit: People's Procuratorate of Sihong County, Jiangsu Province)
Li Qi