Basic facts of the case]
At about 21:16 on December 21, 2021, after drinking alcohol (blood alcohol content of 228.1mg/100ml), Zhou Moumou drove a white "Beijing" brand small car to the intersection of Hulang Road and Qianyu Road, Tongzhou District, Beijing, and collided with a white "Dongfeng Citroen" brand small car driven by Li, causing damage to the two vehicles, and Li called the police. When police officers Wang and Li of the Tongzhou Branch of the Beijing Municipal Public Security Bureau arrived at the scene, Zhou repeatedly insulted the police, and refused to cooperate and struggled to resist when the two policemen escorted him into a police car. Leaning forward because he was suppressed by the police, Zhou's leg was raised back to touch the leg of the policeman Wang. However, due to the violent shaking of the law enforcement recorder, it was impossible to show the specific behavior of Zhou Moumou kicking the police. After investigation, the act did not cause minor injuries or above injuries to police officer Wang Moumou.
On January 5, 2022, the Tongzhou Public Security Bureau submitted an application to the People's Procuratorate of Tongzhou District, Beijing for approval of arrest on suspicion of dangerous driving and assaulting the police, and on the 12th of the same month, the Tongzhou District People's Procuratorate believed that the existing evidence could not rule out the possibility that Zhou Moumou passively raised his foot and kicked the police when he was suppressed, so it made a decision that the evidence was insufficient and did not approve the arrest. On February 17 of the same year, the Tongzhou District People's Procuratorate prosecuted Zhou Moumou for the crime of dangerous driving. On the 23rd of the same month, the Tongzhou District People's Court of Beijing Municipality made a judgment against Zhou, finding him guilty of dangerous driving, and sentenced him to four months of criminal detention and a fine of 3,000 yuan.
【Main Issues】
How to determine the crime of assaulting a police officer?
【Opinion Analysis】
Differences of Opinion
Amendment (11) to the Criminal Law amends the expression of the crime in paragraph 5 of Article 27 of the Criminal Law, upgrading the aggravating circumstance of "violent assault on police", which was originally subordinate to the crime of obstructing official duties, to an independent crime of assaulting police, and adding the circumstance of "using firearms, controlled knives, or driving a motor vehicle to hit and other means that seriously endanger personal safety" on the basis of "violent assault", and upgrading the statutory sentence to "fixed-term imprisonment of not less than three years but not more than seven years". However, in judicial practice, there are different standards for law enforcement of attacks on police, and some similar acts that only punch or kick a police officer but do not obstruct law enforcement by the police and cause injuries to the police are indeed investigated for criminal responsibility, and sentences ranging from short-term detention to fixed-term imprisonment are mostly restricted. Therefore, it is necessary to unify the application of the law to the crime of assaulting a police officer, so as to accurately distinguish between crime and non-crime, and between this crime and other crime.
The first opinion is that Zhou's conduct should be found to be the crime of assaulting the police. The reason is: The crime of assaulting a police officer refers to a violent attack on a people's police officer who is performing his duties in accordance with the law. Not only did Zhou XX insult the police many times, but in the process of the people's police taking control of him and detaining the police car, he deliberately struggled and resisted, took the initiative to raise his legs, and kicked the legs of the people's police who were controlling him in accordance with the law, indicating that he had the intention to attack the police and carried out active attacks, which met the constitutive elements of the crime of attacking the police.
The second opinion holds that the degree of violence of Zhou's conduct did not endanger the personal safety of the people's police and the order of the people's police in the performance of their duties, and did not constitute a crime. Judging from the evidence in the case, Zhou Moumou's resistance and kicking of the police in the process of controlling him cannot be ruled out as only a natural movement of Zhou Moumou's body in the process of simply struggling, and his leg raising behavior did not reach the level of "violent" behavior regulated by article 277 of the Criminal Law, and did not cause serious consequences such as obstructing the law enforcement of the police or injuring the police. Therefore, it should not be treated as a crime.
Comment and Analysis
The author agrees with the second opinion. The key to handling cases of assault on police and obstruction of public affairs lies in accurately determining the facts of the case, combining the means and circumstances of the conduct to make a comprehensive judgment on the application of the charges of crime and non-crime, assault on police and obstruction of public affairs, and other related conduct, especially clarifying the connotation and extension of the elements of the constitutive elements of the crime of assaulting police, and on this basis, making accurate determinations in accordance with law.
First, make full use of the evidence in the case, comprehensively analyze the mode of conduct, duration, location of the blow, and the number of attacks, and accurately identify "violent attacks".
The offence of assaulting a police officer requires a form of conduct that is "violent assault". According to article 1 of the 2020 "Guiding Opinions of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security on Punishing Illegal and Criminal Attacks on Police in Accordance with Law", acts of violence include both "biting, kicking, holding, throwing, etc., to attack the person of the police", as well as "smashing, destroying, or snatching police vehicles, police equipment, and other police equipment that are being used by the police, and attacking the person of the police." The latter is an indirect threat to the personal safety of the police through violence against objects, and at this time, police equipment has become an intermediary in transmitting the danger of injury, and the danger of violence to personal safety is still real and urgent. If the act of smashing or destroying is only aimed at police equipment, and there is still a certain distance between the people's police and the police equipment, it does not belong to the "violent attack" in this crime, and obstructing the law enforcement of the people's police by smashing or destroying the police equipment may constitute the crime of obstructing official duties.
Literally, "violent assault" must be manifested as an active physical movement, and it must be both active and aggressive, and sudden. Specifically, the judgment should be made in terms of the duration of the act, the number and location of the blows, and the result of the harm caused, or the urgency of the danger. Where a single active attack is designated as a "violent attack", the conduct must have a greater degree of harm, but it is not required that it must be more than slightly injured. If the person being enforced carries out acts of getting rid of, struggling, or resisting out of instinct, or has a slight physical conflict with the police, such as scratching, pushing, pulling, or hugging the body, such as knocking the law enforcement recorder to the ground, removing the police hat, or other conduct that has little physical force or harm to the people's police, it is not within the scope of "violent assault". Threats of violence or other acts that do not pose a danger to personal safety do not constitute the crime of assaulting a police officer. Where a violation of the administration of public security is constituted, a public security administrative sanction shall be given.
In this case, Zhou Moumou resisted in the process of being controlled by the police, leaned forward because he was suppressed by the police, and Zhou's leg was raised backwards to touch the leg of the police officer Wang Moumou, and no minor injuries or injuries were caused to the police. Moreover, the evidence in the case cannot prove that Zhou XX had multiple consecutive kicks and kicks, and it cannot be ruled out that the perpetrator carried out acts of struggling and resisting out of instinct, and the physical force or injury to the police was also small, so it is not a violent attack. Zhou's repeated insults are also not violent attacks.
Second, specifically analyze the criminal suspect's behavior, and determine whether he has the intention to actively attack from the subjective aspect of the behavior pattern.
In the crime of obstructing public affairs, the perpetrator is subjectively more inclined to obstruct the personnel of state organs from performing their duties in accordance with the law, while in the crime of assaulting the police, in addition to not cooperating with the people's police in the performance of their duties, the perpetrator also has the subjective intention of actively attacking the people's police and harming the people's police. Many cases of assaulting police officers occur when the people's police are taken by surprise, such as suddenly kicking and kicking the police, suddenly biting the arms of the police, and so on. Therefore, the objective behavior and behavioral environment at the time of committing a violent attack can be reversed into the subjective state of a person. In this case, Zhou Moumou kept saying "don't press me" after being controlled by the police, and when the police were escorting him into the police car, Zhou's body was suppressed and leaned forward while twisting his body to resist, and due to the inertia of his body, his legs came into contact with the policemen's legs in the process of lifting them backwards; Moreover, the law is not imposing on the people, and it is possible to condemn the perpetrator only if he or she has the possibility of expectation. When he was forcibly controlled by the police, he had general writhing and struggling behaviors, which was in line with common sense, and required the offender to be completely obedient and cooperate in the process of arrest by the people's police, lacking the possibility of expectation.
Third, focus on the scope of duties of law enforcement entities, and accurately determine that "they are performing their duties in accordance with law".
The issue of the legality of professional conduct is the basic condition for the judicial application of the crimes of assaulting police and obstructing public affairs. How to determine that "performing duties in accordance with the law" is an issue that should be paid attention to. Within the scope of their duties provided for in article 6 of the "People's Police Law of the People's Republic of China" (hereinafter referred to as the "People's Police Law"), the people's police shall follow legally-prescribed procedures to perform their duties such as preventing, stopping, and investigating violations and crimes, as well as stopping conduct endangering public security and order. In the event of an emergency, as long as it is performing people's police duties, it is not required that it must be within the scope of the actual post duties, and it is also viewed as performing duties. Performing their duties in accordance with law requires the people's police to have law enforcement powers, and also requires that the procedures for law enforcement be lawful and reasonable. For general flawed law enforcement conduct such as failure to present documents, excessive movements, or misconduct, on the premise of having law enforcement powers, the legitimacy of the law enforcement conduct has not been changed, and cannot be a reason for the perpetrator to violently attack the police and not guilty plea. Flawed law enforcement conduct shall be promptly supplemented and corrected or a reasonable explanation given, and a lighter punishment may be considered for the perpetrator at sentencing. In this case, although Zhou Moumou has always argued that he did not know the identity of the police, the testimony of witnesses and video materials show that the two policemen were dressed in a standardized manner when they went out to the police after receiving the police, and they were informed at the first time that they were performing their duties in accordance with the law, and that they were standardizing law enforcement throughout the process, which was "performing their duties in accordance with the law".
Fourth, grasp the specific targets of the crime of assaulting police, and apply different crimes according to the different methods of performing duties, so that the punishment is appropriate to the crime.
The offence of assaulting a police officer is the relationship between a special offence and an ordinary offence against the offence of obstructing official duties. The crime of assaulting police has priority in application, and in situations where the crime of assaulting police cannot be applied, the crime of obstructing public affairs may provide a necessary supplement as a general crime. The target of the crime of assaulting a police officer specifically refers to "people's police who are performing their duties in accordance with law". According to paragraph 2 of article 2 of the People's Police Law, the people's police include the people's police of public security organs, state security organs, prisons, and re-education through labor management organs, and the judicial police of the people's courts and people's procuratorates, and does not include the people's armed police, nor does it include auxiliary police personnel (hereinafter referred to as auxiliary police). Where auxiliary police perform their duties alone, or engage in relevant activities that must not be engaged in as provided for in the "Opinions on Regulating the Management of Police Auxiliary Personnel in Public Security Organs" of the General Office of the State Council, it is not "lawful performance of duties" because it lacks a basis for legality, and the conduct of violently attacking and obstructing enforcement cannot be found to be the crime of assaulting police, nor can it be found to be the crime of obstructing public affairs. In judicial practice, when the police are present, the auxiliary police cooperate with the police in the performance of their duties in accordance with the law, and the perpetrator attacks the auxiliary police, the provisions of Article 277, Paragraph 1 of the Criminal Law are generally applied, and it is found to be the crime of obstructing official duties. In the absence of the police, because the auxiliary police do not have the qualifications to be a law enforcement entity, the provisions on the crime of obstructing public affairs do not apply, and there is no room for determining the crime of assaulting the police, and if the assault causes harm to the auxiliary police, the crime of intentional injury may be handled. Where both an attack is carried out against a people's police officer lawfully performing their duties and an attack on an auxiliary police, it is an absorption offense and shall be found to be the crime of assaulting the police, and punishment for multiple crimes is not to be combined.
Contributed by Chen Hanying, People's Procuratorate of Tongzhou District, Beijing
Case editor: Zhang Yanqing of the Beijing Municipal People's Procuratorate
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The original article was published in Capital Procuratorate Cases (Second Edition), edited by the Law and Policy Research Office of the Beijing Municipal People's Procuratorate, Law Press, December 2022, 1st edition, p244-249.
Finishing: The Legal Detachment of the Public Security Bureau of Suzhou City, Jiangsu Province (directly under the Branch) "Don't read, don't go" and "Poetry and Bamboo Dream".
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