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On June 21, a woman and her father drove out to see a doctor in Dandong, Liaoning Province. They were stopped because the health code was yellow. The woman refused to cooperate and comply with the epidemic prevention regulations. She got out of the car and argued with the police. In the process, her father came forward and hit the police on the face. At present, the woman has been held in administrative detention for 10 days for obstructing the performance of her duties, and her father has been taken criminal coercive measures on suspicion of assaulting the police. After the release of this video, it has aroused wide attention of Internet users. Does the behavior of the father and daughter involved really constitute a crime of assaulting the police? Therefore, it is necessary for us to make a simple discussion and sort out the relevant issues of the crime of assaulting the police in judicial practice.

(picture from the network)

I. understanding and application of the crime of assaulting the police

To understand and apply the crime of assaulting the police, the key point is how to accurately define what is the act of "violently assaulting the people's police performing their duties according to law". There are three key points: first, what are the "violent attacks" here? Second, how to correctly understand "performing duties according to law"? Third, how to determine the scope of the people's police and whether it includes auxiliary police and other auxiliary police personnel?

❐ 1. About "violent attack". According to the provisions of Article 1 of the guiding opinions on punishing the illegal and criminal acts of assaulting the police according to law issued by the Supreme People's court, the Supreme People's Procuratorate and the Ministry of public security, the following acts against the police performing their duties according to law belong to the "violent attack on the people's police performing their duties according to law" stipulated in paragraph 5 of Article 277 of the criminal law: (1) biting, kicking, throwing, etc. to attack the police; (2) Smashing, destroying or seizing police vehicles, police equipment and other police equipment that are being used by the police, and attacking the police. At the same time, the article stipulates that if the circumstances of assaulting the police are minor or abusing the police do not constitute a crime, but constitute a violation of public security administration, public security administration punishment shall be given according to law. According to this provision, the violent assault on the police in the crime of assaulting the police mainly refers to the acts listed in the preceding article, or the acts of assaulting the police with the same degree of danger.

It is noteworthy that on February 25, 2022, Zhejiang Province issued the guiding opinions on the handling of criminal cases of assaulting police by the public security organs of Zhejiang Province. Although it is a local provision, the guidance has made more detailed provisions on some controversial issues in practice. The promulgation of this provision provides us with a useful attempt and reference for the correct understanding and application of the crime of assaulting the police, and has a strong reference significance. Article 1 of the guidance points out that when handling a case of assaulting a police officer, we should comprehensively consider the social harmfulness and accurately judge the nature of the act according to the actor's motivation, behavior mode, behavior place, consequences and other factors. For those who meet the constitutive requirements of a legal crime, the public security organ should promptly file a case, investigate, transfer for examination and prosecution, punish them strictly and quickly according to law, and strive to achieve the organic unity of legal effect and social effect. The guidance not only specifies in Article 5 what kind of behavior belongs to the "violent attack" in the crime of assaulting the police, but also further points out in Article 7 by way of enumeration that the behaviors, such as pulling, pushing, scratching, beating, cuddling, clinging and other insults, besieging, obstructing In the process of mob building, compulsory summons, detention, arrest, etc., in order to get rid of control and avoid arrest, the drunk fails to attack the police, and in the process of taking protective measures against the drunk, the drunk does not swing his arm or wave his hand against a specific object, does not attack the police, and does not endanger the personal safety of the police, It does not belong to the act of "violent attack" stipulated in Article 277 of the criminal law.

Article 9 of the Guiding Opinions also points out that in the case handling area, mediation room and other public security office places, as well as private residential, hotel rooms, police vehicles and other spaces, the attack on the police is minor and has not caused adverse effects; In the process of mediating civil disputes such as marriage, family and neighborhood disputes, if the parties involved in the dispute do not obey the instructions of the police and have a slight physical conflict with the police, and the circumstances are significant and minor, and the harm is not great, it is not considered a crime. According to this provision, it can be determined that not all attacks on police can be identified as "violent attacks" in the crime of attacking police, but should be comprehensively judged according to whether the perpetrator actively and obviously attacks the police, whether it endangers the personal safety of the police, the place where the harmful behavior occurs, the cause and other circumstances.

❐ 2. Understanding of "performing official duties according to law". When the police's law enforcement is flawed, wrongly enforced, or even illegal, is it still possible to constitute the crime of assaulting the police, or does it certainly exclude the constitution of the crime of assaulting the police? This is actually the most controversial issue in practice. In this process, we need to clarify and focus on the following: first, performing official duties in accordance with the law, or the lawful duty behavior, is the prerequisite for the constitution of the crime of assaulting the police. If an act of illegally performing official duties causes damage to the rights and interests of the opposite party, it should not only not be supported and protected by the relevant laws, but also be investigated for legal responsibility of the relevant personnel. In this case, even if there is a violent attack, it is not suitable to be convicted and punished for the crime of assaulting the police. Second, the duty behavior is legal, which requires both entity and procedure to be legal, including subject, authorization and procedure. There is no act of exceeding authority and abusing authority. Third, in practice, we must distinguish between the illegal performance of official duties and the defects of law enforcement. As for the illegal performance of official duties, as mentioned above, in fact, there is no problem that constitutes the crime of assaulting the police. However, the defective behaviors of the police in the process of law enforcement, such as stiff law enforcement behavior and uncivilized speech, should be analyzed in detail. In my opinion, if the flawed law enforcement directly intensifies the contradiction and leads to the occurrence of violent attacks by the opposite party, it should not be recognized as the crime of assaulting the police; If there is a flaw in the police's performance of official duties, the flaw can be corrected or reasonably explained, and there is no causal relationship with the violent attack of the opposite party, which generally does not affect the determination of the crime of assaulting the police.

❐ 3. Whether the "people's police" here includes other auxiliary police personnel. According to Article 3 of the opinions on standardizing the management of police auxiliary personnel of public security organs issued by the general office of the State Council, police auxiliary personnel refer to the personnel who are recruited according to law, managed and used by public security organs, and who do not have the status of people's police to perform specified duties and labor contracts, mainly including civilian and auxiliary police personnel engaged in police auxiliary work. Article 4 of the opinion points out that auxiliary police personnel do not have the qualification of law enforcement subjects and cannot directly participate in public security law enforcement work. They should carry out auxiliary work under the command and supervision of the public security police. Therefore, police auxiliary personnel do not have the identity of people's police, do not have the qualification of law enforcement subject, and cannot directly participate in public security law enforcement, so it is impossible to "perform official duties according to law", and police auxiliary personnel can not theoretically become the protection object of the "crime of attacking the police". However, in practice, the police assistants work together with the people's police in most cases. On the one hand, at this time, the police assistants are under the management and supervision of the people's police, and their work has actually become an integral part of the people's police in performing official duties; On the other hand, auxiliary police officers work with the police, making them in the same dangerous situation as the people's police. In this case, from the perspective of the legislative purpose and the protection of legal interests of the crime of attacking the police, if the police auxiliary personnel are subjected to violent attacks and meet other constitutive conditions, they should also be recognized as the crime of attacking the police. We can't just apply the law mechanically because of different identities, and exclude the auxiliary police officers from the protection scope of the crime of assaulting the police.

II. Dandong's father's assault on the police should not be considered a crime

When the father in Dandong video saw his daughter fall to the ground, he instinctively rushed up and slapped the police on duty. At that time, the police should have carried out epidemic prevention and control work here according to the orders of their superiors, and engaged in checking the status of health treasure, persuading them to return and blocking the epidemic related personnel and vehicles. On the surface, the father violently attacked the people's police who were performing their duties according to law, and was suspected of assaulting the police. But on the other hand, the father unconsciously came forward to have a physical conflict with the police on duty after seeing his daughter fall to the ground. This behavior is impulsive, but it is in line with human nature. It is a father's subconscious protection for his daughter. At the moment when his daughter fell to the ground, as a father, the man thought of only "Resisting" the "harm" to his daughter, ignoring the other party's police identity, and his subjective malice was very small. At that moment, it is difficult to say that it was an explicit and deliberate attack on the people's police performing their duties. After the ferment of the incident, another video shot by bystanders also appeared on the network. In the video, although the man did attack the police, it was obvious that the police blocked with their hands and dodged with their bodies. The man's behavior did not hurt the police's head, and the police's subsequent "falling to the ground" action was somewhat "delayed". Personally, I believe that considering the original appearance of the scene presented by the above two video materials, the principle of modesty and restraint of criminal law must be followed when considering the conviction. A comprehensive analysis should be made on the causes of the incident, including the legitimacy and legitimacy of performing official duties. It should not only mechanically admit the conviction and non crime by attacking the police, but also consider the subjective attitude of the parties, the social status at that time and many other factors, Integrate and comprehensively analyze the three elements of "natural principle, national law and human feelings".

In this case, the woman involved was accompanied by her father to go out to get the medicine because her father was ill. Although the health treasure had a yellow code, she not only issued a travel certificate from the community, but also made a nucleic acid test in advance. There was nothing wrong with the woman's previous behavior. The police on duty ignored the travel certificate issued by the community held by the woman involved, blindly emphasized the "yellow code", and restricted the woman's movement, neither allowing her to move on nor returning home. The police's behavior was obviously inappropriate, which led to the escalation of the conflict between the two sides. The father involved slapped the police on duty in the face when his daughter fell to the ground. His behavior was not proactive and did not cause direct harm to the police on duty. In general, the father's "assaulting the police" behavior is obviously minor, does little harm, and has a reason. According to the provisions of Article 13 of the criminal law, it should not be considered a crime.

III Some ideas and suggestions

With the rapid development of social economy and culture, all kinds of public security and criminal cases continue to occur in society every day, which also makes our national public security organs, especially the front-line people's police, under great work pressure. The first response of citizens to public power is to call the "110" alarm number for help. Therefore, our national police have to deal with a lot of police and non police work every day, In the process of handling, they often suffer verbal insults, abuse, threats and even physical violence against the police. This not only threatens the personal safety of the police, but also seriously threatens the national legal authority. The establishment of the crime of assaulting the police is to better protect the personal safety of the people's police and maintain the authority of the state. It is also the guarantee for the state to enforce the law from the legislative level to the police, the most important law enforcer. At the same time, it also requires the police to maintain the legitimacy and legitimacy of law enforcement in the process of law enforcement, and avoid being blunt, rude or uncivilized.

The epidemic has been raging around the world for three years. Our whole country and society have paid a heavy price for it. It involves each of us. There are more or less a lot of restless and anxious emotions that dominate our actions. However, in any case, each of us should maintain a rational and civilized attitude to deal with and solve problems in social life. Law enforcers should also adjust the way of law enforcement to avoid the consequences that all parties do not want to see after the escalation of the conflict.