Viewpoint... The crime of picking quarrels and causing trouble together is suspected of not prosecuting and innocent defense ideas.

From February 12 to February 19, 2022, suspect A repeatedly parked the electric tricycle in the middle of the construction road on the south side of a village in Area A to intercept the convoy of a limited company in Jinan on the grounds of noise and dust pollution, thus hindering the normal driving of the vehicle. During this period, Party A repeatedly asked for compensation for noise and dust pollution from a limited company B in Jinan. Victim B was forced to pay 120,000 yuan in cash to Party A in a mountain house in a village in Area A on that day. After the victim B delivered the cash, he reported the case to the public security organ, and the public security organ filed a case against A for investigation for the crime of provoking trouble. In addition, he obtained evidence such as the victim's statement, witness testimony, documentary evidence, audio-visual materials, and on-site inspection transcripts. The criminal suspect A confessed to the facts of the crime, and his confession and other evidentiary materials can be mutually corroborated. On January 16, 2023, the public security organ transferred the case to the local procuratorial organ for review and prosecution.

After accepting the entrustment, the defender carefully consulted all the files and materials of the case, met with the defendant in accordance with the law, listened to the defendant's defense, and had a more comprehensive and clear understanding of the case. In view of the facts of the case, the defender, on the basis of in-depth communication with the public security organs and procuratorial organs, wrote defense opinions and submitted them to the case handling organs in a timely manner. After being examined by the procuratorate and returned twice for supplementary investigation, the procuratorate held that the facts of the crime identified by the public security organ were unclear and the evidence was insufficient, and decided not to prosecute A in accordance with the provisions of paragraph 4 of Article 175 of the the People's Republic of China Criminal procedure Law.

From February 12 to February 19, 2022, a parked an electric tricycle in the middle of a construction road on the south side of a village in area a on the grounds of noise and dust pollution to intercept the motorcade of a limited company in Jinan, hindering the normal driving of the vehicle and demanding compensation for noise and dust pollution. does the act constitute the crime of provoking trouble?

After consulting the case file materials and learning about the situation from the criminal suspect, the defender believes that A does not have the subjective intention of the crime of provoking trouble, does not meet the constitutive requirements of the crime of provoking trouble, and meets the conditions of non-prosecution., Should not be prosecuted.

The theory of criminal law in China calls all the conditions necessary for the establishment of a crime "the constitution of a crime", so the constitution of a crime in China is the condition for the establishment of a crime. The constitution of a crime consists of the object of the crime, the objective aspect of the crime, the subject of the crime, and the subjective aspect of the crime. When the behavior has the four elements of a crime, it should be punished; on the contrary, if the behavior lacks one of the elements, it does not have criminal illegality and should be punished.

1. The object of this crime is public order. The so-called public order includes order in public places and the common norms that people should abide by in life.

The crime of provocation and provocation mostly occurs in public places, and often causes damage to citizens' person, personality or public and private property. However, the crime of provocation generally does not infringe on specific person, personality or public and private property, but mainly points to public order, challenges the whole society and despises socialist morality and legal system.

Specific to this case, although the behavior of criminal suspect A caused certain damage to the victim's property, his behavior is clear, that is, to put pressure on him by blocking the road to solve the damage caused to him during the construction period, rather than challenge the whole society and despise socialist morality and legal system. Therefore, the object violated by the act does not conform to the public order stipulated in this crime.

2. Objectively, this crime is manifested as making trouble out of nothing, making trouble, making trouble without reason, beating and injuring innocent people, wanton provocation, rampant bullying and undermining public order.

Specifically, in this case, suspect A took the road blocking method. Its purpose and cause were that during the operation of a company's large fleet, it often affected its living environment and the main body of the house from day to night. Many negotiations failed. The road blocking method hoped to solve the problems of environmental pollution, noise pollution, incomplete house damage and unpaid loss, and inadequate compensation for some land, objectively, his behavior is an act of self-relief, which does not conform to the objective constitutive requirements of the crime of provoking trouble. It does not take the act of causing trouble, making trouble, making trouble without reason, beating and injuring the innocent, wanton provocation, rampant bullying and destroying public order. As the victim of environmental pollution and noise impact, her behavior is not nothing but a cause. The suspect believes that it has caused damage to her. When the public relief is ineffective, she is forced to take such extreme private relief. According to the relevant laws and regulations, the suspect has repeatedly reported this problem to the relevant departments, but it has not been resolved. In desperation, as a rural woman with a very low level of education, she can only take the road blocking, which she thinks is legal and effective. The way to report the problem to the superior, and then achieve the effect of solving the problem, the purpose is to get environmental pollution, house damage, land occupation and other compensation. Its behavior does not conform to the objective requirements of the crime.

3. Subjective elements

Subjectively, this crime can only be constituted by intention. That is, flagrant contempt for national laws and social ethics. The motive is to seek spiritual stimulation and fill the spiritual emptiness through provocation activities.

Specific to this case, the criminal suspect A has no criminal intention subjectively. He does not think that his behavior is a crime. His motive is to solve his petition problem by blocking the road, not to pursue mental stimulation and fill the spirit through provocation activities. Empty. In the case of provocation and provocation, the perpetrator must carry out the act involved in the case on the basis of making trouble without any legitimate reason, which is also the key factor in evaluating the act of provocation and provocation. If the perpetrator has a legitimate reason to carry out the act involved, it does not meet the constitutive requirements of the crime of provocation and provocation, and does not constitute the crime of provocation and provocation. Article 1 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in handling criminal cases of provocation and provocation stipulates that those who commit the acts stipulated in Article 293 of the criminal law in order to seek stimulation, vent their emotions, try to be brave and play tricks, etc., shall be deemed as "provocation and provocation".

If the perpetrator, due to occasional contradictions and disputes in daily life, causes trouble for some reason and carries out the acts stipulated in Article 293 of the Criminal Law, it shall be deemed as "provoking trouble", except that the contradiction is intentionally caused by the victim or the victim bears the main responsibility for the intensification of the contradiction. If the perpetrator beats, insults, intimidates others, or damages or occupies other people's property due to disputes over marriage, family, neighborhood, debt, etc., it is generally not recognized as "provoking trouble", but after being criticized and stopped by the relevant department or punished, Continue to carry out the forefront behavior, except for disrupting social order.

In this case, because the victim committed the infringement first, the victim has a major fault and is directly responsible for the emergence and development of the contradiction. The criminal suspect has committed the act involved in the case based on the above reasons, which is a cause, not a cause of trouble, nor is it out of the motivation of being aggressive, venting emotions, and looking for excitement, all of which are not acts of provocation and provocation in accordance with the law. On pages 47 and 48 of the second volume, B said: "on February 15, send me a message to deal with the noise and environmental pollution problems reflected by a. at that time, I arranged for c to deal with this matter. at that time, a said that if this matter was to be negotiated, it would have to be settled with money." It can be seen from this that after receiving the notice from a certain company, B is exercising his duty to solve the problem of letters and visits. A is asking for money to solve the problem of compensation for noise environment and other damages. It is for a reason, not unreasonable. According to the second volume P49, after receiving the notice from a company, B promised to give each household a monthly compensation of 3000 yuan after negotiation in view of the pollution problems reflected by the surrounding people. According to this standard, the lease period and compensation period under the "Temporary Land Lease Agreement" are from December 1, 2020 to November 30, 2023, for a total of three years. According to the three-year calculation, 3000 yuan will compensate each month for a total of 108000 yuan. From this, it can be seen that A's compensation claim of 120000 yuan (house damage and balance payment for land occupation) should be within a reasonable range. Of course, B did not compensate the farmers after one month, which is a breach of contract and has nothing to do with this case.

From the above, it can be seen that when evaluating the act of provoking trouble, whether the perpetrator has nothing to do when committing the act involved in the case, whether there is a legitimate reason is an indispensable subjective element to evaluate whether the perpetrator constitutes the crime of provoking trouble, whether the perpetrator has a major fault is one of the factors that the perpetrator has a legitimate reason, and if the victim has a major fault, it is the criminal reason that the perpetrator does not constitute the crime of provoking trouble. In order to solve the problem, the suspect initially put forward four petitions to the relevant departments, namely:(1) eliminate the interference of noise and dust;(2) compensate for the damage caused by the house;(3) the photo of the house damage is not comprehensive, which can not really reflect the degree of damage to the house and the damage has not been actually paid;(4) the balance of compensation for land occupation has not been paid. The above four demands of the criminal suspect are legal and reasonable, and there is no forced or unreasonable behavior. With incomplete statistics, in order to reflect the above problems, the suspect has reported 18 times to a bureau, 57 times to the competent department at a higher level, more than 200 times to the 12345 government service hotline, many times to the village secretary and district secretary, and many times to the environmental protection bureau of a certain office and area a. none of the relevant problems have been solved. various departments have kicked each other's balls and refused to handle them for a long time, the suspect also turned to the column group of a TV station's urban new women's newspaper, but the problem was not solved. As an ordinary citizen, for the sake of his own living safety and damaged legitimate rights and interests, he asked for help in many places, and made countless calls for help but failed to solve the problem. It can be seen how difficult it is for a rural woman to reflect her problems. Forced to have no choice but to rely on a weak body to block the road to attract attention and solve the problem. This should be the most effective means she can do under the condition that the relief through legal channels is fruitless. Therefore, in response to its four petitions, the act of obtaining compensation is not doing nothing, and it has no criminal intent subjectively, which does not meet the subjective constituent elements of the crime of provoking trouble.

To sum up, according to the theory of elements of criminal law, the behavior of suspect A in this case does not constitute the crime of provoking trouble. Although there is something wrong with his behavior of blocking the road to solve the problem, it is only a civil dispute, and there is no need to raise the height of criminal punishment. Therefore, the Court is requested to make a decision not to prosecute in accordance with the law.

If the case-handling agency insists that A constitutes the crime of provoking trouble, the defender believes that A also meets the conditions for non-prosecution and requests the procuratorate to make a decision not to prosecute in accordance with the law.

According to the Supreme Law's "Opinions on Handling Certain Specific Issues of Voluntary Surrender and Meritorious Service" (Fafa {2010} No. 60), the 1.'s specific determination of "automatic surrender": "The Supreme People's Court's Opinions on Handling Certain Issues of Specific Application of Law" Article 1 Item (I) stipulates seven situations that should be regarded as automatic surrender, which reflects the automatic and voluntary nature of criminal suspects to surrender. According to the provisions of Item (I) of Article 1 of the Interpretation, a criminal suspect who has one of the following circumstances shall also be regarded as voluntarily surrendered: knowing that another person has reported the case and waiting at the scene, and there is no behavior of resisting arrest during arrest, and confesses the facts of the crime;

After receiving the report from the victim on March 11, 2022, the investigators called A on November 10 to go to the law enforcement case handling center for subpoena investigation on November 11, with a difference of 8 months. There is every reason to believe that A already knew the report of the victim and did not escape without being able to escape. And after receiving the summons call, he went to the law enforcement case handling center for investigation. His behavior should be determined as automatic surrender. When accepting the summons for investigation, A also truthfully stated the facts of the case, and it should be determined that A surrendered.

The "Received Article" (Volume I p12) shows that Party A has returned the 120000 yuan involved in the case to victim B by means of transfer on December 30, 2022 after the crime was committed. Based on the statement of B's inquiry record on November 16, 2022 (Volume II p54)(I want A to return the money to me. I think it is not easy for A to be an orphan and widowed mother, so I will not pursue A's relevant legal responsibility), it can be seen that A has obtained the understanding of victim B after returning its 120000 yuan and has promised not to pursue its legal responsibility. According to the provisions of the Supreme People's Court's "Several Opinions on Implementing the Criminal Policy of Justice with Leniency", if the defendant actively compensates the victim after the case, and pleads guilty or repents, it can be considered as a discretionary sentencing circumstance in accordance with the law. According to this, A actively returns the victim's money and obtains understanding and A has no social harm, and should not prosecute A.

According to A's self-statement and file materials, it can be seen that the cause of the case was the construction of a certain project, which caused noise and environmental pollution, damage to the house, and unpaid balance of part of the land occupation, which seriously affected the normal life of suspect A. In order to solve the problem, suspect A made many telephone complaints, but there was no result, so he had to take the means of blocking the road to reflect the appeal. It can be seen that the fault of the victim B in this case is the cause of the case, and it is his fault that led to the result of the suspect blocking the road. According to B's own written certificate (volume I p139) and the payment is voluntary by B.

Suspect A, as a rural woman with primary school culture, lacks legal knowledge and has indifferent legal consciousness. However, according to the certificate of no criminal record (Volume 1 p13), it can be seen that she has always abided by the law. This act is a first-time offender and has not caused serious social harm. Please forgive her as appropriate.

The suspect is physically suffering from a variety of illnesses. In the second volume of the testimony can be learned that a suffering from depression and diabetes. Volume II, page 66, confirms that some compensation has not been paid.

The cause of depression is not shown in the case file, but according to life experience, we can see that people with depression generally do not sleep well, not to mention that 20 meters away from the house is a noisy engineering transportation road, noise and dust pollution will lead to their sleep difficulties and aggravate their illness. This should also be one of the main reasons why he did not live in the mountain house. In November 2021, his wife died of illness, which aggravated his condition. Under the attack of many parties, Jia's paranoia was caused, so that he thought that the orphan and widow were angry in the village, so he had the act of blocking the road and asking for compensation.

The dispute between Party A and Party B over the payment of 120000 yuan should be a civil dispute, and the act of asking for it after Party B voluntarily pays Party A does not belong to the scope of criminal filing. If his behavior is recognized as a crime, judging from the facts involved in the case and the constituent elements of the crime, the behavior of the criminal suspect A in this case has a cause, and it is not intentional, and the circumstances of the crime are significantly minor, and the harm is not great. Conviction and punishment for the crime of provoking trouble. At the same time, there are statutory and discretionary sentencing circumstances such as surrender, confession and punishment (Volume 2, p. 27), active refund and compensation, and obtaining the victim's understanding, which meet the conditions for non-prosecution, and request the procuratorate to make a non-prosecution decision in accordance with the law.