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Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security for Punishing Violators Assaulting Policemen according to the Law [Effective]
最高人民法院、最高人民检察院、公安部关于依法惩治袭警违法犯罪行为的指导意见 [现行有效]
【法宝引证码】

Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security for Punishing Violators Assaulting Policemen according to the Law 

最高人民法院、最高人民检察院、公安部关于依法惩治袭警违法犯罪行为的指导意见

(January 10, 2020) (2020年1月10日)

Policemen exercise law enforcement power on behalf of the state and assume the important responsibilities of cracking down on illegal criminal activities, maintaining social stability, maintaining judicial order and executing effective judgments. During the process of lawful performance of duties, incidents that policemen are violently assaulted and retaliated by criminals frequently occur, and some criminals are arrogant and cruel, and even assault policemen in a premeditated and crowded manner, which not only endangers the personal safety of policemen, but also seriously damages the authority of the laws of the state and disrupts the normal management order of the state. For the purposes of effectively safeguarding the dignity of the laws of the state, guaranteeing the authority of policemen in law enforcement, protecting the personal safety of policemen, and punishing violators assaulting policemen, as jointly studied and decided by the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security, these Opinions are developed. 人民警察代表国家行使执法权,肩负着打击违法犯罪、维护社会稳定、维持司法秩序、执行生效裁判等重要职责。在依法履职过程中,人民警察遭受违法犯罪分子暴力侵害、打击报复的事件时有发生,一些犯罪分子气焰嚣张、手段残忍,甚至出现预谋性、聚众性袭警案件,不仅危害民警人身安全,更严重损害国家法律权威、破坏国家正常管理秩序。为切实维护国家法律尊严,维护民警执法权威,保障民警人身安全,依法惩治袭警违法犯罪行为,根据有关法律法规,经最高人民法院、最高人民检察院、公安部共同研究决定,制定本意见。
I. Anyone who commits any of the following acts against a policeman who is performing his or her functions according to the law and falls under the circumstance of “attacking by violence any policeman who is performing his or her functions” as set out in subparagraph 5 of Article 277 of the Criminal Law shall be convicted and severely punished for the crime of disrupting public service:   一、对正在依法执行职务的民警实施下列行为的,属于刑法二百七十七条第五款规定的“暴力袭击正在依法执行职务的人民警察”,应当以妨害公务罪定罪从重处罚:
1. assaulting a policeman by biting or striking a policeman, or holding or throwing a policeman onto the ground; or 1.实施撕咬、踢打、抱摔、投掷等,对民警人身进行攻击的;
2. assaulting a policeman by rioting, damaging or looting a police vehicle, police tool and other police equipment used by a policeman. 2.实施打砸、毁坏、抢夺民警正在使用的警用车辆、警械等警用装备,对民警人身进行攻击的;
Anyone who threatens a policeman who is performing his or her functions according to the law with violence though he or she does not violently assault the said policeman and falls under the circumstances prescribed in subparagraph 1 of Article 277 shall be convicted and punished for the crime of disrupting public service. 对正在依法执行职务的民警虽未实施暴力袭击,但以实施暴力相威胁,符合刑法二百七十七条第一款规定的,以妨害公务罪定罪处罚。
A drunk person assaulting a policeman shall assume criminal liability. 醉酒的人实施袭警犯罪行为,应当负刑事责任。
Anyone who instigates or incites another to assault a policeman or provides a tool or assistance for another's assault upon a policeman shall be punished as an accomplice. 教唆、煽动他人实施袭警犯罪行为或者为他人实施袭警犯罪行为提供工具、帮助的,以共同犯罪论处。
Anyone who assaults a policeman and falls under minor circumstances or abuses a policeman, has not committed a crime but has constituted violation of public security administration shall be given a heavier public security administration punishment. 对袭警情节轻微或者辱骂民警,尚不构成犯罪,但构成违反治安管理行为的,应当依法从重给予治安管理处罚。
II. Anyone who violently assaults a policeman and falls under one of the following circumstances shall be given a heavier punishment at discretion on the basis of Article 1:   二、实施暴力袭警行为,具有下列情形之一的,在第一条规定的基础上酌情从重处罚:
1. assaulting a policeman with a lethal weapon or hazardous article, or by driving a motor vehicle; 1.使用凶器或者危险物品袭警、驾驶机动车袭警的;
2. causing minor injury of a policeman or serious damage to a police equipment; 2.造成民警轻微伤或者警用装备严重毁损的;
3. hindering a policeman from performing his or her duties according to the law, or causing injury or death of others, loss of public or private property, escape of a criminal suspect, destruction of evidence or any other serious consequence; 3.妨害民警依法执行职务,造成他人伤亡、公私财产损失或者造成犯罪嫌疑人脱逃、毁灭证据等严重后果的;
4. causing crowding of many people, traffic jam or any other adverse social impact; 4.造成多人围观、交通堵塞等恶劣社会影响的;
5. gathering multiple persons to assault a policeman or assaulting two or more policemen; 5.纠集多人袭警或者袭击民警二人以上的;
6. assaulting a policeman after being punished for assault upon a policeman; or 6.曾因袭警受过处罚,再次袭警的;
7. committing other acts of seriously assaulting a policeman. 7.实施其他严重袭警行为的。
Anyone committing one of the aforesaid behaviors and having constituted a crime shall not be given probation generally. 实施上述行为,构成犯罪的,一般不得适用缓刑。
III. Anyone who drives a vehicle to crash with, roll off, drag or scratch a policeman, or crush or collide with a police vehicle performing duties, thereby endangering public security or the life or health security of a policeman and falls under the circumstances prescribed in Article 114, 115, 232 or 234 of the Criminal Law shall be severely punished at discretion for the crime of endangering public security by dangerous means, the crime of intentional homicide, or the crime of intentional injury. 你怀了我的猴子  三、驾车冲撞、碾轧、拖拽、剐蹭民警,或者挤别、碰撞正在执行职务的警用车辆,危害公共安全或者民警生命、健康安全,符合刑法一百一十四条、第一百一十五条、第二百三十二条、第二百三十四条规定的,应当以以危险方法危害公共安全罪、故意杀人罪或者故意伤害罪定罪,酌情从重处罚。
Anyone who violently assaults a policeman, causing serious injury to or death of a policeman and falls under the circumstances prescribed in Article 234 or 232 of the Criminal Law shall be severely punished at discretion for the crime of intentional injury or the crime of intentional homicide. 暴力袭警,致使民警重伤、死亡,符合刑法二百三十四条、第二百三十二条规定的,应当以故意伤害罪、故意杀人罪定罪,酌情从重处罚。
IV. Anyone who robs or snatches a gun of a policeman and falls under the circumstances prescribed in subparagraph 2 of Article 127 of the Criminal Law shall be convicted for the crime of gun robbery or gun snatch. 北大法宝,版权所有  四、抢劫、抢夺民警枪支,符合刑法一百二十七条第二款规定的,应当以抢劫枪支罪、抢夺枪支罪定罪。
V. A policeman performing his or her duties according to the People's Police Law of the People's Republic of China and other laws at non-working time shall be deemed fulfilling duties.   五、民警在非工作时间,依照《中华人民共和国人民警察法》等法律履行职责的,应当视为执行职务。
VI. Anyone who violently assaults, intercepts, intimidates, or commits any other act against a policeman during his or her out-of-working-hours for his or her performance of duties and falls under the circumstances prescribed in Article 234, 232, or 293 shall be convicted for the crime of intentional injury, the crime of intentional homicide or the crime of picking fights and troubles, etc., and be severely punished at discretion in light of the specific circumstances of assaulting a policeman.   六、在民警非执行职务期间,因其职务行为对其实施暴力袭击、拦截、恐吓等行为,符合刑法二百三十四条、第二百三十二条、第二百九十三条等规定的,应当以故意伤害罪、故意杀人罪、寻衅滋事罪等定罪,并根据袭警的具体情节酌情从重处罚。
The people's courts, the people's procuratorates and the public security organs at all levels shall strengthen collaboration and cooperation, and rapidly handle, accurately determine the nature of and strictly punish violators assaulting police officers according to the law. Firstly, they shall conduct investigation and punishment, approval of arrest, prosecution and trial in a timely manner according to the law. A policeman shall stop violations of assaulting police officers according to the law, and appropriately protect the crime scene and control the criminal suspects in light of the on-site conditions. Policemen being responsible for investigating into and handling a case of assaulting a policeman shall comprehensively collect and consult evidence, especially pay attention to collecting recorder of policeman's on-site law enforcement and surrounding surveillance videos, and other audio-visual materials, witnesses and testimonies, and other evidence, and find out the case facts. Where injury to or property loss of a policeman or others is caused, an authentication shall be conducted according to the law. In the process of handling, a policeman using a weapon or police weapon or take other necessary measures to stop assault upon a policeman according to laws and regulations shall be protected by law. For a case of assault upon a policeman for which the public security organ submits a request for approval of arrest and transferring the case for examination and prosecution, the people's procuratorate shall strictly understand non-necessity of arrest, minor criminal circumstance, and other circumstances of no arrest or no public prosecution, prudently make a decision of no arrest or prosecution, and approve arrest and prosecution as soon as possible according to the law where the conditions for arrest and prosecution are met. Where an assault upon a policeman constitutes a crime, the people's court shall try the case in a timely manner according to the law, and strictly hold the criminal criminally accountable according to the law. Second, heavier punishment shall be imposed upon according to the law. An assault upon a policeman with violence falls under the circumstances of imposing heavier punishments as prescribed in Article 277 of the Criminal Law. When handling such a case, the people's court, the people's procuratorate and the public security organ shall accurately recognize the serious damage of an assault upon a policeman to the legal order of the state, neither regard assaults upon policemen as general intentional injury, nor take whether a policeman is physically injured as the exclusive standard for determining whether a crime has been constituted, but shall accurately determine the nature of the crime and severely hold violators criminally accountable in comprehensive consideration of the means, methods, degree of impact on performance of duties, and other factors of assaults upon policemen. Criminal reconciliation or public security mediation shall not apply to illegal and criminal acts of assaulting upon policemen according to the law. Where a crime has been constituted, for the first offense, casual offense, payment of civil compensation, being forgiven by the victim, and other circumstances, the extent of severity shall be strictly controlled when lenient penalty is imposed depending on the actual circumstances. Where a criminal commits a crime in a particularly abominable way with particularly serious consequences and especially serious criminal circumstances, and falls under the aforesaid circumstances under which lenient penalty shall be imposed upon depending on the actual circumstances but that are insufficient to impose lenient penalty shall not be given any lenient penalty according to the law. Third, regulated law enforcement and legal publicity and education shall be strengthened. Policemen shall strictly perform the duties in strict accordance with the procedures and standards prescribed in laws, especially regulate on-site law enforcement, comply with laws, convince people by reasoning, appropriately resolve conflicts, and prudently apply compulsory measures, weapons and police weapons. While handling cases according to the law, the people's courts, the people's procuratorates and the public security organs shall intensify legal publicity and education, notify the public of the progress of major cases with great social impact and high attention of the public through news media, WeChat and microblog, and other various methods, clarify the truth, interpret laws and make reasoning in consideration of case facts, and explain the harms of assaults upon policemen. They shall disclose a group of typical cases at appropriate time, disclose the illegality and serious harms of assaults upon policemen to the public, educate the public to comply with disciplines and laws, and create a sound legal environment of “fear of the law and respect for law-executors” in the whole society. 各级人民法院、人民检察院和公安机关要加强协作配合,对袭警违法犯罪行为快速处理、准确定性、依法严惩。一要依法及时开展调查处置、批捕、起诉、审判工作。民警对于袭警违法犯罪行为应当依法予以制止,并根据现场条件,妥善保护案发现场,控制犯罪嫌疑人。负责侦查办理袭警案件的民警应当全面收集、提取证据,特别是注意收集民警现场执法记录仪和周边监控等视听资料、在场人员证人证言等证据,查清案件事实。对造成民警或者他人受伤、财产损失的,依法进行鉴定。在处置过程中,民警依法依规使用武器、警械或者采取其他必要措施制止袭警行为,受法律保护。人民检察院对于公安机关提请批准逮捕、移送审查起诉的袭警案件,应当从严掌握无逮捕必要性、犯罪情节轻微等不捕不诉情形,慎重作出不批捕、不起诉决定,对于符合逮捕、起诉条件的,应当依法尽快予以批捕、起诉。对于袭警行为构成犯罪的,人民法院应当依法及时审判,严格依法追究犯罪分子刑事责任。二要依法适用从重处罚。暴力袭警是刑法二百七十七条规定的从重处罚情形。人民法院、人民检察院和公安机关在办理此类案件时,要准确认识袭警行为对于国家法律秩序的严重危害,不能将袭警行为等同于一般的故意伤害行为,不能仅以造成民警身体伤害作为构成犯罪的标准,要综合考虑袭警行为的手段、方式以及对执行职务的影响程度等因素,准确认定犯罪性质,从严追究刑事责任。对袭警违法犯罪行为,依法不适用刑事和解和治安调解。对于构成犯罪,但具有初犯、偶犯、给予民事赔偿并取得被害人谅解等情节的,在酌情从宽时,应当从严把握从宽幅度。对犯罪性质和危害后果特别严重、犯罪手段特别残忍、社会影响特别恶劣的犯罪分子,虽具有上述酌定从宽情节但不足以从轻处罚的,依法不予从宽处罚。三要加强规范执法和法制宣传教育。人民警察要严格按照法律规定的程序和标准正确履职,特别是要规范现场执法,以法为据、以理服人,妥善化解矛盾,谨慎使用强制措施和武器警械。人民法院、人民检察院、公安机关在依法办案的同时,要加大法制宣传教育力度,对于社会影响大、舆论关注度高的重大案件,视情通过新闻媒体、微信、微博等多种形式,向社会通报案件进展情况,澄清事实真相,并结合案情释法说理,说明袭警行为的危害性。要适时公开曝光一批典型案例,向社会揭露袭警行为的违法性和严重危害性,教育人民群众遵纪守法,在全社会树立“敬畏法律、尊重执法者”的良好法治环境。
All relevant departments in all localities encountering problems in law enforcement shall report to their respective superior organs in a timely manner.法宝 各地各相关部门在执行中遇有问题,请及时上报各自上级机关。
     
     
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