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聚众斗殴罪虽然存在诸多立法不足,但不能成为废除的理由。立法应当对聚众斗殴罪转化犯的转化标准、转化范围作出明确规定。聚众斗殴中出现实行过限的,聚众斗殴者应对实行过限者的过限行为承担结果加重的刑事责任,因此,立法对聚众斗殴罪应增设结果加重条款。聚众斗殴罪不能涵盖突发性斗殴、因民事纠纷引起的斗殴等情形,这是立法上的空白,建议立法增设一般斗殴罪。
Although there are many legislative problems in the crime of affray, it can not be a ground for abolition. Legislation should be on the crime of aggression, crime conversion criteria, the scope of conversion to make it clear. In the affray, there is a limit on the number of betrotheds, and those who mobilize and fight should deal with the criminal liability that the overlimit behavior of those who have imposed the limit should be aggravated by the result. Therefore, there should be more provisions to aggravate the crime of affray. The crime of affray can not cover the sudden brawl, the brawl caused by civil disputes, etc. This is a legislative blank. It is proposed that the legislation should add a general crime of assault.