How to judge the crime of inciting national hatred

Article 249th of the Criminal Law provides as follows

The crime of inciting ethnic hatred and ethnic discrimination, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights; If the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

First, the composition of this crime

1, subject of crime

(1) The act of inciting ethnic hatred and ethnic discrimination is incitement. Incitement here refers to the public use of language, words, pictures or other methods to arouse or produce ethnic hatred and discrimination.

(2) The object of the crime of inciting national hatred and discrimination is national hatred and discrimination. The ethnic hatred here refers to the mutual hostility and hatred among ethnic groups based on the differences of ethnic origin, history and customs. Ethnic discrimination refers to the phenomenon that people's social status and legal status are divided according to ethnic composition, and the basic rights of ethnic groups are restricted and violated.

Step 2 feel guilty

The form of responsibility for the crime of inciting ethnic hatred and ethnic discrimination is intentional. Intention here refers to the subjective psychological state that is deliberately implemented knowing that it is an act of inciting ethnic hatred and ethnic discrimination.

3, the amount of crime

The element of the crime of inciting ethnic hatred and ethnic discrimination is the seriousness of the plot. If the circumstances here are serious, it refers to incitement by means of insults and rumors; Repeatedly incited, incorrigible; Cause serious consequences or adverse effects, etc.

Extended data:

The boundary between this crime and the crime of violating the customs and habits of ethnic minorities

Both crimes are crimes that undermine the equality, unity and mutual assistance of all ethnic groups in China, and their subjective characteristics are intentional crimes, but the difference between the two crimes lies in:

1, the main elements are different. The main elements of the crime of infringing on the customs and habits of ethnic minorities are special subjects, that is, only natural persons with the status of state functionaries can constitute this crime, while non-state functionaries or people with the status of state functionaries but not belonging to state functionaries do not constitute this crime.

Of course, if his behavior meets the constitutive requirements of other crimes against citizens' personal rights and democratic rights, he should be convicted and punished for other crimes, while the main constitutive requirements of the crime of inciting national hatred and ethnic discrimination are the general subject, and any natural person with criminal responsibility at the age of 16 may constitute this crime.

2. Object elements are different. The object of the crime of inciting ethnic hatred and ethnic discrimination is mainly the equal rights of all ethnic groups. Sometimes, the object of this crime may be a complex object, that is, the incitement behavior carried out by the perpetrator not only constitutes an infringement on the equal rights of a certain nation, but also may directly infringe on the personal, reputation and personality rights of citizens of relevant nationalities.

The object of the crime of infringing on the customs and habits of ethnic minorities is the right of ethnic minorities in China to maintain or reform their own customs and habits.

3. Different objective requirements. The objective characteristics of the crime of inciting national hatred and discrimination are mainly manifested in the intentional acts of inciting national hatred and discrimination.

Incitement is to confuse people, to encourage, persuade or other means, to urge a certain ethnic group to have hatred, discrimination and other emotions or psychology against other ethnic groups, or to take some hostile actions.

Its harmfulness lies in the intention and behavior that may cause the incited person to have some illegal crime that undermines national unity. There are many ways for the perpetrator to incite, such as writing, posting, distributing slogans, leaflets, printing, distributing illegal publications, etc. Recording and playing audio and video recordings; Give a speech, shout slogans, etc. , thus creating ethnic conflicts and making different ethnic groups become enemies or discriminate against each other.

The objective feature of the crime of violating the customs and habits of ethnic minorities is the illegal violation of the customs and habits of ethnic minorities. The so-called illegal infringement refers to the violation of the Constitution and relevant laws and regulations, the use of violence, coercion and other means to destroy the customs and habits of ethnic minorities, or force ethnic minorities to change their own customs and habits. Judging from judicial practice, violations of laws and regulations are mainly manifested in the following three aspects:

First, forcing ethnic minorities to change their customs and habits, such as forcing ethnic minorities to change their dietary taboos and prohibiting ethnic minority citizens from wearing national costumes;

Secondly, it destroys the customs and activities of ethnic minorities, such as disturbing traditional festivals of ethnic minorities and obstructing weddings and funerals of ethnic minorities;

Third, prevent ethnic minorities from changing their customs and habits.

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