On the principles for the Chinese public security police using firearms for offi

Abstract. Chinese police of public security organizations should follow the following principles in the use of the guns for official affairs: first, the principle of protecting the human rights; second, the principle of real need; third, the principle of limitations; fourth, the principle of abiding by the law; fifth, the principle of proportionality.

Keyword: Official affairs; using guns; principle

1. The legal authorization and regulations of the Chinese police to use guns for official affairs

At present, the main legal norms for the Chinese police to use weapons are "The people's Republic of China People's police law", "Gun control law of the People's Republic of China" and "Ordinance for the People's Police in the People's Republic of China to use the police equipment and weapons", "Regulations for the People's Police to use the police equipment and weapons". The people's police should take it as a principle to stop the illegal and criminal acts, and to reduce the casualties and the property loss while using the weapons. According to the "Regulations for the People's Police to use the police equipment and weapons", the people's police ascertains the following violent crimes, and if the warning is invalid, they can use weapons. The first is the serious harm or intentional harm to the public safety, such as setting fire, explosion, flooding, hijacked aircraft, ships, and trains, motor vehicle robbery, robbery of the guns, explosives, toxic and other dangerous articles, and the use of firearms, explosives, toxic and other dangerous articles to conduct the crimes, or to use guns, explosives, toxic and other dangerous articles to threaten the crimes, destroy the military facilities, communications, transportation, energy, insurance and other important facilities etc. The second is the implementation of murder, hostage-taking, attack, destroy, gang robbery, armed robbery, the gang fights, riots (can't be suppressed by other methods) and other acts of violence. The third category is against the law, inciting violence against the police, and endangering the life and safety of the police. The fourth category is freeing detainees or prisoners, causing a riot, violent riot, murder, arson, escapes, and the implementation of water, explosion, murder, robbery and other serious crimes of violence behaviors after resisting arrest, and escape, and the criminals carry guns, explosives, toxic and other dangerous articles escape and resist arrest. As is prescribed in the first paragraph of the ninth article in "Regulations for the People's Police to use the police equipment and weapons", the people's police ascertains the following violent crimes, and if the warning is invalid, they can use weapons. Here, the warning includes the verbal warning and the warning shots. But at the same time, as is prescribed in the ninth provisions of the second paragraph in the act, the people's police can use the weapons in accordance with the provisions of the preceding, and if they are not in time to alert or warn, and it may lead to more serious consequences, they can directly use the weapons. Visibly, in extremely critical condition, the "fired warning shots" is not a must.

For the use of the guns by the people's police for official affairs, as is prescribed in the thirtieth article of the "Procedures for the people's police on the scene to stop the illegal operation", the police can use weapons in one of the situations in the ninth provision of "Regulations for the People's Police to use the police equipment and weapons", if the warning is invalid. If they are not in time to alert or warn, and it may lead to more serious consequences, they can directly use the weapons. In the thirty-fourth article, with the use of weapons, but if there are no weapons in the field or the use of the weapons can cause more serious and harmful consequences, the police can use other necessary coercive means to bring under control the criminals.

In order to prevent the possible misuse of the police weapons to violate the civil rights, as is prescribed in the tenth article of the "Regulations for the People's Police to use the police equipment and weapons", "the people's police under any of the following circumstances cannot use weapons: (1) if they find that the criminals are the pregnant women or the children, except those using the firearms, explosives, toxic and other dangerous articles in the violent crimes. (2) If the criminals are in the mass gathering places or the place storing large quantities of flammable, explosives, toxic, radioactive and other dangerous goods, but if they don’t use weapons to stop, it will cause more serious harmful consequences. In order to prevent the possible misuse of the police weapons to violate the civil rights, as is prescribed in the tenth article of the "Regulations for the People's Police to use the police equipment and weapons", "the people's police under any of the following circumstances cannot use weapons: (1) if the criminals stop the implementation of crimes, subject to the command of the people's police. (2) The criminals lose the abilities to continue the implementation of the criminals". As is prescribed in the twenty-second article of the "Regulations for the People's Police to use the police equipment and weapons", the people's policemen of the public security organs should use the guns strictly in accordance with the "Law of the people's police" and "Police regulations", but in any of the following circumstances, we shall not use guns: First, in dealing with the general public order cases, mass petitions and mediation of civil disputes; second, in the crowded downtown lots, markets, public entertainment and flammable and explosive places; third, on patrol and search suspicious personnel but has not met with violent resistance and violence; fourth, engaged in the defense work of the large-scale rally; fifth, in the guidance of road traffic and investigating the traffic violations; sixth, having personal disputes with others; seventh, the use of guns may cause serious consequences.

2. The legal remedies and responsibility investigation of the illegal use of firearms

In China, the legal regulations of the police using the guns expressly prohibit the police from abusing the guns and other weapons, and there are the provisions of the administrative responsibilities of the direct leaders for the violation of the police. For example, in the provisions of the fourteenth article of "Regulations for the use of the police instruments and weapons", if the people's police illegally use the police instruments and weapons, and cause casualties and property losses, or constitute a crime, they shall be investigated for criminal responsibilities according to the law. If no crime is constituted, administrative sanctions shall be imposed according to the laws. For those who suffer the casualties or property losses, the people's police authorities should compensate in accordance with the relevant provisions of the "PRC State Compensation Law". As in the forty-ninth article in the provisions of "People's police law", the people's police shall be investigated for criminal responsibility according to the laws in the violation of the provisions of the use of the police instruments and weapons, and constitute a crime. If no crime is constituted, he shall be given an administrative sanction. As is stipulated in "Interpretation of the related issues of the public security organs to implement the 'people's Police Law'" by the Ministry of Public Security, the police in violation of the provisions of the use of weapons can be stopped of the execution of duties and even be confined. As is stipulated in the eleventh item of the first paragraph in the sixth article of "The provisions of the accountability for the law enforcement fault of the people's police of the public security organs", in performing duties of the people's police in the public security organs, in violation of the law, those who use the police equipment and weapons, vile or causing serious consequences, shall be investigated of the liability for the law enforcement fault. As is stipulated in the fifth item of the "Interim Provisions for the public security organs to investigate the responsibility of Leadership", "For the people's police who seriously violate the laws, in any of the following circumstances, we shall investigate the responsibility of the direct leader and the leadership in charge: abuse of firearms, weapons, causing a person's death......". As is clearly stipulated in the "Regulations of the assessment and evaluation of law enforcement quality", for those who abuse the police weapons and cause death, the annual appraisal result of the public security organ should be identified as substandard.

3. The principles for the public security police to

use the firearms

The use of firearms is the most extreme and harsh coercive means in all police authorities, to force the person to obey the command of the police with the detriment of the health right and even the life as the price, which is a "fatal" force. If used improperly, i.e. not function or function excessively, it will cause adverse consequences of violations of the rights of the citizens, and even the serious consequences of causing the civil casualties. Therefore, the law has made positive provisions that are very cautious.

In the police crisis, the urgency of the harm requires that the public security law enforcement shall be more efficient than the normal police. On the one hand, this efficiency depends on the simple and quick enforcement process, and on the other hand, it depends on the intense violence of the public security law enforcement. In the face of the crisis that may cause the disasters, when necessary, the public security organs and the people's police must use the lethal weapons for the resolutely disposal. The use of guns under the crisis state must also be restricted by the general restrictions of the law principles. These principles are as follows:

3-1. The principle of protecting the human rights

The use of guns is targeted at the citizen's right of health and life, and the right of health and life is the most basic human rights, and of course, it should first be guaranteed by the public security organs and all the policing. Therefore, we should really take the constitutional principle of respecting and safeguarding the human rights in the implementation of the use of guns under the crisis state, establish the enforcement concept of guaranteeing the citizens' life safety as much as possible, and strictly stipulate the scope and procedures of the police using the firearms in the specific legislations.

3-2. The principle of real need

The use of guns must adhere to the principle that it is really necessary, that is, according to the situational judgment in the law enforcement, if we actually must use the strong violent means to ensure the enforcement of the law, we can use the corresponding guns; otherwise it will seriously impede the law enforcement or we cannot enforce the law cases. Generally speaking, we should judge according to the risk degrees of the illegal crimes and the application objects and the environment. The more serious the violent crimes are, the more we should or could use guns.

3-3. The principle of limitations

The end justifies the means. In the state of the crisis, the police act is to resolve the crisis. Once we can use the low coercive means to solve the problem, we should not use the higher coercive means. For example, if we are able to use the police tools, we should not use guns. The use of guns to deter the crime is to defuse the crisis as the goal, but not to destroy the subject of the crime as the purpose. Under some special circumstances, to eradicate the crime subject is an ultimate result, and we must set the necessary limits.

3-4. The principle of abiding by the laws

The basic meaning of the principle of abiding by the laws is that all the power operations should be restrained by the legal norms and the legal principles. The principle of abiding by the laws requires that the public security, legal authority, the law priority and the law reservation as well as the law enforcement power should abide by the laws. The priority of the laws refers to all the law enforcement activities are subject to the existing laws, and the public security organs can not take the legal measures that conflict with the law enforcement. Under the crisis state, in order to effectively organize and use all kinds of resources of the country, to prevent the harm from expanding, and to eliminate the danger, the public security organs must take the measures that may conflict with the general laws, but they cannot violate the general principles and the basic purposes of the laws.

3-5. The principle of proportion

The public security organs under the crisis state can take a wide range of measures, but they must fully weigh the public interests and the personal interests, to take the measures causing the smallest restrictions or damage to the civil rights, and the measures taken should suit the damage and the interests. Specifically, first of all, it is required that the use of weapons must be appropriate, that is, to reach the purpose of eliminating the emergency risks. Secondly, the use of guns must be necessary at all, that is, in all the measures that can achieve the purpose, the choice is what has the least violations of the rights of the citizens -- including the human rights of the people violating and violated. Finally, the use of guns must also be not excessive, namely, the use of guns will not give citizens the excessive damage, that is, its desired purposes and the protected rights and interests should be greater than the damage caused to the rights of citizens.

4. Acknowledgements

This paper is the periodical achievement of the major research project of humanities and social sciences in Guangdong in 2013: "Prevention and disposal of the emergence of medical dispute", hosted by Ma Jianwen.

References

[1] Data of compilation of Guangdong Provincial Public Security Department in 2012

[2] Shi Junzheng, Zhang Senfeng. Question of police criminal compensation without faults of the illegal use of police weapons, Journal of Fujian College, 2006, 5

[3] Li Na, Zhang Chu. Legal thinking about the case that the police was killed, but did not dare to shoot off, Journal of Beijing People's Police College, 2008, 1