Since the addition of the crime of assaulting police officers in the “Amendment (XI) to the Criminal Law”, the application of this crime once showed a trend of generalization. In practice, there have been many cases of including minor physical conflicts, passive resistance, and even verbal abuse into the scope of the crime of assaulting police officers, blurring the boundary between general police-civilian conflicts and serious assaults on police officers. The crime of assaulting police officers has gradually tilted towards protecting official activities and maintaining law enforcement authority. This has, to a certain extent, ignored the protection of personal freedom and civil rights, and a trend of “pocketing” has emerged.
On January 15, 2025, the Supreme People’s Court and the Supreme People’s Procuratorate issued the “Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Assaulting Police Officers” (hereinafter referred to as the “Interpretation”), which came into effect on January 18. The “Interpretation” overall starts from a position of restricting application to reverse the generalization trend of the crime of assaulting police officers, and significant changes have taken place in the determination of the crime of assaulting police officers.
01 How does the new “Interpretation” define “violent assault”?
The act of execution is the core concept of the constituent elements. How to understand the “violent assault” of the crime of assaulting police officers is the key to determining the threshold for this crime. Let’s give a few examples:
- Scenario 1: During police enforcement, Zhang San assaults a police officer, causing minor injuries to the police officer.
- Scenario 2: Zhang San smashes a police car (with police officers inside), causing damage to the police car, but no personal injury.
- Scenario 3: Zhang San snatches the police equipment held by the police officer and engages in a struggle with the police officer.
“Violence” in the “Criminal Law” can be roughly divided into four types:
- The first type is the broadest violence, including all violence against persons and violence against objects;
- The second type is the broad violence, including violence against persons and violence against objects (that affect the human body);
- The third type is the narrow violence, including only violence against persons;
- The fourth type is the narrowest violence, referring only to violence against persons that is sufficient to suppress the opponent’s resistance.
The “violence” of the crime of assaulting police officers should first exclude the broadest first type of violence and the narrowest fourth type of violence, but there is a large controversy between the second and third types of violence. The difference between the two is whether the implementation of violence against objects, but may indirectly affect the police officer’s body, meets the “violent assault” of the crime of assaulting police officers?
Before the release of the “Interpretation”, the practice usually referred to the provisions of the “Guiding Opinions on Punishing Illegal and Criminal Acts of Assaulting Police Officers in Accordance with Law” (hereinafter referred to as the “Opinions”) issued by the “Two Highs and One Ministry” in 2020. Article 1 of the “Opinions” adopted the second type of violence, believing that violence against persons and violence against objects that may act on the police officer’s body are both “violent assaults”. According to this position, the above scenarios one, two, and three all belong to “violent assaults”.
However, the “Opinions” did not impose any restrictions on the degree of violence, which led to a large number of minor physical conflicts, overreactions after emotional excitement, and physical reflexes during resistance to arrest being included in the scope of the crime of assaulting police officers in judicial practice. The balance of the crime of assaulting police officers tilted towards maintaining law enforcement authority and protecting police duties, ignoring the protection of citizens’ human rights on the other side of the balance.
To prevent the crime of assaulting police officers from becoming the next “pocket crime”, most views in the legal community advocate that “violent assault” should be limited to narrow violence, referring only to violence directly against the police officer’s person; violence against objects, regardless of whether it may indirectly harm the person, does not constitute the crime of assaulting police officers. In the above scenarios, only scenario one belongs to violence against persons, and scenarios two and three both belong to violence against objects, which do not constitute the crime of assaulting police officers. In addition, some views, on the basis of narrow violence, add the restriction of suddenness, further raising the threshold for conviction.
The “Interpretation” adopts a relatively compromise solution, defining violence as the second type, i.e., broad violence, and at the same time restricting the degree of violence. The first paragraph of Article 1 of the “Interpretation” distinguishes “violent assault” into violence against persons and violence against objects, and restricts the two types of violence by the occurrence of actual harm or specific danger.
Specifically, violence against the person of a police officer requires causing minor injuries or more serious consequences (result crime); violence against police cars, police equipment, etc., needs to reach a degree that endangers personal safety, forming two entry thresholds: “violence against persons + minor injuries or more serious” and “violence against objects + endangering personal safety”.
According to the latest judicial interpretation, assaulting a police officer in scenario one belongs to violence against persons and has caused minor injuries, reaching the entry threshold for the crime of assaulting police officers. However, if the perpetrator commits violence against himself, such as lying in front of a police car to prevent the police car from passing, because the violence only acts on himself, it cannot be determined as the crime of assaulting police officers. The smashing of the police car and the snatching of police equipment in scenarios two and three belong to violence against objects. If it may indirectly cause harm to the police officer’s person and is accompanied by a specific danger that endangers personal safety, it may also constitute the crime of assaulting police officers. If the police car is smashed but no one is inside, or only police equipment is snatched but does not act on the police officer’s person at all, it cannot be convicted and punished as the crime of assaulting police officers. If the perpetrator commits violence against a police dog, kicking the police dog to the ground and causing the police dog to be injured, it is difficult to be determined as the crime of assaulting police officers according to the latest judicial interpretation, but there is still room for the crime of obstructing official duties to be established.
In addition, in response to the long-criticized phenomenon of minor violence leading to conviction, the second paragraph of Article 1 of the “Interpretation” explicitly excludes three types of situations from the scope of the crime of assaulting police officers, including minor physical conflicts, general resistance behavior, and verbal attacks. For example, Zhang San is preparing to commit suicide, and during the process of being rescued by the police, he resists physically and injures the police officer in order to break free, which should not be determined as the crime of assaulting police officers. Another example is that Zhang San goes to the police station for help to no avail, and when he is taken away by the police, he is emotionally agitated and bites the police officer. This behavior is a reflexive reaction after instinctive resistance and emotional agitation, and should not be determined as the crime of assaulting police officers. The above three situations do not constitute the crime of assaulting police officers, which should be a matter of course, and is explicitly stipulated here for the purpose of prompting and emphasizing.
The release of the “Interpretation” has ended some controversies about “violent assault”; but it is also accompanied by another concern.
Regarding violence against persons, the standard of minor injuries is indeed intuitive and simple, which helps to clarify the threshold for conviction and unify the standards of judgment. But whether a single result standard may lead to a “one-size-fits-all” judicial application, and then the tendency to convict based solely on the result, that is, as long as there is an act of violence against the police officer’s person, and at the same time, the consequence of minor injuries occurs, it will be punished as the crime of assaulting police officers.
Regarding violence against objects, how to judge whether it is sufficient to endanger personal safety, for example, the perpetrator snatches the police equipment from the police officer’s hand, under what circumstances the violence against the police equipment may act on the police officer’s person, this may need to be judged comprehensively by combining factors such as the means of behavior, the degree of violence, and the correlation between the police equipment and the person.
Judicial practice is dynamic and vivid, and the above questions cannot be set with a definite and unique answer. It can only be left to judicial practice to flexibly deal with different situations in different cases, with the balance between the protection of the police officer’s person and the protection of citizens’ human rights as the standard.
02 Does law enforcement error affect the establishment of the crime of assaulting police officers?
A type of situation that appears in assault on police officer cases is that the perpetrator believes that the police’s law enforcement is improper or that there are errors in the law enforcement activities and refuses to cooperate, thus causing physical conflict with the police or committing violence against the police. Behind this situation is the question of which comes first, the citizen’s obligation to cooperate or the legitimacy of the law enforcement procedure. In essence, it is the value priority of maintaining law enforcement authority and requiring law enforcement to be legitimate.
If it is believed that the citizen’s obligation to cooperate comes first, and more emphasis is placed on maintaining law enforcement authority, then it will be believed that even if the police’s law enforcement activities are not legitimate, citizens should give priority to cooperating with the police’s law enforcement. Those who refuse to cooperate by violent assault can be punished with the crime of assaulting police officers. If it is believed that the legitimacy of the law enforcement procedure comes first, only when the procedure is proper can citizens be required to cooperate. Then, when citizens resist improper law enforcement activities by violent means, they do not meet the requirement of “performing their duties in accordance with the law” required by the crime of assaulting police officers and do not constitute the crime of assaulting police officers.
The “Interpretation” has given a positive response to this issue, and the overall approach is still to distinguish between positions and compromise positions, but it also reflects the spiritual connotation of emphasizing the value of the legitimacy of law enforcement procedures. According to the provisions of Article 4 of the “Interpretation”, when there are serious errors and major errors in law enforcement activities, the value of the legitimacy of law enforcement procedures takes precedence over the value of maintaining law enforcement authority. If there are serious errors in the police’s law enforcement activities, the perpetrator is generally not treated as a crime; if there are major errors, if the assault is less violent and not very harmful, it can be treated as not a crime.
However, the provisions for pursuing criminal responsibility are retained for the above two situations. When the assault causes serious consequences, regardless of whether there are serious errors or major errors in the law enforcement activities, the perpetrator’s criminal responsibility can still be pursued, and at the same time, lenient treatment should be given in accordance with the law. This is why the “Interpretation” uses the expressions “generally” and “can” instead of “should” when discussing the treatment of not being treated as a crime. When there are general errors and minor errors in law enforcement activities, the value of maintaining law enforcement authority takes precedence over the value of the legitimacy of law enforcement procedures. If there are only general errors or procedural defects in the law enforcement activities, it does not prevent the establishment of the crime of assaulting police officers, and citizens should first fulfill their obligation to cooperate and cannot resist law enforcement by assaulting police officers with violence.
The question is, how to determine the degree of error, and how should “serious errors”, “major errors”, and “general errors” be distinguished? For example, a police officer searches Zhang San’s residence without a warrant, and Zhang San prevents the police officer from entering the house, causing minor injuries to the police officer. The warrantless search is undoubtedly a law enforcement error, but whether it is a serious error, a major error, or a general error, the determination of the degree of error directly determines whether the establishment of the crime of assaulting police officers is prevented.
In addition, what standard should be adopted for the judgment of errors? The “subjective theory” adopts the police officer’s personal subjective judgment, focusing on the maintenance of law enforcement authority; the “objective theory” believes that it needs to be judged objectively in accordance with laws and regulations, emphasizing the value of law enforcement legitimacy; the “compromise theory” judges the legality of law enforcement activities according to the understanding of the general public, and balances between the two values from the perspective of the general public.
03 What should be done when the crime of assaulting police officers and other crimes overlap?
It is worth noting that the crime of assaulting police officers may overlap with crimes such as obstructing official duties, intentional injury, and intentional homicide.
First, the crime of assaulting police officers and the crime of obstructing official duties may have a legal provision overlap, and the crime of assaulting police officers is a special legal provision for the crime of obstructing official duties. When the behavior meets both the crime of assaulting police officers and the crime of obstructing official duties, the crime of assaulting police officers can be punished. If it does not meet the constituent elements of the crime of assaulting police officers but meets the crime of obstructing official duties, the crime of obstructing official duties can be used as a fallback to avoid loopholes in punishment.
The “Interpretation” clarifies two situations in which the crime of obstructing official duties is used as a fallback: first, obstructing the people’s police from performing their duties in accordance with the law, but not implementing violent assault; second, violently assaulting auxiliary police officers, which does not constitute the crime of assaulting police officers, but may constitute the crime of obstructing official duties. It can be seen that although the “Interpretation” excludes auxiliary police officers from the scope of “people’s police”, it does not fail to protect the personal safety and official activities of auxiliary police officers, and auxiliary police officers still belong to the objects of the crime of obstructing official duties.
Second, the crime of assaulting police officers and the crimes of intentional injury and intentional homicide may have an imaginary concurrence. If an act constitutes both the crime of assaulting police officers and the crime of intentional homicide or intentional injury, the heavier crime is punished.
It is particularly worth noting that many assaults on police officers in judicial practice occur after being drunk. Regarding the criminal responsibility of drunk people, the “Interpretation” continues the provisions of the “Opinions”: “Those who commit the crime of assaulting police officers while drunk shall bear criminal responsibility.”
Drunkenness is divided into physiological drunkenness and pathological drunkenness. Physiological drunkenness belongs to the cause-free behavior, that is, the perpetrator originally has the ability to recognize and control, intentionally or negligently causes himself to lose or partially lose the ability to recognize and control, and implements an act that meets the constituent elements in this state, which does not affect the determination of criminal responsibility. For example, after Zhang San gets drunk, he mistakenly regards the police officer as a tiger and attacks him. Even if there is a cognitive error when implementing the attack, but the state of drunkenness is caused by the perpetrator himself in a free state, which belongs to the cause-free behavior, he should still bear criminal responsibility.
The original intention of establishing the crime of assaulting police officers was to protect the personal rights and law enforcement rights of police officers and provide legal protection for police officers to perform their duties and maintain social order. However, if the scope of the crime of assaulting police officers is excessively expanded and criminal law means are easily used to intervene in police-civilian conflicts, it will not only run counter to the expected goals, but may also exacerbate police-civilian conflicts and intensify social contradictions.
The size of the scope of the crime of assaulting police officers is always a choice and balance between the two values of order and freedom. Maintaining law enforcement authority and protecting official activities are certainly important, but they cannot be at the cost of sacrificing personal freedom and civil rights. The premise that law enforcement authority is respected is to restrict law enforcement activities within the framework of the rule of law, follow due process, and comply with procedural justice.
“Punishment is like a double-edged sword”, public power organs should always remain restrained when initiating the power of punishment. The construction of harmonious police-civilian relations does not depend on criminal law means, but on the common respect and belief in the rule of law by both the police and the people.
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