Study On Particularity Of Military Criminal Law: An Analysis From Value And Category Perspectives

For the development of human society in a certain historical period, the war is a kind of objective existence which is hard to avoid. A mature country and nation should not be negative to avoid the war, but actively to deal with the war. Military criminal law is the rational product of the state to manage the war that has the special position and role in the country's legal system. On one hand, Military Criminal law has attribute of military law which is the the security law of the other military law,on the other hand , it also has the attribute of the criminal law which is special criminal law. From the domain look of punishment law, the primary task of the study on military criminal law is to reveal the particularity in the criminal law, which is the premise of the military criminal law and all the construction foundation of the theory of military criminal law. The criminal law shall be survey from the two level of the particularity of the military concepts and systems. From the perspectives of conception, military criminal law is special, is different from that unique value idea of common criminal law; from the perspectives of the system, the particularity of the military criminal law exists some basic categories of specific connotation. In this article, the two analysis method of value and the category interpreted on the particularity of the military criminal law. This article tends to analysis and interpret the particularity of the military criminal law in legal.The first part: introduction. Because our country takes the mode which is combined with military and ordinary criminal law on legislation., military criminal law has no clear legislative definition. This results in the fuzzy boundaries between ordinary criminal law and it. The location of the criminal law for the military which is the premise to understand the military particularity of the criminal law, is also the focus of the academic disputes. This article believed that, the location of the criminal law on the military should be based on the traditional legal culture and the existing system design in our country, and be grasped the vision of cross from the criminal law and military method. The particularity of the military criminal law embodies the idea of the harsh, the uniqueness of in principleand the system of the relative independence. Military criminal law does not seek the austerity and light slow change, but to pursue military strictly principle, set the criminal law system with military logic system. To crack the particularity of the military criminal law needs from the two angles of value and category. The value and category of the military criminal law is the basic topic of the particularity of military criminal law.The second part: establishment of the value of military criminal law. The value of the criminal law military performs the relationship between the military criminal law and the people, embodies the military criminal law on the significance of the people, at the root on the needs of the military criminal law. Compared with ordinary criminal law, that establish the value of military criminal law, not only should reflect the criminal law, but also should reflect the military needs. These two kinds of value orientation is often conflicted. It needs military criminal law select and balance from justice and utilitarian, freedom and order, rights protection and power protection. Rule of criminal law and military coexist in the same political environment. The military is strong backing of criminal law, safeguard implement of the national criminal law with powerful way, maintainment of the authority and the ideal of the criminal law, promote the realization of the criminal law. At the same time, the criminal law provides the ideal mode for the military management, provides strong system guarantee to ascense fighting. On such a basis, to realize the balance of the value of military criminal law to adhere to a revision of the criminal law values as the standard, with military social relationship as the base, and fully respect the principles of natural law firm. This article believed that, the value of the criminal law is unfavorable choose military in every value in the elements or familiar black-and-white ripe light or priority after a bad way, but should be based on military criminal law that being, with intermediary to express concept.The third part: the specification of the value of the military criminal law. Law is the embodiment of justice, justice contains all the pursuits of legal value. But there is contradiction between broadness of justice and concreteness of military criminal law. Military justice exists in the military field, nd reflects the relationship between man and military and between the relationships in military activity. It's also materialized by the justice idea and the justice theory. Military justice is a kind of metaphysical philosophy abstract and theoretical speculative. It's also the judgment of rationality, legitimacy and sollen of military existence and development, the justice evaluation on the justice contained in military legal system and real military legal system, is military activities of the main body to have the right behavior choice. Military justice is the core value of the military criminal law, and military justice is often abstract, needs to use specific standards to express. National defense and the military order and humanitarian is the direct interpretation of military justice, constitutes the basic values of military criminal law.The fourth part: the basic categories of military criminal law. Value expresses the spirit, often "may think but not feeling", which presents in the category. If the value analysis is analytical of the particularity of the military criminal law and the analytical of particularity, the analysis of the category is the actual interpretation of particularity.The basic category of military criminal law is the support of theory system of military criminal law and is most can reflect the characteristics of the core concepts of the military criminal law. Military crime, military criminal responsibility and military penalty, each of them has a special concept on the connotation and border. The connection and self-sustaining of the three constitutes the basic category of military criminal law. In this paper, the three basic categories of reading, from concept to the source to, reveals the essence and characteristics, clarifies the difference with other concept, especially clears the difference between military crime and ordinary crime, military criminal responsibility and ordinary criminal responsibility, military penalty punishment and ordinary penalty punishment, and clear the particularity of military crime, military criminal responsibility and military penalty.The fifth part: the conclusion. From the analysis of the value and category, which can be seen that military criminal law is different from ordinary criminal law. Military order is based on battlefield structure which controls "wins and losses Curtis". The othe one controls "equal free" public order. Under background of market structure. The particularity of the military criminal law is obvious, and what does this special come from? This paper argues that this is a kind of response on the fact of the war from criminal law; is a kind of reflection of a special protection on the country's defense and military interests; is a realization of criminal law of military overall and military strictly socialist. The particularity of the military criminal law should be respected, and the effective way of the respect is to separate legislation, to make an independent military penal code.