| Both law and army are necessary components in any national machinery. To maintain its control,any dominant would employ law to regulate people's rights and duties,harmonize social relationship and order,and particularly the order of military service. Being a particularly armed group,army is the most power by which law could be carried out in a nation. In other words,the army would be in chaos without law and the law would be of no effect without law. In China,the PLA was founded by the Chinese Communist Party,under whose guidance the government was set and defended. Therefore army plays an important role in our nation. The Communist Party,while depending on the army,has not released any control and management over the army,in which the definite leadership of the Party over the army has been doubtlessly strengthened. Military management by law is an important means of the Party,on the one hand,the Party requires the army to obey the national law,on the other hand,according to the particularity of the army,the Party has made and perfected the military law to set military order and modulate military relationships. The army is thus made in sure that they will win any battle and never betray the Party,and simultaneously supply its important guarantee to the governing position of the Party and military support to the maintenance to national benefits. The historical assignment of the army is therefore to maintain the world peace and to promote the common development. The unique quality of the army determines its particularity and that of the military criminal law as well. There is no independent military criminal law now in China,but many officers,scholars and researchers who have been studying in this domain produce a fundamental framework of the military law system. Among all the laws, the military criminal law serves as a fundamental one. Being the most harsh criminal punishment,the military law would carry out punishment out of criminal way when laws of other domain have lost their effectiveness,so that the military law functions as the final guarantee in maintaining the military order. Therefore the military criminal law is a particular one on the military body. In any nation,law is a relatively complete system,both the military law and criminal law are parts of the national law system, and being the combination of the two, the military criminal law is either a part of the military law or the compensation to the criminal law,it shares and differs much with both the military and criminal law. The military criminal law should meet the military requirement and the needs of criminal law,with its aim to improve the battle ability of the army. Compare to the general criminal law,the military criminal law has its own concepts,effects,forms,values, principles and contents. It is a particular combination of both the general and military laws and therefore a necessity in the study of both the domains. But since our national law system has not admitted the concept of military criminal law,a comprehensive study on this subject is still in need. The military law workers pay much attention to the construction of the main framework while the military criminal law is neglected, therefore the theoretical guidance is in its shortage. This shortage in military legislation and judicature has seriously restricted the development appliance of military criminal law,which in return fails to strengthen the battle power in the information war. The need to protect the nation and maintain social stability and people's security is not met and the military criminal law would therefore not be able to solve the conflicts between national law and international laws. That is the urge of my following study. From the basic study of the theories,with the references of many military law studies,this paper mainly deals with the concepts,forms, effective range,values and principles of military criminal law. This article mainly studies the fundamental theories of military criminal law, altogether in18 sections from 5 chapters. The first chapter studies concept, quality, task and relevant coordination of military criminal law. Both the studies from home and abroad on the concept of military criminal law are manifested here. A genera summarization of the concepts from either home or abroad is also done and the three basic elements are listed: objects,adjustment scope and legal form. A concept of military criminal law has been proposed in this article on the study of the actual situation in China,which holds both the broad and narrow sense. In its broad sense,the concept of military criminal law could be defined as the summation of the violation of national defense and military interests and the corresponding law. In its narrow sense,the summation of violations of either military duty of individual soldier or national military interests. It makes clear that military criminal law is a particular law which has the dual qualities of general law and military law. The task of military criminal law is to supply legal gist for military crime punishment, maintain the military order, urge individuals to fulfill duties and improve the battle effectiveness. The article also analyzes the relevant coordination between military criminal law,military law and general criminal law. Military criminal law has both shares and differences with other laws,that is why it is so particular.The second chapter studies the legal form of military criminal law. On the analysis of all legal forms,it concludes that the basic forms of military criminal law could be that of either legal code or single file,and that of a combination of military law and general law. A proposal is made that the legal form in our country should be independent military criminal law code, which is done according to both the actual situation of national army and state,and the study of legal experiences of all angles. The third chapter aims at the effectiveness of military criminal law, which describes the effectiveness of domain,time and person. An analysis on both the advantage and disadvantage of the effectiveness and its significance is also supplied here to disclose the shortage of our military criminal law in its outer domain effectiveness. It mentions the limitation of its appliance over foreign soldiers and non-military persons,and the incomplete scope of effectiveness at wartime. The corresponding proposals are also made.The fourth chapter manifests the value of military criminal law, introduces its mail content and function in military criminal nomocracy. The conflicts between military criminal law and military affairs and criminal nomocracy are also displayed in this chapter. This chapter ensured the value tropism of military criminal law,it regards that the main body of military criminal law is the army,the value content is to guarantee military order and battle effectiveness. The main body of military criminal nomocracy is soldier,its content is to guarantee the individual human right. The political aim,law resource,value view and conflict reasons are also discussed in this chapter. It announces that two criterions must be insisted: battle effectiveness,which means whether military criminal law could improve battle effectiveness of the army; and criminal nomocracy,which means whether military criminal law could strike crime and guarantee soldier's rights. A priority principle of relevance,conflicts and mobility has been used out of the consideration of the particularity of army on its duties of government enhancement, national security and society stability. The legal tropism of many foreign experiences are considered and a conclusion is therefore made: based on the practice of military criminal law,a choice must be made that the war order should be followed in priority.The fifth chapter studies the basic principles of military criminal law. It introduces the basic concepts of the principles of military criminal law and its relationship with general criminal law. It confirms the gist of the principles of military criminal law and that a special principle of priority of military law and war time. A discussion is made here on the three fundamental principles of military criminal law from practice , legislation and legal service. The shortage of the above mentioned items is also mentioned and the corresponding legal proposals are made. |
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