Study On Basic Questions Of Military Crime In China

To study the theory of military crime in China from both sides of military law and criminal law, is the request of administering the army strictly under the law, and it is also the demand of fighting by law, at the same time, it can spread out field of vision of the science of criminal law. This article adopts the method of comparing and analyzing, to study the basic theory of military crime in China by the numbers for the first time.Military crime is different from general crime, because of its special foundation of society and military law, so it should have a special position in the criminal law. General criminal law and general crime are different between military society and civil society; the military affairs are violent and political affairs, so that the army's battle effectiveness becomes object of military crime. In order to centralizing the army, military crime's basic character is violating military obligation. Administrating the army by both moral and law make the essential content of the military crime is to violate military moral. The special social foundation request military crime follow the value of military order's priority, exibit the obligation-based character and the spirit to respect serviceman. At the same time, military crime must obey the essence principles of criminal law, its essence should be infraction of military advantage and violation of military duty based on the theory of offending against criterion, and should belong to real identity criminal.The main point of view consider all the crimes relate to military advantage committed by serviceman and civilian are military crime, it's not accord with military crime's social foundation and base of military law, not consistent with the legislation, and err from the trend to adopt Military and Soldiers commission concurrently, so we should advocate pure military crime, define it to be a kind of crime committed by serviceman against military duty, which harm military advantage, including violation of duty by military service and Crimes against national defense interests. Calling for pure military crime is in favor of standing out the military value of military penal law, and exerting its function of special penal law, moreover it can unify legislation and justice. Pure military crime is different from general crime as follows: the constitution of crime, domination, penalty, extradition, influence by war, violation against military law. It is also known from crime committed by serviceman and crime against military duty.China's military elements of criminal offenses include criminal object, the objective aspect of crime, crime subject and crime subjective aspect. The interests of national defense and military interests, and military interests and combat effectiveness analysis of the relationship between the armed forces, this paper argues that the interests of national defense and military-related political, economic, diplomatic, scientific, technological, educational and other activities rather than the interests of the military criminal violations of the object, the object of their criminal limited to the interests of national military. As a result of the combat effectiveness of the standards through all the military activities, it can be considered equivalent to the military advantage of the combat effectiveness of the armed forces. Acts of crime against the military and ordinary acts of crime against the difference is: whether or not as the act, are in violation of military obligations. Although the majority of our military against the results of crime in order to constitute the necessary elements, but from the point of view of military needs, military crimes should focus on establishing a preventive measure, rather than to remedy the situation, who should act as a model of military criminal legislation. Crime in the military, time, space and other situational factors related to military combat effectiveness, the impact of sentencing on the conviction of crime as compared with ordinary, and of war, battlefield, etc. should be made more clear and specific requirements. Compared with foreign military crimes, military crimes in our country the main problems is too narrow, military personnel other than staff clearly does not go far enough, and the special circumstances of military personnel on active duty less than that for a military crime, not provided for the age of criminal responsibility this should be the subject of expanding the scope of military crimes, a clear starting time active duty military personnel to provide for a military crime areas, such as minimum age of criminal responsibility to be improved.Rule out the possibility of military criminal offense involved in the implementation of the main reasons of the acts of superior orders, to take urgent measures to conduct and carry out its duties in the act of necessity. For the implementation of the acts of superior orders, the paper highlights the implementation of the military to contain the contents of illegal and criminal law violations resulting benefits against the order should be held accountable for their criminal responsibility. Through the analysis of ordinary criminal law of criminal responsibility for such acts as well as the military law of the attitude on this issue, the implementation of the law of China's military command of the criminal acts of unlawful command should be used no standard, that is, the implementation of the order violated the military benefits are not held criminally responsibility, except for clearly illegal order. Military law provided for an act to take urgent measures unique to the military field, belonging to the criminal law by talking about the performance of their duties in accordance with the law and not act in self-defense, its exclusion of the conditions for crime that is: the military has specific responsibilities to appropriate means, methods, according to law shall not be an abuse of rights. Although the military can not order to avoid the risk of emergency hedge, but in the course of military duties, in order to safeguard the interests of national military necessity can still be implemented, and the obligations of hedging behavior. Necessity of such crimes should be excluded from the provisions of the Penal Code in line with the hedge emergency conditions, to military necessity in time of war on the grounds of necessity to have a very strict conditions: not only for personal property, the result of damage caused by military action commensurate with the general purpose of the pursuit, the acts of property damage only in very urgent cases were allowed, that is, it is difficult in the timing of other ways to avoid substantial damage to military interests or to achieve military purposes.At present, joint military crime and punishment in China that the crime to the Criminal Code of ordinary common crime based on the provisions of the specific military personnel can be divided into a common criminal and non-military servicemen and military personnel to implement both cases the military crimes. Soldiers of the army to implement than a separate crime against the military interest, and with foreign countries, compared to the common military crime, military crime in China is not in the military provisions of the necessary common crime and a conspiracy of military crimes, not to their superiors to participate in joint military servicemen and abetting crime others as a military crime aggravating circumstances is not conducive to the prevention and reduction of the common interests of the military crime of military hazards. International criminal law in the war crimes provisions of the responsibility of commanders of the military is a special form of joint criminal liability, is the commander knew or should have known of its command, under the control of his subordinates to be implemented, the crime is not to take the necessary and reasonable measures to stop it, know or should know by the command under the control of the men has been in force for the crime did not take the necessary and reasonable measures should be subject to heavy penalties and criminal responsibility. Although the commander and his subordinates not to have a common act of war crimes and the subjective intent of the common condition that is incompatible with our common crime, but looking to the future needs of the military struggle, our country should also be made in its criminal law corresponding requirements. Non-military personnel can not only become the instigator of military crime and help offenders, but also can be a joint exercise of the military committed a crime. China s criminal law for non-military and military personnel how to implement the military criminal conviction is no clear sentencing provisions, this paper argues that his conviction should be determined in accordance with the role of the common core that is based on the nature of the crime, unless other acts of military personnel to implement the establishment of common crimes, according to the military criminal conviction. Strictly in accordance with the principles of martial law, the penalties for non-military personnel should be lighter than the military. Sentencing order to implement this principle, China's military should be adjusted to a common criminal cases under the jurisdiction of military courts is no longer the case at trial, but rather by the same court.