Research On Organizing Offender

Based on the situation of common crime, the needs of judicial practice, the status of theoretical research and the phenomenon of organizing offender in joint crimes are very important subject which needs more in-depth theoretical study.Three difference definitions about the organizing offender in criminal law theory:the specific type saying, the same saying and the general type saying.The origin is that scholars have misconduct of logical or poor in necessary consensus. The definition of organizing offender has two crucial premises:â… , the boundary between the implement actions and the unimplemented actions must be differentiated.â…¡, the complicity relationship really establish or not. The implement actions and the unimplemented actions is relativity in the criminal law. Complicity is an abbreviation of common criminal relations, the domestic and foreign criminal law, definite that as long as the provisions on joint crimes, there is complicity exists. According to the two basic premises, we regard the organizing offender as one kind of crime people type of complicity, and as one kind of patterns of crime.Actually, the infringement of legal interests only by the implementation of actions by organizing offender, the objective structural of organizing offender mainly to the implementation of the organizational behavior of its type. According to China's criminal code, article 26, paragraph 1,4 and 97 requirements, the concrete and general organization action of the organization, leadership, planning, command of the four specific types named "four types saying", and it has law basis. Organization committed to the subjective structure, usually identified direct deliberate as the standard of their conduct, it may help to highlight the key of criminal law, but may indulge in an indirect deliberate form of organization committed individual cases. Analyzing from certain deliberate and uncertain deliberate, the subjective structure of organizing offender can be both certain deliberate and uncertain deliberate (including general deliberate).As joint crimes for organizing offender, it is meticulous division results for joint crimes or joint crimes actions. In the Germany and Japan context of criminal law, organizing offender is non-independent type people of joint crimes, in theory, it can only be attributed to the instigator of narrow accomplice, therefore, the law theory of German and Japanese on the instigator include the organizing offender, even more committed in a case against organizing offender. While the China context of the criminal law, the instigator and the organizing offender belong to two different types of joint crimes people who needs to be clear on its boundary points. Our theory of criminal law much reference to the German and Japanese, Chinese scholars discourses of instigator are affected by the theory of Germany and Japan on the apparent, which generates confusion between the instigator and the organizing offender in China. From the behavior, behavioral focus or purpose of the focus, and objective relationship degree with perpetrator and the role in joint crimes, we can differentiate the instigator with the organizing offender broadly. The operation cases exist in a gray area, how to play the practical wisdom issue of justice. In theory, we abolish the concept of instigator and compartmentalize the traditional type into the organizing offender regulatory scope, or maintain the separation of legislative and theoretical models, however the role of organized criminals are identified on the visual the establishment of principal, because of the instigator is the establishment of an accessory criminal or accomplice. It is good solution to solve the relations between the instigator and the organizing offender.The scope of the organizing offender is closely related the forms of the joint crimes. For the division of the joint crimes forms, within the structure of the joint criminal conduct as the standard, it's as simple joint crimes and complex joint crimes division shall be enough. Reply on this classification standard, simple joint crimes, which the behavior is non-organizational behavior, while the complexity of common crime, further divided into two forms of the general complexity of a common criminal and the special complex crime. Meanwhile, China's criminal law provisions of syndicates and related legislative interpretation of the crime but for ordinary criminal groups and special criminal groups (such as the Triad Society) distinction. In this premise, simple common crime committed in the organization does not exists naturally, organizations can only exists in the general complexity of committing common crimes and common crimes among the special complexity.Different legislative models will inevitably lead to a different mode of judicial practice and the theory of criminal law research and explain the different directions. China and Germany are different legislative models and theories of justice and then committed the case to the organization.That is evidenced by the different treatment, in fact. German and Japanese criminal legislation on common crime is a kind of distinction between criminal and an accomplice in the narrow sense of "distinction between the system models." This legislative model is a German and Japanese criminal overall legislative model must reflect, is against the law of nature-the result worthless on the legislation reflects, is also a common crime and a separate crime, that means the same treatment the value of the position of the legislation reflected. Criminal law legislation on common crime of China is a "joint criminal provisions of the establishment of uniform conditions of a single system model." This legislative model, is a transfer mode of the former Soviet Union, is a common intentional crimes with greater legal recognition of social harm, but also reflects the common criminal system settings is "to combat principal culprits" the basic value position.From German and Japanese criminal legislation on joint crime, the case for organized criminals, the Japanese judicial jurisprudence and criminal law theory is through the creation of "conspiracy joint principal offender", to interpret the concept of "organized criminals" and the situation of principal punishment; While in Germany,main theory is that under the facts of the crime domination, and then recognize the "principal offender behind the principal offender" or "invisible joint principal offender" in order to interpret in the central figure in the crime or the punishment of those behind the principal offender. German-Japanese judicial practice and theory of organizations committed criminal case processing and interpretation, the reality is under the forced choice in legislative models, it's the theory of criminal law by means of changing the criminal legislation and judicial practice to reconcile the product. But this interpretation strategy change also undermines the stereotype of the implementation of acts and contrary to the traditional theory of indirect criminal same time, and the mind whether can achieve punishment also questionable. Common crime in the criminal code on the legislative model of China, based on the principal provisions of criminal law, the organization can be resolved appropriate in theory of interpretation and judicial practice. Although the concept of criminal responsibility has multiple connotations, traditional means of crime the criminal conduct should bear the consequences; the criminal law still has a reasonable meaning. Criminal law in Germany and Japan on crime legislation, whether it is an accomplice of independence from the property, with the complicity or accomplice penalty on accomplice liability under the theory of complicity of law and cause and the crime effect cannot reasonably explain the complicity of the criminal responsibility of organizations committed. This is a dilemma situation in German and Japanese of Criminal Legislation on common crime. While in the context of the criminal law of China, comparison with other common criminals, organizations have committed the more serious social harm and dangerousness its principal facts to bear for criminal organization guilty.The organizing offender is a principal, but not its practice to all crimes committed by the implementation of the act should bear criminal responsibility, is not the same common crime committed in a number of organizations all bear the same sentencing. Organizations are also guilty of criminal liability for the corresponding principles to be followed. Guilty of criminal organizations involved in the scope of criminal liability and the degree of criminal responsibility. On the scope of criminal liability, the principle of guilt and sin own principle is the basic principle; on the degree of criminal responsibility, the principles of crime and punishment and the principle should be punished severely as its basic principles.The judge of perpetrators action whether excessive action will determine whether their organizations are committed to implement all the criminal acts of criminal responsibility. Co-existence of organized criminals for crimes committed in the practice of judging whether excessive action, will be taking into account the difference between the general complexity common crime and the special complex common crime in the common membership of organization, the organizational structure of the rigor and stability, the broad scale and type of crime nature, the severity of social harm, for the general complexity common crime and the special complex common crime, the offense practiced from the imposed limit of dredging and recognized organization committed serious criminal responsibility and thus the scope of its narrow and wide of view, in general, should be a common crime complicated to implement than the common limit of special complex crime, we found negligent in the surplus identified, then the general complexity of the organization committed the crime of criminal responsibility is also narrower than the scope of the special complex the organization of common crime committed the scope of criminal responsibility. Specific to the criminal responsibility(actually the scope of criminal responsibility) of the ringleader in criminal gang, although the type of analysis was carried out by some scholars, this article suggests that the type of theoretical analysis is neither possible nor little practical significance, as long as we contact the objective cases in judicial practice, under the principle of own guilt and sin (actually it is the subjective organization structure),the scope of criminal responsibility can be identified as the underlying principle.