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Research About The Perfection Of The Legislation Of Organized Crime

Posted on:2015-03-14Degree:DoctorType:Dissertation
Country:ChinaCandidate:S L ZhengFull Text:PDF
GTID:1226330467967749Subject:Criminal Law
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Since twenty-first Century, organized crime has spread in the global, posing a seriousthreat to international peace and security, becoming one of the world’s pollution.Organizedcrime in our country is not only a direct threat to the country’s political stability and securityof the people, but also a serious threat to the political development and economicdemocracy,which has become a serious social problem that should be paid attention to andguard against. In order to cope with the organized crime,,China’s criminal law increased thenew clause of organized crime provisions in1997, and in2011, amendments to the criminallaw of "(eight)" was revised and perfected. Nevertheless, the legislation about punishing theorganized crime in China is far from reach the acme of perfection, compared with theinternational conventions and other countries, there is still a certain gap. In order to efficientlyprevent and control over the organized crime, We should establish a scientific and completelegislation system. Meanwhile,there is an urgent need to study the international communityand other countries’ anti organized crime legislation and practice experience, to provide someuseful reference for improving china’s legislation of punishing organized crime.This paper is about130,000words, in addition to the introduction, the text includes thefollowing four chapters:The first part is about the legislation of organized crime in china. On the base oforganized crime’s development history,present situation and side influence in our country, wecan develop and improve the legislation of organized crime. Organized crime legislationwould make a reasonable response to the development of organized crime.With theDeveloping trend of organized crime in China, the legislative history of organized crime inChina proceeded in three stages, respectively is the legislative stage of exploration, theestablishment of the initial phase and progressive development stage. Through analyzing onthe legislative history of organized crime in china, we will understand the legislativebackground of organized crime and find out the legislative defects of organized crime in china.The legislative defect part is the logical starting point of this paper.The concept andcharacteristics of organized crime is very confusing,resulting in common problems ofnon-uniform standards in judicial practice. Moreover, the organized crime defined as the crime of the underworld organization is not match with Chinese organized crime situation,andagainst the law of development of the organized crime legislation,the logical starting point ofwhich is wrong. China’s "criminal law" the294th regulates that the organized crime isbelonged to decentralized legislation. Organized crime is such a complex and grim reality thatthat kind of mode of legislation is difficult to effectively prevent and combat organizedcrime. Compared with the special legislative mode and compound mode of legislation, itsdefects are obvious. The set of organized crime has some serious drawbacks. In terms of thename of the crime, The crime of underworld property organization sets a high crime threshold,which can not effective against the reality of the existence of the large number of evil forcescrime, drug crime, crime of abducting and trafficking in women and children, and is notconducive to the realization of criminal policy-cracking down earlier and smaller. And blackevil gang, the underworld property and organization underworld organization are the differentstages of the development of organized crime. Because of having no clear boundaries betweenthem, there is practical difficulty in the definition of underworld property organization. Thereis no evaluation in criminal law about acts such as: organized crime groups, funding acriminal group such acts.there is some gap between the unit crime and the requirement of"United Nations Convention against transnational organized crime". In the penalty area, toomuch emphasis is paid on the influence of organization crime punishment.Towards that thecriminal social harmfulness of organized crime group implementation should be higher thanthe ordinary crime,there is no corresponding provisions in the sentence,which is not inconformity with the principle of suiting punishment to crime. Property disposal problem is notonly related to the social harmony and stability,but also the key to avoiding the recidivism oforganized crime. But the relevant legislation is lagging behind in china, harmful to thelegitimate property rights of the parties involved and non involved,and impairing the socialeffect and legal effect of fighting against organized crime.The second part is about bettering the legislation of organized crime. The legislativemode of organized crime includes the legislative mode of organized crime,the setting modeand the stipulation of the concept of organized crime.Based on the difference of the nationallegal traditions and national conditions, the writer adopts different analysis ways of organizedcrime legislation to introduce and analyze the organization crime,such as decentralized way,special type, compound type. Through the discussion of the drawbacks of decentralizedlegislation of organized crime in our country, the writer recommends drawing on the successful experience of foreign composite legislation in against organized crime anddescribing the necessity and feasibility of using compound legislation in ourcountry.Organized crime punishment setting mode is divided into the establishment oforganization crime patterns and no crime organization model.By using comparative analysisof the two kinds of the setting mode, the writer thinks that the establishment of theorganization mode of crime is more suitable for the legislation of our country tradition.Stipulation of the concept of organized crime can be divided into enumeration mode andgeneralization mode.Enumeration mode, adopted in American and Macao area of ourcountry,avoids the controversy about the concept of organized crime. stipulation from theconcept of organized crime dispute, form specific, clear, easy to applicable law, limit thediscretion of also can practice.The legislation also has drawbacks. One is the lag, when thereis a new crime situation, unable to respond in a timely manner, always in a passive position inpreventing and combating organized crime, which is not conducive to the timely, effectivepunishment of organized crime. Two is the legal finite and infinite, from various countries andregions of the world organized crime now and the development trend, there is the risk oforganized crime group continuously change form to avoid being hit, the implementation ofthe specific circumstances of the crime and not exhaustive, laws can be enumerated case Co.,the definition of "general specification organized crime".The third part is the organized crimes and setting up perfect. Organized crimepunishment settings include the charges and penalties set, there are three kinds of viewpointsin organized crime consummation, one is unified with the crime of underworld organization,"Underworld Organization" the integrity of the concept to replace "organization withunderworld society nature" not complete concept; two is to stipulate the crime of underworldorganization and organized crime, the crime of underworld organization when there is aspecial form of organized crime; the three is to use "organized crime" instead of "the crime ofthe underworld organization" point of view.This article from the "facts, concepts and norms"perspective, that the third views with China in the fight against organized crime fact, also inline with the development trend of international crime set. From the development of theconcept of organized crime in China can be seen, the legislation of our country is the narrowsense of the concept of organized crime, the organized crime is defined as the crime of theunderworld organization. The overseas legislation, on the understanding of the concept oforganized crime experience from narrow to broad development process, with the generalized concept of organized crime instead of underworld organization concept not only conforms tothe actual Chinese organized crime in China, also with me on organized crime "early on"criminal policy. China’s legislators that China underworld crime obvious, typically does notappear, but also emerged from the underworld organization members entering a triadmembers case, cause serious harm to the society. Therefore, the provisions of the criminal lawof the crime of underworld society organization "entry". This reference to overseasunderworld society organization dichotomy underworld of domestic actual basic law againstcrime of organized crime and the organized crime legislation, no evaluation of underworldsociety organization behavior and entry, such as "to participate in overseas underworldorganization" behavior and "Underworld activities engaged in by the entry no criminalevaluation. In view of this paper suggests using the concept of organized crime, immigrationdevelopment in organized crime members shall belong to the organization is a form oforganized crime behavior, and organization, leadership to participate in organized crimecoincidence, the proposal to delete the charges. At the same time, considering the tight webangle increase organized crime and usury lending fund organized crime group crime. In thepenalty arrangement, this paper compares several national organization crime legalpunishment, think too harsh punishment is not conducive to the fight against organized crime,to recommend appropriate reduce the statutory punishment of crime. Our country’s penaltysettings are for "isolated individual opposition ruling class struggle," criminal acts oforganized should legal evaluation was conducted with the penalty, to recommend appropriateweighting has specific criminal acts of organized crime group in the implementation of thestatutory punishment.The fourth part is the perfection of property disposal. From the experience of fightingagainst organized crime overseas, we should pay more attention to the use of property penalty,disabling organized crime recidivism ability from the economy. In view of the complexity andimportance of property disposal, American, Japan and China’s Macao region regulated theprocedure in legislation of the property definition, confiscation, seizure of entity."The UnitedNations Convention against Transnational Organized Crime" has also made a request to thedisposal of property. In comparison, China’s relevant laws and regulations is a little vague thatcan not meet the need of practice. This section responds to the difficulty problems appeared inthe judicial practice, such as how to distinguish between the mixed property, organized crimeclaims, debts, organized crime holding company, enterprise property disposal. To put forward suggestions for perfecting the disposition of property law. Firstly,we should define theconcept of organized crime. Organized crime includes the crime of underworld organization,the crime of terrorism, cult crime. Considering the difference between the organized crimetypes in the objective, method, mode of legislation, we should not to make it rigidly uniformtreatment. Thus,to meet the need for fighting against the evil forces, the main point of thisresearch is focused on the comparison and perfection of related legislation of organizedgang.In view of the organized crime legislative defects, based on the Chinese conditions, weshould borrow foreign experience of legislation technology to perfect the substantive law,procedural law, legislative model and should And pay attention to coordination, cohesionbetween the various laws as well as the requirement of the "United Nations Conventionagainst Transnational Organized Crime"...
Keywords/Search Tags:organized crime, legislation, mode of legislation, legislation perfection, the disposal of property
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