Research On The Employing Offender

In recent years, crime case of hiring nature increases sharply. According to the uncompleted statistics, in 1998 and 1999,only in the aspect of the cases that were committed by civil servants who hired others to do these offences for power, there were more than 30 employment offences that had caused national wide influence. This kind of cases has upset the social security seriously and ruined the social conduct. Especially when it concerned with the civil servants, this kind of cases has diminished the reputation of the party and country and caused abominable influence in the society. At the present, this kind of law cases has already caused the extensive concern. Our Criminal Law doesn't regulate this kind of crime definitely, so in judicial practice, there is many elements about this offence have been greatly disputed. For example, if this offence is crime or not crime, if this offence is crime, which law item should been applied and how to punish it. And there is still no agreement on that if the employers in these cases belong to the abettor. Some parts of this thesis are the research on the classification of the primary criminal (the employer) in the wage crime, and then the author will analyzes the employing offender's criminal responsibility when the crime which done by the employee has beyond the employer's purpose or that is still an uncommitted crime. Through this thesis, the author hopes there will be a definite knowledge about the employing offender in the judicial practice. This special crime phenomenon is long-standing to hire others to commit crime. But the research on the theory of this crime just started in recent years. There are only a few of thesis about this problem can be found, some research on this crime are from criminal jurisprudence view, and some from criminology view, this situation has made different definitions for this crime. This thesis's research is based on criminal jurisprudence and it adopts the name of "employing offender"to avoid the confusion. The employing offender is the person who employs others to commit a crime under the condition of offering some sort of interest. When introducing the character of the employing offender, the author analyses the subject characteristic of the employing offender emphatically, then the author expatiates how to deal with the cases which the unit employs others to commit a crime which can only be the behavior of the natural person. The author think: First of all, the purpose of Article 30 of our Criminal Law is to provide a lawful warranty for the unit's criminal responsibility, and we can't deny the natural person's criminal responsibility only because that the criminal law doesn't regulate the unit's criminal responsibility in some kinds of crimes. Secondly, the essence of the crime is to infringe law benefit, and doesn't mean the actor who gets the benefit. If the criminal gets the benefit by unlawful means, whoever the benefit possess or own, the victim's interests are all been offended. So we can't deny the criminal elements of a behavior only because the offender does not do this for himself. Even though the natural person does the behavior for the interest of his unit, we can't eliminate the unlawful feature of this behavior. So the person directly responsible of the unit must take the criminal responsibility when the unit employs others to commit a crime, even if the Criminal Law doesn't regulate the unit can be the criminal in some kinds ofcrimes. The classification of the employing offender is the keystone of this thesis. The author thinks we can't take a part for the whole and classify the employing offender to be abettor or organized offender simply by which situation is more in the practice. We should analyze the specific problem in the specific situation. The author will combine the classification of complicity in our Criminal Law and the discussion about organized offender and the indirect main culprit in criminal jurisprudence theory to classify the employing offender from two aspects: complicit crime and non-complicit crime. Firstly, in complicit crime, the employing offender can be main culprit, accessory and abettor, and can't be accessory under duress. And we can classify the employing offender into organized offender of employ type, main culprit of employ type, and abettor of employ type and accessory of employ type. Secondly, in non-complicit crime, there are two types: direct main culprit of employ type and indirect main culprit of employ type. The author discusses more about organized offender of employ type and abettor of employ type, because there are more such offenders in practice. The organized offender of employ type has the characters of employing offender and organized offender. It denotes the person who organizes others to commit a crime under the condition of employing them. In Actus Reus, the organized offender of employ type must employ others first, then organize them to commit a crime. If he doesn't employ others, he will have no difference with the organized offender; if he doesn't organize others, he will be confused with abettor. In Mens Rea, organized offender should have double intents: employing andorganizing others. It means the person who knows he employs others to commit a crime, and he knows that if he organizes, leads, plans and commands his employees to implement the offence will bring harmful result to the society and he hopes or lets the result take place alone. For abettor of employ type, firstly, he must have the intention to abet somebody in the Mens Rea. It means that the employer have the intention to employ others to implement specific offence, and the employee does not have the intention to commit this crime before the employer asks him to do. If the employer knows that the employee commits such crime as his career, and he still employs him for his criminal intention, he isn't the abettor of employ type. Secondly, the employer must abet the employee to commit the crime in the Actus Reus. So when the employer abets the employee to commit the crime, he must employ the employee as his employer under the condition of offering some sort of interest, and this impels the employee to commit the crime. In the parts of the determination of the employing offender, the author analyzes the employing offender's criminal responsibility when the crime that committed by the employee has beyond the employer's purpose or that is still an uncommitted crime. In our criminal theoretic, the criminal only will be punished when he has the Mens Rea about the harmful result, and the over-intention behavior has beyond the scope of the complicit crime's Mens Rea, so the person who implement the offence should be punished alone for the over-intention behavior, and the person who doesn't implement the offence should not be punished for the over-intention behavior. So the author analyzes the over-intention behavior separately in the situations of organized offender...