The Discussion Of The Crime Of Accepting Or Sending Unqualified Recruits

The crime of accepting or sending unqualified recruits is a new crime which be added in《Criminal Law of the People's Republic of China(1997)》. It is the important performance of improving our criminal lawmaking. And it is important for protecting the national defense benefits, promoting the construction of national defense and troops, unifying the legal system of our country, perfecting the Criminal Code, completing the motherland to unify soon. Presently, research on the crime of Accepting or sending unqualified recruits is almost blank in the field of the science of criminal laws. This thesis is composed of five chapters. The brief introductions are as follows: The first chapter generally sketches the importance of the qualified recruits, the present stations of lawmaking of the crime of accepting or sending unqualified recruits, and the necessity of establishing the crime. Through the contents of this chapter, the author tries to clarify, in the wars of today, to win a war, the most important factors is the soldier's quantity besides weapon equip. So it is very important to guard the recruits well. At present, the provisions on the conduct of accepting or sending unqualified recruits in our country are limited. They exist some lacuna, and can't fight to the conduct of accepting or sending unqualified recruits ultimately. So it is improved by legislation. Since the conduct of accepting or sending unqualified recruits infringe upon the military service system of our country and the fighting strength of the troops seriously, it harms the social badly. And since it has the characteristic of the national authorities, it covers up the crime purpose and criminal offences with the legal form, making victim realize difficultly, making people mistake easily as national behavior, resulting in opposition between people and nation, faltering the foundation of the national political power. At the same time, because of several sections participation, the cross of the troops power and local jurisdiction, make the dividing of criminal investigation and the responsibilities of this offense difficultly. If it does not lay the independent blame, it can't fight to the conduct of accepting or sending unqualified recruits ultimately. But, in practice, although the crime of accepting or sending unqualified recruits to be separated from has already crimes of malfeasance been eight years, the precedents is rare, and further the conduct of accepting or sending unqualified recruits. So we should strengthen legal supervision to the conduct of accepting or sending unqualified recruits, enlarge the strength of control, and raise the rate of applying case. The second chapter is the conception and the characteristic of the crime of accepting or sending unqualified recruits. Firstly, define the conception of the crime of accepting or sending unqualified recruits. It means conscript the staff member to profit oneself to embezzle in conscript work, won't match the conditional application for citizen to accept and send into the troops, serious behavior of details. The definition of the object of the crime of accepting or sending unqualified recruits exists a few different points of view. The author considers that the object of the crime of accepting or sending unqualified recruits is complex object. That is the military service system in our country and the fighting strength of the troops. At the same time, the author especially introduces the criminal object of this crime is unqualified recruits. And define the conditions of the qualified recruits, to provide some help to affirm the unqualified recruits in practice. The objective representation of the crime of accepting or sending unqualified recruits is to profit oneself to embezzle in conscript work, accept and send the unqualified recruits with serious behavior details. The author still introduces to conscript the work in this thesis in the each link of easy emergence problem, investigating to have the certain fulfillment meaning for the judicatory. The corpus that the crime of acceptingor sending unqualified recruits is a special corpus, namely this offense corpus only ability is those are in conscript work the negative supported by proof soldier's job conscript the staff member, including the staff member who the person section of the place is responsible for conscript, conscript the staff member who the troops is responsible for call up new recruits in a specific way to take to have with other by law the help conscript the job of personnel. The crime of accepting or sending unqualified recruits is intentionally in the subjective aspect, namely behavior the person knows perfectly well to what accept and send is an unqualified recruit, also know perfectly well the unqualified soldier to enlist the future reunion influence troops construction, endanger the national defense benefits, but hope or occurrence of permissive this kind of danger result, the mistake does not constitute this offense. This chapter is also the energy most contents in the author cost, only right define the concept and crimes of this offense to constitute, can the right leading judicatory practice. The third chapter is to affirm the crime of accepting or sending unqualified recruits. First, the author thinks that distinguishing the limit of offending or not the crime of accepting or sending unqualified recruits should notice: the objective aspect about" profit oneself to embezzle" must have at the same time with" accept or send unqualified recruits", and the details severity then can constitute this offense, otherwise can't affirm for the crime, canning do only for connect to send the unqualified soldier law punishment or disciplinary sanctions that breaks the law the behavior conferment to correspond generally. The next in order at distinguish this crime and other relative crimes, the author plays this offense with suddenly the job guards the offense and the crimes of malfeasance and other profit oneself the crime of embezzle the property to carry on the distinction. Mainly help regiment aspect, crime appearance, the crime a body and crime object etc. to find out their differentia from the objective manifestation, crime corpus, crime of the crime,lead the fulfillment with the future's index. Finally the author to connected the crime special appearance of send unqualified soldier's offense to wake up with a start to affirm: the crime accepting or sending unqualified recruits is a details to make, nonexistent since hence with uncompleted cent, namely this crime are all since hence. This crime exists the problem of the common crime, can be a general and common crime can also be the group crime, endanger to have the very big difference because of its subjective ill nature and societies, so should take into the distinction strictly in fulfillment. Still it need to notice one offense and the few offense problems in judicatory affirm, because of the legal penalty of this offense oppositely lower, this offense shortage with stroke hour of crime should according to embroil the general principle for make, punish from a grave crime. The fourth chapter is a responsibility of the crime of accepting or sending unqualified recruits. The author outruns the normal law thinking, the former penal code is in an offense analysis only in consideration of the law responsibility namely the penalty apply, the administration responsibility of the few concern crime corpus, because of the special of this offense corpus, the author looked after the administration responsibility of the crime corpus again at the time of paying attention to this offense law responsibility, to expect the more perfect embody the principle of suiting punishment to crime and criminal responsibility. The author assertion that in accepting or sending the unqualified recruits common crime case, want that the right distinction principal offender, accomplice, accomplice under duress make, carry on the punishment according to the homologous punishment principle. The criminal group of the crime of accepting or sending unqualified recruits, in judicatory practice, should punish sharply, and as the important point to penalize. The fifth chapter is the reason and the countermeasure of the crime of accepting or sending unqualified recruits. The author thinks that the deepest reason of the crime is that our legal system is not sound, and the legal...