The Research Of Crime Of Undermining Supervision Order

According to Article 315 of China's Criminal Law stipulates,crime of undermining supervision order is the crime being held in accordance with the law refers to deliberately damaging the supervision of the offender order,and serious act.The accusation was added in the new Criminal Code of 1997.Since the establishment of the accusation,it is relatively low application rate in our country,resulting in a lot of damage monitoring order not to be punished,so that our country's regulatory order is undermined in the certain.This situation is not conducive to the existence of institutions of education and transformation of our country supervision order.However,a few of scholars study it.Therefore,this article attempts to charges research the defection of this theory and judicial practice.I hope it will be help to strengthen the supervision order of our country.The focuses of this paper are the aspects of conviction and sentencing of the crime of undermining supervision order.In conviction,the object of this crime is supervision order,so the location of the crime should not be limited to the prison.It also should include the custody of other authorities,such as detention,imprisonment and so on;if the detention can be as a protected object of the crime,then the body of the convicted criminal should not only our country are convicted of the criminal law provisions,but also should be person in custody;in the objective aspect of the crime,this article discusses the stopped form of this crime,and this crime is a circumstances of the offense.Even though it has prepared,but did not have a criminal attempt.In the aspect of the crime suspension,it does not exist the suspension of crime later;in the subjective aspects of the crime,this paper argues that it not only pose a direct intent may also be constituted by the indirect intention.But in the purpose of laissez-faire,it can not constitute the offense.At the sentencing aspect of this crime,this article studies from the form of level and substance.Level in substance,China's current criminal law is overly,without taking into account different detainees Personal Dangerousness different,so penalty special prevention function can not play.In this paper the combination of detainee period in custody of the psychological characteristics,behavioral characteristics of the proposed Personal Dangerousness,in accordance with the specific situation of detainees attracts different penalties;in the form of levels,the provisions of undermining supervision order are in contradiction to general principles of our criminal law. In this regard,the provisions of the penalties should be did some modifications in order to form a unified arrival,in essence,to play a more effective prevention and the general purpose of the special preventive effect.This article is divided into five parts,the following of which is the whole idea of research.The first part is to build the basic theory of the crime of undermining supervision order.In the part of this paper,it is from the regulatory acts of the traditional concept of punishment and measures of undermining supervision order,and to compare with the rights and measures of foreign detainees and prisoners destroy the regulatory order.In conjunction with the context of the realities of crime and legal background of adding to this accusation, there is a systematic analysis of the crime of the necessity and feasibility,in order to build the theoretical basis for the crime;the second part is to analysis the elements of the crime.The part from four components of the criminal,combining complex situation of the judicial practice of China and the relevant theoretical,it researches the elements deeply and makes some constructive views.At the object area,the scope of this accusation protection should be expanded.At the main aspects,this paper argument can also be the persons who have not been convicted.In the subjective context,this paper demonstrates the intent and what could be the fault of the subjective requirements of the crime.At the objective,this article mainly researches the stop problems of crime of undermining supervision order;the third part studies the sentence of this crime.At the sentencing aspect of this crime,this article studies from the form of level and substance.Level in substance,China's current criminal law is overly, without taking into account different detainees Personal Dangerousness different,so penalty special prevention function can not play.In this paper the combination of detainee period in custody of the psychological characteristics,behavioral characteristics of the proposed Personal Dangerousness,in accordance with the specific situation of detainees attracts different penalties;in the form of levels,the provisions of undermining supervision order are in contradiction to general principles of our criminal law.In this regard,the provisions of the penalties should be did some modifications in order to form a unified arrival,in essence,to play a more effective prevention and the general purpose of the special preventive effect.The fourth part studies the troubleshooting problems of the crime of undermining supervision order.This part mainly directs against the more complex situations of judiciary application, such as the maintaining of some people destroy the supervision order together,the surrender some people who offense this crime and so on.The fifth part of this paper,it studies the relatively low application rate in our country,resulting in a lot of damage monitoring order not to be punished,so that our country's regulatory order is undermined in the certain. Therefore,this part attempts to charges research the defection of this theory and judicial practice.And make some recommendations hope to strengthen the supervision order of our country.