On The Implementation Of The Orders Of Superiors

For "the implementation of superior orders" problem in international criminal law, with the development of history, It gradually established the "non-exemption principle of superior orders implementation," but it is rarely mentioned in China's criminal law theory. Only self-defense and emergency hedge are set as legal exclusion of social harmful behavior in General provisions of the Penal Code, while "the implementation of superior orders" is only believed as extrajudicial behavior. Research on the model and condition for "the implementation of superior orders" is so few that it is difficult to use unified standards to measure the "implementation of superior orders". Therefore, this article will be a study of criminal law at home and abroad.The "non-exemption principle of superior orders implementation" is mainly from international law. It has been a long and complex process since its emergence and development. The implementation of superior orders was exempted before the World Warâ… ; "non-exemption principle of superior orders implementation" was recognized in the international law after "Leipzig trials" but it was established after the issuance of"Nuremberg Charter" and further improved by the International Criminal Court and its Statute.The specifications of"implementation of superior orders" is different from countries in civil criminal law. The general provisions of the Criminal Code specifies that only self-defense and emergency hedge are thought as two kinds of legal social harmful behavior, but for the execution of superior orders is not expressly stipulated in writing . There are two ways to prove it legal: one is taking no account of illegal factor, the other is taking no account of responsibility factor.Responsibility for the implementation of higher order mode of behavior the principle of absolute liability, the principle of responsibility, and mixed conditions, the principle of responsibility. The meaning of the principle of absolute liability is subordinate to his higher authorities in the implementation of the orders carried out criminal acts, in any case, the subordinates can not because "the implementation of the superior orders" for this reason, claim exemption from criminal responsibility, but the court on the defendant for determining the sentence, you can consider other mitigating factors, while superior orders will be taken into account as one of the reasons a mitigating factor. And the conditions are the responsibility of principle and the principle of absolute liability is different from its meaning include: lower, in some cases, you can stand trial in the implementation of his own behavior is part of the implementation of the behavior of superior orders, so for this reason the court should be exempted from criminal liability , but there are exceptions, such as the defendant as a junior, knew or should have known to their superiors orders issued was illegal, or illegal orders issued by superiors was readily apparent, then the lower will be the implementation of superior orders defense as a defense the court will not accept it. Mixed at the same time the principle of liability and conditions of use of the principle of absolute liability principle of responsibility, this model can be divided into two situations, one of the conduct, whether they belong to the citizens to decide which principles apply to the second is based on a distinction between the nature of the suspect.The academic community has many different opinions on the conditions of implementation of superior orders, I believe that to justify the implementation of acts of superior orders need to meet the following requirements: a command issued by a particular person; the form and procedures are legal; the order is objectively legal; subjectively good faith; implementation of order must be must be within the scope of matters specified.