Study On The Concept Of Military Crime

In order to maintain military legal relations, protect national military interests, and enhance legislature and judiciary of military, we need to strengthen the study of military criminal law theory. This paper is on military crime, it aims to draw the outline of the concept of military crime. As military crime is a basic concept of military criminal law, it is necessary to study the concept of military crime.The study of military criminal law at home is still underdeveloped, and there are many differences between theoretical ideas. In the introduction, I have a briefly analysis of the main causes of the underdevelopment of military criminal law, and some immature views of mine. The body of the paper is on military crime issues mainly. This paper is divided into four main parts:In the fist section, the paper introduces the concept of military criminal of academic viewpoints, and discover their theoretical basis though the analysis of the main points, the conclusion is two main theories—military offences doctrine and serviceman offences doctrine. The author provides a quick analysis on the two viewpoints of military offences doctrine and serviceman offences doctrine, and clarifies its core content and theoretical features. Military offences doctrine set the scope of military crime based on the protection of military interests. In this theory, the subject of military crimes is not limited to military personnel. Serviceman offences doctrine sets the scope of military crime on both of the identity of soldiers and military interests. So that non-military personnel can not be the subject of military crime.In the second section, the paper discusses on serviceman offences doctrine mainly. This theory has distinctive feature and the legislation based on serviceman offences doctrine is quiet common. Therefore, in the first part, this paper intrudes the legislative practice of serviceman offences doctrine including its advantage, its representative and the main form of codification. And the differences in affirmation of military crime based on serviceman offences doctrine. In the second part, the paper discusses on the defenses on superiority of serviceman offences doctrine. First of all, the main defense of serviceman offences doctrine is to believe itself to put human rights of ordinary citizens in an absolutely exceptional location. It avoids increasing the ordinary citizen's responsibility when protect military interest and meet the criterion of the protection of human rights. According to the author's study, the justification of the prerequisites for this doctrine is the theory of"military crime can get a strict punishment ". The strict punishment means that military criminal conviction and sentencing is stricter than non-military crime, such as, the proportion of guilty got by behavior is relatively larger; the death penalty for offences is more than non-military crime; strict terms in wartime and so on. The context for the above reasons you can get a conclusion: the military criminal penalties do stricter than ordinary crimes, but compare relative to the harmful of crime itself, it is not"stricter"but embodied the criminal law principle. So the kind of view that military crime is not conducive to the protection of human rights is not valid. Second, this theory emphasizes the scope of military crime based on serviceman offences doctrine is consistent with the practice of justice. For example, the jurisdiction of military court is to serviceman mainly, also, the clause of "Non-extradition of a purely military offense" in international law means the subject refers to serviceman, and so on. This paper believes that the jurisdiction of military courts is judicial procedure, and the settings for the program could promote the entity value but supporting entity category. In addition, some scholars would like to use the clause of "Non-extradition of a purely military offense" to prove serviceman offences doctrine is an international consensus. Actually, it is a misunderstanding of "pure military crime". The scope of military crime of this clause is far from it of serviceman offences doctrine. the reason of this clause to exist lies not only in its being a military offence, but also this kind of military crime have distinct political characteristic. the political characteristic is the reason of international judicial cooperation . In the third section, this paper reconstructs the concept of military crime on the basis of existing studies of military offences doctrine. It defines military crime as: an act which harms military interest with distinct military features, and should be punished in accordance with the criminal law. It should be included the crime of endangering national security, the crime of breach of duty for serviceman and other crimes harm military interest by Criminal Code of China. This paper also gives the reason of advocating the concept and the illustration of the connotation of this concept: on one hand, the essence of military crime can be enclosed to harm an military interest with distinct military features. The military interest means the various objective needs in order to meet the military activities. It is an extensive concept. If an act violates the interest which the criminal law protects of, the act may commit a crime. If the military interest with distinct military features it may commit a military crime. On the other hand, in form military crime has the following features: First, this paper focuses on military crimes within the framework of the concept of military criminal law. It stressed the legal characteristic of the crimes, so military crime should be defined as act commits the criminal law. Thus, this paper no longer refers to the scope of military crimes without the Criminal Code of China. This is the requirement of the law principle that"no provisions no sin ".Second, the subject of military crime is general subject, not only serviceman, but all natural persons or units who reached the age of criminal responsibility. This requirements and subject requires of serviceman offences doctrine is quite different, so it is also one of the main features to distinguish serviceman offences doctrine and military offences doctrine. Third, the time and place of crime is important for military criminal conviction and sentencing. Crime time may affect the cognizance of the offences, or become important elements of sentencing.For further description of military crime, this paper makes a comparative analysis between the concept of military crime and the related concept, including the military crime and war crimes; military crimes and other crimes in the criminal law. First , it analyzes the jurisdiction, applicable law and crime constitution between military crime and war crimes. In addition to these, it analyzes the differences and relations between military crime and other crimes in the criminal law.In the fourth section, this paper describes some legislative practice Reference to the two theories, some countries are defined military crime basis on military personnel and persons associated with the military, and expand to other related personnel and ordinary citizens when it necessary . There are countries set ordinary citizens to military criminal subject directly, but give them different rights and obligations, and so on. Some successful experiences are worth us studying and using for reference. On this basis the paper makes a prospect to China's military criminal law legislation. Due to the ability and effort limits, the author failed to do more in-depth research; I hope that more and more scholars and experts share concerns in this area, and improve military criminal law legislation, then the military interest can be protected effectively.