Research On Criminal Responsibility Of Military Crime

The criminal legislative system of socialism with Chinese Characteristics anddiscovery of criminal law (application of criminal law) are the procedure adjusting thelegal regulations and social facts. In judicial practice, as an important part of ourcriminal law, it is very important for crime of breach military duty to adjust the legalregulations and social facts into perfect conditions. In the research on the criminalresponsibility of military crime, the relations between military crime and status ofmilitary are seldom focused in the research, paying attention to the relations betweenthem, furthermore summarizing the basic question of them scientifically, declaring thebasic trend of criminal responsibility of military crime finally.The criminal responsibility of military crime means that the offender should takethe criminal responsibility for acting the crime of breach military duty stipulated inChinese criminal law. It has the characters: first, the criminal responsibility of militarycrime relies on the act of the crime of breach military duty; second, the offender takesthe criminal responsibility to the nation; third, the criminal responsibility of militarycrime is the most strictly responsibility based on the military crime. The constitutionalelements of military crime contain as: first, the offender breaches the crime of breachmilitary duty badly; second, the act must be against the legal regulations of the crimeof breach military duty and be punished under criminal law; third, the subjective ofmilitary crime is accord to the general regulations of criminal law; fourth, thesubjective aspect of subject of military crime is intend or negligence. Backtrack thehistory of military crime regulated in our country, it is helpful to provide the referencefor the stipulation of military crime, promote the development of society and economyand realize the criminal rule of law finally.According to the concrete regulations of the crime of breach military duty inchapter10of specific provisions of criminal law, the basis for status of military affecting the criminal responsibility of military crime shows as: commit the crime ofharm to combat benefit; commit the crime of breach the administrative regulations totroops; commit the crime of harm to military secret; commit the crime of harm tosafeguard the troops material; commit the crime of offence the interest of subordinates,disability soldiers, civilians and captives. The special status on the subject of militarycrime implies the heavily harm to the national military interest by committing militarycrime. It is the native character to harm the national military interest for military crimedifferencing to the other crime. For the aim to protect the national military interest, thelegislature of state set up the crime of breach military duty and the criminalresponsibility. It is shown in two situations that the status of military affects theundertaking of criminal responsibility. Firstly, the status of military determines theconviction of crime and the undertaking of criminal responsibility of military crime;secondly, the status of military affects the criminal responsibility degree. Observing theconstitutional elements of military crime, the status of military affects theconstitutional elements of the military crime. In some concrete constitutional elementsof military crime, special status of military for offender is required according to thespecific military crime. In military judicial practice, the status of crime affects thecriminal military responsibility degree. Because the status of military affects directlythe injury for society of criminal offence and reflects the personal dangerous ofoffender, the specific status can be reckoned as the sentencing circumstance of heavieror lighter punishment.We should pay attentions to the substantive criminal law and the proceduralcriminal law, researching on the status of military and the criminal responsibility ofmilitary crime. It is a concrete reflection of the theory of criminal integration. Thedetermination of criminal responsibility is the important content of the criminal system.It should be processed in legal procedure to safeguard the substantial justice for thestatus of military and the criminal responsibility of military crime. Military judicialdepartments own the special jurisdiction for military crime because of the specialty ofthe subject of military crime. Military judicial department include military security department, military procuratorate and military court, individually carrying out thefunction of investigation, prosecution and judge. Because of the special time and spacein combat or wartime, we can not implement the criminal responsibility of militarycrime through such complicated procedure, and the judicial power should beauthorized to not only the military judicial departments but also the troops’commanders in wartime. This is the right way to find out the criminal responsibility ofmilitary crime timely and protect the interest of national military in maximum.Joint crime is complicated. In judicial practice, it is a question to assert thecharacter of joint crime by offenders with status of military and status of non military,which is the basis and premise to find out the criminal responsibility of individualoffender in joint crime. For determination of joint crime by offenders with status ofmilitary and status of non military, it is the first job to assert the character of crime actcommitted by offenders with status of military and status of non military. In militaryjudicial practice, the crime character of perpetrator should be considered mostly injoint crime by offenders with status of military and status of non military to focus thecore role and ascertain the character of joint crime and assert the criminalresponsibility of individual offender in joint crime. The measure accords with both thegeneral regulation about joint crime and the principal of suiting responsibility andpunishment of rime in criminal law.