Research On The Right Of Wartime Summary

Wartime summary executions,that is,an extreme measure,through which themilitary commander expands his power to other state powers in wartime.Historically,which can be traced back to ancient Greece,“the10Generals Committee” system inthe Pericles age. In which it provided that the Commission not only directed histroops,but also the right to participate in the administrative and judicial sanctions.Considering military needs,which were the most fundamental reason for the army,thecommanders were given the execution right,specifically, in order to maintainwartime military order and commander’s authority,as a commander, he had to fightagainst effectively with behaviors such as escape,disobedience and mutiny,all ofwhich did serious harm to the wartime interest. Although Constitution and theCriminal Procedure Code in China provides that any person without a criminal trialcan not be determined the guilty, that is to say,expect for self-defense,when soldiersdefy military orders or other military offense during performing combatmissions,military commanders should not apply summary executions. Accordingly,alot of people stand against this summary executions which was given to militarycommanders. But from the history of human warfare,summary executions inwartime,whether which was defined by law or not,stubbornly exist.The exercise ofany power is a double-edged sword,"absolute power corrupts absolutelycorruption",without the constraints of the legal norms, any power will be bound toabuse of power.Therefore, the key issue is not whether the summary executionsshould be given military commanders,but rather how to constrain the rights to preventpower abuse in clear legal norms.In summary,I believe that, wartime summary executions should be written intothe military legislation.One hand, it provides a legal basis for military commandersexercising this power;On the other hand,the law should make clear restrictions onconditions of exercising this power in case of abuse of power.Based on this,this paperis divided into four parts,in which the writer discusses the issues related to wartimesummary executions. Firstly,the paper lists some popular academic perspectives about whether itshould be given to military commanders the wartime summary executions right.Currently,military law experts have proposed two opposite views on this issue,positive and negative aspects.I believe wartime summary executions,which has a longhistory in ancient and modern times and at home and abroad,with regime changes ofgenerations,this right seems to be confirmed and strengthened by military lawsconstantly.As a military tradition,it is reasonable to give military commanders thewartime summary executions right.Nowadays,we can not abandon this tradition,oppositely,we should ensure its effective realization through legislation,which is thetheoretical premise and logical starting point of this paperSecondly,the paper states the concept and nature of the wartime summaryexecutions right.What is the wartime summary executions right?it means executionpower in wartime,about the interpretation, we should focus on "wartime".In thewriter’s view, the "wartime" should be interpreted in a narrow sense,only refers to thestate of war,including resisting the invasion war and the country’s internal war,exceptfor the state of siege and the general state of emergency. Then the paper clearlyanalyzes the nature of the right,which does not belong to the military jurisdiction,noris it self-defense.I believe the right should be a derivative right based on the militarycommand.In addition,the paper discusses the inevitability of war,which is exactly thebasis for us to discuss this right in real life.Again,the writer discusses and analyzes the legitimacy of the right based onlegal principle theory.And then the writer believes the legitimacy of the right,whichmainly is embedded in four points:first,it reflects the value to maintain the militaryorder; second,it reflects the basic principles of military law; third,it embodies thespiritual essence of the military justice;four, it reflects the inevitable requirement tomaintain the authority of the military commander.These four points stimulate theemergence of the time summary right,which provides a sufficient legal basis forwartime summary execution right into the military legislation.Finally,the paper proposed legislative ideas of the wartime summary executionright.The writer believes that it has military necessity to write the right into themilitary legislation,considering our current legal system,we should make specific provisions to increase the wartime summary execution right in the general principlesof criminal law,to be specific,we can increase the related content "militarycommander enjoys wartime summary execution right".Meanwhile,the writerdiscusses relative limited conditions on the exercise of this power, which covers5aspects:the subjective intent,the object, the causes,time,and follow-up proceedings,allthese5points,which aims at promoting the correct exercise of the power in case ofpower abuse.