Judicial Cognizance Of Harboring, Tolerating The Organized Crime Nature Organization Crime

Paragraph4of Article294of Criminal Law sets forth the stipulation about "the crime of protecting an organization with characters of criminal syndicate or connives at such an organization’s committing activities", but in the course of juridical practice, the controversies about how to accurately affirm the subject of crime, guilty intent, behavioral pattern, behavioral object, quantity of crime and criminal pattern exist all the time. The solutions to puzzling problems of judicial determination are beneficial to conviction and penalty measurement of this crime and are of vital theoretical and practical value to destroy "protective umbrella" of the organizations with characters of criminal syndicate.The article proceeds with judicial cognizance and a form of combination of theory, case and data is adopted to survey those puzzling problems about judicial cognizance of this crime. Firstly, we start from the behavioral object that should be an organization with characters of criminal syndicate. Protecting other criminal organizations, criminal gangs and individuals will not constitute this crime. Then we should analyze the objects of protection and connivance acts, cognizance of starting to commit crime, execution mode and common issue of both so as to clarify difference and relation between protection act and connivance act. Then the subject of this crime is analyzed. Starting from the spirit of legally prescribed punishment for a specified crime, the subject of this crime shall be only limited to a public servant of a state organ and the other persons can only be deemed as accomplice of this crime. However, in terms of legislation, if the subject of this crime is only limited to those public servants of state organs, this stipulation may be suspected of weakening the purpose and role of this crime set forth by Criminal Law. Whether the public servant of a state organ can become a member of the organization with characters of criminal syndicate that he/she protects or connives shall be analyzed based on specific case details and cannot be lumped together. Subsequently, we analyze that this crime can only be constituted by actual intent proceeding from subjective cognizance, but when identifying if "clearly know" is required, we shall adhere to the principle of consistency of subjectivity and objectivity, i.e. constitution of this crime requires that the subject "clearly knows" or may know the object of protection or connivance is an organization with characters of criminal syndicate. Lastly, we start with quantity of crime and criminal pattern to discuss the problems about penalty measurement during juridical practice.This article is divided into three parts. Theory carding is conducted in the first part. We adopt the method of concept interpretation to state implication and content of this crime. Next legislation evolution of this crime is analyzed and set forth the legislative stipulation of this crime longitudinally to understand legislative spirit and object.The second part analyzes the puzzling problems occurring in the course of juridical practice. Firstly, we start with judicial determination of behavioral object to identify the key for establishment of this crime is if the organization has characters of criminal syndicate. In the period of juridical practice, identification of this crime requires a correct logic train of thought."Setting the tone" cannot be conducted firstly, i.e. it not advisable to determine it as an organization with characters of criminal syndicate and then collect relative evidences. As for detection and determination of object, the judgment and analysis are generally made based on specific and complicated fact of malfeasance and crime commitment. Finally several cases will be introduced to verify the aforesaid views. Then we start with objective behavioral pattern to concretely analyze the protected and connived object and initiation and clarify difference with the act of failing to report the fact and analyze if pursuit of personal interest or personal relationship can constitute necessary elements of this crime, thus stating common problems of protection and connivance. Secondly, the puzzling problems of juridical cognizance of subject are analyzed. According to the spirit of legally prescribed punishment for a specified crime, the subject of this crime shall be only limited to those public servants of state organs and the other persons cannon only be deemed as accomplice of this crime. But if the subject of this crime is limited to public servants of state organs, it will be not beneficial to destroy the "umbrella" that protects the organizations with characters of criminal syndicate. Whether the public servant of a state organ can become a member of the organization with characters of criminal syndicate that he/she protects or connives shall be analyzed based on specific case details and cannot be lumped together. Lastly during practice, the judicial office shall adhere to the case handling concept of consistency of subjectivity and objectivity and in regard of determination of "clearly know" of actor, an integral analysis shall be made on how familiar the actor is with the protected and connived organization, how intimate the relationship is with the organization members and frequency, character and act of illegal and criminal activities implemented by this organization to take all factors into consideration. The cognition of actor about "clearly know" shall be that he/she actually knows or may know it is an organization with characters of criminal syndicate.The third part mainly analyzes and sets forth other issues related to this crime. The judicial office also frequently encounters problems caused by quantity of a crime and criminal patter during practice. This crime involves in offense of act, i.e. the actor implements and completes the act of protecting or conniving an organization with characters of criminal syndicate, resulting in accomplished offense of a crime. The basic standard for defining accomplished or not accomplished offense is if the actor starts to implement and accomplish the criminal acts of protection and connivance. But in the course of juridical practice, if the actor accepts bribes as well as protects and connives the organization with characters of criminal syndicate, the actor will deemed to offend different objects and infringe different legal interests protected by Criminal Law. Meanwhile, based on legislative theoretical foundation, Criminal Law of our country also expressly defines that the implicated offender can be published jointly for several offenses. Thus in order to crack down crimes more effectively, it is suitable to carry out combined punishment for several offenses on civil servants.