Study On Application Of Criminal Law To Other Participants In Gangland-related Crime

As a high-level organized crime, the gangland-like-organized crime’s social harmfulness is beyond doubt. Hence, all the countries are cracking down on the gangland-related crime. However, the progress of criminal law means that the criminal penalty is gradually becoming non-emotional, calm and rational. When the theory and practice fields of criminal law have focused on the organizer, leader and main participants of the gangland-related crime, application of criminal law to other participants in gangland-related crime should not be ignored. The group of other participants in gangland-related crime has its unique characteristics:tremendous number; having little influence over the organization due to its bottom position; coming originally from the vulnerable members of underclass; with the weak subjective culpability, social harmfulness, personal danger and antisociality; easy to be educated, reformed and saved, etc. Therefore, instead of blindly cracking down on this special group, we should look at the existence of this group from the rational point of view. Compared with the organizer, leader and main participants, we should use the different force and strategy of crackdown to this group. For the application of criminal law, we should take the basic position of "prudent incrimination, lenient with those who obey the law" to criminate and mete punishment correctly. When selecting the prevention and control measures, we should choose the lenient criminal policy "free the small ones" in view of its own particularity, so that establish the long lasting prevention and control mechanism. Only in this way can we be guided to accordingly find the counter-measures of addressing both the symptoms and root cause, can we be able to better prevent and control the gangland-related crime, and can we restore the stable and orderly society. Thus, for the effect of criminal law, we could realize the best legal and social effects of criminal law application:the gangland power can be effectively disintegrated, the aftereffects of criminal law application can be minimized, and the opposite sides of the society can be reduced; for the guided value, this group can be led to yearn for the goodness of human nature and away from the evil of human nature. Finally, the goal of effectively cracking down on the gangland-like-organized crime, and promoting the harmony and stability of the whole social development can be reached.Other than the introduction and conclusion, the article (about43,000words) is divided into five parts: The first part is the judicial practice of other participants in gangland-related crime. Based on a statistical analysis of41relevant cases, it sums up the current situation and problems of "application of criminal law to other participants in gangland-related crime in China", and the unique characteristics of participants in gangland-related crime. The statistical content includes the following situations:the number of participants involved, conviction and sentencing of individual cases, specific application of criminal law, the crime type, etc. Thus, the argument is put forward:the other participants in gangland-related crime should be given special attention. Its existence and development is the product of comprehensive interaction of various factors in the process of social development. Hence, we realize that the gangland-related crime should be treated rationally.The second part is the position and principle for other participants in gangland-related crime:prudent incrimination, lenient with those who obey the law. Due to the unique characteristics of other participants in gangland-related crime, the basic position-"prudent incrimination, lenient with those who obey the law" has been put forward. The existent foundation of the position has been analyzed from four aspects, and then we got the theoretical principle of the position:Confucian doctrine of the mean and the cautious punishment in the ancient Chinese legal culture; the principle of suiting punishment to crime, the principle of modest criminal law and the principle of the criminal individualization in modern criminal law concept. In addition, we’ve also got the realistic basis of the position: the specific provisions of relevant judicial interpretation in "proviso"(China’s current Criminal Law, Article13); and the requirements of criminal policy (justice with mercy) in judicial practice and the requirements for building a harmonious socialist society.The third part is the identification standard of other participants in gangland-related crime. This part explores the basic position held to the other participants in gangland-related crime in the process of conviction, and how to effectively carry out the basic position. Upon conviction, we should strictly differentiate other participants, active participants in gangland-related crime and members of non-Mafia organization. Specially, grasp the differentiation from three aspects:The conviction shall have the premise that the gangland-related organization is existent; subjective crime evaluation of the perpetrator; objective behavior evaluation of the perpetrator. First point, the organization which the actor attend is whether Mafia organization. The second point, the actor whether accept the leadership and management of the organization. On both points, we can differentiate other participants in gangland-related crime from members of non-Mafia organization. However, the subjective attitude when the actor attended in the organization, to what degree at the organization’s lawless and criminal activities, the position and function and influence in the organization. These three elements are the crux of the matter what distinguish other participants from active participants in gangland-related crime.The forth part is the measurement of punishment about other participants in gangland-related crime. This part explores how to effectively carry out the basic position held to the other participants in gangland-related crime in the process of sentencing. When sentencing, we should be lenient with those who obey the law on the premise of following the principle of legality, and we should use the lenient punishment as the starting point for application of criminal law to other participants in gangland-related crime. In addition, the following issues should also be paid attention to:we should consider comprehensively various circumstances upon sentence, judicial workers should make good use of the legal and discretionary circumstances for liberal punishment; and we should abide by the principle of balance between crime and punishment when applying the property punishment, treat differently the meritorious circumstances, and the application of probation, etc. In order to really going to balance between crime and punishment, on the severity of the punishment are different and principle of suiting punishment of crime. This is what not only the achieving the protection of human rights but also the striking crimes.The fifth part is the policy and prevention and control for other participants:choice of criminal policy and construction of long-term mechanism. This part explains the following content:In order to effectively prevent and control the gangland-related crime, criminal policy should be used for this special group of participants in gangland-related crime; prevention and control mechanism should be set up to address both the symptoms and root cause in view of the "Crux". Firstly, for the choice of the criminal policy, this part expounds that there exist defects in the criminal policy-"cracking down on early and little, outcrop hit", and at the same time, proposes that the criminal policy "seize the big ones and free the small" is a more rational choice. This part also explains that the application of criminal policy "free the small ones" could make up the limitation of punishment, achieve the purpose of punishment, reduce the penalty cost, and fundamentally exclude the existence of other participants in gangland-related crime. Secondly, for the construction of prevention and control mechanism, we should establish a long-term mechanism for preventing and controlling the gangland-related crime. When strictly punishing the gangland-related crime with criminal law, we should also conduct good governance over the social environment. And we should strengthen the social control based on the survival social environment of gangland-related crime.