On The Judicial Application Of The Crime Of Organizing,Leading And Participating In Mafia-style Organizations

The mafia-style organization is a legal concept with Chinese characteristics,which was originally created by the mainland legislature in the 1990s.Compared with ordinary criminal groups,such organizations are larger in scale and more severely harmed,and have extremely bad influence on normal social order.Therefore,China’s criminal law has set up special charges,and subsequent follow-up has also introduced a number of legislation,judicial interpretations and guidance opinions in order to better combat mafia-style organizations.However,due to the lag of legislation itself and the continuous development of gang crimes,such crimes still have many problems in the process of judicial application,and they mainly focus on the identification of the crime of organization,leadership,and participation in mafia-style organizations.Therefore,according to the idea of "raising questions-analyzing questions-solving questions",this paper will find out the focus of the problem about the determination of this crime from the practical cases,and finally put forward some opinions on the judicial application of this crime by analyzing the disputes in the theoretical and practical circles.Specifically,the article is expanded from the following four chapters.The first chapter is the question,mainly through the sun case and tang case,to explore the prominent problems in the identification of the crime of organizing,leading and participating in mafia-style organizations in the process of judicial application.That is to say,due to the lag of relevant legal provisions and the ambiguity of existing expressions,judicial staff and academic scholars have different understandings of criminal cognizance,which leads to the problem of "higher cognizance" or even wrong cognizance in judicial practice.At the same time,based on the problems in reality,this part of the article further puts forward the research significance of this article,hoping to make some contributions to the improvement of the theoretical system and the progress of judicial application.The second chapter mainly discusses the issue of how to rationally define the concept of mafia-style organization.By combing the legal regulations and theoretical viewpoints of the nature,characteristics of mafia-style organizations,and combining some typical cases in reality,the connotation of this crime is clearly defined.At the same time,in order to avoid confusion of similar concepts,this article also makes a comparative analysis of criminal groups,evil forces and mafia-style organizations,looking for the similarities and differences between various organizations,and provides a theoretical basis for further demonstration of the article.The third chapter discusses the identification of the constitutive requirements of the crime of organizing,leading,and participating in mafia-style organization.This section closely focuses on the three issues of "identification of ’backbone staff in the behavior subject,identification of participating behaviors,and identification of the subjective knowing content of the actors".Based on several supporting criminal laws and regulations under the current criminal policy of "anti-crime and anti-evil",the above-mentioned controversial issues are analyzed and demonstrated from the perspective of hermeneutics in combination with several typical cases,and then the author’s opinions on the determination of the constitution of this crime are put forward.The fourth chapter discusses the unfinished forms and crimes of the crime of organizing,leading,and participating in mafia-style organizations.First of all,in terms of the unfinished form of the crime,although there have been no cases of unfinished form of the crime in judicial practice,there is still room for theoretical discussion on this issue.That is to say,there is an unfinished form of incapable organization,leadership and participation.Secondly,in terms of the form of the number of crimes in this crime,this article mainly analyzes the connotation of the principle of prohibiting repeated evaluation,and discusses whether the punishment for multiple crimes in this crime violates this principle.