Judicial Application Of Crime Of Organizing,Leading And Participating In Underworld Organizations

With the development of social economy in China,organized crime of underworld nature is becoming more and more serious in our country.Accurate application of the crime of organizing,leading and participating in organized crime of underworld nature is the key to effectively punish related crimes of underworld nature.When applying this crime in judicial practice,it is necessary to correctly deal with the identification of underworld-like organizations,the definition of the scope of all the crimes of the principal elements and the relationship between responsibility-bearing and other crimes of underworld-like organizations,so as to avoid striking too wide or too narrow,punishing too heavy or too light,so as to accurately determine the nature and sentencing appropriately.As for the criminal law identification of underworld organizations,we should grasp their core characteristics.According to the provisions of judicial interpretation,gangland-like organizations need four characteristics: organizational characteristics,economic characteristics,behavioral characteristics and illegal control characteristics.When identifying the underworld-like organizations,it is necessary to take the common characteristics of the underworld-like organizations as the conditions for their establishment.As for which characteristics have the common characteristics,it must be based on the nature of the underworld-like organizations."Illegal control" is its essential characteristic,which embodies the ability and attribute of the underworld-like organizations to confront the government openly.It has seriouslyweakened the government's public management function in a certain industry or region.The huge criminal energy released by them has greatly destroyed the social economy and the normal social life order of ordinary citizens.This is precisely why legislators have severely cracked down on the "organization".The root cause of evil.The scope of "all crimes" should be defined accurately on the determination of the criminal responsibility of the leading elements in the underworld organizations.Because it is the core of the underworld-like organizations,the law also makes special provisions on their responsibilities,that is,the principal elements should bear the criminal responsibility of "all crimes committed by the underworld-like organizations under the leadership of their organizations".As a link between crime and penalty,criminal responsibility refers to the scope of blame horizontally and the degree of criminal responsibility vertically.The determination of "all crimes" should be grasped from two aspects: the scope of responsibility and the degree of responsibility.In terms of the scope of responsibility,the principal element "does not need to be responsible for the part deviating from the intent of joint crime",that is,to distinguish the scope of the principal element's overall and general intentions,to distinguish the identification of responsibility under the circumstances of knowing and not knowing,and to correctly determine the weight of the responsibility of the principal element.In terms of the degree of responsibility,the degree of criminal punishment should be determined according to the principle of suitability between crime and punishment,the principle of strict punishment and the principle of self-responsibility for crime,as well as the circumstances and functions of criminal acts.Only by identifying these two aspects can we accurately determine the responsibilities of the leading members of the underworld-like organizations,and can we make the crime,responsibility and punishment adapt to each other.With regard to the issue of joint punishment for crimes committed by triad-like sub-organizations and other crimes,we should accurately define the time nodes for the establishment of triad-like organizations and deal with them separately at different times so as to accurately determine their nature.Since illegal control is the core feature of underworld-like organizations,judicial organs can regard illegal control as the time node for the establishment of underworld-like organizations.Criminal acts committed before the illegal control of criminal organizations are only assessed as the conditions for the establishment of criminal organizations of the underworld nature,that is,they belong to a part of the crime of underworld organizations and are punished as one crime.For the criminal acts committed after the criminal organizations have formed the state of illegal control,since the criminal organizations have met the essential characteristics of the underworld organizations,and established the crime of organizing,leading and participating in the underworld organizations,and then committing other crimes,they should be punished with the same crime as other crimes.By taking the characteristics of illegal control as the time node to identify the establishment of the underworld-like organizations,the illegal and criminal acts before illegal control are used to prove the underworld-like organizations,and the illegal and criminal acts after illegal control are punished together with the crimes of organizing,leading and participating in the underworld-like organizations,thus effectively avoiding repeated evaluation.