Study On Judicial Determination Of The Crime Of Organizing,leading And Participating In The Mafia-type Organization

The crime of organizing,leading and participating in mafia-type organization is called the latest form of "catch all crime",the main reason lies in its original intention of legislation against responsibility doctrine and the provisions of criminal law are not rigorous and accurate.However,whether the judicial application of this crime transforming into catch all crime has always lacked the objective presentation of practical data.In the past,the academic research and discussion on this crime focused on the theoretical study,lack of empirical research and the samples were limited to individual cases and a few types of cases.This paper takes judicial cases from 2018 to 2020 as the research sample,uses the methods of induction,classification and descriptive statistics to present the objective situation of judicial recognition and explore the characteristics and rules of conviction.In addition to the introduction and the conclusion,this paper includes the following research contents:The first part introduces the three core problems about the crime of organizing,leading and participating in mafia-type organization as well as the sample selection and research methods.The core disputes are as follows: the proteced legal interests has not been determined,the standard of characteristic identification is not unified,and the subjective identification is controversial.There are several theories about the protected interests such as public order theory,social management order theory,economic and social life order theory,social public social order theory,complex object theory.The identification standard of the characteristics of mafia-type organization in judicial interpretation is constantly changing with the criminal policy,and theoretical scholars have different views on the identification standard of characteristics.On the subjective side,the degree of "know or should know" in judicial interpretation is questioned,and there are different views on "partial features" and "all features" in knowing content.The second part is the judicial practice and theoretical analysis of the protection of legal interests.According to the number of identified legal interests and the content of the final determination of legal interests,the identification methods of judicial practice can be divided into three types,namely "single legal interests are equal","multiple legal interests are parallel" and "multiple legal interests are not equal".The results show that the economic and social life order is the most common type of legal interest in judicial practice,and the theory of "economic and social life order" is the highest agreement between judicial practice and theory.The judicial cognizance of infringement of legal interests shows the characteristics of diversification and centralization,and there are problems of non-standard content and confusion in cognizance of legal interests.The third part is the judicial identification of criminal organization and the analysis of their relationship with theory.The statistical results show that the number of people focuses on the range of 10 to 15.The largest number is more than 100 people,but the least is 5 people.The identification of key members and active participants in the case is not comprehensive enough,showing randomness and no consensus.The duration of the organization is concentrated in the range of 1 to 5 years.One year is an obvious inflection point,the longest organization exist for 23 years the shortest only two months;The establishment time of the organization is usually determined by landmark events.With the "corporatization" of criminal organization,the establishment time of the company has become the main identification type.80% of Mafia-type organization have an economic strength of more than 1million,far higher than the standard line of judicial interpretation;The specific performance of economic communication is interpersonal behavior.The behavior means are mostly based on violence and threat,but there are also criminal organization that only use "soft violence";"Other means" mainly include disturbing,seizing property and gathering people to build momentum;The identification of the number of illegal and criminal activities is incomplete,and the statistics of illegal acts are missing in some cases.The lowest performance of "multiple" in practice is 4 times.In practice,the utilization rate of hazardous elements is higher than that of illegal control elements,and "certain areas" are mostly living places,concentrated in villages and towns;"Certain industries" mainly include gambling industry and private lending industry.As a whole,Mafia-type organization are the focus of judicial recognition.The data in various characteristic elements are mostly concentrated in a specific interval,showing the "centralization" of the portrait of Mafia-type organization in the big data state.There are two problems : two "disunity" in the overall identification logic,unclear identification of elements and details and serious formalization of the identification process.The fourth part is the analysis of subjective judicial expertise and its relationship with theory.The study found that the number of cases using "clear know" accounted for the absolute majority,while the number of cases using "should know" to infer knowledge was only 15.The types of known content are chaotic,various content types coexist in the survey,and there are great differences between them.Theoretical "partial feature cognition" is fit with judicial practice more than others.Generally speaking,there is a lack of attention to subjective identification,and there are few identification cases of specific contents.The main problems are identification standards,inconsistent contents and inaccurate wording.The judge even confused the concept of criminal organization and underworld organizations,holding that the doer knew clearly that the content was "Underworld Organizations".In the fifth part,it is concluded that the crime of organizing,leading and participating in the mafia-type organization exists the phenomenon of enlargement and application in the actual trial and judgment,and there is still exist potential hidden dangers of transforming the catch all crime if the relevant standards are not reasonably standardized.After the judgment standard of conviction elements is perfected,the protected legal interests is a complex legal interest composed of normal economic and social order and citizen’s personal and property rights.Secondly,the identification of mafia-type organizations needs to meet the four characteristics at the same time,the number of more than10 people,the duration of more than one year,the core members and active participants are equal;The amount of organized crime is not economic strength,so the standard line of economic strength should be raised appropriately.The behavior means must have the property of violence,soft violence can be used as "other means",the identification of "multiple illegal and criminal activities" should be appropriately increased to more than 4 times;"Certain area" mostly refers to the living area with residential function,mainly towns and counties."Certain industry" can be either legal industry or illegal industry.In the subjective aspect,it is necessary to ensure that the doer knows clearly to the extent,and realize that the organization he participates in has some characteristics of mafia-type organizations in terms of content.Appropriate judicial cognizance logic is: behavior → cognizance of the mafia-type organization → cognizance of other constituent elements → Judge the cause of obstruction → constituent elements meet cognizance of this crime.