Studies Of Several Problems Concerning The Crime Committed By Criminal Gang-like Orgnization

When the Criminal Law of PRC was amended in 1997, there had not emerged so much crime by criminal gang-like organization in China. Under such circumstance, it was quite foresighted for the legislative to change its former experiential method by providing for crime by criminal gangs/criminal gang-like crime in Article 294 of the Criminal Law. However, there are a lot of questions existing in the legislative language, legislative method and theoretical support, as we have no sufficient understanding of or study on such crime. The legislative has adopted a descriptive and generalizing legislation mode due to lack of fully understanding of the legal characteristics for crime by criminal gang-like organization. Thus, the development of actual situation is now rigorously challenging both our legislative and judicial wisdom and our foresight and insight in studying law theories. We are embarrassed to find that the special actions of "beating criminal gangs and removing evil" commenced in the recent years have made the legislative so ineffective in dealing with so many problems. With the development of "anti-gangs" actions, more and more problems emerged and we need to solve more and more deep-seated questions. Therefore, we must carefully study criminal gang-like organization concerning its basic concept, its relationship with criminal gangs, its nature and characteristics, the relevant criminal policy aim and judicial determination and so on, and answer the relevant questions, so as to meet the requirements raised in judicial practice and to guide the same.Starting from the analysis on the concept of "crime by criminal gang-like organization", this Article points out that the social character of gang-like organization exists in the essence of its relying on the society, the strong combination of anti-society and internal organization. Meanwhile, the protection by legitimate political force is the reflection of the sociality of criminal gang-like organization and the necessity of its criminality and also the wise choice of criminal strategy. The control by criminal gang-like organization in some area as well as industry is in particular the reflection of such characteristics.The writer further attempts to definite, with some conditions, the concept ofcriminal gang-like organization in criminal law. According to the writer, the criminal gang-like organization refers to the social organization, which consists of more than 3 persons with the purposes of seeking momentous economic interest. Such organization is supported by violence and menace and protected and connived by legitimate political force, and illegitimately controls some area and industry.This Article then goes to analyze the shortage of our legislation and reaches the conclusion that such legislation represents the impulsion of maintaining the current social political system. The governments will not accept the existence of anti-social organization and will take actions to avoid the latter's penetration into the government and corruption of the government. As regards the relationship between the criminal gang-like organization and criminal organization, the writer is of the view that they differ in number and extent but are the same in essence; the former is at the stage of rudiments and the latter is well developed.In the meantime, the writer has analyzed to some extent the character of criminal gang-like organization and pointed out that the characters of criminal gang-like organization in criminal law are mainly: (i) illegitimate control; (ii) rigorous organization; (iii) strong economic force; (iv) political protection umbrella; (v) violence and corruption. The writer is of the view that among the above characters, violence is only a possible resort as well as the last protection. But in criminal practice, to seek and obtain political protection becomes the most safe, better benefiting and therefore the most usual way. Thus, in Chapter Three of this Article, the writer has analyzed the characters of "protection umbrella" and the social causes, criminal law interpretation causes and public acceptance requirements on determining the characters of "protection umbrella" of criminal gang-like organization. In the end, the writer has commented the shortages of the relevant legislation and criminal policy, and is of the opinion that the current law on "beating criminal gang" lacks of foresight, ignores the design of perfection of policy. The writer also thinks that problems exist in the current law in stipulating the names of crimes and the relevant penalties. Therefore, the writer has put forward some relevant ideas.