| Over the years, China’s criminal law field have paid less attention toresearch on organizing offender, and research results on it is very few.The educational world has the massive achievements on instigator,accomplice and executor,which formed a sharp contrast to organizingoffender. Until now, criminal law field have not achieved the basicmutual recognition on many basic theory questions on organizingoffender, including its concept, nature, establishment conditions,existence scope and type, suspended situation, crime quantity, and therelationship with instigator and status.The author think that suchphenomenon does not favor the display of criminal law theory on theinstruction function, deepening the fundamental research on organizingoffender is very necessary. Therefore, on the basis of brief review thefundamental research condition, this article launches a more thoroughelaboration on the fore-mentioned basic theory questions aboutorganizing offender. On the foundation of the viewpoints in the educational world, the author proposes own viewpoints to provide thetrifle enlightenment on deepening the research on organizing offender.In addition to the introduction, the body of the article is divided intosix parts, for a total of thirty-one thousand words.The first part is the fundamental research condition review of theorganizing offender. This part through brief review on the fundamentalresearch condition on organizing offender in Russia and Germany, Japanand other mainland legal system countries, draws a conclusion that: Ininsisted limits in the principal offender concept’s foundation, mayincrease one kind of new common perpetrator type is the organizingoffender, this is a feasible efficient path to solve Germany’s behaviorcontrol theory and Japan a difficult problem which conspires the commonprincipal offender theory to face. From this point of view, Russia andother countries on the criminal legislation on organizing offender tomainland legal system countries and so on Germany-Japan criminallegislations have importantly profit from the value. The second part is the concept and the nature of the organizingoffender. This part in violates the concept to the educational worldexisting related organizing offender and the viewpoint to carry on theevaluation in the foundation, the author proposes own viewpoints:Theorganizing offender has dual meanings. As one kind of commonperpetrator, what refers to is in the joint offense, implements behaviors onorganized behavior, led behavior, planned behavior, directed behavior tocommon perpetrators; As one kind of crime participation modus, whatrefers to is by organized behavior, led behavior, the planned behavior,directed behavior to the crime implementation boost function crimeparticipation modus. This part in mediated the accomplice independenceto the mainland legal system criminal law theory’s accomplicedependency saying that carried on the outline and the major point whichargued about the accomplice dependency and the accompliceindependence carries on the synopsis to our country educational world inthe foundation, on the nature of organizing offender,the author proposesown viewpoint：The organizing offender have the duality, not only has the dependency, but also has certain independence.The third part is the tenable conditions of the organizing offender.This part on the organization the objective aspect and the subjectiveaspect on the tenable conditions, has carried on a more thoroughelaboration. On the basis of analyzing the scholars’ viewpoints, theauthor proposes own viewpoint: The objective aspect of the organizingoffender is organizing behavior, the subjective aspect is the organizationintentionally. The organized behavior is refers to may exist in themajority intentional offenses, the author implements the organized, theled, the planned, directed other perpetrators to implement the crime thejoint offense behavior. The understanding factor intentionally of theorganizing offender is the dual understanding, the will factor intentionallyof the organizing offender is the dual wills, the organizing offender’sintention is the dual understanding and the dual will of organic synthesis.Under our country present criminal law stipulation and the theory frame,one-sidedly organizing offender is untenable. The fourth part is the existence scope and the type of the organizingoffender. This part in carries on the reasonable classification after jointoffense’s form, has made a clear limits to the gang crime’s scope, carry onthe detailed analysis on the possibility in which the organizing offenderexists in each kind of joint offense form, has drawn own conclusion. Andattempts from other angles, make classifications on the organizingoffender according to other standards.The fifth part is the related crime shape of the organizing offender.This part elaborates the suspended situation and crime quantity of theorganizing offender, including the crime preparation, the criminal attemptand the discontinuation of the organizing offender. This part has alsocarries on simple discussion on the crime quantity of the organizingoffender, including continues the commit, the imagination to competegathers the commit, the result to add the felon. The sixth part is the correlation theories questions on the organizingoffender. This part mainly discuss the relationship between organizingoffender and instigator, and relationship between organizing offender andthe status relations has also been carried on the elaboration. |
