The Analysis Of The Crime Of Organizing Cheating In The Exam

With the publication of the Draft of Amendment Bills of Criminal Law of PRC(IX)and its deliberation,modification as well as its formal effectiveness,the action of organizing cheating in the national exams and interrelated assistance have been explicitly involved in the scope of criminal law in China and been identified as the Crime of Organizing Cheating in the Exams.This is because of the absence of the social sincerity and powerless administrative regulations.As a new crime,it demands a further research on its constitutive requirements,accomplishment criteria,and the distinction of crimes so that it can be provided as the reference for the judicial practice.The Crime of Organizing Cheating in the Exams refers to those behaviors that people organize cheating or offer help during cheating action,which deserve to be punished,in the national exams stipulated in laws.This crime does not only infringe on national examination system but also on the legitimated rights and interests of other participate in the exam.Cheating in the exam is like a queue jumper.The origin of cheating in the exam lies in that social resources cannot satisfy all demanders with such limited time and space.Two factors are involved in cheating in the exam,including “people” and “objects”.The factor “people” includes examinees,surrogate exam-takers,substitute participants,the invigilator and the organizer,etc.The factor“objects” includes transmitter,receptor,transit transmission device,test,answers and the examination room,etc.The action of “organization” refers to a series of behaviors that link “people” and “objects” by means of recruitment and seduction and other ways to improve the examinees 'competence,which could efficiently allot the limited social source by means of providing convenience for a better rank.The exam types are within the confines of the state-specified national exams.The national exams refer to the kind of significant unified exams nationally.Legal provisions are confined to the normative documents enacted and approved by the National People's Congressand its standing committee,exclusive of administrative laws and government regulations.Judgment between accomplished and unaccomplished offense of crime of organizing cheating in the exams can be defined in terms of time and space: boundary of completion of organization and examination room.When the organizer of the crime conducted these behaviors of recruitment,employment,organization,which encroach on the national exam system,it would accomplish the necessary elements of time.When the organizer of the crime breaks the boundary of examination space by integrating the source related to examination,which infringe on the legitimated rights and interests of other participate in the exam,it would accomplish the necessary elements of space.Once the action of organizing cheating in the exam simultaneously meets the two elements of time and space,it should be considered accomplished offense of this crime.In the judicial practice,there are the following characteristics of Crime of Organizing Cheating in the Exam.Firstly,if the breadth of penalty of crime of cheating in the exam is usually less than three years in prison(excluding three years),the term of “severe case” in the article of Crime of Organizing cheating in the exam cannot be conducted in a normative way.Secondly,after the Amendment Bills of Criminal Law of PRC(IX)took effects,during the judicial practice,most of the courts condemn the suspected cheating action as the Crime of Organizing cheating in the Exam,but the conviction named as Crime of Unlawfully Obtaining State Secretes are still conducted by part of courts.Thirdly,when it's analyzed in terms of criminal procedure,the application of concrete compulsory measures for crime of cheating in the exam decides whether the probation system can be adopted.Fourthly,among the cheating cases in the exams,there is no big difference between the crime of organizing cheating in the exam and the crime of unlawfully obtaining state secretes.The cases that are convicted as the crime of organizing cheating in the exam can also be convicted as unlawfully obtaining state secretes but it's not equally adopted vice versa.In general,replacing others,unlawfully using equipment and devices foreavesdropping and secrete photographing are often used as means of organization of cheating in the exam,which will be concurrently punished when the courts do with conviction and sentencing.