On The Judicial Determination Of The Organizations Of The Underworld

China has incorporated the criminal crimes of the underworld nature into the perspective of criminal law,and revised the evaluation criteria for such crimes through different forms such as legislative interpretation,judicial interpretation,criminal law amendments,symposium minutes,and guidance.At the same time,through several "black-and-black" campaigns and the ongoing "black-sweeping evil" special struggle,the efforts of the people have further strengthened the prevention and crackdown on this type of crime.It can be said that a great governance effect has been achieved..But it is undeniable that it has also exposed many problems.The judiciary identification of underworld organizations is the basic link for the identification and attack of organized crimes of the underworld nature.It is also the basis and premise work of the special struggle of "swept the evils and eliminate evils",and it is related to the size and punishment effect of the relevant crimes.This paper locks the research perspective into the judicial recognition of the underworld organization with the highest degree of attention and the hottest discussion in the judicial practice.It hopes to rationalize and analyze the logic and key points of this special criminal organization.Integrity and unity to correct and avoid confusion or broadening in the identification.In addition to the introduction and conclusion,the article is divided into five parts:The first part clarifies the legal and normative documents for the identification of underworld organizations.In the chronological order,the provisions of the Criminal Law of 1997 for the first time since the organization of the underworld organization were sorted out and introduced,and the development and changes of the organization of the underworld nature between each regulation were refined.Understand and grasp the real key points and difficulties in the judicial identification work of the underworld organization,so that the follow-up identification work can be carried out in a targeted manner.There are two legal interpretations in the judicial practice,as well as the "Dimensions of the Symposium" and the "Guidance Opinions".When there are different provisions on the same constituent elements,the judicial personnel should handle the selection and application.The legislative interpretation should be given priority because of its higher effectiveness;the 2015 Minutes of the Symposium should be given priority in the case of supplementing and refining the 2009 Minutes of the Symposium;two Minutes of the Symposium Where there is any inconsistency with the 2018 Guiding Opinions,the provisions of the Guiding Opinions shall prevail.The second part is the definition of the concept of the organization of the underworld.Whether or not to define the concept of the organization of the underworld nature and how to define it,the current academic world has two different positions: the necessary and the unnecessary,and the different definitions of the morphological distinction and the abstraction of the law.The lack of the concept of the underworld organization in the current legislation has led to different understandings in the specific application of judicial personnel,and it is also an important reason for making judicial recognition work difficult to unify.Therefore,it is necessary to define the concept of a triad organization.Foreign triad organizations have rich legislative experience,with the United States,Italy,and Japan as the typical example,especially the concept of the United Nations organized criminal group.The author suggests that the academic community pays attention to the definition of the concept of criminal organization,and puts forward a preliminary understanding of this concept in combination with the provisions of the criminal law and the need for international joint crime prevention.It is expected that teachers in the academic circle will give perfect corrections.The third part identifies the four legal characteristics of the underworld organization.Although the requirements of the various legal documents on the constituent elements of organizational characteristics are constantly improved and refined,there are still different understandings and understandings in judicial practice.This phenomenon is related to the various regulations and narrative styles.It is believed that the current research should first concise and summarize the key points of the identification,and then carry out the identification one by one.While explaining the constituent elements of the law,there are no clear questions about the number of people's bottom line and the existence of the bottom line,and the author's views are given in light of the reality of judicial practice and the theoretical field.The duration of the organizational characteristics shall be more than 2 years,the number of people shall meet more than 10 persons,the organizers and leaders shall be complete and the main members shall be stable;the number of economic characteristics funds shall provide a certain bottom line,and the sources of funds may be illegally obtained or legally obtained.Can be obtained by the organization or by individuals,as long as it is used for the development of the organization can be counted as organizational strength;behavioral characteristics must contain certain violent attributes,must have more than one activity has met the nature of the crime,must be implemented multiple times and more The criminal behavior;the harmful characteristics must cause objective oppression to the unspecified object within a certain scope,especially the psychological fear of the victim group and invalidate the rule of law rule in the scope.The fourth part is the grasp of the essential characteristics of the underworld organization.The identification of the four characteristics is not decentralized,juxtaposed,and not related to the primary and secondary,but should be an interconnected whole to form a synergy.The key to the formation of synergy is to find the fulcrum of the essential features.Summarize and comment on the theoretical controversy about the essential characteristics,and think that organizational characteristics,organized violence,behavioral characteristics,and systematic features cannot be regarded as the essential characteristics of the underworld organization.Hazard characteristics should be the essential characteristics of the underworld organization because it can reflect the essential attributes of such organizations and form a distinction with other organizations.The identification of other features should reflect the requirements of the essential features.The lack of essential features means the invalidity of other features.The identification of the four features should be developed as a logical association.The fifth part distinguishes the underworld organization from other related organizations.This section is intended to explain which organizations cannot be dealt with as underworld organizations to resolve the division between this crime and the crime.The underworld organizations and the underworld organizations are born in different social forms.There is a fundamental difference in this point.At the same time,they also form a distinction between the degree of organization,the scale of economic power,the harmfulness,and the black culture.The evil forces develop from criminal gangs.However,the number of people is more than three,with fixed members and different division of labor.Members are temporarily recruited,the degree of organization is low,and economic strength is not required.The most important thing is that illegal control has not yet been reached;evil criminal groups and criminal groups have existed The genus relationship is slightly higher than that of the evil gangs.The key difference with the underworld organization is that the purpose of illegal control is not clear.