On The Implement Military Order In Military Criminal Law

For soldiers,all countries,ancient and modern,require strict compliance with the orders of their superiors.This is not only a basic condition for the maintenance of military order,but also an important factor for ensuring the combat effectiveness of the military.However,it has always been controversial whether lower-level soldiers should resolutely execute all orders from higher levels,such as illegal orders.In the traditional stipulations of military laws of various countries,the execution of superior orders is a legitimate act,so as an executor at a lower level,it is not necessary to bear criminal responsibility for its actions.But the tragic experience of the First World War made people reflect on this model of absolute exemption,and some international treaties protecting the victims of war began to take shape gradually.Many atrocities committed by soldiers during World War II based on obedience orders have further promoted people's opposition to this exemption.In order to curb war crimes and punish war criminals,the Nuremberg trial rejected the execution of superior orders as a justification,but believed that obedience to superior orders did not exclude the fact that they constituted war crimes.After this,the principle of "superior order is not exempt" has been gradually established in international criminal law with the continuous efforts of all countries in the world.This principle has a far-reaching impact on the domestic legislation of various countries regarding the implementation of military orders.Many countries have been inspired by it to set clear restrictions on the exemption conditions for the execution of orders.This is an absolute exemption,and only when certain conditions are met can the criminal liability of the executor be exempted.The duty of soldiers is obedience.This concept has always been recogni Med by our country's ancient and modern strategists.Therefore,whether it is the traditional provisions of China's military law or the current provisions,it emphasi Mes that soldiers' orders to superiors should be absolutely obeyed.In addition,Article 427 of China's Criminal Law clarifies the criminal responsibility that should be assumed by superiors who violate the relevant regulations and abuse military power to instruct subordinates to commit illegal acts.However,for the subordinates who specifically execute the orders of the superiors,China's criminal law does not stipulate that they should be liable when complying with the superiors.On the contrary,whether it is military law or criminal law,corresponding punishment measures are set for theactions of the lower-level soldiers to resist the orders of the higher level.In addition,the general rules of China's criminal law do not clearly stipulate the act of executing the order,but in the theory of criminal law,the act of executing the superior order is regarded as one of the acts of the law,which is the cause of violation of the law.Therefore,it can be seen that in the existing criminal law provisions of our country,the act of executing superior orders is of course exempted,and logically speaking,regardless of whether such orders comply with the provisions of the law.Military criminal law has the dual attribute of military law and criminal law,and the attribute of military criminal law in the aspect of criminal law has the limitation effect on the attribute of military aspect.Therefore,the regulation of military criminal law should not only pay attention to the special requirements of military behavior,but also ignore the observance of its value in criminal law.At present,China's military criminal law only pays attention to its military requirements for the execution of military orders,but ignores the requirements of the criminal law.Under the background of military rule of law,we should pay more attention to the application of "criminal law" attribute in military criminal law..Based on this,The proviso should be added to the existing provisions of Article 421 and 428 of the criminal law of Our country,so as to give the subordinate soldiers the right to refuse execution under specific circumstances.That is,"...However,a subordinate shall not be punished for refusing to execute the order if he knows that the order of his superior violates the provisions of the law and that the execution of the order will immediately or inevitably cause damage to his lawful rights and interests." When a subordinate soldier chooses to carry out an order from a superior when he ought to refuse to do so,thus causing corresponding damage,his ACTS are punishable and should be held accountable according to the specific crimes he has committed.