Research On Difficult Issues Of Organizing, Leading And Participating In Mafia-like Organization

This paper adopts comparative analysis,theoretical analysis,case analysis and other methods to study and demonstrate the difficult problems in organizing,leading and participating in the crime of organized underworld.Starting from the conceptual characteristics,constitutive elements and typical problems in the application of the triad nature organization,and drawing lessons from the theoretical research of relevant scholars and judicial cases,the author puts forward his own views and views on the controversial issues.The first part systematically expounds the concept and characteristics of the triad nature organization.This paper introduces the legal concept of the triad nature organization and the international general concept,and compares the similarities and differences between the triad nature organization and related concepts in detail,mainly to distinguish the triad nature organization from criminal groups,evil forces and terrorist organizations.In this paper,the author makes an academic analysis and gives his own opinion on the controversial issues involved in the four features of the crime stipulated in Article 294 of the Criminal Law.Including the identification of organization formation time and duration in organizational characteristics;Among the behavioral characteristics,"multiple illegal and criminal activities","multiple" means more than three times,and at least one of them should be a criminal behavior;The "other means" of behavior characteristics are compatible with soft violence,but soft violence needs to reach a certain degree;The identification of black-related assets in economic characteristics should consider the way and use of profit;The identification of "illegal control" and "significant influence" among the harmful characteristics.The second part analyzes the key issues involved in the constitutive elements of this crime.Make clear that the object of this crime is the social security management order;In the objective aspect of crime,organizational behavior and leadership behavior are divided.The two should not be divided according to the time node of the establishment of the organization,but should be divided according to the effect range of behavior.It explains what kind of behavior should be considered as participating behavior;In the aspect of the subject of crime,the author introduces the criterion of identifying the backbone members of active participants.In the subjective aspect of crime,the subjective form of the crime is intentional,including direct intentional and indirect intentional.But what constitutes "knowing" varies by identity.The third part enumerates and analyzes the typical difficult problems in the application of this crime.Firstly,the problem of the number of crimes,and then the judgment of the rationality of combined punishment of several crimes;Secondly,according to the documents issued by the state successively,the situation of dealing with the crime of omission and the situation of not establishing the crime are sorted out,and the rationality of its establishment is explained.Finally,it is about the identification of the unfinished form of this crime.The fourth part aims at the problems in the above analysis and puts forward some suggestions for improvement.Including the introduction of the concept of "organized crime" and the elaboration of the characteristics of this crime;How to solve the problem of repeated evaluation of the crime legislation;How should the setting of legal punishment meet the needs of practice.