论黑社会性质组织的认定

发布时间：2018-05-06 09:22

本文选题：黑社会性质组织 + 黑社会组织　；参考：《江西财经大学》2012年硕士论文

【摘要】：旧中国的黑社会是与意大利的黑手党、日本的暴力团相齐名的,是拥有最悠久历史的世界三大黑社会组织之一。在新中国成立后的几十年,黑社会组织在大陆几近灭绝。但自1980年前后起,黑社会组织又在大陆死灰复燃,甚至有愈演愈烈之势。但是这些组织还不具有黑社会犯罪的完整特征,但它比一般的集团犯罪严重,却又不及典型的黑社会犯罪,所以被称之为“黑社会性质组织”。要准确地认定黑社会性质组织,必须先对黑社会性质组织的法律特征进行深刻分析。在“组织特征”方面,组织结构上具有稳定性、严密性和人数多的特点。严密性是指其内部结构比较紧密,分工明确,有着严密的纪律规则。在实践中,只有对与其组织有关的各种活动进行串并案,从而发现其内在的联系。对于“组织纪律”的认定,不需要组织必须具有明确的组织名称、纲领、章程、活动规约等。在“经济特征”方面,明确黑社会性质组织的最终目的是追求巨额经济利益。其获取经济利益的方式也是多种多样的,有暴力如收取保护费,也有可能以非法手段经营合法生意获取财富,这需要我们在司法实践中对其形式做出准确判断。在“行为特征”方面,认定是否为组织犯罪需要具备以下两个方面,以组织名义实施且其目的是为了维护组织利益。在“非法控制特征”方面,“保护伞”不再是认定黑社会性质组织的必要特征,而是一个选择性特征。对于“称霸一方”的认定,其实现“称霸一方”的手段有暴力手段以及“保护伞”的包庇；其范围也应该是具体的区域或行业；其结果应该是对一定的区域和范围形成了非法控制。黑社会性质组织与其他犯罪组织存在一些区别。与恐怖组织相比,其犯罪目的不同,黑社会性质组织不具有政治性；其危害程度不同,黑社会性质组织的危害只表现在特定地域范围内；其犯罪手段不同,黑社会犯罪组织的手段多种多样,而恐怖组织犯罪手段却比较单一,通常是暴力；其侵害客体不同,黑社会性质组织侵害的主要是影响其经济利益实现的具体目标,而恐怖活动的目标则具有随意性。与邪教组织相比,其组织性质不同,黑社会性质组织是暴力性集团,邪教组织是一个邪恶的宗教组织；其成立目的不同,黑社会性质组织建立主要是为了获取经济利益,进行非法控制,邪教组织主要是为了加强对内部的控制；其组织结构不同,黑社会性质组织分工明确；其侵害对象不同,黑社会性质组织侵害的是一定区域和行业内的人,而邪教组织侵害的是它的信徒；其手段不同,黑社会性质组织是主要通过暴力,邪教组织通过残害心灵的方式。
[Abstract]:The underworld in old China was one of the world's three most famous mafia and violent groups in Italy and Japan. In the decades after the founding of New China, underworld organizations were almost extinct on the mainland. But since 1980 or so, triad organizations in the mainland, and even intensified. However, these organizations do not have the complete characteristics of underworld crime, but they are more serious than ordinary group crimes, but they are not as good as typical underworld crimes, so they are called "underworld organizations". In order to identify the underworld organization accurately, the legal characteristics of the underworld organization must be deeply analyzed. In terms of organizational characteristics, organizational structure is characterized by stability, tightness and large number of people. Tightness refers to its tight internal structure, clear division of labor and strict rules of discipline. In practice, only the various activities related to its organization are linked together to discover its internal connection. There is no need for an organization to have a clear organization name, program, charter, activity protocol, etc. In the aspect of economic characteristics, the ultimate goal of underworld organizations is to pursue huge economic benefits. There are a variety of ways to obtain economic benefits, such as violence, such as collection of protection fees, but also the possibility of illegal means to operate legal business to obtain wealth, which requires us to make an accurate judgment of its form in judicial practice. In the aspect of "behavior characteristics", it is necessary to have the following two aspects to determine whether the organized crime is organized crime, and its purpose is to safeguard the interests of the organization in the name of the organization. In the aspect of "illegal control characteristics", "umbrella" is no longer a necessary feature to identify triad organizations, but a selective feature. For the determination of "hegemony party", the means of realizing "hegemony party" include violent means and protection umbrella, and its scope should also be specific region or industry. The result should be illegal control over certain areas and areas. There are some differences between underworld organizations and other criminal organizations. Compared with terrorist organizations, their criminal purposes are different, the underworld organizations do not have a political nature; their degree of harm is different, the harm of such organizations is only manifested in a specific geographical scope; their criminal means are different. The criminal organizations of the underworld have a variety of means, but the criminal means of the terrorist organizations are relatively simple and usually violent. The main targets that affect the realization of the economic interests of the criminal organizations are the specific targets which affect the realization of their economic interests. The targets of terrorist activities are arbitrary. Compared with the cult organizations, their organizational nature is different, the triad organizations are violent groups, the cult organizations are evil religious organizations, their purpose is different, the triad nature organizations are established mainly to obtain economic benefits. In carrying out illegal control, cult organizations mainly aim to strengthen internal control; their organizational structure is different, and the division of labor between the underworld organizations is clear; and the targets of their aggression are different, and the people in a certain region and industry are attacked by triad organizations. The cults are invading its followers; their means are different. The underworld organizations are mainly through violence, and cult organizations through the way of harming their hearts.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D924.3

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