黑社会性质犯罪的若干问题研究
发布时间：2018-07-18 17:07
【摘要】： 黑社会性质组织犯罪是我国1997年刑法新增设的罪名。这一罪名的设立，为我国司法实践惩治黑社会性质组织犯罪提供了法律依据。但在司法实践中，如何界定黑社会性质组织这一问题，众说纷纭，莫衷一是。黑社会性质的组织犯罪是我国涉黑组织犯罪的法定形式，界定涉黑组织犯罪的范围直接关系到对有关涉黑案件的打击圈的大小问题，在当前打黑除霸专项斗争中，由于司法机关对于什么是黑社会性质组织犯罪处于模糊状态，而且学界对组织犯罪的观点又众说不一，尚无统一定义，所以也就形成了对黑社会性质组织认定的混乱局面，因此，我们的立场是：对黑社会性质的组织犯罪必须要打击，但对不符合法律和司法解释规定的涉黑案件，不能适用刑法294条的规定。涉黑组织犯罪的种类只有两种，即黑社会性质组织犯罪和黑社会组织犯罪，界定有组织犯罪应当揭示其本质特征，无论是刑法上规定的黑社会性质组织犯罪，还是刑法上没有规定的黑社会组织犯罪，都有一个共同的本质特征，即犯罪的有组织性，只有符合这一特征，才能认定为组织犯罪。从最高司法机关的规定来看，最高人民检察院，，最高人民法院，公安部对涉黑案件也不是抛开规格，盲目打击的。 根据刑法第294条和2000年最高人民法院，关于审理黑社会性质组织犯罪的案件的具体应用了法律若干问题的解释的规定，黑社会性质的组织一般应具备以下四个特征，即：组织结构，经济势力，非法保护和行为方式。 在罪刑法定时代，只有扎扎实实完善立法上下功夫，才能依照法律的明文规定，有理有节的打击有关犯罪，所以从长远利益来看，完善刑法的有关条款，完善打击组织犯罪的程序立法，完善有关司法解释刻不容缓。
[Abstract]:The crime of underworld organization is a new crime in 1997 criminal law of our country. The establishment of this crime provides a legal basis for our judicial practice to punish the organized crime of underworld nature. However, in judicial practice, there are different opinions on how to define the underworld organization. The organized crime of the nature of the underworld is the legal form of the criminal organization crime in our country. The definition of the scope of the criminal organization crime is directly related to the problem of the size of the crackdown circle of the relevant criminal cases, and in the current special struggle against criminal gangs and tyrants, Since the judiciary is in a vague state of what is a gangland organized crime, and the academic community has different views on organized crime and there is no unified definition, it has also formed a chaotic situation for the identification of triad organizations. Therefore, our position is that we must crack down on organized crimes of triad nature, but the provisions of Article 294 of Criminal Law cannot be applied to criminal cases which do not conform to the provisions of law and judicial interpretation. There are only two kinds of organized crimes involving criminal activities, namely, organized crime of underworld nature and organized crime of underworld nature. The definition of organized crime should reveal its essential characteristics, whether it is organized crime of underworld nature as stipulated in criminal law. There is a common essential characteristic of the organized crime in criminal law, that is, the organized nature of the crime, which can be regarded as an organized crime only if it accords with this characteristic. Judging from the provisions of the Supreme Judicial organs, the Supreme people's Procuratorate, the Supreme people's Court, and the Ministry of Public Security are not blindly cracking down on criminal cases regardless of their specifications. According to Article 294 of the Criminal Law and the Supreme people's Court in 2000, the specific application of the interpretation of certain problems of law to the trial of cases involving organized crimes of a triad nature should generally have the following four characteristics. Namely: the organization structure, the economic power, the illegal protection and the behavior way. In the era of legally prescribed punishment for a crime, only by making efforts to improve the legislation in a down-to-earth manner can we strike at relevant crimes in accordance with the express provisions of the law and in a reasonable and disciplined manner. Therefore, from the perspective of the long-term interests, we should perfect the relevant provisions of the Criminal Law. It is urgent to perfect the procedural legislation against organized crime and to perfect the relevant judicial interpretation.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D917
本文编号：2132576
[Abstract]:The crime of underworld organization is a new crime in 1997 criminal law of our country. The establishment of this crime provides a legal basis for our judicial practice to punish the organized crime of underworld nature. However, in judicial practice, there are different opinions on how to define the underworld organization. The organized crime of the nature of the underworld is the legal form of the criminal organization crime in our country. The definition of the scope of the criminal organization crime is directly related to the problem of the size of the crackdown circle of the relevant criminal cases, and in the current special struggle against criminal gangs and tyrants, Since the judiciary is in a vague state of what is a gangland organized crime, and the academic community has different views on organized crime and there is no unified definition, it has also formed a chaotic situation for the identification of triad organizations. Therefore, our position is that we must crack down on organized crimes of triad nature, but the provisions of Article 294 of Criminal Law cannot be applied to criminal cases which do not conform to the provisions of law and judicial interpretation. There are only two kinds of organized crimes involving criminal activities, namely, organized crime of underworld nature and organized crime of underworld nature. The definition of organized crime should reveal its essential characteristics, whether it is organized crime of underworld nature as stipulated in criminal law. There is a common essential characteristic of the organized crime in criminal law, that is, the organized nature of the crime, which can be regarded as an organized crime only if it accords with this characteristic. Judging from the provisions of the Supreme Judicial organs, the Supreme people's Procuratorate, the Supreme people's Court, and the Ministry of Public Security are not blindly cracking down on criminal cases regardless of their specifications. According to Article 294 of the Criminal Law and the Supreme people's Court in 2000, the specific application of the interpretation of certain problems of law to the trial of cases involving organized crimes of a triad nature should generally have the following four characteristics. Namely: the organization structure, the economic power, the illegal protection and the behavior way. In the era of legally prescribed punishment for a crime, only by making efforts to improve the legislation in a down-to-earth manner can we strike at relevant crimes in accordance with the express provisions of the law and in a reasonable and disciplined manner. Therefore, from the perspective of the long-term interests, we should perfect the relevant provisions of the Criminal Law. It is urgent to perfect the procedural legislation against organized crime and to perfect the relevant judicial interpretation.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D917
【引证文献】
相关硕士学位论文 前1条
1 马莹莹;黑社会性质组织犯罪问题研究[D];山西大学;2012年
本文编号：2132576
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