In recent years, organized crime has become increasingly serious in China, and some of them have evolved into underworld organizations, with a wider range of activities, more rigorous organization and more arrogant criminal arrogance. At the same time, the underworld forces from abroad are constantly infiltrating into the mainland, which accelerates the evolution trend of organized crime in the mainland to organized crime of underworld nature. Underworld organizations and evil forces engage in all kinds of illegal and criminal activities unscrupulously, using cruel means and committing all kinds of evils. Blackmailing, bullying the market, and forcibly demanding "protection fees"; Some people gather people to fight, stir up trouble or rob, kidnap, hurt or kill; Some loan sharks, collect debts for others or intervene in civil disputes, acting as "underground courts"; Some smuggle drugs and operate underground casinos and pornographic places; Some manipulate elections, usurp grass-roots political power and openly confront society; Some use violence, bribery and other means to illegally monopolize operations and frantically accumulate wealth. Underworld organizations also try their best to lure and force state employees to participate in their illegal and criminal activities or provide them with illegal protection by bribery, threats and other methods. Some of them step up their infiltration into state organs and use their power to carry out illegal and criminal activities. The rampant activities of underworld organizations and evil forces have become a prominent problem that seriously threatens the safety of people's lives and property and undermines the order of economic and social life. If resolute and powerful measures are not taken to crack down on them, if they are allowed to exist, develop and spread, the consequences will be unimaginable.
China, as a developing socialist country, has always been attached great importance by the Party and the state. The CPC Central Committee and the State Council have carefully deployed many times to launch a nationwide crackdown and rectification struggle with "cracking down on gangs and eliminating evils" as the main content, destroying many underworld organizations that dominate one side and do evil, and achieved staged victories. However, it should be noted that it is not enough to rely on "strike hard" actions one after another. It is necessary to establish and improve China's "anti-triad" legal system. For a long time, although the original Criminal Law of our country stipulated the terms of "* * * with" and "group crime", there was no explicit provision on "underworld crime". With the quiet appearance of underworld crime, its development showed the trend of spreading plague, which caused the criminal law to lag behind. In view of this, Article 294 of the revised Criminal Law of our country specifically stipulated the punishment for underworld organizations and criminal activities.
The Interpretation of Paragraph 1 of Article 294 of the Criminal Law of the People's Republic of China, which was discussed and adopted at the 27th meeting of the Ninth the NPC Standing Committee on April 28th, 2112, conforms to the original legislative intent and plays a good guiding role in the judicial organs' application of criminal law to crack down on criminal activities of underworld organizations.
However, we must also be soberly aware that the provisions of the current Criminal Law on underworld crimes are not perfect. On the contrary, there are still some areas that need to be improved and improved. The author thinks that, according to the characteristics of underworld crimes and the common practices of countries all over the world to severely crack down on "triad-related" crimes, property punishment should be added to the punishment of underworld crimes stipulated in Article 294 of the Criminal Law in order to severely crack down on underworld crimes.
1. Like all crimes against property, the most fundamental purpose of underworld crimes is to obtain huge illegal economic benefits.
what is an underworld organization? "Underworld organization" refers to illegal and criminal organizations that use violence, threats or other means to organize illegal and criminal activities, dominate one side, do evil, oppress and maim the masses, and seriously undermine the order of economic and social life. According to the legislative interpretation adopted by the Ninth the National People's Congress Standing Committee (NPCSC) on April 28th, 2112, the "underworld organization" stipulated in the first paragraph of Article 294 of the Criminal Law should have the following characteristics at the same time: (1) to form a relatively stable criminal organization with a large number, clear organizers and leaders, and basically fixed backbone members; (2) Obtaining economic benefits through illegal and criminal activities or other means in an organized way, and having certain economic strength to support the activities of the organization; (3) organizing illegal and criminal activities for many times by violence, threats or other means, doing evil, bullying and injuring the masses; (four) through the implementation of illegal and criminal activities, or using the cover or connivance of state functionaries to dominate one party, in a certain region or industry, the formation of illegal control or significant influence, seriously undermining the order of economic and social life. Crimes committed by underworld organizations are generally manifested as dominating one party, bullying and harming the masses. Some of them engage in prostitution and gambling, some engage in kidnapping, smuggling, robbery, forced trading or extortion, and some even smuggle drugs and arms to engage in transnational criminal activities, with the aim of gaining huge illegal economic benefits. Underworld organizations generally have a certain economic foundation, and some even have "legitimate" companies and enterprises, and their members can get a relatively fixed income from the organization.
no matter whether the underworld organization obtains economic benefits through illegal and criminal activities or normal business activities, no matter whether its economic strength is relatively strong or weak, as long as the economic benefits it obtains are used to support the activities of the organization, it can be regarded as one of the characteristics of the underworld organization.
The criminal gangs headed by Chen Xiangqi in Ningde City, Fujian Province, Lv Qitai in Zhangzhou City, and Lin Wenjin and Hu Wulong in Longyan City are all criminals who have been released from prison or released from reeducation through labor. They use this as a capital to be brave, gather local and foreign lawless teenagers as accomplices, develop backbone elements, ranging from a dozen to twenty or thirty, and form their own turf and sphere of influence. There are 23 members of Lv Qitai's criminal syndicate, and 13 key members raised 81,111 yuan according to 9 "shareholders" to form a joint-stock company. "Company" accounts, cargo transportation, beating people and arresting people, dredging relationships, etc. are all handled by special personnel, and members of the group separately arrange monopoly operations such as bamboo shoots, pigskin and liquefied gas in villages and towns and even other counties and districts. They also set up a corresponding economic security system, clearly stipulating that all expenses for personal property loss or physical injury caused by the company's affairs and getting through the joints will be reimbursed by the company. Under the strict organization, the gang has rapidly developed from forced buying and selling to openly beating, smashing, robbing and opening casinos. The means are very brutal and nearly 11,111 people have been victimized. From 1999 to March 2111, Lin Huijian, a criminal gang in Fuqing City, committed eight consecutive robberies with guns in Fuqing Chengguan and other places, with a case value of more than 1 million yuan.
With the continuous expansion of opening to the outside world, foreign-related, Hong Kong, Macao and Taiwan-related black and evil forces collude with domestic black and evil forces to commit kidnapping, extortion, organized smuggling and other criminal activities. Some overseas underworld criminals enter the mainland to commit crimes under the cover of businessmen and so on, which has great concealment. Black and evil forces at home and abroad collude with each other, and most of them target foreign businessmen, overseas Chinese, entrepreneurs, etc., taking kidnapping, robbery, extortion, etc. as the main forms, involving a large amount of money and having a very bad influence. Such cases are mainly in coastal areas and gradually spread to the mainland.
from the above cases, it is not difficult to see that the object violated by the underworld crime is not only the social security management order, but also the social and economic order. therefore, in this sense, the underworld crime is also a special property crime. China's criminal law has generally stipulated property penalties such as fines and confiscation of property for other property crimes, but there is no provision for organized crimes of the underworld nature. Therefore, only by adding property punishment to crimes of underworld nature can we directly attack their criminal purposes, thus making the provisions of criminal law more targeted.
second, only by adding property punishment can the regenerative basis of underworld crimes be fundamentally eliminated. Criminal organizations of underworld nature generally have certain economic strength. They often use their own economic strength to win over, recruit social idlers to work for them, or bribe party and government cadres to seek an umbrella, and then enrich and expand their economic strength and expand their sphere of influence through a series of criminal activities. This process is a continuous cycle of "promoting business with black, supporting black with business" of criminal organizations of underworld nature. In this process, criminal organizations of underworld nature are snowballing, so they have strong regenerative ability. If only the specific criminal acts of their leaders and key elements are punished, but the illegal property of underworld groups and individuals is not confiscated, it will only lead to the upgrading of the organizers of the leaders of this criminal organization, and it is difficult to fundamentally replace them. Malicious monopoly and dominating the market is an important feature of organized crime of underworld nature. Judging from the investigation and handling of cases, many black and evil forces are infiltrating into the economic field. They monopolize the market and collect ill-gotten gains by means of "slicing jurisdiction", forcing delivery and restricting the operation of peers. In order to achieve the goal of monopoly, those who don't listen to "advice" are intimidated and threatened, and even beaten or even murdered. Under the violent escorting, a number of "vegetable tyrants", "fish tyrants" and "sand tyrants" have formed. The history of the rise of Liu Yong, the leader of the underworld crime in Shenyang, is a history of illegally getting rich by "promoting business with black, and nourishing black with business". Since 1995, in order to monopolize the right to operate Huangshan brand cigarettes in Shenyang market, Liu Yong has repeatedly instructed his men to rob and smash those bosses who disobeyed orders to operate Huangshan brand cigarettes, and killed a cigarette boss alive. After 1999, Liu Yong had a bigger appetite and set up a real estate company and began to turn to the real estate industry. As long as he took a fancy to which piece of land, he would try his best to get it. For other real estate developers who dared to compete with him, Liu Yong first sent his men to threaten and harass. If the other party refused to submit, he dispatched thugs to smash the construction site in broad daylight, and even kidnapped and beat these developers. Liu Yong also obtained hundreds of millions of yuan in loans from financial institutions through illegal means such as paying huge bribes and not paying interest, thus basically monopolizing the real estate development in Shenyang's golden business district. In this way, Liu Yong took strict armed organizations as the guarantee, suppressed his competitors by cruel means, monopolized the market by criminal acts, and accumulated huge wealth for his real estate development company, so that the underworld criminal organization he led grew from a dozen people to more than 111 people and became a dominant criminal group. For this case, if only the specific crimes of Liu Yong and his key members are sentenced without clearing up the huge property owned by the criminal group-the illegal income is confiscated according to law after investigation, it is bound to cause other members of a group to become successors of these illegal properties, thus providing rich soil conditions for the regeneration of underworld organizations. It can be seen that only by adding property punishment to underworld crimes can the resurgence of destroyed underworld organizations be eliminated from the source, so as to achieve the goal of treating both the symptoms and the root causes.
third, the establishment of property punishment is a universal provision in the criminal legislation of "anti-triad" all over the world. Fines and confiscation of property, as an additional punishment for property, have been widely used in criminal legislation in countries and regions all over the world. China's revised Criminal Law has also expanded the scope of application of fines and confiscation of property to better meet the needs of cracking down on various criminal crimes at this stage in China. Reasonable use of property punishment can make criminals realize that "crime is not worthwhile", which plays a positive role in punishing crime, especially in preventing and reducing crime, and its social effect is obvious. In the fight against underworld crimes, countries and regions all over the world, whether in civil law system or common law system, generally adopt fines and confiscation of property in anti-triad legislation. For example, Article 316 of Italy's "Special Decree" stipulates that the mafia shall be confiscated if it is unable to explain the source of the money, goods and assets obtained when sentenced, or if its control over the property is obviously out of proportion to its income. The Organized Crime Control Act passed by the federal government of the United States stipulates that high fines should be imposed on triad crimes, and all the proceeds from crimes should be confiscated. The laws of other countries, such as Germany, France and Australia, have similar provisions. China's "Criminal Law" does not stipulate property punishment for organized crimes of underworld nature, nor does it stipulate how to deal with the property whose source cannot be explained. In this way, the penalty provisions of China's "Criminal Law" for organized crimes of underworld nature affect the effect of severe punishment because of its lack of pertinence.
To sum up, it is an oversight that China's Criminal Law doesn't stipulate property punishment for organized crimes of underworld nature. It is suggested that Article 294 of the Criminal Law should supplement the stipulation of imposing a high fine on organized crimes of underworld nature, and in order to severely crack down on organized crimes of underworld nature, the fine should be imposed according to the total value of criminals' property, not limited to the amount of crimes identified by judicial organs; At the same time, it should also be stipulated that all illegal gains should be confiscated according to law, so as to completely cut off the economic lifeline of criminal activities of underworld organizations and fundamentally curb their criminal activities.