A few days ago, the associated print and distribute such as procuratorate of top people court, top people " about dealing with " cover a road to borrow " criminal case the opinion of a certain number of problems " (next weighing " opinion " ) regulation, "Cover a road to borrow " it is to point to it is a purpose with detinue, with leasehold name, prevail on or force the injured party to sign " leasehold " wait for relevant agreement, add the means such as leasehold amount, baleful production break a contact, wanton cognizance break a contact to form debt of false creditor's rights through empty, and the relevant illegal criminality of the property of means detinue the injured party such as lawsuit of have the aid of or force. Be opposite to strengthen " cover a road to borrow " guilty differentiate, " opinion " still pointed out the name that lends with make use of further, make amount of fast loan of false formalities walking along Zhang, deliberate break a contact or wanton break a contact, baleful base, use both hard and soft tactics " demand payment of a debt " 5 kinds of behavior. This kinds of crime not only right of property of enroach on the injured party, person counterpoises, return disturbed finance order and social government order, serious harm society is stable. In view of " cover a road to borrow " the complexity that guilty law concerns, the author thinks, must commit a crime from this kinds " have systematism " main feature proceed with, with period maintain truly definitely in judicatory practice " cover a road to borrow " crime.
"Cover a road to borrow " guilty practice is presentative
From the point of judicatory practice, "Cover a road to borrow " guilty feature basically has the following 5 respects: It is subjective go up to basically be a purpose with interest of sex of detinue other belongings. The criminal gets benefit of economy of a huge sum with lesser capital investment, perhaps coerce the injured party to participate in with countervail debt " cover a road to borrow " crime, still have with countervail debt threatening woman the victim pursues pornographic trade. 2 it is the crime of gang of main body department that participates in crime, and experience case personnel is numerous. Have already " conduct financial transactions " the boss of the company, have again recruit from personnel of course of study, major of the intermediary company that still has collaboration, society denounces Zhang organization to wait. 3 it is guilty method diversity, specialization division of labor, flow changes a feature apparent, the harm is sequential and serious. Guilty early days begins finance with company of conduct financial transactions normally leasehold business is cover, cooperate with division of labour through calculated, carry out person selected of choose be murdered, coax to sign contract, production beak a contract by different criminal grading respectively, borrow borrow newly return the secondhand goods, behavior such as production bank running water, achieve the goal that makes solid empty high debt. Guilty later stage is main in order to beat up, minatory, threatening wait for force or " weak force " the method forces the injured party and even debt of whole family countervail, own property of a huge sum of the injured party. 4 it is criminality duration target of long, the injured party is not specific. 5 it is encroachment law beneficial overlay, have the act that violates authority of property right of money of the injured party, person, reputation right already, have again encroach beneficial of law of order of health of beneficial of law of social government order, finance.
"Cover a road to borrow " guilty judicatory maintains bewilderment
It is this kinds of crime belongs to one blame or number blame. "Cover a road to borrow " the law beneficial sort of guilty enroach on is more, the accusation that offend is much also, like blame of crime of fraud, false suit, blackmail blame, force to trade to harm the accusation such as blame, libel blame, intentionally. " opinion " to solve " cover a road to borrow " the blame of many behavior of crime counts cognizance problem, the 4th set carry out " cover a road to borrow " a variety of methods in guilty process use, according to the relevant compasses destiny of criminal law the blame is punished or one blame comes to choose processing. From this, with respect to need judgement its answer to commit a crime to will maintain or regard an accusation as to maintain whole criminality according to several in judicatory practice.
2 be whether will maintain as collective crime. "Cover a road to borrow " guilty need much person cooperates to finish in different link respectively, its purpose and method offend different accusation, right " cover a road to borrow " behavior undertakes whole is evaluated, still part to be evaluated alone according to the behavior of guilty level, link, academic group and bound of judicatory solid Wu are open to question. " opinion " the 5th the 2nd section provision know perfectly well other to carry out " cover a road to borrow " crime, have one of the following state, with the accomplice punish of relevant crime, but the except that law has a regulation additionally, set further in the 3rd OK and illative its are subjective the cognizance standard that know perfectly well.
3 it is how to maintain its crime pattern. Criminal law is connected say to think, guilty accomplished offense is to show behavior person carried out criminal law to divide the overall important condition that sets. "Cover a road to borrow " it is main invade money with what detinue other belongings is a purpose kind criminality, to achieve this goal, need adopts the behavior such as deceit, minatory, blackmail, intended harm to help finish. In practice, should have other belongings to had been not finished, but below the premise that its phase sexual behavior has made the crime such as intended harm blame, how to maintain its the configuration that subjective purpose controls next crime is put have bigger controversy. " opinion " the 6th regulation has begun to carry out " cover a road to borrow " , but did not prevail because of the reason beyond the volition, can undertake cognizance according to what relevant accusation involves law to set, accordingly, involve " cover a road to borrow " all criminality, those who accord with attempted crime standard, ought to maintain for attempted crime.
Should " cover a road to borrow " crime is maintained commit a crime to have an organization
Accessory punishment law and " opinion " in light of the regulation, the author thinks, "Cover a road to borrow " guilty both neither attributes single charge, also do not attribute kind of charge, however the overlay of many accusation and coupling, be sex of a kind of gang, plan sex, violent sex invade money kind crime, belong to substantially have constituent crime.
Look socially from international, "Cover a road to borrow " the feature that crime accords with international convention to about maintaining constituent sex commits a crime. In view of the development rule with constituent special historical setting, distinctive crime, serious society endangers a gender, international organizes early to give to its attention undertakes corresponding legal plan make. U.N. passed in April 2000 " U.N. blow crosses convention of state-owned organization crime " the respect such as cooperation of the cognizance that commits a crime to having an organization, international had a standard, right " the organization commits a crime " made how-to sex explanation, namely to carry out or multinomial and serious crime obtain money or other loaves and fishes, comprise by 3 people above, form constituent structure, inside certain period existence carries out crime continuously. European Union committee and European police organization made 1998 " European Union judicatory and internal affairs committee act jointly plan " on the foundation, have 4 features with constituent essential crime at was being made clear further jointly 2001, have the constituent member of two people above namely; Involve many criminality and exist continuously; Carried out serious criminality; It is a purpose with obtaining economic interest to wait, also manage namely gender, violent sex, durative, gain profit sexual feature. The country such as Germany, United States, Japan, also pass legislation or national parliament, couple is native and real, established the criminal law standard that has maintain and dealing with to the organization commits a crime. Be like, the United States made 1970 " federally constituent crime plan makes a way " . From the point of international legislation and theory of foreign criminal law, "Cover a road to borrow " the case that guilty place expression comes out all accords with the feature that has constituent crime. Specific and character, its begin leasehold professional work with the enterprise for, carry out through careful plan, division of labor, force consign of the injured party to be not rights and interests of sex of belongings of proper a huge sum through the method such as force. The careful arrangement that its place expression comes out, purposeful, have an organization, the division of labor, feature that has a medium and the intention that have constituent crime have homogeneity.
From judicatory practice looks, current, "Cover a road to borrow " the cancer that commits a crime to already made serious harm society, because of its " civil and leasehold " puzzle of method of the gender, normative sex of loan procedures, violent sex concealment the complexity that gender, organization divides the work, come to its undertake criminal compasses make according to average criminal charge, cannot have achieved the goal of the injured party of effective penalty crime, effective protection. In judicatory practice, entice because of its because of a few crime, loan of beguiling the injured party, in cold blood break a contact, empty takes record of bank running water, minatory, beat up wait for behavior to part to be cooperated to finish in different level by different personnel, it is clear that a few things help those who make pair of organizers mediumly make meaning may not, bring about pair of a few criminals cannot try sb. Because a few criminals that in be like practice, happen are participated in for many times " cover a road to borrow " crime, but after be not worth to release because of evidence of a crime by arrest hind frequently, and the strange elephant that commits the crime frequently. Still some " cover a road to borrow " the partner of guilty company, because its did not participate in specific criminality directly, although got benefit of a huge sum, but for lack of objective behavior, conviction very hard also to its punishment. Because current criminal investigates measure to configure inadequacy, "Cover a road to borrow " of crime concealment sex of gender, organization sex, division of labor, chain sex, to investigate obtain evidence the job brings very big difficult problem.
From the point of explanation of unity and coherence in writing, " dictionary of contemporary Chinese language " will " have constituent sex " the explanation is sex of integral sex, systematization, structure, and current " cover a road to borrow " guilty feature also accords with these 4 requirements. 2 it is to have legal base. Although our country criminal law will not have an organization to commit a crime to set as a separate charge, but concerned mechanism already its qualitative commit a crime for gang of new-style black vicious power, and our country criminal law still set the advanced pattern that has constituent crime, namely criminal law the 294th " gangdom property organizes crime " , included to organize 4 features of feature of sexual feature, economy feature, violent sex, illegal control or major effect. " opinion " the 10th regulation, 3 people above is carry out " cover a road to borrow " and the guilty organization with relatively fixed composition, ought to maintain for guilty group. Accord with black vicious power to maintain a level, ought to organize the guilty processing such as the blame according to gangdom property. This is maintain " cover a road to borrow " it is one kind has " systematism " crime provided a basis, but regretful is, do not have will " cover a road to borrow " of crime " systematism " undertake the system sets, the primary configuration that commits a crime to having an organization namely, development configuration did not make corresponding standard, go against pair of such as " cover a road to borrow " the experience evil crime such as crime from punish severely place.
On put together, punish effectively to go up from fountainhead " cover a road to borrow " crime, order of safeguard society health and safeguard masses legitimate rights and interests, author proposal, accord with a condition, its according to the development that has constituent crime quality configuration undertakes cognizance, be about to " cover a road to borrow " crime regards crime as the gang or guilty group undertakes qualitative processing, not sexual behavior of sex of phase of bureau be confined to, part, not only from punish severely punish principal criminal, punish lawfully even of the of all kinds property that take an active part in accessary criminal. Will include through criminal legislation " cover a road to borrow " crime serves as constituent crime undertakes formulary, criminal law sheet is set " the organization commits a crime " accusation, cover " cover a road to borrow " wait for guilty form, set the criminal liability of the organizer, leader, participant, person that harbor. (Chen Shengcai of expert of business of procuratorial work of deputy chief procurator of procuratorate of city of Chongqing of procuratorial work daily, whole nation)
