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2018

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08

(previous issue) Provisions of triad nature organization cases and four characteristics of case handling experience

The special work launched in 2006 was led by the Central Political and Legal Commission, and this time it was jointly issued by the Central Government and The State Council, which means that the central government's attention to the fight against crime has risen to the national strategy, and the integration of political and legal, discipline inspection, party affairs, administration and other systems to solve the problem.


1、 The current forms of anti gang and anti evil measures in China

The special work launched in 2006 was led by the Central Political and Legal Commission, and this time it was jointly issued by the Central Government and The State Council, which means that the central government's attention to the fight against crime has risen to the national strategy, and the integration of political and legal, discipline inspection, party affairs, administration and other systems to solve the problem.

Why the 2006 black fight, upgrade to 2018 black sweep? Because there is a protective umbrella behind any triad, if only the black does not sweep the umbrella, then with the support of the umbrella, the triad will sooner or later reignite again, so this year to fight the black upgrade to anti-black.

2、 Key Strike Situations:

According to the Guiding Opinions of the Supreme Court, Supreme Procuratorate, Ministry of Public Security, and Ministry of Justice on Several Issues Concerning the Handling of Criminal Cases by Black and Evil Forces on January 16, 2018 (referred to as the 2018 Guiding Opinions),Strictly crack down on crimes such as "village tyrants", clan evil forces, "protective umbrellas", and "soft violence".

1. Focus on cracking down on black and evil forces that threaten political security, especially political and institutional security, as well as infiltration into the political field;

2. Black and evil forces that control grassroots political power, manipulate and disrupt grassroots elections, monopolize rural resources, and embezzle collective assets;

3. Black and evil forces such as "village bullies" who use family and clan forces to run rampant in the countryside, dominate one side, and oppress and harm the people;

4. Black and evil forces inciting disturbances in the process of land acquisition, leasing, demolition, and construction projects;

5. In industries and fields such as construction engineering, transportation, mineral resources, fishing, etc., the black and evil forces of forcibly soliciting projects, malicious bidding, illegal land occupation, and indiscriminate mining;

6. Black and evil forces such as city bullies and commercial bullies who bully the market, forcibly buy and sell, and collect protection fees in commercial markets, wholesale markets, station docks, tourist attractions, and other places;

7. Black and evil forces that manipulate and operate illegal and criminal activities such as "pornography, gambling, and drugs";

8. The black and evil forces of illegal high-interest lending and violent debt collection;

9. Intervene in civil disputes and act as a "underground law enforcement team" of evil forces;

10. Organizing or hiring online "water armies" to threaten, intimidate, insult, defame, and harass black and evil forces online;

11. The development and infiltration of overseas triads into the country, as well as the transnational and cross-border evil forces;

12. Resolutely dig deep into the "protective umbrella" of the black and evil forces.

3、 Relevant regulations and their relationship

Current normative documents:

Article 294 of the Criminal Law (97 Criminal Law, Amendment VIII to the Criminal Law of February 25, 2011): the crime of organizing, leading, participating in criminal organization, entering the country to develop underworld organizations, shielding, conniving at criminal organization.
On December 4, 2000, the Supreme Court "Interpretations on Several Issues Concerning the Specific Application of Law in Trials of Crimes Committed by criminal organization": on April 28, 2002, the Standing Committee of the National People's Congress "Interpretations on the First Paragraph of Article 294 of the Criminal Law": clearly defined four characteristics, which were absorbed by the criminal law.

On December 9, 2009, the Supreme Court, the Supreme People's Procuratorate and the Ministry of Public Security of the People's Republic of China (hereinafter referred to as the "2009 Minutes")

Provisions of the Supreme Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice on Several Issues Concerning Handling Criminal Cases of criminal organization on September 11, 2012

On October 13, 2015, the Supreme Court "Minutes of the Symposium on the Trial of Criminal Cases of criminal organization by Some Courts in China" (hereinafter referred to as "2015 Minutes")

On January 16, 2018, the Guiding Opinions of the Supreme Court, the Supreme Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Several Issues Concerning the Handling of Criminal Cases by Black and Evil Forces (referred to as the 2018 Guiding Opinions)

Three important normative documents:

Summary of the 2009 Symposium on Two High Schools and One Department

Summary of Symposium on Partial Courts in China Released by the Supreme Court in 2015

Guiding Opinions of the Two High Schools and Two Departments in 2018

Relationship: Complementary to each other, but not ineffective. If there are differences, the latest one shall prevail.

1. Returning from the 2015 minutes to the 2009 minutes, the 2018 guidance is more principled, such as not considering the number of people and economic quantity standards; Improve and revise the 2009 minutes to clarify organizational characteristics more clearly;

2. New regulations have been made for the 2009 and 2015 minutes, stating that national staff members are not required to take advantage of their position to be recognized as sheltered;

3. The guiding ideology of 2018 shall prevail, and any other inconsistency with this opinion shall be implemented.

Change: Overall, the threshold for criminalization has been lowered and made more flexible.

4、 Four Characteristics of Triad Crimes

The identification of crimes committed by criminal organization - four characteristics at the same time:

Criminal organization should simultaneously have the "organizational characteristics", "economic characteristics", "behavioral characteristics" and "harmful characteristics" specified in the fifth paragraph of Article 294 of the Criminal Law. Since many criminal organization are not all obvious in practice, the internal relations between the "four characteristics" of criminal organization should be carefully reviewed and analyzed according to the legislative intent, and the social harm caused by the criminal organizations involved should be accurately evaluated.

(1) The Organizational Characteristics of Underworld Crimes

Form a relatively stable criminal organization with a large number of people, clear organizers and leaders, and basically fixed backbone members. (Criminal Law Provisions)

The organizational structure is relatively stable and has a clear hierarchy and division of responsibilities (2009 minutes)

note

1. It is no longer emphasized that the number of people is generally over ten and requires a certain period of time,Instead, it reiterated that "it is not appropriate to make a one size fits all regulation on the existence time and number of members of criminal organization", which was proposed by the age of 2009

2. Differentiated between organizational and leadership behavior:

The act of initiating, creating, merging, dividing, or restructuring is an organization;

The behavior of decision-making, command, coordination, and management is leadership.

Key understanding

1. How to understand organizational structure

Organize, lead, actively participate (including key members), participate, and have a clear hierarchy and division of responsibilities.

Organizational members are not required to have more than 10 members

Organizational members also include:

Firstly,Those who have sufficient evidence to prove but have not yet been brought to justice;

Secondly,Those who have participated but have not been prosecuted due to not reaching the age of criminal responsibility or other circumstances;

Thirdly,Not to be treated as a criminal according to the specific circumstances.

2. How to understand "active participation"

Under one of the following circumstances, it should generally be recognized:

Firstly,Actively participating in illegal activities multiple times;

Secondly,Those who actively participate in more serious activities and have outstanding effects;

Thirdly,Plays an important role in the organization (in charge of finance, personnel management, etc.).

3. How to understand 'backbone members'

Directly following orders from organizers and leaders, directing or actively participating in illegal and criminal activities multiple times, or playing an important role in criminal organizations, is a part of the active participants.

4. How to understand "participation"

Volunteer to join the criminal organization and accept its leadership and management.

Subjective knowledge

Conviction does not require the perpetrator to know that he or she is a criminal organization.

Subjective knowledge should grasp two aspects:

Firstly,The actor knows or should know that they are participating in an organizational group composed of multiple people and with a certain level of hierarchy;

Secondly,The perpetrator knows or should know that the organization they participate in is mainly engaged in illegal and criminal activities, or that although the organization has legitimate production and business activities, it still carries out illegal and criminal activities in an organized manner as the basic mode of behavior.

5. What circumstances can be identified as members of criminal organization?

In the 2015 minutes, the members of the criminal organization are not included in any of the following situations:

Firstly,Subjectively, those who do not intend to join criminal organization, are employed by criminal organization to work in companies, enterprises and associations, and do not participate in or only participate in a small number of illegal and criminal activities of criminal organization: (Huang Zhiyong in Zengcheng case)

Secondly,Persons who are temporarily assembled, employed or hoodwinked to commit illegal and criminal activities or provide help, support and services for criminal organization: (legal representative in Tan Lin's case)

Thirdly,People who temporarily employ, buy, or use criminal organization to carry out illegal and criminal activities in order to maintain or expand their own interests. The above-mentioned personnel constitute other crimes and shall be dealt with as specific crimes.

(2) The Economic Characteristics of Underworld Crimes

Obtaining economic benefits through organized illegal or criminal activities or other means, possessing certain economic strength to support the activities of the organization.(Criminal Law Provisions)

1. Reiterate the statement in the 2009 minutes that 'economic strength cannot be generally required to reach a specific scale or amount'

2. There is no emphasis on "using all or part of the economic benefits obtained for illegal criminal activities or maintaining the survival and development of criminal organizations".

Precautions:

1. It does not emphasize that economic strength must reach a specific scale and amount, but it does not mean that the amount or scale can be disregarded. The 200000 to 500000 yuan proposed in the 2015 minutes is still an important reference standard (previously, Guangdong was 500000 yuan);

2. The legitimate property of the organization also belongs to the scope of economic strength;

3. The assets of the funding organization, regardless of their nature or source, are all proceeds of crime and are subject to seizure and seizure;

4. Organizational members, especially organizers, leaders, and active participants, whose legitimate property under their personal name or legitimate enterprises or companies established or participated in, have not used the proceeds to support the organization. Although they do not belong to the organization's property, they should generally be sealed up or seized to facilitate the execution of property penalties.

Key understanding:

1. Source of profit: Those who obtain economic benefits through the following methods should be recognized as "organized throughObtaining economic benefits through illegal and criminal activities or other improper means "(Articles 7 and 8 of the 2018 Guiding Opinions):

(1) Organized collection through illegal and criminal activities or other improper means;

(2) Obtaining through legal production and operation through investment, holding, equity participation, partnership, etc. in an organized manner (using business to support black people, and using black people to protect business);

(3) Provided by organizational members or obtained through funding from other units, organizations, or individuals.

The above method of obtaining a certain amount of economic benefits should be recognized as having a certain economic strength. It also includes the ability to mobilize a certain scale of economic resources to support organizational activities.Two points to note:

Firstly,The economic benefits obtained through the above methods, even if controlled by some individual members of the organization, should be included in the organization's "economic strength";

Secondly,Organizational members actively use a portion of their personal or family assets to support organizational activities,All personal or family assets can be included in "certain economic strength"(Except for cases where the amount is significantly small or only the right to use movable or immovable property is provided)。

 

2. Profit purpose:

Supporting organizational activities for illegal and criminal activities or maintaining the survival and development of criminal organizations, manifested as (2009 minutes):

(1) Purchase crime tools and provide crime funds;

(2) Provide medical and funeral expenses for injured or deceased members of the organization;

(3) Provide wages, rewards, benefits, and living expenses for organizational members and their families;

(4) The cost of seeking illegal protection for the organization and expenses related to the implementation of organized illegal and criminal activities.

note

The 2009 minutes stipulate that regardless of whether the organization's property is collected through illegal means or obtained through legal means, only part or all of it can be used for illegal and criminal activities or to maintain the survival and development of criminal organizations. However, the 2018 guidance does not emphasize this content.

3. Profit amount:

There are significant differences in economic development levels and industry profit margins among different regions, and the existence and development time of organizations are different. Therefore, it is not generally required that economic strength must reach a specific scale or amount.