【作者】 黄东海；

【导师】 李??；

【作者基本信息】 武汉大学 ， 法律， 2004， 硕士

【摘要】 我国1997年修订刑法时,尚未出现大量的黑社会(性质)组织犯罪,在这种情况下,我国立法一改以往经验型的立法方法,在刑法第294条规定了黑社会(性质)组织犯罪,表现出少有的前瞻性。但由于我们对于这类犯罪了解不够、研究不深,从立法语言、立法技术到理论准备等诸多方面都存在大量问题,立法对于黑社会性质组织的法律特征也没有十分的把握,因而采取了一种描述性和统括型的立法模式,而现实事态的发展严峻地挑战着我们的立法和司法智慧,同时也考验着法学理论研究的预见力和洞察力。人们尴尬地发现,近年来开展的数次“打黑除恶”专项斗争也早已使得这种立法捉襟见肘。随着我国“反黑”斗争的进一步开展,更多的问题一起涌现,更深层次的疑问需要我们回答。我们必须对黑社会性质组织从基本概念、性质、特征、与黑社会组织的关系、刑事政策目标、司法认定等方面作出仔细的研究、论证与回答,以此回应司法实践的要求、指导我们的刑事司法实践。 本文首先对“黑社会性质组织”一词进行了语词分析,提出黑社会性质组织社会性特征的本质在于其对外部正常社会的依存、反动以及组织内部的强力聚合,而合法社会政治势力对其的庇护是犯罪策略理智选择的结果和犯罪活动开展之必需,因而也正是其社会性的反映。黑社会性质组织在一定区域和行业的非法控制恰恰正体现了这种社会性特征。 作者进而试图对黑社会性质组织进行刑法学意义上的、尽管是有条件的和相对的定义,指出:黑社会性质组织是指三人以上,形成一定组织结构,为非法牟取重大经济利益,以暴力、威胁手段为后盾并利用合法社会政治权力的包庇和纵容,通过违法犯罪活动,在某些区域或行业形成非法控制的社会组织形式。 然后本文从我国黑社会性质组织犯罪立法的立法意义入手,分析了其消极不足之处,并认为这些立法实际上同样具有强烈的维护现行政治秩序的立法冲动,因为国家不会容忍异己的有组织暴力的存在,因而也必然要求对这类组织向合法政权的渗透和腐蚀进行防范;至于黑社会性质组织和黑社会组织的关系,笔者认为两者是雏形与成熟形态之间的关系,两者之间仅有数量、程度上的区别而无本质上的不同。 笔者同时还对黑社会性质组织的特征进行了一定的分析,提出黑社会性质组织的刑法学特征主要有:(1) 非法控制;(2) 严密的组织特征;(3) 经济实力特征;更多还原

【Abstract】 When the Criminal Law of PRC was amended in 1997, there had not emerged so much crime by criminal gang-like organization in China. Under such circumstance, it was quite foresighted for the legislative to change its former experiential method by providing for crime by criminal gangs/criminal gang-like crime in Article 294 of the Criminal Law. However, there are a lot of questions existing in the legislative language, legislative method and theoretical support, as we have no sufficient understanding of or study on such crime. The legislative has adopted a descriptive and generalizing legislation mode due to lack of fully understanding of the legal characteristics for crime by criminal gang-like organization. Thus, the development of actual situation is now rigorously challenging both our legislative and judicial wisdom and our foresight and insight in studying law theories. We are embarrassed to find that the special actions of "beating criminal gangs and removing evil" commenced in the recent years have made the legislative so ineffective in dealing with so many problems. With the development of "anti-gangs" actions, more and more problems emerged and we need to solve more and more deep-seated questions. Therefore, we must carefully study criminal gang-like organization concerning its basic concept, its relationship with criminal gangs, its nature and characteristics, the relevant criminal policy aim and judicial determination and so on, and answer the relevant questions, so as to meet the requirements raised in judicial practice and to guide the same.Starting from the analysis on the concept of "crime by criminal gang-like organization", this Article points out that the social character of gang-like organization exists in the essence of its relying on the society, the strong combination of anti-society and internal organization. Meanwhile, the protection by legitimate political force is the reflection of the sociality of criminal gang-like organization and the necessity of its criminality and also the wise choice of criminal strategy. The control by criminal gang-like organization in some area as well as industry is in particular the reflection of such characteristics.The writer further attempts to definite, with some conditions, the concept ofcriminal gang-like organization in criminal law. According to the writer, the criminal gang-like organization refers to the social organization, which consists of more than 3 persons with the purposes of seeking momentous economic interest. Such organization is supported by violence and menace and protected and connived by legitimate political force, and illegitimately controls some area and industry.This Article then goes to analyze the shortage of our legislation and reaches the conclusion that such legislation represents the impulsion of maintaining the current social political system. The governments will not accept the existence of anti-social organization and will take actions to avoid the latter’s penetration into the government and corruption of the government. As regards the relationship between the criminal gang-like organization and criminal organization, the writer is of the view that they differ in number and extent but are the same in essence; the former is at the stage of rudiments and the latter is well developed.In the meantime, the writer has analyzed to some extent the character of criminal gang-like organization and pointed out that the characters of criminal gang-like organization in criminal law are mainly: (i) illegitimate control; (ii) rigorous organization; (iii) strong economic force; (iv) political protection umbrella; (v) violence and corruption. The writer is of the view that among the above characters, violence is only a possible resort as well as the last protection. But in criminal practice, to seek and obtain political protection becomes the most safe, better benefiting and therefore the most usual way. Thus, in Chapter Three of this Article, the writer has analyzed the characters of "protection umbrella" and the social causes, criminal law interpretation causes and public acceptance requirements on determining the characters of "protection umbrella" of criminal gang-like organization. In the end, the writer has commented the shortages of the relevant legislation and criminal policy, and is of the opinion that the current law on "beating criminal gang" lacks of foresight, ignores the design of perfection of policy. The writer also thinks that problems exist in the current law in stipulating the names of crimes and the relevant penalties. Therefore, the writer has put forward some relevant ideas.更多还原