As a developing socialist country, China has always been highly valued by the Party and the country. The Central Committee of the Communist Party of China and the State Council made careful arrangements, and launched many nationwide crackdown and rectification struggles with the main content of "cracking down on evil", which destroyed a number of underworld organizations that dominated one side and committed evil deeds, and achieved staged victories. However, it should be noted that it is not enough to rely on one after another "strike hard" actions. 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 has stipulated terms such as "* * *" and "group crime", there is no express provision for "underworld crime". With the emergence of underworld crime, its development shows the trend of spreading plague, which leads to the lag of criminal law. In view of this, article 294 of the revised criminal law of our country specifically stipulates the punishment for criminal activities of underworld organizations.
On April 28th, 2002, the 27th meeting of the NPC Standing Committee of the Ninth National People's Congress discussed and adopted the Interpretation of the first paragraph of Article 294 of the Criminal Law of People's Republic of China (PRC), which was in line with the original legislative intent and played a good guiding role in the judicial organs' application of criminal law to crack down on criminal activities of underworld organizations.
However, we should 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 believes that according to the characteristics of underworld crimes and the common practice of cracking down on "triad-related" crimes all over the world, in order to crack down on underworld crimes severely, property punishment should be added to the punishment for underworld crimes stipulated in Article 294 of the Criminal Law.
1. Like all crimes against property, the most fundamental purpose of underworld crimes is to obtain huge illegal economic benefits.
What is a triad organization? "Underworld organization" refers to illegal and criminal organizations that organize illegal and criminal activities by violence, threats or other means, dominate one side, do evil, oppress and harm 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, 2002, 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 of organizers, clear leaders and basically fixed backbone members; (2) Obtaining economic benefits through illegal and criminal activities or other means in an organized manner, 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 the weak and hurting 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 area or industry, the formation of illegal control or significant influence, seriously undermining the order of economic and social life. The organized crime of underworld nature is generally manifested as dominating one party, dominating the city 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 in order to obtain huge illegal economic benefits. Underworld organizations generally have a certain economic foundation, and some even have "legitimate" companies and enterprises, and members can get relatively fixed income from the organizations.
Whether the underworld organization obtains economic benefits through illegal and criminal activities or normal business activities, 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.
Criminal gangs headed by Chen Xiangqi of Ningde City, Fujian Province, Lu Qitai of Zhangzhou City, Lin Wenjin of Longyan City and Hu Wulong are all criminals released from prison or released from reeducation through labor. They use this as capital to try 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 territory and sphere of influence. There are 23 members of Lv Qitai's criminal group, and 13 backbone members raised 80,000 yuan according to nine "shareholders" to form a joint-stock company. "Company" accounts, goods transportation, beating people and arresting people, dredging relationships, etc. All of them are in charge of special personnel, and the members of the group arrange monopoly operations such as bamboo shoots, pigskin and liquefied gas in towns and even other counties. They have also established a corresponding economic security system, clearly stipulating that personal property losses or physical injuries caused by company affairs and getting through joints will be reimbursed by the company. Under strict organization, the gang has rapidly developed from forced trading to openly beating, smashing, robbing and opening casinos. The means were very cruel, and nearly ten thousand people suffered. 1999 to March 2000, criminal gangs of Lin Huijian in Fuqing City robbed 8 cases with guns in Fuqing Chengguan and other places, with a case value of1000000 yuan.
With the continuous expansion of opening to the outside world, foreign-related, Hong Kong, Macao and Taiwan-related evil forces collude with domestic evil forces, and criminal activities such as kidnapping, extortion and smuggling occur from time to time. Some overseas underworld criminals enter the mainland to commit crimes under the cover of businessmen, which is very concealed. Black and evil forces at home and abroad collude with each other, targeting foreign businessmen, overseas Chinese and entrepreneurs. Take kidnapping, robbery, extortion and other means. As the main form, it involves a large amount of money and has a 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 of 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 generally stipulates property penalties such as fines and confiscation of property for other property crimes, but there is no such provision for organized crimes of 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 we fundamentally put an end to the regenerative basis of underworld crimes. Criminal organizations of underworld nature generally have certain economic strength. They often use their economic strength to attract and 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 underworld criminal organizations "promoting business with black, and supporting black with business". In this process, criminal organizations of underworld nature have snowballed, so they have strong regenerative ability. If only the specific criminal acts of its leaders and key elements are punished, but the illegal property of underworld gangs 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 market domination are the important characteristics of organized crime of underworld nature. Judging from the investigation and handling of cases, many evil forces are infiltrating into the economic field. They monopolize the market and collect ill-gotten gains by means of "slicing jurisdiction", compulsory delivery and restricting peer operations. In order to achieve the purpose of monopoly, people who don't listen to "advice" are intimidated and threatened, even beaten or even murdered. Under the escort of violence, a number of "vegetable tyrants", "fish tyrants" and "sand tyrants" have formed. The history of the rise of liuyong, the leader of the underworld crime in Shenyang, is a history of getting rich illegally by "promoting business with black, and keeping black with business". Since 1995, in order to monopolize the right to operate Huangshan brand cigarettes in Shenyang market, liuyong repeatedly instructed his men to rob, smash and rob those bosses who disobeyed orders to operate Huangshan brand cigarettes, and killed a cigarette boss alive. After 1999, liuyong's appetite increased, and he set up a real estate company and began to turn to the real estate industry. As long as he takes a fancy to a piece of land, he will use all kinds of violent means to win it. For other developers who dare to challenge him, Liu Yong first sent his men to threaten harassment. If the other party still refuses to submit, he will send thugs to smash their construction site in broad daylight and even kidnap and beat these developers. Liuyong 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 Golden Business District. In this way, liuyong, with 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 100 people and became a dominant criminal group. As far as this case is concerned, if only the specific crimes of liuyong and his key members are pronounced, and the huge property owned by criminal groups is not cleared up-the illegal income is confiscated according to law after investigation, it is bound to cause other members of a group to become the 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 crimes of underworld nature can the resurgence of destroyed underworld organizations be eliminated from the source, thus achieving 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" in all countries of the world. Fines and confiscation of property, as supplementary punishments to property, are 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 confiscated property to better meet the needs of China in cracking down on various criminal offences at this stage. Reasonable use of property punishment can make criminals realize that "crime is not worth it" and play 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 306 of Italy's "Special Decree" stipulates that when the mafia is sentenced, it cannot explain the source of the money, goods and assets obtained, or if the control of the property is obviously out of proportion to its income, it will be confiscated. The Organized Crime Control Act, passed by the federal government of the United States, stipulates that triad crimes are subject to high fines, and all the proceeds of crime are confiscated. The laws of Germany, France, Australia and other countries 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 property with unexplained sources. In this way, China's "Criminal Law" on the punishment of organized crimes of underworld nature, due to the lack of pertinence, has affected the effect of severe punishment.
To sum up, it is an oversight that China's criminal law does not stipulate property punishment for organized crimes of underworld nature. It is suggested that Article 294 of the Criminal Law should supplement the provision of imposing a high fine on organized crimes of underworld nature. In order to severely crack down on organized crimes of underworld nature, fines 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 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.