Criminal law amendment seven (organization of minors crime)

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  • / Author: Aaron Lewis
Organization the minor crime is refers to the organization minors to commit theft, fraud, plunder, blackmail and impose exactions on other acts violating the administration of public security activities. [] (according to the provisions of the criminal law amendment to the criminal law revised in seven) 262nd two: organizes minors to commit theft, fraud, plunder, blackmail and impose exactions on violation of security management activities, is less than three years imprisonment or criminal detention, and shall also be fined; if the circumstances are serious, three to seven years in prison.
 

Elements　　

     According to the "criminal law amendment (seven)" the provisions of section eighth, we were violating security management activities of the crime of organizing minors crime do the following understanding:

From the provisions of view, the subject of this crime should be over the age of criminal responsibility of natural person under the age of 16. Can not define the subject of this crime for adults, because of China's "law on the protection of minors" second article: "called the minor refers to persons under the age of eighteen" as mentioned in this law, so 16-18 has the capacity of criminal responsibility of minors can also become the main body of the crime.
The subjective aspect of this crime is very clear, that is intentional, including organizer knowing they are organizing minors to commit that violate the public security management behavior direct intent, also including the organizer can be in accordance with the understanding of ordinary people infer is a minor but still organized the violation of public security management activities of the indirect intent. If the behavior of people in the implementation of organizational behavior do not know when the object is minor, but a moment in the implementation of the act after the understanding of the object's age, but did not stop, still let organized activities, so we think should be regarded as the subjective is deliberately.
The object of this crime is a complex object. In violation of the minor's personal liberty and physical and mental health at the same time, also has violated the social management order. Crime of the provisions of this paragraph, the first to protect minors personal freedom and rights from infringement, physical and mental health is not damaged, then can maintain the normal social order, therefore, the minor's personal freedom and the physical and mental health is the major object of this crime, the social management order is the main object of this crime. The subject of this crime is a minor, but unlike "provisions of the criminal law" 262 article first, paragraph 2, the object of the crime is a minor under the age of eighteen, to expand the scope of protection.
The implementation of organizing minors violate the public security management activities of the objective aspect of this crime is behavior person, that is behavior person organization minors to commit theft, robbery, blackmail and impose exactions on behavior did not meet the provisions of the criminal law of the crime, but is a violation of Public Security Management Punishment Law in China "". China's "Public Security Management Punishment Law" twenty-third stipulation violating public or private property, but not serious enough for criminal punishment, fifteen days detention or a warning, can be single or impose a fine of two hundred yuan:
(a) to steal, cheat, seizing a small amount of public or private property;
(two) looting the state, collective, individual property;
(three) blackmail and impose exactions on public and private property;
(four) intentionally damaging public or private property.
Thus, only with the above 4 items of behavior, can be identified as violation of "Public Security Management Punishment Law", is a violation of public security management activities, consistent with subjective constitution organizes minors to crime.

The circumscription between this crime and other crime

(a) crime of kidnapping children and minors to crime
China's "criminal law" the 262nd paragraph first: "kidnapping minors under the age of fourteen, from his family or guardian, is less than five years imprisonment or criminal detention." In practice, many criminals first abducted a number of minors, then organize the violation of public security management activities. As the object of crime of kidnapping children are minors under the age of fourteen, object and organizes minors to crime of minors under the age of 18, when the act of kidnapping 14 years old to minors under the age of 18, and organize them to violate public order management activities, which not only organization this imputation. The two crime cause the concurrence of problem is in the object are minors under the age of 14 when. In this case, kidnapping behavior of people first is organizational behavior subsequent means and organizational behavior, following is the objective behavior, and is implicated in the subjective, therefore constitute implicated, shall be in accordance with the principle of punishment of implicated offense, a heavier punishment.
"The maximum punishment criminal law" 262nd paragraph first of the crime of kidnapping children for five years in prison or detention; while the organization the minor crime has two sentencing standards, generally 3 years in prison or serious when 3 years more than 7 years of fixed-term in prison. Therefore, we believe that do not have serious circumstances in the case, shall be subject to the punishment of crime of kidnapping children behavior; on the contrary, it shall be punished according to the crime of organizing minors.
If the perpetrator's kidnapping children behavior when not in violation of public security management organization and its activities for the purpose, but in the minors. The nature of kidnapping, organizing minors to commit that violate the public security management activities, it is obviously respectively form two charges, shall be subject to the crime of kidnapping children and juveniles to violate the administration of public security the crime punishment.
(two) the organization the minor crime and the crime of intentional injury
The crime of intentional injury, intentional harm body refers to illegal behavior. This time, the new "criminal law" 262nd article third paragraph referred to the "organization", in judicial practice, more performance for the operation, control, planning, deception, recruitment, lure, violence, intimidation and other means, "the organization" the word itself contains violence in them, for this in the organization is not adults were in violation of public security management activities, the use of violence, intimidation, threats, belongs to an act violating two kind of charge, should be regarded as the imaginative joinder of offenses, a heavier punishment.
"Criminal law" the 234Th stipulation: "deliberately hurt others body, is less than three years imprisonment, criminal detention or control. The crime mentioned in the preceding paragraph, causing serious injury, three years and ten years in prison; causing death or by especially cruel means that lead to serious injuries resulting in severe disability, ten years imprisonment, life imprisonment or death. The provisions of this act, in accordance with the provisions". The revised "criminal law" the 262nd paragraph third: "the organization of minors to commit theft, fraud, plunder, blackmail and impose exactions on violation of security management activities, is less than three years imprisonment or criminal detention, and shall also be fined; if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined". More visible, the organisation for minors in violation of public security management activities when people use violence behavior of injury to a minor, if not constitute a serious injury, the revised "criminal law" the 262nd paragraph third of the crime punishment heavier, shall on conviction and sentencing; if a minor injury, death or special cruel means to minors injuries resulting in severe disability, it should be to the crime of intentional injury crime.
If the person under duress or threat of minors violate the public security management activities, because minors not obeying or attempted to escape but mind kill, kill the minors, it should be to the crime of intentional homicide and minors in violation of public security management activities of the two crimes.
(three) the crime of theft and the minor crime
Police in Shanxi Datong cracked in the case of Hu Yan, the behavior of [1] initially organizes minors to implement petty crime, conviction and sentencing did not reach the standard of the crime of theft, it is a violation of public security management activities; and when they "more persons", it is not only a violation of public security management activities, but offend the criminal law, constitute a crime. We believe that, in this case, should be divided into two stages. The first stage, Hu Yan tissue minors to commit acts violating the administration of public security, because Minors Act is not a crime, it cannot be interpreted as indirect principal Hu Yan, in the "criminal law amendment (seven)" promulgated before, criminal law is powerless to Hu Yan, and in the criminal law revised, Hu Yan acts of organizing minors crime; the second stage, Hu Yan organizes minors crime stage, because the Hu Yan organization minors behavior has violated the criminal law, therefore, Hu Yan is the indirect principal in charge, crime should be based on its organization of minors to commit the acts Hu Yan, which constitute the crime of theft. This two stage behavior is independent, there is no ties and absorption, therefore to Hu Yan should carry out the crime and theft crimes to minors.[1]

The standard of conviction

The subjective aspect of this crime is intentional. The fault can not constitute the crime. In addition, in the subjective aspect of this crime act must knowingly organization object is minor, or did not know the object is minor, but later found to be minor, but still organize their violation of public security management activities, is also recognized for this crime intentionally.
The organization performance for minors to commit theft, fraud, plunder, blackmail and impose exactions on the objective aspects in violation of public security management activities. We should pay attention to the following several points: first, the object is minor, namely organization minors under the age of 18 are in violation of public security management activities. Secondly, organizing juveniles to violate the administration of public security activities, namely, theft, fraud, plunder, blackmail and impose exactions on behavior, does not constitute a crime in violation of provisions, only "Public Security Management Punishment Law". Therefore, organizes minors to theft, robbery, fraud behavior can not be in violation of provisions of the "criminal law", constitute a crime, but only in violation of "Public Security Management Punishment Law", to meet the objective aspect of the crime constitution.

Filing standards

According to the "criminal law" the provisions of article 262nd two, organizes minors to commit theft, fraud, plunder, blackmail and impose exactions on such activities against the administration of public security, the organizer shall be placed on file for investigation.

Sentencing criteria

Guilty of this crime, and three years in prison orCriminal detention, and shall also be fined; if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined
Organization the minor crime is refers to the organization minors to commit theft, fraud, plunder, blackmail and impose exactions on other acts violating the administration of public security activities. [] (according to the provisions of the criminal law amendment to the criminal law revised in seven) 262nd two: organizes minors to commit theft, fraud, plunder, blackmail and impose exactions on violation of security management activities, is less than three years imprisonment or criminal detention, and shall also be fined; if the circumstances are serious, three to seven years in prison.
 

Elements　　

     According to the "criminal law amendment (seven)" the provisions of section eighth, we were violating security management activities of the crime of organizing minors crime do the following understanding:

From the provisions of view, the subject of this crime should be over the age of criminal responsibility of natural person under the age of 16. Can not define the subject of this crime for adults, because of China's "law on the protection of minors" second article: "called the minor refers to persons under the age of eighteen" as mentioned in this law, so 16-18 has the capacity of criminal responsibility of minors can also become the main body of the crime.
The subjective aspect of this crime is very clear, that is intentional, including organizer knowing they are organizing minors to commit that violate the public security management behavior direct intent, also including the organizer can be in accordance with the understanding of ordinary people infer is a minor but still organized the violation of public security management activities of the indirect intent. If the behavior of people in the implementation of organizational behavior do not know when the object is minor, but a moment in the implementation of the act after the understanding of the object's age, but did not stop, still let organized activities, so we think should be regarded as the subjective is deliberately.
The object of this crime is a complex object. In violation of the minor's personal liberty and physical and mental health at the same time, also has violated the social management order. Crime of the provisions of this paragraph, the first to protect minors personal freedom and rights from infringement, physical and mental health is not damaged, then can maintain the normal social order, therefore, the minor's personal freedom and the physical and mental health is the major object of this crime, the social management order is the main object of this crime. The subject of this crime is a minor, but unlike "provisions of the criminal law" 262 article first, paragraph 2, the object of the crime is a minor under the age of eighteen, to expand the scope of protection.
The implementation of organizing minors violate the public security management activities of the objective aspect of this crime is behavior person, that is behavior person organization minors to commit theft, robbery, blackmail and impose exactions on behavior did not meet the provisions of the criminal law of the crime, but is a violation of Public Security Management Punishment Law in China "". China's "Public Security Management Punishment Law" twenty-third stipulation violating public or private property, but not serious enough for criminal punishment, fifteen days detention or a warning, can be single or impose a fine of two hundred yuan:
(a) to steal, cheat, seizing a small amount of public or private property;
(two) looting the state, collective, individual property;
(three) blackmail and impose exactions on public and private property;
(four) intentionally damaging public or private property.
Thus, only with the above 4 items of behavior, can be identified as violation of "Public Security Management Punishment Law", is a violation of public security management activities, consistent with subjective constitution organizes minors to crime.

The circumscription between this crime and other crime

(a) crime of kidnapping children and minors to crime
China's "criminal law" the 262nd paragraph first: "kidnapping minors under the age of fourteen, from his family or guardian, is less than five years imprisonment or criminal detention." In practice, many criminals first abducted a number of minors, then organize the violation of public security management activities. As the object of crime of kidnapping children are minors under the age of fourteen, object and organizes minors to crime of minors under the age of 18, when the act of kidnapping 14 years old to minors under the age of 18, and organize them to violate public order management activities, which not only organization this imputation. The two crime cause the concurrence of problem is in the object are minors under the age of 14 when. In this case, kidnapping behavior of people first is organizational behavior subsequent means and organizational behavior, following is the objective behavior, and is implicated in the subjective, therefore constitute implicated, shall be in accordance with the principle of punishment of implicated offense, a heavier punishment.
"The maximum punishment criminal law" 262nd paragraph first of the crime of kidnapping children for five years in prison or detention; while the organization the minor crime has two sentencing standards, generally 3 years in prison or serious when 3 years more than 7 years of fixed-term in prison. Therefore, we believe that do not have serious circumstances in the case, shall be subject to the punishment of crime of kidnapping children behavior; on the contrary, it shall be punished according to the crime of organizing minors.
If the perpetrator's kidnapping children behavior when not in violation of public security management organization and its activities for the purpose, but in the minors. The nature of kidnapping, organizing minors to commit that violate the public security management activities, it is obviously respectively form two charges, shall be subject to the crime of kidnapping children and juveniles to violate the administration of public security the crime punishment.
(two) the organization the minor crime and the crime of intentional injury
The crime of intentional injury, intentional harm body refers to illegal behavior. This time, the new "criminal law" 262nd article third paragraph referred to the "organization", in judicial practice, more performance for the operation, control, planning, deception, recruitment, lure, violence, intimidation and other means, "the organization" the word itself contains violence in them, for this in the organization is not adults were in violation of public security management activities, the use of violence, intimidation, threats, belongs to an act violating two kind of charge, should be regarded as the imaginative joinder of offenses, a heavier punishment.
"Criminal law" the 234Th stipulation: "deliberately hurt others body, is less than three years imprisonment, criminal detention or control. The crime mentioned in the preceding paragraph, causing serious injury, three years and ten years in prison; causing death or by especially cruel means that lead to serious injuries resulting in severe disability, ten years imprisonment, life imprisonment or death. The provisions of this act, in accordance with the provisions". The revised "criminal law" the 262nd paragraph third: "the organization of minors to commit theft, fraud, plunder, blackmail and impose exactions on violation of security management activities, is less than three years imprisonment or criminal detention, and shall also be fined; if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined". More visible, the organisation for minors in violation of public security management activities when people use violence behavior of injury to a minor, if not constitute a serious injury, the revised "criminal law" the 262nd paragraph third of the crime punishment heavier, shall on conviction and sentencing; if a minor injury, death or special cruel means to minors injuries resulting in severe disability, it should be to the crime of intentional injury crime.
If the person under duress or threat of minors violate the public security management activities, because minors not obeying or attempted to escape but mind kill, kill the minors, it should be to the crime of intentional homicide and minors in violation of public security management activities of the two crimes.
(three) the crime of theft and the minor crime
Police in Shanxi Datong cracked in the case of Hu Yan, the behavior of [1] initially organizes minors to implement petty crime, conviction and sentencing did not reach the standard of the crime of theft, it is a violation of public security management activities; and when they "more persons", it is not only a violation of public security management activities, but offend the criminal law, constitute a crime. We believe that, in this case, should be divided into two stages. The first stage, Hu Yan tissue minors to commit acts violating the administration of public security, because Minors Act is not a crime, it cannot be interpreted as indirect principal Hu Yan, in the "criminal law amendment (seven)" promulgated before, criminal law is powerless to Hu Yan, and in the criminal law revised, Hu Yan acts of organizing minors crime; the second stage, Hu Yan organizes minors crime stage, because the Hu Yan organization minors behavior has violated the criminal law, therefore, Hu Yan is the indirect principal in charge, crime should be based on its organization of minors to commit the acts Hu Yan, which constitute the crime of theft. This two stage behavior is independent, there is no ties and absorption, therefore to Hu Yan should carry out the crime and theft crimes to minors.[1]

The standard of conviction

The subjective aspect of this crime is intentional. The fault can not constitute the crime. In addition, in the subjective aspect of this crime act must knowingly organization object is minor, or did not know the object is minor, but later found to be minor, but still organize their violation of public security management activities, is also recognized for this crime intentionally.
The organization performance for minors to commit theft, fraud, plunder, blackmail and impose exactions on the objective aspects in violation of public security management activities. We should pay attention to the following several points: first, the object is minor, namely organization minors under the age of 18 are in violation of public security management activities. Secondly, organizing juveniles to violate the administration of public security activities, namely, theft, fraud, plunder, blackmail and impose exactions on behavior, does not constitute a crime in violation of provisions, only "Public Security Management Punishment Law". Therefore, organizes minors to theft, robbery, fraud behavior can not be in violation of provisions of the "criminal law", constitute a crime, but only in violation of "Public Security Management Punishment Law", to meet the objective aspect of the crime constitution.

Filing standards

According to the "criminal law" the provisions of article 262nd two, organizes minors to commit theft, fraud, plunder, blackmail and impose exactions on such activities against the administration of public security, the organizer shall be placed on file for investigation.

Sentencing criteria

Guilty of this crime, and three years in prison orCriminal detention, and shall also be fined; if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined
Organization the minor crime is refers to the organization minors to commit theft, fraud, plunder, blackmail and impose exactions on other acts violating the administration of public security activities. [] (according to the provisions of the criminal law amendment to the criminal law revised in seven) 262nd two: organizes minors to commit theft, fraud, plunder, blackmail and impose exactions on violation of security management activities, is less than three years imprisonment or criminal detention, and shall also be fined; if the circumstances are serious, three to seven years in prison.
 

Elements　　

     According to the "criminal law amendment (seven)" the provisions of section eighth, we were violating security management activities of the crime of organizing minors crime do the following understanding:

From the provisions of view, the subject of this crime should be over the age of criminal responsibility of natural person under the age of 16. Can not define the subject of this crime for adults, because of China's "law on the protection of minors" second article: "called the minor refers to persons under the age of eighteen" as mentioned in this law, so 16-18 has the capacity of criminal responsibility of minors can also become the main body of the crime.
The subjective aspect of this crime is very clear, that is intentional, including organizer knowing they are organizing minors to commit that violate the public security management behavior direct intent, also including the organizer can be in accordance with the understanding of ordinary people infer is a minor but still organized the violation of public security management activities of the indirect intent. If the behavior of people in the implementation of organizational behavior do not know when the object is minor, but a moment in the implementation of the act after the understanding of the object's age, but did not stop, still let organized activities, so we think should be regarded as the subjective is deliberately.
The object of this crime is a complex object. In violation of the minor's personal liberty and physical and mental health at the same time, also has violated the social management order. Crime of the provisions of this paragraph, the first to protect minors personal freedom and rights from infringement, physical and mental health is not damaged, then can maintain the normal social order, therefore, the minor's personal freedom and the physical and mental health is the major object of this crime, the social management order is the main object of this crime. The subject of this crime is a minor, but unlike "provisions of the criminal law" 262 article first, paragraph 2, the object of the crime is a minor under the age of eighteen, to expand the scope of protection.
The implementation of organizing minors violate the public security management activities of the objective aspect of this crime is behavior person, that is behavior person organization minors to commit theft, robbery, blackmail and impose exactions on behavior did not meet the provisions of the criminal law of the crime, but is a violation of Public Security Management Punishment Law in China "". China's "Public Security Management Punishment Law" twenty-third stipulation violating public or private property, but not serious enough for criminal punishment, fifteen days detention or a warning, can be single or impose a fine of two hundred yuan:
(a) to steal, cheat, seizing a small amount of public or private property;
(two) looting the state, collective, individual property;
(three) blackmail and impose exactions on public and private property;
(four) intentionally damaging public or private property.
Thus, only with the above 4 items of behavior, can be identified as violation of "Public Security Management Punishment Law", is a violation of public security management activities, consistent with subjective constitution organizes minors to crime.

The circumscription between this crime and other crime

(a) crime of kidnapping children and minors to crime
China's "criminal law" the 262nd paragraph first: "kidnapping minors under the age of fourteen, from his family or guardian, is less than five years imprisonment or criminal detention." In practice, many criminals first abducted a number of minors, then organize the violation of public security management activities. As the object of crime of kidnapping children are minors under the age of fourteen, object and organizes minors to crime of minors under the age of 18, when the act of kidnapping 14 years old to minors under the age of 18, and organize them to violate public order management activities, which not only organization this imputation. The two crime cause the concurrence of problem is in the object are minors under the age of 14 when. In this case, kidnapping behavior of people first is organizational behavior subsequent means and organizational behavior, following is the objective behavior, and is implicated in the subjective, therefore constitute implicated, shall be in accordance with the principle of punishment of implicated offense, a heavier punishment.
"The maximum punishment criminal law" 262nd paragraph first of the crime of kidnapping children for five years in prison or detention; while the organization the minor crime has two sentencing standards, generally 3 years in prison or serious when 3 years more than 7 years of fixed-term in prison. Therefore, we believe that do not have serious circumstances in the case, shall be subject to the punishment of crime of kidnapping children behavior; on the contrary, it shall be punished according to the crime of organizing minors.
If the perpetrator's kidnapping children behavior when not in violation of public security management organization and its activities for the purpose, but in the minors. The nature of kidnapping, organizing minors to commit that violate the public security management activities, it is obviously respectively form two charges, shall be subject to the crime of kidnapping children and juveniles to violate the administration of public security the crime punishment.
(two) the organization the minor crime and the crime of intentional injury
The crime of intentional injury, intentional harm body refers to illegal behavior. This time, the new "criminal law" 262nd article third paragraph referred to the "organization", in judicial practice, more performance for the operation, control, planning, deception, recruitment, lure, violence, intimidation and other means, "the organization" the word itself contains violence in them, for this in the organization is not adults were in violation of public security management activities, the use of violence, intimidation, threats, belongs to an act violating two kind of charge, should be regarded as the imaginative joinder of offenses, a heavier punishment.
"Criminal law" the 234Th stipulation: "deliberately hurt others body, is less than three years imprisonment, criminal detention or control. The crime mentioned in the preceding paragraph, causing serious injury, three years and ten years in prison; causing death or by especially cruel means that lead to serious injuries resulting in severe disability, ten years imprisonment, life imprisonment or death. The provisions of this act, in accordance with the provisions". The revised "criminal law" the 262nd paragraph third: "the organization of minors to commit theft, fraud, plunder, blackmail and impose exactions on violation of security management activities, is less than three years imprisonment or criminal detention, and shall also be fined; if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined". More visible, the organisation for minors in violation of public security management activities when people use violence behavior of injury to a minor, if not constitute a serious injury, the revised "criminal law" the 262nd paragraph third of the crime punishment heavier, shall on conviction and sentencing; if a minor injury, death or special cruel means to minors injuries resulting in severe disability, it should be to the crime of intentional injury crime.
If the person under duress or threat of minors violate the public security management activities, because minors not obeying or attempted to escape but mind kill, kill the minors, it should be to the crime of intentional homicide and minors in violation of public security management activities of the two crimes.
(three) the crime of theft and the minor crime
Police in Shanxi Datong cracked in the case of Hu Yan, the behavior of [1] initially organizes minors to implement petty crime, conviction and sentencing did not reach the standard of the crime of theft, it is a violation of public security management activities; and when they "more persons", it is not only a violation of public security management activities, but offend the criminal law, constitute a crime. We believe that, in this case, should be divided into two stages. The first stage, Hu Yan tissue minors to commit acts violating the administration of public security, because Minors Act is not a crime, it cannot be interpreted as indirect principal Hu Yan, in the "criminal law amendment (seven)" promulgated before, criminal law is powerless to Hu Yan, and in the criminal law revised, Hu Yan acts of organizing minors crime; the second stage, Hu Yan organizes minors crime stage, because the Hu Yan organization minors behavior has violated the criminal law, therefore, Hu Yan is the indirect principal in charge, crime should be based on its organization of minors to commit the acts Hu Yan, which constitute the crime of theft. This two stage behavior is independent, there is no ties and absorption, therefore to Hu Yan should carry out the crime and theft crimes to minors.[1]

The standard of conviction

The subjective aspect of this crime is intentional. The fault can not constitute the crime. In addition, in the subjective aspect of this crime act must knowingly organization object is minor, or did not know the object is minor, but later found to be minor, but still organize their violation of public security management activities, is also recognized for this crime intentionally.
The organization performance for minors to commit theft, fraud, plunder, blackmail and impose exactions on the objective aspects in violation of public security management activities. We should pay attention to the following several points: first, the object is minor, namely organization minors under the age of 18 are in violation of public security management activities. Secondly, organizing juveniles to violate the administration of public security activities, namely, theft, fraud, plunder, blackmail and impose exactions on behavior, does not constitute a crime in violation of provisions, only "Public Security Management Punishment Law". Therefore, organizes minors to theft, robbery, fraud behavior can not be in violation of provisions of the "criminal law", constitute a crime, but only in violation of "Public Security Management Punishment Law", to meet the objective aspect of the crime constitution.

Filing standards

According to the "criminal law" the provisions of article 262nd two, organizes minors to commit theft, fraud, plunder, blackmail and impose exactions on such activities against the administration of public security, the organizer shall be placed on file for investigation.

Sentencing criteria

Guilty of this crime, and three years in prison orCriminal detention, and shall also be fined; if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined

Criminal law amendment seven (organization of minors crime)

Organization the minor crime is refers to the organization minors to commit theft, fraud, plunder, blackmail and impose exactions on other acts violating the administration of public security activities. [] (according to the provisions of the criminal law amendment to the criminal law revised in seven) 262nd two: organizes minors to commit theft, fraud, plunder, blackmail and impose exactions on violation of security management activities, is less than three years imprisonment or criminal detention, and shall also be fined; if the circumstances are serious, three to seven years in prison.

 

Elements　　

     According to the "criminal law amendment (seven)" the provisions of section eighth, we were violating security management activities of the crime of organizing minors crime do the following understanding:

From the provisions of view, the subject of this crime should be over the age of criminal responsibility of natural person under the age of 16. Can not define the subject of this crime for adults, because of China's "law on the protection of minors" second article: "called the minor refers to persons under the age of eighteen" as mentioned in this law, so 16-18 has the capacity of criminal responsibility of minors can also become the main body of the crime.
The subjective aspect of this crime is very clear, that is intentional, including organizer knowing they are organizing minors to commit that violate the public security management behavior direct intent, also including the organizer can be in accordance with the understanding of ordinary people infer is a minor but still organized the violation of public security management activities of the indirect intent. If the behavior of people in the implementation of organizational behavior do not know when the object is minor, but a moment in the implementation of the act after the understanding of the object's age, but did not stop, still let organized activities, so we think should be regarded as the subjective is deliberately.
The object of this crime is a complex object. In violation of the minor's personal liberty and physical and mental health at the same time, also has violated the social management order. Crime of the provisions of this paragraph, the first to protect minors personal freedom and rights from infringement, physical and mental health is not damaged, then can maintain the normal social order, therefore, the minor's personal freedom and the physical and mental health is the major object of this crime, the social management order is the main object of this crime. The subject of this crime is a minor, but unlike "provisions of the criminal law" 262 article first, paragraph 2, the object of the crime is a minor under the age of eighteen, to expand the scope of protection.
The implementation of organizing minors violate the public security management activities of the objective aspect of this crime is behavior person, that is behavior person organization minors to commit theft, robbery, blackmail and impose exactions on behavior did not meet the provisions of the criminal law of the crime, but is a violation of Public Security Management Punishment Law in China "". China's "Public Security Management Punishment Law" twenty-third stipulation violating public or private property, but not serious enough for criminal punishment, fifteen days detention or a warning, can be single or impose a fine of two hundred yuan:
(a) to steal, cheat, seizing a small amount of public or private property;
(two) looting the state, collective, individual property;
(three) blackmail and impose exactions on public and private property;
(four) intentionally damaging public or private property.
Thus, only with the above 4 items of behavior, can be identified as violation of "Public Security Management Punishment Law", is a violation of public security management activities, consistent with subjective constitution organizes minors to crime.

The circumscription between this crime and other crime

(a) crime of kidnapping children and minors to crime
China's "criminal law" the 262nd paragraph first: "kidnapping minors under the age of fourteen, from his family or guardian, is less than five years imprisonment or criminal detention." In practice, many criminals first abducted a number of minors, then organize the violation of public security management activities. As the object of crime of kidnapping children are minors under the age of fourteen, object and organizes minors to crime of minors under the age of 18, when the act of kidnapping 14 years old to minors under the age of 18, and organize them to violate public order management activities, which not only organization this imputation. The two crime cause the concurrence of problem is in the object are minors under the age of 14 when. In this case, kidnapping behavior of people first is organizational behavior subsequent means and organizational behavior, following is the objective behavior, and is implicated in the subjective, therefore constitute implicated, shall be in accordance with the principle of punishment of implicated offense, a heavier punishment.
"The maximum punishment criminal law" 262nd paragraph first of the crime of kidnapping children for five years in prison or detention; while the organization the minor crime has two sentencing standards, generally 3 years in prison or serious when 3 years more than 7 years of fixed-term in prison. Therefore, we believe that do not have serious circumstances in the case, shall be subject to the punishment of crime of kidnapping children behavior; on the contrary, it shall be punished according to the crime of organizing minors.
If the perpetrator's kidnapping children behavior when not in violation of public security management organization and its activities for the purpose, but in the minors. The nature of kidnapping, organizing minors to commit that violate the public security management activities, it is obviously respectively form two charges, shall be subject to the crime of kidnapping children and juveniles to violate the administration of public security the crime punishment.
(two) the organization the minor crime and the crime of intentional injury
The crime of intentional injury, intentional harm body refers to illegal behavior. This time, the new "criminal law" 262nd article third paragraph referred to the "organization", in judicial practice, more performance for the operation, control, planning, deception, recruitment, lure, violence, intimidation and other means, "the organization" the word itself contains violence in them, for this in the organization is not adults were in violation of public security management activities, the use of violence, intimidation, threats, belongs to an act violating two kind of charge, should be regarded as the imaginative joinder of offenses, a heavier punishment.
"Criminal law" the 234Th stipulation: "deliberately hurt others body, is less than three years imprisonment, criminal detention or control. The crime mentioned in the preceding paragraph, causing serious injury, three years and ten years in prison; causing death or by especially cruel means that lead to serious injuries resulting in severe disability, ten years imprisonment, life imprisonment or death. The provisions of this act, in accordance with the provisions". The revised "criminal law" the 262nd paragraph third: "the organization of minors to commit theft, fraud, plunder, blackmail and impose exactions on violation of security management activities, is less than three years imprisonment or criminal detention, and shall also be fined; if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined". More visible, the organisation for minors in violation of public security management activities when people use violence behavior of injury to a minor, if not constitute a serious injury, the revised "criminal law" the 262nd paragraph third of the crime punishment heavier, shall on conviction and sentencing; if a minor injury, death or special cruel means to minors injuries resulting in severe disability, it should be to the crime of intentional injury crime.
If the person under duress or threat of minors violate the public security management activities, because minors not obeying or attempted to escape but mind kill, kill the minors, it should be to the crime of intentional homicide and minors in violation of public security management activities of the two crimes.
(three) the crime of theft and the minor crime
Police in Shanxi Datong cracked in the case of Hu Yan, the behavior of [1] initially organizes minors to implement petty crime, conviction and sentencing did not reach the standard of the crime of theft, it is a violation of public security management activities; and when they "more persons", it is not only a violation of public security management activities, but offend the criminal law, constitute a crime. We believe that, in this case, should be divided into two stages. The first stage, Hu Yan tissue minors to commit acts violating the administration of public security, because Minors Act is not a crime, it cannot be interpreted as indirect principal Hu Yan, in the "criminal law amendment (seven)" promulgated before, criminal law is powerless to Hu Yan, and in the criminal law revised, Hu Yan acts of organizing minors crime; the second stage, Hu Yan organizes minors crime stage, because the Hu Yan organization minors behavior has violated the criminal law, therefore, Hu Yan is the indirect principal in charge, crime should be based on its organization of minors to commit the acts Hu Yan, which constitute the crime of theft. This two stage behavior is independent, there is no ties and absorption, therefore to Hu Yan should carry out the crime and theft crimes to minors.[1]

The standard of conviction

The subjective aspect of this crime is intentional. The fault can not constitute the crime. In addition, in the subjective aspect of this crime act must knowingly organization object is minor, or did not know the object is minor, but later found to be minor, but still organize their violation of public security management activities, is also recognized for this crime intentionally.
The organization performance for minors to commit theft, fraud, plunder, blackmail and impose exactions on the objective aspects in violation of public security management activities. We should pay attention to the following several points: first, the object is minor, namely organization minors under the age of 18 are in violation of public security management activities. Secondly, organizing juveniles to violate the administration of public security activities, namely, theft, fraud, plunder, blackmail and impose exactions on behavior, does not constitute a crime in violation of provisions, only "Public Security Management Punishment Law". Therefore, organizes minors to theft, robbery, fraud behavior can not be in violation of provisions of the "criminal law", constitute a crime, but only in violation of "Public Security Management Punishment Law", to meet the objective aspect of the crime constitution.

Filing standards

According to the "criminal law" the provisions of article 262nd two, organizes minors to commit theft, fraud, plunder, blackmail and impose exactions on such activities against the administration of public security, the organizer shall be placed on file for investigation.

Sentencing criteria

Guilty of this crime, and three years in prison orCriminal detention, and shall also be fined; if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined

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