Filing standards　　

     One of the provisions of article 262nd of the criminal law, by violence, coercion, organizations of persons with disabilities, minors under the age of fourteen engaged in begging, shall file the case. The crime is the behavior crime, need not beg everybody caused by injury or other serious consequences, as long as the behavior of the implementation of the violence, coercion, it shall file the case be investigated.^[1]

The subject of crime

　Criminal law amendment six (organizations of persons with disabilities, children begging crime)　　

Organizations of persons with disabilities, children begging crime, refers to the violence, coercion rehabilitation of disabled persons or minors under the age of 14 begging behavior.

The subject of the crime is general subject, which is at least 16 years of age has the legal responsibility ability person can constitute the crime, the subject of the crime unit is not guilty. Note that the only punishment, organizers, namely the organization, planning, begging group, command, leadership, I may be involved in the begging behavior, also may not participate in the. However, the simple act of begging is not a crime, so just begging behavior does not accord with the main character of the crime. The subject of this crime can be a person, can also be a few people, the key to see whether the organization for the role of the organization activities.

Object of a crime

The object of this crime is a double object, organization begging not only against the disabled and the physical and mental health of minors, but also on the normal social order has also brought confusion. The disabled and the physical and mental health of minors is the major object of this crime. Countries have formulated a series of security measures for the disabled, although not perfect, but basically guarantee the basic living needs of the disabled, but is organized to begging for a living, is the dignity of the injury, but the specific behavior means but also determine the infringement of the right to health of disabled people and the right of body. The same for minors, begging life will be very large negative impact on the future life, destroys the normal growth and development of minors. In addition, although can be regarded as its citizens for a life means of salvation, but premeditated, group organized begging will cause some confusion on the normal social order.

The subjective aspect of crime

The subjective aspects of crime of organizing begging is direct intention, namely, to know that he is in the organization of the minors and the disabled beggars, this behavior will cause socially dangerous consequences, and hope that the results of such harm. Indirect intention and negligence can not constitute the crime of organizing begging. Needs to be pointed out is, as a result of the specific crime object, to conceal age minors under the age of 14, if the person was not aware behavior is the same to the offenses? In daily life, there are some minor developed early, little difference in stature and adults. Especially in the 14 year old man, whose age is more difficult to grasp the details of the. In real life, I am afraid that very few people check identity cards in the organization begging before, not to mention some minors to some purpose often put their age in the account on the rewrite some. In accordance with the principle of legality, criminal law provisions of age missing a day are not in conformity with the provisions of the criminal law. Therefore, how to grasp in the judicial practice good standard is a very important problem. In accordance with the prevailing theory of constitution of crime, crime object specific is direct intention crime understanding factors indispensable part of human behavior, so if this crime must be subjective does knowing organization object is disabled and the minor, or can not show travel is punishable by penalty subjective malignant. But from the modesty of the criminal law, should also limit the appropriate number of practice in the punishment range of behavior, in order to achieve the goal of building a harmonious society. However, if according to the behavior of human behavior in the process of that, the subjective is to recognize each other may be minors under the age of 14, but it is not to go, but the organizers are minors under the age of 14, when the acts that people should comply with the subjective elements of crime. Also in the reality of the existence of the problem is, the problem is, for the organization of fake disabled beggars, but people should know how to deal with at that time did not. Because the provisions in accordance with the "law on the protection of disabled persons" of the people's Republic of China, the disabled including visual disability, hearing disability, speech disability, physical disability, mental disability, mental disability. The hearing disability, verbal intelligence disability disability, physical disability, mental disability, mental disability. The hearing disability, mental disability and mental disability specific it is difficult to judge, the disabled themselves may not know they are in line with national disabled standard sometimes including. But some people in order to find convenient or to obtain social security, even do false certificate of disability. Provisions of the state criminal law is to protect the rights of persons with disabilities from the essence of criminal law, at the same time also does not require only a special characteristic in appearance of persons with disabilities such as physical disability is the object of the crime, but in essence, the organization of any kind of disabled people begging is a serious violation of personal rights. If the behavior is the organizers did not, nor may know by the organizer is disabled, due to the lack of direct intentional crime elements in understanding attitude, which can not truly reflect the behavior of people punished subjective malignant, therefore in; in this case are generally not by the offenses. But according to "Public Security Management Punishment Law" the relevant rules of J, considering the plot in the situation according to the behavior of people shall be given a heavier punishment. For the person is not disabled, and Chi organizers really mistook each other is disabled, because this time has shown consistent with the subjective malignant, and Wu and behavior also has social harmfulness, belonging to the object can not make mistakes in the theory of criminal law, if vile can be punishment according to the crime of attempted.Another concern is whether, in the organization of begging behavior is illegal for the purpose of obtaining benefits must sin. In the criminal law amendment draft once had this rule, but in a formal amendment of the Standing Committee of the national people eventually released but this provision to delete. Does this mean that legislators tend not to act a profit objective subjective? From the object infringed, lawmakers are primarily concerned with the social security of chaos such violations and organization of disabled persons and minors personal right of begging. This crime in the criminal law of the arrangement can be seen from the legislation, lawmakers to stipulate this crime as one of 262nd similar objects, and article 262nd of criminal law under the crimes and the personal rights of citizens, the organizers organized large numbers of practice of begging is to obtain benefits for the purpose of, but I may not be denied there would be some not for profit organization begging behavior. In reality, there are some "Gai" organization for the interests of the group and organized begging, organizers in addition to collect some necessary pay most of the begging income to the group. However, their violence and coercion behavior has seriously violated the disabled and the physical and mental health of minors, in line with the required by law of social harm, it should be organized in order to beg | crime. But from the legal point of view, since the criminal law does not requires a specific profit objective, and organization begging behavior were not necessarily intended to gain profits, then in the interpretation of criminal law to add this one is on the legal principle of crime and punishment in violation of. In addition, from the perspective of judicial proof, the actor's subjective purpose of profit is often difficult to prove, in order to stringent law, the legitimate rights of real security for disabled people sing with a minor I cover, vrajendra good social management order, the crime subjective requirements do not profit is also be perfectly logical and reasonable.

The objective aspect of crime

In the objective aspect is behavior person to the implementation of the violence, coercion, organizations of persons with disabilities and minors begging behavior. To sum up, this crime has the following aspects.1, must implement the organization, the disabled minors begging behavior.Tissue, the disabled minors begging is an act of. In practice, constitute the crime of organizing begging the implementation of the organization, command and planned behavior usually is behavior person. Tissue C here refers to the organization meaning narrow not constitute crime of organizational behavior, relationship between them is to be including and) refers to the personnel begging dispersed concentrated control, and organizational behavior in the begging activities. For example some organizers by seeking in the society stray minors and stressful disabled, put them together to begging activities. Even some organizers and minors or guardians of disabled persons to reach an agreement, the juvenile and the burden is heavy and the disabled minors begging. Planning is engaged in the organization of begging for plans, planning the layout of the behavior. The common way of organizing begging begging for group to develop plans, formulate detailed implementation | scheme etc.. For example some people practice according to "market prices around begging" grasp the specific assignment, etc.. For example some people practice according to "market prices around begging" grasp, specifically assigned to different places to beg the personnel number. Command, refers to the implementation of the minors and the disabled beggars activities play a leading role, core, such as the distribution of tasks, decision behavior. The command is the direct implementation planning scheme, the performing organization behavior intention of the act, for the implementation of specific begging activities often decision has a direct effect, can be said to be the implementation of specific people begging organization. For example, lead to different locations to beggars begging activities scheduled, begging behavior in the process of giving begging personnel to "technical support" and "spiritual mobilization", responsible for the collection of begging the property etc.. The organization, planning, command is organized begging behavior, behavior as long as people have one or more can be found in the tissue of begging behavior.2 organizations, the disabled minors begging, the violence, coercion.The special requirements of the behavior of organizational behavior means of violence or coercion. But in understanding the relationship between organizational behavior and violence, coercion had some relationship is the need to clarify. Is the organization behavior with violence, coercion or violence, coercion, itself is organizational behavior mode. On this point of law stipulation is vague, the need to explain to clear. Organizational behavior generally refers to the leadership, planning, organization, command behavior in a group, its range is relatively wide. Perhaps it is the extension of the scope of criminal law based on widely, specifically the addition of violence, stress the two limit, in order to narrow the scope of attack. However, if the violence, coercion interpretation form of organization behavior, the extension of the scope is too narrow. And according to the general experience of society, possibility of pure to organize by violence, coercion is relatively small. Therefore, we tend to compromise the interpretation of violence, namely, stress explanation for the behavior of organizational behavior mode. That as long as the begging to not in all process organization begging people in the implementation of violence, coercion, construction cost by: this of course includes the often occur in practice, the victim by voluntary organized begging to want to leave the begging group was checked by means of violence or menace 1 organizers and forced to beg.A closely related problem is, whether violence, coercion must be implemented by the organizers personally, whether the implementation of violence, coercion can conform to the objective character of the crime. The author thinks, perpetrators of violence, coercion and organizers can be separated from each other, because in reality the organizers often just "mental", not the specific implementation of some harm to minors with Disabilities Act, these "bad behavior" is often a lower status than people to complete. However, if the perpetrators of violence, coercion is under control and the organizer of the organizers, perpetrators of acts are informed, or violence, coercion is begging - organization plan part, l then, objective behavior even organizer itself has no specific violence, coercion is also constitute the crime of the. In such cases, perpetrators of violence, coercion act is the implementation of the organizers will, it is only the organizers use tools, it should be regarded as the organizer I violence, coercion. (indirect principal is similar to the use of specific crime behavior does not constitute the implementation of specific crime), of course, for violence, coercion to organizer is deserved punishment to be in accordance with the crime. However, is not in accordance with this crime be punished according to the implementation of specific non organizer violence, begging tissue stress behavior, although they were begging for tissue may also play a very important role. (the reader must differentiate between criminal organizations in general organizer and organization of the organizers of the. All members of the organization principle of constitute a crime, criminal punishment and often only organizers, other members of the organization is not a crime but not the organizers), violence, coercion act although does not constitute a crime, if serious, can be in accordance with the infringement personal rights crime in the crime of intentional injury to conviction punishment. In addition, "Public Security Management Punishment Law" can also be applied to such violations.The violence, in this crime generally refers to the act directly on the disabled, minors body against the implementation and enforcement, such as beating, binding, illegal detention, illegal restriction of personal freedom. But the violence behavior take to cause minor injuries to the victim for the upper limit, if intentionally causing serious injury or death results is organized begging crime and the crime of intentional injury, intentional homicide of the imaginative joinder of offenses, according to choose a place off the delete, should be the crime of intentional injury or intentional killing crime. The reason for this explanation is the basic legal punishment, crime of intentional injury, which caused minor injuries, is less than three years imprisonment, criminal detention or control, and organizational begging crime basic legal | punishment, less than three years imprisonment or criminal detention, and a fine of consistent. And begging crime with aggravated by legal punishment, namely, if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined, cause and therefore respect mayhem in the injured legal punishment, three to ten years in prison have criminal amplitude difference. But, why not violent means in the crime of organizing begging including wounded consequences? And this crime and the crime of intentional injury law in the criminal code in the fourth chapter of the violation of civil rights crimes, namely that this crime and the crime of intentional injury are the same as the health rights mainly against crime object. Here we need to pay attention to is, the infringement of the particularity of the object, i.e. the disabled minors. They belong to the society of the weak, in need of care and love others. But the organization crime of begging behavior not only don't help them, but also to the social vulnerable groups as a profit-making tool, bad behavior itself is very big, and the nature of this crime against the person, not only in the violence of disabled persons and minors direct personal injury, forcing the begging behavior the disabled and minor damage is great. Therefore, the violence crime is defined in the following is the strength of minor injuries to be perfectly logical and reasonable, reflects the balance between crime and punishment of the criminal law idea. The so-called to coercion, in the general performance of the threat of violation of human rights, refers to the act of the disabled, minor threat, intimidation, coercion means to achieve spiritual. Such as, threatened to attack, the victim offender victim's relatives and close, and the use of the environment to be isolated and helpless hungry freeze method threat forced the disabled, minors to organizers of the assignment, afraid to fight. The main difference between the violence and coercion is, violence is directly added to the victims body physical force, and the stress is mainly refers to the compulsory victims of disabled persons and minors in spirit, is a kind of invisible force. But these two kinds of means behavior of the purpose is the same, namely, forcing the disabled persons and minors to organizers of dispatch, for obtain illegal gains and begging. So we can say, the ultimate goal of violence and spiritual force, the only difference with the coercion is the two forms are not the same.The 3 is organized is the object of disabled persons and minors, and the number should be more than.The specific definition of disabled persons and minors, has to be clear in the criminal object of crime object part of the explanation, here no longer say.It is organized begging personnel amount, although the provisions only that organizations of persons with disabilities or minors under the age of fourteen is not clearly be organized begging, begging personnel must be many people. But from the legislative intent of view, because the organization of begging is to scattered individuals together, not only can promote the expansion of begging team, begging activity scale, but also can evolve into the Mafia "beggar", the social harmfulness. So, it is the serious this organization begging acts harmful to society, criminal law to special provisions to punish crime, begging the activities of the organization behavior. But, generally speaking, since it is the organizational behavior we must control the people rather than a person, otherwise not change its organizational behavior. In this regard, we can refer to the same punishment of organizational behavior organization prostitution crime. The Supreme People's court, the Supreme People's Procuratorate announced in 1992 on the implementation of "the National People's Congress Standing Committee decision on the non prostitution" the answers to some questions of the provisions of article second, the organization prostitution behavior must be control people. At the same time "answer" Ninth further stipulates that, "many" and "many" refers to the numbers above three including the number,. Therefore, according to the legislative purpose of criminal law and the related judicial interpretation, the author thinks, be organized begging personnel must be many people, the number should be understood as three or more than three people.However, a problem is closely related to, many people of this crime is that each member is disabled or minors, or as long as people have the objective elements of disabled persons or minors will conform to the. Because in reality the pure disabled persons or minors begging group does not see more, often is all kinds of people. From the modesty of the criminal law and strict form of statutory interpretation perspective, should be interpreted as more people are disabled or minors. Only in this way, people can achieve the degree of social harmfulness of crime required. It is only in the begging group has more than three minors or disabled people were forced to participate, to meet the objective elements of crime.

The crime with the non crime

The difference between the crime and the general organization of begging behavior."Public Security Management Punishment Law" forty-first stipulates, "coercion, deception or use them begging" security violations, will be "more than 10 days to 15 days detention, can impose a fine of 1000 yuan of the following. Repeated entanglement, forcibly begging or beg to other irritating way, to five days detention or warning." The related will organize begging crime and "Public Security Management Punishment Law" provisions of comparison are the following, two differences: one is the protection of "Public Security Management Punishment Law" for anyone, not just the disabled or not. While the organization begging crime is clear about the request, only disabled persons and minors under the age of fourteen to form the object of the crime. Two is the object of "Public Security Management Punishment Law" punishment is more widely, not only the organizers, all the stress, deception or use them to begging people and begging begging behavior way of illegal person who is the object of administrative penalty. While the organization begging crime object is limited to the organization of beggars. Three is the "Sheriff punishment law" provisions of the act is the organization crime of begging widely, as long as the others were begging behavior, no matter what means are delinquent security punishment. The organization is limited to begging crime means the use of violence and intimidation.In a word, "Public Security Management Punishment Law" punishment range is inclusive of the organization begging crime, therefore the determination of this crime, besides the difference to grasp both from nature in different ways, but also pay attention to the same organizations of persons with disabilities and minors under 14 years of age the begging behavior, what circumstances applicable "the public security management punishment law", applies organizational circumstances under which the crime of begging. The overall approach is based on the severity of the harm to the society, the standard reference in the objective aspect of the crime of.

This crime and other crime

The relationship between this crime and the crime of intentional injury

Because of the required specific violence or coercion would the right to health, right of body and life right of disabled persons and minors will threaten the victim, may cause injury or death results, so as to meet other infringement of personal rights crime characteristic. So it is necessary to put the difference between this crime and other crime against the person to be clarified in theory, in order to facilitate the judicial practice of master.Organized begging crime and the crime of intentional injury, if the juvenile tissue beggars use violence to the disabled or under 14 years of age who hurt, belongs to a behavior (of course with respect to organize begging crime of complex behaviors, a behavior here is gone ") violates several charges of imagination jointer of offense. In accordance with the theoretical circle of criminal law in China should be in accordance with the said from a fault principle, namely according to the behavior violates several charges prescribed penalty heavier crime punishment, not punishment. Comparison of tissue begging crime and the crime of intentional injury in the range of statutory penalty, causing minor injuries when the crime of intentional injury and tissue begging crime legal punishment scope is basically the same, causing minor crime of intentional injury time is less than three years imprisonment, criminal detention or control, organize begging basic penalty crime are less than three years in prison or detention, and shall also be fined. But as mentioned earlier, the degree of violence crime of organizing begging should be limited to cause minor injuries (see the discussion about the reason of the objective aspect of crime). And begging crime has two statutory punishment, if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined. Therefore, we can say, violence in tissue, begging are disabled or minors under the age of 14 minor injuries, tissue begging crime legal punishment amplitude is higher than that of the crime of intentional injury, therefore should be in accordance with the crime of organizing begging. While violent means of illegal organizations that lead to serious injuries, intentional injury crime legal punishment is three to ten years in prison, is serious when organizing begging crime sentenced to three years in more than seven years in prison, fined legal punishment is relatively heavy, so at this time should be in accordance with the intentional injury crime. As for the acts of intentional injury causing death or by especially cruel means that lead to serious injuries or serious disability is no doubt to be convicted and punished for the crime of intentional injury.Notable is, the discussion is limited to the description of the applicable law of organization behavior to violence as a means of injury. As for the practice of organization, some beggars to make it easier to succeed by begging weaver, deliberately induced by organizers disability behavior is independent of the crime of intentional injury case. If the circumstances of the case in accordance with the organization and comprehensive begging crime, they shall be in accordance with the crime of intentional injury and tissue begging crimes he.

The relationship between this crime and the crime of illegal detention

In the process of organizing begging is often accompanied by the organizer of the organization involved in illegal limit rhodium restriction or deprivation of personal liberty. At this time if the unlawful detention crime occurs with the organization begging crime law choice problem? According to the author, the detention behavior is a part of organizational behavior, organizational behavior illegal often contain the illegal detention of the organizers. Therefore, the criminal law in the provisions of begging crime already took this into account, the social harmfulness of illegal detention of organization behavior constitutes the crime of organizing begging part, from the horizontal and be absorbed. Therefore, at this time no cognizance of crime number, according to the organization's begging crime conviction and punishment is punishment enough alone at the social harmfulness.

The relationship between this crime and crime of kidnapping children

The new criminal law amendment to organize begging crime stipulated in article 262nd of the criminal law, and the original crime of kidnapping children within the same provisions, in accordance with the usual understanding, must have some rules of law or fact links in two charges the same room, or complement each other or to remind the judicial practitioners don't expose convicted of crime. Therefore, the difference and connection between concrete analysis of crime of kidnapping children and begging crime is one which has important practical significance.Child abduction refers to the crime of kidnapping children under 14 years of age from his family or guardian behavior. The subject is the general subject. The subjective aspect is direct intention. Motivation is adopted, or enslaved. Object is other family relationships and children's legitimate rights and interests, the object is children under 14 years of age. Compared with the organization of the crime of begging the difference and connection found, subject, object of crime and crime object two is consistent, and the subjective may also coordinate with each other. In practice, the organization to organize begging beggars to force is often use unscrupulous divisive tactics, and easier to control children more objects they are easier to consider. For children under 14 years of age are generally in parental custody, so the organization beggars often only through kidnapping way can make the children from the family protection, so as to achieve the purpose of the organization and beggars. At this time, the organization crime of begging behavior of human behavior is consistent with the organization begging crime and crime of kidnapping children two constitutive elements of a crime, should be combined punishment for several crimes. Maybe someone would claim has implicated relation between the two crimes should be punished, so from a felony, but I do not agree to this controversial implicated offense in criminal law theory of the crime, but also in the judicial practice is rarely referred to the criminal theory of implicated offense in case a crime punishment. More importantly, child abduction and begging is two independent evaluation of criminal law, the behavior way between each other and it doesn't matter mutually inclusive or cross, punished as a crime, contrary to the original intention of legislation, it is difficult to achieve the balance between crime and punishment.So we can say, the legislators put the two crimes in accordance with the law is often occur simultaneously in practice based on the two act of the crime. We suggest that crime judicial practitioners more comprehensive, don't miss the prosecution of crimes should be. At the same time, it also reflects the focus on children's rights legislation.

Sentencing criteria

Guilty of this crimeIs less than three years imprisonment or criminal detention, and shall also be finedIf the circumstances are seriousThree years or more in less than seven years imprisonment, fined

The standard of accomplishment of the crime

That actor implement what kind of behavior can be identified as the crime problem, there are different academic perspectives. Some people think that: "only act done by violence, coercion of organizing the disabled children were begging behavior is the perpetrators of this crime, does not require material and tangible results of crime. As for the size of the organization, the number of beggars, impact on society, 'violence, coercion' such as degree, usually does not affect the establishment of this crime (except in accordance with the criminal law thirteenth stipulation 'plot remarkable slight harm not big, not be considered a crime' cases)." This view is that the crime is the behavior crime, behavior as long as people completed by violence, coercion organizations of persons with disabilities, children begging behavior, can constitute the crime of the crime, the organizations of persons with disabilities or whether children begging for success, whether the actor to obtain illegal interests, as well as begging amount how many, does not affect the establishment of this crime accomplishment; another view: "if the organizations of persons with disabilities or minors under 14 years old without begging, begging for tissue without actual finish and behavior can only be attempted crime is established." This view is actually think this crime is committed, the behavior should constitute accomplished, not only to implement by violence, coercion organizations of persons with disabilities, children begging behavior, and must be organizations of persons with disabilities or children actually implemented the begging behavior.

The object of the crime

"Criminal law amendment (six)" in the behavioral object limited to "disabled" and "minors under the age of 14," this is where most scholars criticized. Scholars generally believe that the scope of object of crime crime provided too narrow. Because the reality is organized begging people not is disabled and children under 14 years of age, including the elderly, patient, have reached the age of 14 but under 18 years of age underage, but these people are also vulnerable groups in society, are also vulnerable to the lawless elements, their legitimate rights and interests are vulnerable to abuse, also in need of legal protection.So the criminal object limit for "disabled persons and minors under the age of 14," does not conform to combat and curb the phenomenon of objective. The purpose of legislation of this crime is to protect the "weak", and therefore should not be beyond the disabled and children of the weak excluded.

Legislative proposals

In view of the above shortcomings and defects, and put forward the following suggestions: 1, the "decoy" into the behavior means; 2, will be the object of the crime is expanded to include the full 14 years of age, minors under the age of 18, and the old people (male 60 years of age, female 55 years); 3, clear behavior which violates this crime and other crimes, should be combined punishment for several crimes.Amendments in accordance with the above, "criminal law amendment (six)" the provisions of section seventeenth can be reconstructed:"By the violence, coercion or deception measure of organizing the disabled, minors, the elderly begging, is less than 3 years imprisonment or criminal detention, and shall also be fined; in one of the following cases, 3 to 7 years in prison, fined:(a) organizations of persons with disabilities, minors, the elderly begging, a large number of;(two) many organizations of persons with disabilities, minors, the elderly begging;(three) to obtain illegal interests of the huge amount of;(four) seriously disrupted social order, adverse social impact and bring about great loss to a country, the collective interests;(five) other serious consequences.

The crime mentioned in the preceding paragraph, the organizers have deliberately killed, intentional injury, illegal detention, abuse, insult, trafficking and other criminal acts, shall be punished in accordance with the provisions of graft.

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