涉黑犯罪一般参加者之刑法适用分析.pdfVIP

Abstract As a high-level organized crime, the gangland-like-organized crime’s social harmfulness is beyond doubt. Hence, all the countries are cracking down on the gangland-related crime. However, the progress of criminal law means that the criminal penalty is gradually becoming non-emotional, calm and rational. When the theory and practice fields of criminal law have focused on the organizer, leader and main participants of the gangland-related crime, application of criminal law to other participants in gangland-related crime should not be ignored. The group of other participants in gangland-related crime has its unique characteristics: tremendous number; having little influence over the organization due to its bottom position; coming originally from the vulnerable members of underclass; with the weak subjective culpability, social harmfulness, personal danger and antisociality; easy to be educated, reformed and saved, etc. Therefore, instead of blindly cracking down on this special group, we should look at the existence of this group from the rational point of view. Compared with the organizer, leader and main participants, we should use the different force and strategy of crackdown to this group. For the application of criminal law, we should take the basic position of “prudent incrimination, lenient with those who obey the law ” to criminate and mete punishment correctly. When selecting the prevention and control measures, we should choose the lenient criminal policy “free the small ones ” in view of its own particularity, so that establish the long lasting prevention and control mechanism. Only