黑社会性质组织犯的认定与责任

摘要

The organizing criminal in gangland crime has its own criminal constitution and its concept is in the narrow sense. The key point to affirm this kind of organizing criminal is to get a full control of four features of the criminal constitution. It has its own accomplished crime and unaccomplished crime such as criminal preparations, attempted crime and desistance crime. In the identification of criminal responsibility, the excessive organizational behavior has little relevant with the establishment of the organizing criminal and should be undertaken by the leader,the protagonist and the general participants. The overlaps on itera- tive evaluation should be subtracted.%黑社会性质组织中的组织犯已经构成要件化,是狭义意义上的组织犯。准确认定这种组织犯的关键,需要对其作为构成要件的四个特征进行全面把握。它存在完成形态和预备、未遂、中止等各种未完成形态。在责任认定中,过剩的组织行为与组织犯的成立已关系不大,其责任可分别归入领导、积极参加和一般参加者来承担。组织犯在评价中存在重复评价问题,在评价时应该减去重叠的部分。