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黑社会作为一种与正常社会形态相对抗的组织,当今世界各国都难以避免黑社会犯罪之问题,我国亦难逃斯例。然而立法者出于我国尚不存在发展成熟的黑社会组织这一现实考量,仅设立了黑社会性质组织罪。但对此罪认定在司法实务中一直较难把握,地方性法律、司法解释和立法解释几易其定义与特征,直至刑法修正案八吸收了之前的立法解释明确了本罪应具备组织特征、经济特征、行为特征、非法控制特征。而刑法对这四个基本特征的描述都相对概括和模糊,以致在实践中造成诸多困惑。且我国对此类犯罪的打击常年秉持“严打”政策,虽黑社会性质组织犯罪往往危害颇大,但刑法在追求惩罚犯罪的同时,亦追求公正。故而在认定此罪时,应在明确黑社会性质组织概念之基础上,紧扣刑法所界定的其四个特征,并注意结合具体案情把握四特征之间的内在联系,方能既不至将尚不够成黑社会性质组织的团伙犯罪升格定罪,亦不至于错将已构成本罪黑社会性质组织降格轻纵。
As an organization that opposes normal social patterns, triad society can hardly avoid the crime of underworld crime in all countries of the world and China can not escape its own example. However, for the fact that the legislator does not yet exist in our country for the development of a triad organization, it only sets the crime of underworld organization. However, this crime was found to have been more difficult to grasp in the judicial practice. The definition and characteristics of local laws, judicial interpretations and legislative interpretations were not changed until the amendment of the Criminal Law8 absorbed the previous legislative interpretation, which made it clear that this crime should have organizational characteristics, Economic characteristics, behavioral characteristics, illegal control characteristics. However, the descriptions of the four basic features of criminal law are relatively generalized and vague, resulting in many puzzles in practice. Moreover, the crackdown on such crimes in our country upholds the policy of “serious strike” all the year round. Although criminal activities are often endangered by criminal syndicates, the criminal law, while pursuing the punishment of crimes, also pursues justice. Therefore, when determining this crime, the four characteristics defined by the criminal law should be closely tied to the concept of a triad organization. Attention should be paid to grasping the intrinsic connection between the four characteristics by combining specific cases so as not to It is not enough to convict gangs of criminal syndicates or to downgrade gangs that have constituted the crimes of this crime.