质疑以"黑社会性质"框定刑法294条的集团犯罪

"黑社会性质"组织罪是对刑法第294条规定的具有黑社会性质又不完全符合典型黑社会犯罪特征的一类集团犯罪的罪名概括,此创意无疑是为了适应国际社会打击黑恶社会势力的需要,因而照抄照搬以"黑社会"的字样.其结果,不但引起了黑社会性质组织罪诸多理论问题的争议,而且还给司法部门依据刑法294条从严打击犯罪设置了障碍.这一系列问题的症结就在于我们对294条的理论定位有失偏颇,以"黑社会"这一犯罪学上的术语来界定规范意义上的共同犯罪,于国情不符,与刑法理论相悖.

On Questioning the Bloc Crime which Is Defined with Characteristic of Sinister Society in the Criminal Law Item 294

The crime of an organization with the characteristic of sinister society refer to bloc crime, listed as Item 294 in the criminal law, which has the characteristic of sinister society but does not entierly conform to the feature of typical crime of sinister society. The purpose of using the words of sinister society is simply to meet the need of cracking down the forces of darkness in the international societies. The consequence is that it not only arouses a lot of disputes on theories in the crime but also puts up barriers to crack down the criminals by judicial departments, according to the Item 294 in the Criminal Law. The problem is that we have not given the accurate definition to the theory of Item 294. Using sinister society - a terminology in criminology to define the common crime does not conform to our national conditions and also is against the theory of the Criminal Law.