Introspection on the logic of theory of organizational control in criminal law

Yuan Guohe

Chapter 6 in Renmin Chinese Law Review, 2023, pp 146-170 from Edward Elgar Publishing

Abstract: In light of the Theory of Organizational Control (TOC), ringleaders of a criminal organization are indirect perpetrators, if i) the organization has a hierarchical structure, ii) its activities are against the law, and iii) the executors are fungible. However, the fungibility of the direct executor is only the consequence of the existence of multiple order-issuing persons, which is not exclusively characteristic of organized crimes. The certainty that a constitutive act would be carried out is only the result of the accumulation of probabilities brought about by the existence of multiple order-carrying persons, hence the recognition of dominance over the realization of specific constitutive elements cannot be proved by such high probability obtained from the overall review. Moreover, TOC does not demonstrate how the ringleader achieves control over the will. It also breaks away from the principle of judging organizational control within specific constitutive elements. Therefore, it actually ends up being a theory of control over the result instead of control over the act. Direct executors without any defects in the aspect of will and in complete control over their own behavior cannot become “behavioral instrument” of indirect perpetrators. It is contrary to the principle of autonomy if TOC recognizes a perpetrator behind a totally free-willing perpetrator. Even if ringleaders are recognized as instigators, they would not be given an unacceptable mild punishment.

Keywords: Asian Studies; Law - Academic (search for similar items in EconPapers)
Date: 2023
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