Author bio:Lawyer Liao Ruibin: Full-time lawyer at Guangdong Zhiming Law Firm, part-time law tutor at South China Normal University School of Law, Deputy Director of the Public Relations Committee of Shenzhen Lawyers Association, member of the Economic Crime Defense Committee of Guangdong Lawyers Association, and member of the Commercial Crime Prevention and Defense Committee of Shenzhen Lawyers Association.

As a sweeping nationwide campaign to "eliminate gang crime and root out local mafia" unfolds, in line with the spirit of the "Notice on Carrying Out a Special Campaign to Eliminate Gang Crime and Root Out Local Mafia," how to precisely target and combat gang-related crimes has become a hot topic in legal circles. In past cases involving organized crime of a mafia-like nature, particularly those with numerous participants, defense lawyers often find it difficult to succeed with a subversive argument such as "the criminal group in this case cannot be identified as a mafia-like organization." However, as a criminal defense lawyer hired or invited to represent individuals involved in the case, it is not impossible to find a breakthrough by thoroughly examining the evidence and details to sever the connection between your client and the mafia-like organization.

First, we need to clarify what constitutes "participation" in a mafia-like organization. Simply put, participation in a mafia-like organization refers to becoming a member of such an organization and accepting its leadership and management. This participation is further divided into "active participation" and "general participation." According to the 2009 "Minutes of the Symposium on Handling Cases of Mafia-like Organized Crime" (Fa [2009] No. 382) regarding the identification of active participants and other participants: "Active participants refer to criminals who accept the leadership and management of a mafia-like organization, repeatedly and actively engage in its illegal and criminal activities, or actively participate in more serious criminal activities of the organization with a prominent role, as well as those who play an important role in the organization, such as those specifically in charge of finances or personnel management; other participants refer to criminals, aside from the above-mentioned members, who accept the leadership and management of the mafia-like organization." From this, we can conclude that both active and other participants are premised on "accepting the leadership and management of the mafia-like organization," and whether such acceptance exists is a key basis for determining participation in the organization.

Having identified this breakthrough, we must elevate it into an effective defense point. Can temporary employment to commit crimes be identified as the crime of participating in a mafia-like organization? The author believes this should be analyzed in the following two scenarios:

First, in recent years, mafia-like organizations generally do not use formal rituals or membership procedures to recruit members. Therefore, if a hired or invited individual falls under any of the following circumstances, they are likely to be identified by judicial authorities as having participated in the mafia-like organization and convicted of the crime: 1. The individual is invited to join the organization and reaches some tacit understanding with it regarding membership; 2. The individual actively requests to join and obtains approval, recognition, or tacit consent from the organization's leader or core members; 3. Although no joining ritual or procedure is conducted, the individual participates in multiple illegal or criminal activities under the organization's leadership or management; 4. The individual initially does not know they are joining a gang-related organization but, after learning the truth, does not withdraw and continues to participate in its illegal or criminal activities. In other words, if an individual exhibits any of the above circumstances, they are generally deemed to have accepted the leadership and management of the mafia-like organization, thus establishing participation.

Second, if an individual is merely hired, invited, recruited, enticed, or deceived into carrying out illegal or criminal activities for a mafia-like organization, or providing assistance, services, or a show of force, without the subjective intent to join the organization and without objectively being subject to its leadership and management, judicial authorities will be more cautious in determining whether the hired or invited individual constitutes participation in the mafia-like organization and will not convict them of the crime. For example, in the case of Chen Jinbao and eight others involving organizing, leading, and participating in a mafia-like organization, as recorded in the "Criminal Trial Reference," both the first and second instance courts held that Liu Yingping and others, who were temporarily invited and hired to provide "lookouts" and thugs for a gambling den based on prison friendship, lacked the subjective desire to join the organization and were not objectively subject to its leadership, management, or constraints. Ultimately, the court ruled that Liu Yingping and the other eight individuals did not constitute the crime of participating in a mafia-like organization, serving as an example of this viewpoint.

In summary, when defense lawyers find it difficult to uncover sufficient subjective and objective evidence to prove that "the organization cannot be identified as a mafia-style organization," we can combine the actual circumstances of the client in the case to argue that "the perpetrator subjectively has no desire to join the organization and objectively has not accepted the leadership and management of the mafia-style organization," thereby severing the connection between the client and the mafia-style organization, often achieving twice the result with half the effort.