| In fact, the provision for Unit Crime is the application of the principle that the master bares the liabilities if the servant is in error in the Criminal law. Unlimitted joint liability and assignation of civil liability are admitted by the Civil Law, which is determined by the character of civil liability. Because the criminal responsibility is punitive, baring the crime and responsibility by oneself and opposing implicate others are regarded as basic principles of the Criminal Law by modern civilized countries. Unit Crime in our country is enacted "forcedly" under the circumstances that in the process of reform and opening up, the market economy system in our country is not sound, and the act that endangers society committed by a unit suddenly rises. Legislators hope to standardize the management behavior of a unit through providing that an act of violating economic laws and regulations is a criminal act. Nevertheless, the practice via many years demonstrates that the effect of controlling the act that endangers society committed by a unit depending on the Criminal Law alone is not ideal. As is known to academic circles that the Criminal Law is one of the means of regulating the society, but it isn’t the unique and most effective means. In fact, where a unit commits a crime, it shall not be fined, only the persons who are directly in charge and the other persons who are directly responsible for the crime shall be given criminal punishment by judicial office who frequently ignores the provisions of the Criminal Law. Since the provisions for Unit Crime in our country are enacted due to the imperfection of the economy system in our country, then the maintenance of economic order should start from setting up and improving the economy system, but we shouldn’t focus on making use of criminal law to protect it. Moreover, to punish a unit will discount the reputation of a unit, and it will affect the production and operation of a unit, then which will have a negative impact on the economy of our country. So it’s necessary to narrow the scope of Unit Crime in the Criminal Law through legislation. Therefore, this article attempts to demonstrate and analyse this issue, from the perspective of narrowing the scope of Unit Crime through legislation. This article is divided into six chapters, and the viewpoints are demonstrated respectively as follows:The first chapter clarifies the background of narrowing the scope of Unit Crime through legislation in our country. At present, the disputes on Unit Crime in academic circles mainly involve two diverse viewpionts:the positive theory and the negative theory. Among them, the viewpiont of the negative theory mainly consists of denial of subject, will and the capacity of criminal responsibility of a crime committed by a unit. The positive theory admits the independence of subject, will and the capacity of criminal responsibility of a crime committed by a unit. In author’s opinion, both the positive theory and the negative theory exist deficiencies. Many viewpoints of the negative theory of Unit Crime neither match the reality of social development nor are in favor of the disposure of the related act that endangers society committed by a unit. Unit Crime has already been the practical issue objectively existing in social life. It has profound social economic roots and the basis of law. A unit can commit an act that is disregard of the law, it has the capacity for civil liability, and it can bare civil liability. These are the basis of a crime committed by a unit. But we can’t think that all units can be the subject of a crime committed by a unit, and a unit shouldn’t bare criminal responsibility for all acts that endanger society. As a special form of crime, Unit Crime has its own characteristics and limitations. While striking the acts that endanger society committed by a unit, both the theoretical basis and the practical operability should be considerated sufficiently. It’s wrong that blindly expanding the scope of a crime committed by a unit. Positive attitudes towards a crime committed by a unit should be limited. To prevent the abuse of a crime committed by a unit, the scope of Unit Crime should be narrowed appropriately within the framework of the existing Criminal Law, from the perspective of the subject, the subjective sin, the objective behavior, the application of accusation, the configuration of punishment, and so on. Ultimately the purpose of legislation that the Criminal Law provides Unit Crime can be achieved. In addition, the debates about Unit Crime in academic circles are embodied in its definition and characteristic, nature and scope. These disputes directly involve the criminal legislation on Unit Crime in our country. And they have a great effect on the judicial application of a crime committed by a unit. The existing legislative provisions for Unit Crime have the issues of excessive crimes, in terms of the scope of the subject, the subjective sin and the punishment. These issues lead to the confused recognition of Unit Crime in the judicial practice, such as the difficulties of excuting the punishment and proving the crimes, the unbalance between convicting and punishing a crime, and the difficulties of recognizing the sentencing polts, etc. And the awkward situation on the judicial application makes the judicial application of Unit Crime inefficient. The most typical disadvantages are reflected in that a part of accusations of Unit Crime are fallen into disuse, criminal suspects are indulged, it’s difficult to achieve the purpose of punishing, etc.The second chapter analyses the theoretical basis and foundation of narrowing the scope of Unit Crime through legislation. The advanced legislative and judicial experiences of Unit Crime outside provide a reference for narrowing the scope of Unit Crime through legislation in our country. In this regard, the western capitalist countries start earlier, a legal person and the related system are more mature, the phenomenon of relevant crime committed by a legal person is relatively earlier than that of our country, the practices of striking and preventing a crime committed by a legal person accumulat relatively rich experience. The legislation on Unit Crime has a long history. Some provisions for punishment can be used for reference for legislation on Unit Crime in our country. The practice of punishing Unit Crime in our country also reflects the necessity of narrowing the scope of Unit Crime through legislation in our country. The scope of the acts that endanger society committed by a unit is expanded through criminal legislation in our country, and the scope of establishing Unit Crime is improperly expanded. This results in that the judicial application of Unit Crime faces with a lot of difficulties. The effect of the application of punishment is not very ideal. The scope of Unit Crime can’t be expanded unlimitly. The scope of Unit Crime ought to be narrowed through legislation. It’s determined by the particularity that a unit has not full ability and will of committing a crime. Narrowing the scope of Unit Crime is to solve the existing issues of Unit Crime in the existing Criminal Law. To narrow is not a simple denial, but under the precondition of maintaining the stability of the existing Criminal Law, to perfect the constitute of a crime committed by a unit. Narrowing the scope of Unit Crime will not affect the control effect on a crime committed by a unit. On the contrary, it will effectively blow a crime committed by a unit, to achieve the purpose of legislation on a crime committed by a unit. According to the purpose of legislation and the virtual connotation, Unit Crime narrowed should have the six characteristics:production business, extensive influence, the independence of the subject, secondary illegality, subjective intention and provided by the Criminal Law. And it’s feasible to determine the scope of Unit Crime through the criminal subject, criminal sin, criminal act and exclusive application of a crime committed by a unit. The definition of Unit Crime narrowed should be:Unit Crime is an act that intentionally endangers society. Any company or enterprise, with the status of a legal person, commits an act on behalf of the benefit of the unit in the name of the unit. According to the Criminal Law, a unit, the persons who are directly in charge and the other persons who are directly responsible for the crime shall jointly bare the criminal responsibility.The third chapter demonstrates the necessity and the specific ideas of narrowing the scope of the subject of Unit Crime through legislation in China. The enactment that the extensive scope of the subject of Unit Crime in China has already far deviated from the original intention of enacting a crime committed by a unit. So there are many drawbacks. Prescribing the State organ as the subject of Unit Crime will generate a series of issues that the State organ hasn’t the possibility to produce the intention to commit a crime, it’s of great difficulty to operate in judicial practice, lacking the basis of the theory, it can’t play the role in punishing and preventing a crime effectively, and investigating criminal responsibility of the State organ shall result in serious consequences. Prescribing the institution or the People’s organization as the subject of Unit Crime has similar drawbacks. The institution and the People’s organization should not be the subject of a crime committed by a unit. Prescribing the one-person company as the subject of Unit Crime will lead to confusion with a crime committed by a natural person. Because the one-person company is lack of the "will" that is obbligato, and high coincidence with the self-interest and shareholder interests. Prescribing non-legal entity as the subject of Unit Crime violates the intention of legislation that a unit that has the independent assets and can independently bare criminal responsibility can be punished. So it is necessary to remove them from the subject of a crime committed by a unit, in order to narrow the scope of the subject of Unit Crime in China. Among them, we can narrow separately the subject of Unit Crime according to two kinds of a crime committed by a unit. To amend narrowly the provisions that the State organ, the institution and the People’s organization are explicitly prescribed as the subject of a crime committed by a unit. The general provisions that the State organ, the institution and the People’s organization are prescribed as the subject of a crime committed by a unit, such as the article387, the article396, and the item2of the article185of the Criminal Law, can be narrowed through amending the article30of the Criminal Law:" Where a company or an enterprise qualified as a legal person commits an act that endangers society, on behalf of the benefit of the unit and in the name of the unit, which is prescribed by law as a crime committed by a unit, the unit or the unit with persons who are revelantly responsible for the crime shall jointly bares criminal responsibility. Of course, it’s necessary to amend those provisions for Unit Crime that narrowed in the unifiable method can’t completely clear the issues of a crime committed by a unit, such as the crime of selling or illegally providing citizens personal information, crime of illegally leasing or loaning guns, ect. Most of crimes committed by the unit about the subject of one-person company and non-legal entity can be narrowed through narrowing the article30of the Criminal Law. But for narrowing a pure crime committed by a unit which can be only constituted by the subject of "company, enterprising or other unit", such as the crime of avoding the rate of exchange, crime of manufacturing or selling guns, etc. It’s necessary to amend the specific accusation provided by the specific provisions.The fourth chapter demonstrates the necessity and specific ideas of narrowing the scope of the subjective of a crime committed by a unit. Although the amount of a negligence crime committed by a unit is not large, since it is provided by the Criminal Law, this means that legislators are positive about it. However legislators haven’t seen disadvantages of this provision. The establishment of a negligence crime committed by a unit contradicts with the purpose of the illegal interests of the unit in a crime committed by a unit. Only an intentional crime where a person wishes the harmful consequences to occur possibly exists criminal purpose and facts pursuing some purpose. But a negligence crime where a person doesn’t wish the harmful consequences to occur obviously doesn’t exist the criminal motive and purpose. Therefore, a negligence crime committed by a unit contradicts with the purpose of the illegal interests of the unit in a crime committed by a unit. The establishment of a negligence crime committed by a unit is contraditive with the purpose of legislation that prescribing a negligence act as a crime is strictly limited. The subjective vicious and blame of the negligence crimes is less, the Criminal Law of our country enacts many strict terms, with the attitude of prudence. The establishment of Unit Crime goes against the purpose of legislation that prescribing a negligence act as a crime is strictly limited. The negligence act of a unit should avoid regulation of the Criminal Law. The more moderate administrative punishment or the civil compensation liability should be adopted. The establishment of a negligence crime committed by a unit goes against the principle that the crime and responsibility are bared by oneself. A negligence crime committed by a unit is significantly different from that a crime committed by the persons who are directly in charge and other persons who are directly responsible for the crime for the benefit of the unit. If the Criminal Law thinks a negligence crime committed by a unit resonable, in fact, it’s equal to transmit the criminal responsibility of the members of the unit to the unit and other members of the unit, which is in violation of the principle that the crime and responsibility are bared by oneself. The establishment of a negligence crime committed by a unit is volation of the nature of the legal responsibility bared by the unit, there is no direct causal relationship between the negligence crime committed by the members of the unit against job responsibilities and the interests of the unit and the management of the unit, the defect of education. The act above can’t be bared criminal responsibility by the unit. Civil ability alone can be bared by the unit at most. Since there are so many disadvantages of a negligence crime committed by a unit, this provision should be abolished from a crime committed by a unit. In the specific provisions of the Criminal Law, we should abolish such negligence crimes committed by the unit as the article189, the item3of the article229,the item2of the article334and the article338of the Criminal Law.The fifth chapter demonstrates the shortcomings of prescribing "Unit Crime of the single-penalty system" as Unit Crime and clarifies specific ideas that the punishments of Unit Crime should be narrowed through legislation. Many crimes so-called "Unit Crime of the single-penalty system" are not real crimes committed by the unit in the specific provisions of the Criminal Law in our country. There are many disadvantages that recognizing those crimes as crimes committed the unit. Prescibing "Unit Crime of the single-penalty system" as Unit Crime is not in conformity with the real situation of our country’s criminal legislation evolution. So-called "Unit Crime of the single-penalty system" provided by the Criminal Law in1979is not same with the meaning of Unit Crime that provided by the Criminal Law in1997and discussed by us today. So, it is reached an agreement in theory that Unit Crime isn’t provided by the Criminal Law in1979. Nevertheless, if we recognize so-call "Unit Crime of the single-penalty system" as a crime committed by a unit, then we can make a conclusion that the provisions of Unit Crime have been existed in the Criminal Law in1979. Obviously, this conclusion is not only the contradiction, but also in contradiction with the real situation of the criminal legislation evolution in our country. Prescribing "Unit Crime of the single-penalty system" is in violation of the principle that crime and responsibility are bared by oneself in the Criminal Law."Unit Crime of the single-penalty system" has only one kind of modes, that is natural person of the unit can be punished in the Criminal Law of China. This kind of practice actually recognizes the role of the members of the unit, but it ignores the overall function of the unit. When the unit is the real subject, the members of the unit bare the whole responsibility of a crime committed by a unit. It not only goes against the principle of fair punishment but also violates the basic requirement of the principle that crime and responsibility are bared by oneself. Prescribing "Unit Crime of the single-penalty system" as Unit Crime doesn’t conform to the basic characteristic. So-called "Unit Crime of the single-penalty system" provided by the Criminal Law in our country doesn’t provide the punishment of the unit. It only provides the punishment of the persons who are responsible for the crime. So according to the basic characteristic of the punishment of the criminal act. We should think that an act committed by can’t be a criminal act if it isn’t provided. Alone the act of the persons who are directly in charge and other persons who are directly responsible for the crime provided can be criminal act. visibly, according to the basic characteristic of the punishment of the criminal act, so-called "Unit Crime of the single-penalty system" is not the true sense of a crime committed by a unit, to be recognized as a natural person is clearly more appropriate. Prescribing "Unit Crime of the single-penalty system" as Unit Crime is not in conformity with the legislative spirit of punishing Unit Crime cautiously. The viewpoint that the provision of punishing the persons who are directly in charge and other persons are directly responsible for the crime is also the provision of a crime committed by a unit, is merely a speculation and inference in theory. In fact, in the provision of "single-penalty system of a crime committed by a unit", there is no provision of a crime committed by a natural person. Under the circumstances, we can only regard it as a crime committed by a natural person. It shouldn’t be treated as "Unit Crime of the single-penalty system". If we regard the act of the unit as Unit Crime without the specific provision of the Criminal Law, which will not in conformity with the legislative spirit that punishing a crime committed by a natural person is the principle and punishing Unit Crime is the exception. Prescribing "a crime committed by a unit of the single-penalty system" is not in conformity with the fundamental of the Criminal Procedure Law. In so-call "Unit Crime of the single-penalty system", the status of a unit as a defendant hasn’t been reflected, especially in the case that the legal representative and the person who is directly responsible for a crime are not the same person, this issue will be more prominent. It will be boud to the circumstance that the defendant, who is not involved in a criminal act and is not convicted and punished by the cout, is an offender, if we recognize so-called "Unit Crime of the single-penalty system" as a crime committed by a unit. This phenomenon is obviously against the fundamental of the Criminal Procedure Law. The author thinks that, according to two kinds of circumstances in view of "Unit Crime of the single-penalty system", we should abolish or amend so-called "Unit Crime of the single-penalty system". We should narrow the concept of Unit Crime and completely abandon "Unit Crime of single-penalty system", if "a crime committed by a unit" shouldn’t be prescribed as a crime committed by a unit; we should amend the single-penalty system to the double-penalty system, if "Unit Crime of single-penalty" should punish both sides.The sixth chapter constructs the specific ideas of legislative perfection from the macro and overall aspects of Unit Crime narrowed. The connotation and extension of Unit Crime narrowed are different from the provisions of the existing Criminal Law in our country. In this case, still continuing to use the term of "a crime committed by a unit" is not very reasonable. Consequently we should abolish the concept of Unit Crime through the amendment of the criminal code, using the concept of a crime committed by a legal person instead in the Criminal Law of our country. Another controversial issue is on the standards of convicting and punishing a crime committed by a unit, especially there are serious divergences on the standards of a part of Unit Crime higher than that of a crime committed by a natural person. In the aspect of legislation, the act that violates the interests protected by law in the same degree will be protected by the Criminal Law in the different degree, just due to the difference that the subject of violating is a natural person of a unit. This may lead to the unfair. On the aspect of justice, which standard used to proscute a joint crime committed by a unit and a natural person brings confusion in the process of the judicial application. From the perspective of author, the identical standards of convicting and punishing applicable to Unit Crime and a crime committed by a natural person should be specific provided in the general and specific provisions. On the configuration of the legal punishment, the configuration of a part of Unit Crime is lower than that of a crime committed by a natural person, which is against the original intention. In order to avoid some persons from using Unit Crime to cover up a crime committed by a natural person. It is very necessary to unify the configuration of the legal punishment of a crime of a unit and a natural person. So in author’s opinion, on the configuration of the legal punishment of a crime committed by a unit, it’s necessary to configurate the same legal punishment of Unit Crime and a natural person. But Unit Crime can be regarded as a plot of a legal lighter punishment. Making provisions in the Criminal Law:"Where a unit commits a crime, it shall be fined; and the persons who are directly in charge and other persons who are directly responsible for a crime shall be given criminal punishment, be given a lighter or mitigated punishment." Although the main idea of this article is that narrowing the scope of Unit Crime in many ways through legislation. But it doesn’t mean that the scope and punishments of Unit Crime just need to be narrowed, without any expansion through legislation. From the reality of China’s current needs, enacting a little of Unit Crime that the subjective sin doesn’t need to prove is the necessity to protect some major interests. The reasons of legislation on a crime committed by a legal person in the European and American countries can be used as a reference to the legislation on Unit Crime in our country. The author thinks that we can add a bit of a pure crime committed by a unit, and this kind of crime belongs to the crime of strict liability in the subjective aspect. The punishment that a unit should be punished rather than a natural person should be taken into practice. |
PDF Full Text Request