Comparative Study On Criminal Liability Of Legal Persons In China And France

In France,the new Penal Code promulgated on July 22,1992,enforced on March 1,1994 has fully introduced the corporate crime legislation.Shortly thereafter,in China,the new Penal Code promulgated on March 14,1997 and came into effect October 1,1997 has also fully recognized the provisions of criminal penalty of units.In such a similar point in time,China and France have chosen the use of such legislation similar way,in response to the growing problem of corporate crime since the 20th century.And we can not help but think of the place of the inevitability and occasion in this proceed.Today,the criminal Iaw of China and France has established the punishment mechanism of corporate crime for nearly 20 years.Here,what effects the two Penal Code have played,which test they have undergone,and what changes they have made are valuable historical wealths?They used to be a direct result of criminal theory of corporate crime,now they are the basis for the development of the theory of criminal responsibility of corporate crime.In this paper,the main line is the theory of criminal responsibility of corporate crime,which links the characristics of legislation,historical backgrounds,theoretical creation,and patical problems,in order to explore the commonness and individuality of the legal system in China and France.French Penal Code is an innovation model in the absorption of the common law jurisprudence to the civil law codification.Since begining,it has attracted the focus of Chinese criminal law,which is often discussed,citied and referred.But due to lack of raw materials,Chinese scholars is just hovering in the eyes of the French legislation,which will inevitably lead to flow in the superficial,and prone to misunderstanding.This article will introduce a comprehensive background of the French corporate criminal liability legislation,judicial precedents,the latest developments in the theory and doctrine to compensate for the defect.On this basis,under the premise of differences of the two countries,this paper focus on re-contemplating and reflecting the pratical problems of unit crimes.This article includes an introduction,body and conclusion of three parts,the text of which include the following six chapters.Chapter I Theoretical controversies and legislative recognition of criminal responsibility of crimes of units(legal persons).This chapter reviews the background,academic preparation and practical basis of legislative introduction of criminal offenses of units(legal persons)in China and France.China and France are not the original kingdom who discovered corporate offenses,they established legislative recognition as utilitarian policy choices in face of rampant offenses of units(legal persons),and they also benefited from the trend of the theoretical development of the common law and the international community.However,in time of the formal introduction of crimes of units(legal persons),China and France were not at tlhe same level of historical stage and criminal law theory,had some differences of legislative goals,and had chosen some unique norms of criminal articles,which had profound impacts on the fate of the development of corporate crime governance.Chapter Ⅱ Theory of imputation of criminal responsibility of crimes of units(legal persons).Since 1997,Chinese criminal law has been seeking for the theory of imputation of unit crimes.Chinese Penal Code has not clearly defined elements of the unit crimes,so the scholars has been committed to explore the theories of imputation,which is quite fruitful.But,these theories are either in the lack of innovation or self-consistency,or fail in the basis of legal and practical realities.Chinese theory of imputation of unit crimes hast "the units will" for the center,according to which most of the judiciary difficult problems can be resolved.But it can not yet clarify the natural of criminal liability of unit crimes.In the point of view of-the theoretical development trend of unit crimes,it is not a wise move.On contrast,in the General Provisions of 1994 French Penal Code,two elements of criminal liability of crimes of legal persons-the criminal behavior is committed by a legal authority or reprensent and for the interests of legal persons.Accordingly,the French scholars have developed a theory of“representative responsibility,,which is closely related,but not identical to vicarious liability theory,identification theory or organizational responsibility in common law system.Very recently,from the latest legislative and judicial precedents,the French law has an emergence of "self-responsibility" of legal persons,which is very hopeful and worth the wait.Chapter Ⅲ Subjects of corporate offenses.This chapter introduces and compare the competencies,forms and structure substances of "unit" in Chinese criminal law and "legal persons" in French criminal law.This difference of legislative choice is not just a different synonymous terminology,which is a deep imprint on the social development and theoretical scale.In Chinese law,"unit" is not strictly legal term,and results in many problems,such as whether the units are required to have legal personality,if not,how to determine the standard flats;whether one-man company legal personality is approved in the criminal law;whether the authority shall be the subject of unit crimes and so on.In French law,"legal persons" is the universal language of the law system,and thus avoids the problem of Chinese law in disputes,but its provisions has also other issues of distinctions of legal persons in public law and private law.in Chinese law,long litigation of the monism or dualism subject(s)of unit crimes has not been resolved.In French law,it does not adopt a unified theory of crime theory,and therefore there is no dispute that the subject of crimes of legal persons is their representatives.Chapter IV Ranges of crimes of units(legal persons).Ranges of crimes of units(legal persons)need special provisions in Chinese criminal law,which is also the legislative choice in the new French Penal Code.However,through legislative reform in 2004,French law has abandoned the principles of sepeciality of crimes of legal persons.Nowdays,in French law,all crimes are punishable to legal persons.Although this law practice is a little bit more daring,but it could not only effectively avoid regulatory gaps and injustice,but also help to form a unified theory of criminal liability imputation of legal persons.Chinese criminal law also faces these problems,specifically in the rationality of single-punishemnt of criminal penalty of units,the criminal penalties for offenses committed by units without articles in penal code.Based on legislative prudence,Chinese crininal law must not try the latest changes in French law,but focus on modifing the flaws,inefficiency and injustice of the existing legislative provisions.Chapter V Punishment principle of crimes of units(legal persons).Chinese criminal law has a "double punishment in primary,single punishment in supplementation" to crimes of units.1994 French Penal Code provides an double punishment system to crimes of legal persons,but the double punishment has not been thoroughly applied in judicial practice,with the legislative reform in 2000,a real separate liability for legal persons on the crimes of misdemeanor negligences on has commenced."The person directly responsible,of unit crimes in Chinese criminal law.is very unique as body configuration scope,but its reasonableness is questionable.The criminal liability of legal persons does not affect the criminal liability of natural persons as an accomplice or committing another in French law,so the criminal responsibilities of legal persons and natural persons are completely separated.But in practice,the jurists increasingly inclined the priority of criminal liability of legal persons.·Chapter Ⅵ Punishment system of corporate crimes.Chinese law only imposes criminal fines on units,which losts severity degree and the amount of the interval,therefore it is difficult to realize the initial legal goal.French law has established a self-contained,comprehensive and detailed penal punishment system,which also takes into account the individualization of punishment.lt is worth learning from.In conclusion,the legislation,legal practice and theoretical study of unit crime in Chinese Criminal Law have not achieved any effective interaction,the control path of unit crime is still not clear.The mechanism of corporate criminal liability in French Criminal Law has an ability of self-repair and self-improvement,which is very distinctive.Chinese criminal Iaw has to change the current situation.lt is necessary to start from legislative amelioration,but not restrict there.