Research On Culpability Theory Of Unit Crime

The theory of unit crime responsibility is an important basis for realizing the normative,practical and value significance of the unit crime system itself.But in fact,the traditional theory of unit crime responsibility has always been the focus of controversy in academic circles,and there are still a large number of problems with both theoretical and practical significance that have not been overwhelming.Among them,the legislative norms including the concept of unit crime,the subject scope of unit crime,subjective guilt,punishment system,and the structure of crime and punishment may be absent or unbalanced.In practice,not only the effect of punishment is difficult to show,there are contradictions between the provisions of judicial interpretation,but also the procedure of conviction and sentencing is not standardized.It should be pointed out in particular that in the context of the current era of rule of law,the traditional unit crime responsibility theory is unable to solve the normative dilemma and practical difficulties.On one hand,the legislative concept is undergoing expansion and evolution,and the enterprise structure has undergone major adjustments.On the other hand,the penetration of criminal compliance is accelerating,unit crime is becoming increasingly serious,and the theory of unit crime responsibility needs to seek new development.By analyzing the current situation of the development of unit crime system,the author proposes that the theory of unit inherent responsibility can make the unit crime system play its due role in the context replacement under the rule of law.In other words,the theory of unit inherent responsibility is a theory that fits the context replacement of unit crime system in the context of the rule of law.It can not only clarify the considerations for the development of unit crime system,but also reach the norms at the legislative level,and then help to solve the judicial arbitrariness.The process of launching a new round of research on the theory of unit crime responsibility is not the only way for the development of the theory of unit crime responsibility,but also the reasonable way for the theory of unit inherent responsibility to realize its normative,practical and value significance.According to the content layout,this paper is divided into five chapters.In the first chapter,the author systematically expounds the research basis of the theory of unit crime responsibility,and studies and expounds the imputation mode,the nature of responsibility and the practical problems faced by the theory of unit crime responsibility.First,the author studies the imputation mode of unit crime.The imputation mode of unit crime has moved from strict liability mode to individual responsibility mode,and then to organizational responsibility mode.Among them,the strict liability model is based on the unique legal person crime theory system and litigation system in the United States,and its core connotation denies the criminal capacity of the unit,which does not conform to the basic principles of China’s criminal law.The mode of individual responsibility locates the concept core of the theory of legal person imitation and discusses the criminal responsibility of unit crime with natural person as the intermediary.Unlike the individual responsibility model,the organizational responsibility model takes the unit as the entity with direct legal relationship and has unique value beyond the punishment of natural persons.Second,the author studies about the nature of responsibility of unit crime.The essence of the responsibility of unit crime includes the theory of moral responsibility,social responsibility,normative responsibility and functional responsibility.At present,the traditional theory of unit crime responsibility is based on the theory of normative responsibility in principle in the theory of unit crime,but it embodies the idea of functional responsibility in the sentencing rules.In this regard,the author proposes that the theory of functional responsibility should occupy the dominant position of the theoretical basis of unit crime responsibility,achieve the coordinated reconstruction of retribution,prevention and recovery,achieve the balance between freedom and order,and meet the needs of utilitarianism.Third,the author studies the practical problems faced by the theory of unit crime responsibility.The unit crime system has experienced the development from scratch,from simple to complex in a short period of time,and there are many omissions.First,there is systematic deviation in the traditional unit crime theory itself.For example,compared with the overall structure of the criminal law of "crime-responsibility-punishment",the unit crime system adopts the system arrangement of "crime-punishment",and the establishment of crime is equal to the establishment of responsibility.In addition,when judging whether the behavior of natural persons in a unit constitutes a natural person crime or a unit crime,China’s criminal law still takes the rise of the will of natural persons as the main consideration standard.At the same time,China’s traditional unit crime responsibility theory pays too much attention to the type of unit crime of direct intent,even does not distinguish between indirect intent and direct intent,and generally includes indirect intent in the content of direct intent.Second,the normative dilemma of the theory of unit crime responsibility.The traditional unit crime responsibility theory is in a tight position in the face of clarifying the concept of unit crime,explaining the capacity of unit crime,and unifying the penalty system of unit crime.The traditional unit crime responsibility theory is unable to change the normative dilemma.Third,the practical problems of the theory of unit crime responsibility.The traditional unit crime responsibility theory is slightly inadequate in the face of the poor penalty effect of unit crime,the contradictory provisions between judicial interpretations,and the anomie of conviction and sentencing procedures.The traditional unit crime responsibility theory is difficult to solve the practical problems.In the second chapter,the author systematically expounds the current situation of the development of the traditional unit crime theory,and studies and expounds the context replacement of the unit crime system.Under the context replacement of the unit crime system,the author clearly points out that there are obvious shortcomings in the individual responsibility model,while the organizational responsibility model can be connected with the unit crime context.First,the author studies the context replacement of unit crime system.The development of the theory of unit crime responsibility cannot be discussed separately from the reality context.The context replacement of unit crime under the background of the rule of law is the premise of the development of the theory of unit crime responsibility.On the one hand,under the background of a country ruled by law,the unit crime system is undergoing the expansion and evolution of the legislative concept and the major adjustment of the enterprise structure.On the other hand,the criminal compliance continues to accelerate the penetration and the unit crime is becoming increasingly serious.Second,the author studies the negation and deficiency of personal responsibility model.Because the individual responsibility model is difficult to adapt to the change of legislative concept,it is impossible to prevent unit crime,and it is easy to create a closed evaluation system.Therefore,under the context replacement of the unit crime system,the individual responsibility model cannot implement the expected effect on the actual level.Third,the author studies the establishment and improvement of the organizational responsibility model.It can be made clear that the organizational responsibility model not only plays the role of standard filling,but also clarifies the crime of the unit and helps the unit form the internal control management mechanism.In addition,the organizational responsibility model can also evaluate and consider the unit behavior and unit crime in combination with the establishment and operation of the organizational system.Therefore,the context replacement of the theory of unit crime responsibility is dominated by the theoretical paradigm of organizational responsibility model.However,it is undeniable that in terms of the practical effect of the organizational responsibility model,the theory under the organizational responsibility model still has room for improvement.In the third chapter,the author puts forward the theoretical concept of the theory of unit inherent responsibility,and studies and expounds the characteristics,application standards,functional orientation and value significance of the theory of unit inherent responsibility.First,the author studies the construction and analysis of the theoretical framework of the theory of unit inherent responsibility.The organizational responsibility model fits the responsibility subject and is correct in the overall direction.The theory of unit inherent responsibility has the characteristics of the organizational model.The inherent responsibility of the unit and the model of organizational responsibility are similar in theory tools.In this sense,they belong to the new organizational responsibility theory,ensuring the integrity of the unit responsibility and avoiding the loss of responsibility.Specifically,the theory of unit inherent responsibility supplements the theory under the organizational responsibility model.First,the theory of unit’s inherent responsibility affirms the theory of unit’s criminal capacity,recognizes the subjective guilt of the unit and reconstructs the connotation of the unit’s behavior.In terms of the establishment standard of unit crime,the theory of unit inherent responsibility redistributes the constituent factors of unit crime capacity,strengthens the unit system factor and weakens the unit member factor.When determining the guilt of the unit,it is still necessary to judge the establishment of the guilt of the unit according to the formation mechanism and unique structure of the unit,and the guilt form of the unit members cannot be completely reproduced.In this regard,the theory of unit inherent responsibility puts forward the position of relative freedom of will and puts forward behavioral standards and institutional standards for the determination of unit criminal will.In the understanding of the connotation of unit behavior,there are differences between the behavior patterns of unit crime and the behavior patterns of unit crime and natural persons.Second,the theory of unit inherent responsibility abandons the criminal subject of existing significance.The activity of the unit subject has conscious initiative,but this does not mean absolute freedom of will.The understanding and activity of the unit subject is not at will.On the contrary,it is restricted by objective existence and objective laws.Only when we correctly understand and use the objective laws can we obtain freedom of will.In this sense,the theory of the inherent responsibility of the unit advocates the integration of the attribution of behavior and responsibility,and advocates that the responsibility of the legal person is not completely consistent with that of the natural person.Third,the theory of inherent responsibility of unit crime advocates the concept of social responsibility.On the one hand,the theory of the inherent responsibility of the unit pays attention to the loyalty of the unit subject to the legal norms;on the other hand,the theory of the inherent responsibility of the unit takes into account the possibility of social conflict resolution.The inherent responsibility of the unit is dominated by the concept of social responsibility,and strives to achieve the coordinated reconstruction of punishment,prevention and recovery.Second,the author studies the application standard of the theory of unit inherent responsibility.In the application of the theory of inherent responsibility of the unit,we should adhere to the principle of reciprocity,adhere to the requirements of the bottom line of negligence and ensure that the result of sentencing is unique.First,adhere to the principle of reciprocity.The principle of reciprocity embodies some members of the unit,which can better analyze and impute responsibilities and clarify the imputation chain.Second,adhere to the bottom line of fault.The bottom line of the unit’s fault should adopt the new fault theory,and the limitation of the risk also means that it should be realized through the result avoidance obligation.Specifically,the passing line of the unit’s performance of the result avoidance obligation should be determined through the investigation of the unit’s formulation and implementation of the appropriate compliance plan.Third,ensure that the result of sentencing is unique.The application of the theory of inherent responsibility of the unit needs to ensure that the unit itself and its internal members are classified and ensure the uniqueness of the result of criminal liability attribution.We should improve our sentencing guidance,ensure the independence and clarity of sentencing,and help our unit crime penalty system to be effective and stable.Third,the author studies the functional orientation of the theory of unit inherent responsibility.The functional orientation of the theory of unit crime responsibility is the basic issue of the construction of the theoretical system of criminal law and the theoretical study of unit crime.First,the theory of unit inherent responsibility depicts the essence of unit crime system.The theory of entity inherent responsibility belongs to the theory of entity reality,which recognizes the independent subject status of the entity in reality and emphasizes the real integrity of the meaning ability and the behavior ability.Second,the theory of inherent responsibility of the unit clarifies the elements of the establishment of unit crime.In terms of subjective elements,the theory of inherent responsibility of the unit can not only provide the basis for the unit’s intention,but also reasonably delimit the scope of the unit’s liability for negligence.In the aspect of objective elements,the theory of inherent responsibility of the unit clarifies the manifestation,specific scope and essence of the objective elements of the unit crime.Third,the theory of inherent responsibility of the unit clarifies the relationship between the unit and its members.The relationship between the unit and its members is not only the overall problem in the unit crime responsibility theory,but also the essential problem in the unit crime system.The theory of unit inherent responsibility helps the behavior of unit members to jump out of shackles,and then clarify the relationship between the unit and its members.Fourth,the author studies the value significance of the theory of unit inherent responsibility.First,the theory of the inherent responsibility of the unit and the legal punishment for a crime.The theory of unit inherent responsibility follows the formal side of the principle of legality of crime and punishment,and strictly takes the constituent elements stipulated in the specific provisions of the Criminal Law as the criteria for identifying specific crimes.At the same time,the theory of unit inherent responsibility conforms to the clarity and appropriateness of the substantive aspects of the criminal law,and the theory of unit inherent responsibility closely follows the basic principle of a legally prescribed punishment for a crime.Second,the theory of unit inherent responsibility and the balance of crime and punishment.The theory of unit inherent responsibility provides the operability of the individualization of punishment,balances the punishment of crime and the prevention of crime,and the attribution of responsibility is not entirely based on social harmfulness.The theory of unit inherent responsibility guarantees the balance of crime and punishment.Third,the theory of unit inherent responsibility and the purpose of punishment.The theory of unit inherent responsibility supplements fresh blood for the purpose of punishment,helps to achieve the diversified purpose of unit crime punishment,embodies the value of criminal law,and realizes efficient governance.Fourth,the theory of unit inherent responsibility and the premise of responsibility.In essence,the concept of functional responsibility in the theory of unit inherent responsibility helps to form the dialectical unity of responsibility and prevention and can better reflect the essence of the theory of unit crime responsibility.Formally,the concept of functional responsibility uses value judgment to realize case justice,reflecting the importance of prevention.The theory of unit inherent responsibility advocates replacing the theory of normative responsibility with the theory of functional responsibility.In the fourth chapter,the author systematically expounds the legislation of the theory of unit inherent responsibility.Combined with the consideration factors of the criminal legislation of unit crime,this paper studies and expounds the solution of the legislative reality confusion.First,the author studies the reconstruction of the subject of unit crime.Corresponding to the legislative norms,if the unit lacks the triple structure of criminal capacity,the unit does not have criminal capacity,and the unit should not become the subject of crime.Therefore,the branch company cannot be the subject of unit crime,and the subsidiary company can be the subject of unit crime.For one-man companies,standing on the position of the inherent responsibility theory of the unit,they cannot meet the requirements of the decision-making mechanism and rules independent of the unit members,do not have independent criminal capacity,and should not become the subject of unit crime.In addition,the theory of unit inherent responsibility further examines the adaptability of unit punishment.Only when the criminal object of the relevant criminal act is property,assets and property interests,can the state organs and state-owned companies become the subject of the relevant criminal act.Second,the author studies the abolishment of unit negligent crime.The theoretical structure adopted by the traditional theory of unit criminal responsibility is to directly interpret the behavior and intention of natural persons as that of units.The introduction of the theory of unit inherent responsibility means that the negligent crime of units is the objective supervision fault rather than the subjective fault.Therefore,we should consider abolishing the unit negligent crimes without the possibility of supervisory negligence,such as Article 363 "the crime of providing book numbers for others to publish obscene books and periodicals" in the special provisions of the Criminal Law of China.At the same time,the provisions on supervision fault of the unit shall be reserved and recognized.Third,the author studies the rectification of unit crime with single punishment.The single punishment system of only punishing unit members without punishing the unit does not conform to the imputation basis of unit crime.More specifically,the single punishment system of unit crime is not unit crime in essence and should be excluded from the extension of unit crime.The theory of unit inherent responsibility is to separate the unit subject from the natural person subject and make independent judgments on the behavior of natural person and legal person respectively.The theory of unit inherent responsibility embodies the dual structure of natural person responsibility and organizational responsibility.At this time,it is biased to impose a single punishment on unit crime.Fourth,the author studies the adjustment of the penalty system for unit crime.According to the lenient stance of criminal compliance,the standard of unit crime is different from that of natural person,and the setting of legal penalty,the setting of sentencing range,the system of voluntary surrender,the recidivism system and the system of limitation of prosecution in the crime of unit as the subject and natural person as the subject can be different.However,unifying the conviction standards and punishment of crimes committed by unit members and pure natural persons is the specific embodiment of the legislation of the theory of unit inherent responsibility.In the fifth chapter,the author systematically expounds the judicial application of the theory of unit inherent responsibility.Combined with the purpose of current judicial application,this paper studies and expounds the settlement of specific judicial disputes.First,the author studies the identification of criminal responsibility of unit crime.On the occasion that a unit commits a pure natural person crime,although the unit relies on its personnel composition to commit a specific act of pure natural person crime,the natural person in the unit that commits the specific act is also affected by the unit’s policy,culture,administration and other factors,so the criminal responsibility of the unit and its members does not violate the principle of accountability.In other words,the unit shall bear criminal responsibility for the act of pure natural person crime committed by it.However,because the unit subject is restricted by Article 30 of the Criminal Law,which states that the unit subject shall bear criminal responsibility if it is a unit crime according to the law,the unit subject does not bear criminal responsibility because of the legal fiction.Second,the author studies the consensus on the main forms of unit crime.The main form of unit crime is the basic system of crime prescribed by the criminal law.As an independent subject prescribed by the criminal law,the unit crime form should also exist independently.As for the completion of unit crime,we should adopt the idea of differentiation.When the implementation of the constituent elements of a unit crime is carried out by a natural person,the accomplished crime of the internal members of the unit crime is equal to the accomplished crime of the unit crime.When it comes to the crime of polluting the environment and other crimes that cannot be investigated by the specific members of the unit,it is necessary to judge whether the crime is accomplished by investigating the implementation of the main body of the unit,that is,to judge whether the crime is accomplished according to the behavior and system of the main body of the unit.When a unit establishes a negligent crime,the occurrence of the harmful result constitutes a criminal accomplishment.In the uncompleted form of unit crime,there are differences between the stop form of unit crime and the stop form of internal members of unit crime.Third,the author studies the improvement of the form and structure of unit accomplice.According to the view of the independence of the subject of the theory of the inherent responsibility of the unit,the joint crime of the unit can be the joint crime of the unit and the natural person or the joint crime of the unit and the unit,but there is no distinction between the principal and the accessory between the internal members of the unit and the internal members.First of all,the practice of determining the share of the criminal responsibility of the unit crime that each directly responsible person in the unit should share due to the unit crime by referring to the determination principle of the criminal responsibility of each joint offender in the joint crime of natural persons loses its theoretical basis.It is necessary to consider the status of the members in the unit,the role they play in the criminal act and the specific circumstances of the crime when sentencing,which has nothing to do with the distribution of responsibility,and there is no need to distinguish between the principal offender and the accessory offender.Secondly,the theory of unit inherent responsibility advocates that the unit will have an independent way of generating,so we can refer to the identification method of identity crime to identify the accomplice of identity crime,that is,we should mainly consider whether the conviction is based on the specific charge of the job-based unit crime or the crime committed by the unit or natural person who has no specific identity.Thirdly,the theory of inherent responsibility of the unit further explains the problem of whether the unit and the natural person should be treated according to the standard of the unit crime or the standard of the natural person after the unit and the natural person jointly commit the crime,which can be identified separately according to the different main roles involved by the subject.Finally,the theory of unit inherent responsibility answers the question whether natural persons can be convicted and punished when the unit subject has not constituted a crime in the joint crime of units.When the standard of unit crime does not constitute a crime,the natural person can be convicted separately.Fourth,the author studies the inference about the subjective fault of unit crime.Under the promotion of the theory of inherent responsibility of the unit,it is feasible to help infer the subjective guilt of the unit by investigating the internal governance structure and operation mode of the unit,and to assist in judging the guilt of the unit itself by the way of presumption,and at the same time,it can repair the imperfection of the theoretical theory in the organizational responsibility model.The identification of unit intent focuses on the unit system,and the system standard covers unit intentional crime.The identification of unit negligent crime needs to be combined with behavioral standards and institutional standards,in which institutional standards examine the unit’s obligation to avoid results,and behavioral standards examine the unit’s duty of care and the possibility of avoiding results.Fifth,the author studies on the optimization of unit crime proceedings.The advocacy of the theory of inherent responsibility of the unit leads to the criminal punishment of the directly responsible executives and other responsible persons in the unit crime in the legislation consistent with the criminal punishment of the pure natural person crime.While solving the problem of the unit’s litigation status,the legal representative system of the unit crime,the corporate compliance non-prosecution system and the defense system of the unit crime have also been standardized and adjusted.Sixth,the author studies the form of unit criminal responsibility should be supplemented.Under the new development of the theory of unit crime responsibility,it is difficult to ensure that the unit will no longer commit similar crimes if it simply relies on the post-event punishment such as imposing fines on the unit,imposing penalties on the natural person,and prohibiting the unit from engaging in specific business activities.Therefore,it is suggested that administrative penalties such as restricting or canceling business qualifications and revoking business licenses should be added to the criminal punishment measures,and the qualification penalty for unit crimes should be established.In general,the theory of unit inherent responsibility provides a reference for the development of the traditional theory of unit crime responsibility.Advocating the theory of unit inherent responsibility not only stays in the construction of theory,but also looks forward to giving full play to its practical learning,providing strong support for norms and practice,and also providing useful reference for the unit crime system...