Research On The Criminal Subject Position Of The One-man Company

The new-devised"Company Law"was promulgated in 2006.One change was that the"Company Law"admitted the legal position of the one-man company. In China, the system of limited liability is especially popular for the most owners of the private enterprise. The one-man company not only plays an important role in improving and promoting the business and development of the private enterprise, but also inevitably brings illegal behaviors and crimes. So it is important to realize the criminal nature of the one-man company and make the criminal subject position of it clear. At first, the author discusses the basic theories about unit crimes and admits the one-man company can become the subject of unit crimes, based on making the constitutive elements of unit crimes clear. Then the author finds differences between the rule of"piercing the corporate veil"in the Company Law and the rule of negating the subject of unit crimes in the Criminal Law. Subsequently, the author defines the criminal subject position of the one-man company whose"veil"is pierced, in order to punish the real criminal subject. After the above, the criminal subject position of the one-man company could be comprehensively analyzed and made clear.There are three parts in this thesis.The first part: the analysis on the concept of unit crimes and how to realize the subject of unit crimes. In this part, the author firstly defines the concept of unit crimes. With the direction and the purpose of research on distinguishing unit crimes and individual crimes, the author analyzes some preventative concepts of unit crimes at present, finds the essential characteristic of unit crimes and concludes the concept of unit crimes: it is a kind of behavior that is committed by the members of the unit at work, based on the decisions made by the whole unit or the persons in charge, and owing to supervising and managing badly or the bad system of the unit; and that harms the society seriously, violates the Criminal Law and should undertake criminal liability. The unit should be companies, enterprises, institutions, state organs and other groups which set up legally. And then, the author elaborates how to recognize the subject of unit crimes. At first, the subject of unit crimes and its inner structure should be clarified. There is only one subject, unit in unit crimes. The persons and other inhuman elements in the unit both exit as the constitutive elements of the unit which are subordinate to the unit. Secondly, the author talks about conditions of being the subject of unit crimes from two different levels: the formal feature and the essential feature. The formal feature demands that the legal, organizational, independent unit could be the subject of unit crimes. The essential feature indicates in order to become the subject of unit crimes, the unit has to be able to undertake criminal responsibilities. The unit that has the above features may become the subject of unit crimes. Thirdly, the author elaborates three legal situations about negating the subject of unit crimes in China's judicial explanation. The first one is companies, enterprises, institutions are established in order to committed crimes; the second one is after establishment, companies, enterprises, institutions which mostly committed crimes; the third one is committing crimes with the name of the unit, the individuals obtain the interests because of violating the law. In other words, if a unit wants to become the subject of unit crimes, it has to not only satisfy the conditions of being the subject of unit crimes, but also be the unit besides the situations in the judicial explanation.The second part: Demonstration on the one-man company can be the subject of unit crimes. Firstly, the author gives some brief introduction about the one-man company. The one-man company in our country is the one-man limited ability company which has three basic lawful features: only one shareholder, limited ability and special organizational structure of the company. Owing to the specialty of one-man company, the"Company Law"gives it some special rules which are stricter than general limited ability companies. The one-man company's existing makes scholars have to change their way of thinking and research on the essential feature of the company to make clear the essence of the one-man company. The essential feature of the company is that it is a legal person and it has independent personality. So the essence of the one-man company is that it is independent from its only shareholder. Secondly, based on the analysis and comment on the views at present, the author researches on the criminal subject position of the one-man company, in the aspects of the scope of the subject of unit crimes, the conditions of being the subject of unit crimes and negating the subject of unit crimes. The one-man company belongs to the unit regulated by the Criminal Law. It has the formal feature and the essential feature of being the subject of unit crimes, so it can be the subject of unit crimes. Meanwhile, we also have to pay attention to the situations that someone commits crimes in the name of the company in order to avoid the criminal punishment. In the judicial practice, if the shareholder of the one-man company abuses the independent personality of the one-man company, which satisfies the lawful situations about negating the subject of unit crimes in judicial explanation, the one-man company would not be considered as the subject of unit crimes.The third part: Demonstration on the relations between the rule of"piercing the corporate veil"in the Company Law and the criminal subject position of the one-man company. In this part, the author firstly introduces the origin and significance of the rule of"piercing the corporate veil". Through commenting art. 20 and art. 64 in the new-devised"Company Law", the author makes clear the connotation of the rule of"piercing the corporate veil"in our country: when the shareholders abuse the legal person's independent status of the company and their limited ability to avoid debt so that impair the creditors'interests, the creditors can disregard the company personality and directly ask the shareholders who abuse the legal person's independent status of the company to undertake the joint debt liability. Secondly, the author discusses the relation between the rule of"piercing the corporate veil"in the Company Law and the delimitation of the criminal subject position of the one-man company. The rule of"piercing the corporate veil"in the Company Law and negating the subject of unit crimes in the Criminal Law are not only similar, but also different. They are different systems. So a unit whose personality is disregarded according to the Company Law, will not be inevitably disregarded according to the Criminal Law. Then we conclude that the one-man company whose personality is disregarded according to the Company Law also has the logic premise and the foundation of being the subject of unit crimes. As long as one-man company whose personality is disregarded according to the Company Law isn't revoked or broken up and the disregard is not owing to committing crimes, it completely can be the subject of unit crimes in the Criminal Law.About the criminal subject position of the one-man company, the author makes a comprehensive study in the aspect of unit crimes. To give the one-man company a subject position of unit crimes is a problem of judicial interpretation. Because of the complexity of the theory about unit crimes and the specialty of the one-man company, the solution of this problem needs to be paid more attention by the scholars and legislators. The author hopes this thesis can make the one-man company gain more attention and get a correct legal position.