| For the first time the crime of false registered capital determined in our country is in the 1997 "criminal law", the special environment of market economy at1980 s is the background, the company registered capital system steeled in 1993 "company law" is the basis. With the passage of time, the "criminal law" has promulgated the nine amendment of the criminal law, and the "company law" have also been modified several times. Except in the formulation of the Ministry of public security of the criminal case filing and prosecution standards(II), and in 2014 the Twelfth National People’s Congress passed the "on the People’s Republic of China Criminal Law Article 158 and 159 of the interpretation on the crime of false registered capital made a new interpretation,the crime of false registered capital had no modifications even during 2005 and 2013 the company law has amended. False registered capital crime is born with many problems alone with the beginning of the theoretical defect of statutory capital system and the special historical environment, with the development of market economy and 2013 new "company law" on the company’s capital system to make subversion revision, the crime of misstating registered capital faces more new problems. According to the process of legislation of the crime of false registered capital, this paper is intends to explore the legislative purpose of the crime of false registered capital, the theory and practice of analysis of false registered capital crime,referring to foreign legislation, find solutions to the existing problems.The text is divided into six parts. The first part introduces the basic principles of the company capital system and the development of the crime of false registeredcapital. Through the brief introduction of the company capital system to clear the registered capital of the company under the statutory capital system, combined with the crime of false registered capital of legislative history to explore the legislative purpose of the crime of false registered capital-- why do we want to make false registered capital crime, why do we want to use the criminal law to protect the company’s registered capital.The basic theory of the crime of false registered capital is discussed in the second part of the article. Problems in the theory of legal capital system from the perspective of company law that company registered capital may not be as lawmakers anticipation as the last safeguard the interests of the creditors of the company, the registered capital of the company is not representative of the company credit. False registered capital crime hope through the protection of the interests of creditors in order to maintain the market economic order and the credit legislation idea is defective. False registered capital crime object pointed out from the formal definition of false registered capital crime object, such as the management system of company registration, it is difficult to explain the crime has serious harmfulness to the society;the interests of creditors and shareholders as the object of the crime of false registered capital is not convincing. The author thinks that the crime of misstating registered capital of similar object is the order of the market economy, and the ultimate goal of legislation is to maintain the order of the market economy and credit, then the object of this crime should closely related to the order of the market economy and credit and the interests of creditors of the company and the interests of shareholders can not become the object of the crime of false registered capital crimes.The legislation of crime of misstating registered capital is discussed in the thirdpart of the article. First of all, the author of the creditors of the company are classified,also pointed out that false registered capital crime can only be protected because of the company to the public issuance of bonds or to raise public shares of the public to the interests of the creditors or public shareholders, because only the public interest and the order of the market economy and market economy credit is closely related to.And the crime of false registered capital will protect all the interests of the creditors of the company as its legislative purpose is not appropriate. Because of the criminal law to protect the interests of all creditors of the company, so the criminal law will also all false registered capital of behavior as the adjustment object. Changed with the development of society and the rule of law, under the existing conditions of false registered capital crime conviction standard is too low, some does not have the social dangers of false registered capital is still regarded as a crime.In the fourth part of the article discusses the practical problems of crime of misstating registered capital. Due to false registered capital crime standard is too low,penalty, false registered capital crime and other crime produce absorption,competition will rule out the possibility of the application of false registered capital crimes. Low conviction standard also led to the false registered capital crimes and the relevant administrative regulations of excessive overlap, coupled with the legal provisions of the abstract, produced a blur between criminal law and administrative law applicable. Due to the problem of false registered capital crime object may will be in the form of ascertainment of false registered capital crime, which leads to some false registered capital of behavior be unduly punished. In addition, the new "company law" to amend the registered capital of a company also makes the application of the crime of false registered capital of the plight of the new.In the fifth part of the article discusses the foreign law false registered capital crime reference problem. The author analyzes the relevant foreign legislation, and the foreign criminal concept, legislative model, judicial procedure and the Chinese are compared. I oppose to foreign legal system is not to be compared to rush the reference of foreign law practice, and according to the analysis of foreign legal system that foreign related legislation helpless to solve our country false registered capital crimes existing problems, these problems can only be based on in our practical to find the way to solve the problem.In the sixth part, the author discusses the method of solving the crime of false registered capital of existing problems. First reformed the crime of misstating registered capital of the purpose of legislation, the legislative purpose of the crime of misstating registered capital is only to protect the interests of creditors of the public and the public shareholders; secondly limit shrinkage of crime of misstating registered capital adjustment range, only adjust the false behavior of specific types of the registered capital of the company; and finally to improve the false registered capital crime in crime standard, and improve the legal punishment of the crime of false registered capital. Methods existing problems can help to solve the crime of misstating registered capital. |
