Theory On The Relations Of The Unit Crime

Most studies on crime committed by a unit are focus on thequestion about criminal responsibility;which can be further discussedby the following two sub-questions: (1) Can a unit be an independentsubject of criminal responsibility? (2) What is the foundation of thepersons who are directly in charge and the persons who are directlyresponsible for the crime, according to the "system of both punishment"of the unit crime?One hand of the relations between the unit crime and its personswho are directly in charge is that the unit is that the independency ofthe unit but not subordinate to the persons in charge directly. That is tosay, the unit crime is not a natural person who commits crime but theunit commits crime.The unit, including the persons who are directly in charge is theunique subject of the unit crime. The unit criminal responsibility is akind of integral responsibility. The unit criminal responsibility of thepersons directly in charge, that the responsibility of those persons is ofboth independency and subordination. The former describes the surfaceof the unit criminal responsibility while the latter discloses the internalmechanism of the criminal punishment on the persons directly in chargeand also provides the moral ground to the unit criminal responsibility.The other hand of the relations between the unit crime and thepersons directly in charge is the both subordinate and independentrelationship between the persons directly in charge and the criminalunit.The unit is the unique subject of the unit crime. While the personswho are directly in charge are not the independent subject of the unitcrime, which can be thought as a necessary component of the subject ofthe unit crime.The formal characteristics of the subject of the unit crime includelegality, organization, subordination, funds and property. The essentialcharacteristic of the subject of it is the capacity of the unit to thecriminal responsibility. It is of correspondence between the unitˊscapacity of crime and its capacity of applying to punishment.The unitˊs capacity of criminal responsibility exists when the unitis running by law. The unit applying for registration has no capacity ofcriminal responsibility. The unit has been closed down has no capacityof criminal responsibility too. However , the unit after alteration stillhas capacity of criminal responsibility.The departments of a unit can be the subjects of unit crime if theyhave relative independency and some capacity of conduct. Thoseaffiliate institutions can also become the subjects of the unit crime ifthey are of relative independent and have their own property.The subject of unit crime includes: company, enterprise, institution,state organ;organization. Whether the foreign units can be thought asthe subjects of the unit crime by the Chinese criminal law should bedealt with under different conditions. Village committee andneighborhood committee are not subjects of unit crime. Those who arenon-enterprises individual-ownership unit can not be subjects of unitcrime.Persons who are directly responsible for the crime can be dividedinto two kinds: responsible persons directly in charge and other personswho are directly responsible for the crime. The former should satisfy tothe following two terms at the same time: direct responsibility and theperson who are in charge. The latter refers to the members of the unitwho commit crime actively and play important role in unit crimes.Limiting the kind of other directly responsible persons is in fact todistinguish persons who take part in unit crime from the former kind ofperson. Taking part in unit crime is not the key to decide whether theyare other directly responsible persons. Whether they are responsibledirectly to the crime is the crucial foundation. Direct responsibility hastwo implications: firstly, the directly responsible persons are personswho commit crime directly in unit crime. Secondly, those who commitcrime directly in unit crime should not all bear the direct responsibilityof unit crime.Natural persons who are not the members of the unit can not be anykinds of these two responsible persons. Persons who are in charge theunit include: legal representative;groups of leaders;the managers ofdepartment of unit. But under some different conditions, these personsshould not all be thought as directly responsible for the unit crime. It isnot right to take leaders who become the leaders of the unit after unitcrime as the persons who are directly in charge for the crime. For thesame reason, it is also not right to treat it as natural crime if theordinary members of unit who commit crime on their own duty and forthe interests of their unit. In such case, they can also thought ascommitting the unit crime. But it does not include those who admit itafter unit crime. Persons who commit unit crime belong to the kind ofother persons directly responsible for unit crime. Persons who aredirectly in charge and other persons who are directly responsible for thecrime constitute joint crime in intent unit crime.The interest of the whole unit is different from anybody's personalinterest. The purpose of a unit is to obtain the unit's interest, whichshows independent will of the unit. The essential characteristic ofcriminal intention of a unit is its integration, which implies that thecriminal intention of unit is both independent and of double-sides.There are two types formation of the criminal will of a unit. The firsttype is formed by a unit and its leader group;the second type is formedby the unit's ordinary person when they are doing their duty for theinterest of their unit. These two types formation also have theirdifferent generating systems. There are two changing process in thefirst type. The criminal will of a natural person may change into thecriminal will of a unit. The criminal will of a unit may change into anatural criminal will. While for the second type, it has no suchchanging process.The forms of criminal intention of unit crime consist of directintention and indirect intention. Neither using the unit' name norsecuring the interests of the unit is essential characteristics to thecriminal intention of unit crime. But to secure the interest of the unit isimportant for us to distinguish unit crime from natural crime.After committing unit crime , if one takes the illegal gain into hisown possession, which should be given to the unit as the unit decidedbefore, the person will be guilty of embezzlement or usurpation bytaking advantage of duty. It does not affect the unit crime. The criminalguilty of the person directly responsible for the unit crime has the samenature as criminal intention of unit crime. But this does not mean theyare treated as same in the whole.The forms of criminal intention of unit crime include negligence intheory. Under our current criminal law, how to distinguish negligenceof unit crimes with natural crimes of dereliction of duty is still adebated question. When a person has done his duty and entailedharmful consequences to society because of his negligence, his actconstitutes negligence of unit crime. If the person has not done his dutyand entailed harmful consequences to society because of his negligence,his act is just individual act.The types of negligence of unit crimes include careless negligenceand negligence with undue assumption.The negligent criminal guilty of persons who are directlyresponsible for unit crime is the same as the negligent criminal guilty ofunit crime. That is to say, only the person who has negligence criminalguilty shall bear criminal responsibility.Unit crime is not joint crime. But according to our criminal law,units can constitute joint crimes. Such things exist objectively.Joint crimes are constituted with the following four characteristics:(1) There are two or more subjects in a crime and at least one ofthem must a unit. (2) There is the same criminal intention among thecriminal subjects. In such joint crimes, all subject of crime know eachother's criminal will. The direct communication between the personwho conducts practically and other accomplices on their criminalintention is the core of their will communication. (3)The characteristicof its objective respect is that all subject of crime commit same crime.(4)The legal characteristic is that units can be subject of crimeaccording to law.The forms that a unit constitutes joint crime with another unit andan unit constitutes joint crime with persons are the most importantamong the forms of unit joint crimes. But they don′t include thecooperation of unit crimes.In the form that unit joint crimes constituted by "unit + unit", it isnecessary for us to distinguish principal offender from accomplice, butonly limited to the criminal subjects.The importance of the members who take part in the crimes islimited by the importance of their unit that commits joint crime. That isto say, if the unit is principal offender, its members are principaloffenders too;if the unit is accomplice, its members are accomplicestoo. The relationship between the persons who are directly responsiblefor the crime in different units are coming with the relationshipbetween the units of accomplices.The unit and the natural person should bear criminal responsibilityaccording to the total amount of illegal gains, though the amount thatthey constitute crime is different by criminal law when they commitjoint crime. The standard of the amount that an act is crime should besure by the amount that an act is unit crime by criminal law.The natural person as an accomplice shall bear criminalpunishment according to the article of other provision of criminal law,which is ordered for the natural person but not for the unit. However,we should pay attention to the balance of the punishment on the naturalperson and that on the persons who are directly responsible for thecrime.To the problem of how to treat the unit and the natural person bylaw, we should classify two types of pure unit crime.The process of decision-making of the unit is neither harmful actand nor its practical conduct. How to deal with the practical conduct ofunit crime? it should be done according to the rules of provisionalcriminal law.There are four suspended form of unit crime. They are completedoffense, preparation of crime, attempted crime and discontinuation ofcrime.The relations between the suspended form of unit crime and that ofthe persons who are directly responsible for unit crime is in aconsolidate form of consistency and inconsistency.There are two questions about recidivists of the unit crime. First,whether recidivists should exist in unit crime? The answer is yes fromthe aspect of objection. Second, can a unit be a recidivist according toarticle 65 of criminal law? In fact, there is not recidivist in unit crime,because there are not corresponding legislative terms according to ourcriminal law. Even though, it does not influence the existence of therecidivists for the persons who are directly responsible for crime.There are general voluntary surrender and not special voluntarysurrender in unit crime under the current criminal law. There are twoterms related to the voluntary surrender: voluntarily delivering up tojustice and truthfully confessing crime after committing the crime. Thewill of voluntary surrender of a unit is the key to the judgment ofvoluntary surrender. It has two kinds of formation. In the first case, thewill is decided by a unit or by the persons who are responsible forcrime. In the second case, the will is decided by ordinary persons of theunit who did his duty to commit crime for securing the interest of theunit. The co-existence of consistency and inconsistency in the relationbetween a unit and the persons directly responsible for the crime is dueto the co-existence of the following two relations: the indirect relationbetween the unit's will of voluntary surrender and the unit's act ofvoluntary surrender and the relation between the persons and the unit,which is of independency and subordination of the persons who aredirectly in charge.The time validity of prosecution should be applied in the judgmentof the unit crime. In the present situation of legislation, we can take thelongest time validity of prosecution of persons who are directly incharge or other persons who are directly responsible for the crime. Forthe unit that commits crime. We calculate the time validity ofprosecution from the time when the act of the unit constitutes crime. Incase of a unit commits a new crime during the time validity ofprosecution, we should calculate from beginning. To the problem oflengthen the time of validity of prosecution, there are different answersin different condition.