On Criminal Liability And Practice Of Unit Crime

Study on unit crime seems to be an old-fashioned topic. Since eighties of last century, in theoretical circle, the study on unit crime had reached a crescendo on issues such as affirmation theory and negation theory, preparation for legislation on unit crime before amendment to Criminal Law, legal application and hot points after unit crime has been established in Criminal Law. In the later long period, unit crime was very hot for study of criminal law and there are many splendid research achievements. Till now, the study on unit crime has decreased a lot, but this does not mean that the disputes on unit crime has been solved and demonstrated. Just the other way, it’s hard to form a generally-recognized theory among many theoretical views. The real reason is that the researcher has not found a clear and effective study way to recognize the nature of unit crime. This situation reflects the bottleneck of study on unit crime on one hand, and illustrates a heavy burden on unit crime research. This thesis emphasizes on the view of practice, elaborates the existing unit crimes in China, seeks a relatively concise and practical criminal liability theory on unit crime to analyze the nature of unit crime, on basis of this, solves judicial practical issues relative-reasonably and uniformly such as how to recognize the nature when a unit commits an offence which only can be made by a natural person in criminal law, judicial recognition of unit crime, standard for conviction and sentence.This thesis is divided into five chapters besides introduction.The introduction explains the background of selecting this topic and briefly expounds the research method, innovation, value and significance of this thesis.ChapterⅠexpounds the general situation of unit crime in China, through exploration of development of criminal legislation and theoretical research and elaboration on the current situation of unit crime in China, points out that although the criminal legislation on unit crime is certainly related to and interactive to relevant theoretical research, it is mainly based on the political and economic change and the objective necessity for combating increasingly serious unit crime, has strongly political and material elements other than inspiration by theoretical research and demonstration nor production of a mature theoretical research. Therefore, the theory on unit crime in China has been gaps with practice. The amended Criminal Law completely confirms unit crime, but it does not solve theoretical disputes over unit crime. On the contrary, the increasing emerging problems and confused issues on unit crime in judicial practice need research and uniform recognition. At the same time, there are practical and theory-discussing choices for aim and value seeking. The former takes up with construing legislation and instructing justice on basis of existing legal stipulations; the latter may go beyond the current legislation and regard further improvement of legal value construction or orientation. The two functions are different and can not be used to instruct judicial practice at the same time. At present, there are many theories on unit crime in china with different views, which shows that practical research and theory-discussing research coexist and both are directly used to construing laws and instructing justice. This inevitably causes confused practice and mess. Therefore, the first thing to research unit crime is to distinct practical and theory-discussing nature of theoretical research and increasingly promote the uniform and correct implementation of criminal laws in China through strengthening practical theoretical research on unit crime in order to effectively carry out the original intention of criminal legislation on unit crime.ChapterⅡlays stress on deep exploration of criminal liability theory on unit crime. The emergence of unit crime fundamentally wavers the cornerstone of individual liability for establishing traditional criminal theory. The criminal liability theory on unit crime is related to recognition of essence of unit crime and the core of all theoretical research on unit crime. However, the biggest confused issue in theory and practice on unit crime is that the recognition on basis of criminal liability on unit crime can not be uniformed and defined. Therefore, this chapter is undoubtedly the main body of the whole thesis. This chapter makes new exploration into criminal liability theory on unit crime in China on basis of introduction and analysis of domestic and foreign criminal liability theories, that is to say, from the view of conduct criminal law, it points out through analysis that the natural person takes criminal liability because of conduct of such natural person and a unit takes criminal liability because of conduct of such unit. Due to specialty of conduct of a unit, a unit can carry out its will and aim only through a natural person’s conduct, so it is a certain natural person’s conduct that be regarded as a unit’s conduct through legal assessment and then unit crime and criminal liability are created. Unit crime is just a special legal assessment of a natural person’s conduct. In a situation that criminal law stipulates both a natural person crime and unit crime, relevant natural person’s same conduct commits both articles at the same time which constitutes overlapping of legal provisions and finally the legal provisions on unit crime will apply and the legal provisions on natural person crime will not apply. According to this, this chapter put forwards the basic concept of criminal liability theory on unit crime from the perspective of overlapping of legal provisions.Making a comprehensive view of criminal liability theory on unit crime in China, they can be generalized as two basic thoughts and one basic argument, that is to say, to consider criminal liability for unit crime in terms of natural person’s conduct or from the point of view of unit’s characteristics and the result of legal interests infringed by a unit, and whether a single offender or two offenders in a unit crime. The special legal assessment by interpreting unit crime as natural person’s conduct, i.e., natural person’s conduct is regarded as unit’s crime through legal assessment and then unit crime and criminal liability are created, the natural person losses its independence due to application of legal provisions and is incorporated as a part of unit, which not only clearly answer the core disputed issue of criminal liability theory on unit crime, but also solves judicial practical issues coordinatively and uniformly such as how to recognize the nature when a unit commits an offence which only can be made by a natural person in criminal law, whether the standard for conviction and sentence of unit crime shall be equal to that of natural person, judicial recognition of unit crime and has practically instructive significance for judicial practice.ChapterⅢstudies and analyzes how to distinct unit crime and natural person crime, on the basis of analysis of various points of view on distinction of unit crime and natural person crime, points out that crime is conduct, conduct reflects will, on the contrary, the will dominates conduct. The unit crime is just a special legal assessment of natural person’s conduct. For a conduct made by natural person, whether it is unit crime or natural person crime, will is critical. To judge whether natural person’s conduct is unit’s conduct dominated by unit’s will, it’s necessary to examine whether the conduct has the aim and motive to gain interests for unit and whether such conduct is decided or approved by decision-making organ or person-in-charge of the unit. For negligent crime or non-profit crime, sometimes although it is without approval of person-in-charge of unit, and it’s hard to say it’s for interests of unit, if such conduct is in conformity with policy, provisions or practices of business of unit, it shall be seemed as unit’s conduct reflecting unit’s will. Therefore, whether reflecting unit’s will is key to decide the nature of natural person’s conduct in criminal law, and the only standard to distinct unit crime and natural person crime. According to this, we can efficiently and correctly in some extent recognize unit crime and materially alter the randomness and mess in recognition of unit crime and natural person crime in judicial practice.ChapterⅣdiscusses the standards for conviction and sentence of unit crime, through comprehensive analysis of provisions on conviction and sentence of unit crime and natural person crime, points out that the provisions on conviction and sentence of unit crime in China reflect both lesser and severe aspects causing conflicts and mess. This chapter further points out through analysis that the standard for conviction of unit crime is higher than that of natural person crime, which is a production of special historical background that public ownership units are biggest part. In the background-changing situation, whether from the perspectives of the criminal theory, essence of crime, or the trend of practice, the standard for conviction of unit crime shall be equal to that of natural person crime. On basis of uniform standard for conviction, the punishment for unit crime shall wholly adhere to adaptability principle of crime responsibility and penalty. In a situation of application of double punishment system for unit crime, because the convicted unit has undertaken a certain criminal liability, the director and other persons held directly responsible shall undertaken lesser criminal liability than that of natural person crime to maintain the whole balance of criminal liability between unit crime and natural person crime.ChapterⅤelaborates unit crime with single punishment system and points out through analysis that the unit crime with single punishment system used to play a positive role in combating unit crime in situation that unit crime is not wholly recognized in criminal law. However, in the current background that criminal law has provided for the whole unit crime in China, the existing unit crime with single punishment system shall be doubted. For reasons to keep unit crime with single punishment system, the author considers that there are mistakes in premises or understanding, that is to say, the so-called unit crime with single punishment system can be distinguished and changed according to the following two situations that a crime is not a unit crime or it is a unit crime with double punishment system. Then we can abolish the unit crime with single punishment system in our criminal law and completely establish double punishment system for unit crime.