| Could a unit commit a criminal? Does a unit have the ability to bear criminal liability? The answers to the questions above have changed through the period when theory in criminal law generally said negative, the period of stand-off between negative and positive arguments and the present period when these two abilities of unit are confirmed. Chinesecriminal law (1997version) clearly stipulated the concept of unit crime and relative penalties. Article30is that, a company, an enterprise, an institution, an organ or an organization, which commits an act harmful to the society, shall bear criminal responsibility if the law holds such an act as a crime committed by a unit. Article31states that, if a unit commits a crime, the unit shall be sentenced to financial penalties and concurrently, the person-in-charge directly responsible and other persons directly responsible of the unit shall be sentenced criminally. Where the Specific Provisions of this Law and other laws provide for otherwise, they shall govern.After the amendment in1997, the legislation about crime committed by unit in our country did not stop, but constantly extend the range. In the following fifteen years, China has passed a separate criminal law and eight amendments of criminal law, and newly added fourteen charges that can apply to unit crime. Since then, the amounts of charges about unit crime has reached more than150, about36%of the total. In criminal law, the large system of crime committed by unit has formed. However, the15-year judicial practice in Sichuan, Shanxi and Shandong shows that unit crime is much less applied than general subject of crime. So there is a contradiction:while a large number of legislation about crime committed by unit are processing, judicial practice seems to ignore all these new articles. That's why the problem cannot be avoided whether the regulation about unit crime is needed in Chinese criminal legislation.Based on the thinking above, this article has six parts.The first part is introduction, including the problem and review of keeping or abandoning unit crime, the main content, the meaning, the theoretical tool, the research method and the logical structure of this article. The author firstly reviewed the situation that unit crime was hardly applied in judicial practice while large numbers of relative laws were legislated in fifteen years, based on which the topic about the need of unit crime in criminal law came out. Then the author made a lot of literature review for this question.The second part introduces the generation and development of the system of unit crime in western countries that including both civil and common laws, and in China. Among common law countries, the systems of corporate crime in United Kingdom, United States, Singapore, Malaysia and Canada are introduced. These countries generally agree to corporate crime and produce some theories about unit crime such as respondeat superior. Corporate crime in the civil law countries are also suggested, such as in Germany, France, Japan, Italia, USSR-Russia and Yugoslavia. It was influenced by German law at the very beginning, so usually was considered as community responsibility. Then with the effects of Roman law, civil law countries including Germany and France began to accept its principle that legal person cannot be guilty. In18th century, influenced bySvaingy'sFiction theory and Feuerbach's criminal classical school, the theory that denied legal person's crime became the general theory in civil law. But these country finally had to face up to the phenomena that legal person did commit crime and began to stipulate regulations of different patterns because of reality. In Chinese Mainland, the system of unit crime has gone through the period when theory in criminal law generally said negative, the period of stand-off between negative and positive arguments and the present period when these two abilities of unit are confirmed. Now in Article30of criminal law the crime committed by unit has been stipulated. Hong Kong inherits common law and agrees that unit can commit crime. In Macau and Taiwan, although the criminal laws deny that legal person has ability to commit criminal, but relative legislation is done in other economic law and other appendix laws.The third part introduces the problem of criminal legislation and justice that came from considering the endangering-society actions by unit as crime. Firstly, although a large number of legislation about crime committed by unit are produced, they are hardly applied in judicial practice, which apparently wastes legislative resources. Secondly, it causes the embarrassing situation of suing government agency. Thirdly, the recidivism system, voluntary surrender system, probation system, commutation system, parole system and Limitation of prosecution system can only apply in natural personal crime, not in unit crime. As a result, if these systems have to be extended to the area of crime committed by unit, more troubles would be brought to criminal legislation. Fourthly, the legal consequence of unit crime is less serious than the same situation in administrative penalty, which conflicts the crime punishment adapts principle. Therefore, whether it's reasonable to stipulate unit crime in our criminal law is a debatable issue.The fourth part, as a continuation of the third part, suggests to abolish unit crime from Chinese criminal legislation, based on three reasons below. First, the research about foreign and Chinese crime rings shows that ours is the smaller one, for the reason of which fine penalty in China performs practically no function. Second, based on the sense of "the determination of a crime by the statutory penalty of the crime", the author thinks that only the acts that would be sentenced freedom penalty at least should be criminalized, while the unit can only be fined. Third, the analysis in economic perspective shows that Because of these three reasons it would be reasonable to abolish unit crime from criminal law in China. Additionally, these reasons and the topic is the main innovation of this article.The fifth part introduces the methodologies of economics, such as efficiency analysis, the theory of externality and game theory, to verify that this criminalization would do more harm than good and be inefficient. So it's a'true problem'that to abolish unit crime from Chinese criminal law, which meets the need of judicial practice.The sixth part hopes to solve the problem, that is, how to judge the situation we regards it as unit crime beforehand after abolishing. In the author's opinion, the unit itself should accept administrative penalty; the liable person-in-charge and other directly liable persons should be dealt under the regulation about natural personal crime. |
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