Research On Issues About Unit Criminal Offence

Though the name of unit criminal offence was defined in the revised Criminal Law of 1997 in China, and in its general principles and kinds of offences, several specific provisions were made on the conviction and penalty of unit criminal offence, it doesn't mean there are no disputes about such kind of criminal offence in the theory of criminal law. By contrary, with the accumulation of judicial practice experiences after revising our criminal law, problems are gradually becoming obvious in judicial practice manipulation of unit crime offence. This article tries to discuss the reform and improvement of unit criminal offence from the perspective of judicial practice. The whole article can be divided into three chapters. Chapter 1 discusses the issue of defining unit criminal offence. Furious disputations on the definition of unit criminal offence exist in theories and practices. Fundamentally it is because of the different focuses of attention. Roughly four kinds of viewpoints can be drawn: theory of unit determination, theory of in the name of unit, theory of the legal person's post, theory of seeking illegal interests. In the theory of unit determination, unit criminal offence is defined as those criminal offences that are performed by related persons with the agreement, approval, and suggestion of corporation representatives or deputy, however such definition may omit some offences. In theory of in the name of unit, it is claimed that criminal offences in the name of legal person or unit belong to the category of corporate criminal offence, which will certainly offer conveniences and conditions for reducing penalties of the criminals who obtain personal interests in the name of unit. In the theory of the legal person's post,, unit criminal offence is defined as criminal acts performed in the name of unit and for the interests of unit within the post and duty of the legal person or direct responsible people. Such definition emphasizes that only acts performed within the post and duty of the concerned people in the unit can be recognized as unit criminal offence, while in reality, many unit criminal offences performed by direct responsible people are not in but beyond their posts and duties, and even beyond the business extent of the unit. In the theory of seeking illegal interests, unit criminal offence is considered as criminal acts performed for seeking illegal interests for the unit, which will certainly exclude the indirect intentional unit criminal offence and the unit unpremeditated offence out of unit criminal offence, and thus contradict with concrete criminal offences in legal regulations. In order to reveal the connotation of unit criminal offence explicitly, we should combine it with basic characteristics of unit criminal offence: the complexity of criminal subject, he diversity of subjective sin, the entirety of objective behavior, and the strict legality. And we should start from the basic characteristics to make scientific definition. The author holds that it should be defined as: unit criminal offence is the harmful criminal acts performed on purpose or by misplay, for seeking the unit's interests, and by judicial units such as companies, enterprises, facilities, organs and groups with the collective decision or the decision of the unit deputy. Chapter 2 discusses the issue on subject of unit criminal offence. It holds that to be scientific, the subject of unit criminal offence should be mixed subject. It distinguishes unit criminal offences and joint offences explicitly. It discusses some concrete issues such as subjects of unit criminal offence in company, enterprise owned by a sole investor, joint ventures, and state organs. And it concludes that generally state organs should not be subject of unit criminal offence. The article discusses how to punish the direct responsible personnel, persons in charge and the unit when the subject is altered after the unit commits crimes in judicial practice. Meanwhile, it especially discusses the legal characteristics which subject of unit criminal offence should have: First: sense of legality. Legality is the premise for unit to exist and continue. Any organization that doesn't have the component of legality in entity or procedure cannot be the subject of unit criminal offence naturally.Second: sense of organization and organ. Unit is the combination of substances and individuals. A certain organization or organ can ensure that the will of unit members and natural persons, through certain procedures, can become a synthetic, collective will of unit which is from natural persons'wills but not the simple plus of the wills and above natural persons'wills. Third: sense of relative stableness. Unit must have explicit term limit of existence, or legal reasons or law acceptable reasons for termination if there's no explicit term limit. Unit has the sense of organic collective and meanwhile, the stableness of unit requires it to be in stable, and independent from natural persons. Temporary organization cannot be subject of unit criminal offence, for it has no sense of independent existence because of its attachment to natural persons who constitute it; fourth, sense of criminal responsible competence. Criminal responsible competence demands that the will of unit should come from but different from the will of unit investors and of unit members to get independence. Meanwhile it demands the unit can make decisions independently, and the unit should have independent property to take criminal responsibility. Chapter 3 discusses the issue on criminal penalty of unit criminal offence. Countries around the world vary in adopting the single penalty system or the double penalties system, and manners of penalties for unit criminal offence differ in different countries during different periods. The author prefers the double penalties system. In this chapter the author specifically discusses the feasibility of adding qualification penalty in unit criminal offence in our country and the legislative tentative plan of adding qualification penalty. Above all, in our country we have certain conditions to add qualification penalty. One is the precious experience offered by related measures in administrative regulations; the other is that foreign criminal legislation gives references for out criminal legislation. Next, the qualification penalty for unit as application object can be assumed in the following three types.First: suspending operations for rectification. Suspending operations for rectification refers to the penalty that the whole or part of business rights of criminal unit is deprived in certain term limit. The term limit should be over one month and less than one year. Second: restricting the business activities. It refers to the penalty of prohibiting criminal unit to do certain business and restricting the scope of its business activities in certain term limit, which includes: restricting the operation fields, business areas, business objects and other business activities, and can be divided into termless system and term system. The term limit of term system should be between one year and five years. Third: compulsory withdrawal. Compulsory withdrawal is the most severe penalty to punish criminal unit, that is, withdraw the criminal unit by force and destroy its foundation to commit crimes. Compulsory withdrawal means breaking the unit by force and deepening into social turbulence. Therefore, the implementation of such penalty must have powerful and complete social security system as precondition to avoid future troubles of the penalty. At resent, we should base ourselves upon reality, the fine penalty, and make fine penalty play a more important role in holding back unit criminal offence.