Research Of The Subject And Criminal Responsibilty Of Unit Crime

Unit crimes seldom happened during the period that the Planned Economy was implemented inChina. However, with the deep development of the reform and the establishment of the MarketEconomy, unit crimes tend to spread, which seriously undermine the economic and social order.In response to this situation, the Criminal Law, which was put into effect on Oct. 1,1997,provides a certain section about unit crimes. It is the first time that unit crimes had beenincorporated in the criminal law since the People's Republic of China was founded.After the promulgation of the new criminal law, both jurisprudential circles and judicial circleshave deeply researched unit crimes and obtained precious results. Due to the speciality of unitcrimes and the multiple administrative levels of the management system of unit, the cognizanceof the subject of a unit under Criminal Law is controversial. Although the subject of a unit isstipulated in the Criminal Law and relevant Judicial Interpretations, these provisions are toovague to deal with the issue in legal practice. Furthermore, although it is stipulated in theCriminal Law that the criminal responsibilities of unit crimes rely on the "Double PunishmentSystem" as principle, and the "single punishment system" as supplementation, it causes someproblems in legal practice to justify the imposition of criminal responsibility on the criminal unitand the persons who are directly in charge and responsible for the crime because of the lack oftheoretical support. Meanwhile, the "Single Punishment System", as well as the connaturaldefect of Fine, which is the only criminal punishment applied on the criminal unit, underminesthe strength of striking down the unit crimes. This situation should be improved.Accordingly, the writer tries to make some suggestions on the improvement of the provisions ofunit crimes in the Criminal Law by discussing the subject and the criminal responsibilities of unitcrimes.The first part focuses on the subject of unit crimes. After analyzing the controversial opinionsof the theoretical circles of criminal law, the writer's standpoint is raised. The subject of unitcrimes is unitary, viz. unit, the natural person should not be included. In regard to the constitutive elements of the unit, the writer thinks there are six elements to fulfill, among whichthe element of "independence" is the most important. The state organs, private corporationwithout the quality of legal person and departments under a unit should not be regarded as thesubjects of unit crimes. Especially, judging from the passive political view, the internal defectof the legislation and the humility deference of criminal law, the state organs should be excludedfrom the subjects of unit crimes.The second part is about the criminal responsibility of unit crimes. The writer starts with thecontroversy of the theory of criminal responsibility of unit crimes both in China and in foreigncountries, then presents that criminal responsibility of unit crimes in China is unitaryresponsibility. The criminal unit as an independent criminal subject is the basis to undertakethe criminal responsibility. The unit undertakes the criminal responsibility based on its ownbehavior. However, the double characteristics of subordination and independence of theconsciousness of the person who is directly responsible is the basis of him to undertake thecriminal responsibility. In addition to that, the writer also discusses the confirmation of theperson who is directly responsible and the realization of criminal responsibility by combining thetheory and practice.In the third part, the writer discusses the improvement of the criminal responsibility of unitcrimes. At first, the writer points out that there are many defects in the present provisions ofcriminal responsibility of unit crimes. For instance, the starting point of punishment of crimescommitted by unit and natural person is not consistent; the punishment and responsibility of unitcrimes are not consistent; the type of punishment of unit crimes is too simple. Then the writersuggests that the provisions related to unit crimes should reflect the integration of criminalresponsibility. The principle of "Double Punishment System" should be applied uniformly.As to the type of punishment, more types of punishment should be added while the punishmentof Fine should be improved. However, the application of qualification punishment and capitalpunishment should be limited, in order to insure that the criminal unit could still fulfill itsresponsibility to the society.