On The Basis Of Corporate Criminal Liability

Corporate crime is called a"silent crime". In nowadays of high degree of market, it has become a more serious crime than the traditional street one. The definition of corporate crime originated from criminology and was accepted by the researchers in various fields rapidly. However, there has always been the controversy about affirmative and negative theories of corporate crime in criminal law. The basic tendency of the criminal laws in various countries is to recognize corporate crime. However, it is still unsolved why corporation should burden criminal liability. The key is to find out a scientific and reasonable basis of setting up culpability of corporation.Criminal liability is an important category. On the view of the basic quality of lawful liability, it is the most seriously negative lawful evaluation and the heaviest obligation which is set by criminal law. For the guardant, late and restrained characters of criminal law, the setting up of criminal liability should be cautious. There are abundant theories of liability in western criminal law theories. The research of them to the essence, basis and construction of criminal liability is rather penetrating. In western theories, not only has liability the meaning of lawful evaluation and effect, but also it is one of the factors of crime establishment theory. Under the effect of the philosophical basis and the system of criminal institution, the definition of the criminal liability in western theories emphasizes subjectivity and factual elements. Comparing west theories, it still should be strengthened that the research made by the theoretical circle in our country on criminal liability of corporate crime. Our theory on liability lacks stratification. The research of us on criminal liability is preceded through expounding the definition of the basis of it. However, not only does this definition conform to the urgent of the language of law major, but also the expounding extension of it is rather narrow. We use the definition only in lawful expounding and lawful effect. According to main theory, the basis of criminal liability includes philosophical basis and lawful basis. The former emphasizes the relatively free will, and the latter emphasizes act conforming to criminal institution. Thereafter, the definition of criminal liability of us emphasizes the union of subjectivity and objectivity and minding both factual and normal elements. Therefore, we should understand it in more extensive basis and sense. The basis includes factual basis and normal basis. The former refers to the analyzing the justification of evaluation of criminal liability on the view of criminology and sociology; the latter refers to under modern rule by law principle and lawful system, analyzing the justification of the setting of criminal liability. On the issue of the basis of criminal liability of the corporation, on the view of factual basis, the author makes the research on the moral and social qualities of the criminal liability of corporation under the background of corporation society, on the view of normal basis, the author makes the research on how the liability is compatible with modern spirit and principles, the criminal ability and suiting criminal punishment ability, the joint between criminal punishment and administrant punishment in punishment system of criminal law, and the further research on how to realize the criminal liability of corporation.â… .Factual basis of criminal liability of corporationThe issue of criminal liability of corporation happens in corporation society. In modern society, corporation takes the place gradually of natural person and traditional unit and becomes the basic unit in society. The effect of corporation's activity can be divided into the positive side and the passive one, and this effect has been beyond economic field. This is an important reason for the setting of criminal liability of corporation. The so called"beyond economy"refers to: on one side, corporation crime exists in various fields of the society; on the other side, the conduct of corporation in economic field contains more social significance, this does not depend on the motive of corporation. The statement on corporation society and"beyond economy"is only the background introduction to corporation liability, but not the straight application to the basis of criminal liability of corporate crime. As a lawful evaluation, criminal liability reflects the change of the legislator and citizens'view. This change can be research on two sides of utilization and morality. On the view of utilization, on one side, ruling criminal liability of corporation is on considering of social safeguard; on the other side, it is because the punishment and prevention to corporate crime of criminal liability is effective. The meaning of former is easy to understand, and the latter is more inspirable. If it is only for social safeguard, is civil and administrate liability more effective than the criminal one? Surely, only on the view of the presently more suitable punishing system against the crime by natural persons, it is hard for people to find out practical evidence to proof the system is effective for preventing against the crime by the crime. This is because the reason of crime is so complicated that different person has different feeling on the criminal punishment. So, it is incomprehensive only to learn the criminal liability of corporate crime on utilization. A real criminal liability should set about from moral liability theory. The moral basis of criminal liability of corporation can be learned in two sides. On one hand, on the view of the emphasis of civil and criminal law, the focus of the former is property and objective effect, while that of the latter is natural person and subjective intention. Therefore, the setting of criminal liability of corporation is affected seriously by the morally blaming to the natural person. On the other hand, moral issue also happens in the course of the development of corporation, such as commercial morality, most of these have been set up as systematic procedure. The change of the view on criminal liability of corporation is very clear through searching the essence of corporation. From fiction theory to reality theory and further to Coleman theory, we can see that the attention to the character of corporation (structure and culture of it) has become the factual basis of criminal liability of corporation. â…¡.Normal basis of criminal liability of corporationUnder liability principle, how to learn the subjective and objective aspects and how to realize the criminal liability of corporation in present lawful punishment system is an issue of normal basis. Traditional positive theory always learns the criminal liability of corporation on comparing to natural person. In fact, it is still stating the will and conduct of natural person; meanwhile, the character of corporation is ignored. Therefore, it is unavoidable for this theory to be lost in embarrassment of proving negative theory from the reverse side. Now, new affirmative theory such as organization liability theory puts forward newly inspirational theory on the basis of concerning corporation. This concerning has become a tendency of proving criminal liability of corporation. Under the inspiration of Coleman and Husak's control principle, the author puts forward the view point that we should learn the criminal liability of corporation on the view of the developing of the positional function of corporation and the controlling to social effect. It conforms to the view that the controlling capacity is the core of criminal capacity, shakes off the fetter of comparing the will and disposing capacity of natural person, realizing the manner of learning criminal liability of corporation on the view of the character of corporation and the attention of criminal law to it, and is the development to newly affirmative theory. We should learn the realization of criminal liability of corporation on the basis of the character of it and the dual-illegitimacy of corporate crime. In the present punishment system, only to solve the joint issue of criminal and administrate liabilities reasonably, the criminal liability of corporation can be realized on prerequisite of not damaging the union of the present lawful punishment system. Therefore, the author puts forward the suggestion: to revise article 37 in"Criminal Law", bringing administrate punishment into the criminal law according to its non-criminal punishment character to coordinate criminal punishment and together becoming the realization manner of criminal liability of corporation. On the issue of punishing the natural person in corporation, we should learn that the former is only the tool for the latter to realize its positional function and it has no creation for the latter. So, to punishing the natural person is the manner of realizing the criminal liability of corporation and has no independent significance. Dual-punishment should be insisted to punish corporate crime, and solo punishment can be transformed completely into natural personal crime.