Investigation Into The Issue Of Punishment For Unit Crime

China's legislation on unit crime originated from the Customs Law adopted in 1987, and then was stipulated more definitely and specifically in the Criminal Law adopted in 1997. As the reform and opening-up policy is unceasingly thorough, China's society is continuously developing and changing, but unit crime shows such characteristics as hidden means and various forms. Therefore, stipulations on unit crime in China's Criminal Law face new challenges in judicial practice. The issue of punishment for unit crime is particularly worth our discussing and investigating.This thesis is divided into three parts: punishment principles for unit crime, penalty types and penalty methods, applicability of penalty for unit crime.In the first part, the author firstly introduces different punishment principles for unit crime in different countries. There are mainly four kinds. The first one is transference system, i.e. a principle that stipulates only the criminal unit shall be penalized, but members in the criminal unit shall not. That is an earlier mode of punishing unit crime. In the event of a legal person's commission, that punishment mode was universally adopted in Britain and America's earlier criminal legislation. Due to its disadvantages, presently transference system has been gradually abandoned by all countries. The second one is substitution system, i.e. a mode that the criminal law stipulates that only natural persons committing unit crime shall be penalized, but the criminal unit shall not. The third one is dual punishment or double punishment, i.e. a mode that the criminal unit and its personnel in charge, and other persons who assume direct liability shall be penalized. Presently, dual punishment is a mode adopted by most countries to punish unit crime. The fourth one is mixed system, i.e. a principle that the criminal law combines several punishment systems, instead of stipulating a single punishment principle for unit crime. That is to say, that is a punishment principle that adopts several punishment methods at the same time. China's present criminal law is a case that adopts mixed system. Then, the author introduces and analyzes China's punishment principle for unit crime. China's criminal law stipulates that as for most criminal units, both the criminal units and persons in charge who assume direct liability shall be punished, i.e. double punishment; as for a few criminal units, only persons in charge who assume direct liability shall be punished, i.e. substitution system. The author deems that punishment mode has disadvantages, such as violation of principle of suiting punishment to crime, inconformity to punishment name and so on. Therefore, that mode should be abandoned and dual system should be adopted.In the second part, the author firstly compares types and methods of penalty for unit crime in China and those in America and France. Through comparison, it is founded that there are some other penalty types besides fine penalty in America and France, while there is only fine penalty for unit crime in China. For instance, in France, there are such penalties to a criminal legal person as disbanding of a legal person, closing enterprises, prohibiting taking part in public projects, prohibiting publicly raising funds. In addition, both France and America stipulate definite fine penalty, while China's fine penalty are indefinite. For instance, America in the Criminal Sentencing Guide specifically stipulates a"Table of Fine Scales"applicable to unit crime, each scale of which stipulates definite amount of fines. In the author's opinion, it has disadvantages in both theory and judicial practice to apply a single fine penalty, especially an unlimited fine system, to a criminal unit. Thus, the author proposes that the present penalty system should be reformed, and different penalty systems should be established respectively according to different subjects such as units and natural persons. As for a criminal unit, principal penalties and supplementary penalties should be established as well. Principal penalties for unit crime include canceling operating qualification, limiting business activities, and stopping business operations for rectification. Supplementary penalties for unit crime include fining offenders, confiscating property, performing certain obligatory obligations, announcing a unit's crime and so on.In the third part, this thesis mainly discusses two issues: the issue of unit crime and the system of annihilation of penalty for unit crime. As for the first issue, the author discusses the issue of sentencing unit crime from the perspectives of recidivist, voluntary surrender, meritorious service and probation.In the author's opinion, criminal law should establish definite system of unit recidivist. The main reasons lie in two aspects: inevitability of criminal law theory and necessity of preventing unit crime. Then the author analyzes conditions of constituting unit recidivist, i.e. time condition, criminal condition, and penalty condition. Meanwhile, the author proposes that as a natural recidivist, a unit recidivist shall be subject to the principle of heavier punishment.As for the issue of voluntary surrender, the author thinks, it has necessity and jurisprudence basis to establish voluntary surrender system of unit crime. The following are the main reasons: voluntary surrender of unit crime possesses objectivity; to establish voluntary surrender of unit crime possesses legal basis; to establish voluntary surrender of unit crime conforms to the legislation intention of voluntary surrender system; to establish voluntary surrender of unit crime conforms to penalty aim. Then the author analyzes conditions of constituting unit's voluntary surrender, and proposes that the criminal unit that surrenders and its personnel in charge, and other persons who assume direct liability shall be penalized appropriately according to Article 67 of the Criminal Law after voluntary surrender of unit crime is affirmed.As for the issue of meritorious service, the author thinks it is possible and necessary to establish meritorious service system of unit crime, so meritorious service system of unit crime should be established. The author analyzes the conditions of constituting a unit's meritorious service, and the main conditions are subjective condition, time condition and behavioral condition. As for the issue of probation, the author thinks, to reach penalty function of preventing crime, China's criminal law may bring in probation system of unit crime referring to other countries'legislation experience. One method is to directly apply probation to fine penalty sentenced under the situation of keeping present penalty type unchanged, according to the criminal unit's circumstances of a crime and demonstration of repentance. The other method is to apply probation to competence punishment sentenced, according to the criminal unit's circumstances of a crime and demonstration of repentance, in the event of adding competence punishment.As for system of annihilation of penalty for unit crime, this thesis mainly discusses limitation system and amnesty system. As for limitation system, the author thinks, form the perspective of the original intention of legislation and the objective need for attacking crime, limitation of prosecution should be established for unit crime. The following are the reasons: a unit has legally independent personality, so as natural persons, it is able to cognize and react to the information and situation in social life and economic life, and it may harm society oriented by unit interest; the application of limitation system for prosecution to unit crime is favorable for realizing penalty aim, the special prevention of crime and common prevention aim; the application of limitation system for prosecution to unit crime is favorable for stability of society and steady development of market economy; the application of limitation system for prosecution to unit crime is favorable for improving judicial organizations'equity and justice of enforcement. Then the author designs a system from such perspectives as the starting date of limitation of prosecution to unit crime and types of limitation of prosecution. As for amnesty system, the author thinks, a unit may commit a crime as well as natural persons, so theoretically amnesty system should be established. Legislation should equally treat units and natural persons through articles of the criminal law.Finally, in the part of conclusion, the author thinks the consummation and construction of unit crime system cannot be accomplished in an action. Instead, it is needed to continuously conclude experience from judicial practice, to unceasingly improve theoretical investigation, to refer to other countries'experience meanwhile and finally to be raised to national legislation, in order to consummate China's criminal law system and realize judicial justice.