On Several Problems About Crime Committed By Organizations

Crime committed by organizations is an all-important criminological theory in criminal law theory and always is the important component element of the study on criminal law in this country. This is not only reflected on which it had once been paid much attention for a fairly long time by legislators and theoretical circles, but also is reflected on the judicial practice of People's Court, crime committed by organizations has being very controversial problem in the practice of criminal justice by law court. The system appears inadequate day by day due to the rapid development of market economy; it is regarded as the source of problems by criminal law scholars because it isn't suitable for the economy with Chinese characteristics which develops rapidly. It should be said that this system hadn't been valued before criminal laws was revised in 1997. Ever since a long time ago, economic construction with Chinese characteristics has developed rapidly, economic circumstances have progressed with each passing day, new situations, new conditions have emerged in an endless stream, it not only makes changes of social constituent structures, but also makes all benefits full of temptation, by which the situation of crime committed by organizations has been made to commonly see in the territory of criminal offence. However, obscure provisions about crime committed by organizations in criminal laws already cannot bear the situations of crime committed by organizations which are increasing day by day in criminal laws as the diversification of social development, even due to the awareness of legal consciousness of direct officer in charge of criminal organization and other direct responsible person, someone even breaks the law knowingly and enters the legal openings, the system of crime committed by organizations in current criminal laws can't be faced with the numerous and complicated criminal forms in society, by which numerous scholars'calm thinking has been aroused and many viewpoints of opinion have been put forward. The system of crime committed by organizations has been executed bold attempt in practical circle of justice. But the system of crime committed by organizations hasn't been settled well until now in the aspect of theoretical construction and judicial practical operation. Therefore, through the existent provisions about crime committed by organizations in criminal laws, the problems of it are analyzed, the rules of crime committed by organizations are inspected, interrelated systems in other countries and regions are compared, the limited point of view to perfect the penal system of crime committed by organizations is put forward by the author, which hopes to benefit for perfecting the current system of crime committed by organizations in this country. The whole paper is divided into four parts:The first part is mainly about the brief introduction of the problems on the crime committed by organizations, the concept and constructive characteristics of crime committed by organizations are analyzed. Crime committed by organizations means the intentional or negligent crimes which are implemented by company, enterprise, public institution, organ, group and other organizations to strive for illegal benefits, or which are determined by the responsible officer or determined through the organizational collective discussions and studies in the name of organization. The constructive theory of crime committed by organizations generally is analyzed in Chinese academic circles according to the general method of describing specific criminal characteristics in criminal law of this country, that is, the theory of constituting crime. The object of the crime committed by organizations means the social relations which are aggrieved in the process of crime committed by organization and are protected by criminal laws. The objective requirements of crime committed by organizations are the outward performances which are necessary for establishing crime committed by organizations. There are debates in three aspects about the subject of crime committed by organizations in the circles of criminal laws in this country: the first is whether organizations can be the criminal subject or not. The second is what organizations are included for organizations to become criminal subject, that is, the problems about the scope of the subject of crime committed by organizations. The third is whether relevant natural persons are included when crime committed by legal person can be established. The subjective requirements of crime committed by organizations are the hottest potato in the research on the crime committed by organizations. First, it's about whether organizations have subjective offence or not. Two opinions of negative theory and positive theory are still held in the circles of criminal laws in this country. The culpability form of crime committed by organizations is also included into the subjective requirements of crime committed by organizations. The author thinks that, since the decision of intentional crime by the legal person organization can be owed to the legal person himself, there is no reason that the negligent act of the legal person organization can't be owed to the legal person himself. The second part is about the discussions on the problems about the subject of organizations, it is studied from the four aspects: the subjective requirements, the nature of system of organizational ownership, organizational crime and responsible person of crime committed by organizations. Generally considering, major crimes committed by organizations must have several requirements as follows, that is, legality, sense of organization and independence. It is a debatable problem about the subjective status of crime committed by organizations, that is, whether private sector can become the subject of crime committed by organizations. There are two opposite opinions on this problem in the theoretical circles of criminal law. One is negative theory, the other is positive theory. The subjective scopes of crime committed by organizations include company, enterprise, public institution, organ and group. About the crime committed by organizations, there mainly are two opinions in theoretical circles of criminal laws as for how to understand subject, the first opinion thinks that responsible person is one part of organization and shouldn't be taken as the officer in charge of organization and be classified into the punished object of crime committed by organizations. The second opinion, crime is committed by organizations, among which major organizations and person in charge of organization are included. The author agrees with the second opinion. Criminal liabilities of directly responsible executives and other direct responsible person of the crime committed by organizations should be investigated according to the provisions in criminal law.The third part is about whether the crime committed by organizations can be adapted to the system of confession to justice or not is carried out analyses. It is about whether the crime committed by organizations can be adapted to the system of confession to justice or not, what are differences between confession to justice by organization and confession to justice by natural person? The system of confession to justice is initially established for the crime by natural person, the organization is the social organization without life, and neither can it voluntarily surrender to justice, nor can it tell its crime according to the facts, so crime committed by organizations can't be adapted to the system of confession to justice by natural person. The confession to justice of crime committed by organizations is the whole activity which is carried out on the basis of organizational will, it is a confessional activity that is adopted after the crime committed by organization, it is certainly carried out on the basis of organizational whole will. Combining with the founding conditions of the confession to justice of the crime committed by organizations, several kinds of situations which use the confession to justice of the crime committed by organizations are summarized as follows by the author: first, the direct officers in charge of organization and other direct responsible person should stand for the organization to voluntarily surrender to justice and tell the offence of the crime committed by organizations according to the facts after the establishment of crime committed by organizations, the confession to justice of the crime committed by organizations should be established. Second, if other direct responsible person initiatively surrender to justice first and the direct officers in charge of organization tell the offence of the crime committed by organizations according to the facts after making an appearance, under this situation, the confession to justice of the crime committed by organizations should be considered to be established. Third, the direct officers in charge of organization initiatively surrender to justice, but other direct responsible person refuse to make an appearance, or refuse to tell the offence of the crime committed by organizations, about establishing the confession to justice by organization, the confession to justice by natural person should be established by the direct officers in charge of organization, but the confession to justice by natural person shouldn't be established by other direct responsible person. Fourth, the direct officers in charge of organization and other direct responsible person can initiatively hand over the offence and tell the offence according to the facts in the stage of investigating and prosecuting the crime committed by organizations, but they withdraw the confession in the stage of court hearing, it should be given different results according to different situations. Fifth, if the crime committed by organizations is carried out by the direct liable persons under the situation that legal representative or person in charge lack of knowledge, the direct responsible person voluntary surrender to justice and explain the crime according to the facts, the confession to justice of the crime committed by organizations should be considered to be established, his individual activity should be considered as the confession to justice; if the confession is withdrawn afterward, his individual activity shouldn't be considered as the confession to justice, but the affirmation of the confession to justice by organization shouldn't be affected if the legal representative or person in charge positively coordinate with judicial authorities. In addition, according to the provisions of Interpretations of Several Problems on Specific Laws Applied to the Treatment of the Confession to Justice and Making Contributions (called Interpretations below) of Supreme People's Court in 1998: Criminal suspect who runs away after voluntarily surrender to justice shouldn't be affirmed as the confession to justice. The system of the crime committed by organizations has been carried out some specific imagines by the author in part four. Customs Code in 1987 in this country formulates that organization can be the subject of the crime of smuggling; the legislative beginning of the system of crime committed by organizations in this country has been opened up since that. We all know that the application of the crime committed by organizations in penal system is different from the crime of natural person. On this point, the provisions about the legal systems of penalty in foreign countries can be used as a source for reference by us.