Discussion On Criminal Law Protection For Corporate Capital System

As a successful mode of modern enterprise, company is widely recognized and adopted. In order to ensure the positive operation of this enterprise mode, company laws in many countries standardized the company capital system which is suitable to the situation of their countries. But since the company capital system was created, the crimes which violate the company capital system appeared at the same time. By taking the company capital crime as the research object, this thesis makes a thorough and systematic study for making the company capital system. Especially after Company Law was revised in 2005 in China, the changes in the company capital system brought forward new problems for cognizing the crimes which infract the system. In this thesis, the author offers some solutions which are hopefully helpful to cognize these crimes in practice. This thesis is divided into four parts.The first part makes a general introduction to the company capital system. It gives a definition of company capital from the angle of company law, analyzes the legal meaning of company capital, and offers a basis for the discussion in the thesis that the company capital system needs a law protection. It also discusses the types of the company capital system: legal capital system, the authorized capital system, and the merits and shortcomings of compromised capital system. The company capital system is a big category and its detailed contents are embodied by three principles of the company capital. The three principles of company capital, which are capital confirmation principle, capital maintenance principle and capital fixedness principle, are analyzed in the part. Moreover, it introduces the company capital system prescribed by the company law in our country, and the contents and changes we should follow.The second part expounds basic issues of the protection for the company capital system in criminal laws. First, it discusses the justness, necessity and possibility of the protection for the company capital system in criminal laws. By the way of exemplification, it introduces the typical laws made for the protection of the company capital system in foreign countries as well. In summary, our country should strengthen the cohesion and cooperation among the company law, business law and administrative law, and learn the professional, scientific and precise standard for the criminal facts and measurement of penalty in subsidiary criminal law mode from foreign countries and districts for the sake of effectively attacking criminal offence of company capital in China.The third part introduces concrete provisions to the violation of company capital system in criminal law in China. It analyzes the concepts and lawmaking process for the crimes of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully. It mainly focuses on the four main elements of the crime: the subject, the subjective aspect, the object and the objective aspect of the crimes of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully. In the first place, it explicates the subject of the crime of making a false report of registered capital, which means the company uses false certificate documents for registration or adopts other deceitful methods to make a false report for the registered capital in order to become registered as a natural person or a unit by cheating the administration department; the subjective aspect of the crime of making a false report of registered capital can only be deliberation which is direct; the object of the crime making a false report of registered capital is the registered administration system of the company; the objective aspect of the crime of making a false report of registered capital manifests the behaviors that the company uses false certificate documents for registration or adopts other deceitful methods to make a false report for the registered capital in order to become registered by cheating the administration department in which the false registered capital is huge, the consequence is serious or they also commit other severe criminal acts. Second, it tells us that the subject of the crimes of offering capital deceitfully and taking back capital deceitfully is the originator and shareholder of the company, including the unit and the natural person. The subjective aspect of the crimes of offering capital deceitfully and taking back capital deceitfully is also formed on purpose, that is, the actor knows clearly that he violates the related law by not offering the capital or not offering the adequate capital but announcing that he already offers adequate capital by using deceitful means; or the actor knows clearly that he violates the related law by taking back the registered capital. The objects of the crimes of offering capital deceitfully and taking back capital deceitfully include the nation's administrative system for the shareholders'capital, the legal rights of the company, other shareholders and creditors, and the socialist market economy system. The objective aspects of the crimes of offering capital deceitfully and taking back capital deceitfully are the behaviors that the originators and the shareholders of the company violates the company law by not paying the currency and property or not transferring the property right and offering the capital deceitfully, or taking back their capital after the establishment of the company in which the capital is huge, the consequence is serious or they also commit other severe crimes. The thesis also analyzes the problems and arguments in the four main elements of the crimes of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully. Finally it introduces penalty for the crimes of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully.After Company Law in China was revised in 2005, the capital system in the companies of our country was transformed from the restricted legal capital system to the legal capital system of paying by stages. The reform of the system definitely cause the difficulties in cognizing the crimes of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully. The fourth part concerns about these problems. Firstly, it sets forth the influence of new company capital system to the crime of making a false report of registered capital and three problems of consummating the legislation: one, the crime of making a false report of registered capital should be cognized from actor's offering the capital at the first time; two, the behaviors of making a false report of registered capital when establishing the company should be reduced; three, the proportion for Prosecution Standard should be adjusted. Secondly, it elaborates the influence of new company capital system to the crimes of offering capital deceitfully and taking back capital deceitfully: one, it is more difficult to cognize the crime of offering capital deceitfully; two, how to understand the influence of the system of shareholders'withdrawal of stock in new company law to the cognition of the crimes of offering capital deceitfully and taking back capital deceitfully; three, the influence of the personality negation system introduced by the new company law to cognition of the crimes of offering capital deceitfully and taking back capital deceitfully.At last the thesis reaches a conclusion through the analysis. It clarifies the important components of the crimes of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully, offers the personal opinions for cognizing the crimes of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully after the company law was revised. This thesis expects to cognize the criminal behaviors of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully in practice, improve people's understanding for the harm of the crimes of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully, attack the behaviors of making a false report of registered capital, offering capital deceitfully and taking back capital deceitfully and make a contribution to the maintenance of socialist market economy system.