On The Unit Recidivism

The 1997's "Criminal law" has established our country's unit crime system, the unit accumulative offenses is proposed along with the unit crime establishment and the reality existence. In recent years, the scholars and practiced two aspects to the unit accumulative offense from the theory to carry on searched analyze, proposed very many original opinions. This article in the absorption, profits from predecessor's material, the viewpoint and carries on the theoretical analysis in the foundation, thought our country present "Criminal law" does not have the unit accumulative offense's stipulation, but theoretically the unit crime may constitute the accumulative offense, grasps the unit crime integrity principle, to in the unit accumulative offense's law construction, the judicial practice met aspects and so on hard problem to carry on a more systematic elaboration. The unit main body is integrated the legal responsibility in the system, does not allow nature to take its course tacitly approves the unit and the natural person is suitable the same legal responsibility principle and the penalty is suitable the system, the unit accumulative offenses took the special main body the accumulative offense form, is after the present criminal law stipulated unit crime but we must face up to do not have one of facing up to questions to the present, to its research insufficiency is a criminal law theoretically big disappointment. Therefore, hoped through this article research, plays the role which offers a few ordinary introductory remarks so that others may offer their valuable ideas, deepens to the unit accumulative offense's research, perfect: unit accumulative offense system. The full text altogether 39000 characters, divide into four major parts:The first part first was simple introduced accumulative offense's concept, thought the accumulative offense was a multi-level concept, might from the criminality, the crime humanity, the discretion of punishment plot, the penalty system four aspects limit, then this article mainly was decides after deliberation from our country penalty the severely punishment system angle to carry on the exploration. Next, the system combed the unit accumulative offenses present "Criminal law" existed in our country or not the correlation theories to dispute that, after the synthesis disputed and unified the accumulative offense system concept to obtain the author to the unit accumulative offense concept limits. Because the so-called unit accumulative offenses are refer to the unit crime to condemn certain penalty the unit after, finished in unit's fine punishment execution or remits, in the legal period (special situation in any time) again violates must condemn crime of the certain penalty, is the unit accumulative offenses, must punish severely, but error unit crime exception.The second part in view of the first part thought our country present "Criminal law" and the non-unit accumulative offense system and suggested establishes this system in the foundation, separately proved from the reality and the theory two different angles has set up the unit accumulative offense's basis. The unit accumulative offenses set up the reality basis includes: The unit crime exists generally also grows day by day; As soon as the unit crime violates the fact which violates again; The foreign country sets up the legal person accumulative offense system the precedent to be possible to help the model. The unit accumulative offenses set up the theory basis includes: The unit crime social hazardous nature relative says must be bigger than the natural person crime; The natural person accumulative offense system theory basis provides the support for the addition unit accumulative offenses; The criminal law principle provides the theory basis for it. Thus has made the upholstery and the preparation work for the unit accumulative offense system law construction.The third part is the full text key point, separately proves its constitution important document from the ordinary unit accumulative offenses and the special unit accumulative offense two different angles. First, approves of "a main body in the unit subject of crime understanding to say", thought but the unit is an organic whole is not the simple individual set, but has the integrity and the constitutive property, unit's legal responsibility is the overall responsibility is not the collective responsibility, but undertakes the responsibility also to be supposed to be the unit whole is not the unit member. .In this foundation proposed to the ordinary unit accumulative offense penalty condition recognized should take the crime unit's penalty whole as the basis, because the crime unit's penalty whole is that part of penalty and the crime unit which shares by the direct responsibility personnel composes from load that part of penalty, therefore the ordinary unit accumulative offense's penalty condition should simultaneously both sets the request to two parts, receives the unit the fine punishment and the unit member's limited free punishment two condition compound achievement constitution unit accumulative offense's crime nature condition around, thinks two crimes so long as satisfies any to be possible to constitute the unit accumulative offense. To the unit accumulative offense's punishment request in, proposed only stipulated certain amount, does not have the flexibility, can cause the penalty unfair phenomenon because of the unit property amount in difference the existence, suggested is "is condemned the unit accumulative offense's punishment request stipulation 500,000 Yuan above fines or the assess as fine occupies the company all gross asset 20% above fine punishment".At the same time, the direct responsibility personnel's penalty requests according to the criminal law unified request to the unit accumulative offenses in also take to condemn above the limited free punishment as suitable; Around next, the ordinary unit accumulative offense's subjective important document requests in two crimes all to have to be intentionally the crime, prevents the scope of attack oversized, waste judicature resources, also is advantageous to and the natural person accumulative offense system intercoordination unification; Once more, recognizes in the ordinary unit accumulative offense's time condition on, thought begins reckoning in the condition regarding after crime front, so long as the unit commits the crime the fine punishment execution which condemns to finish already may. In on special unit accumulative offense's recognizing, has carried on the explanation to its constitution important document and the ordinary unit accumulative offense different aspect, and thought should the special accumulative offense's scope expand our country criminal law in to the narcotic accumulative offense, carries on the severe attack to the drug-related crime. Because the criminal law stipulated the harm national security crime and the drug-related crime, may constitute by the unit, therefore, the special unit accumulative offenses have included the harm national security crime accumulative offense and the drug-related crime. accumulative offense. To special unit accumulative offense's penalty important document and time important document, also should with the natural person special accumulative offense consistent, so long as the crime unit violates has the specific crime, and is condemned the fine punishment, does not have the threshold request to the fine amount, finished or remits after in the fine punishment execution any time to commit this specific crime again, constitution unit special accumulative offense. Finally, the comprehensive above elaborates, suggested the National People's Congress and the standing committee make the revision by the criminal law bill for amendment way to our country present criminal law related article, establishes Our country Unit accumulative offense systemThe fourth part also is the this article key part, mainly aims at the unit accumulative offense system all sorts which meets in the judicial practice to carry on the discussion puzzled. To the unit fine punishment execution way proposed puzzled oneself view, thought middle the practice had been established legitimately the unit cannot be similar to the natural person such through the concealment property to achieve the escape penalty punishes the goal, cannot borrow this negative unit accumulative offenses;Thought State agency's conformed to the accumulative offense condition still to be possible to constitute the unit accumulative offenses, might use the fund which State agency might control nimbly, the unit year's end to draw bonus, quarter subsidy, payment fines and so on year-end bonus. Is really unable in Individual country Institution to pay the fine in the situation, may consider uses lengthens it to arrive at the fine sufficiently for the social service time, solved the State agency crime to buy the single consequence by the country for it; The accumulative offense changes after who to the unit recognized the question carries on the elaboration,First, in the situation which unit itself changes, separately to absorbs the merge, supposes the merge, the derivation separation newly and supposes newly establishes separately several kind of situations to carry on the discussion; But next, after the unit invariable the internal responsibility personnel changes, because unit's legal personality is independent in its component member, the unit crime indicated once more its subjective malignancy and the person risk have not eliminated along with the criminal sanction, should receive punishes severely;If the unit receives the foreign penalty punishment and has carried out, according to our country criminal law stipulated also must take the legal responsibility, we may acknowledge it has carried out the penalty, when satisfies the unit accumulative offense's constitution condition tenable unit accumulative offenses; To the unit accumulative offense's punishment in the judicial practice proposed puzzled the solution mentality, thought the unit accumulative offense's punishment principle must be punishes severely in the legal punishment scope. The scope punishes severely which to the unit accumulative offenses still needed to persist the unit penalty integrity principle, was to the unit crime overall penalty severely. When is suitable the fine punishment carries on the punishment to unit accumulative offense itself, separately from the quota fine system, time compared to the fine system and the non-quota fine makes three kind of situations to carry on the elaboration, and suggested in persisted double punishes under the system primarily premise, increases adapts the social development to the unit crime other punishment measure to prevent and control the unit accumulative offense's need.