Unit Recidivism Analysis On The Legislation

Unit recidivist is a term developed with the establishment of unit crime in legislations and its existence in practice. Without these legislations, there is no need to study unit recidivist. However, when theoretic research becomes more and more deep into the unit crime, study on unit recidivist has not made much achievement. On one side, this is partly because research on recidivist system has been stagnant and scholars have not had much interest; on the other side, as a new special object, study on recidivist in unit crime is more or less influenced by personal recidivist system and can not get rid of its mode. As an important part of punishment system, unit recidivist is a type of recidivist by a special object; hence the insufficient study on it is a theoretical vice of criminal law. So the author wishes to make some promotion to the study by this dissertation and to perfect recidivist system. By comparing different viewpoints, listing various data and analyzing theoretically, this dissertation suggests to set up unit recidivist, mainly discusses the conditions to constitute unit recidivist and legal sequence, puts forward its own viewpoints.Except the foreword, this dissertation has four parts, which are:the first is about the theoretical debate of unit recidivism; the second is the identification of unit recidivist; the third is the punishment of unit recidivist; the fourth part is the legislation design of unit recidivism.On the basis of introduction and evaluation of the idea that whether unit recidivism exists or not, the first part firstly emphasizes the author's own viewpoints:there is no unit recidivism in Chinese Criminal Law, the recidivism system stipulated in the general provisions of Chinese Criminal Law is inapplicable to unit crime; Article356is not about unit recidivism of narcotic drugs. Secondly, the authors explains the necessity to establish unit recidivism from three aspects, which are dangerousness, harm to society of unit recidivists and criminal equality.This part contains two sections, the first focuses on the constituent elements of unit recidivist:because in the unit crime, the unit has been sentenced to criminal fine with a certain amount, at the same time if the person who is directly responsible for the unit and does recidivism which should be sentenced to criminal punishment within five years from the date that the judgment was declared, this is the unit recidivism and would be of accumulative penalty. This part is the key point which includes some new points distinguished from other scholars. The second section makes a further discussion about the identification of unit recidivist in the case that forms of unit organization and inner responsible personnel have changed.The third part describes the punishment of unit recidivist form two aspects of unit itself and directly responsible persons. To avoid legislative technical difficulties, the author suggests separating the punishment of crime unit and directly responsible persons. Regardless of single or double punishment for crime unit, if it accords with the provisions of Article65and66of Chinese Criminal Law, those people who are directly responsible for the unit should be recognized as recidivist and given a heavier punishment.The last part focuses on the legislation of unit recidivism, including design of provisions in the law and some supplemental explanations.