Study On Unit Recidivist In China’s Criminal Law

The unit recidivist is an important part of the unit crime sentence, which is present naturally by twoaspects: the establishment of the existing penal law about the unit crime in1997and the emergence of lotsof unit recidivists today. It will be not necessary to study the unit recidivist in theory if the unit crime is notestablished by legislation. However, with the continuous development of the theoretical study about theunit crime, the study about the unit recidivist has not obtained the substantial advance. Such results shouldbe attributed to the particularity of the unit crime compared with the natural person crime; however, thestudy about the unit recidivist is often effected by the recidivist system of natural person crime in theexisting penal law. Thus, the study is still following the pattern of the recidivist system of natural personcrime, which is not given an innovation based on the particularity of the unit crime. At the same time, theunit recidivist is also an important part of the penal system for the theory of criminal law. Because the unitand the natural person are all acts as a criminal main body, it is of great significance that the theoretic studyabout the unit crime is carried out for perfecting the theory of criminal law. Here, I hope this paper can givea reference to study deeply the unit crime. This paper gave a theoretic study about the unit crime. Based onthe viewpoint and theoretic analysis of the predecessors and no relative regulate about the unit recidivistpresenting in the criminal law of china, thus, the existence of the unit recidivist is necessity and feasibilitysince the unit crime can make up of unit recidivist by theoretic analysis. Moreover, constitution factors,principle of penal, and lawmaking suggestions of the unit recidivist are also systematically expatiated.This paper is composed by following four parts besides introduction and conclusions.The first part introduced the unit recidivist. This part analyzed the arguing viewpoint about the unitrecidivist firstly. At present, in Chinese legal community, the arguing viewpoint about unit recidivist hastwo hypotheses (positive hypothesis and negative hypothesis). Here, the summarization about the contentand the cause of unit recidivist was obtained, accordingly, the viewpoint and the cause was brought forward.No relative regulation about the unit recidivist can be present in the existing penal law of china, thus, theprovision about the unit recidivist should be added. Moreover, based on the analysis about the existingscope and theoretical basis of the unit recidivist, I think that the unit recidivist only exists in the scope of the double punishments force. Thus, the combination of wages priority and utility is the theoreticalevidence for solving the unit recidivist.The second part analyzed the concept and the important factors of the unit recidivist. The unitrecidivist can be divided into two types: common unit recidivist and special unit recidivist. Firstly, theconcepts of the two types of unit recidivist were defined; subsequently, more specification was paid to theconcept of the special unit recidivist. The result indicates that special unit recidivist should include thecrime about the compromise of national security, terrorist offences, and drug-related crimes. Moreover, thecomposing factors of the special unit recidivist was discusses in detail.The third part analyzed the punishment of the unit recidivist. The punishment principle and the scope,as well as the way of the heavy punishment of the unit recidivist were all discussed. Based on the principleof the heavy punishment for the unit recidivist, the scope of the heavy punishment should include unit andthe internal responsible persons. Some relative suggestions are also offered for punishing unit and theinternal responsible persons.The fourth part gave some concrete suggestions about legislation for the unit recidivist. This partdiscussed the necessity and feasibility for adding the unit recidivist at first. For the necessity, the relativeaspects, including social harmony in a transitional period, punishing and preventing the unit crime, and theimplementation of the criminal policy of tempering justice with mercy, were all discussed. For thefeasibility, the discussion about the learning useful experience from foreign countries, the feasibilitysupport of the theory of the unit crime, and the theoretical support of Marxist philosophy were alsoanalyzed. Finally, the concrete suggestions about the legislation for the unit recidivist are offered. Theheavy punishment should be carried out for the unit recidivist, such as the fine penalty beyond500,000.00Yuan or the proportion of fine/unit fund more than20%, any one of the responsible persons beingsentenced to imprisonment or beyond this crime, or the above penalty occurred again after the fine penaltybeing implemented for five years. However, the unpremeditated crime should not be considered here.Moreover, the concrete lawmaking suggestions about adding relative regulation of the special unitrecidivist were also offered for modifying the66th and the356th regulation in criminal law.