On The Decriminalization Of The Crime Of Misrepresentation Of Registered Capital

With the modification and perfection of the Company Law of the People's Republic of China,the lawmaker has made great changes to the registered capital system with the guidance of the asset credit:the restriction of the minimum registered capital is canceled,the company is allowed to pay the contributions in stages,the scope of the mode of capital contribution is expanded,etc.,However,the crime of misrepresentation of registered capital as stipulated in Article 158 of the Criminal Law has not changed since it was included in the Criminal Code in 1997.The change of the registered capital system from strict legal capital system to authorized capital system leads to the decriminalization of the crime of false statement of registered capital.The legislative purpose of the crime of false declaration of registered capital is to maintain the correct operation of the Company Law,to maintain the management order of the company and the socialist market economy order of the company registration administration organs,and to establish a good credit market.According to the theory of crime constitution and teleology: from the two-stratum system to the crime constitution of this crime,It is concluded that the crime of false declaration of registered capital is difficult to achieve the function of preventing or punishing the crime in advance of the Criminal Law,and the change of capital system in the Company Law leads to the change of the concept of capital credit,and the conclusion is that the crime of false declaration of registered capital is difficult to achieve in advance.There should be less human intervention,the return of autonomy to the market in order to achieve self-management of the market,the observance of the jungle law of the survival of the fittest in the socialist market economy world has become inevitable,and the legal characteristics of this crime are obviously incompatible with the criminal law,The existence of statutory crime affects the stability of a country undefined criminal law,and acts that violate the norms created by people in order to maintain a certain system or order should not be stipulated in a large number in the criminal code.There are five problems in the practical application of this crime: the negative impact of the entrepreneur undefined imprisonment for this crime is far-reaching,and has a negative impact on employees,other members of the society and the market economy;Since the legal interests of this crime are low and the cost of enforcement is high,the legal penalty should be adjusted and the judicial resources should be reasonably allocated;The crime is easy to become the "crime of desire" of the law enforcement organs,and it could be the asylum of arbitrary acts by the law enforcement authorities;To "borrow money for capital test","false first before reality" and other acts are difficult to identify,leading to the establishment of the crime tends to repeat,and is not conducive to encouraging criminals to make up for capital,cause the punishment is too serious and leads to improper punishment;The crime rate is low,which is not the focus of economic criminal law,and falsely reporting of registered capital is not the means used by entrepreneurs to obtain illegal interests.In view of the obstacles and problems in the process of decriminalization of this crime,the approaches and directions of the future decriminalization of this crime are explored as follows: after the comparative law studies with Germany,Japan and France,regarding the crime of false declaration of registered capital as a subsidiary criminal law,in the Company Law,crimes in the professional field,such as typical statutory offenders,are stripped from the Criminal Code and placed in various departmental laws,which can not only improve the efficiency of compliance and enforcement of the law,but also increase the efficiency of compliance and enforcement of the law and maintain the stability of criminal law;To increase the general provisions of deceiving state organs,expand the scope of coverage,and protect the administrative functions of government departments in a broad sense;Perfect the Company Law and related administrative regulations,perfect the legislation in the field of administrative coercive measures and administrative penalties,improve the efficiency of enforcing the law,and make it quite relief and punitive.In order to combat false registration of registered capital behavior without the use of criminal law to regulate;Strict information disclosure system and the establishment of credit evaluation system,the adoption of credit restraint measures to promote the behavior of good faith and law-abiding management,instead of the criminal law prevention effect;In order to improve the civil liability of the Company Law,the creditors and other subjects have the basis of investigating the illegal liability of the company,and guarantee the right of judicial relief of the creditors,and restrict the establishment of the company on the level of private law.