The Model Selection And Application Of Criminal Liability Of Organization

In order to optimize business environment and promote the high-quality development of the domestic economy,since the 19 th National Congress of the Communist Party of China,the Supreme People’s Procuratorate has carried out a nationwide policy expreimentation of "corporate compliance non-prosecution",trying to encourage corporate to establish effective compliance plans by themselves through various criminal incentives.In this context,the long-dormant theory of organizational liability has been brought up again,and many scholars have taken it as the legal basis for the proper shift of unit liability and corporate compliance non-prosecution.However,due to the novelty and complexity of the organizational liability theory,there are still big differences among supporters on the subjective liability of the unit,forming a situation where the model of combining subjective and objective,the compromise model and the objective imputation model compete,which has greatly hindered the process of compliance legislation.In view of this,this paper intends to make a comparison and analysis of the three models from a new perspective on the basis of clarifying the relevant concepts,with a view to doing its bit to eliminate the contradiction between the compliance reform and the principle of unit liability.Specifically,according to the logic of "concept clarification-model review-specific application",this paper can be divided into the following three chapters:The first chapter clarifies the origin,purpose and rules of the theory of organizational liability,and responds to some views.From the perspective of development,the birth of the theory of organizational liability is inseparable from the increasingly complex organizational structure of corporate with the development of social economy.It is out of the need to correct the bad corporate culture and combat the chaos of "collective irresponsibility" that the scholar has created the theory of organizational liability based on organizational defects.In the theory of organizational liability,the liabilities of the unit and its members are separated from each other,which means that whether they are guilty or not,they will not affect each other and there is no need to prosecute together.In addition,the relationship of "unit=leading group with decision-making power" is not established,and the liability of the organization is neither a copy of identification principle,nor can it be mixed with the identification principle.The second chapter re-examines the three models on the basis of criticizing the existing ideas.At present,there is an obvious feature in the academic circle on the mode selection of organizational liability,that is,whether the will of the unit is the key to the mode selection.But this approach is not reasonable,because from the perspective of the history of theory,the existence of the will of the unit is not only an unsolvable problem,but also a useless problem.It does not have the important value expected by the academic community,but rather has the risk of introducing endless philosophical debate.In fact,based on the nature of punishing crimes and protecting the people in criminal law,we should examine the three models from the perspective of the systematic nature of theory,the operability of practice and the restraining of criminal law.After the review,the author found that the objective imputation model caused a series of judicial application problems because it abandoned the subjective component;The compromise model not only causes the same problems,but also conflicts in theoretical logic.Therefore,in the existing criminal law,the model of combining subjective and objective is still the best choice.The third chapter discusses the elements of unit crime under the model of the combining of subjective and objective.Objectively,the criminal acts committed by the members in the business activities can be regarded as the criminal acts of the unit only if there is a substantial causal relationship with the organizational defects.In the subjective aspect,the unit still needs to have the subjective guilt required by the specific crime.Among them,the unit’s intention can be inferred through the unit’s decision,other inherent factors,and the subjective will of the supervisor;The criteria of the unit negligence is different depending on the situation-in general,it should be judged by the general unit standard theory,but in the case that the unit has an organizational management system and the members commit crimes on their own,it should be judged by the fraudulent avoidance theory.