The Cognizance Of Unit’s Criminal Will

The cognizance of unite crime will is more controversial in judicial practice and in criminal law theory.The core of the establishment of the unit crime lies in the cognizance of the unit crime will.From the viewpoint of cases in judicial practice,the cognizance of the unit’s crime will is one of the main points of contention in unit crime cases,which directly affects the boundary between unit crime and natural person crime.The following three main problems exist in judicial practice regarding the cognizance of unite crime will:First,the understanding of the “totality” of the essential characteristics of the criminal will of unit is inconsistent,and there are differenr understandings such as “the proceeds of the crime go to the individual”,“whether or not the proceeds of the crime go to the individual”,and “whether or not the proceeds of the crime go to the individual and whether or not the proceeds of the crime go to the decision making process”.The second is the lack of reasoning in the inspection documents and the court’s judgment documents,Generally,“the facts of the unit criminal will is unclear,insufficient evidence,does not meet the conditions for prosecution”,“embodies the unit criminal will,belongs to the unit crime”,“can not embody the unit criminal will” as a model for simple reasoning;Third,the unit criminal will and the natural person criminal will is difficult to clarify,resulting in the public prosecution,trial,defense of the three parties in the criminal act is committed by the unit criminal will,or by the natural person criminal will dominated by the existence of a large dispute;Fourth,prior compliance in the unit criminal will to determine the legitimacy of doubt.The existence of prior compliance management system or compliance plan before the unit crime can be used as a deterrent to the unit criminal will,there is no clear provision in the legal norms,and may violate the principle of equality in criminal law.There are four main reasons for the above problems: first,the absence of the concept of unit crime;second,the unclear theoretical basis of criminal responsibility of unit crime;third,the status of the subject of unit crime is not equivalent to that of the subject of natural person crime;fourth,there is a criminal law doctrinal dilemma in the compliance reform of the enterprises involved.On the normative position,The unit criminal will has gone through a stage from the negative theory to the affirmative theory.On the basis of recognizing the unit criminal will,the existence of the criminal will of the unit should be affirmed,and then the composition of the criminal will of the unit should be analyzed.and the unit criminal will consists of two parts,one part is the natural person criminal will,and the other part is the unit’s own inherent will.Based on the special way of forming and realizing the criminal will of the unit,the essential characteristics of the criminal will of the unit are wholeness,procedural and independence.Among the “integrity” of the determination,the decision should be the totality of the business,the scope of the whole,as well as the overall interests of the comprehensive judgment.Unit criminal will is different from the natural person’s “will factor”,The difference is mainly manifested in two points: first,the unit criminal will exists in the unit intentional crime and unit negligence crime,rather than only in the unit intentional crime;Second,the determination of the unit criminal will is the basis of whether the subjective aspect of the unit subject can be established,while the determination of the natural person’s will factor is only a judgment on the form of the natural person’s guilt.There are five main methods of determining the will of a unit to commit a crime,namely,“in the name of the unit”,“for the benefit of the unit”,“the decision of the decision-making body or the person in charge”,“the decision of the general employees of the unit within the scope of their business”,and “in the name of the unit and the illegal proceeds belong to the unit”said,the “unit of general practitioners in the scope of their business decisions” said,“in the name of the unit and the illegal proceeds to the unit” said.The above-mentioned methods of determining the will of the unit to commit a crime have a limited scope,lack of formation and realization of the will of the unit to commit a crime,and the determination of the will of the unit to commit a crime is one-sided,and cannot solve the new problems presented by the unit to commit a crime,so it cannot fit with the determination of the unit to commit a crime nowadays.The determination of the unit’s criminal will should be “decided by the decision-making body or the person in charge” and “within the scope of the unit’s business”.This method is theoretically and practically justified.It not only takes the will of natural persons such as internal members and decision makers as the content of the determination of the unit’s criminal will,but also takes into account the unit’s own inherent will.When using “by decision of the decision-making body or the person in charge” and“within the scope of the unit’s business” as the method of determining the will of the unit to commit a crime,the “directly responsible persons in charge” and “other directly responsible persons” should be identified.The “other directly responsible persons”should be identified,and the “direct responsibility” should be specifically analyzed,and then the “by decision of the decision-making body or the person in charge” and “within the scope of the unit’s business” should be considered.In addition,the “within the scope of the unit’s business” is determined.In addition,prior compliance is not justified in the determination of the unit’s criminal will.This is mainly reflected in two points: first,the lack of legal justification for prior compliance.The existing criminal legislation does not provide that the existence of a prior compliance management system can block the establishment of the unit’s criminal will.Second,prior compliance lacks the legitimacy of purpose.First,the recognition of prior compliance can block unit crime is a violation of the principle of equality of criminal law;second,in recognition of prior compliance can block the establishment of the will to commit a crime,the relevant natural persons do not bear criminal responsibility because the unit does not constitute a crime,which is not in line with the criminal law principle of proportionality between crime and punishment.