On The Determination Of The Will Of The Unit In Unit Crimes

Through the study of jurisprudence and the relevant theories on the will of units in civil and commercial law,combined with adjudication cases in judicial practice,when determining the will of units in unit crimes,two types of rules for determining the will of units with "property" as the core and rules for determining the will of units with "governance structure" as the core can be established.At present,the determination of the will of the unit in China’s judicial practice is often judged by the legal provisions on the presumption of the establishment of the unit’s crime,such as combining factors such as "the interests of the unit" and "the attribution of illegal gains" to infer whether the criminal act is controlled by the will of the unit.However,with the development of the socialist market economy,the diversification of unit types and the scale of the unit structure,the difficulty in determining the criminal acts of the unit focuses on the separation of the criminal responsibility of the unit and the members of the unit,and the existing rules for determining the will of the unit cannot solve this problem.In view of this,the concept of unit will is first sorted out and analyzed,and through the "legal person organization theory" proposed by the French scholar Michel,the separability of organizational will and organizational will is emphasized,which provides a new idea for the identification of unit will.Secondly,the theory and practice of the current situation of the unit will determination rules are deconstructed,and the "structural legal person responsibility theory" is advocated to provide support for the construction of new recognition rules for the will of the unit.Thirdly,from the aspects of legal provisions and practical needs,the shortcomings of the current rules for determining the will of the unit are analyzed,and the disadvantages of adopting the alternative responsibility model in the determination of the will of the unit and the practical problem of the current determination of the will of the unit are to distinguish the responsibilities of the unit and the members of the unit.Finally,taking the "theory of structural legal person liability" as the theoretical basis,and by referring to the relevant provisions of the Civil and Commercial Law on the "separation of legal person ownership and management rights",the rules for determining the will of units under the two modes of external liability and internal responsibility are constructed.When the unit needs to bear external responsibility as a whole,based on the understanding that "the premise of the establishment of the unit is to have independent property",the rule of determining the will of the unit with "property" as the core is used to determine whether there is a possibility of the will of the unit;When it comes to the division of will within the unit,adopt the rules for determining the will of the unit with the "governance structure" as the core,and distinguish the will of the unit from the will of the members of the unit by examining whether the "governance structure" of the unit is perfect,according to the probability of criminal acts occurring under the same conditions and the "attitude" towards criminal acts in the "governance structure"(inferring whether the unit supports,condones or opposes the occurrence of criminal acts through objective factors such as unit structure and regulations).