중국 단위범죄의 주체에 관한 연구

Abstract

China has introduced Unit Crime system in their law ever since amendment of Criminal Law in 1997. Unit Crime contrasts itself from misdeeds of individuals, defining its subject in border of corporation, enterprises, public institutions, national agencies, or organizations, which makes Unit Crime conferred within the scope of crime of legal personality. However, unlike the subject of crime of legal personality being restricted only to legal personality, Unit Crime has more comprehensive subject body that includes enterprises, public institutions, organizations or government agencies. Therefore, Chinese Unit Crime has their uniqueness differs strictly from Crime of legal personality in a range of subjects. Subject of Chinese Unit Crime has to be unit. The word Unit in this context is usually an extensive and abstract term that involves categories and individual subcategories of a specific national agency or public institutions. Although Chinese Criminal Law admits Unit Crime, all units cannot be comprised of the subject of Unit Crime, so Chinese Criminal Law limits its subject into corporations, enterprises, public institutions, national agencies, or organizations. However, such limitation does not fully clarify uncertainties about range of Unit Crimes. For example, because not only affiliating structure of an enterprises or organizations, but also various fields of them fall into category of unit, this still leaves question about the coverage of the limit. Summing up and Examining Chinese Provisions of Criminal Law, Judicial explanation, and Criminal Law theory, even if affiliations, branches, or national offices of enterprises or government agencies had right to make arbitrary decisions of their own and make profits of their own through operating business, they can be responsible for civil law, which in turn means they also can be subjects of Unit Crime. On the other hand, subjectivity of Unit Crime in relation between subsidiary company and parent company, and in exclusive investment company and foreign company could be raised as a problem. However, Chinese Criminal Law’s having the provisions of punishing national agency that is defined as Unit Crime is a noticeable difference from other countries’ cases. However, such provisions that recognize government agency as a subject to crime involves many flaws, so scholars insist for an amendment. Chinese Criminal Law had approved Unit Crime and widely acknowledged its subject, and it is understood as the best applications of specific social hierarchy and development of market economy system in the past. However, there were significant changes in both social and economic realm since the time of their adaptation, therefore Criminal Laws should be amended in regards to current status. Therefore, it seems appropriate to name Unit Crime to Crime of legal personality, to limit the subject into corporation, and to remove government agencies out from the subject of Unit Crime.