【作者】 吴晓霏；

【导师】 张旭；

【作者基本信息】 吉林大学 ， 刑法学， 2011， 博士

【摘要】 法人犯罪在我国刑法中被称之为单位犯罪,是社会经济发展的必然产物,是法人的一种反社会的行为。法人犯罪理论的出现与发展,对于传统刑法学理论产生了巨大的冲击。众所周知,法人是作为民事主体被创立的,法人被赋予了法律上的人格与自然人一同成为了法律上的主体从而进入了现实世界,法人自诞生伊始便在民商事活动领域中扮演着极为重要的角色。而立法者围绕着法人所形成和建立起来的一系列法律制度在民商事法律体系中占据着特别重要的位置。法人作为民事法律关系的主体之一在日常的经济生活中发挥着十分重大的作用,并且扮演着自然人无法比拟的重要角色。但是在很长的一段时期内,法人一直游离于刑法的规制范围之外。法人不能成为犯罪主体,是刑法学一脉相承的定论。而这个定论的源头则是古罗马法中所奉行的“社团不能犯罪”原则。这一原则经过了数千年的传承,在人们的思维中已是根深蒂固。而现阶段我们所研究的法人犯罪则是相对于自然人犯罪而言之的,它在借助现代民法理论和依托刑事法律基础上建构了自己完整的体系与原理。法人犯罪同自然人犯罪一样,有着相对独立的空间和特定的范畴,且其本身也同样是一种十分复杂的社会与法律现象。现代意义上的法人制度在我国形成较晚。解放后,由于长期实行高度集中统一的计划经济,忽视市场机制的作用,因而在一定程度上影响并限制了法人制度的进步与发展。改革开放以后,随着市场经济体制改革的不断深入,法人制度在我国亦得到了长足的发展。与此同时法人本身也在经济发展的大舞台上扮演着越来越重要的角色,发挥着越来越大的不可替代的作用。而在改革的过程中,传统的民商事法律因不能完全的应对新型经济所带来的问题与矛盾从而催生了经济行政法的产生。但经济行政法并不能对复杂多变的法人犯罪予以有效地遏止和制约。在面对着愈演愈烈而且被害程度连年递增的法人犯罪的实际情况之下,传统的依靠行政法律或民商事强制措施对法人的违法活动进行干预和遏制的方法已经收效甚微。在这种状况下,催生了关于法人犯罪的刑事立法,国家通过制定刑法规范来对愈演愈烈的法人犯罪予以遏制和制约。随着现行刑法的颁布与实施,法人犯罪刑事责任被通过刑事立法的方式予以确认,这使得之前被刑法学界所争议的法人犯罪的肯定与否定之争被盖棺定论。然而,对我国现行的关于法人犯罪刑事责任的刑事立法予以审视,我们不难发现其中还有很多问题没有被厘清,并且有关法人刑事责任和法人刑罚的基础理论问题依然为学界所热议。本文在此立法背景与理论研究背景之下,就法人犯罪的基础理论问题通过比较国外相关立法与理论研究成果以及对于我国现行刑法关于法人犯罪刑事责任的系统研究,提出对于我国刑法中有关法人犯罪的立法完善建议,以期对改变我国刑法中关于法人犯罪刑事责任贫瘠的立法现状有所裨益。全文共分为4个部分。第一部分,笔者概括性的分析了自上世纪90年代以来法人刑事责任发展的新趋势。笔者通过对法人刑事责任在国际上与各个国家国内刑事法律规范的发展轨迹中看出:法人犯罪刑事责任已经被全球化的认同,其已经到达了全面发展的时期。同时,通过对其他国家尤其是英美法系国家的立法分析与司法实践的研究得出结论,依法追究法人刑事责任的范围在不断扩大。第二部分,笔者对于英美法系和大陆法系具有代表性的国家的法人犯罪刑事责任的立法现状以及刑法理论中的相关学说予以比较和评析。通过上述的比较与评析,笔者得出结论:英美法系国家的法人犯罪刑事责任的适用范围正在逐步的扩展,而且其法人刑事责任理论的发展也呈现出多样化的发展态势,新的理论学说正在被立法者所采用且在司法实践中发挥重要的作用;较之英美法系国家,大陆法系国家由于深受传统的个人责任的刑法理念之束缚,法人犯罪刑事责任无论是从立法上还是从理论研究上均发展缓慢,其中有一部分国家从立法看根本不承认法人犯罪,在有限的承认法人犯罪的国家里,其刑事责任的范围也凸显狭隘。在大陆法系国家里,法国的法人犯罪刑罚体系建构很具新意,而日本的法人犯罪刑事责任理论研究则颇具特色。第三部分,本文通过对我国法人犯罪刑事责任的立法现状以及理论研究现状进行了全面的考察。首先,本文先回顾了我国确认法人犯罪刑事责任以及法人犯罪刑事责任的法典化历程;其次,笔者对我国现行刑法关于法人犯罪刑事责任立法状况以及立法特点进行了梳理与归纳。再次,笔者对于刑法理论研究中的笔者对法人犯罪的概念、主体、分类以及法人犯罪刑事责任理论作了相关的研究。第四部分,通过对于我国立法以及理论研究现状的考察,发现了我国有关法人犯罪刑事责任的立法以及理论研究中存在的一系列问题:诸如法人犯罪刑事责任的内涵与外延的问题以及刑事责任的构造等理论问题与法人犯罪的立法模式与刑罚设定以及与现有的自然人刑罚体系矛盾等问题。针对于上述问题,本文尝试着提出了对于我国法人犯罪刑事责任的立法完善构想。首先,应明晰刑法典中关于法人犯罪的概念界定,刑法放弃了法人犯罪的立法定义权显然是不当的;其次,对于法人犯罪刑事责任的立法模式问题,笔者认为应在现在有的以双罚制为主单罚制为辅的立法模式下予以修改;再次,笔者就自然人犯罪与法人犯罪刑事责任一体化的问题提出了自己的设想;最后,关于法人犯罪与自然人犯罪刑罚体系矛盾的问题,本文通过对于外国法人犯罪刑罚方法和体系的分析,提出了建构独立的法人刑罚体系的构想。如果该构想得以实现,刑法就完成了从个人责任为基础的刑法向个人责任与整体责任为基础的刑法之转变,而这种重大的转变将会使我国刑法与刑法理论迈向更高的阶梯。更多还原

【Abstract】 Corporation crime is also known as the unit crime in our country’s criminal law and it is the inevitable result of the social and economic development and a kind of antisocial action taken by a corporate body. The emergence and development of corporation crime theory is a huge impact on the traditional criminal law theories. It is known to us that legal person is established as the civil subject and the legal person is endowed with the legal personality and becomes the legal subject together with the natural person and thus enters the real world. Since its birth, the legal person has played an extremely important role in the civil and commercial activities. A series of legal systems formed and established by the legislators on the legal person occupy a particularly important position in the system of civil laws and commercial laws. The important role played by the legal person as a subject of the civil legal relationship in the daily economic life is incomparable to the role of the natural person. However, the legal person has been divorced from the regulation scope of the criminal law for quite a long period of time. It has been a final verdict which comes down in one continuous line in the science of criminal law that the legal person cannot become the subject of crime. And, the origin of this final verdict is the principle of“organization cannot commit a crime”pursued by the ancient Roman law. This principle, after being passed down from one generation to another for thousands of years, has been deeply rooted in people’s mind. Nevertheless, at present, the corporation crime we study is relative to the crime by a natural person and it has constructed its own complete system and principles with the help of the modern civil law theories and by relying on the fundamentals of the criminal law. Similar to the crime by a natural person, the corporation crime also has the relatively independent space and the specific category and the corporation crime itself is a kind of complicated social and legal phenomenon.The legal person system in the modern sense came into being quite late in our country. After liberation, since the highly centralized planned economy has been implemented for a long time and the role of the market mechanism has been ignored, the progress and development of the legal person system has been influenced and restricted to some extent. After the reform and opening-up, with the continuous deepening of the reform of the market economic system, the legal person system in our countries has developed by leaps and bounds. At the same time, the legal person itself plays a more and more important role in the arena of the economic development and its role is irreplaceable. In the process of reform, because the traditional civil laws and commercial laws cannot completely solve the problems and contradictions brought by the newly-formed economy, the economic administrative law came into being. However, the economic administrative law cannot effectively hold back and restrict the complex and volatile corporation crimes. Facing the actual situation that the corporation crimes are becoming increasingly fierce and the damages caused by the corporation crimes are increased year by year, the traditional ways to intervene and suppress the illegal acts taken by a legal person by depending on the administrative laws or the civil and commercial coercive measures have few effects. On that condition, the criminal legislation on the corporation crime came into being and our country has begun to suppress and restrict the increasingly fierce corporation crimes by formulating the rules of criminal law. As the current criminal law is issued and enforced, the criminal responsibility for a corporation crime is confirmed by means of the criminal legislation, which provides a final judgment for the disputes on the affirmation and negation of corporation crime in the field of criminal law. However, inspecting the current criminal legislation on the criminal responsibilities for a corporation crime in our country, it is not difficult to find that there are some problems that need to be clarified and the basic theoretical issues about the criminal responsibilities and criminal punishment of a legal person are still the hot topics in the academic world. Under this legislation background and theoretical research background, this thesis studies the basic theoretical issues about the corporation crime by comparing the related legislations and the theoretical research achievements at abroad with the domestic systemic researches on the criminal responsibilities for a corporation crime regulated by our country’s current criminal law, and then it puts forward the suggestions for perfecting the legislations about the corporation crime in our country’s criminal law, hoping to bring help to change the poor legislation on the criminal responsibilities for the corporation crime in our country’s criminal law. This thesis consists of four parts.In part one, the author briefly analyzes the new development trends of legal person’s criminal responsibility since the 1990s. From the development track of legal person’s criminal responsibility in the international legal norms and in the domestic criminal legal norms of every country in the world, the author finds that the criminal responsibility of a corporation crime has been acknowledged globally and it has stepped into the all-around development stage. Meanwhile, by analyzing the legislations in other countries especially in Britain and America and studying the judicial practice in these countries, it is concluded that the scope to investigate legal person’s criminal responsibilities according to law is continuously enlarged.In part two, the author compares, evaluates, and analyzes the present situation of legislations on the criminal responsibility for corporation crime and the related theories of criminal law in the representative countries of the Anglo-American legal system and the continental legal system. From the comparison, evaluation, and analysis above, the author draws a conclusion that the scope of application of the criminal responsibility for corporation crime in the countries which belongs to the Anglo-American legal system is gradually enlarged, the theoretical development of legal person’s criminal responsibility in those countries presents the trend of diversified development, and the new theories are adopted by the legislators and play an important part in the judicial practice; compared with the countries of the Anglo-American legal system, the countries of the continental legal system are deeply restricted by the traditional criminal concept of personal liability, so both the legislations on the criminal responsibility for corporation crime and the theoretical researches on the criminal responsibility for corporation crime develop slowly; and, some countries don’t acknowledge the corporation crime from legislation at all; in the limited countries that acknowledge the corporation crime, the scope of criminal responsibility in these countries is relatively narrow. In the countries which belong to the continental legal system, the criminal penalty system of corporation crime in France is innovative and the theoretical researches on the criminal responsibility for corporation crime in Japan are quite distinctive.In part three, the author makes an all-around investigation of the present situation of legislations on the criminal responsibility for corporation crime and the present situation of theoretical researches in our country. Firstly, the author reviews the process in which our country acknowledges the criminal responsibility for corporation crime and the codification process of the criminal responsibility for corporation crime. Secondly, the author classifies and summarizes the legislations on the criminal responsibility for corporation crime in our country’s current criminal law and the legislative features. Thirdly, according to the previous theoretical researches on the criminal law, the author makes related researches on the concept, subject, and classification of corporation crime and the theories about the criminal responsibility for corporation crime.In part four, by investigating the present situation of legislations and theoretical researches in our country, the author finds a series of problems in our country’s legislations and theoretical researches on the criminal responsibility for corporation crime: such as the problem of the connotation and extension of the criminal responsibility for corporation crime, the theoretical problems about the composition of the criminal responsibility for corporation crime, the legislation modes and criminal penalty setting, and their contradictions with the existing criminal penalty system of natural person and so on. In view of the problems mentioned above, this thesis attempts to propose some suggestions to perfect our country’s legislations on the criminal responsibility for corporation crime. Firstly, we should make the definition of corporation crime in the criminal code clear and it is obviously improper that the criminal law gives up the right to legally define the corporation crime. Secondly, as for the legislation mode of the criminal responsibility for corporation crime, the author believes that we should make modifications under the legislation mode which is dominated by the double punishment system and supplemented by the single punishment principle. Thirdly, the author puts forward his own tentative plans for the integration of the criminal responsibilities for the crimes by a natural person and the corporation crimes. Finally, for the problem of the contradiction between the criminal penalty system of corporation crime and that of crime by a natural person, this thesis proposes the idea to construct the independent criminal penalty system of legal person by analyzing the criminal penalty methods and system of corporation crime in foreign countries. Only after solving these problems, can legal person’s criminal responsibilities be really realized.更多还原