【作者】 徐启明；

【导师】 李洁；

【作者基本信息】 吉林大学 ， 刑法学， 2010， 博士

【摘要】 法人刑事责任已为各国立法所承认,但理论聚讼仍不绝于耳。从对欧美各国法人刑事责任理论和制度实践的考察看,以自然人刑事责任原理为基础的替代责任原则是理解和追究法人刑事责任的基本原则,从自然人与法人的关系出发,协调法人刑事责任与个人责任主义是现有法人刑事责任研究的基本立场,我国的单位犯罪理论和实践较欧美各国更为保守,从刑法典和司法解释的规定来看,单位犯罪实为自然人犯罪的特殊形态。对法人刑事责任的研究首先应区分事实学与规范学的不同研究范畴,通过法人犯罪学的研究为法人刑事责任研究提供科学基础,法人犯罪学研究的缺位造成了法人刑事责任研究中事实与规范的混淆。从规范的角度出发,使刑法回归刑事责任法的本质,回归于对规范逻辑和目的理性的关注。从法人人格与刑事责任性质的关系中,从法人本质与法人刑事责任的结构中寻求法人与刑事责任合乎规范逻辑的契合性,通过法人价值与刑事责任目的的契合实现法人刑事责任的目的理性,最终成立法人刑事责任的法理基础。更多还原

【Abstract】 Corporation criminal liability already has been admitted that by every country legislation , reasons with but getting together disputing to linger in self’s ears still. Now available theory is behind practice development, difficult to escape from magic figure suspicion of responding to theory, theory guide and logicality of should have uses up loss. Investigate its cause, philosophy basis and standard purpose, fact logic and deontic logic confound. Therefore, be just going to restore theory quality of should have believing practice development provides the knowledge strength, cleans up above-mentioned complication necessarily, from criminal liability carries out valuation on the corporation on the norm.From China-foreign corporation criminal liability legislation, take that the natural man commits a crime as basis , take that corporation criminal liability is legislation pattern of belonging to as convention, theory often fits that replacing responsibility, there be development of organization responsibility theory , inspect but whose fundamental logic , all surpassing with corporation analogy natural man , structuring right of corporation will , behavior. Now available science of criminal law theory is built on being natural man reason philosophy basis, have the living things entity to be looked after directly with system practice and value purpose because of the natural man, therefore, that the fact judges and norm the purpose distinguished, apply to on this account a corporation, is possibility of uninterrupted corporation criminal liability except analogy natural man in science of criminal law theory of taking natural man as standard.Corporation criminal liability is a norm problem, but is not a question of fact. The corporation originates from civil law but is over in civil law in the norm on that, the fundamental law body of being indeed to stand side by side with the natural man, the qualification , law ability being that the norm closes purpose result of choosing , structure has nothing to do with fact of standardizing in the front , also not determine by criminal law; On criminal liability as law result , responsibility body , subjective condemning, valuation of all being take standard value purpose as basis, the factor has no positive connection with natural man fact , jointly falls therefore, in commanding realizing standard value purpose, the corporation and criminal liability can completely agreement. The theory benefiting from corporation nature discussion; by the agency structure we can make a good explanation about various corporation criminal liability problems.Sutherland’s research on white-collar crime and Clinard and Yeager’s study on corporate crime, the conscious use of a sociological research method, through social surveys and statistical analysis, the use the analysis of principal - environment variable model, corporate crime, and criminological characteristics of a scientific analysis. Criminological research in China have almost disappeared, the only research is too abstract, so that the relationship between facts and norms become blurred, the loss of the creative theory of corporate criminal liability. Therefore, we advocate the use of active conscious sociological research methods of corporate crime, through the development of corporate crime, fact return to study areas of crime, to provide scientific basis for corporate criminal liability.Europe and the United States for the criminal liability of legal persons is a natural-based. The unit criminal theory and practice Compare of Europe and America more conservative, from the criminal code and judicial interpretation of the rules in China, unit crime is the special pattern of person crime, combined with China’s strict concept of crime and penalty, it is difficult to find a legal basis for punishment unit. Investigation by the Criminal Law Amendment, we find that although the theory is not ready, but should the needs of practice, legislation has been on the criminal responsibility of legal persons to take a more relaxed attitude to the scope of corporate criminal ,charges in the expansion of the system has become double punishment, but justice is still to natural attitude towards crime unit special form of crime, can be said that China’s system of practice and application of alternative liability theory in Europe, the United States and France is still a considerable distance, let alone find the legal basis of corporate criminal liability.Return to the basic science standpoint standard of corporate criminal liability, legal subject and as a general legal concept as the core of criminal law fit of criminal responsibility is the legal basis of corporate criminal liability. First of all, natural character should be excluded in fact, benchmarking the identity and philosophy of the main limitations of the theory of criminal, legal distinction between the facts than the natural factors and the specification has the advantage of factors, corporate body from the sense of personality as a social entity people attribute supernatural, but the legal sense of the personality from the legislative purpose and the selection and construction, and as a legal consequence, the qualification and the subjective nature of criminal responsibility may be responsible for all legal personality does not exist with the original sense of the contradictions, they meet the objective requirements of the fully rational integration. Specifically, from the legal nature of theory, we learn from fiction that the structure of corporate criminal liability as a recognized methodology, from the legal persons both internal and external relations, from both inside and outside the structure of responsibility for understanding the norms of corporate criminal liability structure, corporate criminal liability is not attached to a natural person, do not have to study the behavior of natural persons and will, and there is no legal concept of negligence, but the criminal law obligations and sanctions arising from the inevitable result attributable to natural persons only is the obligation of the destroyer, the relationship between natural and legal persons is not the fact that the premise of corporate criminal liability, corporate criminal liability only for understanding the internal and external structure of methodology. Finally, liability and sanctions from the multi-purpose starting in the corporate social conditions, the value for human values of freedom and social rights protection, relief and prevention purposes in the integration, the legal and criminal liability can be achieved in line with standard logic and purpose of the rational fit.更多还原