单位犯罪责任人员之认定

On Determination of the Person Being Directly Responsible for Crime Committed by A Unit

单位犯罪中认定责任人员的意义仅限于确定单位犯罪中责任主体的范围,而不是在确定责任人员的同时确定其责任大小。单位犯罪不必然存在共同犯罪,在责任人员为一人或者单位犯罪为过失犯罪时不成立共同犯罪。常态下的单位犯罪,数个单位职员之间不存在共同意思,单位行为并非数人之间的协力行为,因而欠缺共同犯罪实质条件而不成立共同犯罪。单位犯罪的根源在于"逐利",因而实现单位利益的人员即为责任人员,包括实现单位利益的支配者和加功者两种类型。单位犯罪中存在犯罪因果流程与惯常业务流程的差异。在单位犯罪的支配者利用单位惯常业务流程实现支配单位犯罪因果流程的情形下,基于单位惯常业务合意支配下的业务人员不是基于共同意志支配下的业务人员,不应作为单位犯罪的责任人员。

The determination of the person being directly responsible for a crime committed by a unit is to limit the scope of subject( s) who should be punished,not to determine the degree of punishment. The unit crime is not necessarily be regarded as joint crime. When there is only one person who is responsible for the crime,or when the crime the very unit involved is a negligent crime,there is no joint crime. Under normal condition,there is no agreement among several employees,and the action committed by the unit is not equal to action of joint efforts of several persons,so there is no joint crime due to the lack of substantive conditions. The purpose of a crime committed by a unit is for benefit,so the person who realizes benefits of the unit is the person responsible,which can be divided into two types: dominator and assistant. In the crime committed by a unit,there are differences between the criminal action-result causation process and the normal business operation process. When the dominator takes advantage of the normal business operation process to realize his domination of the criminal action-result causation process,the employees dominated by the consensus on the normal business operation cannot be regarded as the person being responsible for the unit crime.