论单位犯罪的形态结构--兼论单位与单位成员责任分离论

On the Formal Structure of Unit Crime

现行单位刑事责任的立法规定是以单位犯罪是一个犯罪行为为理论前提的,因而存在诸多理不断、剪还乱的理论死结。为此,有必要重新审视单位犯罪的形态结构,理顺犯罪单位与犯罪单位成员之间的罪责关系。通常所说的"单位犯罪"实是一种特殊的犯罪聚合体,具体包括两个犯罪行为:一个是客观实在的由单位成员实施的自然人犯罪;另一个是法律拟制的单位犯罪。即源初意义上的"单位犯罪"。这两个犯罪行为因"为单位谋利"的单位成员行为在法律评价上的双重性而被立法者人为地聚合在一起,但单位责任和单位成员责任在构成和追诉上应当是各自独立和分离的,二者并不牵涉或互为前提。

The current law on corporate criminal liabilities is based on the premise that corporate crime is one offence, which gives birth to many inextricable theoretic knots. Hence, it is essential to re - examine the structural pattern of corporate crime and distribute the liabilities properly between the guilty corporation and its executives. In fact the said term ＂corporate crime＂, is a special combination of offences. It includes two types of offences ： one is a substantial offence committed by corporate executives, while the other an artificial offence drawn up by legislators, namely the original meaning of corporate crime. Because of ＂strive for benefit for corporation＂, the executives＇ behavior can be evaluated dually under the law. Thus it is reasonable to combine the two types of offences. But the liabilities of guilty corporation and its executives are mutually exclusive and separate, neither interdependent nor substitutive. Therefore, prosecutors should charge corporation or its executives with a particular offence respectively.