单位犯罪的刑事政策意涵

The criminal law policy meaning of corporate crimes

近年以来,单位犯罪问题在我国日益严重,但在司法实践中,将成立单位犯罪作为减轻自然人刑罚的理由甚至辩护理由,这就走上了相反的道路。从英美法系较为成熟的法人犯罪理论来看,法人责任的根据主要有"原生责任说"与"次生责任说"两种模式。我国的单位犯罪理论正是基于"次生责任说"的固有观念,存在许多问题。应当采用"原生责任说"的认定模式,独立考察单位犯罪与自然人犯罪。因此,对于自然人犯罪与单位犯罪无须严格区分,既成立单位犯罪又成立自然人犯罪的,自然人应适用更重的刑罚。单位实施非单位犯罪的,处罚相关自然人。在自然人与单位都可作为某一罪名主体的情形下,在定罪和量刑标准上单位犯罪应当与自然人犯罪一视同仁。

For the past few years, corporate crimes are getting more and more serious. But in the judicial practice, corporate crimes seem as the reason of reducing the responsibility of human, even as the defense, which goes to the wrong way. From the mature theory about corporate crimes in Anglo-American Legal System,there are two modes of defining the responsibility of corporate crimes：the mode of primary respon- sibility and the mode of secondary responsibility. The theory of corporate crimes in China adopts the mode of secondary responsibility and causes lots of problems. We should take the mode of primary responsibility and consider the responsibility of the corporation and human separately. Therefore, there is no need to di- vide corporate crimes and crimes conducted by human. In the situation which corporate crimes and crimes conducted by human are both met, specific person is punished according to the serious punishment. When the corporation conducts the act which can only be conducted by human, specific people ought to be punished. When the crime can be conducted by both human and corporation,the standard and penalty should be treated the same.