法国企业负责人刑事责任机制述评

Commentary on French Criminal Responsibility Mechanism of Corporate Director

法国刑法中企业负责人承担刑事责任必须是由其雇员实施犯罪并且企业负责人具有过错。企业负责人的过错一般是疏忽大意或疏于监管。企业负责人包括法律上的负责人和事实上的负责人,两者应当共同承担刑事责任。事实上的负责人认定的关键在于其是否对企业的日常运作发挥持续影响。当然,若企业负责人有效地将其管理职能授权给他人,则得以免除刑事责任。法国企业负责人刑事责任机制对中国刑法中"实际控制人"的认定、"主管人员"责任的豁免以及单罚制单位犯罪的发展等方面具有借鉴意义。

The criminal liability of corporate director in French criminal law must be caused by a crime committed by its employee and the corporate director has personal fault. The fault of the corporate director is usually negligence or neglected supervision. The corporate director shall include corporate director de jure and corporate director de facto, and the two shall bear the criminal responsibility jointly. The key to identification of corporate director de facto is whether or not he/she exerts a lasting influence on the day-to-day operations of the business. If corporate director has effectively delegated its management functions to others, he/she should be exempted from criminal liability. The criminal responsibility mechanism of French corporate director has reference to the recognition of ＂actual controller＂, the exemption of ＂supervisor＂ liability and the development of single penalty system of the unit crime in Chinese criminal law.