单位犯罪的刑事责任基本问题探究

On the Basic Issues of Criminal Liability of Enterprise Crime

各国刑事立法及刑法理论逐渐承认单位犯罪概念,单位承担刑事责任的理论依据从个人责任向法人责任过渡。企业合规由经营管理策略衍生至刑事合规领域,成为影响单位刑事责任的重要因素之一。刑事合规的刑法理论依据主要表现为预防义务之履行与主观过错之减轻。我国单位犯罪在认定依据、处罚模式、刑罚标准等方面尚存疏漏。在刑事合规背景下,应要求企业履行监督义务,实行举证责任倒置,统一规定双罚制模式,增设刑罚种类。

The concept of enterprise crime is gradually recognized in criminal legislation and criminal law theories of various countries.The theoretical basis for enterprise to bear criminal responsibility has changed from the individual responsibility theory to the corporate one.Enterprise compliance plan is derived from business management strategy to the criminal compliance,which has become one of the important factors affecting the criminal responsibility of enterprise crime.The theoretical basis for criminal compliance is mainly manifested in the performance of the prevention duty and the mitigation of subjective fault.There are still some omissions in the judgement basis,punishment mode and punishment standards of enterprise crime in China.Under the background of criminal compliance,enterprises should be required to fulfill supervisory obligations,reverse the burden of proof,stipulate the double penalty system and add more types of penalties.