试论单位犯罪的主客观要件问题——借鉴英国刑法中法人过失杀人罪的判例

界定单位犯罪行为的标准,除了考虑由法定代表人或决策机构人员集体决定,体现单位意志或在单位意志支配下,为单位谋取利益等特征外,还应考虑由于单位自身的缺陷等因素,其他普通工作人员过失造成危害社会的结果的情形.单位犯罪的罪过形式不仅可由故意构成,也可由过失构成,且过失可分为非获利性过失和获利性过失,特定的过失和非特定的过失两类.对此,应在刑法总则中有所规定.另外,应在一些危害公共安全的犯罪中增设单位过失犯罪的条款.

On the Subjective and Objective Requisites to Constitute a Unit Crime

We should take the following requisites into consideration when deciding an act of unit crime: whether the act is decided by the representative of a legal person or executive staff, showing the unit's will and making a profit for it; whether the other working staff's negligent acts against society are caused by defects of the unit itself. A unit crime is constructed not only by intention but also by negligence which can be divided into non-profit making and profit making or definite and indefinite negligence. Hence these issues should be stipulated in the general part of Criminal Law and some clauses about unit negligence crime should be added to the provisions of crimes against public security