单位犯罪责任构造的反思与检讨

我国单位犯罪立法实行的是一种"严而不厉"的立法政策,但因对单位犯罪的形态结构存在误识,落于在一个犯罪行为的框架内寻求规制犯罪单位和犯罪单位成员刑事责任的窠臼,从而导致立法理念与司法实践的诸多矛盾与冲突。因此,有必要重识单位犯罪的形态结构。单位犯罪是一种特殊的犯罪聚合体,它包含两个犯罪:一个是单位成员犯罪,这是实在的犯罪;另一个是单位自身犯罪,这是拟制的犯罪。单位自身犯罪和单位成员犯罪之间密切联系,但是二者并非共同犯罪,而是独立的两个犯罪行为。既然单位犯罪是两个犯罪行为,那么单位与单位成员就是并列、独立的两个犯罪主体,其各自的刑事责任应相互分离。

Reconsideration of Distribution of Liabilities of Crime Committed by an Entity

The legislation providing that an entity may commit a crime and should be subject punishment bears a tinge of "rigidness but not severity." However,for a long time,while misunderstanding the structure of "entity crime," people have been seeking to determine liabilities born by the entity or the representatives thereof within the framework of one criminal act.Consequently,there appear many contradictions and conflicts both in legislative theories and judicial practice.Thus,it is urgent to reconsider the structure pattern of the crime committed by an entity.In deed,it contains two crimes:one perpetrated by the representatives of an entity which is physical while the other committed by the entity which is fictitious.The two crimes are closely linked but they are two criminal acts separate from each other and cannot be held an accomplice.As such,the entity and the representatives thereof are parallel and independent subjects of crime whose liabilities should be attributed to their respective acts.