(Jiang Yan * Song Wanning * *)
Abstract: Employment crime refers to a person who asks others to commit a specific crime for him on the condition of providing agreed remuneration. Because there is no explicit provision about employment crime in China's criminal law, and scholars have different views on the theory of criminal law, there is a great controversy about which one to apply to this kind of crime and how to convict and sentence it. This paper attempts to define and clarify the basic theoretical problems of employment crime by analyzing the concept and characteristics of employment crime.
Keywords: concept and characteristics of employment crime
Judging from the cases published by local judicial departments, duty crimes are on the rise, among which cases involving state public officials are nearly 1/3, such as the well-known case of Li, former secretary of the Pingdingshan Municipal Political and Legal Committee. This kind of crime is often carefully planned, with a high proportion of completed crimes and great concealment, which is often hidden by employers, making it more difficult to solve the case. In addition, China's criminal law does not clearly stipulate such crimes, which leads to disputes over the handling of such cases in judicial practice. Therefore, in order to better combat this kind of criminal participants, it is necessary to study mercenaries.
First, the concept of employment crime
To study employment crime, we must first make clear the meaning of employment crime. Only by establishing this dialogue platform can the research on hired criminals have the same language. At present, the criminal laws of various countries have not clearly defined what employees are. In our country, in the process of studying employment crime, scholars generally unconsciously involved in the content of employment crime, but did not systematically study employment crime. However, the definition of employment crime by these scholars has important reference significance for the correct definition of employment crime.
At present, the definition of employment crime mainly has the following expressions: (1) Employment crime refers to the behavior that one party asks the other party to commit a specific crime on the condition of providing remuneration [1]. (2) Employment crime refers to a form of crime in which both employers and employees reach an agreement, the employer provides a certain amount of remuneration, and the employees accept the remuneration and commit certain criminal acts for them [2]. (3) Employment crime is a crime based on money relationship, in which the employer pays off the employee and the employee commits it according to the employer's will. [3](4) Employment crime refers to a kind of * * same criminal form in which the employer and the employee reach an agreement on a certain crime in advance, stipulating that the employer will pay the remuneration beforehand or afterwards, and the employee will commit a certain criminal act for it. [4](5) The actor (employer) hires another person (employee) to commit a certain crime on the condition of providing a certain benefit, and the employee intentionally commits the crime alone or jointly with the employer according to the employer's crime in order to obtain the agreed benefit [5]. Some of the above scholars study employment crime from the perspective of criminal law, while others study employment crime from the perspective of criminology, resulting in inconsistent definitions. Based on the criminal law, this paper adopts the title of "hired criminal" to avoid confusion.
According to the Modern Chinese Dictionary, "employment" means that money makes people do things for themselves, such as hiring a nanny. "Employment" refers to the purchase of labor with money. Investigating the word "employment" from the legal sense is also limited to the civil law department or the labor law department. For example, Article 17 1 1 of the French Civil Code stipulates: "Employment refers to the lease of labor and services." Article 17 10 of the same law stipulates: "Labor leasing refers to a contract in which one party promises to complete a certain job for the other party and the other party pays the remuneration agreed by both parties." Only in modern times, the word "employment" was put into the criminal law department and linked to crime. Therefore, a correct understanding of "employment" in the sense of criminal law is the premise of defining employment crime. The author believes that "employment" in the sense of criminal law means that the actor (employer) provides agreed remuneration and asks others (employees) to commit specific crimes for him. From the appearance, it seems that the employer pays the remuneration and the laborer commits crimes for it, which is similar to the agency in the civil legal system, but they are two completely opposite behaviors. Because in the field of criminal law, "no one will be punished for the illegal acts of others", that is to say, no one will take responsibility for the illegal acts of others. Therefore, if employees commit crimes, they should also bear criminal responsibility, instead of passing it on to the employer.
Academic circles have different views on how to determine the remuneration. Some scholars believe that besides money, remuneration can also be benefits that can be measured by money, including property and intangible benefits, such as houses and debt relief. But it does not include non-property interests, such as job arrangement and job promotion. Some scholars believe that remuneration includes not only the above-mentioned property interests, but also non-property interests. The author tends to the first view that remuneration does not include non-property interests. According to the Modern Chinese Dictionary, remuneration refers to the money or kind paid to others for using their labor and articles. Obviously, this does not include non-property interests. Moreover, if non-property interests are included, it will obliterate the property nature embodied by hired criminals, which is difficult to distinguish from ordinary instigators.
In judicial practice, there is another situation that deserves our attention, that is, the funds for criminal activities (such as the cost of purchasing criminal tools, transportation costs, accommodation costs, etc.). ) is considered a reward. Some scholars think that these expenses are not remuneration. Some scholars believe that it is necessary to distinguish between situations: if the perpetrator provides funds for criminal activities after the victim actively commits the crime, it is not an employment crime, but the perpetrator is a helper; On the other hand, if the aided person is guilty because the perpetrator provides funds for criminal activities, it is an employment crime, because providing necessary funds for criminal activities can also be regarded as remuneration [22]. The author disagrees with the second view, because according to the general understanding, getting paid is getting benefits, and simply providing funds for criminal activities cannot make employees get "consideration" for their criminal behavior. The second view above holds that if the aided person is guilty because the perpetrator provides funds for criminal activities, it is just ordinary instigation, not employment.
Through the analysis of "employment" in the sense of criminal law, the author thinks that the so-called employee refers to a person who asks others to commit a specific crime for him on the condition of providing agreed remuneration.
Second, the characteristics of employment crime
(A) the characteristics of employment crime.
The so-called crime refers to the intentional or negligent psychological attitude of the actor to the harmful consequences of his behavior. For an employee, there must be intention to hire others to commit crimes, including direct intention and indirect intention, but not negligence. Article 14, paragraph 1 of China's criminal law stipulates: "It is a deliberate crime to know that one's actions will have harmful consequences to society, but to hope or let such consequences happen is a crime." It can be seen from this provision that criminal intent in China's criminal law includes two aspects: cognitive factors and will factors. Below, I will analyze the intention of the hired criminals from these two aspects.
1, cognitive factors of hiring criminals
In terms of cognitive factors, the employee must realize that he is committing the crime of hiring others, and at the same time realize that the employee's criminal behavior will cause serious harm to society. If the actor lacks basic cognitive factors, it does not constitute an employment crime.
2. The will of employees.
Scholars disagree on the factor of will. One view is that employment crime can constitute both direct intention and indirect intention, that is, the will factor can be "hope" and "laissez-faire". [24] Another view is that both employers and employees are directly intentional, that is, the will factor can only be "hope". [25] The author thinks that the first view is more appropriate, and the will factor of hiring criminals can be either "hope" or "laissez-faire". However, what deserves our attention is that, on the occasion of indirect intention, the actor carries out a certain behavior in pursuit of a certain purpose, allowing harmful results to occur. Only when the harmful result of the actor's laissez-faire has actually occurred, can the behavior carried out for a certain purpose be combined with the harmful result of laissez-faire and constitute an indirect intentional crime. If the harmful result of laissez-faire does not occur, indirect intentional crime cannot be identified. For example, employer A intends to hit someone with a car to hurt C. When he found C walking in the street with others, he knew that this action might hurt others, but in order to hurt C, he still ordered employee B to take action, resulting in many injuries. At this point, the employer A's injury to C is direct intention, while it is laissez-faire to others, which conforms to the will factor of indirect intention. If only C is injured, then Employer A is subjectively intentional. In addition, because only when the harmful result has occurred can it be shown that the actor indulges in this result, the will factor of the hired criminal can only be the "hope" of the employee when he does not commit the crime.
(B) the main characteristics of employment crimes
Judging from the subject of crime, both natural persons and units can set up employment criminals. Among them, the natural person subject needs to reach a certain age of criminal responsibility and have the corresponding criminal responsibility ability. According to the provisions of Article 30 of the Criminal Law, the main body of a unit should include companies, enterprises, institutions, organs and organizations. Combined with the Supreme People's Court1June 18, 1999, the "companies, enterprises and institutions" include both state-owned and collectively-owned companies, enterprises and institutions. However, if a company, enterprise or institution established by an individual for illegal and criminal activities commits a crime, or after the establishment of a company, enterprise or institution, its main activity is to commit a crime, it shall not be punished as a unit crime.
The question now is, in the case that the criminal subject can only be a natural person, what should the unit do if it hires others to carry out the act? For example, enterprise A and enterprise B produce similar products. Under the fierce competition, enterprise A is gradually at a disadvantage due to poor management. In order to eliminate this competitor, the person in charge of enterprise A decided to hire killer C to kill the legal representative of the other party after collective research. This kind of criminal behavior is decided by the unit for the benefit of the unit, and it must be a unit behavior. However, due to the crime of intentional homicide, the criminal law does not stipulate unit crime, so there will be a problem of how to deal with unit behavior. In a similar situation, the unit hires others to steal and so on.
According to Article 30 of China's Criminal Law: "Companies, enterprises, institutions, organs and organizations that commit acts that endanger society and are legally defined as unit crimes shall bear criminal responsibility." Therefore, whether a crime is a unit crime must be restricted by the explicit provisions of the criminal law, that is, according to the principle of legality, if the criminal law does not stipulate a unit crime, even if it is committed by a unit collectively, it cannot be called a unit crime. Because the criminal law does not stipulate that the unit can be the subject of intentional homicide and theft, it cannot be considered that the above-mentioned cases and similar cases belong to unit crimes, and of course the criminal responsibility of the unit cannot be investigated. However, can the directly responsible person in charge and other directly responsible personnel in the unit be investigated for criminal responsibility?
In this regard, there is a dispute between positive theory and negative theory in Chinese criminal law theory. Negation holds that if the law does not stipulate that a unit commits a crime, the criminal responsibility of the unit crime cannot be investigated, nor can the criminal responsibility of a natural person who commits a crime on behalf of the unit be investigated. For example, some scholars pointed out that "unit theft and personal theft are different in nature." In the case of unit theft, theft is a unit behavior, not an individual behavior, and the property stolen by the unit belongs to the unit rather than the individual. Therefore, this kind of unit theft should be punished as a unit crime. However, in the case that the criminal law does not stipulate that the unit can be the subject of theft, it is indeed suspected that the person in charge directly responsible for the unit and other directly responsible personnel are investigated for criminal responsibility for theft. However, criminal responsibility for such unit theft is not investigated according to law, and it is suspected of indulging in crime. Therefore, there are contradictions and conflicts between substantive rationality and formal rationality. We believe that under the condition that the principle of a legally prescribed punishment for a specified crime is established in our criminal law, formal rationality should become the main value pursuit of criminal law. Therefore, we tend to solve this problem by amending the criminal law and stipulating that the unit can become the subject of theft. Before the revision of the criminal law, starting from the strict principle of a legally prescribed punishment for a crime, it is not appropriate to directly investigate the criminal responsibility of the directly responsible person in charge and other directly responsible personnel of the unit for theft. "[26] affirmed that the significance of the legislator's stipulation of unit crime lies in whether to punish the unit. According to the current regulations, natural persons should be punished, because the criminal behavior of the unit is ultimately the activity of natural persons, and the punishment unit should also punish natural persons in the unit, and the unit should also punish natural persons if it does not punish natural persons. For example, some scholars pointed out: "According to the provisions of Article 30 of the Criminal Law, if the crime of theft or loan fraud is not stipulated in the Criminal Law as a unit crime, the criminal responsibility of the unit cannot be investigated. However, Article 30 of the Criminal Law does not prohibit the criminal responsibility of natural persons. According to other relevant provisions of the Criminal Law, if a natural person may become the subject of a crime, he shall be investigated for criminal responsibility. There are two situations to be distinguished here: first, when a unit is established to commit a crime and a double penalty system is implemented, the person in charge directly responsible for the unit and other directly responsible personnel bear criminal responsibility for the double penalty system; Second, in the case of not setting up a unit to commit a crime, the directly responsible person in charge and other directly responsible personnel of the unit shall bear criminal responsibility because their actions constitute a natural person crime. In the latter case, the directly responsible person in charge and other directly responsible personnel bear criminal responsibility because their actions conform to the constitution of the crime and have nothing to do with the unit crime. " [27]
The author tends to the latter point of view, that is, Article 30 of the Criminal Law stipulates under what circumstances a unit shall bear criminal responsibility, and only when it is prescribed by law shall a unit bear criminal responsibility, but it does not exclude that a natural person shall bear criminal responsibility in his personal capacity. Because:
First of all, Article 30 of the Criminal Law stipulates that the purpose of unit crime is only to investigate individual criminal responsibility and provide legal basis for investigating unit criminal responsibility. Denying that unit theft is a unit crime actually misinterprets the legitimacy of unit crime, because since the criminal law does not stipulate that the unit can be the subject of theft, it cannot be considered that unit theft belongs to unit crime. Since this kind of case is not a unit crime, of course, the criminal responsibility of the unit cannot be investigated, but the criminal responsibility of a natural person cannot be denied just because the criminal responsibility of the unit cannot be investigated.
Secondly, scholars who hold negative views also believe that the above-mentioned cases are acts committed by units for their illegal interests, rather than acts committed by natural persons for their illegal interests, so they do not meet the constitutive requirements of natural person crimes. This view is a misunderstanding of the nature of crime. Because the essence of crime is to infringe on the legal interests rather than the income of the perpetrator, no matter who owns or owns the interests of the perpetrator, the interests of the victim have been infringed, and it cannot be denied that the behavior is in line with the crime because it is not for the benefit of the perpetrator himself. If the person in charge and other persons directly responsible for the crime of the unit are not investigated for criminal responsibility of natural persons, the consequences will be unimaginable. The heads of some enterprises can kill, set fire to and rob at will for the benefit of their own units, which is intolerable.
Finally, the negative theory suggests that the solution to this problem is to amend the criminal law and stipulate that units can become the subject of related crimes before they can be investigated for criminal responsibility. As everyone knows, this method is not desirable. Because the criminal law of any country does not stipulate that all crimes can be constituted by units. In fact, the legislation of any country will not define a unit as the subject of crime because it can commit a collective crime, but should consider the relationship between unit crime and natural person crime and the effectiveness of punishment [28].
Therefore, in the case that the criminal law does not stipulate that the unit becomes a certain criminal subject, the criminal responsibility of the natural person must be investigated when the unit implements this criminal act. On July 8, 2002, the Supreme People's Procuratorate's "Reply on how to apply the law to the theft organized by the relevant personnel of the unit" clearly stipulated: "If the relevant personnel of the unit organize the theft for the benefit of the unit, if the circumstances are serious, the criminal responsibility of the directly responsible personnel shall be investigated for theft in accordance with Article 264 of the Criminal Law." This provision just supports the above assertion.
Having made this premise clear, we will discuss such a question: When the unit does not bear criminal responsibility, what conditions can be met to investigate the criminal responsibility of the person in charge of the unit and the person directly responsible? There are several views on this issue:
The first view is that for crimes that can be completed by both units and natural persons, such as theft and loan fraud, if the law does not stipulate unit crimes, individuals cannot bear criminal responsibility. Crimes that can only be completed by natural persons, such as murder and rape, are only investigated for personal responsibility even if they are decided by the unit collectively.
The second view is that all criminal acts involving the business activities of the unit are carried out for the benefit of the unit. If the law does not punish the unit, it is not appropriate to punish the natural person of the unit; However, if for the benefit of the unit, criminal acts such as theft, murder, drug trafficking, etc., which are not directly related to the economic activities of the unit, should be investigated for individual criminal responsibility.
Viewpoint 3 holds that some laws do not stipulate that crimes committed by units are committed in the name of units, regardless of their severity. If the behavior of the person who directly implements it completely conforms to the characteristics of natural person crime and reaches the level of punishment, it should be investigated; Do not meet, shall not be investigated [29].
Although the first viewpoint puts forward the division method, if we simply look at the characteristics of unit crime, whether it is murder, rape or crime for economic interests, the unit can implement it. Moreover, how to judge which crimes can be composed of units and natural persons at the same time, and which crimes can only be composed of natural persons, scholars have not put forward the standard of distinction. Viewpoint 2 also does not clearly explain what is the business activities involving the unit. In contrast, the author is still more inclined to view three. Because in the current situation of our country, the third view is still a feasible method. Because only from the theory of crime constitution can we clearly solve this problem, that is, if an individual's behavior completely conforms to a complete crime constitution, he will be investigated for personal responsibility, and if not, he will not be investigated.
Through the above analysis, when a unit hires others to commit a crime, if the law does not stipulate that the behavior is a unit crime, then it depends on whether the behavior of the directly responsible person in charge and other directly responsible personnel completely conforms to a complete crime constitution. If so, investigate, if not, don't investigate. For example, the unit hires a murderer. In this case, although the unit has made a decision, the behavior of the directly responsible person in charge or other directly responsible personnel completely conforms to a complete crime constitution, then his personal responsibility will be investigated.
(3) Behavioral characteristics of hired criminals
In terms of behavioral characteristics, the employee must have the behavior of hiring others to commit crimes, that is, the employer provides remuneration and asks others to commit specific crimes for him. Harmful behavior is manifested in two basic forms: action and omission, which is the general theory of modern criminal law [30]. What is the behavior of a hired criminal? Obviously, as a criminal, an employee can be established, which is the knowledge of the whole society. However, do employees commit crimes of omission? The author believes that the crime of omission cannot be established as an employment crime. Because the existence premise of the crime of omission is that the actor has the obligation to act, and the employee has no specific obligation to act before implementing the employment behavior. Therefore, the employment crime lacks the basis to constitute the crime of omission.
In addition, the behavior of hiring criminals will have complex characteristics, which we can't ignore. According to whether the employer participates in the crime, the hired criminals can be divided into pure hired criminals and impure hired criminals. The former means that the employer did not participate in the crime, but only carried out the act of expressing criminal intent and agreeing to entrust. This is a typical employment crime. The latter means that employers not only hire others, but also participate in crimes. There are two ways to participate in criminal activities: first, the employer has carried out non-executive acts other than the constitutive requirements, such as looking for victims and keeping watch for employees; The second is to participate in committing crimes. For example, in rape cases, in order to facilitate employees to commit rape, violence is used to eliminate the resistance of the victims. Therefore, we can't simply think that employers only provide remuneration and don't participate in specific criminal activities.
Employment crime involves all aspects of criminal law theory. This paper only makes a superficial analysis of the concept and characteristics of employment crime, hoping to arouse the interest of more criminal law colleagues and further study the theory of employment crime.
Precautions:
[1] Gong Minghui and Shen Ruqing: The Criminal Responsibility of Employers in Employment Crimes, published in the 7th edition of Legal Daily199665438+1October 25th.
[2] Wei Dong: "Talking about Employment Crimes", in Legal Daily1May 2, 996, 7th edition.
[3] Liu Wen: "Research on Duty Crimes", in "Politics and Law" 200 1 No.6, p. 27.
[4] Song: "On the Concept and Essence of Employment Crime", in Jurist, No.2, 2002, p. 76.
[5] Zhang Yong and Zhao Yongke: A New Probe into Duty Crimes, Journal of Henan Public Security College,No. 1 2003, p. 28.
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* Jiang Yan: Assistant Professor, Law School, Northeast Agricultural University.
* * Song Wanning: lawyer of Heilongjiang Langxin Law Firm.
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Zhang: A Preliminary Study on Public Officials' Duty Crimes, Journal of Management of Henan University of Political Science and Law, No.5, No.200 106.
[3] Chen Xingliang: "* * * on the same crime", China Social Sciences Press, 1992 edition, 1 edition, p. 484.
[4] Liu's On Tang Law (General School), Law Press, 1999, 1, pp. 356, 479, 507 and 587.
[4] Liu's On Tang Law (General School), Law Press, 1999, 1, pp. 356, 479, 507 and 587.
[18] Liu: Some Issues on Duty Crimes, Journal of National Prosecutor College, No.2, 2003, p. 38.
[20] Song: On the concept and essence of employment crime, Jurist, No.2, 2002, p. 79.
[2 1] Liu: Some Issues on Duty Crimes, Journal of National Prosecutor College, No.2, 2003, p. 39.
[22] Chen Xingliang: "Theft Research", contained in Chen Xingliang Edition. : Criminal Law Judgment, vol. 1, Law Press, 1999 1, p. 36.
[23] Zhang Mingkai: On Legal Interests, China University of Political Science and Law Press, 2000, 1 Edition, p. 367.
[24] Zhang Mingkai: "On Legal Interests", China University of Political Science and Law Press, 2000, 1 Edition, p. 368.
[25], Zhang Jun, Jiang Wei, Lang Sheng: On Criminal Law: Theory, Legislation and Justice (General Part), Law Press, 2003, p. 1 p. 308.
[26] Ma Kechang, editor-in-chief: General Theory of Crime, Wuhan University Press, 3rd edition, 1999, p. 160.
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