Whether the legal representative should bear criminal responsibility in the unit crime does not depend on whether these people are "legal representatives", but whether these people actually participated in the unit crime and carried out the decisions, approvals and instructions in the unit crime.
Case: The actual controller of a group company plans to set up a new trading company to invest abroad. In view of the fact that the trading company involves import and export, upstream and downstream procurement and other links, the actual controller believes that the tax-related legal risk is greater. Therefore, the actual controller designates an employee as the legal representative of the trading company. The actual controller believes that even if the trading company is involved in tax evasion and other criminal acts in the business process, the legal representative of the company, as the responsible subject, should bear the corresponding responsibilities, and he does not have the status of legal representative or other management status in the company. But the actual management of the trading company is the responsibility and operation of the actual controller. Industrial and commercial registered employees, as legal representatives, are only responsible for daily work and have neither management nor control over the company. Excuse me, if a trading company is suspected of tax evasion and other criminal acts, will the employee be investigated for criminal responsibility because of his legal representative status? Can the actual controller be exempted from being investigated for criminal responsibility as the responsible subject on the grounds that he is not the legal representative of the company?
A: In the company's legal practice, many shareholders or actual controllers, for various reasons, even simply avoid being investigated for criminal responsibility when the company is suspected of committing a crime, instead of acting as the legal representative of the company and appointing other irrelevant personnel, which is usually called the "nominal legal representative" of the company. But does this structure really achieve the purpose of shareholders or actual controllers in judicial practice? That is to say, when the company is suspected of committing a crime, the legal representative of industrial and commercial registration, as the directly responsible person in charge, must be investigated for criminal responsibility; But the actual controller of a company without industrial and commercial registration, as the directly responsible person in charge, can be exempted from being investigated for criminal responsibility without identity in the industrial and commercial department? Obviously, this understanding is one-sided. The core of responsibility is not the identity itself, but its substantial control and leading position, and whether to actively implement the corresponding behavior.
1, the legal representative may be required to bear criminal responsibility as the "directly responsible person in charge" in the unit crime of double penalty system or single penalty system.
In the unit crime, the legal representative often assumes criminal responsibility as the "directly responsible person in charge". The so-called unit crime refers to "the behavior that endangers society carried out by companies, companies, organs and groups, and the law stipulates that it is a unit crime". According to Article 31 of the Criminal Law of the mainland, "if a unit commits a crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished." It can be seen that the punishment of unit crime in criminal law is based on the principle of "double punishment system" and supplemented by "single punishment system"; That is, when a unit commits a crime and should bear criminal responsibility, it generally punishes both the unit and the "directly responsible person in charge" and "other directly responsible personnel"; However, under the circumstances otherwise stipulated in the Criminal Law or other laws, some units may not apply the aforementioned provisions of the double punishment system for crimes (for example, Article 137 of the Criminal Law stipulates that "if a construction unit, design unit, construction unit or project supervision unit violates state regulations and lowers the quality standard of a project, resulting in a major safety accident, the person directly responsible shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and fined ...").
2. Of course, the identity of the legal representative does not constitute the "directly responsible person in charge" in the unit crime, and the determination of its criminal responsibility should be based on the fact that the legal representative played a substantial role in the implementation of the unit crime.
Although generally speaking, the legal representative, as a "directly responsible person in charge", needs to bear its corresponding criminal responsibility in the unit crime. However, the fact of being the legal representative does not necessarily lead to the legal representative becoming a "directly responsible person in charge" and bearing criminal responsibility. Whether the legal representative of a company needs to bear criminal responsibility as a "directly responsible person in charge" in a specific unit crime depends fundamentally on whether it plays a substantial role in the unit crime. In this regard, the Summary of the Symposium on the Trial of Financial Crimes by National Courts issued by the Supreme People's Court in April, 20001year is clear. The document stipulates in "On Unit Crime" that "the person in charge who is directly responsible is the person who plays the role of decision, approval, instigation, connivance and command in unit crime, generally the person in charge of the unit, including the legal representative." Visible, "directly responsible person in charge" generally includes the legal representative of the unit. However, the prerequisite for its criminal responsibility is that the legal representative has played a substantial role of "decision, approval, instigation, connivance and command" in the implementation of the unit crime. That is, whether the legal representative should be investigated for criminal responsibility in the unit crime depends on whether he specifically intervened in the unit crime and played the role of decision, approval, inspiration, connivance and command. The legal representative decides, approves, instigates, condones or directs a unit to commit a crime (including supporting, studying and deciding to commit a unit crime; Agreeing or approving the implementation of a unit crime; Organizing and directing other directly responsible personnel to commit unit crimes; Although he did not preside over or participate in the decision-making, decision-making, organization and command to commit the unit crime, he knowingly acquiesced in and connived at the unit crime; Designate or participate in the organization and command of the senior management of the designated company to commit crimes), which belongs to the category of "directly responsible person in charge". However, if the legal representative of a unit is recorded as the legal representative of the unit in the government departments such as industry and commerce, but has not participated in the specific operation and management of the company, and has not committed any substantive acts in the unit crime, the specific unit crime is decided, directed and organized by other personnel of the company (such as the general manager, department manager and even the actual controller), and the legal representative, as the "directly responsible supervisor" of the unit crime, should not and will not be investigated for criminal responsibility. On the contrary, general managers, department managers and even actual controllers who do not have the legal representative status will be identified as "directly responsible supervisors" and investigated for criminal responsibility if they participate in decision-making, command, organization and connivance of unit crimes.
The Supreme People's Court's guiding opinions in the above-mentioned documents have been fully observed and confirmed in judicial practice. For example, Beijing No.1 Intermediate People's Court found that Beijing Kuangda Pharmaceutical Factory and its legal representative Wang Lulin were suspected of tax evasion. "Because there is no evidence to prove that the legal representative, Wang Lulin, decided, approved, instigated and directed the company's personnel not to list or under-list income, thus evading taxes", the court found the defendant Kuangda Pharmaceutical Factory guilty of tax evasion and fined 700,000 yuan. Defendant Wang Lulin is not guilty. Another example is that Beijing Xiaoqing Culture and Art Co., Ltd. and its general manager Jing Jun are suspected of tax evasion. Beijing Chaoyang District People's Court found Beijing Xiaoqing Culture and Art Co., Ltd. guilty of tax evasion and fined it 7 10/00000 yuan. Jing Jun, the general manager, was sentenced to three years' imprisonment for tax evasion. However, Liu Xiaoqing, as the chairman and legal representative of Beijing Xiaoqing Culture and Art Co., Ltd., received the decision of non-prosecution from the People's Procuratorate of Chaoyang District, Beijing, and assumed no criminal responsibility.
To sum up, when the legal representative is investigated for criminal responsibility because of the company's "legal representative" status, he should meet the following conditions at the same time: First, there must be a unit crime expressly stipulated in the Criminal Law; Secondly, criminal law or other laws do not exclude the criminal responsibility of natural persons ("directly responsible person in charge" and "other directly responsible personnel"); Third, the legal representative intervenes in the unit crime, and plays the role of decision, approval, encouragement, connivance and command. Just the identity of the legal representative, of course, leads him to be investigated for criminal responsibility as a "directly responsible person in charge" in unit crimes. Therefore, whether the relevant personnel constitute "directly responsible person in charge" or "other directly responsible personnel" and are investigated for criminal responsibility in unit crimes does not depend on whether these personnel are recorded as "legal representatives" in government departments such as industry and commerce, but on whether these personnel substantially participate in unit crimes and specifically implement decisions, approvals, instructions and other acts in unit crimes. If the relevant personnel do not substantially participate in the unit crime, there is no specific implementation of decisions, approvals, instructions, etc. Whether it is the "legal representative" of the company or not, it is not necessary to bear criminal responsibility as the "directly responsible person in charge"; Similarly, if the relevant personnel substantially participate in the unit crime and make decisions, approvals, instructions, etc. Even if he is not registered as the legal representative of the company in government departments such as industry and commerce, he may still be investigated for criminal responsibility as a "directly responsible person in charge" or "other directly responsible personnel".
Unit crime refers to the acts committed by companies, enterprises, institutions, organs and groups, which should bear criminal responsibility according to law and endanger society. The surrender of unit crime is based on the premise of unit crime. Without unit crime, there can be no study of surrender.
Regarding the punishment of unit crime, criminal law can be divided into single punishment system and double punishment system in theory. Single punishment system, also known as alternative punishment system or transfer punishment system, refers to punishing only individuals in the unit or only the unit itself in the unit crime. In short, only one of them is punished between units and individuals. Double punishment system, also known as double punishment system, refers to punishing both the unit and the individual in the unit in the unit crime. China's criminal law implements the principle of punishment for unit crimes, which is mainly based on two penalties and supplemented by a single penalty system.
Because the unit crime generally implements the double punishment system, that is, the unit is sentenced to property punishment, and the responsible person is also sentenced to personal punishment. Therefore, in practice, defendants in unit crime cases are usually divided into legal person defendants and natural person defendants. A legal person defendant may have several natural person defendants at the same time, such as the legal representative, the relevant person in charge or the person directly responsible, who are the co-defendants in a unit crime case. Units as criminal defendants participate in criminal proceedings, and their legal representatives participate in criminal proceedings. The duties of the legal representative include exercising substantive rights and litigation rights on behalf of the unit. The activities carried out by the legal representative in the name of the unit are regarded as unit behaviors. The legal representative has the right to exercise the right of defense on behalf of the unit, apply for withdrawal, apply to the presiding judge to ask questions of witnesses and experts, or directly ask questions, make final statements, file complaints and appeals with the permission of the presiding judge. At the same time, it should also fulfill the litigation obligations of the unit defendant. A legal person shall bear the results of its litigation activities on behalf of the legal person.
The legal representative is also the direct responsible person in the unit crime case, and when being investigated for criminal responsibility, he has a dual identity, which violates the defense rules. Therefore, it is advocated that the defendant in a unit crime case is only listed as the defendant, and the legal representative or other directly responsible personnel participate in the unit crime litigation activities as the unit defendant, so as to balance the criminal litigation of the unit crime.