China's criminal law stipulates unit crime. "Companies, enterprises, institutions, organs and organizations that commit acts that endanger society, if the law stipulates that a unit commits a crime, shall bear criminal responsibility" (Article 30). At the same time, it is stipulated that the system of two penalties shall be implemented for unit crimes, that is, "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." Where there are other provisions in the specific provisions of this Law and other laws, those provisions shall prevail. "(Article 3 1) It can be seen that China's laws stipulate the concepts of the person in charge who is directly responsible for the unit crime and other directly responsible personnel. However, the law does not clearly define the connotation of these two concepts. The person in charge who is directly responsible for what is a unit crime has different views, and there is no consistent identification standard in judicial practice. Some viewpoints of practice and theory are arranged as follows.
First, the directly responsible person in charge is usually the legal representative, principal responsible person, general responsible person, department head, etc.
Zhang Jun, former vice president of the Supreme People's Court, edited the New Interpretation of General Provisions and Supporting Provisions of Criminal Law (Seventh Edition) (I), which holds that the persons in charge who are directly responsible for unit crimes generally include the following persons:
1, legal representative
The decision of a legal entity to commit a unit crime shall be made independently by the legal representative of the unit or presided over by the legal representative of the unit, and the legal representative shall constitute the directly responsible person in charge of the unit crime.
2, the main person in charge of the unit
If an unincorporated organization commits a unit crime, it shall be decided by the principal responsible person of the unit or by the principal responsible person of the unit, that is, the person in charge directly responsible for the unit crime shall be the principal responsible person of the unit.
3. General Manager of the Unit
The so-called general person in charge refers to the deputy of the unit or the leading member of the collective leadership system. Such as deputy directors of state organs, institutions and people's organizations, deputy general managers of companies and enterprises, and members of the board of directors of joint-stock companies. Members of these units are generally involved in decision-making or in charge of a certain aspect of the work of the unit. Within the scope of their own business, they have the decision-making power and can independently decide the unit crime. If the person in charge decides that the unit commits a crime, the legal representative of the unit only knows it or knows it afterwards. The person in charge who is directly responsible can only make a decision, but not be the legal representative or the person in charge of the unit.
4. Head of the Unit
Under certain circumstances, the department head of the unit can also become the directly responsible person in charge of the unit crime. Especially after the implementation of various contract systems, a department often has the power to work or operate independently. What a department does or does not do may be decided by the head of the department, not by the legal representative of the unit. Because departments also have their own independent economic interests and may conflict with the overall interests of the unit under certain circumstances, some department heads may commit illegal and criminal acts behind the unit's back. Therefore, the department head can not only be the person directly responsible for the unit crime, but also be the person in charge directly responsible for the unit crime when making independent decisions or colluding with the unit head.
—— Zhang Jun, editor-in-chief: A New Interpretation of the General Principles and Supporting Provisions of Criminal Law (seventh edition), People's Court Press, May 20 17, p. 383.
Two, the directly responsible person in charge is the person who plays the role of decision, approval, inspiration, connivance and command in the unit crime.
The person in charge who is directly responsible is the person who plays the role of decision, approval, instigation, connivance and command in the unit crime, generally the person in charge of the unit, including the legal representative.
—— Minutes of the symposium on handling financial crime cases by national courts (Law [200 1 1, Law [2001] No.8).
"The directly responsible person in charge" refers to the person who plays the role of decision, approval, instigation, connivance and command in a unit crime, usually the person in charge of the unit, including the legal representative. The directly responsible person in charge should be a member of the decision-making body of a criminal unit, but not all members of the decision-making body of a criminal unit can be identified as the directly responsible person in charge. A member of a decision-making organ who did not participate in the decision-making or attended the decision-making meeting on the implementation of unit crime, but clearly expressed opposition only because a few opinions were not adopted, should not be recognized as the directly responsible person in charge. At the same time, the legal representative of the unit is not necessarily the person in charge who is directly responsible. The legal representative is, of course, the person in charge who is directly responsible for the unit crime directly decided or finally decided by the legal representative of the unit. However, the legal representative of the unit should not be regarded as the person in charge who is directly responsible for the unit crime decided by the competent leader according to the internal management regulations of the unit.
—— Gao Jinghong and Yang Wanming, editors-in-chief: Training Textbook for Judges of Grassroots People's Courts (Practical Volume, Criminal Trial), People's Court Press, 2005, p. 26.
Three, two conditions theory
The understanding of "directly responsible person in charge" is not stipulated in China's criminal law and related judicial interpretations. The Supreme People's Court believes that it should be grasped from the following two aspects: First, the directly responsible person in charge is the person in charge who actually exercises management authority in the unit; The second is to be responsible for the specific criminal acts of the unit. These two conditions are indispensable, such as non-unit managers, not to mention supervisors; If it is not directly related to the unit crime, it cannot be said that it is directly responsible for the unit crime. In judicial practice, the person in charge mainly includes the legal representative of the unit, the main person in charge of the unit and the person in charge of the unit department. However, the managers of the above-mentioned units do not have to bear criminal responsibility for unit crimes under any circumstances. Only when the above-mentioned personnel play the role of organization, command and decision-making in the unit crime, and their actions are integrated with the unit crime and become an integral part of the unit crime, can they become the subject of punishment and bear the criminal responsibility of the unit crime. It should be emphasized that the legal representative of the unit, that is, the "top leader", as the most important leading member of the unit, will play a vital role in the decision-making of important issues of the unit. Should unit crime bear criminal responsibility? In this regard, the same can not be generalized, whether to bear criminal responsibility, or to see whether it specifically participated in the unit crime, whether it played an organization, command, decision-making role in the process of unit crime. The person in charge who presides over the collective research, decision or ex officio decision to commit a unit crime is the "directly responsible person in charge"; On the other hand, if other leaders of the unit decide, direct, organize and implement the unit crime, which is not within the scope of their own functions and powers, and I don't know it, the person in charge who is directly responsible for the unit crime should not be investigated for criminal responsibility. Of course, if the legal representative of the unit commits other crimes due to dereliction of duty, it is another matter.
—— Tax evasion case of Beijing Kuangda Pharmaceutical Factory (Criminal Trial Reference Case No.251), Criminal Trial Reference, episode 4, 2003 (total episode 33)
Four, the directly responsible person in charge shall be a member of the unit that performs the functions of decision-making, execution and supervision and participates in the criminal activities of the unit.
The unit organ is the leading organ of the unit and the unity of the decision-making, execution and supervision functions of the unit. The unit organ is an abstract concept, and its specific function is to make decisions, carry out decisions and supervise the correct implementation of decisions. These three functions constitute three systems respectively, and the unity of the three systems is the unit organ. If a member of a unit organ substantially participates in a unit's criminal activities, he may be held directly responsible and criminally liable as a competent person.
-Li Hong's On "Directly Responsible Supervisors and Other Directly Responsible Persons" in Unit Crimes, Law Review (bimonthly), No.4, 2000 (total No.0/02).
Five or three aspects
The directly responsible person in charge should be defined from three aspects: identity, role and responsibility, that is, the directly responsible person in charge of unit crime refers to the leader who plays the main decision-making and commanding role in the implementation of unit crime and is directly responsible.
First, the directly responsible person in charge should be an internal member of the criminal unit. He is not an insider of the criminal unit, so he cannot be investigated as the person in charge who is directly responsible for the crime of the unit.
Second, the person in charge with direct responsibility should be the unit leader, that is, the "person in charge". The "person in charge" mentioned here does not necessarily mean the main leader of the unit, but must be a member of the leadership team of the unit.
Third, it plays a major role in the decision-making and command implementation of unit crimes. If you participate in decision-making and command, but do not play a major role in decision-making and command, then you should not be recognized as the directly responsible person in charge.
Fourth, the directly responsible person in charge should be a "directly responsible" leader.
What is "direct responsibility" can be analyzed from the perspectives of responsibility and behavior. From the perspective of responsibilities, "responsible" refers to the responsibility of organizing, deciding, approving, directing and coordinating according to the division of responsibilities. "Direct responsibility" refers to the fact that a unit's criminal behavior occurs within the scope of work responsible for organizing, deciding, approving, directing and coordinating, and has a direct causal relationship with the performance of its duties. Its judgment is based on the articles of association of the company and the arrangement of the work scope of the unit leaders. From the point of view of behavior, "direct responsibility" can be divided into two situations: first, the person in charge of the main decision-making and directing behavior in the unit crime is directly responsible for its behavior. The second is to identify the person in charge of the unit crime afterwards and take direct responsibility for the criminal acts identified by him. Some units (legal persons) commit crimes without collective discussion and research in advance, without the research or consent of a certain leader. It is that a department or individual commits a crime first and then explains it to the leader afterwards. In this case, the leader (person in charge) should clearly oppose it, stop it from continuing to commit criminal acts, and recover the losses in time. If the leader explicitly supports or connives at the criminal acts within his authority, then the competent leader should be directly responsible.
-Yang Liangshan's Definition of the Directly Responsible Person in Charge and Other Directly Responsible Persons in Unit Crime, People's Procuratorate)