Unit crime is also called corporate crime, and there are two disputes about whether a legal person can constitute a crime: the theory of legal person fiction and the theory of legal person reality. The theory of "fictions of legal person" holds that legal person is not a person, it is a product of law technology, it only has the ability of rights, no ability to act, so it can not constitute a crime. "The reality of legal person" maintains that legal person is an objectively existing independent entity of the group, is a kind of factual existence, not only has the ability of rights, but also has the ability to act, and has the ability to bear criminal responsibility. Because the legal person actually provides the theoretical basis for investigating the criminal responsibility of the legal person, it is widely recognized by the criminal law theory. When the criminal law was revised in 1997, the regulation of unit crime was added, which completed the transformation from one subject of natural person to two subject of natural person and unit.

First, the identification of unit crime becomes a defense strategy

For the punishment of unit crimes, in principle, China implements a double penalty system, both to impose fines on the unit, but also to impose penalties on its directly responsible personnel in charge and other directly responsible personnel, unless the specific provisions of the Criminal Law and other laws have exceptions, such as punishing only the unit or only punishing the person in charge and directly responsible personnel. Considering that the punishment of supervisors and directly responsible personnel is based on the interests of the unit rather than the interests of the individual, so the punishment is much lighter than the individual crime, which can be reflected from the current provisions of the criminal law and relevant judicial interpretations. For example, from the point of view of the prosecution standard, some unit crimes have a higher starting point than the conviction amount of natural person crimes, generally 3 to 5 times the amount of natural person crimes. For example, individuals who illegally absorb public deposits of more than 200,000 yuan can constitute the crime of illegally absorbing public deposits, while units need to illegally absorb public deposits of more than 1 million yuan to constitute. From the point of view of the setting of legal punishment, the legal punishment of the responsible person in many unit crimes should also be lighter than the legal punishment of natural person crimes. For example, the maximum sentence for an individual who bribed an influential person is ten years in prison, while the maximum sentence for a unit crime is only three years. Therefore, from the perspective of natural persons, unit crimes are generally listed as a very important idea of criminal defense, some natural persons can identify unit crimes and not be investigated for criminal responsibility, and some natural persons may get a substantial sentence of light punishment by identifying unit crimes. If the case handling organs mistakenly identify the unit crime as a natural person crime, the natural person's defense is certainly not wrong, and it can indeed achieve a good defense effect.

The crime of natural person is wrongly identified as a unit crime, but in judicial practice, it is not excluded that the crime of natural person is wrongly identified as a unit crime. Since it is identified as a unit crime, whether it is conviction or sentencing, it may be more favorable to natural persons, even if the unit has to bear the fine, but if it can use money in exchange for the shortening of the freedom penalty, it is also the result that natural persons and their defenders expect and pursue. In addition, it is recognized as a unit crime, not only the natural person is punished, but also the unit is punished, and a certain amount of fines can be collected, and the case handling organ may therefore obtain financial income. Therefore, even if the natural person crime is wrongly identified as a unit crime, the natural person involved and the case handling organ may not raise objections, and the mistake is difficult to correct, but objectively damages the interests of the unit, making the unit not only bear the property loss of fines, but also face the damage of reputation and reputation. Some units may even face the serious consequences of bankruptcy due to conviction, which will inevitably violate the legitimate rights and interests of investors, shareholders, creditors and other groups. However, since the unit is virtual and abstract after all, its will must be reflected through the natural person's expression of will, and when the natural person involved controls the right of discourse of the unit, the interests of the unit sometimes cannot be guaranteed.

Second, the will of the head of the unit may not rise to the will of the unit

China's criminal law is the unit as the perpetrator of criminal acts, that is, the subject of crime, directly in the criminal law, therefore, only when the unit member's criminal behavior is a reflection of the unit will or is under the control of the unit will, can be regarded as a unit crime rather than a unit member's individual crime. This view has become the mainstream view of identifying unit crime. However, how to determine the unit's will is a topic that has been discussed and studied in the theoretical circle. It is generally believed that the formation of the will of the unit can be a collective decision by the decision-making organ of the unit, a joint decision by all the personnel of the unit, or a decision by the person in charge of the unit or a leading member. For the first two, there is generally no dispute that is identified as the unit will, the most controversial is whether the decision made by the unit head or leading members can be elevated to the unit will, and many natural person crimes are wrongly identified as unit crimes mainly in the understanding of this issue.

There is no doubt that the natural person, as a member of the unit, especially the person in charge of the unit, has a dual identity, his thoughts and behaviors are not only a realistic part of the unit, subordinate to and subject to the overall meaning of the unit, but also has an independent personality and thought, and can independently handle their own affairs. This dual identity determines that the behavior of unit members may be a part of the unit crime, or it may be the embodiment of their own meaning. Therefore, if only the person in charge of the unit makes the decision to commit a crime, to determine whether it is a unit crime or a natural person crime, the key is to see whether the behavior reflects the meaning of the unit or the meaning of the natural person himself. We know that although the position and position of the unit member in the unit will have an influence on its will, it will not make it lose its independent personality. If it gets rid of the bondage of the position or position and forms its own pursuit and will, then the will of the unit member cannot rise to the unit will, and the behavior carried out under the control of its personal will. You can't let the unit bear the consequences. For example, if the intention of the head of the unit completely deviates from the purpose and purpose of the unit, violates or deviates from the effective rules and regulations of the unit, it should not be identified as the will of the unit, but only as the intention of the head of the unit; Another example is that the person in charge of the unit uses the unit as a criminal tool for other interests, even if the unit obtains part of the illegal income, the behavior of the person in charge of the unit cannot be identified as the expression of the unit's will. So, if the head of the unit is to make a decision for the benefit of the unit, can it be identified as the will of the unit? I am afraid there is no direct equivalence between the two. Because the interests of the unit is the unilateral idea of the person in charge of the unit, in the case that the unit does not know or even oppose its members to commit criminal acts for their own interests, the unit should not be held responsible for such acts.

3. Strict identification of unit crimes is in line with the new trend of protecting enterprises

When the criminal law was revised in 1997, China had just begun to implement the market economy, the development of companies, enterprises and other legal person forms is not perfect, the construction of legal person governance structure is also in the initial stage, easy to produce the will of the unit head and the unit will overlap and confuse the situation, thus drawing the conclusion that the decision of the unit head reflects the unit will is a reflection of The Times. However, with the rapid development of the market economy, the operation scale of companies, enterprises and other legal persons is getting larger and larger, the division of labor is becoming more and more detailed, the organizational structure is becoming more and more complex, the governance structure is becoming more and more perfect, and the share of large enterprises and multinational enterprises in the market is also increasing. In particular, the emergence of public companies such as listed companies and joint stock companies involves the interests of many investors and social public interests, so higher requirements are put forward for the corporate governance mechanism, requiring the establishment of shareholder meetings, board of directors, and board of supervisors systems to ensure that all shareholders, especially minority shareholders, fully exercise their legitimate rights and interests, with clear responsibilities and rules of procedure. If it is still only based on the decision made by the head or leading members of the unit who account for a minority in the unit, it is regarded as the will of the unit, so that the unit constitutes a crime and falls into the situation of interest damage, which is extremely unfair to the unit and other interest subjects of the unit. Therefore, in order to correctly identify a unit crime, in addition to examining factors such as "whether it is in the name of the unit", "whether it is for the benefit of the unit" and "whether the illegal gains belong to the unit", it should also comprehensively weigh the power distribution and business operation process within the unit, comprehensively judge the causes of crime and the mechanism for suppressing crime, and examine the unit's objectives, procedures, supervision mechanisms, habits, etc. To safeguard the legitimate rights and interests of the unit, which is also in line with the general trend of the state to increase the protection of the rights and interests of companies and enterprises.