x3 ha y55 ff5 fs8 fc0 sc0 ls0 wse">mitted by a unit, shall bear criminal responsibility. Arti-
cle 31 Where a unit commits a crime, it shall be fined,
and the persons who are directly in charge and the other
persons who are directly responsible for the crime shall
be given criminal punishment. Where it is otherwise pro-
vided for in the Specific Provisions of this Law or in
other laws, those provisions shall prevail.
In the “Specific Provisions” of the Criminal Law of P.
R. China, after 8 amendments, the number of the counts
of crimes which can be committed by a unit, increases to
124. According to the latest Amendment VIII to the
Criminal Law of P. R. China, they mainly can be found
in the Chapter III “Crimes of Disrupting th e Order of the
Socialist Market Economy”1 and the Chapter VI “Crimes
of Obstructing the Administration of Public Order”2 as
well as several individual Articles.3
2.2. Corporate Criminal Responsibility in the
Judicial Interpretations
As mentioned above, the legislations of corporate crimi-
nal responsibility also include the relevant judicial inter-
pretations. At current, they consist of two interpretation
documents from Chinese Supreme Court: the Supreme
Court Interpretation No. 17/1999 and Supreme Court
Interpretation No. 31/2000. They provide some detailed
criteria about how to judge the corporate crimes in the
applicatio n of law.
The provisions concerned in “Supreme Court inter-
pretation on the specific issues related to the application
of criminal law in hearing criminal cases involving
crimes committed by units” (Supreme Court Interpreta-
tion No. 17/1999).
The Supreme Court of P. R. China interpreted as fol-
lows:
1) The companies, enterprises and institutions pro-
vided in Article 30 of the China 1997 Criminal Law, in-
clude not only state-owned, collectively owned compa-
1The Chapter III in the Part Two “Specific Provisions” of the Criminal
Law of P. R. China consists of 8 Sections, from Article 140 to Article
231 a, which includes 110 counts of crimes. Most of them can be com-
mitted by Unit.
2The Chapter VI in the Part Two “Specific Provisions” of the Criminal
Law of P. R. China consists of 9 Sections, from Article 277 to Article
367, which include 120 counts of crimes. Only some of them can be
committed by Unit.
3Two counts of the crimes committed by a unit added by The lasted
Amendment VIIIto the Criminal Law of P. R. China, are contained in
Article 276(a) and Article 205(a).
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Corporate Criminal Responsibility in China: Legislations and Its Deficiency 105
nies, enterprises, public institutions, but also legally-
established joint ventures, cooperative enterprises as
well as those private or wholly-owned companies, enter-
prises and institutions which are qualified as legal per-
sons.
2) The crimes committed by those companies, enter-
prises and institutions which were established by indi-
viduals to commit the crime, or the companies, enter-
prises, institutions which commit crimes as the main ac-
tivities since their establishment, shall not be criminal-
ized as the crimes committed by unit.
3) If the individuals commit a crime fa lsely in the name
of the unit and distribute the proceeds from this crime
under the table, shall be criminalized as the crime com-
mitted by natural persons and punished in accordance
with the Criminal Law [1].
The provisions concerned in the “Supreme Court [1]
interpretation on the question of whether or not, in hear-
ing the cases of crimes committed by a unit, the persons
who are directly in charge and the other persons who are
directly responsible for the crime should be distinguished
between principal criminal and the accomplice.” (Su-
preme Court Interpretation No. 31/2000).
In this document, the Supreme Court gave the follow-
ing interpret ed opinion on the question concerned:
In hearing the cases of the crimes committed by a unit,
shall condemn the persons who are directly in charge
and the other persons who are directly responsible for
the crime separately, in accordance with their role in
committing the crimes, dont have to distinguish between
principal criminal and the accomplice [2].
Corporate Criminal Responsibility in th e “Explanatory
document from the research institution of Supr eme Court
on the issues related to the application of law in hearing
the criminal cases involving the crimes committed by the
foreign companies, enterprises and institutions within the
territory of P. R. China”.
As mentioned above, the explanatory documents play
a very important part in judicial practice in China. It is
also true in hearing the cases concerning the corporate
crimes. In this document, the Supreme Court holds that:
Within the territory of P. R. China, the foreign com-
panies, enterprises and institutions which can be quail-
fied as the Legal Person s in accordan ce with th e Chinese
law, commit the offences of endangering society which
can be criminalized as a crime according to the Criminal
Law of China, shall be held the corporate criminal re-
sponsibility in the light of the provisions of the crimes
committed by a unit in the Criminal Law of China.
The crimes committed by the foreign companies, en-
terprises and institutions which were established by indi-
viduals to commit crimes or offences within the territory
of P. R. China, or, since the establishment, the foreign
companies, enterprises and institutions have committed
crimes within the territory of P. R. China as their main
activities, shall not be criminalized as the crimes com-
mitted by unit [3].
3. The Types of Corporate Crimes in the
Criminal Law of China
The “Specific Provisions” of the Criminal Law of P. R.
China, provides 124 counts of crimes which can be
committed by Unit. We can divide them into two types:
the Single Crimes Committe d by a Unit, and Non-Single
Crimes Committed by a Unit [4].
3.1. The Single Crimes Committed by a Unit
In the criminal law of P. R. China, the Single Crimes
Committed by a Unit refers to the crime which only can
be committed by unit, other than natural persons. That
means, only the unit can be the criminal subject of those
kinds of crimes. For example, the crimes established in
Article 327 of the Criminal Law of P. R. China which
reads that “Where a State-owned museum, library or
other institution sells or presents as gifts without p ermis-
sion any cultural relics in its collection, which is under
State protection, to any non-State-owned institution or
individual, it shall be fined, and the persons who are
directly in charge and the other persons who are directly
responsible for the offence shall be sentenced to fixed-
term imprisonment of not more than three years or cri-
minal detention.”
3.2. Non-Single Crimes Committed by a Unit
Non-Single Crimes Committed by a Unit refers to the
crimes can be committed by unit and also individuals,
namely, the natural persons. In the “Specific Provisions”
of the Criminal Law of China, most of the crimes com-
mitted by unit are Non-Single Crimes Committed by a
Unit. In these cases, for those natural persons who com-
mitted these crimes, some clauses provide the same pun-
ishments as imposed on the persons who are directly in
charge or directly responsible for the crimes committed
by a unit. For example, Article 187 provides that:
Any employee of a bank, , shall be sentenced to fixed-
ter m imprisonment of not more than five years or criminal
detention and shall also be fined…; if especially heavy
losses are caused, he shall be sentenced to fixed-term
imprisonm ent of not less than five yea rs and sha ll also be
fined… Where a un it commits the crime mentioned in the
preceding paragraph, it shall be fined, and the persons
who are directly in charge and the other persons who are
directly responsible for the crime shall be punished
according to the provisions in the preceding paragraph.
Whereas, the other provisions impose the heavier pun-
ishment on those natural persons who commit those
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Corporate Criminal Responsibility in China: Legislations and Its Deficiency
106
crimes. For example, Article 191 provides the natural
persons, whoever commits the crimes of money-laun-
dering, “; if the circumstances are serious, he shall be
sentenced to fixed-term imprisonment of not less than
five but not more than 10 years…”, but “Where a unit
commits any of the crimes mentioned in the preceding
paragraph, …the persons who are directly in charge and
the other persons who are directly responsible for the
crime shall be sentenced to fixed-term imprisonment of
not more than five years… [5].”
4. The Characteristics of Corporate
Criminal Responsibility in China
From the provisions listed above, we can conclude the
following characteristics of corporate criminal responsi-
bility in Chinese criminal law:
4.1. The Criminal Subject
The criminal subjects of corporate crimes, the Unit, in-
cludes any company, enterprise, institution, State organ,
or organization, according to the Article 30 of the “Gen-
eral Provisions” in China 1997 Criminal Law.
This provision, however, arise some debates which
mainly focus on the conc eption of a “Unit” and the ques-
tion of whether the state organ can be the criminal sub-
ject of the crimes committed by unit [6] and whether the
company established by individuals can be the subject of
the crimes committed by a Unit [7].
Because of no defining the conception of the term of
“Unit” who commit a crime in Chinese Criminal Law, in
practice, it is ambiguous to decide which entities can be
criminalized as a Unit who commit crime, such as the
branch of a company with legal perso nality.
As for whether th e state organ can be the criminal sub-
ject of the crimes committed by unit, most scholars hold
that, the state organ cannot be the criminal subject of
corporate crimes. The main reasons depend on that the
state organ is the organ of state which is be subordinate
to the state and function as a public actor on behalf of the
state, without any possession of the property or funds on
which that state organ can bear its responsibility inde-
pendently. Consequently, if the state organ can be the
criminal subject of the cor porate crimes and sentenced to
the monetary penalty, it is in fact a self-punishment. To
some extent, it is true, in my opinion, but it is also nec-
essary to prescribe the state organ as the criminal subject
of the crimes committed by unit. Because in practice, it
actually exists that the state organs commit the crimes in
the name of that organ.
Regarding the private company established by indi-
viduals, some people hold that they cannot be crimina-
lized as the Unit who committed crime on the ground of
that those kind of companies are owned by individuals,
the natural person, the offences committed by that com-
pany finally should be deemed to be the offences com-
mitted by that natural person, the owner. In my opinion,
however, although the private companies are actually
owned by natural persons, but the assets of that company
is independent of the private property of that owner [8].
They are different actors in performing the economic
activities. So, we should differentiate the behavior of the
companies from the action of their owner. They should
be responsible for their behavior separately. For this rea-
son, if the offence is committed by the company—on
behalf of it and for the benefit of it—this offence should
be criminalized as the offence committed by a Unit.
4.2. Double Punishment-Based Responsibility
In Chinese criminal law, the corporate criminal response-
bility is featured by the “Double Punishments” imposed
both on the Unit who commit a crime and the persons
who are directly in charge and responsible for the crime.
The Article 31 of China 1997 Criminal Law establishes
this style responsibility for corporate crimes and also
provides the related pena lties. For the Unit who co mmit a
crime, should be fine; for the persons who are directly in
charge and the other persons who are directly responsible
for the crime shall be given criminal punishment, in-
cluding the monetary penalty and imprisonment. Ac-
cordingly, at current, only one kind of monetary penalty,
the fine, can be imposed on the Unit who commit a crime,
whereas the other penalties such as disclosure of the
companies, suspending from some business operations,
exclusion from participation in a procurement, all can be
imposed as the administrative sanctions by the authorities
according to administrative regulations.
However, the exception clause also contained in this
Article which can be found in the following sentence,
“…Where it is otherwise provided for in the Specific
Provisions of this Law or in other laws, those provisions
shall prevail.” This clause, in my opinion, on the one
hand, indicates the possibility in some circumstance for
providing the single punishment only on the Unit who
commit a crime, or the persons who are directly in charge
or directly responsible for the crime. On the other hand,
it leaves the space for developing new penalties in the
future except for the single monetary penalty currently
imposed on the Unit who commit a crime.
5. The Deficiency in the Legislatio n s
Concerning Corporate Criminal
Responsibility
After analyzing the legislations about the corporate
criminal responsibility in Ch ina, I put some questions on
which the Chinese Criminal Law keep silent. From an-
other perspective, it reflects the defects existed in our
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Corporate Criminal Responsibility in China: Legislations and Its Deficiency 107
criminal law.
5.1. Whose Act Can Be Attributable to the Unit
Who Be Defined to Commit a Crime?
For this question, we can conclude from the wording in
Article 31 of China 1997 Criminal Law that the conduct
from the persons who are directly in charge and the other
persons who are directly responsible for the crime can be
attributable to the Unit. However, the question is which
kind of people should be defined as the “persons who are
directly in charge” and “the other persons who are di-
rectly responsible for the crime”, the legal representative,
the officials in management, the owner, or the persons
who actually control the company, enterprise and the
other private organization, or the persons in common
position but acting on behalf of the unit and for the bene-
fit of this unit?
As we see, the provisions in Chinese Criminal Law
keep silent on this question. They are too basic to be used
as the sufficient legal basis to define the crimes commit-
ted by a Unit, but those cases actually happen in practice,
especially in the cases of the crimes committed by the
persons in the giant companies which are organized com-
plicatedly with the sophisticated structure.
5.2. Which Kind of Conduct Can Be Defined as
the Crimes Committed by a Unit?
Although our code of Criminal Law keeps silent in this
point, we can find the indirect answer in the judicial in-
terpretations and documents from Supreme Court, such
as the “Supreme Court Interpretation on the Specific Is-
sues Related to the Application of Criminal Law in
Hearing Criminal Cases Involving Crimes Committed by
Units” (Supreme Court Interpretation No. 17/1999). In
the Paragraph 3, it provides that “If the individuals com-
mit a crime falsely in the name of the unit and distribute
the proceeds from this crime under the table, shall be
criminalized as the crime committed by natural persons
and punished in accordance with the Criminal Law”,
which seems indicate if act on behalf of the unit and the
illegally obtained pro ceeds owned by that unit, should be
defined as the crimes committed by a unit. Furthermore,
It is clarified in the “Supreme Court Minutes of a Panel
Discussion on the Legal Issues in Hearing the Cases
Concerning Financial Crimes” that “if act on behalf of
the unit and the illegally obtained proceeds owned by
that unit, should be defined as the crimes commi tted by a
unit” [9].
With the judicial interpretations and the Supreme
Court documents mentioned above, it seems to come to
this conclusion: if an act would be attributable to the
crimes committed by a Unit, it should be acting on behalf
of the Unit, the proceeds which illegally obtained from
that act should be owned by that unit [10]. In my opinion,
it reveals a more detailed principle of attribution to the
crimes committed by a unit—the corporate crimes in
China, but it is debatab le for the following reasons:
First, who can act on the behalf of the Unit, the
officials of management in the Unit or the common em-
ployee? And which kind of act can be regarded as the act
on behalf of the Unit, the act on their duty or the em-
ploy’s act should meet some requirements so as to let the
Unit know? They are very important to decide the cor-
porate crimes [11], but as mentioned above, ou r criminal
legislations and in terpretations keep silent.
Second, on the wording and context of Chinese law,
“the proceeds illegally obtained from that act” generally
means those visible proceeds which are obtained from
the crimes directly or indirectly. It is true for some cases
of the crimes committed by unit, such as the Unit commit
the crimes of money-laundering, the unit commit the
crimes of acceptance of bribes. However, in practice, in
some cases of the crimes committed by a unit, the unit
actually benefits from that crime, but that benefit may
not always be visible proceeds. Sometimes, they are in-
visible interests, for example, through those illegal ac-
tivities to improve social status and the reputation of th at
unit, or secure a competitive advantage and the business
opportunities. Those interests maybe turn into the real
visible proceeds in the future. However, at current, if
charge the unit commit a crime, possibly it couldn’t meet
the requirement of “the illegally obtained proceeds
owned by that unit” because the interests derived from
that crime and benefit that unit maybe not yet turn into
the money, the assets and the other kind of visible pro-
ceeds. For this reason, comparing with “the illegally ob-
tained proceeds owned by that unit”, “for benefit of that
unit” seems to be a more appropriate requirement for
defining the cases of the crimes committed by a unit.
6. Conclusions
As mentioned above, through the detailed enumeration
and in-depth analysis of the Chinese criminal legislation
on the crimes committed by a Unit, we can see the trend
of that the number of the counts of corporate crime is
growing, but the provisions are very simple and basic as
follows:
Firstly, As an attributable liability, corporate criminal
responsibility requires more precise and detailed provi-
sions in criminal law, including the criminal subject,
mens rea requirements and the principles of attribution.
Unfortunately, however, it has not been archived yet in
Chinese Criminal Law. As a result, this is the one of the
reasons why in practice, the offences prosecuted as the
crimes committed by Unit is less than actually existed in
China.
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Corporate Criminal Responsibility in China: Legislations and Its Deficiency
Copyright © 2012 SciRes. BLR
108
Secondly, the penalty for corporate crimes is very sim-
ple. Only fine can be imposed on the wrongfully-doing
corporations. It is far from enough to prevent corporate
offences. Thirdly, the criminal legislations of the crimes
committed by Unit are complemented largely by judicial
interpretations, the explanatory documents and the other
kind of documents like Minutes. Those documents are
less authoritative than national criminal law. This is not
good to prosecute and try corporation offences.
In order to ensure the impartiality in trial and fight
against corporate crimes effectively, I suggest to take
following actions to remedy the deficiencies in Chinese
Criminal Law:
First of all, make the detailed uniform provision in
Chinese Code of Criminal Law which should precisely
define the criminal subject of the crime committed by
Unit, the mens rea requirements of that crime and the
principle of attribution.
Second, add the other penalties such as disclosure of
the companies, suspending from some business opera-
tions, excluding from participation in procurement and
the measures to enforce the company to change their in-
ternal structure to establish self-control system [12]. Al-
though in China, due to a large number of administrative
single acts regulating the corporate offences in addition
to criminal law, those penalties can be imposed by dif-
ferent responsible authorities on the wrongfully-doing
corporations as an administrative sanction. However,
because those administrative regulations are single and
disperse that there is no uniform administrative regula-
tion providing the uniform requirements on the corporate
offences, different authority has different understanding
on how to judge the corporate offences. As a result, some
wrongfully-committed corporations go beyond the arm
of the law.
For this reason, the detailed uniform provisions of cor-
porate crimes in Chinese Code of Criminal Law surely
become an important guide and reference for administra-
tive authorities in their practice to investigate corporate
offences. That’s why I recommend to perfect the related
provisions in Chinese Criminal Law.
As well, with the economic development in China, the
number of legal entities is growing. Consequently, the
corporate offences become more and more, the structure
of modern corporation become more complicate. They
pose the threat to stability of societies and security of
economies, challenging the justice and fairness. In order
to fight against transnational crimes, the Chinese gov-
ernment adopted some international conventions con-
tained the responsibility of legal persons and then take
the obligation to implement them in Chinese law. So, it is
necessary and significant to do something for the re-
search on the Chinese legislation concerning corporate
ffences, making them more equitable and perfect. o
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