拟制犯罪和拟制刑事责任 法人犯罪否定论之回归
张克文拟制犯罪和拟制刑事责任 法人犯罪否定论之回归
Fictional Crimeand Fictional Criminal Liabilit
期刊名称：《法学研究》
期刊年份：
作者：张克文
单位：中南财经政法大学法学院
中文关键词：责任主义;代理行为;法人本质;法律拟制
英文关键词：corporate criminal liability;agent act;essence of corporation;legal fiction
中文摘要：
在表面扩张的背后，法人刑事责任始终无法摆脱其内在的矛盾与危机，随着团体责任不良后果的充分显现，美国近年来的法人犯罪执法策略明显向传统的个人责任回归。法人犯罪事实上是自然人个人犯罪，法人的本质只是一种法律拟制，法人犯罪和法人刑事责任的实质是自然人个人犯罪和个人刑事责任对法人的归属，是一种拟制犯罪和拟制刑事责任。法人刑事责任应坚持传统的个人责任主义原则，拟制主体实定化的倾向是法人刑事责任赖以存在的现实基础。
英文摘要：
Corporate criminal liability has always been full of contradictions and controversies since its coming into existence. Rationalism and utilitarianism, among others, are the two fundamental elements related to corporate criminal liability. Nowadays, corporate criminal liability has shown a clear tendency to expand around the world, no matter on the level of law or concept, meanwhile its serious adverse consequence of punishing innocent has also been fully confirmed by practice. Therefore reasonable choice of corporate criminal liability at present is to seek an available explanation based on reality.No matter from the view of the legislative state at present or from the view of its concrete factual construction, corporate crime is in form the crime whose subject is corporation, but substantially is natural person’s individual crime, mainly joint crime. Corporation is one kind of means and tools for natural persons to get their interest, and is the aggregation of individual interest and the bearer of benefit attribution. The conduct of corporation is in fact the individual conduct of natural person which is attributed to corporation, so corporation as a legal person is only the fiction of law. Accordingly, corporate crime and corporate criminal liability are also legal fictions, under whose names the individual crime and individual criminal liability are ascribed to corporation. The function of corporate crime and corporate criminal liability amounts to additional property penalties and qualification penalties on individual. Only when we persist in the personal responsibility principle, can criminal law prevent corporate malfeasance efficiently and avoid punishing the innocent. This article also considers the concrete strategies to prevent corporate misconduct by criminal law and to file up the holes of traditional criminal law from the point view of individual criminal liability. Although there are several factors for the corporate criminal liability to come into existence, the substantiation of fictional subject may be the only reasonable cause for corporate criminal liability to continue to exist.
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