The institutional plight of dual discrimination’ has forced Chinese
private enterprises to commit crimes in order to survive, as they are treated
differently from state-owned enterprises both politically and economically. In
response, China’s Criminal Law Amendment (XI) has enhanced the statutory penalties
for crimes committed by private enterprises to make them more similar to those
committed by state-owned enterprises. Chinese scholars considered this
amendment as an important step forward in achieving equal treatment for Chinese
private and state-owned enterprises. With the aim of exploring the appropriate approach of equal treatment of Chinese
state-owned and private enterprises, we start our research by examining
the above considerations. However, from the perspective of the theory of the
purpose of penalties, the punishment for crimes committed by private
enterprises need not be absolutely identical to those for crimes committed by
state-owned enterprises. Therefore, enhancement of the penalties aiming to
protect private enterprises in criminal substantive law does not contribute to
realization of the principle of equality before the law. Switching from criminal substantive
law to criminal procedural law is a better approach to achieve equal treatment
for state-owned and private enterprises in China. The reason for this is that,
according to the theory of rectificatory justice, in order to achieve equal
treatment of private and state-owned enterprises, more judicial preferences
should be granted to private enterprises in the criminal procedural law, rather
than in the substantive law. Within the framework of the current China’s
criminal procedure law, we can take two parts of procedural strategies in
application of procedure law into consideration, including: improvement in the
application of China’s corporate compliance deferred prosecution institution
and restriction of custody against personnel in Chinese private enterprises.
References
[1]
Aristotle (2012). Aristotle: Nicomachean Ethics. University of Chicago Press.
[2]
Aristotle (1994). The Complete Works of Aristotle (Vol. 9). China Renmin University Press.
[3]
Chemerinsky, E. (2019). Constitutional Law (6th ed.). Aspen Law & Business Press.
[4]
Chen, G. Z., & Xu, J. C. (2002). Criminal Procedure Jurisprudence. China University of Political Science and Law Press.
[5]
Chen, G., Liu, X., & Xin, Q. Q. (2015). Credit Discrimination, Financial Development and Private-Owned Enterprises’ Bank Loan Term Structure. Accounting Research, 4, 40-46.
[6]
Chen, L., & Wang, H. (2013). Family Involvement, Political Ties and Institutional Environment—The Case of Chinese Private Enterprises. Management World, 10, 130-141.
[7]
Chen, R. H. (2020a). Basic Issues of Corporate Compliance. China Law Review, 1, 178-196.
[8]
Chen, R. H. (2020b). The Compliance Incentive Model of Criminal Procedure. China Legal Science, 6, 225-244.
[9]
Chinese Entrepreneurial Crime Prevention Research Center, B. N. U. (2019). Entrepreneurial Criminal Risk Analysis Report (2014-2018). Journal of Henan Police College, 4, 19-68.
[10]
Decisions of the Federal Constitutional Court 1, 14 (52).
[11]
Decisions of the Federal Constitutional Court 103, 310 (318).
[12]
Decisions of the Federal Constitutional Court 108, 52 (68).
[13]
Decisions of the Federal Constitutional Court 45, 187 (260).
[14]
Decisions of the Federal Constitutional Court 90, 96 (140).
[15]
Fu, Y. J. (2011). Causes and Countermeasures of State-Owned Asset Loss. Enterprise Research, 20, 12.
[16]
Gu, Y. Z., & Li, C. (2013). The Understanding and Application of the Post-Arrest Detention Necessity Review System. Journal of National Prosecutors College, 1, 74-82.
[17]
Guo, J. H. (2012). Corporate Donation in China: Voluntary or Requested? Evidence from Listed Companies. Journal of Finance and Economics, 8, 49-59.
[18]
Hart, H. L. A. (1968). Punishment and Responsibility. Oxford University Press.
[19]
He, X. G., Zhang, Y. F., Lian, Y. L., & Lv, F. F. (2013). Political Ties and Firm Value—An Empirical Study in China. China Industrial Economics, 1, 103-115.
[20]
Kindhäuser, U., & Zimmermann. (2020). Criminal Law General Part (9th ed.). Nomos Press.
[21]
Li, B. C. (2018). The Improvement of the Leniency Mechanism of Plea and Punishment: the Unfolding of Corporate Crime Perspective. Law Review, 3, 111-121.
[22]
Li, B. Y. (2006a). Consideration on Equal Protection for Non-State—Owned Economic. People’s Procuratorial Semimonthly, 12, 13.
[23]
Li, L. Y. (2020a, October 28). Criminal Law’s Protection and Restrictions for Private Enterprises. Procuratorial Daily.
[24]
Li, X. H. (2006b). Criminal Law Should Protect the Non-State-Owned Economic Equally. People’s Procuratorial Semimonthly, 23, 12.
[25]
Li, Y. H. (2020b). Criminal Procedure Incentives for Corporate Compliance in China. Journal of Comparative Law, 1, 19-33.
[26]
Li, Y. S., & Ye, J. (2012). An Outline of Equal Protection in Criminal Law for Stateowned and Private Enterprises. Journal of Economic Research, 9, 86-90.
[27]
Lin, S. T. (1998). General Theory of Criminal Law (6th ed. Vol. 2). Sanmin Press.
[28]
Liu, S. J. (2021). Possibilities and Limits for the Localization of the Corporate Compliance Non-Prosecution System. Journal of Law, 1, 51-65.
[29]
Liu, Y. (2017). Analysis of the Causes of State-owned Asset Loss and Countermeasures to Address It from the Clearance of Assets. Management Information of China, 3, 113-115.
[30]
Lou, L. B. (2020). Procurational Organs’ Roles in Preventing and Resolving Private Enterprises’ Legal Risk. Journal of Guizhou Police College, 3, 45-50.
[31]
Lu, Q. Z. (2020). Research on the Problem of Compliance and Criminal Risk Prevention in the Private Enterprise. Legal Forum, 4, 127-137.
[32]
Luo, C. P. (2007). A Comparative Study of Human Rights Protection in Chinese and Swiss Criminal Law. Social People’s Press.
[33]
Ma, M. L. (2020). Corporate Compliance as a Mean of Crime Governance. Tribune of Political Science and Law, 3, 168-181.
[34]
Maunz, Dürig, & Kirchhof (2020). Commence of Constitutional Law (Art. 3 Para. 1 marginal No. 88-92). C. H. Beck Press.
[35]
Mei, C. Q., & Zhang, Y. Q. (2014). Predicament and Outlet on the Crime of Entrepreneurs of Private Enterprises. Journal of Henan Police College, 5, 40-46.
[36]
Osterloh, & Nußberger. (2020). Sachs Constitutional Law (Art. 3 Marginal No. 1). C. H. Beck Press.
[37]
Petchum. (1990). The Ethics of Philosophy. Chinese Social Science Press.
[38]
Qiu, X. L. (1999). The Unification of the Principle of Allocation of Punishment. Social Science of China, 6, 32-45.
[39]
Radtke. (2020). Munich Commentary on the German Criminal Code 9 (4th ed.). Preliminary Remarks on Article No. 38, C. H. Beck Press.
[40]
Rawls, J. (1971). A Theory of Justice (Original ed.). Belknap Press.
[41]
Supreme People’s Procuratorate, People’s Republic of China (2016). About People’s Procuratorate Implementing the Examination of the Necessity of Custodial Cases (for Trial Implementation). Article No. 14.
[42]
Supreme People’s Procuratorate, People’s Republic of China (2021). Procuratorial Organs Should Serve as “Maternal Uncle” to Ensure the Healthy Development of the Private Economy. Net of Supreme People’s Procuratorate of People’s Republic of China. https://www.spp.gov.cn/zdgz/202103/t20210303_510432.shtml
[43]
Tian, H. J. (2020). Rethinking on Criminal Compliance. Journal of Peking University (Philosophy and Social Science), 2, 119-130.
[44]
Wang, F. J. (2019). Reasons and Countermeasures of State-Owned Assets Loss. Financial World, 18, 14-15.
[45]
Xie, X. J. (2016). The Research on Pratice Effect about the Review of the Necessity of Custody. The Jurist, 2, 136-145.
[46]
Xiong, Q. H. (2019). Some Suggestions for Strengthening the Protection of Private Entrepreneurs’ Personal Property Security in Criminal Procedure Law. Journal of Law Application, 14, 9-15.
[47]
Yang, Y. G. (2008). The Impact of International Human Rights Law on China’s Criminal Justice Reform. China Legal Press.
[48]
Yin, J. F., & Liu, X. D. (2018). Multi-Dimension Perspectives on the Criminal Law Protection for Private Company Equality. Journal of Guizhou University for Nationalities (Philosophy and Social Sciences Edition), 1, 178-180.
[49]
Yu, M. G., & Pan, H. B. (2008). The Relations between Politics, Institutional Environment and Private Enterprises’ Bank Loans. World of Management, 8, 9-21.
[50]
Yu, W. Q. (2010). The Theory of Equality in Criminal Procedures. Ph.D. Thesis, Southwest University of Political Science and Law.
[51]
Yuan, B. (2018). The Judicial Path of Non-Criminalization and Its Expanding with the Criminal Protection of Property Right in Private Enterprises. Journal of Law Application, 12, 13-18.
[52]
Zhang, W. X. (1996). A Study of the Twentieth Century Western Approach to Legal Philosophical Thought. Law Press.
[53]
Zhang, Y. H. (2014). The Current Situation, Hazards and Governance Stance of Corruption Crimes of Private Entrepreneurs. Journal of Henan University (Social Science), 6, 73-77.
[54]
Zhang, Y. P. (2015). The Path to Perfection of the Post-Arrest Detention Necessity System. Law Science, 1, 151-159.
[55]
Zhang, Z. T. (2019). The Volatility and Regression of Legislative Purpose on the System of Lenient Punishment for Admission of Guilt and Acceptance of Punishment. Law Science Magazine, 10, 1-13.
[56]
Zhang, Z. T. (2020). To Standardize System Establishment of Criminal Case Filing against Private Entrepreneur. Law Science, 9, 153-165.
[57]
Zhao, B. Z., & Zuo, J. W. (2017). Three Major Issues of Equal Protection of Private Economy in Criminal Law. Jingyue Journal, 4, 5-13.
[58]
Zhao, H. (2020a). A Study on the Leniency of Guilt-Related Enterprises Pleading Guilty to Punishment. Law Science, 4, 122-134.
[59]
Zhao, X. L. (2020b). An Important Issue Involving the Protection of the Development of Private Enterprises. Economic Herald, 10, 45-49.
[60]
Zhou, Z. J. (2019). Systematic Thought on Equal Protection of Criminal Law for Private Economy. Journal of Political Science and Law, 1, 126-136.
