The imbalance of the interests of the company and the protection of criminal law

  Abstract: the balance of interests between company law, should be focusing on the interests of shareholders as the axis body, the other company radiation, which constitute the mutual restriction and coordination of interests balance. Due to the lack of legal culture tradition, a serious imbalance between the various interests of company law. Although the civil, administrative security regulation, but because of the weak, civil security mechanism of administrative protection effect is declining, the illegal act, not enough to curb violations of the interests of the company to strengthen relations, rigid safeguard of criminal law amendment, from the legislative model, crime and punishment is necessary to strengthen the regulation set.

 Keywords: company interest relation; unbalance; the criminal law safeguard

Company a, imbalance

The law is the regulator of social relations. Company law is to adjust the relation between various kinds of interests, and produce. The main commercial subject is the Modern Corporation under the market economy condition, and is the connecting link between the various interests of the. The main purpose of the formulation of the company law is to maximize the coordination and balance of the company and the interests relationship, conflict of interest, the company and between the participants can maintain range can be accepted in the interests of all parties. According to the theory of the interests of the company to design the corporate governance structure and improve the protection of the interests of all parties on the company law has become the development direction of Modern Corporation law and the basic value orientation. The shareholders are the owners and decision makers of the company, the company is the main interests, therefore, the company law on the interest relationship is to the interests of shareholders as the core and start. Therefore, the balance of interests about the relationship of the company law, the author thinks that should be around to the interests of shareholders as the axis, radiation to the other body corporate law, which constitute the mutual restriction and coordination of interests balance system. In particular, interest balance system on the company law should embody one core, five kinds of interests balance. The core of a core is the interests of shareholders in the company law; five kinds of interests balance between shareholders and companies including the interests of balance between the small shareholders, the interests of balance between the shareholders and the board of directors, senior management personnel, the interests of balance between shareholders and creditors, balance of interests between shareholders and employees, the relationship between balance of interest relation. "Company law" in practice, on the

The relation between five kinds of interests imbalance has seriously restricted the healthy development of the market economy.

(a) the interests of the imbalance between the shareholders and the company's shareholders -- wanton occupation of the interests of the company

The protection of the conflicts of interest between the company and the shareholders of the company mainly occurs in the corporation's property. China's "company law" fourth stipulates: "the shareholders enjoy the benefits of assets, making major decisions and the right to choose managers." China's "company law" the third stipulation: "the company is an enterprise legal person, which has independent legal person property, property rights, it shall bear the liabilities for its debts with all its property." Visible, the company

The boundary of rights between shareholders and company is very clear. But in practice, the shareholders violations of corporate property rights behavior has occurred from time to time. Establishment stage in company, corporate behavior, false investment sponsors of shareholders as the company after the establishment of the shareholders of the company capital withdrawal, the period of existence of company shareholders, the disposal of the assets of the company illegal behavior, shareholders to facilitate control of the company to the company on the debt or loss behavior

Wait. Although these behaviors are ultimately violated the interests of creditors, but, at least in the form of performance, the shareholder first violated the interests of the company.

(two) the interests of the imbalance between large shareholders and small shareholders -- big shareholders infringe the interests of minority shareholders

The interest conflicts between large shareholders and small shareholders control the company is an inevitable phenomenon -- basic rules of large shareholders rule based on corporate governance. "Company law" on the big shareholders in proportion to the amount of capital contribution in accordance with the rules of the exercise of the right to vote principle. The major shareholder of rules in the most simple capital rule to cover up the fact of shareholder status inequality. On the one hand, large shareholders can make use of the favorable conditions for control of the company decision-making power, forced to damage the interests of small shareholders resolution, such as reducing the profit distribution of the company, to the allotment of medium and small shareholders equity ratio limits, weaken the shareholders to transfer the shares and so on; on the other hand, the large shareholders can use its direct control board (big shareholders as chairman of the board), understand the convenience condition information, about the company's decision, malicious or improper exercise of their rights, it is very easy to infringe the interests of minority shareholders. In China, large shareholders interests phenomenon is particularly prominent. The first and the lack of legal cultural tradition has direct relationship. The legal culture of our country traditional habits in the highly centralized autocratic legal culture, this highly centralized autocratic legal culture influence not only to the field of political life, but also affect the economic life. Originated in the western legal culture in essence is a kind of embodiment of economic democracy and mutual restriction and supervision and restriction of enterprise legal culture, however, the company system was born in Chinese and building process, but by the reverse legal culture tradition of authoritarianism, inside the company is very easy to form the highly centralized the controlling shareholder of the company be a law onto oneself major stockholder absolutist legal culture. The tyranny of legal culture, large shareholders expropriate the interests of small shareholders is an inevitable phenomenon. In addition, the special background of our company also further increase the reality of the interests of small shareholders shareholders, be a law onto oneself damage. China's listing Corporation generally by the original part of the enterprise's assets, business restructuring, inevitably forming a group company (shareholders) only one big share ownership structure. Listing Corporation shares as a result of large shareholders almost completely dominated the company's board of directors and the board of supervisors, the formation of What I say goes., shut out the heavens with one palm situation. Between parent and subsidiary company through related party transactions, a large number of raw materials procurement and product sales, funds guarantee and so on, not the formation transactions, increase the financial organ and inherent risk, listing Corporation by listing Corporation interests, become the main way to trigger the listing Corporation management and moral hazard. A lot of false, distribution of profits, misappropriation of property of listing Corporation, ignoring the interests of investors, damage the interests of small shareholders behavior occur from time to time.

(three) the relationship between the shareholders and the interests of operators of imbalance of breach of privilege -- Operator

The operator company consists of senior management personnel directors, supervisors and senior management personnel and other companies. They are the implementation of daily business activities, decision makers, and executive. The authorization management right operators from the shareholders of the company. The operator will damage the interests of shareholders in the business activities also. In the interests of managers and shareholders is inconsistent, draw on the advantages and avoid disadvantages humanity consideration, the agent will be the pursuit of their own interests to the detriment of the interests of shareholders at the expense of. For example, the operator will get high pay or on-the-job consumption etc.. According to "market news" disclosure, 16 domestic listed bank executives annual salary over 5000000 in 2007 from 1 in 2006, of which the highest executives annual salary reached 48130000 yuan.^[[1]]American scholar Richard A Posner think, compared with creditors, shareholders are more likely to be managers breach of privilege and not fulfilling the obligations and damage. The creditors have a fixed rate of interest, all creditors concern is not the enterprise obtain satisfactory operation, operation too bad influence to pay interest on it but don't. On the contrary, shareholders and management status and the manager of enterprise how corporate profits distributed to shareholders is directly related to the appropriate. Although, due to the enterprise bankruptcy threats make management results not only with shareholders, but also have a direct relationship with the managers, the consequences of bad management and management personnel is serious conflict. But because of the risk of bankruptcy is ultimately borne by shareholders, therefore, the enthusiasm of the management personnel of enterprises equitable treatment of shareholders, shareholders put one's heart and soul into management company was weakened, the potential conflicts that shareholders and managers.^[[2]]

(four) the interests relationship between shareholders and the staff and workers of the company's loss of Heng -- workers' legitimate rights and interests are infringed

The law in the coordination of the balance of interests between shareholders and employees, the spirit of law aims to protect the interests of the weak, the law is to protect the interests of workers adjustment. 20 years of reform of state-owned enterprises, enterprise efficiency is still low, the main reason is out of control to the workers the right to ignore and power management. In the traditional reform thinking, whether in the property rights reform thinking paradigm, or paradigm based on creditor's rights, many means of reform implementation has not changed the status of workers, on the contrary some reform or to sacrifice the interests of workers at the expense of. Since the reform of state-owned enterprises staff position did not rise but fell, this is we construct must be pay attention to in the course of the system of China Company. If not considering safeguard the legitimate rights and interests of workers, the company system construction new so, long-term imbalance of interest balance between the employees and shareholders, will certainly affect the labor enthusiasm, it is bound to affect social harmony and stability. At present, China's enterprise management system include companies, safeguard the legitimate rights and interests of workers, the basic institutional interests coordinating the relationship between employees and shareholders, employees and the company is still very weak, the objective effect in practice is very little. Still rely on the traditional trade unions and workers congress system to safeguard the legitimate rights and interests of the workers in the company, on more occasions and time, the traditional system of trade union rights only symbolic significance. Outside the company to rely on labor and social security department and established to protect the legitimate rights and interests of workers, although played a certain role, but the weak economic basis and disregard for the interests of workers in the traditional sense, compared to the security mechanism and the rights and interests of workers by the widespread violations of social reality, has looked pale and weak. The imbalance between the interests of the company balance system of interest is the shareholders and the company and worker's interests.

(five) the imbalance of the interests of creditors of the company shareholders and the relationship of creditor protection -- weakening

Modern Corporation, Ltd. based on the idea of balance of interests, to protect the interests of creditors have given great attention. The company law of our country also attaches great importance to the protection of the interests of creditors of the company, China's "company law" article first explicitly provisions, provide legal protection for creditors of the company, is China's company law the basic purpose of legislation. Moreover, external interests between companies, balance of interests between shareholders and creditors of the company, is the focus of the basic relations of conflict of interest in the company law and balance. The imbalance of interests between shareholders and creditors are mainly embodied in the registered capital of the company by withdrawing, malicious, malicious to transfer the company's assets bankruptcy or closed, so as to avoid debt etc..

Two, strengthen the necessity of criminal law protection of the interests of the company

The modesty principle in modern criminal law under the guidance of the criminal law, the security law status, that is to happen in real life are violations of the interests of the company relations, if can be effectively regulated by civil, administrative and legal means and measures of the field, is not only has no effect in the criminal law, civil law, means and administrative measures, criminal law started have inevitable when the use of criminal law. So, whether the violation of company's behavior with criminal protection of such filtering mechanism?

(a) the weak interest of civil protection mechanism

Legal protection of the interests of the company between three: security, administrative protection and criminal protection of civil. The relationship of the interests of the company by civil security is the civil liability subject, violation of the law of company law and should bear civil obligations to achieve. Notable is, civil rights protection mechanism of the company law of China is very weak, in the company law in the process of operation, the main civil rights damaged companies to realize their civil rights, civil liability violations mainly rely on the civil lawsuit to the people's court way. However, it is in "actionable" and "judicial remedy" on this key link, security mechanism of civil rights law is very weak. Before the revised in 2005 "company law", the company law of our country is typical of the lack of actionable law. In the judicial procedure, operation is extremely deficient, action mechanism is not perfect, the non litigation procedure is still. The lack of procedural safeguards mechanism effectively actually led to the company law of civil rights safeguard clause cannot implement, compulsory provisions in civil enforcement should lose. 2005 "company law" amendment of the "company law", the lack of "actionable" on the revised Company Law, established on the civil litigation rights protection mechanism. However, in practice, the judicial protection of civil rights in the company law is still weak.

(two) the relationship of the interests of the company administrative support

The administrative legal liability company interests of administrative protection is determined by the subject, violation of the law of the company law and shall be liable to. Administrative law belongs to public law, illegal subject of company law should bear the legal liability of the illegal administrative law, indicating the country by the law on the power of administrative subject to enforcement of company law punishment, embodies the coercive power of the state power to the illegal act. The administrative responsibility of China's "company law" provisions, is focused on the subject, violation of the law but is not up to the illegal crime degree of company law, give sanctions. Company's operation responsibility for violation of administrative law has the following characteristics: one is the administrative responsibility is the behavior main body refers to violate the "company law" provisions of the obligation but does not constitute a crime shall bear responsibility; two is the main implementation of administrative punishment is authorized by the state administrative organs. China's "company law" in the twelfth chapter 199th to 215 concentration provides administrative responsibility for violations of the company law. In our country, in violation of company law bear administrative responsibility way mainly has: fines, confiscated of the illegal income, cancel qualification, be ordered to stop the illegal act, shall be ordered to correct illegal behavior. However, the administrative punishment is far not enough to curb the illegal behavior. For example, the majority shareholder of the listing Corporation or its associated enterprises through the interception, misappropriation, borrow, false capital occupied capital, means listing Corporation listing Corporation to provide high risk guarantee or through illegal related transactions and other methods to extract the listing Corporation assets, to seize, damage the interests of small shareholders is common. According to incomplete statistics, only in 2001 November - 2002 to early 7, the Shanghai and Shenzhen two city has no less than 70 listing Corporation issued by large shareholders and the shareholders occupancy announcements about money. Notice from the figures, the listing Corporation occupied by major shareholders funds more than 29000000000 yuan, average every listing Corporation occupied by major shareholders funds reached 400000000 yuan.^[3]As of 2000 March, three nine listed pharmaceutical actually raised funds of 1670000000 yuan, while the large shareholders three nine Pharmaceutical Group interception occupation of funds of up to 2580000000 yuan, occupy the ratio of 154% to raise funds, China CSRC will impose three nine medicine and impose a fine of 500000 yuan, and the members of the board of directors to warnings and fines; Daqing Lianyi listed 481000000 yuan fund-raising all major shareholder misappropriation; Ji'nan Qingqi 1997 May 230000000 issue of B shares, to raise funds 1000000000 yuan, when large shareholders Qingqi Group took 600000000 yuan, to 2000 June, a group of light due to listing Corporation cumulative amount 1987000000 yuan; the Monkey King Group arrears payments and provide the monkey king Monkey King shares shares guarantee in the amount of the big shareholders and related enterprises were 890000000 yuan and 330000000 yuan, but these companies and directors are just fine and a small amount of criticism.^[[3]]Obviously, this district occupies hundreds of thousands of fine and circulate a notice of criticism and irregularities of the funds is a drop in the bucket, can not achieve the effect, effective penalties for violations of the interests of the company act is therefore, forcing the 2006 "criminal law amendment" to add six breach violated the interests of listing Corporation.

(three) the necessity of strengthen the protection of criminal law relationship of the interests of the company

Criminal protection of interest refers to the unit or individual which are crime criminal sanctions imposed on violations of the company act. Guarantee of criminal law in our country the "company law" on "only to violation of the provisions of this Law in 216th, which constitutes a crime, shall be investigated for criminal responsibility of anaphoric" in accordance with the law, the lack of specific provisions for the operation. Therefore, in fact, still need to be investigated for criminal responsibility in accordance with criminal law violates the "company law" of the crime.

The criminal law shall be investigated for criminal responsibility in criminal responsibility, punishment, and the punishment and directly to the citizen's personal rights and property rights, nature is also very compelling, this decided that the criminal law must follow the last enabled means, incompletion and tolerance of modesty principle, but also by no means must use criminal law, criminal law can sit idly by. Why should enable the criminal law? In addition to decline the civil protection mechanism and weak administrative protection effect, but also because of the emerging market economy countries, the degree of market development is low, the degree of perfection of administrative and judicial system are relatively low, the illegal cost, operation process in which violations penalties are also relatively low. This greatly stimulated the subject company law violations in order to obtain illegal interests and motivation. In this emerging market economy only increase penalties for violations of the company law can effectively curb widespread violations of the company law violations. Some scholars of the company law in the operation process of company law subject to violate other rights of the phenomenon known as "private coercion", pointed out: "the state coercion in corporate law to prevent private coercion for the purpose, and the particularity of private enforcement is the inevitable requirement of company law in the country responded to this special....... Emerging market countries with developed countries, the development degree of administrative and judicial system in the market and improve the extent is very obvious gap, therefore, the company law Chinese forces will be different. Such as large shareholders expropriate small shareholders, management benefit themselves private coercive behavior, in developed countries due to a higher degree of market development and be more effective control, even if such private coercive behavior happened, because the judicial and administrative system is clean and efficient, but also can provide relief, but in emerging market countries because the market dysplasia and can not form a strong market restriction, private coercive behavior therefore will tend to be more serious,...... In response, the emerging market National Co law in the state compulsory for outside shareholders provide stronger protection in developed countries."^[[4]]China as an emerging market countries, effective implementation in order to Surety Company law, necessary measures, to provide more powerful national mandatory companies as the main method in the company law in the public law protection of the criminal law, guarantee the most mandatory become inevitable.

Path three, the criminal law safeguard the interests of the company

(a) the legislative mode of criminal legal security interest -- an independent subsidiary criminal law

Criminal code, separate criminal law and accessory criminal law constitutes the criminal legislation, criminal protection of the interests of the company have a relationship from the subsidiary criminal law to a single criminal law to the legislation process of the criminal code. The penal code in 1979 not to infringe the interests of the company set up in 1993, "company law" for the first time in the legal responsibility of criminal responsibility for crimes in violation of company law has made general provisions, the 1995 "on the punishment of crimes against the company decided to" with 11 provisions of the crimes in violation of company law made specific the set, which make up the criminal code in 1979 to the legislative blank violate company regulation of the crime, and make up for the deficiency of the relevant criminal liability provisions in China in 1993 "company law" is too general and not due to specific application, the legal basis for accurate and effective fight against crime company interest relation, but also laid the foundation of criminal legislation of our company. The 1997 penal code in 1995 based on the "decision", the further development of the criminal legislation of our country company. In the criminal law has set up a "prejudice to the company, enterprise management order crime" the special section, provisions violated company crime specific. The 1999 "criminal law amendment" and the 2006 "criminal law amendment (six)" and the crime of infringing the interests of the company make a modification complement. The legislation evolution infringe the relationship of the interests of the company, in form, our country about the crime of infringing the interests of the company related legislative pattern is the subsidiary criminal law, single criminal law and penal code "three carriages" racing together bridle to bridle; in essence, our country about violations of company interest relation of crime legislation pattern is single criminal law and criminal law code "two wheel drive". Because, in our country criminal law and foreign affiliated subsidiary criminal punishment guilty, subsidiary criminal law in our country are anaphoric provisions, only in the "company law" the legal liability provisions in "constitutes a crime, shall be investigated for criminal responsibility in accordance with the provisions", there is no specific charges and the legal punishment. The criminal law is stipulated crime and its legal consequences (mainly is the penalty) laws and regulations. The basic content of criminal law should include that crime tenable condition (counts) and the legal effect of (penalty), visible, at present this guilty of accessory criminal law no punishment is only scholars dubbed the "criminal law", "criminal law" and no real, in this regard, China doesn't exist in the subsidiary criminal law. In judicial practice, the guilty of accessory criminal law no punishment will not punish the crime of criminal law based on the role of the judiciary, not on the basis of the provisions of prosecution and conviction and sentencing, still need the legislature enacted amendment or single criminal law to be implemented. Obviously, this dummy affiliated criminal provisions on the conviction and sentencing, of no value. At present, our country on infringement of the interests of the company related crime legislation pattern only in criminal law is a model of "singles", because from the criminal code in 1997 after the implementation has not yet promulgated the crime of infringing the interests of the company's single criminal law. The author thinks that, theoretically, should adopt the legislative model independent subsidiary criminal law to infringe the interests of the company related crime. That is in non criminal laws are independent of criminal law norms of charges, charges and the legal punishment, whether it is only in the criminal law general guidance, can the independent sentencing^[[5]^]. Because the criminal law is an important means to safeguard the normal social order development, its basic task is to maintain the normal by punishing the crime of social relations and social relations, especially the market economic relations is always in development and change, the protection of any social development needs of the criminal law, the penal code with the stability of the apparent lack of ability. But the adjustment objects such as the "company law" non criminal law is the complex of social relations. The statutory criminal illegality and crime of infringing the interests of the company related criminal judgment, must rely on the non criminal legal provisions can be determined, which requires the violation of company crime such statutory crime must be reflected and make specific provisions in the relevant non criminal laws. Independent subsidiary criminal law for various behavioral models of non criminal law, the establishment of the corresponding criminal consequences, and can avoid the contents of the same specification using two different legislative system, thereby reducing the cost of legislation. More detailed words, can be in the "company law" and "Securities Law" and "liability" or "penalty", direct provision of various infringement of company crime and legal punishment, so that the judicial personnel directly according to the independent accessory criminal law conviction and sentencing.

(two) the relationship between the modified crime against the interests of the company

The crime of infringing the interests of the company related criminal legislation has set 16 charges, showed several characteristics: from the main body, including a company and relevant personnel as the main body of crime. From the violation of the law, including the relations between the various interests of the company, with particular emphasis on criminal protection of the interests of the State-Owned Company. The criminal code in 1997 has been fully aware of the criminal law is to protect the interests of the company of "the last and most effective barrier", make the setting of company property right, management right and prohibition of business strife right, criminal law for the protection of the interests of the company to play a mandatory role. At the same time, "criminal law" article 165th ~ 169th provisions of the crime is specifically aimed at the protection of state-owned assets to the set, embodies the protection of state-owned assets security is still focus on the criminal legislation and administration of justice in china. From the company perspective, illegal acts of criminal code in 1997 for the establishment of company, financing, management and liquidation process were made in the set, to safeguard the normal operation of the company. But this does not mean that the crime of infringing the interests of the company has set up a perfect relationship. In France, as a reference, China set the crime of infringing the interests of the company related charges is less, while in France in four chapter 66 provisions of company crime, strict criminal law will certainly help to punish crime and protect the company, the company shareholders and the interests of creditors. From the crime of setting, the crime of infringing the interests of the company between the indictment is summarized, and the main French used to prove guilt manner, on the behavior of corporate crime to be specific, detailed, practical. In China, the "appropriate legislation tradition not fine coarse", will inevitably lead to legislative omission. Mainly embodied in: one is the infringement of the interests of the company and some relationship behavior not serious crime. Two is the weakening of State-Owned Company interests protection of criminal law. The subject of the crime in 1997 criminal law will infringe the interests of the majority of State-Owned Company is defined as a director of the State-Owned Company, the manager or the directly responsible person in charge, the general staff State-Owned Company infringement of the interests of the company become a vacuum on the criminal legislation. Moreover, the crime of illegal business operations "criminal law" the provisions of article 165th, "to obtain illegal interests, huge amount" is the legal elements, will cause heavy losses to the interests of State-Owned Company and did not obtain illegal interests or obtain illegal interests did not reach a huge amount of starting point in the set act, criminal law protection of the legislative defects it will cut the weak have the interests of the company. The three is to protect the interests of the criminal law ignores the non State-Owned Company. The penal code in 1997 165th ~ 169th is specialized for the State-Owned Company (enterprise or business unit) interests made the setting, for non State-Owned Company personnel violate the interests of the company are excluded from the criminal law protection. Four is the interests of employees lack of criminal law protection. Visible, the criminal code in 1997 has not changed according to the ownership concept to distinguish between property rights protection mode of thinking. If the criminal code in 1979 affected by the traditional state ownership idea, strictly protect public property rights is the setting of love can be the original legislative background, gradually deepening in the 1997 market economic system, and then stick to the ownership concept to set the criminal legislative purpose, undoubtedly played a "stumbling block" role. Along with the large scale of corporate reform of state-owned enterprise, completely broke the ownership division type of enterprise system, gradually establish a modern enterprise system of "clear property right, separate government functions from enterprise management, responsibility clearly, and scientific management". In addition to state-owned company, in accordance with the "company law" provisions, company formed by the investment by shareholders enjoy all legal person property rights, although the state-owned assets in the company ownership of state, but state and other shareholders, only as the shareholders enjoy the benefits, such as stock right decision. After the restructuring of the company is not owned or state-owned nature of the Corporation, its asset composition properties is of mixed type. In addition, there are private limited liability company, private Limited by Share Ltd and Companies Limited by Shares with Foreign Investment. With the influx of company reform gradually deepening and foreign, non State-Owned Company will become the mainstream of the company. Provisions on the crime of infringing the interests of the company's criminal code in 1997 is still based on the division of enterprise nature on the original premise, the company personnel infringe the interests of the company crime is a State-Owned Company, for the asset composition of mixed finite liability company and Limited by Share Ltd and Private Companies and other non State-Owned Company personnel infringe the interests of the company act became law in vacuum the incapable of action legislation blank, will inevitably lead to criminal law protection of non State-Owned Company interests. At the same time, the 1997 Criminal Law emphasize the importance of protecting the interests of State-Owned Company, criminal law protection and ignore other types of the interests of the company, the criminal legislation of one-sided emphasis on "public" and "private" ignore the protection protection problems, this goes against the principles of market economy. The same as the equal -- State-Owned Company and non State-Owned Company. The main body of the market economy, should be equal protection of the law, and should not favour one more than another.

Make up the criminal omissions, only the amendment of penal code can be achieved. In view of the "criminal law amendment (six)" of the company relating to the illegal acts of serious just to regulation, to safeguard the stability of the penal code, the crime of infringing words do not add interest, only for the crime of infringing the interests of the company related crimes make suggestions to modify.

First, expand the crime subject of crime. Cancel "criminal law" article 165th ~ 169th of the state-owned property restriction, which covers various forms of the company (enterprise or business unit), and the "criminal law" stipulates that the 165th "director, manager", 167th, the provisions of article 168th "directly responsible for personnel to expand the company (" enterprise or business unit) staff. In order to achieve the State-Owned Company (enterprise or business unit) and Private Held Company (enterprise or business unit) equal protection of interests, and do the "criminal law" article 165th ~ 169th range of criminal subject of equilibrium.

   Secondly, to amend the criminal consequence condition. Due to the above mentioned "criminal law" article 165th ~ 169th crime subject to expand, will inevitably lead to these Provisions existing regulations "make great damage to national interests", "cause especially serious damage to national interests" modification. Should be based on "the company (enterprise or business unit) suffered a major loss of" instead of "heavy losses to the interests of the state", "the company (enterprise or business unit) suffered particularly heavy losses" instead of "resulting in heavy losses to the interests of the state". At the same time, the crime of illegal business operations "to obtain illegal interests, a huge amount of provisions", to "obtain illegal interests, a huge amount of or make the company (enterprise) to suffer heavy losses".

(three) against the interests of the company related crime penalty setting

The crime of infringing the interests of the company shall not the penalty life imprisonment or the death penalty, the most important is in prison, carry out the principle of suiting punishment to crime. But with foreign general provisions of fine penalty is different, the penal code in 1997 to sign, fulfill the contract crime of dereliction of duty crime of breach of privilege, State-Owned Company staff cheated, State-Owned Company personnel dereliction of duty crime and play favouritism and commit irregularities - shares, the sale of state assets crime, the crime of misappropriation of funds and lack of penalty setting, obviously is not conducive to economic penalty means guard company personnel responsibility, fulfill the duties of good management, protect the interests of the company. In addition, the crime of infringing the interests of the company between the lack of qualification penalty punishment setting, the unit crime penalty too single. Therefore, need to make the following amendments:

1, the fine penalty for punishment, and make it applicable to all of the crime of infringing the interests of the company relationship. After the penalty structure to corporal and capital punishment as the center of the break out in the criminal law, the vast majority of the country is the implementation of the penalty structure, to freedom penalty and property penalty as the center and gradually expand, fine penalty application. In the position of the fine, the majority of countries in the provisions of fine penal code, in the main, or both as a principal and as a supplementary punishment, the former such as Japan, Brazil, Italy, Romania, Poland, Korea, Germany, the former East Germany, the Mongolia, Vietnam, Albania, Hungary and the former Soviet Union, only very a few countries will be fine for the additional penalty provisions. China is one of the very few countries. Although our country criminal law provisions supplementary punishments may be imposed independently, but whether the additional penalty to principal penalty, the value orientation of criminal legislation. Legislators on the criminal fine attitude will inevitably affect the judicial attention to the fine punishment degree. Fine penalty to principal penalty, does not affect the free punishment and science and. Germany, France, Japan penal code provides a feasible basis for us. Furthermore, although the criminal law about the penalty provisions of the criminal code in 1979 the number has increased from 20 to the current criminal law of Article 142, the applicable range from the 1979 penal code applies only to corrupt crime and individual prejudice and social management order crime increased to corrupt crime and the crime of endangering public safety, infringement of citizens personal rights, democratic rights, the crime of obstructing the administration of public order and the crime of endangering national defense interests of some crimes, however, compared with foreign countries, the scope of application of fine penalty or stenosis. For example, in the UK except murder away almost all the crime can be used fine system. "Crime" in criminal law of India on various properties are set for the fine punishment, whether it is treason, military crimes or murder, rape, without exception to apply pecuniary penalty. Learn from the experience of foreign countries, China's criminal law to deal with criminal negligence, all corrupt crime, legal punishment of 3 years in prison for the intentional crime and corporate crime, all can apply pecuniary penalty provisions. On the crime of infringing the interests of the company in terms of the relationship, or negligence, or is corrupt crime, or the majority of intentional crime, to 3 years in prison. Therefore, fine penalty should be applied to all of the crime of infringing the interests of the company relationship. In other words, should be added to the contract signed, fine punishment dereliction of duty crime, crime of breach of privilege who cheated State-Owned Company, State-Owned Company personnel dereliction of duty crime and play favouritism and commit irregularities - shares, the sale of state assets, the crime of embezzlement.

2, adding the crime of infringing the interests of the company related qualification penalty. China's criminal law provisions of qualification penalty of deprivation of political rights is only a supplementary punishment, and only in the position in the penalty structure, relative to his country, is relatively backward. Infringement of the interests of the company related crime, should add the prohibited certain occupation or activity and the crime punishment. Deprive criminals engaged in a certain occupation qualification, one can prevent the qualification to crime, to the special purpose of prevention, on the other hand, can also be a certain role in warning to other personnel, engaged in a certain occupation qualification units, to the purpose of general prevention. Prohibited certain occupation or activity can be used as a supplementary punishment shall apply.

3, perfect unit crime penalty system. China's "criminal law" the thirtieth stipulation: "a crime committed by a unit, the unit is to be fined, and the persons directly in charge and other directly responsible personnel penalty. The provisions of this Law and other laws provide otherwise, in accordance with the provisions." Therefore, China's criminal law on the punishment of unit crime to double punishment principle, to a single penalty for the exception. In a single penalty cases, criminal responsibility of the unit is to be passed on to the person in charge and other directly responsible personnel of the unit, not to punish the unit itself. Even in the case of double penalty system, only to be fined a penalty. The single unit crime punishment mode, obviously can not meet the unit crime punishment and cure increasing need, must set up a variety of penalty of unit crime. A penalty method design diversified, Bentham explained: "the penalty for our choice is the result of many factors, they should have the volume size of sensibility, equality, the proportion of crimes, and similarity, demonstration, economy, improvement, popular and so on; examine separately, without any penalty alone have the necessary properties for all the penalty. In order to realize the purpose of penalty, there has to be a penalty for different options, and the differences, several of them can be applied to the same crime; penalty diversity and difference proves legislator's diligence and prudence; diversity penalty type is one of the symbols of criminal law perfect."^[[6]]Foreign also provide us with reference to legislation. For example, "the French penal code" provisions of the penalty method about 40 kinds, among them the corporate crime has special provisions of the 10 kinds of penalty methods, respectively is: higher than the natural person 5 times the fine; disincorporate; prohibited from engaging in occupation or social activities; the closure of some departments of legal person subject to judicial supervision; prohibition; participation in public projects; prohibit the public funds; prohibit the cheque; correlation property confiscated or posted via media announced the decision. In addition, in October 31, 2003, the United Nations General Assembly fifty-eighth session of the "United Nations Anti-corruption Convention"[†]Rule twenty-sixth: "a, each State Party shall take the necessary measures in accordance with the principles of law, determine the corporate participation in offences established in accordance with this Convention shall bear the responsibility....... Four, each State Party shall, in accordance with this article particularly to ensure that legal person shall bear the liability is effective, proportionate and dissuasive criminal or non criminal sanctions, including monetary sanctions." Here the "effective, proportionate and dissuasive criminal sanctions" means the diversification of the penalty method. Visible, with reference to the foreign legislation, to fulfill the "Convention" obligations, China should construct a new penalty system of unit crime.

Perfection of the penalty system of unit crime, the scholars have made some exploration. The author believes that, in view of the unit is characteristic of a social organization, life penalty, freedom penalty cannot be imposed on the unit itself, so, the unit crime penalty should be considered the property punishment and qualification punishment. In the property penalty, fine penalty on the unit crime is not a problem, is worthy of study whether unit crime can apply the penalty of confiscation of property, in this regard, scholars have different cognizance. Some scholars believe that the crime should not apply the penalty of confiscation of property. Some scholars believe that should be on the unit crime penalty of confiscation of property. The author thinks that in the unit crime is not the penalty of confiscation of property legislation situation, our country also should not dare for the world first, adding to the unit crime penalty of confiscation of property.

Perfection of the penalty system of unit crime should focus on additional qualifications. Here, can draw lessons from French legislation, combining the actual conditions of our country, with the following qualifications punishment: the dissolution of crime unit, no crime units engaged in a specific business two qualification penalty. No crime units engaged in specific business, can be used as a supplementary punishment, dissolve the crime unit is sentenced to death of a natural person, should be the principal.