Corporate crime: State-owned enterprises in China

Abstract

A decade ago, the Chinese leadership frankly acknowledged that the model of a fully planned economy, with its system of state-owned and state-run enterprises, was what Lenin had called “a bureaucratic dream.” 86 Today, state-owned enterprises are enjoying far more freedom to operate, and the state is trying to control them with more law and fewer plans. The use of criminal law to confront corporate crime is part of the effort to import “advanced management methods” from the West. Nonetheless, in the context of state ownership and Party leadership, the appropriateness of this approach is questionable. The Company Law is a new instrument to bring about fundamental changes in China's system of business organizations. These changes will help determine the scope and limits of criminal law, as applied to corporate enterprises, in the next decade. In this context, I would suggest replacing the concept ofdanwei crime with the concept of corporate or company (gongsi) crime; distinguishing thosefaren that can independently bear criminal liability from those that cannot; and clearly defining the elements of corporate offenses. Corporate criminal liability is a concept applicable when the corporation not only commits the crime but also has the legal capacity to be liable in its own right. Individual liability is still the sole principle applicable to a government agency, even if the crime is collectively committed. Given the historic context of China's socioeconomic reform, criminal law reform can advance only gradually. To insure that Western concepts fit the Chinese setting, lawmakers must make certain that every new criminal statute or regulation is enforceable even where enterprises remain closely interconnected with the state and decision-makers in publicly owned enterprises are mainly appointees of the state.