Abstract
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.
Highlights
Chinese scholars have long argued the indisputable fact that Chinese private enterprises and state-owned enterprises are not treated in criminal law and this unequal treatment is manifested in criminal substantive law, i.e., there are two different systems of crimes in China’s Criminal Law, which protect private enterprises and state-owned enterprises respectively, but the latter always maintains significantly higher penalties than the former
After we located the dual discriminatory institutional plight faced by Chinese private enterprise and pointed out the inevitability of the plight-induced crimes committed by Chinese private enterprise, for reaching out to the solution, we are examining the approach of criminal substantive law by testifying the ground of the general viewpoint of Chinese scholars, i.e. the equal view based on the same penalty
We found that the equal view based on the same penalty is not in line with the correct theory of purpose of penalties, on the opposite, the equal view based on the differentiated penalties, which imposes on different people in accordance with distinctive identities, is consistent with correct theory of purpose of penalties, which means unequal treatments in criminal substantive law is of justification and should be maintained
Summary
Chinese scholars have long argued the indisputable fact that Chinese private enterprises and state-owned enterprises are not treated in criminal law and this unequal treatment is manifested in criminal substantive law, i.e., there are two different systems of crimes in China’s Criminal Law, which protect private enterprises and state-owned enterprises respectively, but the latter always maintains significantly higher penalties than the former. China’s Criminal Law Amendment (XI), which came into effect this year, satisfied the demands of scholars to some extent by raising the penalties for protecting private enterprises and making the penalties for protecting private enterprises closer to those for protecting state-owned enterprises Can this rigid method, really achieve equal treatment between state-owned enterprises and private enterprises? Ferentiated protection is consistent with the principle of equality for all, by looking back at the theory of the purpose of punishment It means that the approach of criminal substantive law is no longer able to solve the problem and we get a staged conclusion: looking for another better solution is a must. We confirm the switch from substantive law to procedural Law is a better approach to achieve equal treatment of Chinese state-owned and private enterprises
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