TITLE:
From Substantive to Procedural Law: Better Approach to Equal Treatment of Chinese State-Owned and Private Enterprises
AUTHORS:
Jin Zhuang, Lingtao Liang
KEYWORDS:
Equal Treatment, Chinese Private Enterprises, Criminal Substantive Law, Criminal Procedural Law
JOURNAL NAME:
Chinese Studies,
Vol.10 No.4,
November
29,
2021
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.