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法国刑法中,国家不承担刑事责任,地方行政部门及其联合团体只有符合特定条件——即涉案行为发生在其实施可以签订公共服务委托合同的活动时,才承担刑事责任。国家刑事责任的例外和地方行政部门刑事责任的限制是法国法人刑事责任理论和实践中的主要难点,关键在于对“可以签订公共服务委托合同活动”的认定。该概念来源于行政法,刑法既需尊重行政法的成果,又要保持本身价值判断的独立性;法国学界对该刑法理论和实践间龃龉的探索已形成可观共识。这对于反思我国法中“机关是否可以成为单位犯罪主体”和“单位犯罪责任设置”等相关问题具有重要对比和借鉴意义。
In French criminal law, the state does not bear the criminal responsibility, and only when the local administrative department and its consortium meet the specific conditions - that is, the criminal act takes place when the involved act occurs in the activity of signing a public service contract. The exception of the state criminal responsibility and the limitation of the criminal responsibility of the local administrative department are the main difficulties in the theory and practice of the criminal liability of the French legal person. The crux lies in the determination of “the activity of signing the commission contract of public service”. The concept originated from the administrative law. The criminal law not only needs to respect the achievements of administrative law, but also maintain the independence of its value judgments. The French academic circles have reached a considerable consensus on the interrogation between theory and practice of the criminal law. This is an important comparison and reference significance for rethinking the relevant issues such as whether the organ can become the unit crime unit and the unit crime responsibility setting in our country law.