法人秘書、企業犯罪與不自證己罪原則

Company secretary, Corporate crime and Privilege against self-incrimination

在現代社會中，法人帶來龐大之經濟利益，然而利弊相伴而行，並無法排除法人對他人造成損害之可能，特別是近年來頻傳之食品安全或環境污染等公害事件。「法人得否為犯罪主體」？在我國普通刑法中，關於法人犯罪固然並無明文規定；然而在附屬刑法中，已有大量對法人處以刑罰之規定，顯然立法者已經承認法人得為犯罪主體。法人既得為科處刑事責任之犯罪主體，如何依照刑事訴訟法所定之程序論罪、處罰則是不得不面對之問題。然而現行刑事程序法對法人應如何予以審問並未有特別規定。
本文以二○一八年公司法大幅修正時，而欲引進終未竟其功之公司秘書制度為發想以被告不自證其罪特權為中心，藉由同為歐陸法系之瑞士法制上的法人秘書於法人犯罪之刑事審判程序如何發揮其作用，並輔以我國關於金融監督管理之有關法規進行探究。

In modern society, legal persons bring huge economic benefits. However, there are pros and cons, and the possibility of legal persons causing damage to others cannot be ruled out, especially in recent years, where there have been frequent incidents of food safety or environmental pollution and other public hazards.“Could a legal person be a criminal subject?”In our country's general criminal law, there are no explicit provisions on crimes committed by legal persons; however, in the subsidiary criminal law, there are a large number of provisions on the imposition of penalties on legal persons. It is obvious that legislators have recognized that legal persons can be criminal subjects. Since a legal person can be the subject of criminal liability, how to convict and punish in accordance with the procedures stipulated in the Criminal Procedure Law is an unavoidable problem. However, the current criminal procedure law does not have special provisions on how legal persons should be interrogated.
This article is based on the intention to introduce the company secretarial system that has not yet completed its work when the company law was significantly revised in 2018. It focuses on the defendant’s privilege against self-incrimination and uses the legal person secretary in Switzerland, which is also a continental legal system, to How the criminal trial procedure of corporate crimes plays its role will be explored, supplemented by China's relevant laws and regulations on financial supervision and management.