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. Switch ing 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.
KeywordsEqual TreatmentChinese Private EnterprisesCriminal Substantive LawCriminal Procedural Law
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