"Understanding and application of the Supreme People's court, the Supreme People's Procuratorate on handling the issues concerning the specific application of law in the state funded enterprises crimes of opinion"

 

Liu Weibo

 

In order to punish a state invested enterprise of corruption, bribery, misappropriation of public funds, of duty crime, the Supreme People's court, the Supreme People's Procuratorate on 2010Years11Month26Japan jointly issued the "about to handle the issues concerning the specific application of law in the state funded enterprise functionary crime case opinions" (method (2010)49Number, hereinafter referred to as the "opinions"). "Opinions" on the current national capital crimes in the enterprise management encountered policy and applicable law, were systematically combing, put forward specific opinions. This is the "two high" according to the provisions of the criminal law and the related policy spirit, combined with the anti-corruption work practice in recent years, an important judicial documents formulated laws applicable to the duty crime cases specifically state funded enterprises and enterprises in the specific areas, specific aspects of the. To understand, apply the opinions, the "opinion" the background and main content as follows:

One, development background and significance of the "opinions"

Since the party's fourteen plenary session, especially formulated in the Third Plenary Session of the sixteen Central Committee of Communist Party of China "of some issues concerning the improvement of the socialist market economy system decision" proposed effective realization form of public ownership of many positive, vigorously develop a mixed ownership economy, realize the investment subject pluralism, make the joint-stock system as the main public ownership realization form of state ownership economy to improve target, reform of state-owned enterprises continue to advance in depth. Enterprise restructuring in the optimization of the layout and structure of state-owned economy, strengthening the state owned economic vitality, promote the rational flow and reorganization of state-owned assets, plays an important role in improving the efficiency of resource allocation, increase the value of state-owned assets. However, due to various reasons, in the restructuring of state-owned enterprises, the transactions of property rights, management has some hidden, privately divide, transfer, use, sell state-owned assets and other illegal and criminal activities, caused a huge loss of state assets and bad social impact, and the effects of the objective evaluation of anti corruption work in economic society system reform and the punishment to a certain extent.

At the same time, the state invested enterprises of corruption, bribery and other crimes activity has the particularity and complexity of certain, judicial organs in handling this kind of case often encountered some new situations, new problems. For example, the specific provisions of the criminal law of the definition of "State-Owned Company, enterprise"; that the joint-stock state-owned capital holdings, shares the company Chinese house staff; qualitative treatment of working staff in the company, enterprise restructuring enterprises, enterprise conceals the company property to the company after restructuring all behavior; the working staff in the company, the restructuring of enterprises the company, the enterprise funds secured personal loans, used for the qualitative process purchase restructuring of the company, enterprise behavior; national staff in companies, enterprises, malfeasance qualitative processing; processing country staff identity changes before and after the implementation of the same type of criminal behavior; change of state personnel identity occurred after the reform from others the behavior of property disposal. These problems involve the law, the spirit of the policy, the historical conditions as well as the reality of the situation and other factors, the practice process in the policy limits of the law, strict standards, specific charges applicable aspects hold different views. Some of the serious nature of the case is inappropriate to misdemeanor or not dealing with a criminal; general violations to form some of the specific historical conditions, wrongly as a serious crime. This to a certain extent, affected the criminal attack dynamics, justice and effect. In order to properly handle this kind of case, to ensure that the reform of state-owned enterprises is carried out smoothly, maintain the safety of state-owned assets and capital, enterprise, employees and the interests of all parties, the Supreme People's court, the Supreme People's Procuratorate, after careful study, decided to establish the judicial documents.

"Opinions" issued, has the following significance: first, the anti-corruption work in state-owned enterprises is an important part of the construction of anti-corruption, is also the current anti-corruption focus areas. "Opinions" clear the enterprise restructuring, dividing the occult, embezzlement of state-owned assets, opinions of accepting bribes, play favouritism and commit irregularities transfer of state-owned assets and gross negligence resulting in serious losses to the interests of the state and other criminal acts, combined with the state funded enterprises in the actual situation puts forward the concrete standards of national staff, is conducive to the corporate corruption the restructuring of crime into overall pattern of anti-corruption work, severely punished according to law. Second, seriously punish the enterprises corruption crime, is an important guarantee for the reform and development of state-owned enterprises. Deepen the reform of state-owned enterprises, realize the diversification of property rights, is still an important task and goal of current economic reform. In the past period of time, the society to the reform of state-owned enterprises have some different views, even to question the "reform of state-owned economy have into have retreat", one of the important reasons is the failure to effectively curb the loss of state-owned assets. Efforts to combat increasing enterprises corruption crime, is the dual needs public support to win the protection of state-owned assets and the reform of state-owned enterprises. Third, "opinion" clearly the state invested enterprises defined standards, policies and legal limits according to the criminal policy of combining punishment with leniency the serious crimes and violations of the principle of seek truth from facts, reflects the judicial justice stand and fight and protection, is conducive to protecting the legitimate rights and interests of investors, to prevent improper intervention the penalty.

Two, a qualitative state invested enterprise staff in the process of restructuring the company, enterprise conceals property personal holdings of the company after restructuring, all enterprise behavior

Qualitative processing enterprise staff in the restructuring process, the enterprise conceals the company property owned by individuals holding state funded company after restructuring, all enterprise behavior, is a matter of controversy generally reflected in practice. "Opinions" article1Four aspects from the nature, amount, attempted both standard and accomplice processing specific handling this problem.

1Determination of the nature

The functionaries of the state or state agency, the State-Owned Company, enterprises, institutions, people's organizations entrusted management, management of state-owned property by taking advantage of his office, the state invested enterprise restructuring process deliberately through undervalued assets, claims, debts and credits, conceal the fictional property transactions hidden company, enterprise property, to I hold shares of the company, after the restructuring of enterprises of all acts, "opinions" article1Clearly should be convicted of corruption punishment. Therefore, in the process of drafting a views, cause hidden assets restructuring is complex, some is to provide a favorable condition for the development of enterprises to restructuring and reorganization; hidden assets and turn after the restructuring of the company, the enterprise all, subjective purpose is for the benefit of the enterprises after the reform, rather than personal gain; individual equity is different from personal property, the property into private property has many limitations, and performance for individual embezzlement corruption there is a certain gap; the corruption conviction and punishment, easily lead to the imbalance problem caused by the workers, employment, social stability. Suggest this behavior has caused serious consequences, the crime of malfeasance; no serious consequences, not as a crime. "Opinion" did not adopt this view, the main reason is: (1) according to the law severely punished in accordance with the relevant state policy spirit. Central and relevant documents of the State Council has repeatedly stressed the need to bring anti-corruption state-owned enterprises put on a prominent position, increasing property transactions this corruption prone areas of case investigation work. Early in the2003Year "Office of the State Council transmitted the state owned assets supervision and Administration Commission on regulating the state-owned enterprise restructuring work notice" in the clear requirements, "leaders of the state-owned assets supervision and administration agency staff, enterprises by restructuring of the machine transfer, occupation, invasion devour state-owned assets, hidden assets, providing false accounting information result of state-owned assets loss, engage in malpractices for selfish ends, collusion with the buyer the transfer of state-owned property rights, serious dereliction of duty, illegal operations, damage state and the interests of the masses, to conduct serious investigation and handling. The suspected of a crime, shall be transferred to the judicial organ". (2) to corruption conviction and punishment is legal basis. The basic feature of this kind of behavior is the ownership of the property has been transferred, the state-owned assets has been substantial violations, and under the actual control of human behavior. For the crime of embezzlement of illegal possession, should not be narrowly understood as illegal take forcible possession of. The behavior of the hidden assets outcome after enterprise restructuring dispose of all or to other shareholders, which belongs to the specific disposal of stolen goods, does not affect the recognition properties. So, this kind of behavior is obviously illegal occupation of state-owned assets of the subjective intent, objective behavior of people is the actual control of the illegal interests, accords with the essential provisions for the crime of embezzlement in criminal law. (3) to corruption conviction and punishment has certain practice foundation. To this kind of behavior to corruption, there is no lack of precedents in judicial practice in the past. For example, Shanghai Wang Yibing corruption case, Jiangsu Shu Zhaolong corruption case by the Supreme People's court two court has on the compilation of punishment2004Years,2005Years as a guide in the people's court case "newspaper" published. The current serious harmfulness for this kind of behavior and shall be punished in accordance with the law has become the consensus in practice, practice is more concerned about the amount of calculation, attempted both recognized technical problems. "Opinions" provisions on qualitative problems, but is a confirmation of the judicial practice of general practice. (4) on the behavior of criminal responsibility of the person has the potential to cause a certain impact on the operation and development of enterprises after the restructuring, but the problem is the policy to grasp the problem, "opinions" have been fully noticed and made the corresponding provisions. As for criminal responsibility will lead to social problems, it is necessary to One divides into two. view. In practice, a lot of mass events are caused by the corruption of the enterprise itself, rather than on the issue of corruption investigation.

In the specific application of the provisions of this paragraph, should pay attention to the following questions:

First, the provisions of this paragraph behavior objectively to also have two elements. One is the actor in the restructured enterprise shares, otherwise the general should be based on the crime of malfeasance treatment (see "opinions" article4Article); two is belong to the individual or a small number of management behavior, such as for unit will before the transformation of enterprises, after the reform of share the interests of the workers, should be generally by dividing the state-owned assets crime (see "opinions" article2Article).

Second, the provisions of this paragraph of the behavior in the subjective aspect to intent. Only to resort to deceit means deliberately concealed, embezzlement of state-owned assets behavior constitutes the provisions of this paragraph of crime. Capital losses due to mistakes in the work because of the restructuring process, such as the reasons for the financial accounts, asset management cause asset inventory is not comprehensive, accurate, low price or leakage evaluation and assessment of the assets, or the local government to agree to the state-owned assets disposition to the restructured enterprise, behavior person not implemented intentionally concealed enterprise property, because the basic characteristics of elements does not conform to the crime of corruption, not to corruption conviction and punishment, which meet the requirements of the crime of malfeasance malfeasance crime, shall be investigated for criminal responsibility can be. In order to avoid the deviation of understanding, to prevent the improper expansion of combat, "opinions" article4Special provisions, "undervalued assets, debt, debt, conceal the dummy fictional property transactions did not take in the enterprise restructuring process intentionally concealed company, enterprise property, the general should not be identified as corruption; cause major losses of state assets, in accordance with the law. Article 168th of the criminal law or the provisions of article 169th in accordance with the provisions of the crime, conviction punishment."

Third, hidden debt should not affect the determination of the crime of corruption. Practice using the convenience of duty, in the process of enterprise restructuring to conceal the restructuring of enterprises has expired or unexpired credit and illegal possession of the phenomenon is more multiple. Such behavior can take corruption conviction and punishment, "opinions" in the process of drafting has been controversial, the focus of controversy is the creditor can become the object of corruption crime. A view object, creditor's rights do not belong to the crime of corruption of the reasons are: the object of criminal law of the crime of corruption is public property, the scope of public property is also discussed in detail, which does not include claims;Not directly to the "debt" is equivalent to "matter", claim is a claim, which belongs to the property interests; debt is uncertain, the creditor's right, creditor's rights can be transformed into property rights, creditor can obtained the properties, depending on whether the debtor actually perform his obligation; according to the principle of legality, in criminal law is not clear the provisions of the circumstances, should not be the creditor's rights into the crime of corruption. The study, based on the following reasons, we think the object of creditor's rights can become the crime of corruption: (1The civil law) to distinguish between property and claims, mainly embodies both in form and the way to realize the difference, does not deny that both of them belong to the entity economic interest. From the form of enterprise assets, including not only the money, plant, equipment, also including the business enterprise of the creditor's rights of property interests. (2Creditor's rights) is a protected by law, has the predictability property interests. Creditor's right is concealed, embezzlement, has caused to the creditor in fact benefit loss. How to realize the situation of creditor's rights, and can not change the fact. (3The criminal judicial judgment) focus on substantive and non form judgments in criminal law of property, including property interests, has been widely recognized in criminal judicial practice. For example, "the Supreme People's Court on several issues of specific application of law in the trial of theft case explanation" provisions, price payment vouchers, securities, negotiable bills are the object of larceny; "two high" "for the commercial bribe criminal case law applicable to certain questions opinions" provisions, the commercial bribery in the property can be calculated, including the amount of property interests with money. Based on this, "opinions" clear, specific behavior undervalued assets, debt, debt, conceal the dummy fictional property transactions are hidden enterprise property.

2The amount of calculation, corruption

Hiding the restructured enterprises property after enterprise restructuring all, means that the hiding property will be shared for all shareholders after the restructuring of enterprises, rather than the behavior of human. Based on this characteristic, the amount that corruption exists in the practice of different opinions. Therefore, "opinions" clear, "embezzles should generally be to conceal the property shall be calculated; after the reform, enterprises still have state-owned shares, deducted in the proportion of shares owned part of the." correct understanding of these Provisions, need to pay attention to the following:

First, should in principle be fully computed. In the process of drafting a opinion to conduct in the restructured enterprise shares ratio calculation embezzles. The reason is: Criminal Law embezzles should be "an individual who embezzles" calculation; behavior person not occupy the hiding property, can not be placed in the restructuring of enterprises in the property of all for yourself, the actual possession is its shares represent assets, act on the hidden property full responsibility does not fair; such behavior is actually also violated the embezzlement and breach of privilege two crime, which belongs to the imaginative joinder of offenses, should choose a felony penalties, breach of privilege caused the country's loss can be considered in the measurement of penalty, but should not be included in the amount of corruption. Through the research, we think that the principles should be based on the full computational hiding property acts of embezzlement amount, the reasons are as follows: (1) in criminal law "an individual who embezzles" is for a single crime the basic crime is concerned, in determining the embezzlement amount should be taken to avoid mechanical comprehension. In this regard, the Supreme People's court2003The national court cases involving economic crimes under the "forum on the work of" has been clear, an individual who embezzles "should be understood as personal participation or organization, command of joint corruption amount in common corruption crimes, not by individual actual share of the spoils amount to." (2) the opinions will be in the criminal law "illegal possession" is equivalent to "illegal possession", to break the integrity behavior and the causal relationship between the actual situation, failed to fully reflect the loss of state-owned assets, not a comprehensive evaluation of the consequences of such behavior. (3This kind of behavior) essentially belongs to the corruption, its people will disassembled for embezzlement and breach of privilege two behavior, does not accord with the objective reality. Illegal possession of stolen goods run parallel with punishment, as long as not having the owner's consent and illegal disposal, permanent exclusion ownership of property right, namely constitute illegal possession. As for the ultimate ownership of stolen goods, does not affect the recognition properties. (4) as fairness responsibility, should be a concrete analysis of specific cases, the individual shares, at the time of sentencing to consider, but not based on arbitrarily change the general rules for the determination of the amount of. In addition, in practice there is still in accordance with the documented prosecuted jointly participate in the total proportion calculation embezzles situation, this approach is also wrong, should be corrected.

Second, as an exception, the proportion of state-owned shares part of deductible. On the basis of fully identified, for the company after restructuring, enterprise retains the state-owned shares, according to the proportion of state-owned part can be deducted the amount of cognizance of corruption. The basic point is whether the resulting in the loss of state-owned assets.

Third, people in enterprises have occupied before restructuring, does not affect the determination of the amount of corruption. In the process of drafting a views, behavior in before the transformation of enterprise have a share in the cognizance of corruption, the amount should be in accordance with the share reduced, otherwise, the request and the corruption of the illegal possession of the property of this nature does not match. "Opinion" did not adopt this view, the main consideration is: (1The opinion) confused equity and corporate property rights are two concepts. After the shareholders enjoy investor rights, but the investment is no longer enjoy ownership, more have no direct measures for enterprise property. Enterprises as the main body of the civil behavior, has the independent right of property, illegal occupation of the property of the enterprise, also belong to the appropriation of property. (2The occupation of the property of the enterprise), and the behavior of human equity has no direct correspondence, its equity interest is not because the embezzlement and must suffer the loss.

3Both, standard, attempted

Determination of crime of corruption is attempted, a variety of views in theory, in practice, the standard is the "control". This standard has been "recognized" summary of the national courts of economic crime case work forum. "Summary" provisions, shall is controlled by the doer of property as the distinction between corruption crime accomplishment and attempted standard. Behavior control of public property, will take forcible possession of property, does not affect the cognizance of corruption crime. On this basis, "opinions" made further provisions, "the hiding property in the process of restructuring has actual control behavior, or a state invested enterprise restructuring has been completed, the accomplished crime treatment." Application of the provisions of this paragraph, should pay attention to the following points:

First, correction to "control". General position compared to the "control", "opinion" part absorbed the "claim on the out of control", namely in the actual control increases the enterprise restructuring has been completed by the national fund can be identified as the accomplishment of a crime. In this regard, there are views, enterprise restructuring has been completed does not necessarily mean that the actual control, suggested to cancel the part. The study, "control" position is more secure, is a recognized standard in most cases should continue, but in the specific application should pay attention to avoid mechanical comprehension. Enterprise reform has its particularity, behave as enterprise restructuring, the original state-owned investors have quit, before the transformation of enterprise has been replaced for enterprises after the reform, the hiding property has been "no" supervision ", also cannot return", "opinions" from the restructuring of enterprises and the state owned assets supervision and Administration Department has lost the control view, the situation of enterprise restructuring has been completed for the presumption of crime, has its rationality and necessity, the unmodified.

Second, corruption claims attempted both identified. In the process of drafting a views, performance of corruption hidden debt is more special, hidden debt does not mean that the actual control of the creditor's right behind the property, the "opinion" clear advice hidden debt behavior on corruption attempted treatment. "Opinions" not otherwise make a provision, mainly taking into account according to the existing regulations, can solve the problem of identification to the creditor as the object of the embezzlement is attempted. First of all, debt has not yet been implemented, according to the control standard can usually be identified as corruption crime; secondly, claims have not been realized, but the enterprise restructuring has been completed, it is also necessary to identified as corruption crime, because, corruption behavior is different from the other cases, the loss of state-owned assets has caused this situation. So, despite a claims of corruption object has certain particularity, but the "opinions" provisions of the spirit still need to adhere to, not corruption claims act according attempted treatment.

Third, the corruption of immovable attempted both identified. Immovables and movables in ownership of the establishment, transfer way is different, property law of immovable property registration transfer system. Accordingly, there are views that, not to the immovable property registration, means the freeholder is still entitled to the ownership of real property, the corruption of immovable property or to handle the property alteration registration procedures as corruption crime attempted both standards. We think, the opinion noted not movables particularity transfer, but the one-sided emphasis on the legal meaning of transfer obviously wrong.. First of all, illegal possession in criminal law is different from the real right law legal all to achieve the purpose of illegal possession, not to be legally confirmed conditions, whether in the law made immovable property, did not in fact have possession of a real property that constitute an obstacle, in fact, transfer legal significance through registration is reached, due to illegal behavior equally ineffective in civil law. But don't have the legitimacy of the proceeds of crime, contraband in civil law, but also can become the object of property crime. Secondly."Two high""Regulations on handling the problems of bribery in criminal cases the law applicable advice", "state personnel who take advantage of their office for the benefit of trustees, please accept the trustee houses, cars and other items, did not change the registration of the ownership or use another name for the registration of ownership changes, does not affect the determination of acceptance of bribes." Although the provisions aimed at taking bribes, but its spirit is also applicable to corruption and other crimes against property. So, the corruption of immovable attempted both identified, the question is not whether still need to apply to "control" standard, but in how to combine the particularity of immovable property transfer safely hold and determining whether the formation of the actual control. To handle the change registration procedures or in fact the transfer of possession, can be identified as corruption crime, and should not separate standards in addition to the "opinions" provisions.

4Processing, accomplice

"Opinions" provisions, "the implementation of joint actions beyond the provisions of the first paragraph of the first paragraph of the staff and workers, shall be punished as an accomplice in the crime of corruption." The provisions of the criminal law is382Article3On the "with the person mentioned in the preceding two paragraphs with corruption, collusion, by reaffirming the provisions of general accomplice". In handling cases, should be combined with the "Supreme People's Court on corruption, embezzlement case how to identify several common crime question explanation" and "national courts of economic crime case work forum" relevant provisions of specific identification, namely: (1) non national staff and the national staff collusion, by taking advantage of national staff, together with illegal possession of public property, embezzlement accomplice (2) non national staff and the national staff collusion, respectively, by taking advantage of their own, the common will of the unit property illegally for himself there, according to the nature of prime criminal conviction (3) non national staff and the national staff collusion, respectively, by taking advantage of their own, the common crime in joint crime status, effect is quite difficult to distinguish crime, master, can be convicted and punished embezzlement.

"Opinions" in the process of drafting opinions and suggestions will be in this paragraph of "the provisions of the first paragraph of people outside the" direct expression for "non national staff". Considering that the subject of the crime of embezzlement include two parts of national staff and the entrusted management and operation of state-owned property, it is not accepted.

Qualitative treatment three, a State-Owned Company, enterprise in the process of restructuring the company, enterprise property hidden employee collective ownership restructuring after the company of all the action

Identification of the nature of enterprise company, in the process of restructuring the company, enterprise property hidden to workers in the collective ownership of the restructured company all behavior, is one of the more difficult problems in judicial practice. In this regard, "opinions" article2Article1Paragraph, "State-Owned Company, enterprise in violation of state regulations, in the process of restructuring the company, enterprise conceals property, to the collective ownership of the company, after the restructuring of enterprises of all, the directly responsible persons in charge and other directly responsible personnel, in accordance with the provisions of the first paragraph of article 396th of the criminal law, the crime of dividing the state-owned assets shall be convicted and punished." The provisions of the concrete application, should pay attention to the following issues:

First, about the behavior subject. In the process of drafting the opinion points out, the collective ownership necessarily means the behavior person also hold shares, the prescribed in Article1Whether the provisions of clear distinction, if they have similarities in doubt. Through the research, we think, the boundaries between the two are clear, there is no coincidence. The key to distinguish the crime of dividing the state-owned assets and the crime of corruption is that the unit or individual behavior, and not just the behavior person is holding. Therefore, "opinions" on the behavior subject statement on "State-Owned Company, enterprise" to be emphasized.

Second, about the shareholding ratio. In the process of drafting opinions mentioned ownership problem, points out that the managers hold large stocks, small stocks workers collective, such as general manager of the shares90%Other workers, total shares accounted for only10%, by dividing the state-owned assets or corruption conviction, deserve further scrutiny. By the research, there does exist a concrete analysis of concrete conditions of the problem, but, given the shareholding in practice is complicated, is typically the management holding large stocks, it is difficult to determine a feasible number of standards in the shareholding ratio one rigid lever, to clearly distinguish of dividing the state-owned assets and corruption, and if only "big" and "small" such vague language and not to distinguish the role, so the "opinions" provisions only for qualitative, not quantitative regulations, explicitly addressed in principle, processing for the amount of proportion were extreme case, for the judicial practice according to the specific situation of the case flexible.

Third, about the staff collective ownership. In the process of drafting a views, the collective ownership is not a clearly defined legal term, to clear the. Therefore, the "opinion"2Paragraph, "after the restructuring of the company, the enterprise only former company restructuring, enterprise managers or the minority employee stock ownership, most workers former company restructuring, enterprise not ownership, in accordance with the views of the provisions of Article 1, the corruption conviction and punishment." The provisions of this paragraph has two meanings: one is by defining the management or a handful of ESOP case should be convicted and punished for corruption, that the employee collective ownership of connotation; two is the although called employee collective ownership but ownership minimum in case of a real understanding of corruption and to provide reference. In the collective ownership of the understanding, attention should also be paid to workers here refers to restructuring the enterprise workers, people will change, the hidden property through equity disposition to the restructured enterprise workers, disposition is stolen goods, can not be understood as workers collective ownership.

To sum up, the key to distinguish the crime of dividing the state-owned assets and the crime of corruption is that the unit or individual behavior. Enterprise leadership collective research decision by the units unified organization and implementation, open degree in enterprise interior, the majority of staff in different levels of enterprise profit, the general should be identified as the crime of dividing the state-owned assets; the implementation of joint a few people, other enterprise staff don't know or do not know the truth, will benefit to participate in decision-making, scope of implementation of corruption as well as providing help for corruption and a few a certain level of personnel such as enterprise management limited, the general should be identified as the crime of corruption. Among them, some common corruption crimes were not divide booty or outside the booty to the common crime of individual of others, should not affect the determination of the crime of corruption.

Four, a state funded enterprises restructuring of the company staff, the enterprise funds secured personal loans, used for the qualitative process purchase restructuring of the company, enterprise behavior

The state funded enterprise restructuring staff use enterprise funds secured personal loans, for the purchase of restructuring of the company, enterprise behavior, "opinions" article3Specific handling nature, amount and grasp the three aspects of policy.

First, about the nature of. "Opinions" article1Paragraph, "a state invested enterprise staff in the company, in the process of enterprise reform, enterprises for the purchase of company shares, taking advantage of his position, company, enterprise funds or financial instruments, securities for personal loans, in accordance with the provisions of the criminal law article 272nd or 384th, with the crime of misappropriation of funds or embezzlement crime." The provisions of this paragraph mainly refer to the "two opinions, the court hearing the cases of economic crime seminar" provisions: (i.e.1The financial document),Securities for the pledge, make public money at risk, and the misappropriation of public funds to provide guarantee no substantial difference, conform to the criminal law provisions on the crime of misappropriating public funds, embezzlement of public funds (conviction and punishment2) registration capital is ready for production and business activities, a part of the company, the enterprise for profit-making activities, embezzlement of public funds for personal use, enterprises registered capital verification certificate, shall be determined for profit-making activities for misappropriation of public funds. In the understanding of the provisions of this paragraph, should pay attention to the problem of the scope of guaranty. China's criminal law only stipulates the crime of embezzlement of public funds without the provisions of criminal responsibility in the embezzlement of public property, even though the embezzlement of public property as security will also make the misappropriated units face the risk loss the same, but from the perspective of the judicial interpretation, not understanding of public funds for excessive extension, the "opinion" will move with the object is limited to the capital or financial certificate, negotiable securities and capital proof.

Second, on the calculation of the amount of. "Opinions" article2The provisions of paragraph,"Behavior person invested enterprises hold shares in the restructuring of the former state, notThe amount that effect, but should be considered when sentencing." This subsection calculation and the embezzlement amount the same token, so no longer.

Third, policy on hold. "The State Council forwarded the state owned assets supervision and Administration Commission on regulating the state-owned enterprise restructuring work notice", "the State Council forwarded the SASAC on further regulating the state-owned enterprise restructuring work to implement the views of the notice" and other documents repeatedly stressed,The acquisition of state-owned property management to raise funds, to perform the relevant provisions of the "loan general clauses", and shall not borrow money from the enterprises, including state-owned and state holding enterprises, not to the enterprise state-owned property right or real assets as the object to provide guarantee, mortgage, pledge, discount and other financing. However, in practice still reflect, becauseThe reform of state-owned enterprises stronger policy, policy and the central policy in some places has some access, encourage, support and even requires management to hold large stocks, and to provide the relevant supporting measures. Some executives in individuals without money and not be able to raise equity capital cases often fall into a dilemma: such as temporary borrowing in the money to return, may be suspected of withdrawing registered capital crime; if the use of corporate assets to equity, may be suspected of embezzlement or move with funds crime. This situation or restructuring cannot, or will make operator is suspected of crime. The management personnel of enterprises in order to speed up the reform process, some directly with enterprise capital shares, some enterprise funds, property guarantee investment loans, many of which have obtained the approval or the approval of relevant departments of the local policy. Through the research, this kind of behavior is a product of the specific historical conditions, and local policy based behavior is not fully consistent with the crime of misappropriating public funds constitute the characteristic, it did not cause the real property losses can not as a criminal treatment. In view of this, "opinions" provisions,"Approved by the competent department or in accordance with the provisions of the relevant policies, the state invested enterprises staff for the purchase of restructuring of the company, enterprise implementation of the acts mentioned in the preceding paragraph, can be considered the situation is not as a crime." In addition, in practice there is unit collective research decision to implement the provisions of this article the circumstances of the act, therefore, should be specifically identified based on the essence of judgment on the unit or individual behavior.

Five, about the malfeasance of national staff in the enterprise restructuring process of the qualitative treatment

Enterprise reform and property right transaction breach of privilege, play favouritism and commit irregularities, underestimated sell state-owned assets, corruption is serious, many problems also exist in application of the law. In order to punish such crimes, "opinions" article4As the following provisions:

First, aDetermination of State-Owned Company, enterprise personnel dereliction of duty crime, State-Owned Company, enterprise personnel of the crime of breach of privilege. "Opinions" article1Paragraph, "state funded national staff in the enterprise of company, enterprise or state-owned assets disposal process seriously irresponsible or breach of privilege, resulting in serious losses to the interests of the state, in accordance with the provisions of article 168th of the criminal law, in order to State-Owned Company, enterprise personnel dereliction of duty crime or State-Owned Company, enterprise personnel punished the crime of breach of privilege." In the application of the provisions of this paragraph need special attention,The provisions of this paragraph of the penal code article168The provisions of the criminal law interpretation168Article on "caused by the State-Owned Company, enterprise bankruptcy or serious losses, resulting in serious losses to state interests" formulation adjustment for "causing heavy losses to the interests of the state". Accordingly, cause state-owned holding, shares the company heavy economic losses can also constitute the crime. The main consideration is: (1Along with the gradual implementation of the state funded) enterprise property rights, mechanical understanding of the provisions in the criminal law "State-Owned Company, enterprise bankruptcy or serious losses" meaning, will lead to the basic can not apply in practice. (2) "the Supreme People's Court on how to identify the state-owned shares in the State-Owned Company, Limited by Share Ltd, enterprise personnel interpretation of criminal law" has third chapters in section third of the State-Owned Company, enterprise personnel found the issue clear, namely, State-Owned Company, enterprise assigned to the state-owned holding, shares the company personnel engaged in official business, to State-Owned Company, enterprise staff on the. (3) is coordinated, the need for appropriate conversion loss recognition angle. The problem is not the loss of specific in what enterprise, but rather whether state-owned assets by the loss. In a wholly state-owned company or state-owned holding, shares of the company, in a sense is the direct and indirect different.

In this subsection, opinions and suggestions in the process of drafting, increase "caused by the state invested enterprises bankruptcy or serious losses" in words, in order to be consistent with the provisions of the criminal law. "Opinion" did not adopt this view, the main consideration is: (1The state invested enterprises) are not necessarily or the state invested enterprises, not to say is causing losses to the state invested enterprise (2In the process of restructuring) caused by the loss, mainly manifests for the state-owned investor losses, the company itself does not have what loss, such as asset is underestimated, damage the interests of equity transfer, but the company assets remain unchanged (3) before and after the contact, the national interest is obviously refers to the economic interest or is state-owned assets and income, practice for damages judgment will start with the specific economic loss, expression does not cause misunderstandings in practice without words.

Second, about theThat play favouritism and commit irregularities - shares, the sale of state assets crime. "Opinions" article2Paragraph, "state funded national staff in the enterprise play favouritism and commit irregularities in the company, enterprise or state-owned assets disposal process, the state-owned assets into shares at a low price to sell to their own or not holding the shares of the company, enterprise or any other person, thus causing heavy losses to the interests of the state, in accordance with the provisions of article 169th of the criminal law, in order to play favouritism and commit irregularities - shares, the sale of state assets criminal punishment." The provisions of this paragraph and the criminal law article169The provisions of the basic agreementThe core contentLie in"I did not object to the sale of shares of the company, it is"The key difference between the crime of corruption crime, and whether the behavior person directly from the shares or sell state-owned assets to gain illegal profits.

In the process of drafting opinions put forward, according to the provisions of this paragraph can be inferred from the behavior person I hold shares shall to corruption. But all to corruption especially behavior shareholder minimal condition still with corruption, whether scientific, reasonable, without doubt. After study, we stated there is indeed no complete place, that is not of my holdings situation put forward opinions. This situation has made room for corruption, but are considered as corruption obviously wrong. At the same time, if limited to delete "I does not hold shares", which meant to exclude the cognizance of corruption may, also has the same problem. Weigh the advantages and disadvantages, though the expression is not complete, but as a principle and obstructs not greatly, the judicial practice can be depending on the specific situation in flexibility.

Another opinion, the provisions of this paragraph is not comprehensive enough, the acquisition of state-owned assets of enterprises in practice in the registration is not necessarily is behavior person I owned enterprises, but these enterprises with economic interests, such as behavior directly, the actual control of the enterprise or its special relationship of enterprises etc.. These enterprises or shareholder profit, and I have no real different profit, should be convicted and punished for corruption. Through the research, the views and opinions "article"1The spirit of the provisions of this article, in order to avoid2Paragraph and cause unnecessary misunderstanding, "opinions" article3A further illustrated, i.e.:"State funded national staff in the enterprise play favouritism and commit irregularities in the company, enterprise or state-owned assets disposal process, the state-owned assets into shares at a low price sold to particular people or hold shares or actually controlled companies, enterprises, the national interests suffer heavy losses, in accordance with the provisions of article 382nd of the criminal law, article 383rd, the corruption conviction and punishment. Embezzlement amount to the loss of state assets amount calculation."For the provision of this paragraph of the" special relationship ", needing attention in practice strict master. "Two high" "for bribery in criminal cases the law applicable to a number of issues opinions" provisions, specific relation refers to people "with the national staff close relatives, Mistress (husband) and other common interests of the people". Therefore, determining whether belongs to the "special relationship", the key lies in whether the third party have common interests and behavior. Common interest here, mainly refers to economic interests, not the general students, colleagues, friends, relatives and to understand the relation between common interests. This is also the "opinions" provisions of such behavior to an important basis for the crime of corruption.

Third, competing with a corporate staff malfeasance crime and bribery crime. This is a problem in the judicial practice of long-term be in suspense. This situation is a crime or plural crimes, there have always been different opinions in theory circle and practice circle. The main reason, that is: (a combined punishment for several crimes1Bribery and malfeasance) in the crime constitution of independent of each other, not necessarily bribery, bribery is not sure of. In the crime of bribery crime for the interests of others, does not require the implementation of specific actions, and, even if the specific behavior, also has the normal exercise of powers and authority of non normal. (2Combined punishment for several crimes) precedent certain judicial interpretation has. For example, "the Supreme People's Court on Several Issues concerning the specific application of law in trial of misappropriating public funds" provisions of interpretation, for embezzlement, taking bribes from constitutes a crime, shall be punished in accordance with the provisions of punishment. (3) that a crime is mainly based on the theory of implicated offense, the theory is being more and more criticism for its inherent defects, and the combined punishment for several crimes can overcome these shortcomings, more conducive to the implementation of the principle of suiting punishment to crime. "Opinions" to one felony processing opinion, provisions"State funded national staff in enterprises for the implementation of the first paragraph, second paragraph behavior to accept bribes, which also constitutes the crime stipulated in article 385th of the criminal law, in accordance with the provisions of punishment heavier punishment."The main consideration is: (1The theory of implicated offense), one felony treatment is still a widely accepted, widely recognized (criminal justice principle2) legislation, the criminal law article399The rules for this and other malfeasance crime one felony processing opinion, with direct reference, in the absence of sufficient reason, to ensure the unity of the law applicable to other crimes, should the (execution3Judicial evaluation), the provisions of this article "play favouritism and commit irregularities" in criminal law or is convicted elements, or the circumstances of sentencing, the felony treatment can avoid repeated evaluation (4The consequence of punishment on crimes), not necessarily the sentencing is heavy, the felony processing more flexible, some amount of bribery is not great, but the consequence is very serious crime, felony treatment it is more conducive to the penalty according to the crime. So, although the theory and practice of graft and bribery concurrence processing problems have different views, but specific to the criminal law article168,169Provision, one felony treatment significantly more reasonable.

Six, the crime of identity change before and after the reform

The main actor in the crime status changes, typical in the duty crime cases in this field, the state funded enterprises is particularly prominent. In view of this, "opinions" on the relevant problems made specific provisions, mainly has following several aspects:

First, aProcessing identity change before and after the implementation of the same type of crime. In the process of drafting a view, it belongs to the continuous crime, crime of violating the end be convicted and punished. For example, before reforming with the status of national staff, used his position to facilitate the occupation of enterprise property, after the reform has no national staff to use convenient position on enterprise property, should be based on the restructuring of the accusation that embezzlement conviction and punishment. "Opinions" to the number crime processing opinion, provisions"State personnel in state funded enterprises before the implementation of the crime by taking advantage of his office, in which no longer has the status of national staff and implement the same behavior, according to the different crime shall be convicted, respectively, and combined punishment for several crimes." The main reasons are: the criminal behavior is different from the objective behavior, the criminal law based on the different subject identity and will be the same type act as different crime, it should be regarded as the crime of different properties. Continuous offense only for the same crime, the provisions of this paragraph situation does not belong to continuous offence. The applicability of this paragraph of time,In the specific implementation and measurement of penalty may be some unreasonable phenomenon, such as,Behavior in restructuring before or after the restructuring of the behavior, did not reach the duty crime case of standard, but the total amount has reached any charges the amount requested, for such behavior will not be treated as a crime. We think that this problem belongs to the legislative problem,Since the criminal law according to the identity will be related to act as different crime, justice should not be arbitrarily change.

Second, the implementation of an embezzlement behavior but the identity change before and after treatment. The characteristics of this form is implemented an embezzlement behavior but has the convenience of duty of national staff and non national staff of two different identity. In this regard, "opinions" clearly should be convicted and punished for corruption, the main consideration is: (1At the same time) that offend the crime of corruption and embezzlement two charges, but in fact only one behavior, can make the imaginative joinder of offenses understanding. According to the imaginative joinder of offenses one felony processing principle, should be based on the crime of corruption processing. (2) that is different from the common crime in the multiple subject of crime by different identity position convenience, no effect of different status and functions to facilitate the related (respectively3) to corruption, "opinions" and the1Article2On enterprise restructuring is completed that is regarded as the accomplished provisions in the logical consistency.

Third, processing about identity change after accepting bribery. "Opinions" provisions, "state personnel in state funded by the enterprise restructuring process of post as trustees to seek interests, agreed in advance in it no longer has the status of national staff after receiving property as trustees, or changes in identity continuously from a request property, in accordance with the provisions of article 385th of the criminal law, article 386th the bribery crime, conviction and punishment." This paragraphIs the main provisions"The Supreme People's Court on the national staff taking advantage of his position to seek benefits for others, retired after accepting property behavior how to deal with the issue of approval" and "two high" "for bribery in criminal cases the law applicable to a number of issues" the principle to determine the concrete application of. "The Supreme People's Court on the national staff taking advantage of his position to seek benefits for others, retired after accepting property behavior how to deal with the issue of approval" and "two high" "for bribery in criminal cases the law applicable to a number of problems in the" prescribed respectively, state personnel who take advantage of their office to seek benefits for trustees, and the first agreement and request in the personnel, retired after the taking of property as trustees, which constitutes a crime, the crime of accepting bribes to conviction and punishment; the state personnel who take advantage of their office prior to the trustees to seek benefit or, in the agreed after accepting property as trustees, and receive after leaving office, shall be punished for taking a bribe state personnel who take advantage of their office, for the benefit of trustees, before and after leaving continuously from a property as trustees, before and after leaving take part shall be included in the amount of bribes.

In the process of drafting a views, the judicial documents "in advance" elements, mainly rely on the line, taking both confession, in practice it is difficult to identify, suggested to cancel "prior agreement" requirement, or clear as long as you have the convenience of duty for the benefit of others and accepting bribes two points can be established, bribery presumption. The study, first of all, there is a correlation between accepting property and state functionary, is the inherent requirement of the bribery crime. For does not have the status of national staff who receive property behavior, it is necessary to "prior agreement" to establish such a link this link. Otherwise, it may cause the objective imputation. Moreover, the crime of accepting bribes functionary crime, will not have the status of national staff who receive property behavior are identified as the crime of accepting bribes, subject of bribery is inconsistent. Secondly, only according to the identity for the interests of others and no identity to accept others' property two, it is not enough to overcome the "without prior agreement", in the premise of legal provisions on related crime is no burden of proof of the judicial documents, in the form of push system, lack of legal basis, but also conflict criminal procedure and the principle of presumption of innocence, the "opinions" are not adopted.

In the understanding of the provisions of this paragraph "identity changes continuously from a property as trustees", should pay attention to the1Distinguish between the provisions of paragraph. Article1The provisions of paragraph is different job convenience by different identity of the implementation of a number of acts, it should be combined punishment for several crimes; the provisions of this paragraph is only using the convenience of duty of national staff for the benefit of others, the implementation of a bribery, it should be based on the bribery crime. When using the convenience of duty as non state staff to seek benefits for others to accept bribes, should apply the1The provisions of paragraphs, and combined punishment for several crimes.

In addition, the "opinions" in the process of drafting of enterprise restructuring completed time point are discussed. Enterprises generally lasted longer, many aspects need approval, the restructuring plan assets, financial auditing, assets evaluation, trading, property rights transfer contract signed, the delivery of property rights, industrial and commercial registration, the enterprise restructuring process each link all possible post crime. In view of the complexity of the actual situation, it is difficult to provide a one that the applicable standards, and how to determine the completion of the restructuring of state-owned enterprises, but also an important issue related to the identity, behavior conviction and criminal attempted both cognizance sentencing, the "opinions" are not specified, but for the judicial practice to master. From this situation, the main form of identification and substance identified two types of differences of opinion. To recognize opinion to change registration. In view of the practice registration is usually delayed very long, the restructuring of enterprises has not yet for the change of registration, but due to the delivery of property rights has been completed, property right transaction has been completed, the management has been changed, public management activity has ceased to exist, so we tend to essence of that opinion, namely: before the change registration, property transactions have been completed, to seek truth from facts as enterprise restructuring has been completed. At the same time, need to pay attention to avoid the standards that are too near the front. For example, some suggestions on the "contract of property rights transaction effect" as the standard reorganized. Obviously, the entry into force of the contract does not mean that the property has been delivered, the nature of the company has changed, the related restructuring work has not completed, is still uncertain, still relevant official activities need to continue treatment, the opinions are wrong.

Seven, about the state invested enterprises China home staff identified

The enterprise appointed by state functionary is a difficulty in judicial cognizance of national investment, is also the "opinions" to a problem. "Opinions" article6A delegation from the appointment form three aspects, main body and the dual identity of this problem is clear. Among them, the core content is embodied in Article2On the main body of the specified delegate. Accordingly, it is normally considered does not belong to the national staff of the part of the "indirect appointed" personnel will be conditionally included in the identification of the delegated personnel. Are described as follows:

1Appointment form

The problem of "national courts in cases of economic crime ForumSummary of the existing "principleRegulationsIn practice, taking into account the deviation still exist in the understanding and treatment of the problem, the "opinions" to further clarify the. "Summary" regulations, "the appointment, is appointed, dispatch, the variety of forms, such as the appointment, assignment, nomination, approval etc.. No matter how the person appointed identity, as long as it is to accept state organs, State-Owned Company, enterprise, unit, on behalf of the state organs, enterprises, institutions, State-Owned Company in the non State-Owned Company, enterprises, institutions, social organizations engaged in organization, leadership, supervision, management and so on, can be identified as the national authority, State-Owned Company, enterprise, unit to a non State-Owned Company, enterprises, institutions, social organizations engaged in public service. Such as the national authority, State-Owned Company, enterprise, unit in organization, leadership, supervision, management in state-owned or shares of the Limited by Share Ltd personnel, should be based on the state functionaries." Reflected in the implementation of "summary" treatment for the following problem is not clear, namely: for human behavior by the appointing Party nomination as state-owned units, then was appointed party in accordance with its own internal procedures for the election situation can be recognized as the national staff. In this regard, a kind of opinion thinks, although such personnel in the office, on behalf of the interests of investors, but the office is not appointed by the state-owned units based on the enterprise, but the election, his term of office is the embodiment of the whole will enterprise decision-making mechanism, but also reflects the common will of all the investors, the is not only the state interests of investors, is more important to the overall interests on behalf of the company, so people should not be regarded as the national staff.

The study,For the extension and the delegate connotation, characteristic from two aspects to understand and grasp: one is the form characteristic, delegate in the form can not to stick to one pattern, such as the appointment, assignment, nomination, recommend, approval, consent, approval, all can; two are the essential characteristics, to represent the state organs, enterprises, State-Owned Company in the non State-Owned Company, institutions, enterprises, institutions, social organizations engaged in organization, leadership, supervision, management and other business activities, which directly represent the will of the state-owned units. Along with the enterprise management system to improve and perfect the enterprise, a member of the board of directors and the general manager shall be made by the shareholders' meeting or of the board of directors (except for the election of a wholly state-owned company board members appointed directly by the related department), and state-owned investment units to have only nomination, recommend the right. If in accordance with the above views, will fundamentally remove in criminal justice appointed by the possibility that the personnel engaged in official business. Distinguish key if any is not the direct source of human behavior in management positions, but whether it will conduct management positions and relevant state-owned units has relevance and continuity. Behavior in this situation people are able management in non state owned enterprises get the job, assignment and state-owned investment units are inseparable. Specific in what procedures, form of non state owned enterprises management position, regarding the establishment by and not found no decisive. Therefore, the "opinion"1Clearly, "the appointment mechanism and specific procedures, do not affect the identification of national staff."

2,Assigned to the main

Joint stock system becomes the main realization form of public ownership of the present, many times appointed, each assigned a situation exists in practice, how to balance the enterprise actual, protection of state-owned assets and fair punishment basis, that national staff, state-owned capital holdings, shares of the company's law properly, is a problem needing urgent to solve the. Treatment of this problem, "opinions" of the drafting process mainly have the following several kinds of ideas:

First, to amend the criminal code, uniform charges, cancel the existing legislation related difference identity respectively, the implementation of the integrated protection of state ownership economy and non-public economy. Through the research, the train of thought of the penal code modification and improvement of the direction of development, but from the present situation conditions are not met, the time is not ripe: one is a state invested enterprise ownership structure, management system and the requirements of modern enterprise system and the gap, need further improvement; the two is to consider the development in the statutory penalty allocation equal protection means, will directly reduce the enterprise Chinese home staff sentencing standards for state funded, inconsistent with the severely punish corruption policy requirements.

Second, re interpretation of criminal law "State-Owned Company, enterprise", as the state-owned holding company State-Owned Company. The opinion, engaged in the management work in state-owned holding company, enterprise personnel, in addition to the non state owned units assigned to state-owned holding company, enterprise, exercise their functions and powers on behalf of the non state-owned investment entity personnel, should be treated as state functionaries. By a state-owned holding company, enterprise assigned to companies and enterprises, representative appointed by the state-owned holding company, enterprise engaged in the management of personnel, should also be treated as state functionaries. Reason.1State-owned holding company, enterprise) Chinese capital dominant position, in its subordinate company, enterprise often to the state-owned assets, and even some State-Owned Company, enterprise in the restructuring of state-owned capital holdings overall under the listing Corporation (2) state-owned holding company, enterprises with social and economic goals, the economic target support public goals, relates to the national economy and national economic security, should strengthen the protection of assets to the China (3State Administration of state-owned holding company), statistics, and there is no difference between the pure State-Owned Company, enterprise, such as the economic operation of the Ministry of Finance Statistics of state-owned enterprises and state holding enterprises together (Statistics4A wholly state owned company, enterprise) in the strict sense has been very little, for the state-owned holding company, enterprise management personnel not to state functionaries, the provisions of the criminal law by the state to engage in public service staff appointed by the legislative intention will be lost. After study, the views of full consideration of the actual situation of the enterprises, but there are many legal and practical hurdles: (1Company law obstacle). Company law gives the company legal personality, independent of the particular company property ownership, to control the position of investors to judge the nature of the company is appropriate, how to reflect the status of the main investment, other investment, rights and interests, will become a problem. (2The provisions of the criminal law on the logical disorder). According to the "criminal law" article93Provisions, "State-Owned Company, enterprise...... Assigned to non State-Owned Company, enterprise...... Personnel engaged in official business...... In order to state functionaries". The non State-Owned Company here in general, logic should be state-owned capital holdings, shares of the company, because, only just talk in the presence of state-owned capital case to appoint staff engaged in the management, supervision and other business problems. (3The realistic obstacles of criminal justice). According to "the Supreme People's Court on state-owned capital holdings, shares of the Limited by Share Ltd engaged in the management of the personnel of the company by taking advantage of the illegal possession of property to the conviction of approval" opinion, can be inferred to have capital holding or joint stock company itself does not belong to the State-Owned Company. (4Judicial judgment), operational barriers. How to determine the quantitative standard holdings, which in theory and practice is always a problem, especially considering the equity share of variable holding and the resulting uncertainty or not.

Third, make appropriate explanation for the accreditation body expansion. This is the "opinions". "Opinions" article2Paragraph, "by the state invested enterprise management, responsible for the supervision of state-owned assets of responsible organization approval or decision research, on behalf of the state holding, shares of companies and their branches in the organization, leadership, supervision, management, management personnel, should be identified as the national staff." The main reasons are: (1Large state-owned enterprises after the restructuring) management mode has not happen big change, management status and duties are basically unchanged. "The two delegate" does not belong to the traditional mode of cognizance of the appointment, do not reflect the actual situation. (2Party cadres) according to the principle of organization, enterprise general set Party committee at the same level or above, and by the decision of Party committee of personnel appointment and removal. (3The state invested enterprises) to responsible for the management, supervision of state-owned assets of responsible organization decided as the connecting point, not only reflects the current state invested enterprise management practice, and reflects the public activities in the authentication of national staff in accordance with the requirements of the scope, can guarantee the legitimacy, certainty and restrained.

In the process of drafting the opinion points out, according to the "enterprise state asset law" article22Article, article11The provisions of the national staff, refers to the agency performing capital contributor's duties in accordance with laws, administrative regulations and provisions of the articles of association of the enterprise, appointment or suggest the appointment or removal of state funded enterprises relevant personnel. The performance of the functions of the capital contributors, including institutions: state owned assets supervision and administration institution of the state owned assets supervision and administration institutions and the local people's Government in accordance with the provisions of the State Council set up by the State Council and the local people's government; according to the needs of people's government at the same level, the authorized representative of state funded enterprises to fulfill the responsibilities of investors of other departments, agencies. Therefore, only by SASAC and other state organs assigned personnel belonging to national staff. After study, the opinion is mainly industry management position based on the conclusions, the scope of state functionary whose establishment was too narrow, are not in conformity with the provisions of the criminal law and the objective reality, such as criminal law article93Article assigned subject that includes the state organs, including the State-Owned Company, enterprise, institution, it is not accepted. Another opinion, this provision is lack of legal basis, the state-owned assets management as a business behavior is worthy of scrutiny, also do not accord with the requirements of modern enterprise system and corporate governance. Through the research, the supervision, management, management of state-owned assets for the understanding of the official activities, in line with the current actual situation of the enterprise of the state capital, is also the practice of judicial practice, the current situation of such personnel in the non national staff treatment may result in greater inequality, it did not adopt.

In the specific application of the provisions of this paragraph, should pay attention to the following questions: (1On the responsibility of managing), supervision of state-owned assets of responsible organization. Here the so-called "organization", in addition to the state-owned assets supervision and administration institutions, State-Owned Company, enterprise, institution, mainly refers to the superior or the state funded enterprises party, Party committee. (2A representative). There is no representation is that a contains elements assigned source. Although the relevant organizations to study the decision, but the assignment has no relation with the organization, be Wei sent no relationship between duty and obligation to the organization, should not be regarded as the national staff. (3On the official). The state invested enterprises business activities mainly manifests for the state-owned assets of the organization, leadership, supervision, management, management activities, business activities of enterprises in general should not be recognized as official. (4A state funded) enterprise branch office. In the company, enterprise or its branch, in the legal sense for the related state staff identified no inevitable, given the branches existed in enterprises state funded, the "opinions" in particular to explain. In this regard, the relevant documents are clearly defined, for example, "the leading personnel of state-owned enterprises and engaged a number of provisions" of article2Regulation: "these Provisions shall be applicable to the state-owned enterprises, state-owned enterprises (including state-owned financial enterprises and state-owned financial enterprises) and its branch institutions leadership team members."

3The double identity

State-Owned Company, enterprise restructuring for state-owned holding, shares of the company, the state hold some shares, people also hold some shares, after the reform of enterprise behaviorNot only on behalf of himself or others at will, also represents the state capital, the will of the subject of the case, whether recognized the status of national staff, there is disagreement in practice. In this regard, "opinions" clear,"State funded national staff in enterprises, who hold shares in the state-owned enterprises and non state-owned shareholder or accept commissioned, that does not affect the status of national staff." The main consideration is: Although the situation behaviorWith multiple representative, as a state invested enterprise management personnel, first of all need to represent the interests of the enterprise; state-owned capital as the subject of personnel assigned, and need to be responsible for the state-owned investment main body; as the actual investor, representative, also has a personal interest however, three kinds of interests is also a consistent whole, can not be artificially separated, more can not be denied.

In addition, in practice also reflects the existence of a delegate situation, after the reform of state-owned enterprises, does not contain any state-owned shares, but out of habit and other reasons, the original departments still by way of administrative examination and approval to appoint the person in charge of the enterprise. In view of this situation is special, only a special case, the "opinions" are not specified. Whether have the public nature of specifically identified tend to according to the specific activities of the discussion. General because there is no state owned assets supervision and administration in this premise, don't talk about official activities, it can not identified as national staff. However, government needs to engage in public service activities such as caucus appointed public management activities, the specific period of rectification and supervision, should be identified as the national staff.

Eight, the definition of a state invested enterprise

The definition of state funded enterprises, the cognizance of subject and object is directly related to the duty crime, so it has fundamental significance. "Opinions" article7The state invested enterprises understanding and defining the problem is clear, the details are as follows:

First, a state invested enterprise scope. According to the "state-owned assets law", "opinion" clearly, the state invested enterprises including "state funded wholly state-owned companies, state-owned enterprises, and state-owned capital holdings, shares of state-owned capital company." "Opinions" was first introduced in "a state invested enterprise" this concept, scope of application is to clarify this views. In the process of drafting, there are views, state-owned shares the company especially state-owned shareholding proportion of tiny companies are identified as the state invested enterprises, appropriate? The study, "the enterprise state asset law" for the state-owned shares is not state-owned shares and state-owned shares proportion based on rather than size, "opinions" provisions, the state funded enterprises, aims to provide a basic condition for the determination of the working personnel of the state, the state invested enterprises in staff does not necessarily is the national staff, so there is no question that range expansion.

Second, about the criminal law "State-Owned Company, enterprise" understanding. In view of the problem is more complex, the large differences of opinion, the "opinions" unspecified. However, the "opinion"1A wholly state-owned company, state-owned enterprise and state-owned capital holdings, shares of state-owned capital by the criminal law provisions, in fact in the State-Owned Company, enterprise only a wholly state owned company, enterprise. This is also the long-term judicial practice always grasp the standards, "the opinions from the Supreme People's Court on the state-owned capital holdings, shares of the Limited by Share Ltd engaged in the management of the personnel of the company by taking advantage of the illegal possession of property to the conviction of" can also be inferred replied: "engaged in the management of the state-owned capital holdings, equity participation Limited by Share Ltd personnel, except by state organs, State-Owned Company, enterprise, unit engaged in official business, do not belong to the national staff." "Of enterprise registration regulations" registered types also have clear rules, "state-owned enterprises refer to enterprises of all assets are owned by the state, and press"The people's Republic of China Regulations on the administration of the registration of enterprises as legal persons"Provisions of registered unincorporated economic organization."

Third, about theThe definition of state funded enterprises. For enterprises (decoupling) related crimes especially corruption crime, often encounter the enterprise registration in the source of funds and real investment, enterprise does not match the actual investment situation is not clear and the sponsor parties were not actual investment property nature are difficult to define the problem, and the nature of the enterprise is defined, and are often related to the identified the crime with the non crime, this crime and other crime. Therefore, "opinions" made clear the three point principle Views: one is the state invested enterprises is not clear, follow the "who investment, who owns the property" of the principles defined; two is the enterprise registration in the source of funds and real investment not, according to the actual situation to determine the nature of the enterprise investment; three is the enterprise actual investment situation is not clear, can be integrated with industrial and commercial registration, distribution, management and other factors determine the nature of the enterprise. The three points of view, the main reference to the relevant provisions of the administrative regulations and other documents. For example, "the definition of property of state-owned assets and property disputes Interim Measures" provisions, the definition of property right should follow the "who investment, who owns the property" principle. In the process of defining, maintaining the owner of state-owned assets and business users of the legitimate rights and interests, and shall not infringe upon the legitimate rights and interests of other property owners. Dealing with property disputes should be based on justice, seek truth from facts, the principle of fairness in accordance with the law. "'ownership of state-owned assets of enterprises define Interim Provisions' that" clearly, in the definition of ownership, should not the economic nature of registration with the enterprise legal person to define the assets of the enterprise, and to trace the initial investment funding sources, according to various economic compositions "who investment, who all, who benefits" principle. "The State Administration for Industry and Commerce on issues concerning approval of the economic nature of enterprises reply" emphasize, re approved the economic nature of enterprise should review submitted by the enterprise registration documents reflect the property ownership, sources of funds, the form of distribution, respectively, the situation to be addressed.

The development of enterprises in our country has experienced a special historical period, the enterprise asset accumulation and relates to investment, management, preferential policies and labor accumulation and other factors, the definition of enterprise property in accordance with the three principles of the views of the specific need extra careful. According to the relevant provisions, in the following situations can be considered: (a state invested enterprise1) funded by the state enterprises to bank loans or loans and other forms of financing start-up companies, enterprises (2Funded enterprises) loan guarantee established, in accordance with the state invested enterprise registration and management, enterprise (company3A state invested enterprise, according to) run state funded enterprises registered and operating management, to the start-up companies, the name of the enterprise raising funds to carry out business of the company, the enterprise.

In the process of drafting opinions put forward, "the enterprise state asset law" from the provisions of state-owned capital in enterprises of different enterprises share capital to the state funded, but this kind of capital relationship can only be embodied in the country for a class enterprise investment. Through research, the advice was put forward from industry management and enterprise legal person property right angle, the majority opinion, with state assets constituents of the enterprise will not belong to the state invested enterprises, which is not in accordance with the criminal law article93The provisions of the state invested enterprise spirit, the actual operational situation and long practice of criminal justice practice, is also not conducive to the protection of state-owned assets, it is not accepted.

Nine, regarding leniency to implement the criminal policy

A long period of time, the enterprise reform is mainly in the policy driven, the administrative instruction explore development, enterprise restructuring Chinese assets in addition to act maliciously occupy, reason and understanding of policies, methods of work, the objective conditions. For example, some places regardless of price and income, lower index, time limit, time schedule, concentrated mass to non state investors transfer of state-owned property rights. For enterprises related crimes, in adhering to the law and severely punish corruption crime at the same time, attention should be paid to treat the problem comprehensively and objectively, history, development, be advantageous in a rational, ensuring a high degree of unification of legal effect and social effect. Therefore, the "opinion"8Specialized the lenient and severe criminal policy specific implementation issues, "considering the historical conditions, enterprise development, employment, social stability and other factors, concrete analysis of concrete conditions, to draw the line between" strict grasp the crime and illegal behavior, and do not apply to strict, lenient circumstances and property punishment made specific provisions. Are described as follows:

First, a strict conditions. Keep the pressure up to punish corruption, strictly punishing corruption, is a long-term policy of corruption prevention and punishment in our country. For in a state invested enterprise and enterprise restructuring, property transactions, subjective malice obviously, serious damage to the country and the interests of workers, bad social impact, the masses have strong play favouritism and commit irregularities, corruption and bribery, dereliction of duty and other serious crimes, must be resolutely punished according to law from; in that light mitigating circumstances, reduce the standard the extent of penalty, probation, exempted from criminal punishment applicable to strictly grasp.

Second, about the lenient circumstances. The problem of loss of state assets under specific historical conditions due to policy reasons, such as from a cause, make an inventory of assets restructuring tasks, arrange employment etc.Provide a variety of preferential conditions to "zero assets" transfer or, no resort to deceit in assets, assets assessment process,People have no obvious subjective criminal intent, in general, has no harm to the society, or if the circumstances are relatively minor and the harm is not great, should adopt the civil, administrative means to solve, cautious punishment. Therefore, "opinions" provisions ", to the specific historical conditions, in order to successfully complete the enterprise reform and the implementation of the legal provisions of the state policy violation behavior, behavior without malice or subjective malice is not obvious, if the circumstances are relatively minor, the harm is not great, not as a crime."

Third, about the property penalty. In order to minimize the state-owned assets, appease the injured worker masses, taking into account such crimes in order to obtain illegal interests, to intensify economic sanctions, can play a preventive role of penalty, the "opinions" stressed, the state invested enterprises in the duty crime, full attention must be paid to the property punishment the application and the booty work. No gains, in determining the penalty shall be considered as an important plot.

 

 

(the Supreme People's court Xing Erting)