| The state economy is the economic foundation of socialism and the leading force of the national economy. To protect the state-owned assets is an important task of the criminal law. With the reform of the economic system, the basic national economic systems and the ways to realize public ownership changed a lot. The composite-ownership system has become the basis of the operation of the market-oriented economy. Planned and pushed forward by the government, ECOS (Enterprises of the Composite-Ownership System) with state-owned shares, born in the corporate transformation centering in the reform of property rights of the state-owned enterprises, have become the main carriers of the state economy. In the course of institutional and system transition, the contradiction between the public nature of the state-owned assets and their private operation has led to various drawbacks in the present management system and the operation mechanism of state-owned assets. In addition, because of the incomplete legal protection system and the weak sense of morality, public ownership may tend to bring serious criminal affairs which is difficult to curb the trend. In the field of judicature, the conflict between the absence of the "gatekeeper" and the direct interest principle followed by litigation system has led the criminal law in protecting state-owned assets in ECOS into dilemma.Under the circumstance of the transitional economic system and the country governing strategy, the Composite-Ownership System as the main carriers of the state economy hasn't received due attention and systematic study on the criminal law protection in the field of criminal law, the legal development is lagging behind economic development. Therefore, to study the criminal law to protect the state-owned assets in ECOS is essential to adapt to the economic transition and to respond to social development. On the basis of integral regulation in the market-oriented economy and the principle of equality, by transforming the notion on criminal law in protecting state-owned assets centering state right into people oriented and law based notion, and directed against the specific characteristics in the criminal protection system of state-owned assets in ECOS and the problems in the judicial practices, I dedicate the discussion of the perfection of the criminal law in protecting state-owned assets in ECOS in the field of legislation. In the field of judicature, I dedicate the discussion of the construction of the procedure-starting mechanism of the criminal justice protection of state-owned assets in ECOS, for the purpose of the perfection of the criminal law protection system from legislation to judicature of state-owned assets in ECOS, the realization of the benign recycle of criminal integral operation and the protection of the replaced by organizational forms standards.This dissertation falls into six parts. The highlights of each part are as follows:â… . IntroductionBase on China's reality of the fundamental change in the basic socialist economic system and in the ways to realize the public ownership, this part collects and analyzes the present theoretical researches on the criminal law in protecting state-owned assets in ECOS and makes clear the significance of this research subject. The subject of this research is China's criminal law in protecting state-owned assets in ECOS in the conditions of socialist market-oriented economy.Based on the background of market-oriented economic system, through defining the natures and the forms of ECOS and analyzing the present laws and regulations concerning the legal protection of state-owned assets and their influences on the present management system and operation mechanism of state-owned assets, the purposes of this research are - (1) to discuss the causes of offenses against State-Owned Assets in ECOS, (2) to analyze the present legislation and judicature concerning the criminal law in protecting state-owned assets, and (3) to put forward specific suggestions and ideas for the criminal law in protecting state-owned assets in ECOS.In this part, it is made clear that the research is guided by the basic theories of Marxism, especially Deng Xiaoping Theory and the Important Thought of "Three Represents". The method of this research is the combination of historical research, legal and economic analysis, literature analysis, and theoretical and practical analysis. Basic concepts concerning the ECOS are defined in this part to meet the need of the research that follows.â…¡. Necessity of the Criminal Law in Protecting State-Owned Assets in ECOSThe criminal law in protecting state-owned assets in ECOS is the objective requirement of economic development in the course of economic transition. In the ownership structure, China has no longer depended on the economic structure of single public-ownership system. The composite-ownership system is a new type of ownership system and is the basis of the operation of socialist market-oriented economy. In the form of enterprise, ownership standards are being replaced by organizational forms of standards. ECOS, born in the reform of the state-owned enterprises, have occupied a more and more important economic role, and have become the important enterprises' organizational form. Accordingly, the ways to realize the public-ownership system and the existing formation of the state-owned assets have experienced dramatic change. As a result, ECOS, with state-owner assets included, have become the main carriers of the state economy. This economic base that determines the superstructure, the changes of ownership and the form of enterprises produce the need for legal protection including criminal law.The transition of the country governing strategy needs perfect legal systems. Since economic transition brings the changes of state-owned assets carrier and ways to realize it, it is necessary to have legal protection and norm including criminal law. The economic status of ECOS has not been effectively embodied in the constitutional law, civil and commercial laws, criminal laws, administrative laws and so on. Criminal law is an important component of the legal protection system of state-owned assets in ECOS, and it is the means necessary to protect the state-owned assets in ECOS. Under the guiding principles of the constitution, which play the security role of criminal law, and coordinate with administrative law, civil and commercial laws to build a legal system to protect state-owned assets , it is inevitable for protection of state-owned assets in ECOS to choose criminal law under the transition of the country governing strategy. â…¢. Causes of the Violation against State-Owned Assets in ECOSThe causes of the violation against state-owned assets in ECOS should be studied from the angles of both society and individuals. Under the circumstances, state basic economic system has reformed and the existing forms of state-owned assets have changed, the violation against state-owned assets in ECOS appears to be uncontrollable because of the absence of responsible subject, the lack of the legal protection system and the fainting of public moral notions.The absence of responsible subject is the system and mechanism that cause the violation against state-owned assets in ECOS. There are many drawbacks in current management system and operation mechanism, e.g. the management system and operation mechanism of multilayer authorization and principle- agent haven't resolved the problem of the presence of investors, the "two rights separation" of ownership and management can not restrain the benefit preferences of "economic man". As far as the reform of the state-owned enterprises guided by the modern western enterprise system is concerned, the differences in political and economic systems and cultural backgrounds have made the "the system design of Corporation Governance Structure" transplanted from the Western countries lose the foundation. The roots of the violation against state-owned assets in ECOS can be traced to two causes. The first is the contradiction between the public nature of the state-ownership and its private operation. The second is the fact that the basic route of thinking followed by the course of turning state-owned enterprises into companies cannot conform to the reality in China. This leads to the problem of the absence of responsible subject in the management and operation of state-owned assets.The lack of the legal protection is the legal cause of violation against state-owned assets in ECOS. In the constitutional notions, composite-ownership-system economy does not enjoy equal treatment and integral protection as public-ownership-system economy and collective ownership-system economy. In the planning economic system, the emphasis on administrative management and the thinking patterns which overlooks the civil laws, commercial laws and criminal laws affects the construction of the legal system. This affect is reflected in the insufficient protection of the state-owned assets in ECOS and the oversight and separation between the criminal laws and other department laws, which leads to the lack of legal protection of the state-owned assets in ECOS. Therefore, the occurrence of violation against state-owned assets in ECOS cannot be prevented and restrained effectively.The evolutions of notions of public morals and public property are also the non-negligible factors that lead to the violation against state-owned assets in ECOS. The social transformation and economic transition have caused the public morals to become faint, that is, the function of society morals as a means to adjust people's behavior has been gradually weakened. The evolutions of notions of public properties have blurred the notions of public interest rights, which makes people overlook the loss of state-owned assets and causes the lack of society supervising. The interplay between internal incentive originated from greed and the weakened external supervising causes the increased rate of offenses against state-owned assets in ECOS.â…£. Current Criminal Law Protection and the Problems of State-Owned Assets in ECOSThere are a large number of stipulations regarding the punishment of violation against state-owned assets in current criminal laws. These stipulations scatter in penal code, specific and accessory law of the criminal laws, which forms the basic system of the criminal law. This system adopts the combination of general protection and special protection and contains the measures and policies strictly managing and restraining the staff working for the country, which is basically geared to the need of the criminal law in protecting state-owned assets. The legislative concepts of the system of the criminal law in protecting state-owned assets have showed two distinctive features. The first is the legislation concept of the criminal law protection of state rights has become more pointed; the second is that the concept of differential treatment and protection has become more prominent.Countries with different legal systems have different legislation concepts towards the criminal law in protecting state-owned assets. Communist countries generally emphasize public property and the special protection of state-owned assets while countries with continental legal system and Anglo-America legal system often give equal treatment to public property and individual property. With the evolutions of the times, the value concept of the criminal law in protecting state-owned assets has changed greatly and inclined to stress the safeguard of human rights and equal protection with other economy, which reflects the characteristics and spirits of modern times. In order to adapt to New Era and respond to the reform in society systems, the principle of implementing equal treatment and integral regulation has become the value orientation of the criminal law in protecting state-owned assets.There are deficiencies in the criminal law protection system of state-owned assets in ECOS. Firstly, there are omissions in concepts. As time and system evolves, the concepts of the tasks of the criminal law, crimes and public properties ignore the protection of state-owned assets in ECOS. This is an omission in the protection of state-owned assets. This omission leads to a contradiction in the criminal law between the general provisions and the regulations of protecting enterprise properties of ECOS in the specific provisions. Secondly, there are omissions in the scope of adjustment and regulation. The criminal law divides the types of enterprises according to the forms of ownership system and ignores the protection of state-owned assets in ECOS, which limits the range of subjects of the criminal law in protecting state-owned assets. The criminal law also treats the crime subjects of natural persons differently according to their different status, which leads to the occurrence of dealing with a minor offense as if it were a major one and vice versa and also ignores the regulation and punishment of some subjects who offend state-owned assets in the same degree. Thirdly, there are quite a few conflicts between the principles and stipulations within the criminal laws. The special protection that the criminal law gives to the state-owned economy has not conformed to the practical structures of the ownership and the present enterprise types registered in our country. This special protection of state-owned economy has produced many drawbacks. It has separated the criminal law from administration law regulations and the civil law regulation. From the point of criminal law regulations, it has given birth to the contradiction between the regulations within the criminal law and produced judicial disorders in many aspects. This special protection of state-owned economy has fundamentally violated the criminal law spirit of equality and also has destroyed the basic spirit of criminal law system.â…¤. Perfecting the Legislation of the Criminal Law in Protecting State-Owned Assets in ECOSDirected against the deficiencies in the criminal law protection system of state-owned assets and the delay of its legislation concept, based on the characteristics of competitiveness, unity and openness of market-oriented economy competition and the need for realizing the function of the criminal law punishment, the legislative perfection of the criminal law in protecting state-owned assets should adhere to such notions as human right safeguard, integral regulation, equal protection and coordination with other departments' law. And it should make the modification and perfection of the criminal law in protecting state-owned assets in ECOS under the guidance of these notions. The specific measures are as follows.First, perfect the current legislation by adjusting to the economic transition. It should include: adjust the description of the tasks of the criminal law, the concept of crimes, the concept of public properties; enlarge the range of the criminal law in protecting state-owned assets; abolish the regulation of giving differentiated protection to different enterprise types according to ownership system; abolish the restriction of state-owned in the provisions of some crimes, treat different types of enterprises equally and enlarge the subject range of the criminal law in protecting state-owned assets; discard the traditional "status criterion" or "kinship criterion", abolish the provision of "quasi-members of the staff working for the country", provide uniform evaluation measurement and realize the use of the same punishment to the same crimes; abolish the crime provision (article 96) concerning the violation of state stipulation to realize the coordination between the criminal law and the administrative law; make the perfection and modification of the provision of punishment of qualification article 54) to control and prevent the happening of crimes committed by using the post qualification. Second, enlarge the range of adjustment to coordinate with the economy policies. The changed society needs the changes in the criminal law and the criminal policies need the coordination of state economy policies. In order to restrain the occurrence of violation against state-owned assets in ECOS, some behaviors in the operation of the newly-built supervise-and-operation mode of state-owned assets need to be connected with civil liabilities and administrative liabilities and it is quite rational to incorporate these behaviors to the adjustment range of the criminal law. To restrict and control the problems appearing in the contradiction between the public nature of the state-ownership and the private operation, according to the practice of the management and operation of state-owned assets and the harm caused by some behaviors, it is suggested to add to the criminal law offenses interfering the operation of an enterprise, offenses of controlling the state-owned assets by people working in an enterprise, and offenses of giving others the state-owned assets as gifts and to consider the criminalization of some behaviors at the same time.Third, adjust the criminal punishment system to match the crime and the punishment. The types of crimes should match the categories of punishment so that the nature of the criminal punishment can accord with the nature of the crime. The adoption of the punishment with fine and qualification should be stressed and the establishment of the criminal punishment that contains the diversity of freedom punishment, property punishment and qualification punishment and gives the same emphasis on each punishment should take place of the freedom-punishment-centered criminal punishment system to conform to the reform of the criminal punishment and restrain the offenses caused by the desire for greed. From the point of the arrangement of the criminal punishment, it is suggested that the adoption of fine punishment should be emphasized and the raise of fine punishment to the principal punishment should be taken into consideration. In the circumstances it has not been stipulated, fine punishment should be stipulated to enlarge its legal application range. It is also important that qualification punishment should be added to the criminal punishment system, which can deprive the criminals of the post qualification and status qualification when they recommit the offenses. â…¥. Problems and Solutions of the Criminal Justice in Protecting State-Owned Assets in ECOSThe lack of effective precaution and powerful strike of violation against state-owned assets in ECOS has made the criminal justice protection of state-owned assets in ECOS fall into difficult situation. Firstly, it is quite difficult to start the procedure of criminal justice in the protection of state-owned assets in ECOS. The start of the procedure needs the active conducts of certain subjects. Because the absence of responsibility subject of state-owned assets is embodied on the "gatekeeper" absence in the criminal justice law and the lawsuits system in our country adheres to the principle of "direct interest relationship", the conflict between them has become the source of the difficulty of starting the procedure of the criminal justice protection of state-owned assets in ECOS. Secondly, there is the alienation of the course of placing a case on file for investigation and prosecution and the lack of powerful supervising. Some alienation phenomena such as turning large cases into small ones, dealing with major offense as though they were minor ones, and making fine substitute for punishment etc. exists in the work of public security organizations . And the unsmooth information channel, unclear legal responsibility and the oversight of system design have resulted in the passive and weak supervising of procuratorial organizations on registering work of public security organizations.The countermeasures to the perfection of the criminal law protection of the state-owned assets in ECOS are as follows: (1) study and make use of the theoretical and practical experiences in the lawsuits of public interests and make responsible subject and the supervising duty clear and reestablish the procedure-starting mechanism of the criminal justice of state-owned assets in ECOS; (2) construct the procedure-starting mechanism and supervising mechanism, with institutions in charge of the supervision and operation of the state-owned assets as the subjects of responsibilities, with procuratorial organizations as special supervisors, and with relevant units, social organizations and individuals as complementary supervisors; (3) set up precaution mechanism prior to the matters and make the working mechanism of procuratorial organizations and public security organizations perfect.
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