Analysis Of Difficulties On The Crime Of Privately Dividing Up The State-owned Assets

The crime of dividing the state-owned assets in private is a new type of offence enacted in the criminal law 1997 but is not enacted in the criminal law 1979 and other single criminal provisons. The enactment of this crime not only has great practical significance in strengthening the protection of the stated-owned assets, but also promotes our government to be clean. As the crime of privately dividing the state-owned assets is a pure unit crime, the persons who are directly in charge and the other persons who are directly responsible for the offence shall only be punished by the criminal law. As China's socialist market economic system is continuously improved, the layout and structure of the state-owned economy is further adjusted, the corporate reconstruction of the state-owned corporates is moving in depth and the investors of the stated-owned enterprises and companies is diversified on the trend, the stated-owned companies and enterprises in the crime of privately dividing the stated-owned assets shall include the state-controlled companies and enterprises in order to meet the needs of different situations and prevent the loss of the state-owned assets.As the single penalty system which means the persons who are directly in charge and the other persons who are directly responsible for the offence shall only be punished by the criminal law, is applied in the crime of privatedly dividing the state-owned assets, we shall understand the scope of such persons in accordance with the theory of unit crime and other related judicial interpretation to prevent the enlargement of its scope. As the unite crime is characterized fundamentally by the integrity of unit will, where the related ones commit the crime in the name of unit and the illicit gains are owned by the unit or with reflecting the overall will of privately dividing the state-owned assets, the internal departments and branches in the unit commit the crime in their own name, it shall refer to unit crime and hold criminally responsible. The persons in the unit who are directly in charge and the other persons who are directly responsible for the offence in the crime of privately dividing the state-owned assets, shall only be punished by the criminal law, excluding the persons who are not the personnel of the unit, but it is established that the natural person and unit may commit joint crime hereby the persons who are not the personnel of the unit shall hold criminally reponsible on charge with the crime of privately dividing the state-owned assets. Objects of the crime of privately dividing the state-owned assets is the state-owned assets which are different from the public assets by the criminal law. The state-owned assets are owned by the state, including the assets and property income owned by the state. Based on this understanding, illicit gains,setting up illegal accounts and bonus in the various names, which is refered to the state-owend assets, will be considered the objects of the crime of privately dividing the state-owned assets. Due to the historic reasons, there is the coexistence of diversifed ownership for a long time. During the reconstruction of collectively ownship enterprises with various asset sources, the investment and income owned by the state or the state-owned units shall be refered to the state-owned assets.The objects aspects of the crime of privately dividing the state-owned assets are violationg of the state regulations and dividing the assets in private in the name of unit. We shall decide whether it is violation of the state regulations on the ground that the violation of the state regulations refers to the perpetrators'understanding and we shall adere to the principle of combining the basic rules and the flexibility. Dividing the state-owned assets in private in the name of unit does not mean that dividing the state-owned assests must be decided collectively by the unit for everyone.In the judicial practice, the crime of privately dividing the state-owned assets and the crime of embezzlement is intertwined under some cases,.Therefore we shall differentiate them based on the two crimes constituents according to the criminal law, while find out other duty crimes during the investigation of the crime of privately dividing the state-owned assets.