Study Of Several Puzzles About The Crime Of Privately Distributing State Assets

In 1997, the crime of privately distributing state assets had been added into criminal law, which has vital legislation significance for state-owned property protection and crime castigation. Whereas in the practice of judicature, it is not optimistic when disposing of the privately distributing state assets cases. Considering the circumstance of legislation and realistic situation, such type of case just accounts for a fair small proportion of total number of cases been investigated by procurator ate, on the opposite, the social problems caused by state-owned property loosing get deteriorating. It is a common conundrum on how to prosecute and adjudge such cases during the judicature. It's mainly due to some deficits in legislation leading to the contradictions between judicature theory and practice when in identification of crime principal and object, crime subjective aspect and objective aspect.This paper uses 6 sessions to analyze these key issues and provides new solutions.The 1st session is a summarization of crime of privately distributing state assets to briefly review the legislation milestones and analyze the imputation definition for crime of privately distributing state assets and crime of privately distributing confiscated goods, and then suggest the crime of privately distributing confiscated goods should also be identified as one of the crime of privately distributing state assets.The 2nd session dissertates the privately distributing state assets criminal object and target. The crime object of privately distributing state assets is state's ownership to state-owned asset and state incorruptness development system. The chapter 8 of"criminal law"identifies the object been impinged in each crime should be classified as same type of object in this chapter, the impinged object to crime of corruption and bribe is state incorruptness development system, hence, the object context of crime of privately distributing state assets should include state incorruptness development system, secondly, as individual case, crime of privately distributing state assets also impinged the ownership of state assets, include state-owned property and assets rights.The crime target of privately distributing state assets is state-owned property, state-owned property is the property droit belong to state and other assets droit. The crime target includes tangible and intangible state-owned property.There are 3 intricate problems during the identification to crime target of privately distributing state assets. The first is the discrimination on whether the private property under state-owned entity custody, utilization and transportation. State-owned asset is part of public property, the droit of private property under state-owned entity custody, utilization and transportation, does not change its essence, no matter what the reason is, it must not be cognized as state-owned property, can not be classified as crime target of privately distributing state assets. The second is the consideration of privately distributing undeclared capital in state-owned entities. It should analyze such behaviors as case by case rather than one common conclusion. It's mainly focus on the source of the capital and the purpose of"special capital account"setup. The 3rd is the consideration of definition of state-owned property during the crime litigation. Although the judge has a certain range of free judgment, but toward these highly professional, and critical issues to the conclusion of the law case, the judge should be very cautious before using the free judgment, especially to the property with complex ownership, indistinct resource. It should do analysis base on the actual situation of the case, and it must provide definition if an authoritative organization required.The 3rd session is the disputation to the objective aspect of the crime of privately distributing state assets. It could be embodied as violating the state regulation to distribute the state-owned collectivity property to individuals at a significant amount."Violation of state regulation"means the law and governance regulations related to the state-owned capital governance, utilization, disposition and financial system, which were constituted by NCP and its committee and state department. It should base on whether it's the entity volition to distinguish two characters of"in name of entity"and"collectivity distribute to individuals with no permission". The establishment criteria of law case of privately distribution state-owned property is 100K RMB, this figure amount is the total aggregation of distribution by the entity.The 4th session is mainly focus on the principal of the crime of privately distributing state assets. According to current stipulation of"criminal law", the crime of privately distributing state assets should be purely treated as unit crime.The identification of state department, state-owned company, enterprise, governance unit, people unit in the principal has been analyzed. It should base on the principle of responsibility theory to ascertain the property of state department, and limit properly. It should revise the state-owned company, enterprise from criminal law perspective to include state-owned enterprise, state-owned independent company, and state-owned stock holder company.The crime of privately distributing state assets should be revised to crime of natural person. It analyzed the deficiency of prescribing the principal is unit crime during criminal litigation from demonstration point of view and explained the theoretical gist and feasibility when revise the crime of privately distributing state assets to natural person crime.The 5th session is to dissertate the subjective aspect of the privately distributing state assets crime. In the practice of judicatory, the identification of unit crime on purpose is usually base on the purpose of the direct responsive manager and other direct responsive people, also investigate the process of this natural person intention become into unit intention, then to identify the intention of unit crime. The intention of the privately distributing state assets crime could be only the direct intention. To be the cognition element of intention of privately distributing state assets crime, the doer must know the jeopardizing society outcome of its behavior, element of intention is the doer expecting the occurrence of such result.The 6th session is to probe two difficult problems in the circumscription between guilty and not guilty, this crime and another crime of the privately distributing state assets. The 1st is the circumscription between crime of privately distributing state assets and over issuing bonus, subsidy deed; it should differentiate from the aspects of the source of the property, harmfulness to society, violation to state regulation and behavior manner. The 2nd is the circumscription between crime of privately distributing state assets and crime of corruption. During the practice of judicatory, it should consider each aspect causing the crime to differentiate these two types of crimes, to assay the case by it own situation. It also should assess the behavior's subjective intention, behavior procedure, and openness with equal weightiness, no one of these could be ignored.