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Study On The Crime Of Breach Of Trust To Damage The Interests Of Listed Companies

Posted on:2011-07-14Degree:MasterType:Thesis
Country:ChinaCandidate:W LiFull Text:PDF
GTID:2166360305957664Subject:Law
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The crime of breach of trust to damage the interests of listed companies had been passed in the twenty-second session of the Eleventh National People's Congress. In this paper, the crime was the researching task. Relying on related theories about company law and criminal law, a comprehensive analysis of the legislative background, constitutive elements of this crime, application of the crime, and a way to perfect the criminal system of breach of trust has been suggested.This paper is divided into four parts:The first part is outline, focusing on the legislative reasons and realistic meanings of this crime. The listed companies play a more and more important role in the social economy of the our country, but, because of the imperfection of the company structure and the supervisory mechanisms,the behavior of disobeying a faithful obligation to damage the benefits of listed companies by the actual controllers, the controlling shareholders and the senior managers becomes more and more worse, which rises a threat to the shareholders and the creditor of the listed companies,even the whole capital market. For a civil and administrative way to check this kind of behavior is not work effectively, a way to prohibit this behavior by criminal law is in need greatly. Under this background, this crime is adopted to the social need. Meanwhile, it can make positive effects to perfect the supervisory mechanism and to declare honesty which is in need to the development of market economy. This part is the logic point of the whole research, laying the foundation for the rest part by discussing the reasons of establishing of this crime and the positive meanings.The second part is a detailed explanation about the constitutive elements of this crime, which is the object of crime, way of act, subject of crime and subjective aspect. This part is the major in this paper. The object of this crime is complex, containing the orders to listed companies and the benefit to the listed companies and its shareholders and creditors. The way of act, which is the most important part, is described in details in the law. Specifically, all the followings must be matched:(1)breach the duty of trust,(2)make use of the convenience of positions;(3)manipulate the listed companies;(4) take serious losses to the listed companies. The subject of this crime contains the directors, the supervisors, the senior managers, the actual controllers and the controlling shareholders. Among all the subjects, the recognition of the actual controllers and the controlling shareholders is the most difficult and the most important.The subjective aspect of crime is, and only can be direct intent. The purpose of this part is to make sure the conviction and measurement of penalty. Meanwhile, for the short of cases, there're different voices on related problems, so the differences has been analyzed and immature viewpoints have been putting forward.The third part declares the problems on the application of the crime of breach of trust to damage the interests of listed companies. When implement the penalty, the problems about whether it is a crime, how to distinguish this crime from others, joint offence, and unit offence must be sure. Serious loss is the main factor to distinguish crime from misfeasor, and the level of "serious"shall be elucidated by judicial interpretation. The main problems in this part is the way to distinguish this crime to others in similar. In former criminal code,there are already some punishment established because of obeying the faithful obligation, so there must be some equal parts between those crimes and this one, which must been explained explicitly. Besides, it is necessary to make sure the subject in joint offence and unit offence. Generally speaking, director is an actor in this crime and the supervisor cannot be a offender solely.In the case of unit offenders, the theory of "spur the veil of the corporation"must be considered.The last chapter is about the defect of the crime and the way to improve it and some relevant issues. This part is divided into two layers. The first one points out the defect of the crime and the way to improve it.specifically,the following three points need to be improved:(1)the targets of this crime is limited in listed companies,which is not favorable to against the criminal;(2)the actual controllers and the controlling shareholders can only be convicted because of abetting. To fight against this crime, such stipulation shall be cancelled;(3)in the criminal code, there is no qualification penalty. It will be more effective in practice if the qualification penalty be used. In the second layer, whether a penalty to comprehensive behavior of breach of trust is under discussion.By introducing the lawmaking of abroad, analyzing the social circumstance of China, and different opinions among learners in China, it comes to a conclusion that to establish the crime of breach of trust is in need, and the reasons are under discussing in the last of the paper..
Keywords/Search Tags:The Crime of Breach of Trust to Damage the Interests of Listed Companies, Constitutive Requirements, Judicial Application, Improve
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