Research On Some Problems Of The Crime Of Managing Similar Business Illegally

The emergence of illegal similar business is based on prohibition of businessstrife in the Corporation Law. Meanwhile, it makes up deficiencies of the CorporationLaw in preventing similar business behavior, and it makes provisions that refer tosuch behavior in the Corporation Law be better implemented. Clarity is one aspect ofthe principle of legally prescribed punishment, it requires that the criminal law oughtto be as clear and specific as possible, however, there are many points of illegalsimilar business, which are not very clear. So this article will analyse thecontroversies and difficulties that exist in objective aspect, subject, and patterns ofcrime of illegal similar business, the differences between illegal similar business andother crimes and so on. As a result, on one hand this crime will protection of the legalinterest maximally, on the other hand the Striking range can be limited reasonably,and it own value will be achieved better.This article has three parts, the Introduction, Chapter I to Chapter IV and theConclusion.Controversies and difficulties of the illegal similar business both Internal andexternal is showed briefly in the Introduction. Significance of researching thecontroversies and difficulties of this crime and the structure of the whole article isalso in this part.In the part of legislative issues of illegal similar business, firstly, this part showsthe background of stipulating that the behavior of running similar business breaks thecriminal law. This crime appeared in the circumstance that the Corporation Law cannot prevent this behavior maximally. Secondly, the article discusses the legislativepurpose of this crime, I believe that the legislative purpose of this crime is that themanagement system of state-owned companies and enterprises need to be protected.In the part of several issues relating to the objective aspect of illegal similarbusiness, the article explains the understanding of “using the convenience of position”,“operating similar business for himself or others”, and “illegal benefits”. Using theconvenience of position only requires that the convenience is relevant to position, no matter use it directly or indirectly. Operating similar business means that theperpetrator has implemented the business behavior which competes to the business oftheir own unit, and this behavior is long-standing and is not partial. Establishingillegal benefits needs to take both all of the benefits of operating similar business andpersonal income into consideration.There are two levels in the part of subject of illegal similar business. The firstlevel is the determination of “state-owned companies and enterprises” in criminal law.I agree that state-owned companies in criminal law should include the state absoluteholding company holding company, but the state relative holding companies shouldnot be included. The second level is the determination of scope of “directors andmanagers”. I believe that the relevant person in the state-owned enterprises can alsobe the subject of this crime. In addition, managers and assistant managers ofstate-owned companies, managers of subsidiaries, can be the subject of this crime.In the part of establishing illegal similar business, there are four issues,approaching the behavior of operating a similar business when the circumstances isspecial, stopping forms, common crime forms of this crime and the differencesbetween this crime and some related crimes. I believe that stopping is exist in thiscrime, this crime is associated with the amount of, so establishing illegal benefitsneeds to take both target amount and personal income into consideration. It needs thesubjects have special identities to found this crime, so common crime issues of thiscrime are mainly whether other people who do not have special identities can be thesubject of this crime. I believe that people who do not have special identities can alsobe the subject of this crime, but can not be the offenders who implement the crime.This article shows differences between this crime and the crime of help relatives andfriends to obtain benefits, the crime of corruption and the crime of bribery. Todistinguish this crime from the crimes above needs to catch the key point of“operating similar business” closely. The behavior of operating must be long-standingand is not partial, and similar business requires that the business competes to thebusiness of their own unit. Only understand this key point correctly, can thedifferences between this crime and some related crimes be completely distinguished.The conclusion of this article briefly summarizes and generalizes conclusions formed in this article and views agreed by me.