The Subject Of Duty Crime Determination Of State-owned Enterprise Restructuring Process, Problem Discussed In This Paper

The loss of state asset is a crucial issue in the reform of state-owned enterprises. A new type of corruption and bribery case is to illegally obtain state asset in the process of state-owned enterprise reform. In fighting against this type of crime, it is controversial in determining if the suspect is guilty and which charge shall be applied. To answer these two questions, the most important task is to determine the status of subjects in official crimes. This is also one of the most difficult issues in criminal justice.In theory, there are three types of state-owned enterprise according to different equity structure:wholly state-owned, state-controlled, and joint-venture. In practice, only the former two types are considered as state-owned enterprise. Also, different understandings of "state-controlled" appeared in different cases. A lot of debates exist in how to determine the nature of "private in public name" companies and collectively-owned enterprises. In my opinion, only wholly state-owned shall be considered as state-owned enterprise. Regarding the nature of other types of state-related companies, the judgment shall depend on actual investment, but not purely on the registration of enterprises.For those who are appointed for public duty, both substantive and formal elements shall be considered. In other words, suspects are eligible for the subject of official crime, only when both the subject and form of the appointment are consistent with elements set up in criminal laws. As long as suspects are appointed for public duty by stated-owned units, the first or second appointment does not matter in determining the subject of official crimes. After reforms, employees of the previous companies, excluding those who are appointed as managers on behalf of the state, shall not be considered as government officials.