Research On The Identification Of Duty Crime In The State-owned Enterprise Restructuring

As China continues to develop state-owned enterprise restructuring and in-depth, national staff in the restructuring enterprise use the opportunity of enterprise restructuring, making the implementation of such crimes phenomenon abound. Because in a special time, state- owned enterprises in crimes subject, object of crime, criminal means are showing particularity and complexity. Combined with our country’s present criminal law provisions on state-owned enterprise restructuring of duty crime is not enough complete, makes the practice departments to deal with related criminal cases often face difficulties. This article embarks from the judicial practice, combined with the current laws and regulations as well as the academic point of view, the focus of the duty crime cognizance of state-owned enterprise restructuring of problem are discussed.In this paper, the first part of the duty crime identification in state-owned enterprise restructuring, the basic questions is defined. Mainly include the "state-owned enterprises" in criminal law, the connotation of state-owned enterprise restructuring, state-owned enterprise restructuring completion time, and the connotation of the duty crime. About the "state-owned enterprises" in the criminal law, this article agree with "state-owned wholly-owned said." For the sake of research scope, this article discusses the wholly state-owned enterprise restructuring. Our country criminal law about the definition of state-owned enterprise restructuring completion time without rules, combining with the academic point of view, analysis the "comprehensive judgment standard", namely when the enterprise property right structure consistent with industrial and commercial registration, with industrial and commercial registration time as a marker of judgment; When the enterprise property right structure and industrial and commercial registration. Discussed in this article is the narrow sense of duty crime, namely the duty crime on the implementation of national staff.The second part is about the identification of the subject of duty crime in state-owned enterprise restructuring, the main three types in two phases will be discussed. Two stages is done before and after completion of the state-owned enterprise restructuring, three types of persons are who perform public service in state-owned enterprises, cross enterprise restructuring, as well as the "secondary delegation" personnel. Article mainly around "the delegate in public" defining the particularity of state-owned enterprise restructuring of duty crime the main body, thought of personnel across the enterprise restructuring after the restructuring is not have national staff identity; "Second delegation " personnel shall subject identity to reflect the national will " quadratic assignment " whether as the main criterion.The third part is about the state-owned enterprise restructuring the identification of criminal object, this article respectively from general criminal object and the special criminal object analyzes the duty crime in the state-owned enterprise restructuring of criminal object. About the general object of crime, this article mainly talk about criminal law in our country involved in the public property, state property and state-owned assets concept connotation and relations. In addition, this paper focuses on the state-owned enterprises of creditor’s rights, the state-owned equity, real estate and other special criminal object whether or not can become duty crime object, certain conclusions.The fourth part is about the identification of duty crime in the state-owned enterprise restructuring, combined with the front and determination of main body status, analyses the property of three kinds of behavior problems: First, embarks from the purpose of "illegal possession" in criminal law, the combination of enterprise’s ownership situation analysis, thought the offender concealed and transferred to the restructuring of state-owned enterprises property enterprises occupied by restructuring after the enterprise behavior, should with corruption, pocketing the state-owned assets and state-owned company, enterprise staff abuse of power crime, conviction, respectively. For behavior person holding enterprise behavior not share out bonus shares after restructuring, the paper argues on corruption; Second, combining with the other relevant laws and regulations, the key analysis to discuss the "specific party", and according to the actor at a low price assessment is folded, the object of the sale, the person will be low fold of state-owned assets or sell to a specific enterprise or individual behavior, should with corruption and embezzlement or low fold, sale of state-owned assets, respectively; Third, mainly discuss the restructuring after not perpetrators identity of state functionary, cross enterprise restructuring of nature of the crime. For crime behavior person to implement the same type, combining with the actual case analysis, argues that conviction, respectively, and the combined punishment for several crimes; For the perpetrators of the same crime across all the elements of the transformation, "opinion" stipulated only the cognizance of corruption and bribery, this paper argues that other duty crime behavior can also be identified as the corresponding duty crime.