The Research On Constitution And Determination Of The Crime Of False Bankruptcy

As the development of company establishment system and the fierce marketeconomy, there is a growing number of fraudulent conduct, which utilizingbankruptcy discharge system to avoid debt. From the aspect of criminal legislationaround the world, the more mature its market economy is, the more perfect itsnational legislation of crime of bankruptcy. It is becoming a trend to regulatefraudulent conduct. Because the crime of false bankruptcy is established a little later,the research on constitution and determination of this crime is not abundant.Bankruptcy is the result of “survival of the fittest”. Under the normal management,companies can be discharged. However, the deliberately bankruptcy is not normaleconomy conduct, the criminal law is needed at this time. By analyzing theconstitution, determination and similar crimes, this paper is aim at judging falsebankruptcy and punishing it strictly in accordance with the law in judicial practice.Through introducing the concept, legislation pattern, legislative progress of thecrime of false bankruptcy, it may present a integral understanding. In the writer’s idea,the subjectivity of the crime of false bankruptcy is complicated, including the order ofbankruptcy, creditors’ or others’ benefits. Among all of them, the order of bankruptcyis the main subjectivity. In terms of conduction pattern, illegal transfer and disposeproperties is essential, moreover, bankruptcy application(or debtor provides falsefinancial statement and detail list to decrease bankrupt property) is essential. Thecrime of false bankruptcy belongs to consequential crime, that means the harmfulconsequence is the important reason to determine whether a company offense thecrime. The subjectivity is the companies, who have the qualification of a legal person,but in Criminal Law, directly responsible individuals undertakes the criminalliabilities and companies are off charge. Subjectively, behavior corpus hopes theharmful consequences happen and expect them urgently. The crime of falsebankruptcy is consequential crime, not intent crime. In judicial practice, it is wronglyregarded as intent crime. In Criminal Law, it is regulated that the criminal purpose ofthis crime is to avoid debt, whether the purpose is actualized is not the requirement. By analyzing several difficult issues on the determination of the crime of falsebankruptcy, it comes to the conclusion that there exists unfinished status. Because thebehavior do not cause serious consequence, it can not be convicted and sentenced iscarried out strictly in accordance with the law. On the determination on “realbankruptcy”, the writer considers it as the crime of false bankruptcy due to the factthat actors have the fraudulent conduct and cause harmful consequence finally. As thecrime of false bankruptcy is established for not a long time, it is often obscured withsome similar crimes like the crime of preventing liquidation, fraud, officialembezzlement, corruption and furtively distributing state owned assets. Throughcomparing and analyzing these similar crimes, it is hopeful that this paper wouldsignificant to exactly determine the crime of false bankruptcy.