Research On The Objective Elements Of The Crime Of Illegally Operating The Same Kind Of Business

The crime of illegal operation of similar business appeared in article 165 of the Criminal Law after the amendment of the Criminal Law in 1997.This article stipulates that no director or manager of a state-owned company or enterprise may,by taking advantage of his position,run by himself or with others the business of the same kind as that of the state-owned company or enterprise in which he holds office and obtain illegal benefits.There are still great differences in the recognition of the objective constitutive elements of this crime in academic circles,such as the understanding of the use of job convenience,the judgment of similar businesses and the definition of the scope of illegal interests.Taking objective constitutive elements as the object of study,this paper discusses in detail such objective elements as the connotation of duty convenience,the types of similar business and the scope of illegal interests.The objective constitutive elements of this crime are relatively complex,and there are obvious differences between the theoretical and practical circles on the connotation and extension of the objective elements.Therefore,this paper holds that a precise grasp of the objective elements of this crime is conducive to a clear judgment of the difference between crime and non-crime as well as between this crime and that crime.This crime was born in the transitional stage of China's economic system,and it is a crime to officially stipulate the violation of the duty of non-competition in the provisions of criminal law.This regulation,to some extent,makes up the deficiency of the company law in restricting the actor in operating similar businesses.In addition,it plays an important role in preventing the related personnel of state-owned companies and enterprises from encroachment on state-owned assets by taking advantage of their positions.At the beginning of the establishment of this crime has also sparked numerous thinking and academic debate,some scholars think about excessive considering the protection of state-owned assets and relatively neglected maintenance for the interests of the small and medium-sized private enterprises,so the object of this crime in the protection and punishment on the subject of relatively one-sided,in the plot on the provisions of the criterions for the conviction is relatively insufficient science,so in the fight against the offender the position adopted against the magnitude of the state-owned company,enterprise management order crime do not coordinate with the realityharmfulness of this crime,in addition,The leniency of sentencing also makes the deterrent force of this crime insufficient to prevent illegal behavior by directors and managers of state-owned companies and enterprises.