Case Research On Conducting Duty Crimes By Establishing Mid-link In State-funded Enterprises

It is a new type of crime in state-funded enterprises in recent years that their employees misappropriate state-owned assets by establishing intermediate circulation,which is different from traditional behavioral model of misappropriating state-owned property in its strong concealment and serious social harm.Through the investigation of the judgments of the courts in recent years on the crimes of establishing intermediate circulation,it can be found that this kind of cases often involve multiple processes,and there are some problems such as vague definitions compared with corruption,bribery,and illegal business operations of the same kind,uncertainty of determination,and the controversial calculation of the criminal amount,which leads to different judgments in the same case,and thus seriously affect the credibility of the judiciary.Therefore,it is necessary to apply the principle of criminal law to demonstrate by referring to the current judicial practices.Through the analysis of the judgments of the courts on this type of cases,it can also be seen that the focus of disputes of these cases mostly rests with the identification of the main body of the state functionaries,the legal nature of behaviors,the determination of criminal amount,and so on.For the identification of the body of state functionaries,firstly it is necessary to make it clear the concept of state-owned enterprises in relevant criminal laws,and adopt the theory of "state-owned all-capital" that is in accordance with the law;then to clarify the precise connotation of engaging in official service activities,that is,official service activities should representative and managerial in order to be distinguished from labor service activities;finally,to identity the body of state functionaries after the restructuring of state-owned enterprises by referring to the theory of "actual control",that is,they should be differentiated between state-owned holding enterprises and state-owned shareholding enterprises and treated differently accordingly.The determination of the nature of such criminal cases should be distinguished according to the constitution of crime and the legal interests infringed by crime of corruption,bribery,and the illegal business operations of the same kind.In addition,for the cases of establishing intermediate circulation,there should be more attention paid to the difference between the crime of corruption and the crime of bribery in which criminals receive kickbacks in economic exchanges,and the difference between the crime of corruption and the crime of illegal businessoperations of the same kind by acquiring price differences,while the key point of distinguishing the crime of corruption from the crime of bribery is to make it clear the source of the rebate received by the actor belongs to which unit,namely,the unit where the actor belongs to or that the other party does.The key point of distinguishing the crime of corruption from the crime of illegal business operations of the same kind is to focus on the transfer mode of state-owned property,in other words,whether it is gained by transferring business opportunities,while for the determination of criminal amount,it is necessary to go by the amount of loss of public property,rather than to deduct the actual cost of crime paid by the actor.