The Method Of Distinction Between The Crime Of Corruption And The Crime Of Privately Dividing State-owned Assets

Chinese national economy consists of a vital element: state-owned assets.As state-owned assets continue to thrive,the loss of state-owned assets has become an important problem that can’t be neglected,mainly caused by private division of state-owned assets as well as corruption.In 1997,as an attempt to prevent the loss of state-owned assets,China reviewed the crimnal law,adding the crime of private division,and used the criminal law to regulate the behavior of private division of state-owned assets by state-owned units.Because of the crime of private division of state-owned assets and the crime of embezzlement in the object of the crime,the objective aspect of the crime,the subjective will of the crime are relevant,the idea of the criminal law theory circle are also unsame,causing the current in the judicial practice between the boundary vague,there is a big debate,resulting in the judicial dilemma.Through the analysis of several typical cases,this paper combines the theory of criminal law with judicial practice,and makes a comprehensive distinction between the crime of embezzlement and the crime of private division of state-owned assets.Three chapters consist the full text.The first paragraph,through typical cases,finds that the factors to be considered in judicial practice to distinguish two crimes are mainly divided into: one is whether the behavior of transferring property is concealed,and whether other people in the unit know about the behavior of distributing state-owned assets.The second is whether the way to obtain benefits has a certain form of appearance.The third is the scope of the personnel who obtain the benefits.The key to distinguish the second crime lies in whether the resolution to carry out the distribution and obtain the benefits is made after collective consultation,whether the resolution can reflect the overall will of the unit,and whether the assets are allocated to all the personnel of the unit or only individual personnel.The fourth is whether the allocation of funds is too uneven,or belong to the collective more average share of the interests.The second chapter analyzes the problems existing in the consideration elements of judicial practice,the concealment of means,the wide range of people who obtain benefits,the proportion of interest distribution and other elements,these surface factors can not deeply clearly distinguish the second crime.The third chapter constructs the specific criteria to distinguish the second crime,according to the different objects of the crime,whether the means of obtaining funds is open,to establish the distinction method based on the essential difference of criminal acts as the standard.The fourth chapter introduces the ensuring of the boundary between the two crimes in the judicial practice of tough problems,one is the issue of welfare issued by state-owned units,we need to see the source of funds issued welfare,and whether the behavior of granting welfare violates the state on the management of state-owned assets,assets use and other provisions.The second is the problem of "small Treasury",which needs to be analyzed from the subjective purpose of setting up "small Treasury",and determines the property right ownership and property nature of assets as the distinguishing standard.The third is the problem of collective corruption.The clear boundary between the two crimes should be divided in the "collective" corruption,and the constitutive elements should be insisted on.Therefore,it is of great theoretical value and practical significance to study the method of distinguishing between the crime of private division of state-owned assets and the crime of embezzlement,and to study the difficult problems in the specific identification of the two crimes in judicial practice.It is hoped that this paper can be helpful to judicial practice,effectively crack down on the crime of private division of state-owned assets,consolidate the socialist economic foundation of our country with public ownership as the main body,and protect the national interests and social stability.