On The Nature Of The Unauthorized Use Of Company Property By Shareholders Of "One-man" Company ——Taking Wang’s Case Of Duty Encroachment As An Example

One-man limited liability company is favored by market investors for its limited liability and simple management.In the course of the company’s operation,it is inevitable for shareholders to use the company’s property without authorization because of the shareholder’s singleness and lack of effective supervision.In this regard,on the one hand,article 63 of The Company Law of Our country sets up the corporate personality denial mechanism to restrict it;On the other hand,in the field of criminal law,because this act touches on the crime of embezzlement,it also causes the discussion on whether it constitutes the crime of embezzlement.The same fact involves both punishment and people,and the lack of legislative or judicial interpretation,and even different judgments of the same case in judicial practice,ultimately lead to the dilemma of determining crime and non-crime.For case analysis in this paper,through the case of "wang mou job occupation case" to comb,summarizes the focus of dispute,and based on this to "one person" company shareholder behavior punishment and unauthorized use of company property nature qualitative discussion,finally based on cases of torture people cross from which leads to dispose of problems put forward the author’s thinking and Suggestions.In terms of structure,this paper is mainly divided into four parts:The first part is introduction.Including the purpose and significance of the topic,literature review,research ideas and methods.The second part is the brief introduction of the case and the focus of the dispute.This includes an overview of the case,the arguments of both sides,and a summary of the main points of the dispute.The third part is the case analysis.This part discusses the constituent elements of the crime of occupation embezzlement in combination with the focus of the dispute.The first is the objective requirements.In the objective aspect,three elements must be satisfied at the same time,namely,"use of position convenience","the act of embezzlement",and "a relatively large amount",and the behavior of the defendant Wang Mou does not meet the concealment and secrecy required by the "encroachment".The second is the object element.The object of the crime is the property ownership of the entity where the actor belongs,and the unauthorized use of the company’s property by one shareholder of the company will not infringe on the object of the crime.The defendant Wang is the actual controller of the company.The use of the funds involved in the case did not infringe on the ownership of the company’s property;again,it is the main element,one shareholder is not a qualified subject of the crime,and Wang had the identity of a one-person shareholder long before the case;finally,the subjective purpose,the crime requires the perpetrator to have the intention of illegally occupying the property of the unit,and the defendant in this case used the property involved based on his identity as the actual manager of the company,and used the company’s profits to repay the debt owed by the operating company,not through illegal means.Possession of company property.Therefore,this article believes that the defendant Wang in this case does not constitute the crime of embezzlement.The fourth part is thinking and suggestions.This part reflects on the handling mode of criminal and civilian cross cases in China.At the level of legal system and theory,we should first explore the integration path of criminal policy and doctrine of criminal law,introduce the factors and perspectives of criminal policy into doctrine of criminal law,and give full play to the guiding role of criminal policy in the application of law.In judicial practice,dealing with criminal cases must follow the unification of law and order,adhere to the guidance of criminal policy,prudently apply criminal law,limit in the field of civil and commercial law within the scope that can be adjusted,and make the relativity judgment of criminal illegality based on the unity of illegal.