The Research On The Case Of National Staff Take Advantage Of Their Position To Carry On A Business Of The Same Kind

The cases of national staff utilizing the convenience of their position to operate similar business to make profits are complicated to some extend.In judicial practice,it is controversial about how to deal with this act.From the perspective of cases of illegally operating similar business involved by Yang Ning et al and Xu Shanghua et al and bribery cases of Li Zhirong et al,such kind of cases is subject to three controversial focuses: whether doer operate similar business,how to determine the act of doer’s crime,and how to identify doer’s amount of crime.The study started with these controversial focuses.First of all,it should investigate cooperation range of cooperative enterprise registered and examined in Industry and Commerce Department,whether the cooperative enterprise conduct practical operation,and whether there is competitive relationship between on-duty enterprise and cooperative enterprise before adjudging the act is operating similar business or not.It should not be recognized as operating similar business if the cooperative enterprise is just a briefcase company and does not conduct practical operation.Secondly,as for determining the nature of criminality,it should figure out the difference among corruption offence,illegal operation of similar business crime and crime of acceptance of bribes.As for subject of crime,it should differentiate from the concept of national staff.As for subjective aspect,it should pay attention to clear the purpose of crime,that is to illegally occupy national public property or to acquire huge and improper interests,and whether the doer seeks for interests for others through claiming for property from others or illegal acceptance of property.As for the subject of crime,it should figure out whether the criminal object involved this kind of cases is normal activity and occupational honesty of ownership of public property,national organs,state-owned enterprise and public institutions or property rights and interests of state-owned companies and enterprise or management rules of nation for companies.Finally,the affirmation to the amount of crime that the cases of national staff utilize the convenience of their position to operate similar business should take the loss of public property into consideration.As for whether the doer acquire embezzled assets truly won’t affect the affirmation to the amount of crime.It should recognize the full amount of embezzlement and should not eradicate the cost for conducting the crime.