The difference between the crime of dividing state-owned assets privately and the crime of corruption

First, the difference of subjects is the premise of distinguishing the two crimes.

The crime of dividing state-owned assets privately is a unit crime. The unit crime stipulated in Article 30 of China's Criminal Law refers to the behavior of enterprises, institutions, organs and groups that seek illegal interests for their own units and commit serious harm to society and violate the criminal law after the decision of the person in charge of the unit or the collective decision of the unit. The subjects of this crime are state organs, state-owned companies, enterprises, institutions and people's organizations. The subject of the crime of corruption is a natural person, specifically, a state functionary. Article 93 of the Criminal Law stipulates that "State functionaries refer to those who are engaged in public affairs in state organs. Personnel engaged in official duties in state-owned companies, enterprises, institutions and people's organizations, personnel appointed by state organs, state-owned companies, enterprises and institutions to engage in official duties in non-state-owned companies, enterprises, institutions and social organizations, and other personnel engaged in official duties according to law are regarded as state staff. " Of course, Article 396 of the Criminal Law stipulates that the crime of dividing state-owned assets privately "The person in charge and other persons who are directly responsible for it shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. However, this does not mean that natural persons can become the subject of unit crime. In the unit crime, the natural person bears criminal responsibility as the person responsible for the unit crime, not as the subject of the crime. It can be seen from the provisions of the criminal law on the subjects of the two crimes that there is no overlap. However, in judicial practice, whether it is a unit crime or a state functionary crime, the boundary between them is not easy to distinguish, and it needs to be accurately located by combining many factors.

Second, mastering the concepts of state-owned assets and public property is a necessary condition to distinguish between the two crimes.

The object of the crime of dividing state-owned assets privately is state-owned assets. According to the Supreme People's Procuratorate's September 1999 Provisions on the Standards for People's Procuratorates to Directly Accept Cases for Investigation (Trial), the "state-owned assets" in the crime of privately dividing state-owned assets refer to assets obtained and recognized by the state according to law, or assets formed by the state's investment in enterprises and various forms of investment income, and the state's allocation to administrative units. According to relevant regulations, state-owned assets refer to all kinds of economic resources that can be measured in money that are possessed, used and legally confirmed by state-owned units, including assets allocated by the state to state-owned units, assets formed by state-owned units using state-owned assets to organize income in accordance with state regulations, and assets donated and legally confirmed as state-owned. Their manifestations are current assets, fixed assets, intangible assets and foreign investment. Neither public property nor non-public property other than state-owned assets can be the object of crime. The object of corruption crime is public property. Article 9 1 of the criminal law stipulates that "public property refers to state-owned property; Property collectively owned by the working people; Property used for social donations or special funds for poverty alleviation and other public welfare undertakings. Private property managed, used or transported by state organs, state-owned companies, enterprises, collective enterprises and people's organizations shall be regarded as public property. " As can be seen from the above provisions, public property is not equal to state-owned assets, and the scope of public property is greater than state-owned assets. For example, private property and mixed assets managed, used or transported by state organs, state-owned companies, enterprises, collective enterprises and people's organizations cannot be the object of the crime of dividing state-owned assets privately. So whether the illegal income of state-owned units can become the object of the crime of dividing state-owned assets privately, I think it needs specific analysis. For example, state-owned units illegally accept bribes from others in production and operation, and then collectively divide the profits from investing in the stock market, or directly divide the proceeds from bribery. Since the above funds cannot be the object of crime, the crime is not established. As to whether the profits gained from stock trading by misappropriating public funds, private interests of public funds and high-interest deposits of public funds in non-bank institutions belong to state-owned assets, the author thinks that the above three situations are still public funds, and they should not be denied as public funds just because the actor's behavior of obtaining interest is illegal, but their ownership nature has not changed substantially and should belong to state-owned assets. The act of privately dividing such funds can constitute the crime of privately dividing state-owned assets.

Third, it is the key to distinguish between the two crimes to determine whether to divide the state-owned assets collectively to individuals in the name of the unit.

The crime of dividing state-owned assets privately is a unit crime, and it is the most essential feature of this crime to implement it in the name of the unit. Therefore, the author thinks that whether to divide the state-owned assets collectively to individuals in the name of units is the key to distinguish the two crimes. There are different views on how to understand "in the name of the unit". Some scholars believe that "the private division of state-owned assets is decided by the leaders of the unit, which reflects the consciousness and will of the unit." Some scholars also believe that "it refers to the private distribution organized by the unit after the collective research of the unit leader, the person in charge or the decision-making body of the unit or the consent of all members of the unit." There is also a view that "it refers to the decision of the unit leader who has the right to study and make decisions, which reflects the consciousness and will of the unit." The author believes that the subjective will of the crime of dividing state-owned assets privately, whether decided by the unit leader or the person in charge with decision-making power or agreed by all the members of the unit, should be manifested as the group criminal will for the purpose of illegally profiting from state-owned assets, rather than the individual criminal will. Of course, in judicial practice, there has never been a case where all members of the unit unanimously agree to decide the distribution of state-owned assets. Therefore, the author thinks that the decision-making power of the crime of dividing state-owned assets privately is decided by the unit leader or the person in charge who has the decision-making power, which can show that under the circumstance of dividing state-owned assets privately, some people who objectively participate in dividing state-owned assets subjectively do not know that the property they have obtained is illegal, and they only think that it is legal property issued by the unit. The perpetrator of a corruption case has a subjective understanding of embezzlement of public property, and both have the same meaning.

There are also different views on how to understand "privately distributing state-owned assets to individuals". Some people think that "it refers to the unauthorized distribution of state-owned assets to every member or the vast majority of members of the unit. If it is privately distributed among a few responsible persons or employees, it should be a corrupt act". There is a view that "as long as the behavior of dividing privately is known and recognized by most members of the unit and is done for the collective interests of the members of the unit, the number of beneficiaries is not decisive and state-owned assets can be given to individuals." There is also a view that "state-owned assets are privately distributed to all members of the unit, that is, everyone has a share, and everyone knows when they are privately distributed." The author believes that the collective sharing of state-owned assets to individuals does not require equal interests, but the basic feature of the crime of sharing state-owned assets is that a few people seek illegal interests for the majority. The beneficiaries can be all members of the unit or all personnel at a certain level in the unit, such as middle-level cadres, but the vast majority of employees in the unit except those who have the right to decide, that is, the vast majority of employees are involved in the distribution. Then, whether "collective sharing of state-owned assets to individuals" requires equal benefits, I think the amount can be different and the benefits can be distributed according to shares. In some corruption cases, it is decided by a few leaders or even the leading group of the unit to illegally share public property with a few people in the unit. Because only a few people illegally possess public property, such cases are accomplices of collective corruption of a few natural persons in the unit. For example, if A is the principal of a school, B is the cashier of the school, and C is the accountant of the school, and the three people "divide up" the money between them after taking public funds under false names, I think they are more inclined to * * * corruption, because the three people decided to do the same research when dealing with the money, but only to enrich themselves, collude with each other and embezzle public property.

Four, different behavior is another key factor to distinguish between the two crimes.

The crime of dividing state-owned assets privately is usually manifested in the collective decision of the unit leadership or the decision of the person in charge of the unit. In the open or semi-open state within the unit, in the name of dividends, bonuses, holiday condolences, etc., the ownership of state-owned assets will be distributed to all or some employees. On the surface, it is reasonable and fair, and even has relevant financial records. Crime usually involves the process of "legalization" of illegal acts, which can be summarized as: leadership approval, collective voting, meeting minutes, making excuses, etc. Although there are no formal financial statements in some cases, there must be detailed bills for filing within the unit. And * * * has the crime of corruption is the crime of embezzlement of public property committed by most people * * * by taking advantage of their positions. There are various means, but the behavior is generally carried out in secret. Illegal possession of public property by covert means is usually treated as "accounting", so it is difficult to reflect the occupied public property in financial accounts to cover up the criminal facts.

Five, the amount of criminal responsibility and the starting point of sentencing are different.

According to the Supreme People's Procuratorate1September 6, 1999, "Provisions on the filing standards for people's procuratorates to directly accept cases for investigation (Trial)", "anyone suspected of embezzling state-owned assets with a cumulative amount of more than 654.38+10,000 yuan shall be placed on file". That is, the starting point for investigating criminal responsibility for the crime of privately dividing state-owned assets is 654.38+10,000 yuan. Of course, the 654.38+10,000 yuan here refers to the total state-owned assets shared by the collective, not the amount shared by all the people in the state-owned units. Regarding the crime of corruption, it is stipulated that "the amount of personal corruption is more than 5,000 yuan, and the amount of personal corruption is less than 5,000 yuan. However, if there are bad means such as corruption and disaster relief, emergency rescue, flood prevention, epidemic prevention, special care, poverty alleviation, immigration, relief funds and materials, stolen money, confiscated goods, withheld funds and materials, corruption, destruction of evidence, transfer of stolen goods, etc., a case should be filed." According to the Summary of the Symposium of National Courts in the Supreme People's Court on June 5438+065438+1October 3, 2003, the "amount of personal corruption" stipulated in the first paragraph of Article 383 of the Criminal Law should be understood as the amount of personal participation or organization, command and corruption, and cannot be determined only by the amount of illicit money actually shared by individuals. In sentencing, the author only compares the two crimes from the highest statutory penalty. Whoever privately distributes state-owned assets in a huge amount shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined. If the amount of personal corruption is more than 100,000 yuan, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and his property may also be confiscated. If the circumstances are especially serious, he shall be sentenced to death and his property shall be confiscated. As can be seen from the above legal provisions, the crime of privately dividing state-owned assets is far from the crime of corruption in terms of filing standards and statutory penalties. The filing standard of the crime of corruption is far lower than the crime of privately dividing state-owned assets, and the statutory punishment is heavier than the crime of privately dividing state-owned assets, which leads many corrupt elements to turn corruption into private behavior by various means in an attempt to escape or mitigate legal sanctions.

To sum up, there are many similarities between the crime of dividing state-owned assets privately and the crime of corruption, which is difficult to distinguish in practice. In particular, some cases will lead to different charges from different angles, making judicial staff unable to start when dealing with such cases. Therefore, the author believes that improvements can be made in the following two aspects:

(1) the Supreme People's Procuratorate and the Supreme People's Court should summarize the legal problems arising from the two crimes in the current judicial practice, and make relevant judicial interpretations clear, such as defining the connotation and extension of state-owned assets, and how to identify the nature of embezzling "small treasury" funds.

(2) Although the crime of dividing state-owned assets privately harms the national interests, the subjective malignancy of the perpetrator is relatively light, while the subjective malignancy of * * * and the corrupt perpetrator is deep, which has an all-round impact on the country and society. Therefore, when handling such cases, prosecutors and judges should adhere to the principle of unity of subject and object, and deal with them strictly according to law to avoid confusion between the two crimes.