非法经营同类营业罪研究
发布时间：2019-04-11 21:23
【摘要】： 非法经营同类营业罪是1997年刑法修订后新增加的罪名。理论与实务界对本罪在国有公司、企业的范围,董事、经理的认定,同类营业的确定,非法利益的认定等方面存有争议。本文从设立本罪的立法渊源及其价值出发,围绕其构成要件,阐述了本罪涉及的国有公司、企业,董事、经理,经营、同类营业以及非法利益等基本范畴,论述了本罪的司法认定及其与为亲友非法牟利罪、贪污罪、受贿罪等相关罪名的界限。在此基础上,就本罪的犯罪主体、客观方面以及刑罚的立法完善提出了建议。笔者认为,应将本罪的犯罪主体修改为公司、企业的董事、高级管理人员,并取消“利用职务便利”的客观要件,同时,将“造成公司、企业重大损失”也作为本罪的既遂标准。在刑罚上,为避免立法机关担心本罪犯罪主体修改后影响国有资产保护的立法目的的实现,笔者建议,将国有公司、企业的董事、高级管理人员的严重的非法竞业行为作为本罪的从重处罚情节。此外,有必要增设限制、禁止或剥夺业务活动的资格刑,以限制或剥夺行为人在一定期限内从事某一经营活动的权利,更好地发挥刑罚惩罚、改造和预防犯罪的最大功能。
[Abstract]:The crime of illegal operation of similar business is a new crime after the amendment of criminal law in 1997. In theory and practice, the crime is disputed in the state-owned company, the scope of the enterprise, the director, the manager, the determination of the same kind of business, the determination of illegal interests and so on. Starting from the legislative origin and value of establishing this crime, this paper expounds the basic categories of state-owned companies, enterprises, directors, managers, management, similar business and illegal interests, which are involved in this crime, around its constituent elements. This paper discusses the judicial cognizance of this crime and its boundary with the related crimes such as illegal profit-making for relatives and friends, embezzlement, bribery and so on. On this basis, the author puts forward some suggestions on the crime subject, objective aspect and legislation perfection of penalty. The author believes that the criminal subject of this crime should be modified to the company, the director of the enterprise, the senior management personnel, and the objective elements of "making use of the convenience of duty" should be abolished, and at the same time, "cause the company," The enterprise heavy loss "also as this crime accomplished standard." In terms of penalty, in order to avoid the legislature worrying about the realization of the legislative purpose of affecting the protection of state-owned assets after the modification of the subject of the crime, the author suggests that the state-owned company and the directors of the enterprise should be put forward. The serious illegal business competition behavior of senior management is the serious punishment circumstance of this crime. In addition, it is necessary to set up restrictions, prohibit or deprive the qualified punishment of business activities in order to restrict or deprive the perpetrator of the right to engage in a certain business activity within a certain period of time, so as to give better play to the maximum function of penalty punishment, rehabilitation and crime prevention.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D924.3
本文编号：2456756
[Abstract]:The crime of illegal operation of similar business is a new crime after the amendment of criminal law in 1997. In theory and practice, the crime is disputed in the state-owned company, the scope of the enterprise, the director, the manager, the determination of the same kind of business, the determination of illegal interests and so on. Starting from the legislative origin and value of establishing this crime, this paper expounds the basic categories of state-owned companies, enterprises, directors, managers, management, similar business and illegal interests, which are involved in this crime, around its constituent elements. This paper discusses the judicial cognizance of this crime and its boundary with the related crimes such as illegal profit-making for relatives and friends, embezzlement, bribery and so on. On this basis, the author puts forward some suggestions on the crime subject, objective aspect and legislation perfection of penalty. The author believes that the criminal subject of this crime should be modified to the company, the director of the enterprise, the senior management personnel, and the objective elements of "making use of the convenience of duty" should be abolished, and at the same time, "cause the company," The enterprise heavy loss "also as this crime accomplished standard." In terms of penalty, in order to avoid the legislature worrying about the realization of the legislative purpose of affecting the protection of state-owned assets after the modification of the subject of the crime, the author suggests that the state-owned company and the directors of the enterprise should be put forward. The serious illegal business competition behavior of senior management is the serious punishment circumstance of this crime. In addition, it is necessary to set up restrictions, prohibit or deprive the qualified punishment of business activities in order to restrict or deprive the perpetrator of the right to engage in a certain business activity within a certain period of time, so as to give better play to the maximum function of penalty punishment, rehabilitation and crime prevention.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D924.3
【引证文献】
相关期刊论文 前1条
1 黄利红;王成明;;对公有和非公有经济刑法平等保护的再思考[J];黄石理工学院学报(人文社会科学版);2011年02期
，本文编号：2456756
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