背信犯罪问题研究

发布时间：2018-06-03 06:11

本文选题：背信犯罪 + 滥用权限　；参考：《西南政法大学》2014年硕士论文

【摘要】：随着我国2006年增设背信损害上市公司利益罪和背信运用受托财产罪以来，背信犯罪逐渐被公众熟悉，学界对背信犯罪的研究也逐渐深入。本文结合域外对背信犯罪的立法和理论研究，立足我国现有刑法体系，对我国刑法中的背信犯罪进行研究。全文共分为五个部分，概要如下：第一部分：考察背信犯罪的起源和域外对于背信犯罪立法。通过考察大陆法系和英美法系的代表国家和地区后，总结出以下共通点：首先，背信犯罪由早期的基于监护关系到后期乃至现在的基于委托关系而存在。其次，，背信犯罪中行为人均实施了违背委托人信任的背托行为。再次，背信行为人实施的行为均造成了委托人财产的损害。最后，在处罚上，各国、地区均规定了自由刑。第二部分：在对国内外学界观点分析的基础上确定背信犯罪的本质。通过对域内外学界关于背信犯罪本质理论学说的阐述及评析，确定了背信犯罪的本质内涵为：行为人在为他人处理事务的过程中，出于图利或损害委托人财产的目的，故意实施违背其与委托人之间的委托信任关系，致使委托人的财产遭受重大损失的行为。第三部分：围绕背信犯罪的本质梳理出我国背信犯罪的范围。通过对我国学界关于背信犯罪范围的划分观点进行评析，划定我国特殊背信犯罪的范围主要包括以下几种犯罪：为亲友非法牟利罪，徇私舞弊低价折股、出售国有资产罪，背信损害上市公司利益罪，背信运用受托财产罪，违法发放贷款罪，侵占罪，私分国有资产罪，私分罚没财物罪，徇私舞弊不征、少征税款罪和非法低价出让国有土地使用权罪。第四部分：基于社会现状和我国刑法中背信犯罪的立法现状，考量我国刑法有无增设独立背信罪的必要。通过对学界关于增设独立背信罪的正反观点的评析，加之我国背信犯罪本身存在的立法不足。例如刑法对公有制经济主体和私有制经济主体的规制不平衡，很多凸显出的具有严重社会危害性的背信行为未被刑法规制等。笔者认为，我国刑法有必要增设独立的背信罪。第五部分：进一步分析我国背信犯罪的规定，寻出它们在立法上的疏失，并提出具体的立法完善建议。我国刑法中背信犯罪存在以下不足，第一，未规定独立的背信罪；第二，刑法对背信犯罪的主体规制不平衡；第三，一些具有严重社会危害性的背信行为未能被刑法规制；第四，背信犯罪的法定刑配置存在不足；第五，为亲友非法牟利罪和背信运用受托财产罪在立法上存在的一些不合理之处。本文针对这些问题提出了具体的完善建议。同时在论文最后对“背信罪”的设置作出了初步的构想。
[Abstract]:With the establishment of the crime of breaking the interests of listed companies and the crime of using trusted property in 2006, the crime of breach of trust has been gradually familiar to the public, and the research on the crime of breach of trust has gradually deepened in academic circles. This paper, based on the existing criminal law system of our country, studies the crime of breach of trust in our criminal law by combining the legislative and theoretical research on the crime of breach of trust outside our country. The full text is divided into five parts, which are summarized as follows: Part one: investigate the origin and legislation of breach of trust crime. After investigating the representative countries and regions of the continental law system and the common law system, the following common points are concluded: firstly, the breach of trust crime exists from the early guardianship relationship to the later and even the present trust based relationship. Secondly, in the crime of breach of trust, the bank has violated the trust of the client. Thirdly, the behavior of the breach of trust has caused damage to the client's property. Finally, in the punishment, countries and regions have stipulated the freedom of punishment. The second part: on the basis of the analysis of domestic and foreign academic point of view to determine the nature of breach of trust crime. Through the exposition and analysis of the theory of the nature of the crime of breach of trust in the academic circles inside and outside the field, it is determined that the essential connotation of the crime of breach of trust is: in the process of dealing with affairs for others, the perpetrator is for the purpose of profiting or damaging the client's property. Intentional violation of the trust relationship between the principal and the principal, resulting in substantial loss of the principal's property. The third part: sort out the scope of our country's breach of trust crime around the nature of the crime of breach of trust. Through the analysis of the view of dividing the scope of the crime of breach of trust in the academic circles of our country, the scope of the special crime of breach of trust in our country mainly includes the following kinds of crimes: the crime of illegally profiting for relatives and friends, the crime of practicing favoritism and cheating at a low price, and the crime of selling state-owned assets. The crime of damaging the interests of listed companies by breach of trust, the crime of using fiduciary property, the crime of illegally issuing loans, the crime of misappropriation, the crime of privately dividing state-owned assets, the crime of illegally punishing and confiscating property, and the crime of practicing favoritism without committing fraud, Crime of undercollection of taxes and illegal transfer of the right to use state-owned land at low prices. The fourth part: based on the current situation of the society and the legislation of the crime of breach of trust in the criminal law of our country, the necessity of establishing the crime of independent breach of trust in the criminal law of our country is considered. Through the analysis of the pros and cons of the establishment of independent breach of trust in academic circles, coupled with the lack of legislation of our country's breach of trust itself. For example, the criminal law has not balanced the regulation of the public economy and private ownership, and many of the bad faith behaviors which have serious social harmfulness have not been regulated by the criminal law and so on. The author believes that it is necessary to establish an independent crime of breach of trust in our criminal law. Part V: further analysis of the provisions of breach of trust crime, find out their legislative negligence, and put forward specific suggestions for legislative improvement. The following deficiencies exist in the criminal law of our country: first, the independent crime of breach of trust has not been stipulated; second, the subject regulation of the crime of breach of trust is unbalanced; third, some serious social harmful acts of breach of trust have not been regulated by the criminal law; Fourth, the legal penalty allocation of the crime of breach of trust is insufficient; fifthly, there are some unreasonable points in the legislation for the crime of making profits illegally for relatives and friends and the crime of using fiduciary property in breach of trust. In view of these problems, this paper puts forward some concrete suggestions. At the end of the thesis, the author makes a tentative idea about the establishment of the crime of breach of trust.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3

【参考文献】