经济犯罪数额的司法认定
发布时间：2018-07-28 10:07
【摘要】：改革开放政策30多年的实施,使得我国经济得以更加迅速的向前发展,并且取得了可喜的成绩。这从我国在历次的经济危机中的表现可以看出。目前我国的综合国力世界排名靠前,这是我国人民依靠自身的智慧与汗水所取得的可喜成绩,同时这也使得我国在国际上的政治和经济地位也有很大的提高。但是我们不应该自满,也不应该骄傲,而是应该以一颗平常心对待所取得的优异成绩。万里长征尚且走完第一步。我们应该重点注意的是,与市场经济的发展相伴随的便是经济犯罪的案件也越来越多。刑法,与其他行政法律法规相比而言,是打击刑事犯罪最为严厉的手段,也是保护国家和公民权益的最后一道防线。同样的,相对于国民经济而言,就是要保护国家经济得以平稳、快速、健康的向前发展。首先我们需要明确的是,通常所说的经济犯罪主要是指《刑法》第三章规定的破坏社会主义市场经济秩序罪中规定的所有罪名,笔者大致总结了下,我国现行1997年制定的刑法中第三章所包括的所有罪名,以及现行的8个刑法修正案对刑法第三章罪名所作出的修改中涉及的经济犯罪罪名,概括起来总共包括八大类115个罪名,其中1、生产、销售伪劣商品罪,共9个罪名；2、走私罪,共11个罪名；3、妨害对公司、企业的管理秩序罪,共16个罪名；4、破坏经融管理秩序罪,共37个罪名；5、经融诈骗罪,共8个罪名；6、危害税收征管罪,共13个罪名；7、侵犯知识产权罪,共8个罪名；8、扰乱市场秩序罪,共13个罪名。当然刑法中的经济犯罪是否应该仅仅局限于刑事法律第三章中的内容,这有待于我们进行更深层次的分析,笔者认为,经济犯罪的内涵不应仅仅局限第三章破会社会主义市场经济秩序罪。因为,刑法罪名的归类是按照了一定的标准,但是我们也知道,任何的标准都不可能将现实中的刑事犯罪区分的明明白白。因此,在其他的章节罪名中也应包含经济犯罪。比如职务侵占罪,挪用资金罪等犯罪,笔者认为也应该列为经济犯罪的范围。随着社会主义市场经济的深入发展,在经济运行领域还会出现新的破坏社会主义市场经济秩序的行为。因此,经济犯罪的外延也会不断的扩大。但是,就目前而言,刑法第三章中经济犯罪罪名多而复杂,并且有些为选择性罪名。因此在对经济犯罪罪名的认定以及对其量刑时存在许多困难。当然这种困难主要体现在对经济犯罪数额的认定上。笔者将在本文中,通过比较分析、实证分析等写作方法,分五个部分对经济犯罪数额的相关问题,尤其是在司法认定方面进行简单的分析与论述。
[Abstract]:With the implementation of the reform and opening policy for more than 30 years, China's economy has been developing more rapidly and has achieved gratifying results. This can be seen from the performance of our country in successive economic crises. At present, our country's comprehensive national strength ranks first in the world, which is a gratifying achievement made by our people relying on their own wisdom and sweat. At the same time, it also makes our country's political and economic status in the world have been greatly improved. But we should not be complacent, should not be proud, but should treat the outstanding achievements with a common mind. The first step of the long March was completed. We should pay attention to the development of market economy is accompanied by more and more cases of economic crime. Criminal law, compared with other administrative laws and regulations, is the most severe means of cracking down on criminal offences and the last line of defense to protect the rights and interests of the state and citizens. Similarly, relative to the national economy, is to protect the country's economy to smooth, rapid, healthy forward. First of all, we need to make it clear that the economic crimes generally referred to mainly refer to all the crimes stipulated in Chapter III of the Criminal Law on the crime of undermining the order of the socialist market economy. The author summed up the following roughly. All the crimes included in Chapter III of the current Criminal Law enacted in 1997, and the economic crimes involved in the revision of Chapter III of the Criminal Law made by the eight amendments to the Criminal Law, generally include 115 charges in eight major categories. Among them, 1, the crimes of producing and selling fake and inferior commodities, a total of 9 charges of 2, smuggling, a total of 11 charges of 3, a total of 11 crimes against the management order of companies and enterprises, a total of 16 charges of 4, a total of 37 charges of fraud, a total of 37 charges of fraud, A total of 8 charges of 6, the crime of endangering tax collection and administration, a total of 13 charges 7, infringement of intellectual property rights crime, a total of 8 charges, disrupting the market order, a total of 13 charges. Of course, whether the economic crime in the criminal law should be limited to the content of the third chapter of the criminal law, which needs to be further analyzed by us, the author thinks, The connotation of economic crime should not be limited to the third chapter. Because the classification of criminal charges is in accordance with a certain standard, but we also know that any standard can not be the reality of the distinction between criminal offences. Therefore, economic crimes should also be included in other chapters. For example, crimes such as duty embezzlement and misappropriation of funds should also be classified as economic crimes. With the further development of socialist market economy, there will be new actions to destroy the order of socialist market economy in the field of economic operation. Therefore, the extension of economic crime will continue to expand. However, at present, the third chapter of the Criminal Law has many and complex economic crimes, and some of them are selective crimes. Therefore, there are many difficulties in the determination of economic crimes and sentencing. Of course, this difficulty is mainly reflected in the determination of the amount of economic crime. In this paper, through comparative analysis, empirical analysis and other writing methods, there are five parts of the economic crime related issues, especially in the judicial determination of a simple analysis and discussion.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D924.3
本文编号：2149743
[Abstract]:With the implementation of the reform and opening policy for more than 30 years, China's economy has been developing more rapidly and has achieved gratifying results. This can be seen from the performance of our country in successive economic crises. At present, our country's comprehensive national strength ranks first in the world, which is a gratifying achievement made by our people relying on their own wisdom and sweat. At the same time, it also makes our country's political and economic status in the world have been greatly improved. But we should not be complacent, should not be proud, but should treat the outstanding achievements with a common mind. The first step of the long March was completed. We should pay attention to the development of market economy is accompanied by more and more cases of economic crime. Criminal law, compared with other administrative laws and regulations, is the most severe means of cracking down on criminal offences and the last line of defense to protect the rights and interests of the state and citizens. Similarly, relative to the national economy, is to protect the country's economy to smooth, rapid, healthy forward. First of all, we need to make it clear that the economic crimes generally referred to mainly refer to all the crimes stipulated in Chapter III of the Criminal Law on the crime of undermining the order of the socialist market economy. The author summed up the following roughly. All the crimes included in Chapter III of the current Criminal Law enacted in 1997, and the economic crimes involved in the revision of Chapter III of the Criminal Law made by the eight amendments to the Criminal Law, generally include 115 charges in eight major categories. Among them, 1, the crimes of producing and selling fake and inferior commodities, a total of 9 charges of 2, smuggling, a total of 11 charges of 3, a total of 11 crimes against the management order of companies and enterprises, a total of 16 charges of 4, a total of 37 charges of fraud, a total of 37 charges of fraud, A total of 8 charges of 6, the crime of endangering tax collection and administration, a total of 13 charges 7, infringement of intellectual property rights crime, a total of 8 charges, disrupting the market order, a total of 13 charges. Of course, whether the economic crime in the criminal law should be limited to the content of the third chapter of the criminal law, which needs to be further analyzed by us, the author thinks, The connotation of economic crime should not be limited to the third chapter. Because the classification of criminal charges is in accordance with a certain standard, but we also know that any standard can not be the reality of the distinction between criminal offences. Therefore, economic crimes should also be included in other chapters. For example, crimes such as duty embezzlement and misappropriation of funds should also be classified as economic crimes. With the further development of socialist market economy, there will be new actions to destroy the order of socialist market economy in the field of economic operation. Therefore, the extension of economic crime will continue to expand. However, at present, the third chapter of the Criminal Law has many and complex economic crimes, and some of them are selective crimes. Therefore, there are many difficulties in the determination of economic crimes and sentencing. Of course, this difficulty is mainly reflected in the determination of the amount of economic crime. In this paper, through comparative analysis, empirical analysis and other writing methods, there are five parts of the economic crime related issues, especially in the judicial determination of a simple analysis and discussion.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D924.3
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