股东侵占公司财产去罪化研究
发布时间：2018-10-26 14:15
【摘要】：伴随着我国社会主义市场经济的发展而壮大起来,公司已经成为社会经济生活最重要的主体。但是,在公司发展历程中,由于市场规制、法制完善、投资理念等等因素的影响,在实践中出现股东任意侵占公司财产等种种不利于公司健康发展的问题。虽然近些年来对公司法的研究专著颇多,但是关于股东侵占公司财产去罪化方面的研究却颇少,更多是集中在新公司法背景下抽逃出资罪去罪化的争议,而鲜少有学者从事关于股东侵占公司财产其他相关犯罪如职务侵占罪、挪用资金罪去罪化的研究,其中还夹杂着一些混沌不清的观点、只言片语的解释、以讹传讹的谬论,三这不仅于学术有害,而且误导着刑法实践。在公司法实务上,股东侵占公司财产的现象非常普遍。在司法实践中,尽管入罪的并非常态,但是囿于认知所限,同案不同判的现象也时有发生,笔者搜集了许多有关公司方面的犯罪案例,就发现了这一问题。有很多的刑事公诉书和判决书,直接将在商法领域使用的公司理论直接套用到刑事诉讼中。民事纠纷和刑事犯罪随着立法、司法环境的变化也逐渐产生了更加复杂、更加疑难、相互交错的趋势,许多关于刑事犯罪和民事纠纷之间的联系和区别方面的实务问题急需解决。橘生淮南则为橘,生于淮北则为枳,笔者有感于民法和刑法在财产性权益保护方面的差异性、刑法当中是否可以直接移植公司法的理论等问题,深入研究了股东侵占公司财产犯罪去罪化的问题。同时,在股东侵占公司财产的纠纷解决中,传统的解决之道常常偏重于追究股东的刑事责任和行政责任,往往忽视民事责任。刑罚资源是有限的,而刑法打击的成本却很高。这必然决定了刑法成为权益保护的最后手段。就必然存在如何以最小的刑法成本投入来实现刑法资源分配的最佳化,这也是刑法领域经济学的理论和方法应用于的必然。笔者阐述了股东侵占公司财产去罪化后的责任构建。本文共分为四个部分。第一部分引言,介绍了论题研究的背景和意义,简述了文章的主要内容和研究方法。第二部分简述了股东侵占公司财产犯罪的立法司法现状和以及理论界关于股东侵占公司财产去罪化的研究现状。第三部分分析了股东侵占公司财产去罪化的必要性。主要刑法的谦抑性、民法和刑法对公司财产保护的差异性、刑罚经济性等方面进行了阐述。第四部分分析了股东侵占公司财产去罪化后责任构建问题。本文从民事、行政、刑法的多方位角度阐述股东侵占公司财产去罪化后的应对。从侵占公司财产的股东对债权人、公司、其他诚信股东三个层次的责任着重阐述了民事责任的完善。
[Abstract]:With the development of China's socialist market economy, the company has become the most important subject of social and economic life. However, in the course of the development of the company, due to the influence of market regulation, perfect legal system, investment idea and other factors, the shareholders arbitrarily occupy the property of the company in practice and so on, which are not conducive to the healthy development of the company. Although there are many monographs on company law in recent years, there are few researches on decriminalization of shareholders' embezzlement of company property, and more on the controversy of decriminalization of the crime of escaping from capital contribution under the background of the new company law. However, few scholars are engaged in the research on other crimes related to shareholders' embezzlement of company property, such as the crime of duty embezzlement and the decriminalization of the crime of misappropriating funds. Among them, there are still some confused views, a few words and phrases, and a fallacy of falsehood. This is not only harmful to the academic, but also misleading the practice of criminal law. In the practice of company law, the phenomenon of shareholders encroaching on company property is very common. In judicial practice, although the incriminating is not normal, but limited by cognition, the phenomenon of different judgments in the same case also occurs from time to time. The author has collected a lot of criminal cases related to the company, and found this problem. There are many criminal indictments and judgments, which directly apply the corporate theory used in the field of commercial law to criminal proceedings. With the legislation of civil disputes and criminal offences, the changes in the judicial environment have gradually produced a trend of more complex, more difficult and interlaced. Many practical problems concerning the connection and distinction between criminal offences and civil disputes need to be solved urgently. Orange student Huainan is orange, born in Huaibei is trifoliate orange. The author feels the difference between civil law and criminal law in the protection of property rights and interests, whether the theory of company law can be directly transplanted in criminal law and so on. The problem of decriminalization of the crime of shareholder embezzlement of company property is studied in depth. At the same time, in the dispute resolution of shareholders' encroachment on the company's property, the traditional solution often emphasizes on investigating the shareholders' criminal responsibility and administrative responsibility, and often neglects civil liability. The penalty resource is limited, but the cost of the criminal law attack is very high. This will inevitably determine the criminal law as the last resort for the protection of rights and interests. It is inevitable that how to optimize the allocation of criminal law resources with the minimum cost of criminal law, which is the necessity of the theory and method of economics in criminal law field. The author expounds the construction of the liability after the shareholders' embezzlement of the company's property is decriminalized. This paper is divided into four parts. The first part introduces the background and significance of the research, and describes the main contents and research methods. The second part briefly describes the legislative and judicial status of shareholders' embezzlement of corporate property and the research status of the decriminalization of shareholders' embezzlement of corporate property in the theoretical circle. The third part analyzes the necessity of decriminalization of shareholders'embezzlement of company property. The modesty of the main criminal law, the difference between the civil law and the criminal law to the company property protection, the penalty economy and so on are expounded. The fourth part analyzes the problem of liability construction after shareholder embezzlement of company property. In this paper, from the civil, administrative, criminal law from the perspective of the shareholders after the decriminalization of corporate property. This paper expounds the perfection of civil liability from the three levels of liability of shareholders who occupy the property of the company to creditors, companies and other honest shareholders.
【学位授予单位】：河南财经政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
本文编号：2295995
[Abstract]:With the development of China's socialist market economy, the company has become the most important subject of social and economic life. However, in the course of the development of the company, due to the influence of market regulation, perfect legal system, investment idea and other factors, the shareholders arbitrarily occupy the property of the company in practice and so on, which are not conducive to the healthy development of the company. Although there are many monographs on company law in recent years, there are few researches on decriminalization of shareholders' embezzlement of company property, and more on the controversy of decriminalization of the crime of escaping from capital contribution under the background of the new company law. However, few scholars are engaged in the research on other crimes related to shareholders' embezzlement of company property, such as the crime of duty embezzlement and the decriminalization of the crime of misappropriating funds. Among them, there are still some confused views, a few words and phrases, and a fallacy of falsehood. This is not only harmful to the academic, but also misleading the practice of criminal law. In the practice of company law, the phenomenon of shareholders encroaching on company property is very common. In judicial practice, although the incriminating is not normal, but limited by cognition, the phenomenon of different judgments in the same case also occurs from time to time. The author has collected a lot of criminal cases related to the company, and found this problem. There are many criminal indictments and judgments, which directly apply the corporate theory used in the field of commercial law to criminal proceedings. With the legislation of civil disputes and criminal offences, the changes in the judicial environment have gradually produced a trend of more complex, more difficult and interlaced. Many practical problems concerning the connection and distinction between criminal offences and civil disputes need to be solved urgently. Orange student Huainan is orange, born in Huaibei is trifoliate orange. The author feels the difference between civil law and criminal law in the protection of property rights and interests, whether the theory of company law can be directly transplanted in criminal law and so on. The problem of decriminalization of the crime of shareholder embezzlement of company property is studied in depth. At the same time, in the dispute resolution of shareholders' encroachment on the company's property, the traditional solution often emphasizes on investigating the shareholders' criminal responsibility and administrative responsibility, and often neglects civil liability. The penalty resource is limited, but the cost of the criminal law attack is very high. This will inevitably determine the criminal law as the last resort for the protection of rights and interests. It is inevitable that how to optimize the allocation of criminal law resources with the minimum cost of criminal law, which is the necessity of the theory and method of economics in criminal law field. The author expounds the construction of the liability after the shareholders' embezzlement of the company's property is decriminalized. This paper is divided into four parts. The first part introduces the background and significance of the research, and describes the main contents and research methods. The second part briefly describes the legislative and judicial status of shareholders' embezzlement of corporate property and the research status of the decriminalization of shareholders' embezzlement of corporate property in the theoretical circle. The third part analyzes the necessity of decriminalization of shareholders'embezzlement of company property. The modesty of the main criminal law, the difference between the civil law and the criminal law to the company property protection, the penalty economy and so on are expounded. The fourth part analyzes the problem of liability construction after shareholder embezzlement of company property. In this paper, from the civil, administrative, criminal law from the perspective of the shareholders after the decriminalization of corporate property. This paper expounds the perfection of civil liability from the three levels of liability of shareholders who occupy the property of the company to creditors, companies and other honest shareholders.
【学位授予单位】：河南财经政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
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