【作者】 雷文辉；

【导师】 梅传强；

【作者基本信息】 西南政法大学 ， 刑法学， 2011， 硕士

【摘要】 针对国有企业改制中,私分国有资产犯罪层出不穷,1997年《刑法》从贪污罪中分离出了私分国有资产罪,有效的打击了该类犯罪行为。但是,随着时代的发展,私分国有资产犯罪形式呈现新的变化:犯罪主体向多元化发展,以非国有单位形式规避刑法;法律法规建设滞后致国有资产难以界定、无法可依;刑法条文表述不够严谨、科学,司法实践对本罪客观方面的认定出现分歧。这些新情况、新特点在理论界和司法实践中引起了广泛争议。本文分析的就是其中一个比较有典型意义的案例。本文共分为五个部分:第一部分为案由,本案例分析是事业单位某地质环境监测院私分国有资产案。第二部分为案情,该地质环境监测院违反国家规定,将违法经营、创收所得和国家计划项目节余资金截留到其设立的所谓“集体性质”企业----技术服务中心,再以奖金形式发放给职工;套取国有资产以部分领导干部的名义注册成立公司并向此公司转入监测院所有的从业资质。第三部分为争议焦点,通过上一部分叙述案情,得出本案的两个争议焦点:(一)国有单位违法经营、创收所得及国家项目节余资金是否属于国有资产;(二)领导干部多分和只分给少数人是否属于共同贪污。第四部分是分析和讨论。通过对争议焦点的分析,深入探索国有单位违法经营、创收所得及节余资金的产权性质,辨析私分国有资产罪的构成要件和司法实践中常见的表现形式以及与共同贪污犯罪的区别,最后综合分析案情,得出本案属于私分国有资产犯罪。在分析和讨论的过程中得出笔者对私分国有资产罪构成要件的一些观点,主要是:关于国有资产的认定,笔者在分析其他观点的基础上,提出了“刑法对国有资产与国有财产实施同等层次保护”的观点。而且“国有资产”不仅包含国有单位合法来源的收入,还应包括类似本案的违法创收所得。因为这类所得往往都是国有单位利用其掌握的国有资源、管理社会的职能及其相关便利得来的,应属于国有资产的外延。关于“违反国家规定”,是指违反全国人民代表大会及其常务委员会制定的法律和决定,国务院制定的行政法规、规定的行政措施、发布的决定和命令。不仅是违反关于国有资产管理方面的法律法规,也包含国有资产以外的其他法律法规。关于“以单位名义”,笔者认为,除领导班子的集体决定属于“以单位名义”外,单位负责人或被授权的其他人员的决定也属于“以单位名义”。关于“集体私分给个人”,笔者认为这里“集体”与“个人”不是人数的多少,而是代表国有资产产权的变动情况,即国有资产从国家所有变成个人所有,与获得利益的人数多少无关。关于“数额较大”中的“数额”,笔者认为,那些虽未被私分,但因私分行为而流失的国有资产也应计算到其中。此外,笔者还对国有单位分支机构、职能部门,政府成立的临时性机构能否成为该罪的主体,国有参股、控股公司私分国有资产的处理,国有单位发放福利及小金库等问题,提出了自己的理论见解。第五部分,基于对上述问题的分析得出的研究结论和立法建议。对私分国有资产罪的立法完善,表达了自己的看法:一是将管理、经营、使用国有资产的单位都纳入到该罪的主体中来;二是完善关于国有资产的法律法规体系,加大部门规章和地方性法规的建设。笔者试通过运用刑法解释、比较分析等方法,以及相关学科的知识对私分国有资产罪的上述问题进行研究。希望本文对这些问题的研究能抛砖引玉,引起学术界对这些问题的关注,不断深化完善相关理论,以期早日形成对该问题较为成熟和统一的学说。更多还原

【Abstract】 In State-owned enterprise reform, dividing up the State-owned assets crime abound, the 1997 Penal Code separate from the corruption out of the crime of dividing up the State-owned assets, effective in combating this type of offence. However, with the development of the times, new changes in the form of dividing up the State-owned assets crime: crime subject to diversified development, in the form of non-State-owned units to avoid criminal law; lag caused by the construction of laws and regulations of State-owned assets difficult to define, not to follow; loosely expressed provisions of criminal law and science, to the objective aspects of crime in judicial practice finds differences emerged. The new situation and new characteristics in the theoretical circles and caused wide controversy in judicial practice. This analysis is one of the more typical case.This article is divided into five parts: the first part of the case, this case study is a geo-environmental monitoring case of dividing up the State-owned assets in institutions. Second part of its case, the geo-environmental monitoring in violation of State regulations, illegal business, income-generating income and national savings fund plans projects to its interception set up the so-called "collective" Enterprise Technology Services Center, and then in the form of bonuses paid to employees; acquiring company incorporated in the name of some of the leading cadres of State assets and to turn this company to monitor all of the professional qualification.The third part of the dispute focused through part of the narrative on the merits, that two disputed in this case the focus: (a) the proceeds of illegal business, income-generating State-owned units and national project savings funds belonging to the State-owned assets, and (ii) many of the leading cadres and corruption are common only to a few.Part IV is the analysis and discussion. Through the analysis of dispute focus, in-depth exploration of State-owned unit activities, income and savings funds derived from property, essential elements of the crime of discrimination dividing up state-owned assets and common manifestations in judicial practice and the differences and common criminal acts of corruption, the last comprehensive analysis of the merits, that belonging to dividing up the State-owned assets in the case of an offence.Concluded that the author in the process of analysis and discussion of some views on the constituent elements of the crime of dividing up the State-owned assets, mainly: Determination of the State-owned assets, the author on the basis of analysis of other views, put forward the "criminal law on State-owned assets implementing equal levels of protection and State-owned property" point of view. And "State-owned assets" includes not only legitimate source of income in State-owned unit, should also include the proceeds of illegal income generation similar to the present case. Because they tend to be derived from State-owned units using State resources at its disposal, management of social functions and their associated facilities obtained, should belong to the extension of State-owned assets. "In violation of State regulations" refers to violations of the laws enacted by the NPC and its Standing Committee and decided that State Council provisions of administrative regulations, administrative measures, decisions and orders of the publication. Not only is a violation of the law on State-owned assets management, and a State-owned assets other than the laws and regulations.On "name", I believe that, in addition to leading groups of the collective decision is "name of a unit", the decision of the heads of unit or other authorized personnel also belong to the "name of a unit".On "collective of dividing up to the individual", I believe that this "collective" and "individual" is not a number in the number, but changes in State-owned assets, State-owned assets from State into individually owned firms, has nothing to do with the number of people receiving benefits.On the "large amount" in the "amount", in my view, that has not been dividing up, but losses due to dividing up the State-owned assets to which should also be calculated. In addition, the writer also on State-owned affiliates, functional departments, the Government set up a temporary body can become the subject of crime, dividing up the State-owned assets of State-owned shares, holding companies, payments and accounts in State-owned units and other issues, presented her theory of ideas.Part v, based on analysis results to the above issues and legislative proposals. On the improvement of legislation on crime of dividing up the State-owned assets, have expressed their views: one is the management, operation and use of State-owned assets units were incorporated into the body of the crime to; the second is the perfect system of laws and regulations of the State-owned assets, increasing regulations and local laws and regulations of construction. I tried through the use of criminal law, comparative analysis and other methods, and related disciplines of knowledge on the crime of dividing up the State-owned assets to study these issues. Hope this article can initiate the study of these issues, attracted the attention of academics on these issues, deepening improvement of relevant theory, with a view to the early formation is more mature and unified theory of the problem.更多还原