According to Article 396 of the Criminal Law: State organs, state-owned companies, enterprises, institutions and people's organizations privately distribute state-owned assets to individuals in the name of their own units in violation of state regulations. If the amount is relatively large, he shall be sentenced to fixed-term imprisonment of not less than three years or criminal detention for the crime of privately dividing state-owned assets, and shall also or only be fined; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. The crime of privately dividing state-owned assets refers to the behavior that state organs, state-owned companies, enterprises, institutions and people's organizations collectively privately divide state-owned assets to individuals in the name of units in violation of state regulations, with a large amount. The subjects of this crime are state organs, state-owned companies, enterprises, institutions and people's organizations. This crime is a unit crime, but according to the law, only the directly responsible person in charge and other directly responsible personnel who privately divide state-owned assets are punished. 2. Subjectively, this crime is a direct intentional crime, and the act must be deliberately in violation of state regulations, knowing that it is a state-owned asset, and it can be recognized as intentional. This crime cannot be established if the state-owned assets are unintentionally and wrongly divided into enterprise funds. Third, the direct object of this crime is the management system and ownership of state-owned assets. The so-called state-owned assets include assets managed, used or transported by the above-mentioned state organs, state-owned companies, enterprises, institutions and people's organizations according to law. The state has a set of macro-management system for financial allocation of units. For example, state-owned enterprises with separate ownership and management rights implement the contract system, and the state tries out the fund accounting system: the funds held by enterprises are divided into state funds and enterprise funds. Among them, the state funds shall not be used for the collective welfare fund of enterprise employees or as employee bonuses. Four. Objectively speaking, this crime is a large amount of behavior that a legal person privately distributes state-owned assets to individuals in the name of a unit in violation of state regulations. The so-called violation of state regulations refers to the violation of state regulations on the allocation and management of state-owned assets in such units. For example, in violation of the state's management system on the ratio of state-owned funds to enterprise funds, state-owned funds are converted into enterprise funds without authorization, and then state-owned assets are privately divided. Identification of directly responsible supervisors: identification of "directly responsible supervisors" and "other directly responsible personnel". Identification of "directly responsible person in charge" and "other directly responsible personnel" The so-called directly responsible person in charge must be the person in charge of a state-owned unit or other leaders who have the main decision-making responsibility in this criminal activity, which should specifically include: (1) the person in charge of the unit who directly decided to split shares; (2) The unit directly making the decision on share splitting is in charge of the leadership; (3) leaders who participate in collective research and agree to research decisions; (four) the leader who specifically directs the act of dividing up. Sentencing standard and judicial interpretation of the crime of privately dividing state-owned assets: The so-called other persons who are directly responsible refer to other persons who are responsible for this kind of criminal acts except the directly responsible person in charge, that is, those who directly commit or assist in the implementation of unit criminal acts. Including: (1) the personnel who put forward the share splitting proposal and specifically planned the share splitting behavior; The so-called other persons who are directly responsible refer to other persons who are responsible for this kind of criminal behavior except the person in charge who is directly responsible, that is, those who directly implement or assist in the implementation of the unit criminal behavior. Opinions of the People's Procuratorates of the Supreme People's Court and China on Several Issues Concerning the Specific Application of Laws in Handling Duty Crime Cases of State-funded Enterprises (Fa Fa [20210] No.49) With the continuous advancement of enterprise restructuring, people's courts and people's procuratorates have encountered some new situations and problems in handling duty crime cases such as corruption and bribery of state-funded enterprises. These new situations and problems have certain particularity and complexity, which need to be properly handled according to the specific historical conditions of enterprise restructuring. According to the spirit of criminal laws, regulations and related policies, the following opinions are put forward on some issues concerning the specific application of law in handling such criminal cases: regarding the handling of the behavior of employees of state-funded enterprises who hide their companies and their property belongs to individuals in the process of restructuring, state workers or personnel entrusted by state organs, state-owned companies and enterprises, institutions and people's organizations that manage state-owned property, taking advantage of their positions, in the process of restructuring state-funded enterprises, Whoever intentionally conceals the property of a company or enterprise by underestimating assets, concealing creditor's rights, fictitious debts, fictitious property rights transactions, etc., and turns it into the ownership of the restructured company or enterprise in which he holds shares, shall be investigated for criminal responsibility according to law, and shall be convicted and punished for corruption in accordance with the provisions of Articles 382 and 383 of the Criminal Law. The amount of corruption should generally be calculated in full with hidden property; If the restructured companies and enterprises still have state-owned shares, all parts of the state shall be deducted according to the proportion of shares. If the concealed property has been actually controlled by the actor in the process of restructuring, or the restructuring of the state-funded enterprise has been completed, it shall be treated as a accomplished offender. Persons other than those specified in the first paragraph who commit acts in this paragraph shall be convicted and punished for corruption in accordance with the provisions of Article 271 of the Criminal Law; If a person other than the person specified in the first paragraph commits this act together with the person specified in the first paragraph, it shall be punished as * * * corruption. In the process of enterprise restructuring, deliberately concealing the property of the company or enterprise by underestimating assets, concealing creditor's rights, fictitious debts, fictitious property rights transactions, etc. Generally, it should not be regarded as corruption; Whoever causes heavy losses to state-owned assets and constitutes a crime as stipulated in Articles 168 and 169 of the Criminal Law shall be convicted and punished in accordance with these provisions. Handling of concealing the property of state-owned companies and enterprises in the process of restructuring: If a state-owned company or enterprise violates state regulations and conceals its property in the process of restructuring and transforms it into a company or enterprise owned by workers collectively, the directly responsible person in charge and other directly responsible personnel shall be convicted and punished for the crime of privately dividing state-owned assets in accordance with the provisions of the first paragraph of Article 396 of the Criminal Law. After the restructuring of a company or enterprise, only the managers or a few employees of the company or enterprise before the restructuring hold shares, and most employees of the company or enterprise before the restructuring do not hold shares, they shall be convicted and punished for the crime of corruption in accordance with the provisions of Article 1 of this opinion. On the handling of the behavior of employees of state-funded enterprises using the funds of restructured companies and enterprises to guarantee personal loans and purchase shares of restructured companies and enterprises. If a staff member of a state-funded enterprise takes advantage of his position to provide a guarantee for personal loans by using the company's or enterprise's funds, financial vouchers and securities during the restructuring of the company or enterprise, he shall be convicted and punished for the crime of misappropriating funds or misappropriating public funds in accordance with the provisions of Articles 272 and 384 of the Criminal Law. If the actor holds shares of a state-funded enterprise before the reform, it will not affect the determination of the amount of misappropriation, but it should be considered as appropriate when sentencing. With the approval of the relevant competent department or in accordance with the relevant policies and regulations, if the staff of a state-funded enterprise commits the acts listed in the preceding paragraph in order to purchase the shares of a restructured company or enterprise, it may not be treated as a crime according to the specific circumstances. Regarding the handling of dereliction of duty by state functionaries in the process of enterprise restructuring, if state functionaries of state-funded enterprises are seriously irresponsible or abuse their powers in the process of restructuring companies and enterprises or disposing of state-owned assets, thus causing heavy losses to the interests of the state, they shall be convicted and punished for the crime of dereliction of duty or abuse of power by state-owned companies and enterprises in accordance with the provisions of Article 168 of the Criminal Law. If a state functionary of a state-funded enterprise practices favoritism and malpractice in the process of restructuring a company or enterprise or disposing of state-owned assets and sells state-owned assets at a low price to a company, enterprise or other individual that does not own shares, thus causing heavy losses to the national interests, he shall be convicted and punished for the crime of selling state-owned assets at a low price through favoritism and malpractice. State functionaries of state-funded enterprises who, in the process of restructuring or disposing of state-owned assets, engage in malpractices for selfish ends and sell state-owned assets to specific interested parties or companies or enterprises actually controlled by them at low prices, thus causing heavy losses to the interests of the state, shall be convicted and punished for the crime of corruption in accordance with the provisions of Articles 382 and 383 of the Criminal Law. The amount of corruption is calculated by the loss of state-owned assets. State functionaries of state-funded enterprises who accept bribes for the acts mentioned in the first and second paragraphs, and at the same time constitute a crime as stipulated in Article 385 of the Criminal Law, shall be convicted and punished in accordance with the provisions of heavier punishment. With regard to the handling of crimes in which the subject status changed before and after the reform, state functionaries who committed crimes by taking advantage of their positions before the reform of state-funded enterprises and committed the same acts after no longer having the status of state functionaries shall be convicted separately and punished for several crimes. State functionaries who, by taking advantage of their positions, conceal the property of companies and enterprises during the restructuring of state-funded enterprises and take the hidden property for themselves after they no longer have the status of state functionaries, shall be convicted and punished for the crime of corruption in accordance with the provisions of Articles 382 and 383 of the Criminal Law. In the process of state-funded enterprise restructuring, a state functionary who takes advantage of his position to seek benefits for the trustee, accepts the trustee's property after agreeing in advance that he no longer has the status of a state functionary, or continuously accepts the trustee's property before and after the status change, shall be convicted and punished for accepting bribes in accordance with the provisions of Articles 385 and 386 of the Criminal Law. The identification of state functionaries in state-funded enterprises shall be nominated, recommended, appointed and approved by state organs, state-owned companies, enterprises and institutions, and those who engage in public affairs in state-owned holding and shareholding companies and their branches shall be identified as state functionaries. The specific appointment institutions and procedures do not affect the identification of national staff. Personnel who engage in organization, leadership, supervision, operation and management on behalf of state-owned holding and joint-stock companies and their branches with the approval or research decision of the institution responsible for managing and supervising the state-owned assets of state-funded enterprises shall be recognized as state employees. The identification of the identity of a state employee in a state-funded enterprise shall not be affected if the state employee holds shares personally in the state-funded enterprise or is entrusted by a non-state-owned shareholder at the same time. Definition of state-funded enterprises The state-funded enterprises mentioned in this opinion include wholly state-owned companies and state-funded enterprises, as well as state-owned capital holding companies and state-owned capital-sharing companies. If it is not clear whether it belongs to a state-funded enterprise, it shall be defined according to the principle of "who invests and who owns property rights". If the source of funds in enterprise registration is inconsistent with the actual contribution, the nature of the enterprise shall be determined according to the actual contribution. If the actual contribution of the enterprise is not clear, the nature of the enterprise can be determined based on the industrial and commercial registration, distribution form, operation and management, etc. When handling duty crime cases in state-funded enterprises, we should comprehensively consider historical conditions, enterprise development, employee employment, social stability and other factors, pay attention to concrete analysis of specific situations, and strictly grasp the distinction between crimes and general illegal acts. Serious crimes with obvious subjective malice, serious social harm and strong reaction from the masses must be resolutely punished according to law; Acts that violate national policies and laws in order to successfully complete enterprise restructuring under specific historical conditions, if the perpetrator has no subjective malice or the subjective malice is not obvious, and the circumstances are minor and the harm is not great, may not be treated as crimes. For duty crimes in state-funded enterprises, we should increase economic punishment, pay full attention to the application and execution of property punishment, and maximize the recovery of losses suffered by the interests of the state and the people. If the stolen goods cannot be returned, they should be considered as important circumstances when deciding the punishment.
Legal objectivity:
In the first paragraph of Article 396 of the Criminal Law of People's Republic of China (PRC), state organs, state-owned companies, enterprises, institutions and people's organizations, in violation of state regulations, privately distribute state-owned assets to individuals in the name of units. If the amount is relatively large, the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or shall only be fined; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.