For example, the general manager of a state-owned company set up a company privately during his tenure, and during his tenure, he used his position to transfer the company's business to the company he set up privately. By the time of the crime, the private company had made a profit of nearly10 million yuan. Does asking the general manager constitute a crime? If it constitutes a crime, is it a crime of illegally operating similar businesses or a crime of corruption?
Generally speaking, to judge whether an act constitutes a crime or what crime it constitutes, we can basically make a preliminary judgment according to the subjective purpose of the actor and his objective behavior.
As asked above, according to the above theory, simply put:
Subjectively, the general manager has the purpose of encroaching on the property of a state-owned company, embezzling the company's property by setting up a private company or transferring benefits through a private company, and then illegally taking it for himself. Then, it can basically be judged as a crime of corruption.
If he doesn't have the purpose of embezzling the company's property ideologically, but set up a company privately with the idea of making profits, and then trade with the company he works for through the company he set up privately, so as to obtain benefits. Then, under this kind of behavior, due to its lack of subjective intention to illegally occupy public property, its behavior cannot constitute the crime of corruption. If its behavior infringes on the interests of the company, its behavior may conform to the criminal constitution of the crime of illegally operating similar businesses.
More specifically:
The nature of a crime should be determined according to the ownership of the money involved.
If nearly 10 million profits involved belong to the unit where the general manager works, and then leave the unit through the general manager's behavior, it is corruption.
If the nearly 10 million profits involved do not belong to the company where the general manager works, but are obtained by private companies through normal operations, it is impossible to constitute the crime of corruption.
In other words, the nature of the crime is determined by whether the business opportunity or the property belonging to the object is transferred.
If only a business opportunity is transferred, it cannot constitute the crime of corruption.
If you transfer the profits of the company that should belong to you to a private company, it may constitute a crime of corruption.
That is to say:
If a private company makes a profit of nearly 10 million yuan by operating or trading with an established company, even if the general manager takes advantage of his position to transfer the related business, even the main business, of the company he works for to a private company, because private companies do exist, their profits are obtained through normal or abnormal transactions. What it gets is the difference between purchase and sale, rather than embezzling state-owned assets under its guise. Even if its business is not compliant, it is because of the authenticity of the transaction and the certainty of profits. It cannot be determined that it constitutes a crime of corruption just by transferring the business of state-owned companies by the general manager. If it constitutes a crime, the act is more in line with the criminal constitution of the crime of illegally operating similar businesses.
Of course. If a private company actually exists, but basically there is no business, no business, no capital investment, and it transfers its business to a private company completely through the state-owned company where the general manager works, and obtains huge profits, then, in this case, the private company is only a nominal or inflated link of the general manager. It is a means for the general manager to embezzle the assets of the company where he works, and it is a criminal tool. Then, it is not excluded that the general manager embezzles the company's property in disguise, which belongs to the use of his position to export the interests of the state-owned company he works for to his private company, and then illegally take it for himself, which may constitute the crime of corruption.