IN THIS ARTICLE: In recent years, the Supreme People's Procuratorate has issued a series of documents to protect the property rights of private enterprises. This paper summarizes the common crimes of 10 private enterprises, and lists a risk prevention and control guide for the majority of private enterprises (economic men) from the perspective of criminal defense and combining with the current judicial standards for law enforcement. ...
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In the process of production and operation of private enterprises, common high-incidence crimes, such as: job occupation, misappropriation of funds, illegal fund-raising, illegal operation, fraudulent loans, contract fraud, etc. ...
This paper will summarize these "common crimes", focusing on law enforcement from the perspective of criminal defense and combining with the current judicial standards to help private enterprises prevent and control related risks.
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Illegal fund-raising is a common problem of private enterprises.
In recent years, the Supreme People's Procuratorate has issued the relevant documents on "Protecting the Property Rights of Private Enterprises", and the frequency of this problem is also the highest.
For example, in the "Opinions of the Supreme People's Procuratorate on Giving Full Play to the Procuratorial Function to Ensure" Six Guarantees "and" Six Guarantees "recently issued by the Supreme People's Procuratorate, it is once again emphasized that general illegal acts in financing of private enterprises should not be treated as crimes.
Illegal fund-raising mainly involves two crimes: fund-raising fraud and illegal absorption of public deposits.
(1) The key to the identification of the crime of fund-raising fraud lies in "illegal (possession)". For the financing behavior of private enterprises, only when the evidence is clear that it is for the purpose of illegal possession can we be convicted of fund-raising fraud.
(2) In the crime of illegally absorbing public deposits, if the illegal money is used for the normal production and operation activities of the enterprise and can be repaid in time, it can be exempted from prosecution or criminal punishment. If the circumstances are obviously minor, it may not be treated as a crime.
In addition, there is a common crime in the process of enterprise financing: loan fraud.
Distinguish from three aspects: enterprise loan purpose (whether there is fraud purpose), financing purpose (whether it is used for production and operation) and harmfulness (whether it causes great losses). If it is just a general violation, without the above three situations, then it cannot be treated as "loan fraud".
On the determination of this crime:
(1) A key point lies in the "violation of state regulations" in the interpretation of criminal law provisions.
In the relevant explanation given by the Supreme People's Procuratorate, it is clear that "violation of state regulations" means:
In practice, the common enterprise "unauthorized registration" and "violation of state regulations" cannot be confused.
(2) In addition, another key point is the fourth comprehensive clause in the interpretation of relevant criminal law provisions:
-"other illegal business practices that seriously disrupt market order".
There are often differences in practice, but the key lies in the fact that the law and judicial interpretation have no clear provisions on prohibited acts, so this crime cannot be applied at will.
(1) The case of untreated crime is defined as:
(2) The circumstances of leniency according to law are clarified:
Previously, the Supreme People's Procuratorate clearly emphasized the behavior of paying "kickbacks" and "benefits" for the normal business activities of enterprises:
(1) If the criminal law and other laws do not stipulate that the unit shall be investigated for criminal responsibility, the private enterprises involved shall not be investigated for criminal responsibility for unit crimes;
(2) For private enterprises to participate in unit crimes, the responsibilities of their branches should be distinguished:
(3) The business property and personal property of the operator should also be distinguished.
On this issue, it is a prominent problem reflected by entrepreneurs at present.
At present, the attitude of the Supreme People's Procuratorate and the Supreme People's Law is very clear: criminal means are strictly prohibited from intervening in economic disputes.
Another is that private enterprises should have a sense of self-protection, such as using the procedure of filing a case for supervision to safeguard their legitimate rights and interests.
Those who think that the public security organ should not file a case may submit it to the people's procuratorate for examination.
In the process of investigating cases of private enterprises, compulsory measures such as seizure, seizure and freezing are applicable, and it is also clearly stipulated in the explanations of relevant documents issued by the Supreme People's Procuratorate:
Because regarding the business operation, in order to prevent the business operation from being blocked after restricting personal and property rights, compulsory measures such as restricting personal and property rights should be used cautiously in general.
For the arrest and prosecution of private enterprise cases, the current law enforcement is in principle:
(1) First, it is necessary to prevent "catching the first offender". Generally speaking, private enterprise operators who are not socially dangerous, have a good attitude of pleading guilty and have rendered meritorious service will not be arrested.
(2) Second, if a general civil dispute does not constitute a criminal offence, and the evidence and facts are insufficient, it may not be prosecuted if it has made a significant contribution after examination or involves the vital interests of the state.
For private enterprises, it is necessary to distinguish between the behavior of arrears of labor remuneration due to the difficulty of capital turnover and the behavior of malicious arrears of wages.
The crime of refusing to pay labor remuneration is another high-incidence crime in the process of enterprise production and operation. Especially in the economic downturn, there are many cases in which enterprises have difficulty in capital turnover due to poor management, and the resulting arrears of labor remuneration cannot be confused with malicious arrears of wages in a strict sense.
It is necessary to "understand the difficulties of enterprises" and "safeguard the legitimate rights and interests of workers".
The Supreme People's Procuratorate's latest Opinions of the Supreme People's Procuratorate on Giving Full Play to the Procuratorial Function to Ensure "Six Guarantees" and "Six Guarantees" proposes that criminal responsibility may not be investigated for acts of falsely issuing VAT invoices without the purpose of tax fraud, resulting in tax losses.
In recent years, the state has vigorously encouraged enterprises to innovate in science and technology. Therefore, the innovative products of many enterprises can not be applied to the existing national accreditation standards for the time being.
In this regard, the interpretation of the relevant documents in the Supreme People's Procuratorate also clearly stated that such "unqualified" innovative products should be treated differently:
For example, in the actual case, the enterprise innovative product walking machine cannot be identified and punished according to the existing standards (producing and selling fake and inferior products) because it does not apply to the national recognized standards of traditional treadmills.