Criminal Law Article 169: The crime of engaging in fraud for personal gain, converting shares into shares at a low price, and selling state-owned assets
The crime of engaging in fraud for personal gain, converting shares into shares at a low price, or selling state-owned assets refers to state-owned companies, enterprises or their superiors Personnel directly in charge of the competent department engage in favoritism and malpractice, converting state-owned assets into shares or selling them at low prices, causing heavy losses to national interests.
Object elements
The object of this crime is the state-owned ownership of state-owned companies and enterprise properties and the state-owned asset management system.
For state-owned companies and enterprises, the state is the owner of their assets. As the ultimate owner of assets, the state has ownership of state-owned assets. This is an original property right and is the result of the state’s investment in the enterprise. What is formed is the property rights enjoyed by all people on behalf of all people, usually expressed as the right to income from property and the final right to dispose of assets. Since it is impossible for the state to operate thousands of state-owned companies and enterprises, only through the operation of state-owned companies and enterprises can the state-owned assets maintain and increase their value during operation and bring benefits to the country. Therefore, state ownership must be broken down into state-owned companies and enterprises. Legal person property rights transfer the actual control, use and legal disposal rights of state-owned assets to state-owned companies and enterprises, while the state only enjoys the original property rights. The objective harmfulness of this crime is specifically reflected in the fact that the country has lost part of its original property rights, that is, the state-owned assets that have been converted into shares or sold at a low price by state-owned companies, enterprises or their directly responsible supervisors. The ownership of that part of state-owned assets represented by the difference between the original value and the current value has caused heavy losses to national interests.
In order to prevent the loss of state-owned assets and ensure the maintenance and appreciation of state-owned assets, the state has formulated a management system for state-owned assets, including a property rights registration system, a state-owned assets statistical reporting system, a property rights income supervision and payment management system, and an asset evaluation management system. As well as a system for verifying corporate capital through asset clearance and capital verification, etc. These systems play an important role in effectively completing the basic management of state-owned assets and effectively preventing and controlling the loss of state-owned assets. While this crime infringes upon the ownership of state-owned assets, it also undermines the state-owned assets management system, because converting state-owned assets into shares at low prices or selling state-owned assets at low prices is based on rough evaluation, omissions, and low evaluations in the evaluation of state-owned assets. , directly infringed on the evaluation and management of state-owned assets, resulting in serious loss of state-owned assets.
Objective elements
Objectively, this crime manifests itself as the act of violating state regulations, engaging in malpractice for personal gain, and converting state-owned assets into shares or selling them at low prices.
1. Violation of national regulations. The so-called violation of national regulations refers to the violation of the Company Law and other state-owned asset protection regulations. For example, Article 213 of the Company Law stipulates: “In violation of the provisions of this law, state-owned assets are converted into shares at a low price, sold at a low price, or distributed free of charge. For individuals, the directly responsible person in charge and other directly responsible personnel will be given administrative sanctions in accordance with the law. If a crime is constituted, criminal responsibility will be pursued in accordance with the law. ”
2. Engage in malpractice for personal gain. This crime refers to the person doing something that violates the company law and state-owned assets protection regulations in order to seek personal gain.
3. The practice of converting shares into shares at a low price or selling state-owned assets at a low price. The state-owned assets here refer to the state-owned assets of state-owned companies and enterprises, that is, the property formed by the state’s various forms of investment and investment income in state-owned companies and enterprises, as well as other state-owned properties recognized as state-owned companies and enterprises in accordance with laws and administrative regulations. , specifically represented by state-owned funds, machinery, equipment, factories, land and other tangible or intangible properties. The low-priced stock conversion here refers to deliberately undervaluing the physical property, industrial property rights, non-patented technology or land use rights of state-owned companies and enterprises and converting them into shares as investment. Selling at a low price here refers to selling the above-mentioned state-owned assets to others at a price lower than their actual value.
There are various forms of converting state-owned assets into shares or selling them at low prices. In some cases, during the process of joint venture, joint venture, or joint-stock system transformation, state-owned assets are not evaluated, or the assets are evaluated, but the value is lower than the estimated value. The actual value of the assets is converted into shares at a low price; some underestimate the physical assets; some state-owned assets are not converted into shares at the replacement price and their value-added part is not calculated, but are converted into shares at the original book value; some state-owned assets are converted into shares at the original book value. The trademarks, goodwill, patents and other intangible assets of companies and enterprises are not included in the state shares; some land and factories belonging to state-owned companies and enterprises are sold to small businesses at low prices without the approval of the competent authorities and without the evaluation and pricing by the evaluation agency. Collective or private owners receive kickbacks, etc.
4. This crime is committed as a result. The perpetrator engages in malpractice for personal gain and converts state-owned assets into shares or sells them at a low price. This crime can only be constituted if it results in significant losses to national interests. Otherwise, the perpetrator can only bear administrative liability. The major losses here refer to the situation where a large amount of state-owned assets are lost irreparably due to low-price stock conversion or low-price sales, and national interests suffer heavy losses. As for the criteria for determining "significant losses", the highest judicial authority is awaiting an authoritative explanation. If the perpetrator's behavior of converting state-owned assets into shares or selling them at a low price is discovered by the relevant state authorities and promptly stopped or corrected, and objectively no harmful consequences have resulted in significant losses to national interests, it cannot be determined as such. crime.
Subject Requirements
The subject of this crime is a special subject, that is, the person in charge directly responsible for the state-owned public company, enterprise or its superior department. Otherwise, this crime cannot be constituted.
Subjective elements
The subjective aspect of this crime must be intentional and have clear selfish motives. If it is not intentional and there is no motive for engaging in malpractice for personal gain, and the perpetrator makes mistakes when converting and selling state-owned assets due to low level of ideological knowledge, insufficient professional knowledge, and low business ability, this crime will not constitute this crime.
Case Filing Standards
"Regulations of the Supreme People's Procuratorate and the Ministry of Public Security on the Criteria for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (2)" Article 17 [Favoritism, fraud, low-price stock exchange, Case of Sale of State-owned Assets (Article 169 of the Criminal Law)] A person in charge of a state-owned company, enterprise or its superior competent department who is directly in charge engages in malpractice for personal gain, converts state-owned assets into shares or sells them at a low price, and is suspected of one of the following circumstances A case should be filed for prosecution:
(1) Causing direct economic losses to the state exceeding 300,000 yuan;
(2) Causing the relevant unit to go bankrupt, suspending business, or suspending production for six months for more than three months, or the license and business license have been revoked, or ordered to close, cancel or dissolve;
(3) Other circumstances that cause significant losses to national interests.
Criminal Law Articles
Article 169: The crime of practicing favoritism and malpractice, converting shares into shares at low prices, and selling state-owned assets; the crime of breach of trust and harming the interests of listed companies; state-owned companies, enterprises or their superiors If a person in charge of a department who is directly responsible engages in malpractice for personal gain, converts state-owned assets into shares or sells them at a low price, thus causing heavy losses to national interests, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if he causes particularly heavy losses to national interests, he shall be sentenced to three years in prison. to fixed-term imprisonment of not less than 10 years but not more than seven years.
Any director, supervisor, or senior manager of a listed company who violates his or her duty of loyalty to the company, takes advantage of his or her position to manipulate the listed company to engage in one of the following acts, causing significant losses to the interests of the listed company, shall be punished with a prison sentence of not more than three years Fixed-term imprisonment or criminal detention, and concurrently or solely a fine; whoever causes particularly heavy losses to the interests of a listed company shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined:
(1) Free payment to other units Or individuals provide funds, goods, services or other assets;
(2) Provide or accept funds, goods, services or other assets on obviously unfair terms;
(3) Providing funds, goods, services or other assets to entities or individuals that are obviously not solvent;
(4) Providing guarantees for entities or individuals that are obviously not solvent, or without legitimate Reasons to provide guarantees for other units or individuals;
(5) Giving up creditor's rights and assuming debts without justifiable reasons;
(6) Using other methods to harm the interests of listed companies.
If the controlling shareholder or actual controller of a listed company instructs the directors, supervisors, or senior managers of the listed company to commit the acts mentioned in the preceding paragraph, he shall be punished in accordance with the provisions of the preceding paragraph.
If the controlling shareholder or actual controller of a listed company that commits the crime in the preceding paragraph is an entity, the entity shall be fined, and the persons directly in charge and other directly responsible persons shall be fined in accordance with the provisions of paragraph 1. punishment.
Relevant Laws
Article 81 of the "Company Law" When a state-owned enterprise is converted into a joint-stock company, it is strictly prohibited to convert state-owned assets into shares at a low price, sell them at a low price, or distribute them for free. personal.
Article 213: Violating the provisions of this Law, state-owned assets are converted into shares at a low price, sold at a low price, or distributed to individuals for free. The directly responsible person in charge and other directly responsible personnel will be given administrative sanctions in accordance with the law. If a crime is constituted, criminal liability shall be pursued in accordance with the law.
Determination
(1) The boundary between this crime and non-crime
To correctly distinguish the boundary between this crime and non-crime, we should mainly grasp the difference between this crime and general favoritism. The key to distinguishing between the behavior of dealing with state-owned assets at low prices lies in whether the behavior has caused significant losses to national interests. If the perpetrator's behavior of disposing of state-owned assets at a low price does not cause significant losses to state property, he cannot be convicted and punished for this crime.
(2) The boundary between this crime and the crime of official embezzlement
Both this crime and the crime of official embezzlement infringe upon the property ownership of the unit, and both are subjectively intentional, but both There are essential differences between sins:
1. Different objective aspects. This crime is manifested as engaging in malpractice for personal gain and selling off state-owned assets at low prices, causing heavy losses to national interests. The crime of official embezzlement is when employees of a company, enterprise or other unit take advantage of their position to illegally take possession of the property of their unit as their own. , behavior with a large amount.
2. The subjects are different. The subject of this crime is the directly responsible person in charge of a state-owned company, enterprise or its superior department, while the subject of the crime of job embezzlement is the staff of a company, enterprise or other unit.
3. The subjective purposes are different. The purpose of this crime is for favoritism or personal gain, while the purpose of the crime of official embezzlement is to illegally occupy unit property.
4. The objects are different. The object violated by this crime is the property ownership and state-owned asset management system of state-owned companies and enterprises, while the object violated by the crime of official embezzlement is the property owned by the unit.