The Amendment(Ⅻ)to the Criminal Law includes insiders of private enterprises in the scope of articles 165,166 and 169 of the Criminal Law,further strengthening the equal protection of property rights of private enterprises.For the protection of the property rights of private enterprises,under the formal equality,attention should be paid to the essential difference of the crime of breach of trust committed by insiders of enterprises of different ownership systems,and differentiated protection should be implemented.The judicial determination of the crime of breach of trust by insiders of private enterprises shall be based on the distinction between the crime of breach of trust by insiders of state-owned enterprises,combined with the relevant provisions and theories of the Company Law.Specifically,the de facto director can be interpreted as a'director';the identification of controlling shareholders or de facto controllers committing the relevant breach of trust crimes needs to be discussed in each case;and one-person companies,sole proprietorships,and partnerships can also be covered by'other companies and enterprises'.With regard to the results of the act,a substantive judgment should be made as to whether or not it has caused'significant loss',so as to avoid replacing property loss with a breach of duty.As for the determination of'violation of laws and administrative regulations',it is a matter of judgment of illegality;if the relevant breach of trust has obtained the consent of the shareholders'meeting or the board of directors,it does not,in principle,constitute a crime of breach of trust;however,it may also constitute a crime under special circumstances(abuse of voting rights,etc.》.
criminal law amendment(Ⅻ)private enterprisesbreach of trustsubstantive equalityjudicial application
NETL
NSTL
万方数据
