In a fraud investigation case handled by the author's team, the victim company was an overseas company operating in my country. The company found that an employee had committed the following fraud: The employee took advantage of his position in charge of sales to sell products at prices lower than the market price. Standard sold goods to Company A. After investigation, it was found that the actual controller of Company A was a relative or friend of the employee.
If the company is a state-owned company, this behavior of the perpetrator is a standard "crime of illegal profit-making for relatives and friends" constitutive behavior. However, the company is just an ordinary foreign company. According to the principle of statutory crime and punishment, the company cannot become a victim of the crime of "illegal profit-making for relatives and friends". At the early stage, the company also considered that the perpetrator might be suspected of the crime of job embezzlement. However, the core of the crime of job embezzlement is that the perpetrator wanted to benefit himself and took possession of the unit's property as his own. In this case, the existence of this situation has not yet been verified.
At this time, a situation arises where employees destroy trust relationships, affect the company's trading relationships with others, cause greater economic losses to the company, and thus undermine the market economic order. However, if they "have not done anything for themselves through this behavior, "Seeking interests" and "no commercial bribery" cannot be held accountable through criminal law. This reflects the criminal law's differential protection between state-owned enterprises and private enterprises. For the same behavior, private enterprises are unable to fully protect their legitimate rights and interests.
This kind of behavior that harms the interests of the unit for the benefit of a third party is essentially a typical breach of trust. In some countries outside the country, it is directly regulated by the "crime of breach of trust". The author intends to introduce the provisions on the crime of breach of trust overseas, compare them with domestic laws, and put forward some thoughts and suggestions on the equal protection of private enterprises in my country's criminal law.
1. How to understand the crime of breach of trust in overseas criminal law
(1) The original intention of the crime of breach of trust
The crime of breach of trust refers to a person who has the right to handle affairs for others. In the process of handling affairs, either for personal gain or for the benefit of a third party The third party seeks benefits or simply harms the interests of others by performing behaviors that should not be performed, causing losses to other people's property.
The original intention of countries that set up this crime is generally that behavior is a relatively traditional property crime. The property losses caused by its abuse of authority and violation of fiduciary obligations must have serious social harm and are extremely harmful to the healthy development of the economic system. unfavorable. Because of this, many countries and regions in the world have stipulated this crime, such as Germany, Japan, Sweden , South Korea, Taiwan, Macau Special Administrative Region, etc.
(2) The provisions of the crime of breach of trust in different countries and regions
The crime of breach of trust in essence must include situations where violates its obligations, destroys the trust relationship with the client, and damages the interests of the client. In view of the provisions of the crime of breach of trust in different countries. They are not the same. The author selected the provisions of several typical countries and regions to analyze this crime based on their legal provisions:
(3) Components of the crime of breach of trust
Although the provisions of this crime are different in different regions, However, by summarizing the relevant provisions of this crime, we can basically determine that the following elements are required for the establishment of this crime:
1. The subject of the act
The actor should be "a person who has the right to handle affairs for others", that is, a specific identity is required to be convicted of this crime. Specifically, the actor may obtain authorization in accordance with the provisions of the law, or may obtain it in accordance with official authorization The authority may be due to civil entrustment as a trustee. The specific authorization authority varies depending on the regulations of different regions. The essence is that obtains the entrusted authority as an identity.
2. The objective performance of
is that the perpetrator's behavior is "violating his mission". Depending on the source of the entrusted authority, it may be an act that violates the contract, the entrustment intention, or it may be an act that violates legal provisions. Its essence is a violation of the trustee's obligations such as integrity and diligence. In practice, whether the actor has violated the task can generally be determined by combining laws and regulations, rules and regulations, stipulations in the contract, transaction practices, the nature and content of the specific affairs, the job authority of the person handling the affairs, and the social General concepts and other aspects of make comprehensive judgments. 3. Subjective aspect This crime is an intentional crime. The perpetrator needs to have an understanding and foreseeable attitude towards his behavior that violates his tasks and causes losses to others' property. Negligence does not constitute this crime. As for whether the actor is required to have the purpose of seeking profit or harming the interests of the client, different countries and regions have different regulations. For example, the German criminal law mentioned above does not stipulate whether the perpetrator must have this purpose, while the criminal laws of Japan and Taiwan provide for "the purpose of seeking benefits or harming the interests of the client." 4. Harmful Consequences The establishment of this crime requires that the breach of trust causes damage to the client's property interests. The specific standards of property loss will depend on the specific regulations of different regions. (4) Concurrence between the crime of breach of trust and common crimes In the property crime system of overseas criminal laws, there are also provisions on the crime of misappropriation of entrusted objects, crimes of business embezzlement, and crimes of fraud. In fact, among the common behavior patterns stipulated in the crime of breach of trust , often including embezzlement, fraud, etc. Therefore, the problem of determining the crime often arises in overseas criminal law. 1. The crime of breach of trust, the crime of embezzlement of entrusted things, and the crime of business misappropriation The subjects of the crime of breach of trust, the crime of embezzlement of entrusted things, and the crime of business misappropriation all require special subjects, but the scope of the subjects of these three crimes is not exactly the same (for example, the items The custodian can only be the subject of the crime of embezzling the entrusted property, but not the subject of the crime of breach of trust or business misappropriation), but under certain circumstances there will be overlap between the subjects, that is: in the process of the trustee handling affairs for the principal, through Carrying out behavior that violates the task and embezzling the client's property. In this behavioral pattern, the actor not only commits breach of trust, but also embezzles or misappropriates business (the distinction between these two crimes depends on the identity of the actor in the individual case) and defined), and ultimately resulted in damage to the interests of the client. So, which crime should be convicted of this? According to the author's research, the results of different cases are not exactly the same. However, more people believe that when the perpetrator meets the crime of breach of trust, the crime of misappropriation of entrusted property, and the crime of business misappropriation at the same time, it is a conflict of laws. should follow the principle of "special law is better than general law" and "complex law is better than simple law". "Law", "heavy law is better than light law" and other principles, combines the specific regulations of the country to determine the final crime. 2. Breach of trust and fraud In the process of handling affairs for the client, the trustee misappropriates the client's property or makes profits by fabricating facts and concealing the truth, which is also a typical breach of trust. In this behavior pattern, there are both violations of tasks and fraud committed by the perpetrators. In this regard, general opinions believe that the act constitutes an imaginary combination of the crime of fraud and the crime of breach of trust, and should be punished severely in accordance with the law. Generally speaking, the statutory penalty for the crime of fraud is heavier, and it is determined as the crime of fraud. In fact, through the above analysis of the behavioral pattern, subjective aspects, and objects of violation of the crime of breach of trust, we can find that the crime of breach of trust, as a property crime, is committed through violations of tasks. The ultimate purpose pursued is nothing more than seeking personal benefit, benefiting others, and harming the interests of the client. This setting itself is very easy to conflict with other crimes. Among the constituent elements of the crime of breach of trust, the actor's different behavioral methods may involve obstructing the management order of the company or enterprise, and may achieve results such as job embezzlement, embezzlement, fraud, commercial bribery, etc. The infringement of these legal interests is also covered by our country's criminal law. There are corresponding regulations. The author here briefly summarizes and analyzes the possible criminal offenses that breach of trust may constitute in China. (1) Crimes directly related to breach of trust in the field of criminal law of our country No. Crimes Chapter 3, Crimes of Undermining the Socialist Market Economic Order 1 Article 163 Crime of Accepting Bribery by Non-State Staff 2 Article 164 Crime of Bribery of Non-State Staff 3 Article 165 The crime of illegally operating similar businesses (The main body of protection is state-owned companies and enterprises) 4 Article 166 The crime of illegal profit-making by relatives and friends (The main body of protection is state-owned companies, enterprises, and institutions) 5 Article 168 Personnel of state-owned companies and enterprises Crime of abuse of power, crime of abuse of power by personnel of state-owned institutions (The subject of protection is state-owned companies, enterprises, and institutions) 6 Article 169 The crime of practicing favoritism, converting shares at low prices, and selling state-owned assets (The subject of protection is state-owned companies, enterprises) 7 Article 169-1 Crime of breach of trust and harming the interests of listed companies (the subject of protection is a listed company, not a general private enterprise) 8 Article 171, paragraph 2, of a financial worker exchanging counterfeit currency for currency ( The scope of the protection subject is specific, it is a bank or other financial institution Institution) 9 Article 180: Insider trading, leaking inside information, and trading using undisclosed information (the scope of the subject of the behavior is specific, and they are insiders in a specific field) 10 Article 185-1: Crime of using entrusted property in breach of trust, and illegal use of funds (The scope of the protection subject is specific, which is commercial banks, stock exchanges, futures exchanges, securities companies and other financial institutions) 11 Article 186 Crime of illegal granting of loans (The scope of the protection subject is specific, it is a bank or other financial institution) 12 Article 187 Article 188 of Article 188 of Article 189 of Article 189 of Article 189 of Article 189 of Article 189 of Article 189 of Article 189 of Article 189 of Article 189 of Article 189 of Article 189 of Article 414 Crimes of bill acceptance, payment, and guarantee (the scope of the protection subject is specific, which is a bank or other financial institution) 15 Article 219 Crime of infringement of commercial secrets 16 Article 223 Crime of collusion in bidding Chapter 5, crime of infringement of property 17 Article 266 Crime of fraud 18 Article 270 Crime of Embezzlement 19 Article 271 Crime of Embezzlement of Position 20 Article 272 Crime of Misappropriation of Funds Chapter 8, Crime of Corruption and Bribery (the subjects of this chapter are all state functionaries or related personnel) 21 Article 382 Crime of Corruption 22 Article 384 Article 385 Crime of accepting bribes 24 Article 388-1 Crime of taking advantage of influence to accept bribes 25 Article 389 Crime of offering bribes 26 Article 390-1 Crime of bribery of influential persons 27 Article 391 Crime of bribery of units 28 Article 9392 Introduction to the crime of bribery 29 Article 393 The crime of unit bribery 30 Article 396 The crime of privately dividing state-owned assets, the crime of privately dividing confiscated property Chapter 9, the crime of dereliction of duty (the subjects of this chapter are all state workers or related personnel) 31 Article 397 Crime of Abuse of Power 32 Article 404 Crime of Favoritism and Malpractice in Not Collecting or Underpaying Taxes 33 Article 410 Crime of Transferring State-owned Land Use Rights Illegally at Low Prices The above crimes are clearly stipulated in my country’s Criminal Law and can be related to breach of trust. (If a criminal offense is constituted by breach of trust, the charges will not be limited to the above-mentioned crimes. There will also be some related charges, but they are not typical breach of trust. These related charges are not listed one by one. For example, if a company employee takes advantage of his position to sell personal information within the company, this breach of trust may constitute the crime of infringement of citizens' personal information, but the crime of infringement of citizens' personal information is not a typical crime of breach of trust). The specific breach of trust can be analyzed to see whether it meets one of the above A provision for a crime. (2) The setting of the above-mentioned crimes clearly provides different protections for enterprises of different natures, and the protection for ordinary private enterprises is the least. These crimes are stipulated in different chapters of the "Criminal Law", and the scope of the subjects they protect and the scope of the actors they regulate are different. protects the smallest number of ordinary private enterprises than . The author marked the main scope in the above table. According to the label: 1. It is obvious that in terms of breach of trust, the state's protection for enterprises of different natures is inconsistent; 2. Among the 33 crimes listed above, 17 of them are clearly necessary to protect state-owned companies or actors. Those who are state workers account for more than half; 3. Among the 33 crimes listed above, the scope of protection subjects and regulated behavior subjects of 8 crimes are specific (listed companies, financial institutions, etc.) and cannot be spread to Among general private enterprises; 4, among the 33 crimes listed above, only 8 are applicable to all private enterprises, and among these 8 crimes, except for the crime of collusion in bidding, other crimes are basically concentrated. Misappropriation of company property, misappropriation of company property, and commercial bribery do not include behavioral patterns that simply harm the company's interests. 5, abuse of power, illegal profit-making for relatives and friends, and other typical breach of trust behaviors. The relevant crimes are only designed to protect state-owned companies, and the protection for ordinary private enterprises is blank. Based on this, the author believes that the current scope of protection of private enterprises in our country’s criminal law system is too narrow and should be improved. On the one hand, the damage to enterprises and social harm caused by breach of trust is greater than that of general property crimes, but there is no criminal way to go. On the other hand, in the absence of criminal risks, if only civil means can be used to recover losses, the deterrent effect of this result is far from enough. In other situations and circumstances, the same breach of trust may be repeated again. In May of this year, Zhou Qiang, President of the Supreme People’s Court, delivered a report on the work of the Supreme People’s Court to the third session of the 13th National People’s Congress, saying that people at all levels across the country Courts must strengthen judicial protection of property rights. We insist on the equality of all market entities and treat state-owned and private enterprises, domestic and foreign-owned enterprises, large, medium, small and micro enterprises equally. Zhou Qiang said that will clean up judicial interpretations and abolish all unequal regulations for private enterprises. At the same time, Yang Jinghai, a deputy to the National People's Congress, Secretary of the Party Leadership Group and Procurator General of the Shanxi Provincial Procuratorate, said: At present, the provisions of the criminal law still have a relatively obvious problem of protecting the non- public-owned economy and the public-owned economy. is mainly manifested in the infringement of the public-owned economy. For similar acts in the non-public economy, the relevant provisions of the criminal law set up different crimes and statutory penalties with widely different configurations. It can be seen that more and more people are paying attention to issues such as the business environment and equal protection of private enterprises. Regarding the breach of trust discussed in this article, the problem of inconsistent protection under the current legal system is the typical differential protection phenomenon reflected above. This has been deeply understood in our case handling process. Not only is it difficult to investigate, but also After ascertaining the facts, there is still a lack of legal basis for clear accountability. Therefore, we hope that the regulation of breach of trust can be more perfect, and can be adjusted by civil means and criminal means according to the degree of illegality and the degree of social harm caused, so as to more comprehensively protect the business environment of private enterprises. Text: Feng Xiao, Han Chao Luomeng This article is original by Xinghan. If you need to reprint it, please contact us first. The information in this article is for general reference only and should not be regarded as legal advice or basis for specific matters. 2. Identification of breach of trust under my country’s criminal law system
3. Bringing breach of trust into the scope of criminal regulation is the due meaning of equal protection of enterprises
