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| Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Law in Handling Duty-related Criminal Cases of State-funded Enterprises | | 最高人民法院、最高人民检察院关于办理国家出资企业中职务犯罪案件具体应用法律若干问题的意见 |
(No. 49 [2010] of the Supreme People's Court) | |
（法发〔2010〕49号） |
Along with the continual development of the restructuring of enterprises, the people's courts and the people's procuratorates have encountered some new situations and issues in handling the duty-related criminal cases of state-funded enterprises such as corruption and bribe-taking. These new situations and issues have certain particularity and complexity, which need to be properly handled according to law in light of the specific historical conditions of the restructuring of enterprises. In accordance with the spirit of the relevant policies and the provisions of the Criminal law, the following opinions on several issues concerning the specific application of law in the handling of this kind of criminal cases are hereby put forth: | |
各省、自治区、直辖市高级人民法院、人民检察院、解放军军事法院、军事检察院，新疆维吾尔自治区高级人民法院生产建设兵团分院、新疆生产建设兵团人民检察院： |
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现将《最高人民法院、最高人民检察院关于办理国家出资企业中职务犯罪案件具体应用法律若干问题的意见》印发给你们，请认真贯彻执行。 |
| I. Handling of the concealing of companies' or enterprises' property in the process of restructuring by functionaries of state-funded enterprises to be owned by restructured companies or enterprises of which shares are held by these functionaries | |
最高人民法院 |
Where any state functionary or any person who is entrusted by state organs, state-owned companies, enterprises, public institutions or people's organizations to manage or operate state property, in the process of the restructuring of state-funded enterprises, and by taking advantage of his post, intentionally conceals the companies' or enterprises' property to be owned by the restructured companies or enterprises of which shares are held by himself by means of asset underestimation, concealing creditor's rights, faking debts, fabricating transaction of property rights, among other means, the functionary shall be subject to criminal liability according to law and shall be convicted of and punished for the crime of corruption in accordance with Articles 382 and 383 of the Criminal Law. The amounts involved in corruption shall generally be calculated by the full amount of the concealed property; if there are still state-owned shares in restructured companies or enterprises, the state-owned portion shall be deducted in the proportion of shares. | |
最高人民检察院 |
Where the concealed property has in actual fact been controlled by the said person in the process of restructuring, or the restructuring of the state-funded enterprise has been completed, it shall be handled as a matter of completion of a crime. | |
二○一○年十一月二十六日 |
Any person other than one as prescribed by Paragraph 1, who engages in acts as prescribed in this Paragraph shall be convicted of and punished for the crime of duty-related encroachment in accordance with Article 271 of the Criminal Law; where any person other than one as prescribed by Paragraph 1 and any person as prescribed by Paragraph 1 jointly conduct acts as prescribed in this Paragraph, the former shall be punished as an accomplice in the crime of corruption. | |
最高人民法院最高人民检察院关于办理国家出资企业中职务犯罪案件具体应用法律若干问题的意见 |
Where any person does not intentionally conceal companies' or enterprises' property by taking methods such as asset underestimation, concealing creditor's rights, faking debts, and fabricating transaction of property rights in the process of enterprises' restructuring, it shall in general not be deemed as corruption; where any person causes substantial losses to state-owned assets and constitutes a crime as prescribed in Article 168 or Article 169 of the Criminal Law, the person shall be convicted and punished in accordance with the provisions therein. | |
随着企业改制的不断推进，人民法院、人民检察院在办理国家出资企业中的贪污、受贿等职务犯罪案件时遇到了一些新情况、新问题。这些新情况、新问题具有一定的特殊性和复杂性，需要结合企业改制的特定历史条件，依法妥善地进行处理。现根据刑法规定和相关政策精神，就办理此类刑事案件具体应用法律的若干问题，提出以下意见： |
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| II. Handling of the concealing of companies' or enterprises' property in the process of restructuring by state-owned companies or enterprises to be owned by restructured companies or enterprises of which shares are collectively held by their staff | | 一、关于国家出资企业工作人员在改制过程中隐匿公司、企业财产归个人持股的改制后公司、企业所有的行为的处理 |
Where any stated-owned company or enterprise conceals the company's or enterprise's property in the restructuring process to be owned by the restructured company or enterprise of which shares are collectively held by its staff in violation of the provisions of the state, the person directly in charge of the company or enterprise and other directly liable persons shall be convicted of and punished for the crime of private distribution of state assets in accordance with Paragraph 1 of Article 396 of the Criminal Law. | |
国家工作人员或者受国家机关、国有公司、企业、事业单位、人民团体委托管理、经营国有财产的人员利用职务上的便利，在国家出资企业改制过程中故意通过低估资产、隐瞒债权、虚设债务、虚构产权交易等方式隐匿公司、企业财产，转为本人持有股份的改制后公司、企业所有，应当依法追究刑事责任的，依照刑法第三百八十二条、第三百八十三条的规定，以贪污罪定罪处罚。贪污数额一般应当以所隐匿财产全额计算；改制后公司、企业仍有国有股份的，按股份比例扣除归于国有的部分。 |
Where the shares of the restructured company or enterprise are held only by the managers or the minority of staff of the company or enterprise before restructuring and the majority of staff of the company or enterprise before restructuring do not hold shares, these managers or the minority of staff shall be convicted of and punished for the crime of corruption in accordance with Article 1 of these Opinions. | |
所隐匿财产在改制过程中已为行为人实际控制，或者国家出资企业改制已经完成的，以犯罪既遂处理。 |
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第一款规定以外的人员实施该款行为的，依照刑法第二百七十一条的规定，以职务侵占罪定罪处罚；第一款规定以外的人员与第一款规定的人员共同实施该款行为的，以贪污罪的共犯论处。 |
| III. Handling of the acts of functionaries of state-funded enterprises who use the funds of restructured companies or enterprises to provide guarantee for personal loans for the purchase of the shares of restructured companies or enterprises | |
在企业改制过程中未采取低估资产、隐瞒债权、虚设债务、虚构产权交易等方式故意隐匿公司、企业财产的，一般不应当认定为贪污；造成国有资产重大损失，依法构成刑法第一百六十八条或者第一百六十九条规定的犯罪的，依照该规定定罪处罚。 |
Where any functionary of a state-funded enterprise, in the process of the restructuring of companies or enterprises, uses the funds, financial certificates or negotiable securities of the company or enterprise to provide guarantee for personal loans for the purchase of the shares of the company or enterprise by taking advantage of his or her post, the person shall be convicted of and punished for the crime of embezzlement of funds or the crime of misappropriation of public funds in accordance with Article 272 or Article 384 of the Criminal Law. | |
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If the said person holds shares of the state-funded enterprise before restructuring, it shall not affect the determination of the embezzled amount, but it shall be taken into consideration in sentencing where appropriate. | | 二、关于国有公司、企业在改制过程中隐匿公司、企业财产归职工集体持股的改制后公司、企业所有的行为的处理 |
Where any functionary of a state-funded enterprise conducts the act mentioned in the preceding Paragraphs for the purchase of the shares of the restructured company or enterprise upon the approval of the relevant competent department or in accordance with the provisions of relevant policies, it may not be treated as a crime according to the specific circumstances.
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国有公司、企业违反国家规定，在改制过程中隐匿公司、企业财产，转为职工集体持股的改制后公司、企业所有的，对其直接负责的主管人员和其他直接责任人员，依照刑法第三百九十六条第一款的规定，以私分国有资产罪定罪处罚。
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