试论非法经营同类营业罪主体的立法完善

Discussion Concerning Legislative Perfection of Subject of Crime of Illegally Operating the Same Business

非法经营同类营业,是公司、企业有关人员违反竟业禁止义务而实施的非法竟业行为。我国刑法将其主体的存在空间限定为“国有公司、企业”的董事、经理,这种限定突出了保护国有公司、企业利益的目的,但与公司法等有关法律的规定不相衔接,不利于公有制为主体、多种所有制经济的共同发展和非国有经济的刑法保护,有必要予以完善。

Illegally operating the same business means that related staff of a company or enterprise who,violating his obligation of prohibition of operating the same business as that of the company or enterprise in which he holds the office,operates the same business for himself or for another and obtains illegal interests.The subject of the crime of illegally operating the same business is confined to the director or manager of a State-owned company or enterprise by the Criminal Law of PRC.Although the confinement highlights the aim of protecting the interests of State-owned company or enterprise,but it doesn't link up to another related legislative stipulations.This situation will be harmful to the communal development of many kinds of ownership and the protection to the Non-State-owned economy of the criminal law.It's necessary for us to perfect it.