为亲友非法牟利罪适用中的争议问题

Disputes on the Application of the Crime of Illegal Profits-making for Relatives and Friends

为亲友非法牟利罪是典型的背信犯罪,对亲友的范围应扩大解释,凡有一定交往或交流、能影响职务行为的决定的人,都应当认定为亲友。为亲友非法牟利,只有当损害公司、企业、事业单位利益,"使国家利益遭受重大损失",才能被作为犯罪追究刑事责任,在计算具体的损失数额时,三种不同情况下的为亲友非法牟利行为中计算方法又有所不同。为亲友非法牟利罪与贪污罪比较容易混淆,在具体判断时,应特别注意交给亲友经营的是否为单位的盈利"业务",是否向亲友"经营管理的单位"采购或销售商品,是为亲友牟利还是借亲友之名为自己牟利。

The crime of illegal profit-making for relatives and friends is a typical crime of breach of trust. The scope of relatives and friends should be expanded to explain,where there are certain contacts or exchanges with the accused and shall affect his duty behavior. Only when the action causes great losses to national interests including companies,enterprises and institutions,can it be deemed as crime. The specific calculation of losses varies in three different cases. The crime of illegal profit-making for relatives and friends and the crime of corruption are often confused with each other. To identify them,the judges should pay attention to whether the item given to "business"operated by relatives or friends,whether the purchases or sales are from or to "business"operated by relatives and friends,as well as whether making profits is for relatives and friends or for himself in the name of relatives and friends.