论刑法中的“经营”

On Business Operating in Penal Code of PRC

作为行为的“经营”系具体犯罪中的实行行为,作为行为的“经营”是否存在,应基于事实考察,而不能以抽象的价值判断予以替代。作为对象的“经营”并非犯罪对象,而是通过人与物的组合而形成的一种社会关系。经营应当以具有营利目的为必要。非营利法人的单项业务属于经营活动,完全可以从是否获得利益得到解释;互联网时代的经营模式、经营观念虽然有别于工业时代,但仍应具有营利的本质特征;认为刑法及相关司法解释未明确要求营利目的而否定经营营利目的的观点存在明显错误。经营的内涵应理解为基于营利目的而提供商品或者服务的营业行为。经营行为具有交易性、营业性两个特征。对是否属于经营者的判断应当以与涉案公司有利益关系为标准。破坏单位的单个财物只有在直接影响生产经营收益的情形下,才成立破坏生产经营罪。单位职工造成单位损失的经营行为不属于破坏生产经营行为。

As an act,"business operating" is the principal act in a specific crime, so its existence should be determined on basis of facts investigation rather than abstract value evaluation. As an object,"business operating" is not the object of a crime, but a kind of social relation formed through the combination of a person and a thing. The purpose of making profits is needed in constituting the business operating. A single business of a nonprofit corporation may constitute the business operating, which may be totally explained from the fact that whether a benefit is obtained. The mode and idea of business operating in the internet era are quite different from those in industrial era, but making profits remains the essence of business operating. The view that denies the purpose of making profits for the business operating because the criminal law and relevant judicial interpretations do not explicitly stipulate the purpose of making profits is obviously wrong. Business operating should be understood as a business behavior offering goods or services for purpose of making profits. The act of business operating has two characters: transaction and business. The standard for determining a business operator shall be his/her being interested in the company involved in the case. Only when destroying a single item of an unit affects the benefit of production and business, can the act be determined as a crime of sabotaging production and business operation. The business operating behavior by an employee causing damage to the employer is not an act of sabotaging production and business operation.