国有企业中职务侵占罪司法适用乱象的辨正与原因探析

On the Correction and Reasons of the Judicial Application In the Crime of Duty Embezzlement in State-owned Enterprises

国有企业中高级管理人员利用职务便利将本单位财物据为己有的行为,在某些情况下成立职务侵占罪而不是贪污罪是有理论和现实依据的。职务侵占罪有别于贪污罪,主要在于其客体是财产权利和基于职务关系而形成的信任关系;主体是公司企业中的非国家工作人员。如何界定刑法上的国有企业和国家工作人员等关键概念,需要考察我国经济体制改革和人事任免制度的变迁以及产权观念的发展过程。为了避免司法适用中出现对关键概念认定的标准不一,也是为了更好地促进刑法与监察法、行政法、企业法之间的衔接,有必要在刑法中借鉴《监察法》中以国家公职人员取代国家工作人员这一概念的做法。

The middle and senior managers of state-owned enterprises take advantage of their positions to facilitate the possession of the property of their own enterprises,which is theoretically and realistically defined as the crime of duty embezzlement rather than corruption in some cases.The crime of duty embezzlement is different from that of corruption mainly because the object of the former crime is the relationship of property rights and trust based on the relationship of duties;the subject of the former crime is the non-state staff in the enterprises.In the process of defining the key concepts such as state-owned enterprises and state staff in the Criminal Law,it is necessary to examine the reform of China's economic system and the changes in the system of personnel appointment and removal as well as the development of the concept of property rights.In order to avoid the difference among the identification of key concepts in the application of justice and to better promote the connection between the Criminal Law and the Supervision Law,the Administrative Law and the Enterprise Law,it is necessary to adopt the concept of“national public officials”of the Supervision Law to replace the concept of“state staff”in the Criminal Law.