民企内部腐败犯罪的立法修正与学理解析

Legislative Amendment and Theoretical Analysis of Corruption Crime within Private Enterprises

民企内部腐败犯罪本质上是企业内部人员利用职务便利,搞非法利益输送,损害企业的利益。对于民企内部腐败犯罪的刑法规制关涉民营经济的高质量发展,理应秉持最后手段性,在其他治理手段无效时才能动用。《刑法修正案(十二)》强化对民企内部腐败犯罪的惩治力度,实质上仍属未超出限度的有限惩罚,是对积极刑法主义的践行,关键在于要处理好追究企业内部腐败与尊重企业自主经营之间的关系。这也是把握此次立法修订的范围、准确适用非法经营同类营业罪、为亲友非法牟利罪等具体犯罪应当遵循的基本准则。

Corruption crimes within private enterprises are the use of job convenience by internal personnel to engage in illegal benefit transfers and damage the enterprise’s interests.Criminal regulation of corruption crimes within private enterprises is related to the high-quality development of the private economy.It should be used as a last resort when other governance methods are ineffective.The Criminal Law Amendment XII strengthens the punishment of corruption crimes within private enterprises,essentially a limited punishment that does not exceed the limit.It is a practice of positive criminal law,and the key lies in handling the relationship between investigating internal corruption within the enterprise and respecting the independent management of the enterprise.This is also the basic principle that should be followed in grasping the scope of this legislative amendment,accurately applying specific crimes such as the illegal operation of similar businesses and illegal profit-making for relatives and friends.