非法经营同类营业罪研究

Research on Crime of Illegally Managing the Same Business

非法经营同类营业罪以公司董事、经理竞业禁止义务为基础 ,该罪认定的核心问题 ,如自营或为他人经营、同类营业、非法利益等理论界定需要从公司法制的角度来廓清。但由于公司法上竞业禁止理论的缺陷而导致上述问题边界不清 ,所以很有探究的必要。涉及有身份者与无身份者共同犯罪、无非法获利而给权利人造成巨大损失的刑事责任问题也有待明确。非法经营同类营业指控存在例外 ,诸如竞业禁止义务免除 ,经法定程序确立的董事经理兼任。

Crime of illegal ly managing the same business is based on the professional work of prohibition of business strife by the director or the manager. The key issues to determining this crime are managing for oneself or for another, the same business, illegal interest, etc. These issues need to be clarified from corporation law system. However, since the theory of prohibition of business strife on corporation law has some defects, the demarcation lines between above issues are unclear. So it is necessary to make a thorough research about these issues, as well as the criminal responsibility problems caused by joint offence by criminal offenders owning status or non status, non illegal interests which cause enormous losses to obligee. There are some exceptions of the charges to illegaly managing the same business, such as immunity obligation of prohibition of business strife, the director or the manager confirmed by legal procedure holding an additional post at the same time, and fulfilling the contract of corporation. All these actions can't be looked as crimes.