Abstract: The Amendment (XII) to Criminal Law contains important amendments to the crime of illegal operation of similar kind of business in Article 165, the crime of illegal profit-making for relatives and friends in Article 166, and the crime of malpractices for personal gain in converting state-owned assets into shares or sell assets of state-owned companies and enterprises in Article 169 and expands the protection scope of the Criminal Law from the original state-owned companies and enterprises to “other companies and enterprises”, including private companies and enterprises. This amendment is the result of implementation of the CPC Central Committee’s policy of attaching great importance to the protection of private enterprises, a response to the realistic demand for continuously optimizing the business environment and promoting the compliance construction of private enterprises, as well as the embodiment of the due meaning of equal protection of state-owned enterprises and private enterprises by the Criminal Law. This Amendment pays attention to maintaining the unity of the legal order and the modesty of criminal legislation while at the same time attaching importance to the comprehensiveness of the coverage of the criminal legal network. We should accurately understand and apply the provisions on the relevant crimes in light of the policy background of this amendment and the purpose of normative protection. In terms of the scope of subjects, it is necessary to reasonably define the connotations and extensions of the concepts of “company, enterprise”, “director, manager, senior management personnel” and “relatives and friends”; in terms of behavioral pattern, it is necessary to properly explain “taking advantage of the convenience of the position”, “violating the provisions of laws and administrative regulations” and various types of dishonesty; in the understanding of the circumstances of a crime, it should be made clear that the “suffering heavy losses” in the second paragraph of each article corresponds to the two legal penalties in the first paragraph, and the judgment criteria of “significantly higher or lower than the market price” should be clarified. The equal protection of private enterprises is a systematic project, and the amendment to the Criminal Law focuses on solving the most prominent problems in practice, with distinct questioning thinking, and its systematic improvement relies on the opportunity of the re-codification of criminal law.

Key Words: Amendment (XII) to the Criminal Law; Anti-Corruption in Private Enterprises; Breach of Trust Damages to the Interests of the Enterprise; Equal Regulation

Author: Liu Renwen, research fellow, CASS Institute of Law; Professor, Law School of University of CASS.

Source: 2 (2024) Tribune of Political Science and Law.