Category: Money tips Release Date: 2007-06-26
Legal Policy Research Office of the Supreme People's Procuratorate Yaoyuan QIU Li-jun
Criminal Code Amendment (6) to the major industrial accidents, and obstructing the right company and enterprise management order, or undermines the financial management order, violation of civil rights, democratic rights, prejudice to the management of social order and other criminal provisions of the amendments and additions, involving the provisions of the Criminal Code 20. This is the 1997 revised Criminal Law has been the largest of the criminal law an amendment.
In this paper, the amendments to the prejudice of the criminal law firms and corporate management order, crime and destruction of part of the crime of financial management order, the contents of the interpretation of the amendment.
An expanded section of the Penal Code 161st report of the crime of giving false accounting subjects of crime, an increase of the crime of unlawful disclosure of important information.
161st amendment to the Penal Code is amended to read: "has a disclosure obligation in accordance with law firms, corporate shareholders and the public to provide false or concealing important facts of financial accounting reports, or in accordance with law and other important information should be disclosed not in accordance with the provisions of disclosure, or other serious damage to the interests of shareholders, or there are other serious circumstances, their officers directly in charge and other directly responsible personnel of three years imprisonment or criminal detention and a fine, or a single Office, 20 thousand yuan a fine of more than 200,000 yuan. "
The amendment of the original provision was amended as follows: First, the main body of crime by the "Company" to expand to "bear the information disclosure obligations in accordance with law firms, corporate"; the second is the "right should be disclosed in accordance with law and other important information is not disclosed in accordance with the provisions of has seriously damaged the interests of shareholders or other persons, or there are other serious circumstances of the conduct "provision has been added as a crime. The contents of the amendment will undoubtedly make up for the original penalty was less than stipulated in Article 161st, will effectively protect the majority of the shareholders or other persons to obtain true information of fundamental rights.
Correctly grasp the revised Penal Code 161st section, we should note the following points: First, the article charged accordingly by the "crime of giving false financial reporting" to "the provision of false accounting reports, and disclosure of important information in accordance with law crimes." The second is "the law has a disclosure obligation to companies and enterprises," including listed companies, companies issuing bonds and sale of securities investment fund shares fund management companies. Third, "the disclosure of important information that should be" subject to financial and accounting reports, including annual reports, interim reports, interim reports. The fourth is "seriously damage the interests of shareholders or other persons, or there are other serious circumstances of the act" refers to the shareholders or other persons causing direct economic losses of the amount of 50 million yuan; led to cancellation of the stock listing qualifications; Exchange was forced to suspend; there are other serious plot behavior. 5 was "directly responsible persons in charge and other directly responsible personnel" refers to "the disclosure of important information that should be" true, accurate and complete responsibility of the chairman, directors, senior management. 6 is the crime of belonging to units of a crime, but take a single penalty system, that is, only the "person in charge directly responsible and other directly responsible personnel" to punish, but not a criminal penalty provisions of the main unit, which is mainly taking into account the , if the right companies, enterprises sentenced to fines, will inevitably cause new damage to shareholders, but also has the potential to companies, businesses unable to repay their debt is not conducive to the protection of shareholders, creditors and other people's legitimate rights and interests.
Second, will implement a false bankruptcy, seriously damaging the interests of creditors, or other acts of provision has been added as a crime.
Criminal Code amendments in the Penal Code, one section added after a 162nd, as the 162nd Article 2: "companies and enterprises through the hidden property, assume a fictitious debt by other means, or transfer, dispose of property, the implementation of a false insolvency, serious damage to the interests of the creditors or any other of its directly responsible person in charge and other directly responsible personnel, five years of fixed-term imprisonment or criminal detention and a fine, or a single Department year-end million or above 200,000 yuan fine. "
This provision of bankruptcy fraud in combating crime, stop the practice that frequently appear in various acts of false bankruptcy avoiding the debt, will play an important deterrent role. And because of its way to cite the provisions of bankruptcy fraud, criminal acts, while the provisions of a general manner, "the transfer of property in other ways, disposition of property", "serious damage to the interests of creditors, or other acts" also constitutes a crime, more conducive to flexible use of legislation to discourage the practice of a wide range of bankruptcy fraud crimes.
Correctly grasp the amendment increases the 162nd Criminal Law Article 2, we should note the following two points: first, which was charged with "false bankruptcy crimes." The second is a false bankruptcy liquidation of crime and prejudice is the main difference between the crime occurred at a time at different stages. Company, liquidation of the business refers to companies, enterprises in the dissolution, separation, merger, closure, was shut down, was declared bankrupt according to law, the liquidation group composed of companies and enterprises of the property, debt, debt clearance, accounting, end the activities of . If the company, the firm is in liquidation before the economic activities on the adoption of hiding, the transfer of property fraud, engaging in sham bankruptcy really avoiding the debt, the implementation of a false bankruptcy, seriously damaging the interests of creditors, and should be convicted and punished false bankruptcy. If the company, the firm is declared bankrupt after being taken during the liquidation of hiding, the transfer of property by deception, seriously damaging the interests of creditors, and should be convicted and punished in order to prevent the liquidation.
Third, would be contrary to the company's duty of loyalty, used his position to facilitate manipulation of listed companies improper, unfair related-party transactions, resulting in heavy losses the interests of listed companies to increase provisions for criminal behavior.
169th Criminal Law Criminal Law amendment be added after Article 1, as the 169th one article: "Directors of listed companies, supervisors and senior management personnel contrary to the company's duty of loyalty, used his position to facilitate manipulation of a listed company engaged in one of the following acts, resulting in the interests of listed companies suffered heavy losses, a fine of three years of fixed-term imprisonment or criminal detention and a fine or a single penalty payment; cause the interests of listed companies suffered especially heavy losses, a fine of not more than seven years in prison for three years , and impose a fine: "(1) free of charge to other units or individuals to provide funds, goods, services, or other assets; (b) to be grossly unfair conditions and provide or receive funds, goods, services, or other assets; ( 3) to clearly does not have a solvency of the entity or individual to provide funds, goods, services, or other assets; (d) clearly does not have a solvency of the entity or individual guarantees or unjustified for other units or individuals to provide security a; (e) without reasonable cause to give up claims to incur obligations; (vi) other means of damage to the interests of listed companies. Listed companies and controlling shareholders or actual controllers instructed the directors of listed companies, supervisors and senior management staff to implement the preceding acts, shall be punished in accordance with the preceding paragraph. Whoever commits the crime or the controlling shareholders of listed companies are units of actual control on the unit will be fined, and its directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the first paragraph. "
Correctly grasp the 169th article of the Criminal Code, we must note the following points: First, the article was charged with the crime of the damage the interests of listed companies. Second, the main body of the offense be limited to listed companies, the persons concerned, but including listed companies, directors, supervisors, senior management and controlling shareholder or actual controller. 3 is a listed company can not in itself constitute the crime of criminal subject, but the listed company's controlling shareholder or actual controller is a unit, could constitute the crime of criminal subject.
