论背信损害上市公司利益罪

《刑法修正案(六)》第9条规定了背信损害上市公司利益罪。该罪侵犯的是复杂客体,主要客体是公司、企业的管理秩序,次要客体是公司股东和债权人的合法权益;客观方面表现为行为人实施了背信行为;自然人和单位均可成为本罪主体;主观方面仅限于故意,过失不构成本罪。在司法认定中,应注意区分罪与非罪、一罪与数罪的界限等问题。

On the Crime of Breaking the Promise to Damage the Interest of the Listed Company

Article No.9 in Amendment Ⅵ of Criminal Law of People's Republic of China has defined the crime in which the listed company's director,supervisor,or superior administrative officer breaks a promise and causes the company to suffer the big loss.The crime should be defined as Crime of breaking a promise to damage the interest of the listed company.It is the complex object that the criminal wants to infringe,and the main object is the management order of the company and the enterprise;The secondary object is the legitimate rights and interests of the company shareholders and creditors;The objective aspect is shown as the implement of the doer's breaking the promise to make the listed company suffer the big loss;The main body are the listed company's director,supervisor,or superior administrative officer,the holding shareholder or the actual controller,the unit may included;The subjective aspect is only restricted in intention,and the error does not constitute this crime.In judicial recognition,attention should be paid to discriminating the boundary of crime and the non-crime,Singular Crime and Plural Crimes and so on.