During the oral hiring staff to perform duties related crimes should be the subject of crime

Requirements of the new labor contract law employment labor relations and workers, shall conclude a written labor contract. And in some of our staff and small in scale companies and enterprises due to the presence in the labor mobility, employment system is not standardized, the human relations and other causes of a large number of oral appointments. If these oral functions employed in the performance occurs during the act of illegal possession of property units, then how this behavior qualitatively, its penalties to be imposed in the judicial practice in the real world there are also controversial.

I would like to Kwak in this case as an example an analysis whether oral staff on the main terms related crimes. Criminal suspects Kwak DepArtment of Xuchang City assistant manager of a Limited, the company is a sole proprietorship enterprise, Zhang is the company's In 2009 the legal representative of March, Mr. Kwak to the company where he also met Zhang called the company staff for the company to announce that Mr. Kwak deputy manager in the future all the business from Mr. Kwak is responsible for the company, the company's legal chapter, the financial chapter Chief chapter and also be given to Mr. Kwak warehouse custody of the keys, but Mr. Kwak and the company did not sign a written labor contract. In Kwak During his tenure in the business receipts, signed and sealed In 2009 to late March In mid-April, Guo Mouli used his position to sell goods in the name of the company, worth 123,597 yuan items the company away from the warehouse, Mr. Kwak will be items for sale, will be paid for the illegal appropriation, refused to return the company. Kwak on suspects identified in the main, there is a view that post embezzlement is a special subject, namely, companies, enterprises or other units or in the books in the series staff, Mr. Kwak Zhang oral only staff employed, there is no sign of labor contract can not agree with the existence of labor relations with the company, the principal does not meet the conditions related crimes. Another view that the suspect is related crimes Kwak Proper body on the grounds that Mr. Kwak Xuchang City in form, although the peak chemical Zhang, general manager of staff employed orally, but the company entrusted by Zhang's all business and the key storage management company, although Mr. Kwak have not signed between the company and a written employment contract but, in essence, a management company to perform responsibilities should be identified as "company, enterprise or other unit personnel."
The author believes that Kwak is related crimes eligible subjects. The grounds that although Mr. Kwak is a form of oral Zhang, general manager of staff employed, but Zhang's entrusted by the company's business and storage management company key Although there is no written employment contract signed, but in essence, a management company to perform the duties shall be regarded as "company, enterprise or other unit personnel."
First, the evolution of legislation related crimes
1.1995 on February 28th NPC Standing Committee passed the <"On the Punishment of Crimes Against the Company's decision>> is about the earliest legal provisions related crimes, the <<decision>> Article provides that" a director, supervisor or employee using his position or work to seize the company property, the amount is relatively large, 5 years imprisonment or Criminal detention, the amount is huge, over five years, the property can be confiscated "." companies, business people occupying crime, "the first time in the form of legislation in the <<decision>> in the company of their supervisors, directors, employees or other enterprise workers use their office or work to seize the company, corporate finance, a relatively large amount behavior defined as Criminal.

2.97 Criminal Code amendment, the related crimes as a separate new charges included.

The existing Criminal law in the first paragraph of Article 271 "companies, enterprises or other institutions who use their position to benefit, will be the unit of property illegally for himself, a relatively large amount, at 5 years imprisonment or criminal detention, a huge amount , and at least five years imprisonment, confiscation of property can be. "requirements from this perspective, China's current criminal law related crimes from the criminal provisions of the principal," the company, business people "to" companies, enterprises or other units staff "," convenience advantage of his position or work "to" use his office to "its not on the companies, enterprises or other units made by staff, nor the existence of objective reality in a lot of verbal employment of personnel out of the office outside the main crime of Embezzlement. Therefore, related crimes are separate from the corruption, in accordance with the legislative intent of the crime, related crimes as the evolution of the main body is reduced to extend the scope of the provisions of range. In practice, the main understanding of the related crimes for the company, enterprise or other unit employees in the book or the series is not consistent with legislative intent. Links http://www.hi138.com Research Papers Download Second, the related crimes are not signed labor contracts with the staff of the main unit is eligible
1. Unit form of employment is not subject to determine whether the establishment of related crimes a key factor. Criminal law is the real focus on rationality, how to solve the crime, the criminal law does not match the elements of form and substance as defined in the problem? To post Embezzlement entities, the single from the formal point of view, the oral employment unit staff are not working, scheduling of staff, but the real level, the actual performance of these officers with the unit in the duties of a period of time, and even the official staff and units bear the same tasks. unit personnel is the essence of organization, distribution of certain business activities. judge whether a person is a "unit personnel," not based on substantive identity, but whether continuous or repeated discharge of duties in the units of unit operations.

2. Analysis of the subjective and objective elements constitute a crime. The fact that criminal elements usually have two characteristics: First, closely related harmful behavior and the objective, the second is to reveal the different sides to further harmful acts harmful to society level. Thus, Embezzlement in defining the main functions connotation and denotation, it should be concerned about the fact that behavior with the occupation factor is directly related to the perpetrator of the "duties" or "duty", as the perpetrator is in writing signed or oral form of employment get the "job" or "duty" and to use its facilities, the implementation of the act of usurpation, and the dangers of the size of the completion, there is no substantive impact. as long as have the duties associated with certain facts as to connect become the main form of crime.

In this case, the company's investors, Zhang held a staff meeting in the form of oral deputy manager responsible for the company to hire Mr. Kwak was all business, and its corporate chapter, chapter administration, property management chapter Kwak keys to the warehouse, Mr. Kwak also represented the company during his tenure in the external business documents signed and stamped with company seal. I believe that this fact is concerned, the legal effect of acts facts of the case should be larger than the behavior of a written contract should be sufficient to identify Kwak and the employment relationship between Zhang, as the deputy manager of Mr. Kwak has a duty to facilitate the conditions. legal reason to ask the employee and the employer enter into a written contract, in the event of damage to legitimate rights and interests of workers, they can maximize protect the legitimate rights and interests of workers. So, the case officer for the company will be recognized Kwak substantial rationality. in defining the main body of related crimes connotation and denotation, it should be concerned about the fact that acts directly associated with the occupation factors is the perpetrator of the "duties" or "duty." Zhang judge whether the "unit personnel," not based on substantive identity, but whether to perform duties or undertake business activities unit. Zhang companies engaged in oral sustained, unit repeatedly perform duties and business activities in units, sales of goods in the name of the company, the company 12 million yuan worth of goods away from the warehouse, in essence, belongs to unit personnel, in line with the main conditions related crimes. reposted elsewhere Free Download Center http://www.hi138.com Papers