非法经营同类营业罪相关问题分析

Core Viewpoint - The case discusses whether Zhang, a senior manager of a state-owned company, can be charged with illegal operation of similar businesses despite the fact that the business he engaged in was not within the registered scope of the company [1][2]. Group 1: Legal Framework - According to Article 165 of the Criminal Law, senior management of state-owned companies who exploit their position for personal gain in similar businesses can be charged with illegal operation of similar businesses [1]. - There are differing opinions on whether the registered business scope should determine the legality of Zhang's actions, with one view suggesting that since the coal trading was not registered, it does not constitute competition [2]. - The opposing view argues that "similar businesses" should be defined by substance rather than registration, and Zhang's actions fall under illegal operation due to his position and the significant profits gained [2][3]. Group 2: Judicial Interpretation - Judicial practice supports the notion that businesses outside the registered scope can still be considered "similar businesses" if they affect competition and opportunities [4]. - The determination of whether Zhang's actions constitute illegal operation can be analyzed through two lenses: whether the business is similar and whether it creates competition or conflict of interest with A Company [4]. - Zhang's actions directly impacted A Company's interests by competing for coal trading opportunities, thus qualifying as illegal operation under criminal law [4]. Group 3: Conclusion on Zhang's Actions - Zhang's behavior is characterized as a misuse of his position as a senior manager, constituting a breach of fiduciary duty and engaging in unfair competition [5]. - The conclusion drawn is that Zhang's actions, which involved leveraging his position to gain substantial illegal profits, should be classified as illegal operation of similar businesses [5].