How to qualify a high price of a domain name for sale to our company

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The principle of legality is the basic principle of criminal law, but I think there are some defects in the principle of legality. Look at the case below, the perpetrator was so hateful that his actions were considered innocent.

Case: April 2008, a Co., Ltd. for the subordinate Web site registration biiku.cn domain name, another alternative domain name biiku.com unregistered. May 20, when the company's network deputy manager of the left to borrow a friend Chen ID card, only cost 80 yuan registration costs will successfully register biiku.com domain name. Subsequently, the left to the company reported that biiku.com domain name has been a Canadian company registered, the other party to 100,000 yuan to transfer the domain name. At that time the company General Manager Assistant Yao expressly disagreed with the purchase. November 2, assistant general manager Yao on business trip abroad. November 4, left a network department in the name of the report, said the network department to reach an agreement with the assignor, the agreement price is 50,000 yuan, has obtained the approval of the assistant general manager. Accordingly, a company general manager instructions agree. November 15, the left of a company received a transfer fee.

Disagreement: The nature of the left behavior, there are the following three different views:

The first view is that the left constitutes a crime of fraud. The reason is: The general manager of the company in the act of deception under the left, produced a false understanding, gave the consent of the instructions, that is, based on the wrong understanding of the company's 50,000 Yuan property, the left of the behavior of the crime of fraud is completely in line with the criminal constitutive elements.

The second opinion holds that the left part constitutes the crime of duty embezzlement. Reason is: left a duty for the company to go to the domain name biiku.com but use their right to know, biiku.com domain name, the purpose of this is clearly for the next transfer to the company, for the misappropriation of the company's property to prepare. Left for the purpose of achieving possession of the company's property, the consent of the general manager of the company, so that the company would have to spend 80 yuan on the domain name can be registered to biiku.com, through the transfer of the way to purchase 50,000 yuan, loss of 49920 yuan. This is not the loss of a normal trading relationship, but rather a job action on the left.

The third view is that the act of the left is not guilty. The reason is: the left of this behavior in our current criminal law can not be punished. The act of a registered wang.org on the left is an act of personal behavior, which can be done in accordance with ordinary registration rules, without the use of a position. In the key move to sell the domain name to the company, the left does not have the final decision-making power, but merely advises the superior to pay for the purchase, "recommended behavior" in any case can not be considered as "the use of the job." According to the principle of legality, can only be determined that the left does not constitute a crime.

Comment: I agree with the third opinion. The main reasons are as follows:

The act of the left does not constitute the crime of embezzlement of duty. The key to the crime of duty embezzlement is whether to use the job. The use of the title of the point of "occupation, theft, deception" is not a generalized act, but a specific meaning of the behavior. All duties of occupation and crime of corruption must be similar to the most typical acts of corruption, that is, he has the right to control the property of their own (for example, the cashier will be the cash receipts, the salesman will be the proceeds of sales, unit leaders will be pulled back to their own home property). The so-called "theft, deception" must be equivalent to this behavior, not all theft and deception.

In this case, the decision to purchase the power of the domain name in the hands of the general manager, not the left of the terms of reference. Left a result of the occurrence of the effect of three: one is to rush the domain name, the second is to make recommendations to the manager, the third is to pretend that the assistant has agreed. These three acts do not belong to the use of the title: first, the registration of domain names is only the use of the information advantages brought about by the work, not the authority. Secondly, the proposal is the right of every employee, not the use of the job, on the contrary, the "suggestion" shows that the left is using his own influence on the manager, rather than his own "authority". Third, the right to purchase decision-making is in the hands of the general manager, so the general manager should be responsible for decision-making. The act of the assistant has not shaken the decision-making power of the general manager, not to mention the "use of the job".

The act of the left does not constitute a crime of fraud. The key characteristic of the crime of swindling is that the victim is mistaken for the trust of the false information made by the perpetrator, thus delivering the property. The error in the crime of fraud must be the wrong of the legal interest, and not just the wrong motive. In this case, there are two cheating acts: one is to register their own domain name is a Canadian company's domain name, and the other is to conceal the 80-yuan registration costs and falsely worth 50,000 yuan. However, these two frauds are not the crime of fraud in the constitutive elements of the Act, because: first, the left of a sale of the domain name is true, the domain name owner who is the establishment of the crime of fraud is not an important fact. Second, the company's decision to deliver $50,000 is not because the left has concealed the fact that the registration fee is only 80 yuan. Network registration fees are well known, but not equal to their market value. Because of the scarcity of domain name, to buy the other registered domain name may pay a high price, this is the market normal, but also the company's own decision. The company does not make a purchase decision because the other party has withheld the registration fee, and the victim should be responsible to himself.

Third, the behavior of the left is in line with Germany, Japan's criminal law of "back to the crime" or "breach of trust" constitutive elements, that is, contrary to their own duties and lead to the client's reliance on the loss of profits. However, there is no such charge in the criminal law of our country, according to the principle of legality, it can only be acquitted. The behavior that damages the trust interests of the client is an act of substantial illegality, but it does not conform to the constitutive elements of the crime of duty embezzlement or fraud in the current Criminal Code, and to solve the problem satisfactorily, it can only pass the legal way, that is, to set up "the crime of the back" in our