Research on the Distinction between the Crime of Illegal Business Operation of Same Kind and the Crime of Duty-Related Embezzlement from the Perspective of Equal Protection of Private Enterprises

《刑法修正案(十二)》将非法经营同类营业罪的主体范围扩展至民营企业管理人员，为刑法保护民营经济提供了更加完善的规制手段。然而，这一扩展在理论乃至实践中加剧了非法经营同类营业罪与职务侵占罪的界限模糊问题。文章以法益保护为核心逻辑，解构两罪在构成要件、行为链条及主观故意层面的理论竞合，揭示单一法益论与静态竞合犯理论在应对现代经济犯罪中的局限性。创新性提出“复合法益分层评价–行为独立性测试–损害动态量化”的三阶界分路径，同时通过量化市场损害评估与裁判规则细化，为相关司法适用提供理论支撑与实践指引。The “Criminal Law Amendment (XII)” has expanded the scope of the subject of the crime of illegally engaging in competing business operations to include managers of private enterprises, providing a more complete regulatory means for the criminal law to protect the private economy. However, this expansion has exacerbated the problem of blurred boundaries between the crime of illegally engaging in competing business operations and the crime of duty-related embezzlement in both theory and practice. Taking the protection of legal interests as the core logic, this paper deconstructs the theoretical concurrence of the two crimes in terms of constitutive elements, behavioral chains, and subjective intent, revealing the limitations of the single legal interest theory and the theory of static concurrent offenses in dealing with modern economic crimes. It innovatively proposes a three-stage demarcation path of “stratified evaluation of composite legal interests-behavioral independence test-dynamic quantification of damages.” At the same time, through the quantification of market damage assessment and the refinement of adjudication rules, it provides theoretical support and practical guidance for the relevant judicial application.