The perpetrator of privately engraved seals refers to the behavior of non-unit staff or staff of the unit in the case of the unit is not aware of the unit's name to steal engraved seals to carry out criminal activities. In general, the unit is in a state of ignorance of the fact that the perpetrator privately engraved the official seal to carry out criminal activities. While the perpetrator steals the official seal of the unit, it means that the perpetrator (including the staff of the unit and non-unit staff) uses his position or other secret means to steal the official seal of the unit to engage in certain activities to conduct economic crimes externally. The difference between the two types of behavior is obvious, the act of engraving an official seal itself constitutes a crime. The perpetrator of the private seal directly infringes on the name right of the unit being privately engraved and the state's management of seal engraving, while only implementing the act of stealing and stamping the official seal without committing other crimes is not necessarily a crime, and the perpetrator of stealing and stamping the official seal directly infringes on the unit being stolen and stamped on the management of the official seal and the right to use it. The perpetrator of the crime to the victim caused by the damage caused by the results of the unit with or without the relevance of the unit is to distinguish between the private engraving and theft of the official seal of the unit of the crime of an important criterion.
1, private seal in the case of unit fault
In the case of private seal, due to the private seal of the unit of the private engraving and unaware of the act of private engraving, private seal of the criminal act and the unit of the unit of no relevance. And criminal behavior caused by the damage caused by the results of the unit and there is no legal causal relationship between the unit, therefore, in general, the unit should not bear civil liability.
But, in another case, if the unit of the perpetrator of the private engraving of the name of the unit of the seal and the use of the seal of the economic criminal activities of the fact that has been known, but for the unit's reputation, efficiency or other considerations, the perpetrator of the private engraving of the seal of the criminal activities of the perpetrator does not take any judicial remedies to stop the act of the perpetrator to hold the seal and the implementation of the crime hold Laissez-faire attitude, resulting in the perpetrator again using the privately engraved official seal to implement economic criminal activities, and to the third party in good faith to cause economic losses, at this time, the privately engraved official seal of the unit in the subjective has obvious fault. In this case, to the bona fide third-party losses, first of all by the perpetrator should bear the responsibility for compensation, part of the shortfall, by the private seal of the unit to bear the supplementary liability.
2, the unit's fault in the case of stealing the official seal
There are usually two kinds of cases of stealing the official seal of the unit: one is the use of the unit's negligence in the management of the official seal or the use of their own management and use of the official seal of the opportunity to steal the official seal of the unit; the second is the use of the perpetrator of criminal means (e.g., theft) to steal the official seal of the unit. Article 5 of the Certain Provisions does not consider the unit to be at fault for the theft of the official seal for the purpose of signing an economic contract and committing an economic crime, and makes the principle provision that the unit is generally not liable for civil liability. However, in the case where the perpetrator steals the official seal of the unit to commit a crime, if the unit is indifferent to the loss suffered by the bona fide third party, regardless of whether it is at fault or not, it is determined that the unit is not at fault, so that it is completely exempted from liability, which is obviously not in line with the principle of fault and the principle of fairness. Therefore, in judicial practice, if it can be confirmed that the stolen official seal of the unit is due to the management of the official seal of the major errors caused by the perpetrator to steal the official seal of the criminal activities and caused major economic losses, should be recognized as stolen official seal of the unit there is fault, can be ordered to bear supplementary liability. That is, according to the "slight negligence exemption, compensation for gross negligence" principle of handling, so as to better reflect the judicial concept of fairness and justice.
3, on the prevention of private and stolen official seal measures
(1) on the measures to prevent the private seal, the following recommendations:
① improve the production of the official seal of the technical content of the production, to stop the private carving or counterfeiting, can be similar to the yuan's anti-counterfeiting technology, so that the private carving is very difficult.
②Strictly control the supervision of the number of official seal production units and the number of technical equipment, from the source to eliminate private engraving behavior.
③ Increase the efforts to combat private seal, conviction, sentencing from the heavy and severe punishment, it is recommended that the private seal for the implementation of the crime of several crimes and penalties.
4 use "seal + signature" method of double precautionary measures to prevent the success of the crime of private carving, drawing on foreign practices, in economic transactions, not only require the official seal of the unit, but also require the signature on behalf of the person, or else the risk arising from the transaction is shared by the two sides.
5 the use of new technology invented "text bar code chapter", the unit of the bar code to add, because the unit of the bar code is generally not easy to be imitated.
6 Increase the obligation to review the transaction process, the use of modern information means, the implementation of the confirmation and verification procedures before signing the seal.
7 sound legal system, reduce the threshold of legal persons. Because some criminal behavior is the use of legal person (unit) qualification and achieve illegal purposes.
⑧ improve the legal system, the establishment of honesty and trustworthiness of the legal supervision and punishment mechanism.
⑨Increase publicity and education efforts to improve the legal awareness of individual citizens and society as a whole.
(2) on measures to prevent the theft of the official seal, the following recommendations:
①Increase the custody of the official seal and anti-theft measures, if necessary, like financial custody of cash will be placed in the safe seal.
② strict use of the official seal application, the establishment of the approval and use of the signature confirmation of a set of registration and filing system and constraints
③ strict use of the recovery system and should be collected without the public notice system, for the abandonment of the use of the official seal and to the use of the official seal to be promptly recovered and to take the method of public notification to inform the parties concerned.
④Increase the other party's obligation to review and remind the other party to pay attention to the identification of preventive measures in a timely manner.
5 in the criminal law sub-principles to establish the "theft of the official seal" is a crime, and develop a set of penalties.
6 Increase the liability of the party at fault.
(7) Increase the liability of the at-fault party to recover damages.
⑧Improve the legal system, the establishment of honesty and trustworthiness of the legal supervision mechanism and the compensation mechanism of fault liability.
9 use a variety of means to increase publicity and education efforts to improve the legal awareness of individual citizens and society as a whole.