从上个世纪后半叶改革开放之后，私分国有资产的现象就已经发生，具有涉案财物价值高，私分范围广，参与人数多等特征，在当下对私分国有资产罪的司法适用情况进行考察，将有助于解决理论研究不足，梳理司法实践难题。本文在介绍了私分国有资产案件的研究背景，以及在当前社会阶段的研究价值之后，根据罪名的特殊性，选择理论与实证相结合的研究方法，并且结合了经济，金融等相关学科的知识进行阐述。

首先在总结了目前已有的研究现状和研究成果后，笔者筛选出了十九大以来334个案件进行梳理。对案件的总体信息进行了描述性统计，得到了案件的数量趋势，时间和地域上的分布，量刑的特点以及适用的情节，还有承担刑事责任的人员和职务范围，并从中结合理论研究发现了司法实践中存在的四个问题，分别是：一、犯罪主体的认定突破法律规定；二、前置法适用存在误差；三、犯罪对象界定不明；四、罪名区分较为困难。接下来的四个章节是针对以上四个问题分别进行一定的论述。

本文提到的犯罪主体的认定突破法律规定，在这里主要是指国有公司和企业从理论上分析应当是国有独资公司和企业，但是在司法实践中，对该范围进行了突破。笔者认为在经济体制改革下，国有公司、企业所掌握的国有资产占全部国有资产九成以上，从保护国有资产的角度来说，应当对国有公司、企业的认定扩大解释到国有控股公司、企业。

因为私分国有资产罪的罪名当中提到了违反国家规定，所以本罪属于空白罪状，需要对前置法进行确定，才能够准确适用。但目前司法实践中对国家规定的说理不明，同时也存在不当扩大国家规定的情况，有必要对私分国有资产罪的前置法准确选取。笔者认为应当对国家规定进行严格解释，只有全国人大及国务院制定的法律法规等才能够作为本罪中所说的国家规定。另外笔者经过调查发现关于国有资产的法律规范制定颇多，较为完善，可以通过本罪的四类犯罪主体来找寻相应的专门法规，以此来选取前置法较为可行。

笔者通过对国有资产概念以及法律规定的梳理，结合私分国有资产罪的立法精神，认为本罪的犯罪对象，也就是国有资产，需要结合经济等学科的概念才能更清楚的界定。通过一个典型案例说明在实践中对国有资产界定存在限缩范围的现象，笔者提出对国有资产做广义解释能够更有利于国有资产的保护。

笔者在梳理案件的过程中，发现私分国有资产罪与贪污罪和滥用职权罪的案件有更改指控和改判的情况出现，所以需要把与他罪的界分标准进行细化。私分国有资产罪与贪污罪主要在决策形式，私分方式，责任人员上存在不同。而国有资产如果由单位成员取得，犯罪行为由单位集体决策，则能够区分开滥用职权罪。

Since the reform and opening-up in the second half of the last century, the phenomenon of private distribution of state-owned assets has occurred, which is characterized by the high value of the property involved in the case, the wide scope of private distribution, and the large number of participants, the investigation of the judicial application of the crime of privately dividing state-owned assets at present will help to solve the lack of theoretical research and sort out the difficult problems in judicial practice. After introducing the research background of the case of private division of state-owned assets and the research value in the current social stage, this paper chooses the research method of combining theory with demonstration according to the particularity of the crime, and combines the economy, finance and other related disciplines of knowledge.

First of all, after summarizing the current research status and research results, the author selected 334 cases since the 19th National Congress to sort out. A descriptive statistical analysis of the overall information on the cases was conducted, which revealed the trends in the number of cases, their temporal and geographical distribution, the characteristics of the sentences imposed and the circumstances applicable to them, as well as the persons and the scope of their duties who bear criminal responsibility, combined with the theoretical research, the author finds four problems in judicial practice, which are: first, the identification of the subject of crime breaks through the law; Third, the object of crime is not clearly defined. The next four chapters are focused on the above four issues were discussed.

The identification of the subject of crime mentioned in this article breaks through the legal provisions, here mainly refers to the state-owned companies and enterprises in theory should be wholly state-owned companies and enterprises, but in judicial practice, a breakthrough has been made in this area. The author thinks that under the economic system reform, state-owned companies and enterprises hold more than 90% of all state-owned assets, from the perspective of protecting state-owned assets, the recognition of state-owned companies and enterprises should be extended to state-owned holding companies and enterprises.

Because the crime of illegally dividing state-owned assets refers to the violation of state regulations, so this crime is a blank count, need to determine the pre-law to be applied accurately. However, in the current judicial practice, there is no clear reason for the state's provisions, but there is also an improper expansion of the state's provisions, it is necessary to properly select the prepositive law of the crime of private division of state-owned assets. I believe that the state provisions should be strictly interpreted. Only the National People's Congress law and the laws and regulations enacted by the State Council can be regarded as the state provisions mentioned in this crime. In addition, the author found that there are a lot of laws and regulations about state-owned assets, so we can find the relevant special laws and regulations through the four kinds of subjects of this crime.

By combing the concept of state-owned assets and the legal provisions, combined with the legislative spirit of the crime of privately dividing state-owned assets, the author holds that the criminal object of this crime is state-owned assets, it needs to be combined with the concepts of economics and other disciplines in order to define it more clearly. Through a typical case, this paper points out that there is a phenomenon of limited scope in the definition of state-owned assets in practice, and the author suggests that a broad interpretation of state-owned assets can be more conducive to the protection of state-owned assets.

In the process of combing through the cases, the author found that the cases of the crime of dividing state-owned assets privately, the crime of embezzlement and the crime of abuse of power have changed the charges and sentence. The crime of private division of state-owned assets and the crime of embezzlement are different in the form of decision-making, the way of private division and the person responsible. State-owned assets can be distinguished from abuse of power assets if they are acquired by members of a unit and if criminal acts are decided collectively by the unit.