Criminal Law Article 93 The scope of state functionaries The term "state functionaries" as mentioned in this Law refers to those who are engaged in public affairs in state organs.
Personnel engaged in public service in state-owned companies, enterprises, institutions and people's organizations, personnel engaged in public service in non-state-owned companies, enterprises, institutions and social organizations appointed by state organs, state-owned companies, enterprises and institutions, and other personnel engaged in public service according to law are regarded as national staff.
Reply of the Supreme People's Procuratorate on whether the personnel formally employed or entrusted by the regulatory authorities to perform their supervisory duties can become the subject of corporal punishment, physical abuse and private release.
(Gao Jianfa Yanzi [1994] 1 document promulgated and implemented)
Sichuan Provincial People's Procuratorate:
Your request for instructions on whether non-state staff engaged in supervision in supervision places constitute the subject of corporal punishment and abuse of others and private release has been received. Through research, we believe that according to the provisions of Article 84, Article 189 and Article 190 of the Criminal Law, the persons who are formally employed or entrusted by the regulatory authorities to actually perform their supervisory duties are those who have already performed their supervisory duties. If the above-mentioned personnel violate the supervision laws and regulations, corporal punishment or ill-treatment of the prisoners under supervision, if the circumstances are serious, or release the criminals without permission, they shall be investigated for criminal responsibility for the crimes of corporal punishment, ill-treatment and private release respectively.
The NPC Standing Committee's Interpretation of the Second Paragraph of Article 93 of the Criminal Law of People's Republic of China (PRC)
(Adopted at the 15th meeting of the Ninth National People's Congress on April 29, 2000 and promulgated on the same day)
The NPC Standing Committee's discussion on the work of village grass-roots organizations such as villagers' committees belongs to "other persons who engage in public affairs according to law" as stipulated in the second paragraph of Article 93 of the Criminal Law. The explanation is as follows:
Villagers' committees and other grass-roots organizations in villages assist people in the following administrative work, which belongs to "other personnel engaged in public affairs according to law" as stipulated in the second paragraph of Article 93 of the Criminal Law:
(a) disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, disaster relief funds and materials management;
(two) the management of social donations to public welfare undertakings;
(three) the operation and management of state-owned land;
(four) the management of land expropriation compensation fees;
(5) Collecting and paying taxes;
(six) family planning, household registration and conscription;
(seven) to assist the people in other administrative work.
The provisions of Articles 382 and 383 of the Criminal Law on the crimes of corruption, misappropriation of public funds, bribery, embezzlement, embezzlement and bribery are applicable to those who engage in official duties as mentioned in the preceding paragraph, take advantage of their positions, illegally occupy public property, misappropriate public funds, ask for or illegally accept other people's property.
Notice of the Supreme People's Procuratorate on Implementing the NPC Standing Committee's Interpretation of the Second Paragraph of Article 93 of the Criminal Law of People's Republic of China (PRC)
(Gao Jianfa Yanzi [2000] 12 was promulgated and implemented on June 5, 2000)
Second, according to the Interpretation, procuratorial organs should directly accept cases in which villagers' committees and other grass-roots organizations assist people in administrative work as stipulated in the Interpretation, take advantage of their positions, illegally occupy public property, misappropriate public funds, ask for or illegally accept other people's property, which constitutes a crime. Articles 382, 383 and 384 of the Criminal Law apply respectively.
Third, procuratorial organs at all levels should strictly grasp the boundaries according to the Interpretation and other relevant laws in the process of investigating and handling the crimes of corruption, bribery and misappropriation of public funds by village grassroots organizations such as villagers' committees according to law, accurately determine whether the job activities of village grassroots organizations such as villagers' committees belong to assisting people in administrative work as stipulated in the Interpretation, and correctly grasp the provisions of Articles 382, 383 and 384 of the Criminal Law on the crime of corruption and misappropriation of public funds. The provisions of the Interpretation shall not apply to the management activities of villagers' committees and other village grass-roots organizations that belong to the scope of villagers' autonomy.
The Supreme People's Procuratorate's reply to China Securities Regulatory Commission's request for instructions on subject identification.
(Gao Jian Fa Zi [2000] No.7 was promulgated and implemented on April 30, 2000)
Beijing Municipal People's Procuratorate:
Your request for instructions on the subject identification of China Securities Regulatory Commission (Zheng Jian Zi (2000) No.41) has been received. After our hospital sent a letter to the office of the Central Organization Establishment Committee for verification, the office of the Central Organization Establishment Committee has made a formal reply, and the reply is as follows: "China Securities Regulatory Commission is an institution directly under the State Council and the competent department of the national securities and futures market. Its main responsibility is to manage the securities and futures market in a unified way and exercise vertical leadership over the securities and futures regulatory agencies in accordance with regulations. Therefore, it is a public institution with administrative responsibility. Accordingly, the cadres of the Beijing Securities Regulatory Commission should be regarded as staff of state organs. " Please follow the reply of the Central Organizing Committee.
Attachment: Reply on the institutional nature of China Securities Regulatory Commission.
Reply on the institutional nature of China Securities Regulatory Commission
(No.84 [2000] of the Central Office, April 2000 14)
The Supreme People's Procuratorate:
Your letter on whether China Securities Regulatory Commission belongs to state organs (Gao Jian Fa Zi [2000] No.5) has been received, and we hereby reply as follows:
According to the State Council (1998) 13 1, China Securities Regulatory Commission is a public institution directly under the State Council and the competent department of the national securities and futures market. Its main responsibility is to manage the securities and futures market in a unified way and exercise vertical leadership over the securities and futures regulatory agencies in accordance with regulations. Therefore, it is a public institution with administrative responsibility. Accordingly, the cadres of the Beijing Securities Regulatory Commission should be regarded as the staff of state organs.
Reply of the Supreme People's Procuratorate on whether the director of the town finance office is suitable to be the staff of state organs
(Gao Jianfa Yanzi [2000] No.9 was promulgated and implemented on May 4, 2000)
Shanghai Municipal People's Procuratorate:
Your Shanghai Inspection Institute (2000) No.30 document has been received. After study, it is approved as follows:
For the staff of the town finance office of the administrative law enforcement agency managed by the cadres of state organs, who abuse their powers or neglect their duties in the execution of * * * administrative official activities, which constitutes a crime, they shall be recognized as the staff of state organs.
Reply of the Supreme People's Procuratorate on whether the contract police can become the subject of dereliction of duty.
(Gao Jianfa Yanzi [2000] No.20, promulgated and implemented on June 9, 2000)
Liaoning Provincial People's Procuratorate:
Your [1999] No.76 Request for Instructions on the Case of Criminal Suspect Li Hai's Dereliction of Duty has been received. After study, it is approved as follows:
According to the second paragraph of Article 93 of the Criminal Law, during the period of performing official duties according to law, contract policemen are other personnel engaged in official duties according to law and should be regarded as staff members of state organs. If the dereliction of duty of contract police officers in performing official duties according to law meets the constitutive requirements of the crime of dereliction of duty stipulated in Article 397 of the Criminal Law, criminal responsibility shall be investigated for the crime of dereliction of duty according to law.
Interpretation of NPC Standing Committee on the subject application of the crime of dereliction of duty in Chapter 9 of People's Republic of China (PRC) Criminal Law.
(Adopted at the 31st session of the Ninth National People's Congress on February 28th, 2002, and promulgated and implemented on the same day)
According to the situation encountered in judicial practice, the National People's Congress Standing Committee (NPCSC) discussed the application of the subject of the crime of dereliction of duty in Chapter IX of the Criminal Law, which is now explained as follows:
Personnel engaged in public service in organizations that exercise state administrative functions and powers in accordance with laws and regulations, personnel entrusted by state organs to exercise their functions and powers on behalf of state organs, and personnel engaged in public service in state organs who are not included in the establishment of state organs have dereliction of duty when exercising their functions and powers on behalf of state organs, which constitutes a crime, and shall be investigated for criminal responsibility in accordance with the provisions of the Criminal Law on the crime of dereliction of duty.
A summary of the national seminar on the trial of economic crimes by courts
(Law [2003] 167 was promulgated on June 3, 2003)
First, the subject of corruption and bribery crimes and dereliction of duty crimes.
(a) the identity certificate of the staff of state organs
The term "functionaries of state organs" as mentioned in the Criminal Law refers to those who are engaged in public service in state organs, including those engaged in public service in state power organs, administrative organs, judicial organs and military organs at all levels.
According to the provisions of the relevant legislative interpretation, those who engage in public service in organizations that exercise state administrative functions and powers in accordance with laws and regulations, or those who are entrusted by state organs to exercise their functions and powers on behalf of the state, or those who are not included in the establishment of state organs but engage in public service in state organs, are regarded as staff of state organs. People who are engaged in official duties in Chinese organs and CPPCC organs above the township (town) should also be regarded as staff of state organs in judicial practice.
(two) the identity certificate of the personnel appointed by state organs, state-owned companies, enterprises and institutions to engage in public affairs in non-state-owned companies, enterprises and institutions and social organizations.
The so-called appointment, that is, appointment and dispatch, has many forms such as appointment, assignment, nomination and approval. Regardless of the identity of the appointee, as long as he accepts the appointment of state organs, state-owned companies, enterprises and institutions, and engages in organization, leadership, supervision and management work in non-state-owned companies, enterprises, institutions and social organizations on behalf of state organs, state-owned companies, enterprises and institutions, he can be regarded as appointed by state organs, state-owned companies, enterprises and institutions to serve in non-state-owned companies, enterprises, institutions and society. For example, personnel appointed by state organs, state-owned companies, enterprises and institutions to engage in organization, leadership, supervision and management in state-owned shares or joint stock limited companies with shares shall be regarded as state employees. After a state-owned company or enterprise is transformed into a joint stock limited company, the staff of the former state-owned company or enterprise and the newly appointed personnel of the joint stock limited company shall not be regarded as state staff except those who exercise supervision and management power on behalf of the state-owned investment entity.
(three) the identity certificate of "other personnel engaged in public affairs according to law"
The second paragraph of Article 93 of the Criminal Law stipulates that "other persons engaged in public affairs according to law" should have two characteristics: one is to exercise the functions of state management under certain conditions; The second is to engage in official duties according to law. Specifically, it includes: (1) deputies to people's congresses at all levels who perform their duties according to law; (2) People's jurors who perform their judicial duties according to law; (3) to assist villagers' committees, residents' committees and other rural and urban grass-roots organizations to engage in administrative work in township people's * * * and neighborhood offices; (four) other personnel authorized by law to engage in public service.
(4) Understanding of "engaging in official business"
Engaging in official business refers to performing organizational, leadership, supervision and management duties on behalf of state organs, state-owned companies, enterprises, institutions and people's organizations. Official business is mainly manifested in public affairs related to authority and duty activities of supervising and managing state-owned property. If the staff of state organs perform their duties according to law, the activities of directors, managers, supervisors, accountants and cashiers of state-owned companies to manage and supervise state-owned property are official duties. Those labor activities and technical services that do not have authority, such as the work of salespeople and ticket sellers, are generally not considered as official duties.
According to the revised criminal law, procuratorial organs have jurisdiction over 53 crimes committed by state personnel, which are divided into three categories: corruption and bribery crimes (Chapter VIII); Crime of dereliction of duty (Chapter 9); Crimes against citizens' personal rights and democratic rights. Crime of Corruption and Bribery Chapter 8 15 of China's Criminal Law stipulates 12 charges (394-396), including 1, 2, 3, 4, 5, 6, 7, 8, 9, 65438+. Chapter 9 of China's criminal law stipulates 34 charges with 23 articles. Including: 1, crime of abuse of power 2, crime of dereliction of duty 3, crime of perverting the law 4, crime of releasing detainees without permission 5, crime of national staff being cheated in signing and performing contracts, etc. There are seven kinds of crimes committed by state functionaries against citizens' personal rights and democratic rights by taking advantage of their powers: 1, illegal detention by state functionaries, illegal search by state functionaries, extorting confessions by torture, violent evidence collection, maltreatment of detainees, retaliation and framing, and sabotage of elections by state functionaries by taking advantage of their powers.
The Abcd opinion clearly defines the scope of "other units": "other units" include both permanent institutions such as institutions, social organizations, villagers' committees, residents' committees and villagers' groups, as well as non-permanent institutions such as organizing committees, preparatory committees and engineering contracting teams established for holding sports events, cultural performances or other legal activities.
How to Define the Scope of State Staff Correctly Article 34 of China's Regulations on Disciplinary Actions stipulates that Party and State Staff as mentioned in these Regulations include Party Staff and State Staff. Party staff refers to the staff of Party organs at all levels except ground staff and party member, and party member is a full-time member of the Party's grass-roots organizations engaged in inner-party affairs. The identification of national staff and deemed national staff shall be carried out in accordance with the law and the legal interpretation and judicial interpretation of the NPC Standing Committee. The regulation does not elaborate on how to define the scope of national staff; However, it is of great significance to define the scope of state staff correctly for the qualitative and handling of cases in China. In this paper, the scope of national staff will be elaborated in detail according to Chinese laws, regulations, judicial practice and the legal interpretation and judicial interpretation of NPC Standing Committee. I legal definition of state functionaries 1997 article 93 of the criminal law stipulates: "the state functionaries mentioned in this law refer to those who are engaged in public affairs in state organs. Personnel engaged in public service in state-owned companies, enterprises, institutions and people's organizations, personnel engaged in public service in non-state-owned companies, enterprises, institutions and social organizations appointed by state organs, state-owned companies, enterprises and institutions, and other personnel engaged in public service according to law are regarded as national staff. According to this regulation, state employees include two categories: one is those who engage in public affairs in state organs; The other is national staff, which can be called quasi-national staff. In this way, three concepts have emerged on the issue of state staff: state staff, state organ staff and quasi-state staff. It is necessary to accurately understand the logical relationship between these concepts, that is, state employees are superior concepts, and state employees and quasi-state employees are subordinate concepts. Two. Definition of the scope of "staff of state organs" According to the provisions on state organs in Chapter III of China's Constitution and the Decision on Severe Punishment of Criminals who Seriously Destroy the Economy adopted by the National People's Congress Standing Committee (NPCSC) 1982, state organs in China refer to state power organs, administrative organs, judicial organs, procuratorial organs and military organs; Personnel engaged in public affairs in the above-mentioned organs are staff of state organs. The organs of state power are the national and local people's congresses and their standing committees. State administrative organs refer to the State Council, its ministries and commissions, local people at all levels, and all kinds of administrative institutions. The national judicial organs are people's courts at all levels. The state procuratorial organs are people's procuratorates at all levels. Military organs are institutions at all levels that manage the national armed forces, such as the National Military Commission and the Fourth Headquarters. Judging from China's political system and national conditions, organizations at all levels in China play a leading role in all fields of China's political, economic and social life, but in nature, it is a political party, not a state institution, so it is best not to regard organizations at all levels in China as state organs. As for the so-called head office in China, it is actually a state administrative department and should not be regarded as a state organ. Therefore, people who are engaged in official duties according to law in power supply companies, tobacco companies and other organizations at all levels in China should obviously belong to the scope of quasi-state staff, but should not belong to the scope of state organs. Three. Definition of the scope of quasi-state staff The so-called quasi-state staff refers to those who are "based on state work" as stipulated in the current criminal law. According to Article 93 of Criminal Law 1997, there are three kinds of quasi-state employees: one is those who engage in public affairs in state-owned companies, enterprises, institutions and people's organizations; Second, personnel assigned by state organs, state-owned companies, enterprises and institutions to non-state-owned companies, enterprises and institutions, and social organizations to engage in official duties; Third, other people who engage in public affairs according to law. A state-owned company, according to the relevant provisions of the Company Law, refers to a company whose property is completely owned by the state. Including state-owned limited liability companies established by state-authorized institutions or state-authorized departments, and limited liability companies established by two or more state-owned investors with the same capital contribution. State-owned enterprises refer to unincorporated economic organizations whose property is completely owned by the state and engaged in production, operation or service activities. State-owned institutions refer to non-productive departments or units led by state organs and funded by the state, such as hospitals, scientific research institutions, sports, news, broadcasting, publishing and other units. People's organizations refer to various social organizations, such as democratic parties, league organizations at all levels, trade unions, women's federations and other mass organizations, which are voluntarily established by several members for the same purpose and registered with the approval of * * * * *. Correspondingly, social organizations are registered according to law, and there are no social organizations with * * * funding, such as law firms and legal service offices. 1. Identification of public officials in state-owned companies A state-owned company refers to a company established in accordance with the Company Law and its property is completely owned by the state. Personnel engaged in official business in state-owned companies belong to quasi-state staff. According to the relevant provisions of the Company Law, all the capital of a joint stock limited company is divided into equal shares, and shareholders are liable to the company to the extent of their shares, and the company is liable to the company's debts with all its property. No matter whether the state-owned capital is holding shares or holding shares, after a joint stock limited company is established with collective enterprises, private enterprises, foreign companies and other forms of economic organizations, all its capital contribution becomes the legal person property of the joint stock limited company, and each investor loses control over its capital contribution, but only enjoys shareholder rights such as asset income, major decisions, and selecting managers according to the number of shares held. The number of shares held by shareholders or the amount of capital contribution cannot determine the nature of the company and the nature of the company's property. Therefore, a joint stock limited company with state-owned capital holding or shareholding is not a state-owned company. People who are engaged in management work in joint stock limited companies with state-owned capital holdings or shares cannot all be recognized as state employees. Only those who are appointed by state organs, state-owned companies, enterprises and institutions to engage in public affairs in joint stock limited companies with state-owned capital holdings or shares can be regarded as state employees. No matter whether they are officially appointed by a joint stock limited company or not, as long as they are appointed by the state to engage in organization, leadership, supervision and management in a joint stock limited company, they all belong to the state staff. Other personnel engaged in management work do not belong to national staff. The Supreme People's Court's "Reply on how to convict the management personnel in a joint stock limited company with state-owned capital holding and shareholding by taking advantage of their positions to illegally occupy the company's property" affirmed this point and has a clear legal basis. 2, on the identification of state organs, state-owned companies, enterprises and institutions assigned to non-state-owned companies, enterprises and institutions and social organizations to engage in public services. The so-called appointment is to appoint and dispatch, that is, to send people to hold positions. It takes various forms, such as appointment, assignment, nomination and approval. Regardless of the identity of the appointee, whether the appointee has the status of a cadre or not, whether the appointee is an original employee of the appointed unit or a person temporarily recruited from the society for the purpose of appointment, as long as the appointee is appointed by a state organ, a state-owned company, an enterprise or a public institution and exercises management power on behalf of the state organ, a state-owned company or a public institution in a non-state organ, a state-owned company, an enterprise or a public institution, he can be recognized as a state employee. After a state-owned company or enterprise is transformed into a joint stock limited company, the staff of the former state-owned company or enterprise and the newly appointed personnel of the joint stock limited company shall not be regarded as state staff except those who exercise supervision and management power on behalf of the state-owned investment entity. 3. Regarding "other persons who engage in official duties according to law" and "other persons who engage in official duties according to law", they should have two characteristics: First, they should exercise state management functions under certain conditions. The second is to engage in official duties according to law. According to relevant laws, judicial interpretations and the Regulations on the Implementation of the Administrative Supervision Law, "other persons engaged in official duties according to law" include: (1) persons engaged in official duties in various organs of China; (2) Personnel engaged in official duties in various organs of China People's Political Consultative Conference; (3) Deputies to people's congresses at various levels; (4) People's jurors who perform judicial work according to law, specially invited prosecutors of people's procuratorates and specially invited supervisors of supervision departments; (5) Help people in towns and villages. Personnel of rural and urban grass-roots organizations, such as villagers' committees and residents' committees, who are engaged in state administration in street offices; (6) Staff of organizations authorized by laws and regulations to manage public affairs; (7) Personnel entrusted to engage in public affairs according to law. Four. On the proper meaning of "engaging in official business" According to the provisions of Article 93 of the Criminal Law 1997, both state employees and quasi-state employees have the common characteristics of "engaging in official business". Based on this, "engaging in official business" should be the essential feature of national staff. No matter the personnel of state-owned units or the personnel appointed by state-owned units, as long as they are not engaged in official duties, they cannot be regarded as state employees. "Engaged in public affairs" refers to the management, organization, leadership and supervision of public affairs on behalf of the state. It has two characteristics: first, it is administrative, that is, it manages public affairs. The scope of public affairs here is very wide, which can be state affairs, social affairs and collective affairs, covering politics, economy, culture, military affairs, culture, science and technology and the management of various affairs related to social order. The second is to represent the country, that is, this kind of activity is carried out on behalf of the country and is an act of state management, not on behalf of individuals, collectives or groups. In other words, this activity is a manifestation of state power, or a manifestation of the power derived from state power. In contrast, "labor" refers not only to physical activities directly engaged in the production of material materials, but also to a general term. All activities that focus on labor and engage in production, management and social services are called labor services. The fundamental difference between it and official business is that this kind of activity has no state power, function and management. Personnel engaged in labor services are not managers in the sense of national management, but managed. If you perform your duties in state organs according to law, or exercise management authority in state-owned companies, enterprises, institutions and people's organizations (such as directors, managers, supervisors, accountants, cashiers, buyers and sellers of state-owned companies, etc.). ), you should be engaged in official business. Those labor activities and technical services that do not have authority, such as sales assistants, cashiers, ticket sellers, doctors, etc., are generally not considered to be engaged in official duties. With the deepening of economic system reform and political system reform, the personnel system reform is also deepening, and the appointment system has been widely implemented. No matter what status a person has, as long as he is engaged in management, he is engaged in public service. In addition, based on the requirements of establishing a modern enterprise system, many state-owned companies and enterprises have implemented a full-time contract system, breaking the identity boundary between cadres and the masses and competing for posts in management positions. Therefore, in the current real economic life, it is obviously out of date to take the status of cadres as the standard for identifying national staff. For example, inspectors and chemists in state-owned enterprises are all engaged in management work. No matter what status, as long as they are employed in this kind of management work, they should be regarded as national staff and belong to quasi-national staff.