论国家工作人员范围的界定（On the definition of the scope of state staff）.doc

论国家工作人员范围的界定（On the definition of the scope of state staff）On the definition of the scope of state staffAuthor: Jiang LihuaNinety-third provisions of the new criminal law: "this Law refers to the state staff, refers to the state organs engaged in public service personnel. The state-owned companies, enterprises, institutions, peoples organizations engaged in public service and state organs, state-owned companies, enterprises, institutions assign to state-owned companies, enterprises, institutions and social organizations engaged in public service personnel, and other personnel engaged in official business in accordance with the law on the national staff." This is a legislative interpretation of the concept of state personnel and who should be interpreted by state personnel when it is criminal legislation. The above-mentioned provisions have solved the long-standing dispute over the concept of state personnel and at the same time explicitly defined the scope of the theory of state personnel. It should be said that its scientific and practical operation is a big step forward compared with the old criminal law. But because the legislation is not the "official" meaning, "and other personnel engaged in public service according to law" and other issues, make specific explanation; and the theory viewpoint, understanding differences, resulting in the judicial practice, in defining the scope of national staff, there have been frequent ambiguity, directly affect the criminal law applicable. At present, both the theoretical circles and judicial practice in the work of comrades, anxiously expect interpretation authority to make specific explanation on some controversial issues involved in the scope of national staff, in order to unify thinking, law enforcement. The only problem about how to correctly define the scope of national staff, little my humble opinion, for reference.I. on the criteria for defining the scope of state personnelIt is a very controversial issue to define the standards as to whether it is a national staff member. A view that the State functionaries crime is a kind of duty crime, so the national staff should have national staff or by the national staff of the eligibility of identity, which is the premise to engage in public service, so that in defining the scope of national staff, should be whether the actor has the qualification to identity sure. Another view is that in public service is the essential feature of the national staff, claims in determining whether the behavior of the national staff, should be defined by whether in public, regardless of whether the actor has the status of national staff, as long as the law is engaged in public service, which should be regarded as a national staff the column.In fact, these two different views and opinions do not begin with the revision of the criminal law. Early in December 28, 1995 after the National Peoples Congress promulgated the "on the punishment of crimes against the company law", on how to define the company China home staff on a range of issues, the theory and the judicial practice departments will exist serious differences. For example, in November 7, 1995 the provisions of the Supreme Peoples Procuratorate issued "on the handling of several problems of company or enterprise personnel bribery, embezzlement and misappropriation of company funds crime legal notice": national staff of companies and enterprises refers to the management staff of state-owned enterprises; state-owned enterprises assigned to equity, the joint venture company the exercise of management functions, business personnel; other personnel engaged in official business in accordance with the law. This is a representative theory of public affairs". Shortly thereafter, the Supreme Peoples Court promulgated the interpretation of several issues concerning the application of law in dealing with criminal cases such as bribery, embezzlement and embezzlement in violation of the company law in December 25, 1995. According to the explanation, the state personnel in the company or enterprise refer to the personnel of the state owned companies, enterprises or other companies or enterprises that have the power to manage their functions and have the status of state personnel. This is a typical "identity theory", which has been endorsed and supported by some experts and professors in the theoretical field. As the "two high" judicial interpretations are different, not only further lead to confusion in peoples thinking and understanding, but also seriously affected the unity of law enforcement.At present, in defining the scope of national staff disputes, in a sense,It can be said that after the promulgation of the decision on punishing crimes committed in violation of the company law, the differences and debates on how to define the scope of state personnel have continued. Its core question remains a question of what standards should be used to define the scope of the countrys staff.The author believes that both the theory of identity and the theory of public affairs have some truth. The greatest advantage of the theory of identity is that it can prevent the expansion of the scope of state personnel by artificial means, which is in conformity with the provisions of the new criminal law, ninety-third provisions for narrowing the scope of state personnel. The advantage of "public service theory" is that it is conducive to combating crime, and is more appropriate to the actual situation of the current crime. But whether in theory or in the judicial practice, one-sided emphasis on "identity" or "public service" is unavoidable. Because in fact, "identity" and "public service" constitute the two elements of the state staff or the national staff, and the two are difficult to separate from the organic whole. In theory, state personnel or national staff members should first have certain qualifications. The qualification status today in China to vigorously promote the personnel system and personnel system reform, not one-sided understanding or that only refers to has the status of national staff, it should also include a qualification to engage in public service according to law. The qualification of identity despite the long-term, temporary, the way is also different, such as the appointment, appointment, appointment, or sent in accordance with the law to be elected, appointed or according to the provisions of the law and achieved, but there is an objective existence and to obtain the problem. If the actor does not have the national staff or the status of the national staff at all, he will not be able to talk about official business. In other words, "identity" is the qualification for official business. Without the status of a national staff member or a national staff member, he will not be eligible for public service. And "engage in official duties" is the essential attribute of the state staff, and if the essence of the problem is drawn out, the state staff or the national staff members are no longer exist. It can be seen that the identity and public affairs are complementary and inseparable in the national staff. Moreover, according to the provisions of the law, the ninety-third provisions of the criminal law concerning state personnel and state personnel also integrate identity and public service. The first paragraph states: "state personnel referred to in this Law refer to persons engaged in public service in state organs."". Obviously, people engaged in official duties in state organs should be people who have the status of state functionaries (formerly known as cadres), and now they are called national civil servants. This is a self-evident question. Working in state organs, does not have the identity of the national staff members, such as workers, laborers, in their affairs, also may not be the "official", so they can not be included in the list of national staff. The second paragraph is "on the national staff", or "quasi national staff", including the following three categories: (a) personnel of state-owned companies, enterprises, institutions, peoples organizations; (two) the state organs, state-owned companies, enterprises and institutions assigned to non-state companies, enterprises, institutions and social organizations engaged in public service personnel; (three) other personnel engaged in official business in accordance with the law. Judging from the spirit stipulated in the article, the above-mentioned "national staff theory" is also an organic whole of "identity" and "official affairs". First of all, on the national staff must have certain qualifications or identity, they are state-owned enterprises engaged in official business, or by state organs, state-owned units units assigned to non-state personnel engaged in official business, or other personnel engaged in official business in accordance with the law; if you do not have the identity, they are not eligible to in the criminal law sense of the "official". Secondly, those who have the above "identity" must engage in "official duty" instead of "labor service" otherwise,Nor can he be a national staff member.In conclusion, the author thinks that in defining the scope of national staff, must take the "identity" and "official" organically, two can be neglected. The standard of defining the scope of the state staff is neither the theory of public affairs nor the theory of identity. It has only one, that is, the ninety-third provision of the criminal law. This is the only legal standard that defines the scope of our national staff. At present, the scope of national staff on the issue of differences and disputes, is not the "identity" and "business" on right or wrong, which is mainly to the provisions of article ninety-third of the criminal law of inconsistent knowledge, this is the crux of the problem. Therefore, how to correctly understand the spirit of the provisions is the key to correctly define the scope of the state staff.At present, in understanding the spirit of the ninety-third provisions of the criminal law, there are some or different understandings and differences. Among them, the following two problems are highlighted: first, what is the nature of public service stipulated in the ninety-third article of the criminal law, and what is the fundamental difference between "public service" and "labor service"? The two is "other people who engage in official duties according to law". What exactly are those people? Therefore, understanding these questions will undoubtedly help us correctly understand the spirit of the ninety-third provisions of the criminal law, thus correctly defining the scope of the state staff.Two, about the nature and meaning of the "public service" stipulated in the ninety-third provisions of the criminal law"Engaged in official duties" is the essential attribute of state personnel, and is the core factor that constitutes the national staff or the national staff. Therefore, how to correctly understand the nature and meaning of "public service" in the sense of criminal law is an important question that we can not avoid when we define the scope of national staff.What is official business? From the word sense, the so-called public service refers to all public affairs. It includes two major categories of public service, public service and collective nature. State official affairs refer to such activities as organization, leadership, supervision and management in the fields of politics, economy, military affairs, culture and education, health, sports, science and technology and so on. It has the characteristics of state power, function and management. Collective public service, however, refers to public affairs in collective units and mass organizations. It does not have the characteristics of state power, function and management.Then, in the sense of criminal law, what kind of public service does it mean? Some people believe that public service refers to all public affairs. Since there is no limit to the nature of public service in the ninety-third article of the criminal law, it should be interpreted as including both public service and collective public service. Therefore, those who advocate the election of grassroots autonomous organizations in accordance with the law, such as village (neighborhood) committees responsible for people, are also included in the scope of national staff. In this regard, I beg to differ. The author believes that the first paragraph of article ninety-third of the criminal law clearly defined the concept of the national staff, and the legal concept has clearly defined the scope and nature of the "official", that is the only state official, including collective public. If this is not the case, then there is no need for the national staff to be represented as servants in the state organs of criminal legislation. Obviously, one of the purposes of the legislators is to draw out those members of the collective public service from the traditional state staff. If such understanding is in line with the spirit of legislation, then public servants should not include collective public service. Only those former state personnel engaged in official duties in the state within the scope of the traditional national staff are entitled to "the theory of state personnel"". Otherwise, inconsistent, illogical. Furthermore, from the provisions of the second paragraph of the spirit, the intention of lawmakers will also not limited to quasi national staff of state organs, state-owned units or by the authorities or units designated in accordance with the law, engage in the national nature of civil servants within. Therefore, the author thinks that the "public service" stipulated in the ninety-third section of the criminal law, no matter what the first paragraph says, is official business",Or second about the "official", can only belong to the state properties of a class of business, engaged in collective public service (except by state organs, state-owned units assigned or entrusted by law except), whether it is in accordance with the law of the election, shall be construed as national staff. If these people are corrupt, violated the criminal law, constitute what crime is what crime.In addition, in defining the scope of national staff, we must strictly draw the line between "public service" and "labor service". What is "labor service", the current opinions vary. Some people say that "labor" refers to the physical activities directly engaged in the production of material goods; while others believe that "labor" refers to the service activities provided by labor; and so on and so on. Because of the different understanding and understanding of "labor service", some comrades advocate that the sellers, clerks, cashiers and salesmen in the state-owned units should be included in the scope of the state staff. Some comrades are opposed, that the abov