论国家工作人员范围的界定(On the definition of the scope of state staff).doc
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1、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, e
2、nterprises, 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 officia
3、l 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
4、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
5、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. A
6、t 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
7、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 ki
8、nd 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 v
9、iew 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, w
10、hich 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 def
11、ine 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 b
12、ribery, 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 p
13、ersonnel; 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 a
14、s 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 mana
15、ge 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
16、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 o
17、n 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 o
18、f 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
19、 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
20、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 refo
21、rm, 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, appointmen
22、t, 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
23、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
24、, 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 provisi
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