Judicial interpretation of the scope of staff in state organs

The Supreme People's Procuratorate's reply to China Securities Regulatory Commission's request for instructions on subject identification (April 30, 2000)

According to the provisions of the document number. [1998] 13 1 China Securities Regulatory Commission is a directly affiliated institution of 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.

The Supreme People's Procuratorate's reply to the request for instructions on the subject identification of China Insurance Regulatory Commission (September 28, 2000)

For the CIRC, it can be managed with reference to the measures of state organs. Accordingly, the cadres of the CIRC should be regarded as the staff of state organs.

Summary of the Symposium on the Trial of Economic Crimes by National Courts in the Supreme People's Court (2003 1 131October 65438)

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. In the township (town) above the the Communist Party of China (CPC) organs and China People's Political Consultative Conference organs engaged in official duties, in judicial practice should also be regarded as staff of state organs.

2. "Based on national staff" situation

Official Reply of the Research Office of the Supreme People's Court on How to Identify the State Staff Working Part-time in Rural Cooperative Foundation (June 29th, 2000). State functionaries who take part-time jobs in rural cooperative foundations on their own shall be recognized as ordinary employees of rural cooperative foundations, because their part-time jobs have nothing to do with the status of state functionaries; Personnel appointed by state organs, state-owned companies, enterprises and institutions to engage in part-time management work in rural cooperative foundations shall be regarded as state staff.

Summary of the Symposium on the Trial of Economic Crimes by National Courts in the Supreme People's Court (2003 1 131October 65438)

First, the subject of corruption and bribery crimes and dereliction of duty crimes.

(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.

Reply of the Legal Policy Research Office of the Supreme People's Procuratorate on whether the second paragraph of Article 93 of the Criminal Law is applicable to the personnel appointed by state organs, state-owned companies and enterprises to engage in official duties in non-state-owned companies and enterprises but who have not yet obtained their positions according to the prescribed procedures (1 1.3, 2004).

If a person appointed by a state organ, state-owned company or enterprise to a non-state-owned company or enterprise is suspected of committing a duty crime, he may be investigated for criminal responsibility in accordance with the provisions of Article 93 of the Criminal Law on "Personnel appointed by a state organ, state-owned company or enterprise to a non-state-owned company, enterprise, institution or social organization to engage in public affairs" and "based on state staff".

3. Identification of "other persons engaged in official business according to law"

Interpretation of the NPC Standing Committee on Paragraph 2 of Article 93 of the Criminal Law of People's Republic of China (PRC) (revised on August 27th, 2009).

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:

When villagers' committees and other village grass-roots organizations assist the people's government in carrying out the following administrative work, they belong to "other persons 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;

(IV) Land Expropriation and Expropriation On August 27th, 2009, the National People's Congress Standing Committee (NPCSC) changed the original "expropriation" to "expropriation and expropriation". Management of compensation expenses;

(5) Collecting and paying taxes;

(six) family planning, household registration and conscription;

(seven) to assist other administrative work of the people's government.

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 Interpretation of the NPC Standing Committee on the Second Paragraph of Article 93 of the Criminal Law of People's Republic of China (PRC) (June 5, 2000)

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 cases 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 the people's government in administrative work as stipulated in the Interpretation, and correctly grasp Articles 382, 383, 384 and 385 of the Criminal Law. 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.

Reply of the Supreme People's Procuratorate on the time effect of the interpretation of the second paragraph of Article 93 of the Criminal Law of People's Republic of China (PRC) by the NPC Standing Committee (June 29, 2000)

The NPC Standing Committee's interpretation of the second paragraph of Article 93 of the Criminal Law of People's Republic of China (PRC) further clarified the provisions of the second paragraph of Article 93 of the Criminal Law on "other persons engaged in official duties according to law", which is not a revision of the Criminal Law. Therefore, the validity of interpretation applies to the date of implementation of the revised criminal law, and its retroactivity applies to the provisions of article 12 of the revised criminal law.

Summary of the Symposium on the Trial of Economic Crimes by National Courts in the Supreme People's Court (2003 1 131October 65438)

First, the subject of corruption and bribery crimes and dereliction of duty crimes.

(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; (three) to assist villagers' committees, residents' committees and other urban and rural grass-roots organizations in the township people's government, street offices engaged in administrative work; (four) other personnel authorized by law to engage in public service.

4. Understanding of Article 93 of the Criminal Law "Engaging in Official Business"

Summary of the Symposium on the Trial of Economic Crimes by National Courts in the Supreme People's Court (2003 1 131October 65438)

First, the subject of corruption and bribery crimes and dereliction of duty crimes.

(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.