The so-called appointment is to appoint and dispatch, that is, to send people to hold positions. The "assignment" stipulated in the second paragraph of Article 93 of the Criminal Law of our country refers to the meaning of being appointed or dispatched by state organs, state-owned companies, enterprises, institutions and people's organizations to engage in official duties in non-state-owned companies, enterprises, institutions and social organizations. The "entrustment" stipulated in China's criminal law must meet the following conditions: [4] First, the principal is specific. That is to say, the designated subject must be a state-owned unit, including state organs, state-owned companies, enterprises and institutions as stipulated in Article 93 of China's Criminal Law, and it must be in the name of the unit. Second, the way of entrustment is effective. Both the entrusting party and the entrusted party have expressed their consent, and this expression of intention must be confirmed in writing. Third, the content of the commission is legal, that is, the content of the commission is not beyond the scope of the commission. Fourth, the purpose of entrustment is clear. That is, the purpose of appointment is to enable the appointee to engage in official activities in the state-owned units designated by the appointed units, that is, to engage in leadership, supervision and management activities, rather than directly engaging in production, labor, services and other activities. Fifth, the subordinate relationship of the principal-agent relationship. That is, after the establishment of the appointment relationship, the appointed person and the appointed person form an administrative subordinate relationship.
Substantial consistency of entrustment
1, understanding of "engaging in official business"
Judging from the provisions of Article 93 of China's 1997 Criminal Law, "engaging in official business" is the same feature for both state employees and quasi-state employees. In other words, "engaging in official business" is an essential element for the identification of the nature of state employees as stipulated in the criminal law. The problem is how to grasp this essence. On this issue, we advocate that it should be analyzed in combination with the subject of crime involved in the specific provisions of criminal law. In the specific provisions of criminal law, there are three main types of crimes involving state functionaries, namely, crimes with state functionaries as the subject of crime, crimes with state functionaries as the object of crime and crimes with state functionaries as the object of infringement. It is generally believed that the object of crime with national staff as the main body is the official integrity of national staff; The object of criminal infringement targeting state functionaries is the normal activities of state organs or mainly the normal activities of state organs. However, whether the integrity of posts or the normal activities of state organs are destroyed, the state management function will eventually be destroyed. The management of social, political, economic, cultural and other life is the most basic function of the country, and the management function of the country is completed by the way that state staff engage in official business. Any improper performance of official duties, or any behavior that hinders the proper performance of official duties by state staff, will endanger the realization of state management functions. Therefore, the law stipulates that "engaging in official business" is the essence of the joint requirement for state staff, just to ensure the real realization of state management functions. According to this essence, we can understand "engaging in official business" as stipulated in Article 93 of the Criminal Law as follows: it refers to managing, organizing, leading and supervising official business on behalf of the state. It has two basic characteristics: one is management, that is, the management of public affairs. "Public affairs" covers a wide range, involving politics, economy, culture, military affairs, sports, health, science and technology, etc. However, it should be understood in a relatively narrow sense, and it must be directly related to the state public power, local public power or the management activities of state-owned enterprises and institutions, and the public functions of people's organizations. Otherwise, it cannot be understood as "public affairs" in the sense of criminal law. The second is national representation. That is, representing the country is an act derived from state behavior or state power. [5] Manageability is the essential feature of public behavior, and national representativeness is the formal feature of official behavior, and the two are combined with each other. From here, we can find that official business and position are two cross-cutting concepts. The so-called post generally refers to "the work that the post should hold". In the legal sense, a post refers to obtaining a certain legal status and performing certain management affairs on behalf of the state, collective or social group. It can be seen that the scope of duties is far greater than official duties.
2. The special significance of "official business" in "appointing personnel"
The identification of the legal subject status of "appointees" is whether they can be regarded as state employees. According to the provisions of Article 93 of the Criminal Law, we must grasp two points, namely, holding office and holding public office. "Appointment" requires that the form of appointment must be legal and effective, otherwise it cannot be recognized as a national staff member. "Doing official business" is the fundamental attribute. Without this attribute, even if the appointment form is legal and effective, it cannot be recognized as a national staff member. The question is, can all management behaviors in non-state-owned companies be regarded as official behaviors just because the actors are "representatives"? If we give a positive answer to this, it will certainly be beneficial to the actual operation of the judicial organs. However, in this case, what is the practical significance of the law emphasizing "official business"? What are the substantive differences from the past "identity theory"? Accordingly, we believe that the nature of the affairs that the "appointed personnel" are engaged in in in non-state-owned companies should be analyzed according to their specific conditions. ? First, if the "nominee" is elected as the director (chief) of the state-owned and holding company by the shareholders' meeting, in this case, the management behavior of the nominee in this position can be regarded as "official business". According to the principle of company law, once a shareholder invests his personal property in the company, the property becomes a part of the company's legal person's property, and the company's legal person has independent control over the property invested by the shareholder, while the shareholder who is the investor no longer has the direct control and disposal right over the property invested in the company. Article 34 of China's Company Law stipulates that shareholders may not withdraw their capital contribution after registration. At this time, shareholders have the equity transformed from the property they contributed after the company was established. Shareholders can participate in the management of the company and gain benefits by virtue of their equity. Article 4 of China's Company Law stipulates that shareholders of a company, as investors, enjoy the rights of owners' assets, major decisions and managers. However, when shareholders are companies, enterprises and institutions that contribute capital on behalf of the state, these units themselves cannot directly participate in the management of the company. In this way, in order to protect the rights and interests of their owners and the safety of state-owned assets, these units can only restrain enterprises through indirect means. Among them, the most powerful indirect means is to control the operation and managers of enterprises, that is, to select outstanding people with high political quality, strong operational ability and fairness as directors of state-owned holding companies. According to China's company law, although the members of the board of directors (including the chairman and directors) of a joint stock limited company can only be elected by the shareholders' meeting, because the shareholders' meeting election is conducted in accordance with the principle of capital majority decision and can only be produced among shareholders, it is not difficult for the state to elect people it trusts as directors through its controlling position, and this election is also in line with the provisions of the company law. On the surface, the power of the shareholders' meeting to elect the "nominee" as a member of the board of directors comes from the entrustment of the shareholders' meeting. However, as a representative of state-owned assets, the functions of directors are like shadow directors in British company law. In essence, "the directors of the company routinely act according to his (asset representative-author plus) wishes and instructions." (Article 7,465,438+0 bis of British 1985 Company Law) Therefore, although legally speaking, the relationship between the company and the directors (referring to the appointees) can be a entrustment relationship, in fact, it is an administrative appointment relationship backed by economic strength. Therefore, the management right of appointed personnel in state-owned shares and holding companies comes from the control right of state-owned investors (shareholders), in other words, their management behavior comes from state behavior or state power (controlling stake). From this point of view, the appointed person's management behavior of the company based on the director's power, if its appointment form is legal, can be considered as official behavior, and thus as a national staff. Second, if the "appointee" is appointed by the board of directors as the general manager of a state-controlled and shareholding company, it cannot be considered that the management behavior of the appointee in the position of general manager is "official business". First of all, judging from the emergence of managers, China's company law stipulates that managers are necessary institutions for limited liability companies and joint stock limited companies, and managers are appointed or dismissed by the board of directors. The board of directors of a company may decide that the members of the board of directors shall concurrently serve as managers. It can be seen that the scope of managers is extensive, and the qualifications of shareholders or shareholder representatives are not the conditions for their posts. Anyone with management ability can become a manager. Secondly, from the purpose of setting the manager's authority, the manager is only the person who assists the board of directors to carry out business. Therefore, the manager's purpose in exercising management authority is not to benefit or represent a director (shareholder), but to preside over the daily operation and management of the company on behalf of the whole board of directors, organize the implementation of the resolutions of the board of directors and be responsible to the board of directors. Since the manager's management behavior does not have the derivative characteristics of state power, it cannot be regarded as official behavior. Third, from the origin of manager's right, manager's right is endowed by the board of directors. According to China's company law, the manager also exercises other powers granted by the articles of association or the board of directors. The power stipulated in the articles of association, from its ultimate source, comes from the power of the board of directors. Because, centering on the transfer of corporate power to the board of directors, in order to avoid excessive concentration of power, improve the efficiency of business execution and effectively supervise the power of the board of directors, and curb the abuse of power, the manager who is mainly responsible for corporate business execution came into being. Although it can be inferred that the management authority of directors as representatives of state investment entities (shareholders) is derived from state power based on the controlling position of state investment entities and the authority granted to directors by the shareholders' meeting, it cannot be inferred that the management behavior of managers with the status of appointees is also derived from state power because of the different ways and sources of managers.