State workers refer to those who engage in official duties in state agencies, including state power agencies, administrative agencies, judicial agencies, and military agencies at all levels. Personnel who engage in public service in an organization that exercises state administrative powers in accordance with laws and regulations or an organization that is entrusted by a state agency to exercise power on behalf of the state shall be deemed to be a staff member of the state agency when exercising power on behalf of the state agency. Personnel engaged in official duties in the central government organs at or above the township (town) level or in the People's Political Consultative Conference organs shall be deemed to be staff of state organs.
Article 93 of the Criminal Law: Scope of State Workers The term “state workers” as mentioned in this Law refers to those who engage in official duties in state agencies.
Personnel engaged in official duties in state-owned companies, enterprises, institutions, and people's organizations; persons assigned by state agencies, state-owned companies, enterprises, and institutions to non-state-owned companies, enterprises, institutions, and social groups to engage in official duties personnel, as well as other personnel engaged in official duties in accordance with the law, are state workers.
The Supreme People's Procuratorate's "Reply on whether personnel formally employed or entrusted by supervisory organs to engage in supervisory work can become the subject of the crime of corporal punishment and abuse and the crime of private release of prisoners"
(High Procuratorate Fa Yan Zi [1994] No. 1 (1994] No. 1 was promulgated and implemented on January 10, 1994)
Sichuan Provincial People’s Procuratorate:
Your hospital Sichuan Procuratorate (Research) [1992] No. 8 "On the issue of whether the treatment of non-state personnel in supervision work constitutes corporal punishment, abuse of others and the crime of private release of prisoners" has been received. After research, we believe that according to the provisions of Article 84, Article 189, and Article 190 of the Criminal Law, persons who are formally employed or entrusted by supervisory authorities to actually perform supervisory duties are qualified to supervise criminals. functional personnel. If the above-mentioned personnel violate supervision regulations by corporally punishing or abusing criminals under supervision, if the circumstances are serious, or if they release the criminals without permission, they will be held criminally responsible for the crime of corporal punishment and abuse or the crime of private release respectively.
Interpretation of the Standing Committee of the National People's Congress on Paragraph 2 of Article 93 of the Criminal Law of the People's Republic of China
(Ninth National People's Congress on April 29, 2000 Adopted at the 15th meeting of the Standing Committee of the National People's Congress and announced on the same day)
The Standing Committee of the National People's Congress discussed the work of village committees and other village grassroots organizations that fall within the provisions of Paragraph 2 of Article 93 of the Criminal Law Work. The Standing Committee of the National People's Congress discussed which work performed by members of village grassroots organizations such as village committees falls within the category of "other personnel engaged in official duties in accordance with the law" stipulated in Paragraph 2 of Article 93 of the Criminal Law. "
(1) Management of funds and materials for disaster relief, emergency rescue, flood prevention, and relief, and management of funds and materials for poverty alleviation, immigration, and relief;
(2) Social donations of funds and materials for public welfare undertakings Management;
(3) Operation and management of state-owned land;
(4) Management of land acquisition compensation fees;
(5) Collection of taxes;
(6) Payment of taxes;
(4) Management of land acquisition compensation fees;
(5) Collection and payment of taxes;
(6) Family planning, household registration, and military recruitment;
(7) Assisting the People’s Government in other administrative work
Village committees engaged in official duties specified in the preceding paragraph. or members of other village grassroots organizations who take advantage of their positions to illegally occupy public property, misappropriate public funds, demand property from others, or illegally accept property from others, which constitutes a crime, shall be punished in accordance with Articles 382 and 3 of the Criminal Law. Article 183 of the crime of corruption, Article 384 of the crime of misappropriation of public funds, and Articles 385 and 386 of the Supreme People's Procuratorate regarding the implementation of the " Notice of the Standing Committee of the National People's Congress on the Interpretation of Paragraph 2 of Article 93 of the Criminal Law of the People's Republic of China
(Gao Jian Fa Yan Zi [2000] No. 12, published on June 5 implementation.
No. 12, promulgated and implemented on June 5, 2000)
Second, according to the "Interpretation", the procuratorial organs shall punish village committee and other village grassroots organization personnel for assisting the people to eliminate corruption and misappropriation of public funds. , If a case of accepting bribes is opened for investigation, it shall be reported.
Third, in the process of investigating criminal cases of corruption, bribery, and misappropriation of public funds by villagers’ committees and other village grassroots organizations, procuratorial organs at all levels, in accordance with the provisions of the "Interpretation" and other relevant laws, strictly grasp the boundaries and accurately judge the villagers' Whether the responsibilities of committees and other village grassroots organizations fall within the activities of village grassroots organizations assisting people to engage in administrative work stipulated in the "Interpretation", correctly grasp the provisions of Articles 382 and 383 of the Criminal Law The crime of corruption, the crime of misappropriation of public funds stipulated in Article 384, and the constituent elements of the crime of accepting bribes stipulated in Articles 385 and 386. The provisions of the "Interpretation" do not apply to members of villagers' committees and other village grassroots organizations who engage in business and management activities within the scope of villagers' autonomy.
Reply letter from the Supreme People's Procuratorate on "Request for Instructions on the Identification of Subjects of the China Securities Regulatory Commission"
(Gao Jian Fa Zi [2000] No. 7, April 30, 2000 Announced and implemented on the same day)
Beijing Municipal People’s Procuratorate:
Your court’s Jingjianfa (2000) No. 41 "Request for Instructions on the Subject Identification Issues of the China Securities Regulatory Commission" has been received. (2000) No. 41 "Request for Instructions on the Qualification of Subjects of the China Securities Regulatory Commission" was received. After this court sent a letter to the Office of the Central Institutional Establishment Committee to inquire, the Office of the Central Institutional Establishment Committee has issued a formal reply. The reply is as follows: "China Securities The Supervision and Administration Commission is a public institution directly under the State Council and is the competent authority for the national securities and futures markets. Its main responsibility is to uniformly manage the securities and futures markets and provide vertical leadership to the securities and futures regulatory agencies in accordance with regulations. Therefore, it is a public institution with administrative management responsibilities. , cadres of the Beijing Securities Regulatory Bureau should be regarded as state agency staff." Please reply to our office according to the opinions of the Central Office.
Attachment: Reply on the institutional nature of the China Securities Regulatory Commission
Reply on the institutional nature of the China Securities Regulatory Commission
(Central Editor Banhan [2000] No. 84, April 14, 2000)
Supreme People's Procuratorate:
"Letter on whether the China Securities Regulatory Commission is a state organ" (Supreme People's Procuratorate) FaZi [2000] No. 5) received. No. 5) has been received, and the reply is as follows:
According to the provisions of Guobanfa (1998) No. 131, the China Securities Regulatory Commission is an institution directly under the State Council and is the competent authority for the national securities and futures markets. Its main responsibility is to uniformly manage the securities and futures markets and provide vertical leadership to securities and futures regulatory agencies in accordance with regulations. It is a public institution with administrative management responsibilities. Therefore, cadres of the Beijing Securities Regulatory Bureau should be regarded as staff of state agencies.
Reply from the Supreme People's Procuratorate on whether the town finance director can apply to be a staff member of a state agency
(Gao Jian Fa Yan Zi [2000] No. 9, published on May 4, 2000 Implementation)
Shanghai People’s Procuratorate:
Your court has received the Shanghai Procuratorate (2000) No. 30. After research, the reply is as follows:
If state agency staff members who are under the legal management of the administrative law enforcement agencies of the Finance Town abuse their powers or neglect their duties while performing *** administrative management and public service activities, thereby constituting a crime, they shall be punished. The case shall be dealt with by the staff of state agencies.
Reply of the Supreme People's Procuratorate on whether contract police officers can become the subject of negligence
(High Procuratorate Office [2000] No. 20, announced and implemented on October 9, 2000)
p>
Liaoning Provincial People's Procuratorate:
Your court's Liaoning Procuratorate No. [1999] No. 76 "Request for Instructions on the Case of Criminal Suspect Li Hai's Neglect of Duty" has been received. Please explain. "Received.
After research, the reply is as follows:
According to the provisions of Article 93, Paragraph 2, of the Criminal Law, in the process of performing official duties in accordance with the law, contract police officers are other persons engaged in performing official duties in accordance with the law and shall be regarded as State agency staff. If a contracted policeman neglects his duties while performing official duties in accordance with the law and meets the conditions for the crime of dereliction of duty in Article 397 of the Criminal Law, he shall be held criminally responsible for the crime of dereliction of duty in accordance with the law.
Interpretation of the Standing Committee of the National People's Congress on the Application of Subjects of the Crime of Dereliction of Duty in Chapter 9 of the Criminal Law of the People's Republic of China
(December 28, 2002, the Ninth National People's Congress The 31st Session of the General Assembly passed and the Standing Committee of the National People's Congress discussed the subject application of Chapter 9 of the Criminal Law based on the situations encountered in judicial practice, and made the following explanation based on the judicial practice. Regarding the problems encountered in practice, the issue of subject application of the crime of dereliction of duty in Chapter 9 of the Criminal Law was discussed and explained as follows:
In accordance with the provisions of laws and regulations, it is carried out in organizations that exercise state administrative management powers. Personnel who perform official duties, or persons who perform official duties in an organization entrusted by a state agency to perform functions and powers on behalf of a state agency, or persons who are not included in the staff establishment of a state agency but perform official duties in a state agency, do not perform official duties in an organization that performs functions and powers on behalf of a state agency. If a crime is constituted by neglect of duty during the process, criminal liability shall be pursued in accordance with the provisions of the Criminal Law on the crime of dereliction of duty.
Minutes of the National Court Trial of Economic Crime Cases
(Legal [ 2003] No. 167, issued on November 13, 2003)
1. The criminal subject of the crime of corruption
(1) The criminal subject of the crime of corruption, bribery and dereliction of duty. Subject
(1) Identification of staff of state organs
The term "staff of state organs" as mentioned in the Criminal Law refers to those who perform official duties on behalf of state organs, and shall be investigated in accordance with the provisions of the Criminal Law on the crime of dereliction of duty. Criminal liability. The term "state agency staff" in the criminal law refers to those who engage in official duties in state agencies, including those who engage in official duties in state power agencies, administrative agencies, judicial agencies, and military agencies at all levels.
According to the provisions of relevant legal interpretations, personnel who are engaged in public service in organizations that exercise state administrative management powers in accordance with the provisions of laws and regulations, or personnel who are engaged in public service in organizations that are entrusted by state agencies to perform functions and powers on behalf of the state, or who are not included in the list The personnel establishment of state agencies, but those who engage in official duties in state agencies shall be considered as staff of state agencies. Those who engage in official duties in the Chinese Communist Party organs or the People's Political Consultative Conference at or above the township (town) level shall also be regarded as such in judicial practice. State agency staff.
(2) Recognition of personnel assigned by state agencies, state-owned companies, enterprises, and institutions to perform official duties in non-state-owned companies, enterprises, institutions, and social groups.
The so-called delegation, that is, appointment and dispatch, has many forms, such as appointment, delegation, nomination, approval, etc. Those appointed by companies, enterprises, and institutions to engage in organization, leadership, supervision, management, etc. on behalf of state agencies, state-owned companies, enterprises, and institutions, and to engage in official duties in non-state-owned companies, enterprises, institutions, and social groups can all be recognized. To be assigned by state agencies, state-owned companies, enterprises, and institutions to non-state-owned companies, enterprises, institutions, and social groups to perform official duties. For example, personnel assigned by state agencies, state-owned companies, enterprises, and institutions to state-controlled or state-owned joint-stock companies to engage in organization, leadership, supervision, and management work should be recognized as state workers. When a state-owned company or enterprise is restructured into a joint-stock company, the newly appointed personnel of the original state-owned company, enterprise or joint-stock company shall be regarded as state functionaries, except for exercising supervisory and management powers on behalf of the state-owned investment entities.
(3) Identification of "other persons engaged in official duties in accordance with the law"
Paragraph 2 of Article 93 of the "Criminal Law" stipulates that "other persons engaged in official duties in accordance with the law" It should have two characteristics: first, to perform state management functions under specific conditions; second, to perform official duties in accordance with legal provisions. Specifically, they include (1) deputies to people's congresses at all levels who perform their duties in accordance with the law; (2) people's assessors who perform their judicial duties in accordance with the law; (3) urban and rural villagers' committees, residents' committees and other urban and rural areas that assist township people's committees and sub-district offices in carrying out management work. Members of grassroots organizations; (4) Other personnel authorized by law to engage in official duties.
(4) Understanding of "engaging in official duties"
Engaging in official duties refers to performing organization, leadership, supervision, and other duties on behalf of state agencies, state-owned companies, enterprises, institutions, and people's organizations. Management and other responsibilities. Official duties are mainly manifested in public affairs activities related to the supervision and management of state-owned assets. For example, state agency staff perform their duties in accordance with the law, and state-owned company directors, managers, supervisors, accountants, cashiers and other activities that manage and supervise state-owned property are all engaged in official duties. Those labor activities and technical services that do not have the content of authority, such as the work performed by salespersons, ticket sellers, etc., generally do not belong to official duties.
The revised criminal law stipulates that there are 53 types of official crimes committed by state employees under the jurisdiction of the procuratorate, divided into three categories: corruption and bribery (Chapter 8); dereliction of duty (Chapter 9); violations of citizens Personal rights and democratic rights crimes. The crime of corruption and bribery has a total of fifteen articles in Chapter 8 of my country's Criminal Law, which stipulates twelve crimes (394-396) including: 1. Crime of corruption 2. Crime of misappropriation of public funds 3. Crime of accepting bribes 4. Crime of accepting bribes by units 5. Offering bribes Crime 6. Crime of bribery by an entity 7. Crime of introduction of bribery 8. Crime of bribery by an entity 9. Crime of unknown source of huge amounts of property 10. Crime of concealing overseas deposits 11. Crime of misappropriation of state-owned assets 12. Crime of misappropriation of confiscated property. Chapter 9 of my country's Criminal Law contains 23 articles on the crime of dereliction of duty, stipulating 34 crimes. Including 1. The crime of abuse of power, 2. The crime of dereliction of duty, 3. The crime of perverting the law, 4. The crime of releasing detainees without permission, 5. The crime of being deceived by state workers in signing and performing contracts, etc. There are seven types of crimes that infringe on citizens' personal rights and democratic rights committed by state agency staff by taking advantage of their powers: 1. Illegal detention committed by state agency staff using their powers; 2. Illegal searches committed by state agency staff using their powers; 3. Torture. 4. Crimes of extorting confessions, 5. Crimes of violent evidence collection, 5. Crimes of abusing detainees, 6. Crimes of retaliation, false accusations and frame-ups, 7. Crimes of sabotaging elections by state agency staff taking advantage of their powers. .
abcd The "Opinions" clearly define the scope of "other units": "Other units" include public institutions, social groups, villagers' committees, residents' committees, and villagers' groups. and other permanent organizations, including organizing sports events, cultural activities, etc. Including non-permanent organizations such as organizing committees, preparatory committees, and project contracting teams established to hold sports events, theatrical performances, or other legal activities. How to correctly define the scope of state workers
Article 34 of the "Regulations on Disciplinary Punishment of the People's Republic of China" stipulates: The term "party and state workers" as mentioned in these regulations includes party workers and state workers. Party workers refer to the staff of the Party's organs at all levels other than workers and service personnel, as well as Party members in the Party's grassroots organizations who are full-time and exclusively engaged in intra-Party affairs. The determination of state functionaries and deemed state functionaries shall be carried out in accordance with the law and the legal and judicial interpretations of the Standing Committee of the National People's Congress. This regulation does not provide detailed explanations on how to define the scope of state workers; however, correctly defining the scope of state workers is of great significance to the characterization and handling of our cases. This article will specifically stipulate the scope of state workers based on our country's laws, regulations, judicial practices, and the legal interpretations and judicial interpretations of the National People's Congress Standing Committee. 1. Legal definition of state workers Article 93 of the 1997 Criminal Law stipulates: "State workers as mentioned in this law refer to personnel engaged in official duties in state agencies.
Personnel engaged in official duties in state-owned companies, enterprises, institutions, and people's organizations; persons assigned by state agencies, state-owned companies, enterprises, and institutions to engage in official duties in non-state-owned companies, enterprises, institutions, and social groups; and other persons engaged in official duties in accordance with the law The personnel are state workers. According to this provision, state workers include two categories: one is those who engage in official duties in state agencies; the other is those who are "regarded as state workers" and can be called quasi-state workers. Therefore, three concepts have emerged regarding state workers: state workers, state agency workers and quasi-state workers. We must accurately grasp the logical relationship between these concepts, that is, state workers are a superior concept, and state agency staff and semi-official personnel are subordinate concepts. Secondly, the scope of "state agency staff" is defined based on the provisions on state agencies in Chapter 3 of my country's Constitution and the "Decision on Severe Punishment of Criminals Who Seriously Damage the Economy" adopted by the Standing Committee of the National People's Congress in 1982. That is, the state organs of our country refer to the organs of state power, administrative organs, judicial organs and military organs; the state organs of China refer to the organs of state power, administrative organs, judicial organs, procuratorial organs and military organs; the personnel engaged in official duties in these organs He is a staff member of a state agency. The organs of state power are the National and local People's Congresses and their Standing Committees. The national administrative organs include the State Council and its ministries and commissions, local people's committees at all levels and their various administrative organizations. The national judicial organs are the people's courts at all levels. The national procuratorial organs refer to the people's procuratorates at all levels. Military organs refer to institutions at all levels that manage the country’s armed forces, such as the National Military Commission and the Four Headquarters. From the perspective of our country's political system and national conditions, organizations at all levels of the Chinese Communist Party play a leading role in various fields of our country's political, economic and social life. However, from the perspective of its nature, it is a political party after all, not a national institution. Therefore, , it is still inappropriate to regard organizations at all levels of the Chinese Communist Party as state organs. As for the so-called general branch, it is actually a state administrative department and should not be regarded as a state agency. Therefore, in organizations at all levels of the Chinese Communist Party that were originally administrative agencies but are now head offices, personnel who are engaged in official duties in accordance with the law, such as power supply companies, tobacco companies, etc., should obviously fall within the scope of staff of quasi-state agencies and not It should fall within the scope of state agency staff. III. Definition of the scope of quasi-state workers The so-called quasi-state workers refer to those who "work for the state" as stipulated in the current criminal law. According to Article 93 of the 1997 Criminal Law, quasi-state workers are divided into three types: first, those who engage in official duties in state-owned companies, enterprises, institutions, and people's organizations; second, those who are subject to state agencies, state-owned companies, and enterprises , Personnel appointed by public institutions to engage in public service in non-state-owned companies, enterprises, public institutions, and social groups; third, persons engaged in public service in accordance with other laws. According to the relevant provisions of the Company Law, a state-owned company refers to a company whose property is entirely owned by the state. Including wholly state-owned limited liability companies invested and established by state-authorized investment institutions or state-authorized departments and limited liability companies jointly established by two or more of the following fifty state-owned investment entities. State-owned enterprises refer to unincorporated economic organizations whose properties are solely state-owned and engaged in production, operation, and service activities. State-owned institutions refer to non-productive departments or units that are under the leadership of state agencies and whose required funds are allocated by the state, such as hospitals, scientific research institutes, sports, news, broadcasting, publishing and other units. People's organizations refer to various social organizations that are voluntarily formed by a certain number of members, registered with ****, approved and registered by ****, and funded by ****, such as various democratic parties, Communist Youth Leagues at all levels**** , trade unions, women's federations, etc. Correspondingly, social organizations refer to social organizations that are not funded by the government and registered in accordance with the law, such as law firms, legal service offices, etc. 1. Regarding the identification of public officials in state-owned companies. State-owned companies are companies established in accordance with the Company Law, and their property belongs entirely to the state. Personnel engaged in official duties in state-owned companies are quasi-state workers.
The official affairs here are relatively broad and can be national affairs, social affairs and collective affairs. Its scope involves politics, economy, culture, military, culture and sports, health, science and technology and various matters related to social order. management. Secondly, it is on behalf of the country, that is to say, this kind of activity is carried out on behalf of the country and is an act of a national management nature, rather than on behalf of individuals, collectives or groups. In other words, this kind of activity is a manifestation of state power, or a manifestation of power derived from state power. In contrast, "labor" not only refers to physical activities directly engaged in the production of material materials, it also refers to all labor-based production, management, and social service activities, which are called labor. The fundamental difference between it and public services is that such activities do not have the power, functions and management of the state. Those engaged in labor services are not managers in the sense of state management, but are managed. If you perform duties in state agencies in accordance with the law, or exercise management powers in state-owned companies, enterprises, institutions and people's organizations (such as directors, managers, supervisors, accountants, cashiers, buyers, salespersons, etc. of state-owned companies), you should be engaged in service. ), should be classified as engaging in official duties. Those labor activities and technical services that do not have the content of authority, such as the work performed by salespersons, cashiers, conductors, doctors, etc., generally do not belong to (2) Engaged in official duties. With the deepening of economic system reform and political system reform, the reform of personnel system is also deepening, and the appointment system has been widely implemented. No matter what status a person has, as long as they are appointed to a management position, they are engaged in public service. In addition, in accordance with the requirements for establishing a modern enterprise system, many state-owned companies and enterprises have implemented an all-employee contract system, breaking the identity boundary between cadres and the masses, and competing for management positions. Therefore, using cadre status as the standard for identifying state workers is obviously inconsistent with the reality of current economic life. For example, inspectors, laboratory technicians, etc. in state-owned enterprises are all engaged in management work. Regardless of their status, as long as they are appointed to engage in management work, they should be regarded as state workers and are quasi-state workers. .