Study On The Distinction Between The State Staff And The Non-state Staff In State Funded Enterprises

The concept of state-funded enterprises has been created for the first time in Law of the People’s Republic of China on the Sate-Owned Assets of Enterprises,which has brought out some impact on the identification of state functionary in the criminal law system.The supreme people’s procuratorate and the supreme people’s court have drafted jointly Suggestions on the Trouble in Application of Law during the Investigation and Punishment of Duty Crime Cases in State-Funded Enterprises,(hereinafter referred to as Suggestions on the State-Funded Enterprises)which has explained how to identify state functionary in state-funded enterprises.For state-funded enterprises’ business scope has close connection with national economy and people’s livelihood,the arrangement of their internal personnel have always been regarded as a transitional product during the reform session and full of administrative features,but the duty scope of state-funded enterprises’ internal employees seem much broader than the delegated state functionary’s official business activities,so we should hold a cautious attitude on identifying state functionary to prevent the expansion of punishment when we support the intentions to draft a strict law to protect state-owned assets in state-funded enterprises.In this dissertation,the author try to discriminate and analyse the theory of official business and official status,the concept of transfer assignment and indirect assignment from different opinions which were adopted during the identification of state functionary on the basis of Mr Zhou’s corruption case,where facts of this case were consistently confirmed by court during the first and the second trial.The author point out in the paper that the court sentence Mr Zhou’s corruption case during the first trial on the basis of insisting the theory of official business,and this judgment ignore the particularity of state-funded enterprises,and the court’s interpretation of business activities which conducted by employees who are delegated from state-owned company to non-state-owned company will lead to overidentification of criminal results.The author rethink the train of thought which adopted by the court during the second trial of Mr Zhou’s corruption case on the basis of the theory of official status,and this train of thought only discuss whether the procedure of Mr Zhou’s appointment is authorized by higher authorities or the party committee on the same level or not.In Suggestions on the State-Funded Enterprises,official business activities were explained as a kind of work which take charge in organizing,leading,supervising and running state-owned asset by organization who have responsibility of doing such things.The author thinks that this statement is in the state-owned investment companies under the premise of the special nature of the unit,the "public" another restrictive expression,the author attempts to from three characteristics of "official","official" two kinds of classification and corruption crime and job occupation crime to protect the legal interests of the three angles such as the comparison to the discussion of this provision,clarify the basic train of thought that:First,whether by the organization responsible for the of state-owned assets supervision and management system for appointment or approval as QianZhiXing conditions to determine whether a person is engaged in public service,the "organization" based on whether the superior or party committees at the corresponding level of understanding,the party and government association for the principle,to the person would be able to represent to the organization responsible for the supervision and administration of state-owned assets in public for substantial judgment for the exception;Secondly,from the two aspects of "official" narrowed the explanation,on the one hand,through the "representative" and "administrative" etc,on the basis of adding "closely connecting with state-owned assets" this one characteristic,effective in the official and "delegate" engaged in official business characteristics to distinguish;On behalf of the company,on the other hand,the overall interests of assets of the enterprise as a legal person to perform the operation,management,supervision and so on functions and powers,the whole extract which is "on behalf of the state investment main body the exercise of powers" of the state-owned assets supervision and administration of the property,thus the "official" different from the company’s general affairs;Finally,combined with the case based on the above comprehensive analysis,to determine whether behavior person place unit management system specification,to review the party committees at the corresponding level or higher,the principle of party and government association appointed or approved by the program,although there is no clear after a contravenor party committee,party and government association,but in essence can represent organizations of the state-owned assets supervision and management responsibilities for the exception,and whether the nature of the offender takes office representative at the same time,management,and closely connecting with state-owned assets etc,adheres strictly to protect the state-owned assets of legislative idea,the investor benefits to the country’s affairs and distinguish the general affairs,so as to come to the conclusion.