The Identification Of The Internal Appointed State Staff Of Some State Funded Enterprises

With the continuous deepening of China’s economic system reform,state-owned enterprises have become more state-owned holding and shareholding enterprises through the shareholding system reform,and the state-owned assets management system has been constantly improved,thus opening the era of mixed ownership economy with diversified investment subjects.However,the reform of state-owned enterprises has led to a series of duty crimes that lead to the loss of state-owned assets.To this end,the Supreme People’s Court and the Supreme People’s Procuratorate issued opinions on Several Issues concerning the Specific Application of Law in Handling Cases of Duty Crimes in State-funded Enterprises（hereinafter referred to as opinions）,expanding the scope of state staff in some state-funded enterprises.Is different from the article 93 of criminal law and relevant judicial explanation clear and unified,"opinions" will the scope of state functionary by state functionaries appointed "external" expanded "internal appointment" state functionaries,though in a timely manner to punish the corrupt crime effectively,but the extreme expansion of way also produced a series of legal problems.First of all,the expansion of the concept of "appointment" in the Opinions may violate the principle of statutory punishment for a crime.On the one hand,as the representative of the fusion of private capital and state-owned assets,some state-funded enterprises expand the identification of state workers in order to emphasize the special protection of state-owned assets;However,some state funded enterprises do not carry out official acts,and the duty crimes of the staff are not able to violate the integrity and impartiality of the state staff.Expansion of identification,departure from the principle of legal interest protection.On the other hand,some state-funded enterprises are independent legal entities,and their assets are owned by the company,so all of them are regarded as public property,which violates the principle of inseparability of company property and also undermines the legal principle of equal protection of market subjects.The general application of judicial practice to the Opinions has led to a surge in status crime subjects in recent years,but the unified regulation of duty crime cannot be realized,which violates the modesty of criminal law.The application of the Opinions should start from the background of state-owned enterprise reform,clarify relevant concepts from the Angle of criminal law doctrine,and limit the unlimited expansion of the opinions on state workers.Based on the modesty of criminal law,the identification of state personnel is reasonably limited.In particular,should with "management and supervision of state-owned assets responsibility" to limit appointed organization before the reform of "organization" often to entrust the restructuring of state-owned enterprises group,after the restructuring of "organization" is the company’s articles of association of the specific provision shall prevail,that is the responsibility of the party committee,the general meeting of shareholders,the board of directors,board of supervisors and other organization as the subject of the appointment.At the same time,the state property exclusivity of the appointed personnel will be taken as a substantial requirement,and the scope of state personnel will be further limited.Therefore,the double restriction on the internal appointed state staff can ensure the healthy development of state-owned enterprises,adhere to the principle of statutory punishment for a crime and effectively protect human rights.