作者：蒋希律师     2016-12-28

摘  要：某某银行2004年改制后，属国家作为股东之一的国有控股、参股公司，其高级管理人员利用职务进行的经济犯罪如何定罪取决于犯罪行为人的主体身份。本文从当前刑事理论及司法实践经验出发，对如何认定某某银行的性质及如何认定国有控股、参股公司中高管人员利用职务进行经济犯罪进行论述。

关键字：国有公司；控股；党委；委派

一、基本案情与争论

2007年至2009年，王某在担任某某银行某二级分行高管期间，利用职务之便，为他人谋取利益，非法收受他人财物共计人民币400万。该分行所在地人民检察院以受贿罪对王某提起公诉。一审法院审理后认为某某银行原为国有独资商业银行，2004年9月14日后系国有控股的股份制商业银行。被告人王某在某某银行改制以前系在国有公司中从事公务的人员，在该银行改制后该银行的二级分行已不是刑法意义上的国有公司，王某虽然不再属于国有公司中从事公务的人员，但王某担任该二级分行高管，系由某某银行某一级分行党委研究决定聘任，任职的性质是受委派从事公务，应以国家工作人员论。遂以受贿罪判处被告人有期徒刑15年。王某提出上诉，认为本案公诉机关对犯罪主体性质认定存在问题，应当以非国家机关人员受贿罪提起公诉。因为某某银行属国有资本控股公司，而其上任形式是依法聘任，并不是其它形式如任命、指派、提名、批准等，最后所谓的“一级分行党委研究决定”也不能表明其受国有资本委派从事公务的性质。由上可见，对于王某行为的性质认定，主要有两种观点：一种观点认为，王某构成受贿罪；另一种观点认为，王某构成非国家机关工作人员受贿罪。

二、本案之理论展开

从本案的情况来看，争议的焦点在于王某担任某行二级分行高管是否属于刑法第93条第2款规定的国家机关、国有公司、企业、事业单位委派到非国有公司、企业、事业单位、社会团体从事公务的人员，所以对委派从事公务的国家工作人员之界定成为关键问题。

（一）刑法学意义上的“国有公司、企业”

根据我国《公司法》和《刑法》来看，所谓国有公司，是指公司财产完全属于国家所有的公司，包括国家授权投资机构或国家授权部门单独投资设立的国有独资的有限责任公司；由2—50个国有投资主体共同出资设立的有限责任公司；以及以发起方式设立的全部资产为国有的股份有限公司。国有企业是指财产完成属于国家所有的，从事生产、经营或者服务活动非公司化的经济组织。而所谓的非国有公司是指公司财产不属于或者不完成属于国家所有公司，包括私营、外商独资、中外合作、中外合资、由国有投资主体与非国有投资主体共同出资设立的有限责任公司或者共同作为发起人设立的股份有限公司。以募集方式设立的股份有限公司，其中一部分股份是向社会公开募集，因此也不属于国有公司。所谓的非国有企业是指财产不属于或者不完全属于国家所有从事从事生产、经营或者服务活动非公司化的经济组织。

所以笔者认为，国有公司、企业是指由国家投资，其财产归国家所有，以实现国家利益为目标而建立的组织，其范围不难界定。即必须是其财产完全属于国家所有的公司、企业，而国有资产控股、参股的公司、企业不是刑法学意义上的国有公司、企业。作出上述理解的依据如下：

1、符合罪刑法定原则的要求。罪行法定原则的内容之一就是要求立法具有明确性。我国《刑法》第93条规定所谓的国家工作人员，是指国家机关中从事公务的人员。国有公司、企业、事业单位、人民团体中从事公务的人员和国家机关、国有公司、企业、事业单位委派到非国有公司、企业、事业单位社会团体从事公务的人员，以及其他参照法律从事公务的人员，以国家工作人员论。但是由于刑法中关于“国有公司、企业”本身的外延不确定，对国有公司、企业定义也是不明确的，显然与罪刑法定原则不相适应。而国有控股公司、企业中股份持有人的股份是变化的，原为国有股的股份可能因为持股人股份的转让，变为国有参股而不控股的公司、企业，甚至成为不含国有股的股份制公司、企业。即国有股是否在公司、企业中处于控股地位始终处于不确定的状态，若刑法中的“国有公司、企业”是涵盖国有控股公司、企业，则将使刑法中以“国有公司、企业”中有关人员为犯罪主体的规定处于不确定状态，那么将使本条立法违背罪刑法定原则中明确性的要求。

2、相关司法批复已将刑法中的“国有公司、企业”限定为国有独资企业。2001年5月最高人民法院在《关于国有资本控股、参股的股份有限公司从事管理工作的人员利用职务便利非法占有本公司财物如何定罪问题的批复》中认为：“在国有资本控股、参股的股份有限公司从事管理工作的人员，除受国家机关、国有公司、企业、事业单位委派从事公务的以外，不属于国家工作人员。对其利用职务上的便利，将本单位财物非法占为已有，数额较大的，应当依照刑法第271条第1款的规定，以职务侵占罪定罪处罚。”依据此《批复》，在国有资本控股、参股的股份有限公司从事管理工作的人员，除受国家机关、国有公司、企业、事业单位委派从事公务的以外，均不属于国家工作人员。而依据《刑法》第93条第2款的规定，在国有公司、企业中从事公务的人员本是以国家工作人员论的。因此，此《批复》实质上就是将国有资本控股或者参股的股份公司排除在“国有公司、企业”之外。

3、从目前的司法实践看，刑法意义上的国有公司、企业是资本全部为国家所有的公司、企业也是目前多数法院所持观点。例如，在2002年召开的全国法院审理经济犯罪案件工作座谈会上，绝大多数与会代表认为“刑法规定的应当是指依照公司法成立，财产完全属于国家所有的公司。国有资本控股或者参股的股份公司不属于国有公司。”[①]再如，在2004年召开的全国部分法院经济犯罪案件审判工作座谈会上，与会代表一致认为，“国有公司仅指国有独资公司或两个以上国有投资主体出资成立的有限责任公司以及其他全部股份属于国家所有的股份公司。”[②]

4、2006年的新《公司法》第四节有对国有独资公司有特别规定。该法第六十五条第二款规定：“本法所称国有独资公司是指国家单独出资，由国务院或者地方人民政府授权本级人民政府国有资产监督管理机构履行出资人职责的有限责任公司。”这一条也明确国有公司的财产完全属于国家所有即全民所有，把国有独资公司同国有控股或者参股的股份有限公司、有限责任公司明显区别开。

综上所述结合本案事实，某银行原为国有独资商业银行，该行在分立的同时以发起设立方式成立股份有限公司。2004年9月14日，银监会以《中国银行业监督管理委员会关于某某银行重组改制设立某某银行股份有限公司的批复》批准该行以分立的方式进行重组，设立某某银行股份有限公司，公开发行股票其中国有股占70%以上，其公司股权中含有外资股和社会公众股，因此某某银行股份有限公司属国有资本控股公司，而该行某二级分行是该行的分支机构，其公司性质与总行的公司性质一致，属国有资本控股公司非国有独资公司，已不是刑法意义上的国有公司，更不是国家机关、企业或者事业单位。而目前司法实践中常存在将国有控股、参股公司、企业视为国有公司、企业完全是人为的扩充刑法介入度扩大刑事打击面，违背了法律条文的精神和刑法的谦抑性原则。[③]

（二）“某一级分行党委研究决定”的性质认定问题

1、笔者认为“党委”并不是刑法学意义上的国家机关的派出机构，更不是国家机关、事业单位。因为党委是按照中国共产党党章建立的，而党章中明确规定党的活动要服从法律，而中国某某银行银行的公司机构是按照公司法设立的独立民事法人，上述二者是有明显区别，不能混同。

首先，党委机关不属于刑法意义上的“国家机关”。界定国家机关的范围，必须基于现有法律的明确规定，依据我国《宪法》第三章中关于国家机构的规定，我国的国家机关应当包括权力机关、行政机关、审判机关、检察机关以及军事机关，并没有将中国共产党机关列为国家机关。而且在《宪法》第5条中规定：“一切国家机关和武装力量、各政党和各社会团体、各事业单位组织必须遵守宪法和法律。一切违反宪法和法律的行为，必须予以追究。”“可见，尽管从我国的政体和国情来看，中国共产党的各级组织在我国的政治、经济、社会生活各领域中发挥着领导作用，但从其性质上看，它毕竟还是一个政党，而不是国家机关，结合党的执政程序、实际内容、发挥作用，还是不把中国共产党的各级组织视为刑法第93条中所指的国家机关为宜。”[④]其次，党委组织也不是国家机关派出机构。因为根据宪法及相关法律规定，我国国家机关派出机构是指由一级行政机关内部的职能部门如厅、局、处等根据各自的行政管理的需要，在一定行政区域内设置的，管理某项行政事务的机构，最常见如公安机关设立的派出所、税务部门的税务所、工商部门设立的工商所等，这里显然不包含执政党党委组织。

结合本案，笔者认为“某一级分行党委”并不是我国执政党的各级机关或者其派出的代表机关。因为根据《中国共产党党章》规定，中国共产党组织分为中央组织、地方组织和基层组织。为开展开展工作需要，县以上各级党的委员会都设一些工作部门，如组织部、宣传部、统战部等，而其中共产党的派出代表机关也只有党的省、自治区委员会在各个县、自治县、市范围内派出。所以所谓的各级党委机关只能是独立的组织系统，如中央政治局、书记处、省委、市委、县委、乡镇党委等。那些附属于机关、团体、企业、事业单位中的党组织，因为其编制是附属于所在的单位、部门，所以应该与其所在的机关、单位性质保持一致。由于单位的非国有性质，国家对这种单位实行引导、监督和管理，此处的管理仅是将这种单位作为一种社会组织进行管理。因为这种非国有单位中的中国共产党机关的工作人员仅是一种党员的组织体，并不能对该单位进行直接领导，所以非国有单位中的中国共产党机关的工作人员不能视为国家工作人员。而结合本案，因为某某银行属非国有公司，所以“某一级分行党委”只是相当于一般股份有限公司的“党委”，属非公有制经济组织中党的基层组织。综上，某一级分行党委作出的研究决定，具有群众自治性质，并不代表国家或者执政党的意志。况且在某某银行股份制改造后，如果再通过党委会决定人事任免，显然与规范的公司治理不相适应，因为某某银行高管已不是干部，不具有终身制的含义。

2、“委派从事公务”的性质认定

根据刑法第93条的规定，“以国家工作人员论”的人员包括三种：一、国有公司、企业、事业单位、人民团体中从事公务的人员。二、国家机关、国有公司、企业、事业单位委派到非国有单位、企业、事业单位、社会团体从事公务的人员。三、其他依照法律从事公务的人员。而对“委派从事公务”的界定，应从两个方面进行分析：

（1）委派的定义

笔者认为，委派的定义应当包括以下几点：1、委派的主体特定。即委派的主体必须是国有单位，包括国家机关、国有单位、国有公司、企业、事业单位，并且必须以单位名义、而不是以个人名义。2、委派的方式有效。委派方与被委派方均有同意的意思表示，且一般采取书面形式予以确认。3、委派的内容合法。即委派的内容没有超出委派方的职权范围，如果超越委派权限这种委派就不具有合法性。4、委派关系的隶属性，委派人与受委派人之间形成一种行政上的隶属关系，受委派人要接受委派的领导、监督，两者之间是领导与被领导、管理与被管理的行政隶属关系，而不是民法上的平等委托、代理关系。5、委派目的的特定性。委派的目的是为了是被委派者到被委派单位代表委派的国家单位从事公务活动，即从事领导、监督活动，而不是直接从事生产、劳动、服务等活动，一般负有监督管理国有资产的职责。在目前实践中，国有公司、企业向非国有公司、企业委派从事公务的人员有两种情况：一、国有公司、企业受非国有公司、企业委托，为完成一定工作而向其委派从事公务的人员；二、国有公司、企业基于出资为行使出资者的权利，向其他企业委派从事公务的人员。

结合本案，首先一审法院在对犯罪主体身份的认定时，并没有明确本案中的具体的委派方与被委派方。即使依据一审法院的思路委派单位为某某银行的一级分行或者其党委，而被委派单位是该银行某二级分行，其也不能构成实质意义上的委派，因为根据上段所述受委派人只能是接受国家机关、国有公司、企业、事业单位这些具有国有性质单位的委派，非国有性质单位不能成为委派的主体，而某银行的一级分行或者其党委显然不属于上述所列。

（2）“从事公务”的界定

《刑法》第93条中所称的“从事公务，就是指代表国家对公共事务所进行的管理、组织领导、监督等管理活动。”公务活动的本质是行使国家权力，其服务对象是国家和社会，是处理国事行使权力的活动，既有对人的管理也有对物的管理。其最根本的特征：一、国家代表性。既这种活动是代表国家或者政府的一种公共事务管理活动，而非个人或者国家行政机关的团体行为。从行为性质来看，从事公务这种活动实质上是国家权力的一种体现或者是由国家权力所派生出来的权力的一种体现。二、管理性。“对公共事务进行管理，管理的对象既可以是国家事务也可以是社会公共事务，管理的范围涉及政治、经济、文化、科技、军事、卫生、体育等。”[⑤]只有同时具备以上两个特征，才能将一种行为认定为从事公务的行为。

对于像本案一样的国有控股、参股公司中的工作人员要认定为国家工作人员除了要受特定的主体委派外，还必须在国有控股、参股公司从事公务。本案被告人王某作为某二级分行高管，按照公司法的规定，其代表该二级分行的利益，对该二级分行负责，其不能由某个股东包括国有单位来任命或者委派，所以其上任形式是依法聘任，并不是其它形式如任命、指派提名、批准等。而王某所任的职位产生的范围也比较广，其主要职责在于处理公司日常事务，其行使管理活动的目的也并不是仅仅为了某个股东的利益。所以笔者认为，本案中王某的管理行为并不具有国家权力派出性特征，并不代表国有投资部分行使监督、管理权力。其实施的管理行为不代表国有单位意思，也不对国有单位负责，不应视为公务行为，所以其单纯利用职权收受他人财物，不应当以国家工作人员论。

结语

在目前市场经济蓬勃发展的情况下，国家在保护国有经济的同时，对非国有经济应当进行平等的保护，国有控股、参股公司不能视为国有公司。而认定国有控股上市公司中“准国家工作人员”的身份，必须具备“受国有单位委派从事公务”的本质，司法实践中应对委派和从事公务的含义进行严格把握，受委派是从事公务的前提，从事公务是委派的内容。如果虽受委派但非从事公务，或者虽从事公司管理工作但不是国有单位的委派职权，不能视为受国有单位委派从事公务，也就不能以国家机关工作人员论。

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8、王思维：《“委派型”国家工作人员再认识》，《长春大学学报》，2007年第4期。

注释：

[①]《准确理解和适用刑事法律惩治贪污贿赂和读职犯罪—全国法院审理经济犯罪案件工作座谈会讨论办理贪污贿赂和读职刑事案件适用法律问题意见综述》，载最高人民法院刑事审判第一庭、第二庭编《刑事审判参考》(2002年第4辑)，法律出版社2002年版，第214页。

[②]《经济犯罪案件中的法律适用问题—全国部分法院经济犯罪案件审判工作座谈会研讨综述》，载最高人民法院刑事审判第一庭、第二庭编《刑事审判参考》(2004年第6集)，法律出版社2005年版，第3页。

[③]贾宇、舒洪水:《论刑法中“国有公司”及“受委派从事公务的人员”之认定》，《法学评论》2002年第3期，第16页。

[④]高铭暄,马克昌：《刑法热点疑难问题探讨》，中国人民公安大学出版社,2002年版，第874页。

[⑤]李晓明：《我国刑法中“国家工作人员”的再研究》，中国人民公安大学出版社，2002年版，第201页。

Author: Lawyer Jiang Xi, December 28, 2016

Abstract: After the restructuring of a certain bank in 2004, it was a state-owned holding or joint-stock company with the state as one of its shareholders. The conviction of economic crimes committed by senior management personnel using their positions depends on the main identity of the perpetrator. Starting from current criminal theory and judicial practice experience, this article discusses how to identify the nature of a certain bank and how to identify executives in state-owned holding and joint-stock companies who use their positions to commit economic crimes.

Keywords: state-owned company; Holding; Party Committee; delegate

1、 Basic Case and Debate

From 2007 to 2009, during his tenure as a senior executive of a second tier branch of a certain bank, Wang used his position to seek benefits for others and illegally received a total of 4 million RMB from others. The People's Procuratorate where the branch is located has filed a public prosecution against Wang for bribery. The first instance court held that the bank was originally a solely state-owned commercial bank and was a state-owned joint-stock commercial bank after September 14, 2004. The defendant Wang was a person who worked in a state-owned company before the restructuring of a certain bank. After the restructuring of the bank, the secondary branch of the bank was no longer a state-owned company under criminal law. Although Wang was no longer a person who worked in a state-owned company, he served as a senior executive of the secondary branch and was appointed by the party committee of a certain level branch of the bank. The nature of the position was to be appointed to engage in public affairs, It should be based on national staff. The defendant was sentenced to 15 years in prison for the crime of bribery. Wang appealed and believed that there were issues with the determination of the nature of the criminal subject by the prosecution authorities in this case, and that the prosecution should be initiated for the crime of bribery by non state officials. Because a certain bank is a state-owned capital holding company, and its appointment form is legal appointment, not other forms such as appointment, appointment, nomination, approval, etc., the so-called "first level branch party committee research decision" cannot indicate its nature of being appointed by state-owned capital to engage in public affairs. From the above, it can be seen that there are two main views on the nature of Wang's behavior: one view holds that Wang constitutes the crime of bribery; Another view is that Wang constitutes the crime of bribery for non state officials.

2、 Theoretical Development of this Case

From the situation of this case, the focus of the dispute lies in whether Wang, as a senior executive of a second level branch of a certain bank, belongs to the personnel appointed by state organs, state-owned companies, enterprises, and public institutions to engage in public service by non-state-owned companies, enterprises, public institutions, and social organizations as stipulated in Article 93 (2) of the Criminal Law. Therefore, the definition of national staff appointed to engage in public service has become a key issue.

（1） State owned companies and enterprises in the sense of criminal law

According to the Company Law and Criminal Law of our country, a state-owned company refers to a company whose property belongs entirely to the state, including a state-owned sole proprietorship limited liability company established solely by authorized investment institutions or authorized departments of the state; A limited liability company jointly established by 2-50 state-owned investment entities; And all assets established through sponsorship are state-owned joint stock limited companies. State owned enterprises refer to economic organizations whose assets belong to the state and are engaged in non corporate production, operation, or service activities. The so-called non-state-owned company refers to a company whose assets do not belong to or are not fully owned by the state, including private, wholly foreign-owned, Sino foreign cooperative, Sino foreign joint venture, limited liability company jointly established by state-owned and non-state-owned investment entities, or joint stock limited company established as the initiator. A limited liability company established through public offering, some of which are publicly offered to the public, is not a state-owned company. The so-called non-state-owned enterprises refer to economic organizations whose property does not belong to or is not entirely owned by the state and engaged in non corporate production, operation, or service activities.

So the author believes that state-owned companies and enterprises refer to organizations established with the goal of achieving national interests, which are invested by the state and their property belongs to the state. Its scope is not difficult to define. That is, it must be a company or enterprise whose property fully belongs to the state, and a company or enterprise controlled or participated in by state-owned assets is not a state-owned company or enterprise in the sense of criminal law. The basis for making the above understanding is as follows:

1. Meet the requirements of the principle of legality for crimes and punishments. One of the contents of the principle of legality for crimes is to require legislation to have clarity. Article 93 of the Criminal Law of our country stipulates that the so-called state personnel refer to personnel engaged in public affairs in state organs. Personnel engaged in public service in state-owned companies, enterprises, public institutions, and people's organizations, as well as personnel appointed by state organs, state-owned companies, enterprises, and public institutions to engage in public service in non-state-owned companies, enterprises, and public institutions, as well as other personnel engaged in public service in accordance with the law, shall be considered as state employees. However, due to the uncertainty of the extension of "state-owned companies and enterprises" in the criminal law, the definition of state-owned companies and enterprises is also unclear, which is clearly not in line with the principle of legality for crimes and punishments. The shares of shareholders in state-owned holding companies and enterprises are subject to change. Shares that were originally state-owned shares may become state-owned companies or enterprises without holding shares due to the transfer of shares by the shareholders, or even become joint-stock companies or enterprises without state-owned shares. Whether state-owned shares are in a controlling position in companies or enterprises is always in an uncertain state. If the term "state-owned companies or enterprises" in the Criminal Law covers state-owned holding companies or enterprises, it will make the provisions of the Criminal Law regarding relevant personnel in "state-owned companies or enterprises" as the subject of crime in an uncertain state, which will make this legislation violate the requirement of clarity in the principle of legality for crimes and punishments.

2. The relevant judicial approval has limited the "state-owned companies and enterprises" in the Criminal Law to solely state-owned enterprises. In May 2001, the Supreme People's Court approved the issue of how to convict personnel engaged in management work in state-owned capital holding or participating joint-stock limited liability companies who illegally occupy the company's property by taking advantage of their positions Personnel engaged in management work in limited liability companies controlled or shared by state-owned capital, except for those appointed by state organs, state-owned companies, enterprises, and public institutions to engage in public affairs, are not state employees. Those who take advantage of their position and illegally occupy their own property, with a relatively large amount, shall be convicted and punished for the crime of embezzlement in accordance with the provisions of Article 271 (1) of the Criminal Law, Personnel engaged in management work in limited liability companies controlled or participated in by state-owned capital, except for those appointed by state organs, state-owned companies, enterprises, and public institutions to engage in public affairs, are not considered state employees. According to the provisions of Article 93 (2) of the Criminal Law, personnel engaged in public service in state-owned companies and enterprises are originally considered as state employees. Therefore, this "Approval" essentially excludes state-owned capital holding or participating joint-stock companies from "state-owned companies and enterprises".

3. From the current judicial practice, the view held by most courts is that state-owned companies and enterprises in the sense of criminal law are all owned by the state. For example, at the National Symposium on the Trial of Economic Crime Cases by Courts held in 2002, the vast majority of participants believed that "the provisions of the Criminal Law should refer to companies established in accordance with the Company Law and whose property fully belongs to the state. Stock companies controlled or participated in by state-owned capital are not state-owned companies.", The attending representatives unanimously agreed that "state-owned companies only refer to limited liability companies established by state-owned sole proprietorships or two or more state-owned investment entities, as well as other joint-stock companies with all their shares owned by the state

4. The fourth section of the new Company Law of 2006 has special provisions for solely state-owned companies. The second paragraph of Article 65 of this Law stipulates that "a solely state-owned company referred to in this Law refers to a limited liability company that is solely invested by the state and is authorized by the State Council or local people's government to perform the duties of a contributor by the state-owned asset supervision and management institution of the same level of people's government." This article also clarifies that the property of a state-owned company belongs entirely to the state, that is, to the whole people, and that a solely state-owned company is a joint stock limited liability company controlled or shared by the state Limited liability companies are clearly distinguished.

In summary, based on the facts of this case, a certain bank was originally a solely state-owned commercial bank, and at the same time, the bank established a joint stock limited company through the initiation of establishment. On September 14, 2004, the China Banking Regulatory Commission approved the restructuring of a certain bank and its establishment of a certain bank limited liability company through division in the "Reply of the China Banking Regulatory Commission on the Restructuring and Restructuring of a certain bank and the Establishment of a certain bank limited liability company". The establishment of a certain bank limited liability company is a state-owned capital holding company, with over 70% of its Chinese owned shares being publicly issued, and the company's equity contains foreign shares and public shares, A secondary branch of the bank is a branch of the bank, and its corporate nature is consistent with that of the head office. It is a state-owned capital holding company, not a solely state-owned company, and is no longer a state-owned company in the sense of criminal law, let alone a state organ, enterprise, or public institution. However, in current judicial practice, it is common to treat state-owned holding companies, joint-stock companies, and enterprises as state-owned companies, and to artificially expand the scope of criminal intervention and criminal crackdown, which violates the spirit of legal provisions and the principle of restraint in criminal law. [③]

（2） The issue of determining the nature of the "Party Committee's research decision of a certain level branch"

1. The author believes that the "Party Committee" is not an agency of a state organ in the sense of criminal law, let alone a state organ or public institution. Because the Party Committee was established in accordance with the Party Constitution of the CPC, which clearly stipulates that the activities of the Party should be subject to the law, and the corporate structure of a bank in China is an independent civil legal person established in accordance with the Company Law, the above two are clearly different and cannot be confused.

Firstly, the Party committee organs do not belong to the "state organs" in the sense of criminal law. The definition of the scope of state organs must be based on the clear provisions of the existing laws. According to the provisions on state organs in Chapter III of the Constitution, China's state organs should include power organs, administrative organs, judicial organs, procuratorial organs and military organs, and CPC has not been listed as state organs. Moreover, Article 5 of the Constitution stipulates that "all state organs and armed forces, political parties, social organizations, and public institutions must abide by the Constitution and the law. All acts that violate the Constitution and the law must be investigated "It can be seen that, although organizations at all levels of the CPC play a leading role in China's political, economic and social life from the perspective of China's political system and national conditions, in terms of its nature, it is still a political party rather than a state organ. In combination with the party's executive procedures, actual content and role, it is better not to regard organizations at all levels of the CPC as state organs referred to in Article 93 of the Criminal Law." [④] Secondly, the Party committee organization is not a dispatched agency of state organs. According to the Constitution and relevant laws and regulations, the dispatched offices of state organs in China refer to the institutions set up by functional departments such as departments, bureaus, and departments within a certain administrative area according to their respective administrative management needs, to manage a certain administrative matter. The most common ones are police stations established by public security organs, tax offices established by tax departments, and industrial and commercial offices established by industrial and commercial departments, This clearly does not include the ruling party committee organization.

Based on this case, the author believes that the "Party Committee of a certain level branch" is not a representative organ of the ruling party at all levels or dispatched by it. According to the CPC Constitution, CPC organizations are divided into central organizations, local organizations and grass-roots organizations. In order to carry out work, party committees at or above the county level have set up some working departments, such as the Organization Department, Propaganda Department, United Front Work Department, etc. Among them, the Communist Party's representative offices are only dispatched by the party's provincial and autonomous region committees within each county, autonomous county, and city. So the so-called party committees at all levels can only be independent organizational systems, such as the Central Political Bureau, Secretariat, Provincial Party Committee, Municipal Party Committee, County Party Committee, Township Party Committee, etc. Those party organizations that are affiliated with government agencies, organizations, enterprises, and public institutions should maintain consistency with the nature of their institutions and departments because their staffing is affiliated with their respective units and departments. Due to the non-state-owned nature of units, the state guides, supervises, and manages these units. The management here only regards these units as a social organization for management. Because the staff of the CPC organs in such non-state-owned units are only an organization of party members and cannot directly lead the unit, the staff of the CPC organs in non-state-owned units cannot be regarded as state staff. In this case, because a certain bank is a non-state-owned company, the "Party Committee of a certain level branch" is only equivalent to the "Party Committee" of a general limited liability company, belonging to the grassroots organization of the Party in non-public economic organizations. In summary, the research decisions made by the party committee of a certain level branch have the nature of mass autonomy and do not represent the will of the state or the ruling party. Moreover, after the shareholding reform of a certain bank, if personnel appointments and dismissals are decided through the party committee, it is obviously not compatible with standardized corporate governance, because the executives of a certain bank are no longer cadres and do not have the meaning of lifelong tenure.

2. Determination of the Nature of "Delegation to Engage in Official Business"

According to Article 93 of the Criminal Law, there are three types of personnel who are considered as state employees: firstly, personnel engaged in public service in state-owned companies, enterprises, public institutions, and people's organizations. 2、 Personnel appointed by state organs, state-owned companies, enterprises, and public institutions to engage in public affairs in non-state-owned units, enterprises, public institutions, and social organizations. 3、 Other personnel engaged in public affairs in accordance with the law. The definition of "appointment to engage in official duties" should be analyzed from two aspects:

(1) Definition of delegation

The author believes that the definition of delegation should include the following points: 1. The subject of delegation is specific. The appointed subject must be a state-owned unit, including state organs, state-owned units, state-owned companies, enterprises, and public institutions, and must be in the name of the unit rather than an individual. 2. The method of delegation is effective. Both the delegating party and the delegating party have expressed their consent and are generally confirmed in writing. 3. The content of the delegation is legal. The content of the delegation does not exceed the scope of the delegating party's authority, and if it exceeds the delegated authority, such delegation does not have legitimacy. 4. The subordinate nature of the delegation relationship forms an administrative subordinate relationship between the delegating party and the delegating party. The delegating party must accept the delegated leadership and supervision, and the administrative subordinate relationship between the leadership and the delegating party, as well as between the management and the delegating party, is not an equal delegation or agency relationship in civil law. 5. The specificity of the delegation purpose. The purpose of appointment is to enable the appointed person to engage in official activities, such as leadership and supervision, at the national unit designated by the appointed unit, rather than directly engaging in production, labor, service, and other activities. They generally have the responsibility of supervising and managing state-owned assets. In current practice, there are two situations where state-owned companies and enterprises appoint personnel to engage in public affairs to non-state-owned companies or enterprises: firstly, state-owned companies and enterprises are entrusted by non-state-owned companies and enterprises to appoint personnel to engage in public affairs in order to complete certain tasks; 2、 State owned companies and enterprises appoint personnel to engage in public affairs to other enterprises based on the exercise of the rights of investors.

In this case, the first instance court did not specify the specific appointing party and the appointed party in the determination of the identity of the criminal subject. Even if the unit appointed is a first level branch or its party committee of a certain bank according to the ideas of the first instance court, and the appointed unit is a second level branch of the bank, it cannot constitute a substantive appointment, because according to the previous paragraph, the appointed person can only accept the appointment of state-owned units such as state organs, state-owned companies, enterprises, and public institutions, and non-state-owned units cannot become the subject of the appointment, The first level branch or its party committee of a certain bank clearly does not belong to the above list.

(2) Definition of "Engaging in Public Service"

In Article 93 of the Criminal Law, the term "engaging in public service" refers to the management, organizational leadership, supervision, and other management activities carried out on behalf of the state in public affairs. The essence of public service activities is the exercise of state power, and its service objects are the state and society. It is an activity that handles the exercise of state power, including both human and material management. Its most fundamental characteristic is: firstly, national representativeness. This type of activity is a public affairs management activity that represents the country or government, rather than individual or group behavior of state administrative agencies. From the perspective of behavioral nature, engaging in public affairs is essentially a manifestation of state power or a manifestation of power derived from state power. 2、 Managerial. To manage public affairs, the objects of management can be both national affairs and social public affairs, and the scope of management involves politics, economy, culture, technology, military, health, sports, etc. Only by possessing both of the above characteristics can a behavior be recognized as engaging in public affairs.

For staff members in state-owned holding and participating companies like this case, they must be recognized as national staff members. In addition to being appointed by specific entities, they must also engage in public affairs in state-owned holding and participating companies. The defendant in this case, Wang, as a senior executive of a certain secondary branch, represents the interests of the branch and is responsible for the branch in accordance with the provisions of the Company Law. He cannot be appointed or appointed by a shareholder, including a state-owned unit. Therefore, his appointment is in accordance with the law and not in other forms such as appointment, nomination, approval, etc. The scope of the position held by Wang is also relatively broad, and his main responsibility is to handle the daily affairs of the company. The purpose of exercising management activities is not just for the interests of a certain shareholder. So the author believes that Wang's management behavior in this case does not have the characteristic of national power dispatch, and does not represent the exercise of supervision and management power by the state-owned investment sector. The management behavior it implements does not represent the will of state-owned units, nor is it responsible for state-owned units, and should not be considered as official behavior. Therefore, it should not be treated as a state employee solely using its power to accept property from others.

epilogue

In the current booming market economy, while protecting the state-owned economy, the state should provide equal protection to non-state-owned economies. State controlled or joint stock companies cannot be considered as state-owned companies. To determine the identity of "quasi state staff" in state-owned holding listed companies, it is necessary to possess the essence of "being appointed by state-owned units to engage in public affairs". In judicial practice, the meaning of appointment and engaging in public affairs should be strictly understood. Being appointed is a prerequisite for engaging in public affairs, and engaging in public affairs is the content of appointment. If appointed but not engaged in official business, or if engaged in company management work but not authorized by a state-owned unit, it cannot be considered as being appointed by a state-owned unit to engage in official business, nor can it be considered as a staff member of a state organ.

Reference:

1. Wang Zuofu: "Practical Research on the Specific Provisions of Criminal Law", published by China Fangzheng Publishing House in 2003.

2. Gao Mingxuan and Mark Chang, editor in chief: "Criminal Law", published by Higher Education Press/Peking University Press in 2004.

3. Zhao Bingzhi, editor in chief: "Case Study of the Chinese Criminal Code - Corruption, Bribery, and dereliction of duty crimes", published by Peking University Press in 2008.

4. Zhao Bingzhi, Yu Zhigang, Sun Qin: "On the Definition of the Scope of State Personnel", Legal Science, 1999, Issue 5.

5. Zhu Jianhua: "Analysis of State owned Companies and Enterprises in Criminal Law", Modern Law, Issue 4, 2004.

6. Liang Hongxing, Jiang Tao: "Criminal Law Analysis of the Nature of Political Parties and Political Consultative Conference Organs", Journal of Fuzhou Party School, Issue 3, 2003.

7. Li Yuxian and Wu Xiaopeng: "Judicial Determination of State Personnel in State Owned and Jointly Owned Companies", Journal of Time Law, 2009, Issue 1.

8. Wang Siwei: "Re understanding of" Appointed "National Staff", Journal of Changchun University, Issue 4, 2007.

Comment:

[①] "Accurately Understanding and Applying Criminal Laws to Punish Corruption, Bribery, and Job Reading Crimes - A Summary of Opinions on the Application of Laws in Handling Corruption, Bribery, and Job Reading Criminal Cases at the National Symposium on the Trial of Economic Crime Cases by Courts", published in the Criminal Trial Reference of the First and Second Divisions of the Supreme People's Court (Volume 4, 2002), Law Press, 2002 edition, page 214.

[②] "Legal Application Issues in Economic Crime Cases - Summary of the Symposium on Trial Work of Economic Crime Cases in Some Courts of China", published in "Criminal Trial Reference" (Volume 6, 2004) compiled by the First and Second Divisions of the Criminal Trial of the Supreme People's Court, published by Law Press in 2005, page 3.

[③] Jia Yu and Shu Honghong: "On the Recognition of" State owned Companies "and" Personnel Appointed to Engage in Public Service "in Criminal Law," Legal Review, 2002, Issue 3, p. 16.

[④] Gao Mingxuan, Mark Chang: "Exploration of Hot and Difficult Issues in Criminal Law", China People's Public Security University Press, 2002 edition, page 874.

[⑤] Li Xiaoming: "Re research on" State Personnel "in China's Criminal Law", People's Public Security University Press of China, 2002 edition, page 201.