Research On State Personel In China’s Criminal Law

"State civil servant" is a very important concept in china’s criminal law provisions. There are many crimes which "state civil servant" can commit in the penal code, which almost exist in all the sections of criminal law. Meanwhile, the scope of the "state civil servant " should be considered, and the argument of the scope would never stop. Especially with the deepening of the overall social transformation, the concept of "the state organs, state-owned companies, enterprises and institutions, organizations, business and the delegation " has also become increasingly complicated in the development of society, the concept of the "state civil servant " would be even harder. Furthermore, abstractness of the legislative and judicial formulation and complexity of practice decide the argument about the concept of "state civil servanf"and it would’t fninsh in one day. This article summerize the resent theories and practice and try to put forward some crude personal opinions.On this subject, this article is divided into six chapters:The first chapter of this article discusses the reason of choosing this topic and the meaning of studying this topic, it reviews research findings of the relevant studies and theoretical problems and this article studies the limitations of those studies, and pointes out the study path and research methods.The second chapter is historical etymologies:it studies the the history track of "state civil servant" in criminal law, as a representative of a country,"state civil servant" undertakes the management activities in behalf of countries.The history of "state civil servant" is almost as long as countries, in this sense, the starting point of this research starts from Qin dynasty for hoping to understand the complete picture of this concept. From this point of view, the history of the legislation makes the differences between Han period, Sui and Tang period, the period of Ming and Qing. The resent times are divided as the Republic of China and neo-nationalism period. From the angle of words, the "state civil servant " truly appears in modern times through a tortuous development period; and"the expansion to the shrink " era of diversified forms of ownership loosing and public ownership;" the shrink to the expansion "diversity in diversification social background.From the "officers, officials" to "state civil servant" the concept has changed, but the key point of punishing the "state civil servant" ideology has been embodied in each historical period. The third chapter for using the thoery of the other country:Germany, Japan and the area of Hong Kong, Macao and Tanwan. from the legislation of evolution, it not only observes certain rules or characteristic of china’s criminal law and provides the reference for improving the concept. This chapter is divided into Germany, Japan, Hong Kong, Macao and Tanwan parts. Germany part is tied to "state civil servant" crimes and development of notion of "state civil servant", the existing concept of "state civil servant" and the current concept of criminal law; Japanese part is a summary of the past period and the meiji restoration and the postwar period of the concept of current criminal law. As for other areas,there is briefly mention of Hong Kong, Macao and Tanwan.Chapter fourth to the fact that:the characteristic of "state civil servant".This chapter is based in our national conditions, adapt to the judicial practice needs and criminal law provisions of article93and judicial interpretations, supreme court and the supreme procuratorate’s guiding opinion, the doctrine based on the status. The current concept of "state civil servant" should be emphasized and lessen the form of identity, stress "undertake public affairs" on national staff in decision. On the basis of the characteristic of " undertake public affairs " of "state civil servant", the characteristic should be combined with public and identity. it try to divide " public affairs " into the government affairs and social affairs, a view to achieving the purpose to divide "state civil servant" and semi-"state civil servant".The fifth chapter of the forms:to affirmation extension of "undertake public affairs"and "state civil servant" should strictly restrict to the various power organs, administrative and judicial organs and the military authorities in public, and advocate the concept of semi-"state civil servant" as the buffer. In any state-owned company and enterprise, it states the views of the proprietorship, and explores the brief of the state institutions and organizations. On the appointed members, we should lighten the appointed form requirement, and stress the concept of"undertake public affairs". For the other "state civil servant","undertake public affairs"in accordance with law should sure the two characteristics of "undertake public affairs" and in accordance with law, it don’t free to expand the scope and should pay attention to sum up experience type, and it should divided from semi-"state civil servant".The sixth chapter, this chapter is not taking the old form of improving legislation, it studies the process by which we ignore for a long time. In criminal law,"undertake public affairs" has been no breakthrough, which we can not deepen the research of "state civil servant". As in criminal law of taiwan, the concept of "state civil servant" is the delineated by the administrative law. Its inspiration can also learn from the field of promotion of the "state civil servant" related theory as a deepening understand of criminal law. The affirm of "state civil servant" takes the "identity" as a factor, for the property of the organizations desides social role and status. For the various situations, the state legislation of "state civil servant" has a considerable abstractness, which is unavoidable.