The Study On Definition Of Identity Of Personnel Appointed By The State-owned Enterprises For Performance Of Public Duties

Taking Gong Zhijun bribery case as a studying material, this paper starts from the focus of controversy from both parties– how to define the identity of the person with such dual identities who is appointed to the state-owned holding enterprises by the state-owned enterprises and also accept the appointment of the board. It explains in detail a series of legal issues involved in the process of definition of identity of personnel appointed by the state-owned enterprises for performance of public duties. Combined with the Enterprises Law and other related civil and commercial legal theory, it comes up with specific methods to define the identity of personnel appointed by the state-owned enterprises for performance of public duties with a view to promoting improvement of state-owned asset protection system.This paper consists of four parts with about fifteen thousand words.The first part is facts of the case. This section details the basic information of the defendant, litigation proceedings and outcome of the trial of Gong bribery case. The second part is the difficult problems. This section bases on the fact that Gong has dual identities as the general manager appointed by the board of the holding enterprises and manager staff appointed by the state-owned enterprises for performance of public duties to extract the focus of the controversial case, which is the core issue in this paper—in the state-owned holding enterprises, how to define the identity of the person with such a dual identity who is appointed to the state-owned holding enterprises by the state-owned enterprises and also accepts the appointment of the board.The third part is applied research. This section discusses the legal issues involved in the definition of identity of the staff appointed by the state-owned enterprises. First, it makes the interpretation of state personnel in the criminal sense and restricts its range legally, then analyzes and defines the essential characteristics of state personnel as "public service." Second, it clarifies the personnel, who is appointed by the state-owned enterprises to non-state-owned enterprises engaged in official business, should be seen as state personnel. As the state personnel confirmed by law, the meaning of"appointment"and the four legal characteristics should be noted accurately when comes to the identification. Third, it should be further pointed out in practice that the personnel appointed by the state-owned enterprises to non-state-owned enterprises engaged in official business cannot simply be treated as state personnel because special attention should be paid to distinguish three exceptions. According to the "Enterprises Law" and other relevant laws and regulations, when the decision belongs to the internal candidates, the state-owned enterprises are not entitled to the appointment as one of the shareholders. Finally, it reaches the conclusion whether the personnel appointed by the state-owned enterprises to non-state-owned enterprises of joint venture, partnership, joint-stock engaged in official business can be seen as state personnel should be under the appropriate restrictions. To analyze the Gong's bribery case based on the theory, the author thinks that Gong is not only the general manager appointed by the state-owned enterprises to non-state enterprises engaged in public service, but also the manager appointed by the Board of non-state enterprises. According to China's "Enterprises Law" and other relevant laws and regulations, state-owned enterprises have no right to appoint personnel to be the enterprises' general manager as a shareholder. Gong's appointment comes from the board of directors. Therefore, there is no legal basis for the appointment, thus it is invalid. Gong cannot be identified as state personnel, so his bribery behave can only constitute bribery crime committed by enterprises personnel.The fourth part is the reflection and recommendations on the current protection system of state-owned assets. As the Supreme Court's judicial interpretation places restrictions on the scope of interpretation of state-owned enterprises, and "Enterprises Law" and other departments laws also complete the modern management models in regulating the business, both of which emphasize on the strict conditions of"legal appointment", resulting in the narrow of the scope of the identity of state personnel in criminal law. Currently, state-owned assets exist in the form of holding shares of joint-shocks. From the perspective of protecting state-owned assets, the author suggests that the state legislature should strengthen the combination of criminal law and civil law and improve the relevant legal basis of supervision and management of the state-owned assets, so as to ensure the security of state-owned assets.