Identification Of State Staff In State-Funded Enterprises

In the process of establishing and perfecting the socialist market economic system,China's state-owned Assets management system and the reform of the managing mechanism of state-owned enterprises have achieved satisfying results.The vitality,influence and control of the state-owned economy have been strengthened,and their dominant position in the national economy has been further stabilized.At the same time,however,the loss of state-owned assets is still relatively serious.State-owned assets and interests are still subject to various violations.The promulgation of the Law on State-owned assets of enterprises will deepen the reform and development of state-owned enterprises,prevent the loss of state-owned assets,and improve the modern enterprise system into the track of the rule of law.In order to connect with the reform of state-owned enterprises,the Supreme Court and the Supreme Procuratorate have issued the opinions on several issues,concerning the specific application of law in state-funded enterprises(hereinafter referred to as "the Opinions"),which break through the standards identified in previous judicial interpretations as State agents must be assigned to official duties.To identify the people who is approved or studied by an organization that is responsible for managing and supervising of state-owned assets in a state-funded enterprise,and to represent its personnel engaged in organizing,leading,supervising,operating and managing in state-owned holding,shareholding companies and their branches,as State agents.This has expanded to some extent,even redefining the scope of state staff.However,because the legal reform lags behind the economic reform,the two high opinions lack legal integration,and the gap between criminal legislation and criminal justice has not been eliminated,which has led to the problem that the academic circles have greater controversy over the corresponding concepts,the improper expansion of the scope of state staff in judicial practice,and the lack of uniform standards.In order to solve the problems above,we must proceed from the provisions of the two high opinions,reinterpret the judicial interpretation from the perspective of the doctrine of criminal Law,clarify the corresponding concepts,and make up for the shortcomings of the two high opinions which are not in harmony with the provisions of criminal law and do not connect with other laws.The "state-funded enterprise" in the criminal law should be interpreted as: "wholly state-owned enterprises,wholly state-owned companies,as well as state-owned capital holding companies and state-owned capital shareholding companies,which are directly funded by the state." "Excludes enterprises set up by state-controlled,equity-invested enterprises.The Supreme Court has the view that the "organization responsible for managing and supervising state-owned assets" in article 6 of the Opinion should be interpreted as including the "party committee and the Party and government Joint Meeting",which adheres to the principle of holding cadres,conforms to the actual situation of state-funded enterprises at present,has certain realistic rationality,but is not consistent in improving the independent legal personality and perfecting the reforms direction of modern enterprise management system.The Party Committee,as an organ of the Communist Party of China,does not belong to the State organs,but interprets the "organization with the responsibility of administering and supervising state-owned assets" as the party committee will lead to the inhormony between the Judicial Opinion and the article 93 of the criminal law.The "organization responsible for the managing and supervising of state-owned assets" in Article 6th shall be interpreted as "shareholders(large),Board of Directors,supervisory board".According to the provisions of the Company Law,shareholders(large),Board of Directors,supervisory board management,supervise the assets of the whole state-funded enterprises,it will also necessarily include the state part of the assets.However,not all managers who are approved by the shareholders(large),the board of directors,the supervisory board or the research decisions are State agents,and the "approval or study decision" in article 6th of the opinion must be the person nominated by the body representing the state in the performance of the funders ' duties.This means that the nomination of the body performing the funders ' duties is a prerequisite for the approval or decision of the organization.The institution performing the duties of the funders may become the appropriate subject of "appointment",and the method of nomination shall also conform to the form of "appointment".Such an interpretation would eliminate the non-harmonization between article 6th of the opinion and the norms of criminal law,so that the "approval or research decision of the organization which is responsible for the management and supervision of state-owned assets in state-funded enterprises" is covered by the meaning of "assignment" in the norms of criminal law.The understanding of "representing its organization,leadership,supervision,operation and management in state-owned holding,shareholding companies and their branches" should return to the essence of "official service",which is,to correctly understand this substantive element from the three aspects of "national" "management" and "competence",so as to make real use of the boundary function of this element.