In practice, there are different understandings of whether the staff members of state-funded enterprises should be determined to be non-state functionaries, or embezzlement, whether it is necessary to have the elements of seeking benefits for others, and how to understand the meaning of "violating state regulations". Based on actual cases, the author conducts a review of the above issues, in order to provide reference for the accurate determination of this type of behavior.
Keywords: state-funded enterprises, non-state employees, kickback fees, embezzlement.
Case Introduction] A Research Institute is a state-owned holding company, and its subordinate Materials Research Institute is a secondary department. In June 2018, in order to accelerate the market-oriented operation, the board of directors of Research Institute A decided to appoint Zhang as the director of the Institute of Materials through market-oriented selection, responsible for the operation and management of the institute. In December 2018, after the study of the Party Committee of Research Institute A, it was decided to appoint Wang as the Secretary of the Party Branch and Deputy Director of the Institute of Materials, representing him to engage in supervision and management work in the Institute.
From 2019 to 2022, during his tenure as the director of the Materials Research Institute of Research Institute A, Zhang took advantage of his position in charge of project procurement, recommendation of ** businessmen, project pricing, project acceptance, etc., to provide assistance to businessman Liu in undertaking and accepting projects, and determined a purchase price much higher than the market price with Liu, and the two parties were well aware of the difference in the project purchase price that was significantly higher than the market price. Zhang and Liu agreed to charge 50% of their normal income as a rebate, and also charged 50% as a rebate for the difference between the purchase price and the market price. In order to allow Liu to get the project money smoothly, Zhang found Wang, who was in charge of finance, and told him that the purchase price was much higher than the market price and the rebate received, saying that he could give him a 20% rebate, so that he could use his position to pay the project money for Liu as soon as possible. Wang then agreed. In the joint crime of the two, Zhang was the organizer, planner, and implementer of the entire criminal activity, and on the premise that the contract had been signed and performed in the early stage, and Liu had undertaken and completed the project and passed the acceptance, Wang cooperated with Zhang to accelerate the completion of the payment.
Since then, Liu has received a total income of 10 million yuan, of which 7 million yuan is normal income and 3 million yuan is the difference between the purchase price of the project and the market price. Liu gave Zhang a rebate of 5 million yuan as agreed, and it was directly transferred to Zhang's account. Later, Wang got 1 million yuan.
Analysis of Crimes] The staff of state-funded enterprises are divided into companies, enterprise staff (non-state employees) and state employees, among which the staff of companies and enterprises who violate state regulations and receive kickbacks owned by individuals in economic transactions are non-state employees, and if they are state employees engaged in the above acts, they should be found to be **;If a company or enterprise employee takes advantage of his position to illegally take possession of the property of his or her own unit, it is an embezzlement of his position, and if a state employee engages in the above-mentioned acts, it shall be found to be **. In this case, Zhang and Wang respectively used their positions to facilitate the joint pursuit of benefits for Liu in their economic dealings, and accepted kickbacks from him in violation of state regulations, of which Wang is a state employee in a state-funded enterprise, and Zhang is a staff member of a company or enterprise, and the two constitute a joint crime, and Zhang is the principal offender, and the two should be found to be the main offender Zhang's crime of being a non-state functionary. In addition, among the 10 million yuan of income obtained by Liu, 3 million yuan is the difference between the purchase price of the project and the market price, which is the property of the unit that Zhang obtained by fraud together with Wang and Liu in order to obtain more kickbacks, taking advantage of his position to falsely raise the contract, and Wang and Liu.
Difficulty Analysis] 1. Does the conduct of Zhang and Wang constitute ** or is it a non-state functionary**?
According to the second paragraph of Criminal Law article 163, employees of companies, enterprises, or other units who, in the course of economic dealings, take advantage of their positions to violate state regulations and accept kickbacks or fees in various names, which are owned by individuals, are to be punished as non-state functionaries. The second paragraph of Article 385 of the Criminal Law stipulates that state functionaries who, in the course of economic exchanges, violate state regulations by accepting kickbacks and fees in various names, which belong to individuals, shall be punished as **. The key to determining whether the staff members in the state-funded enterprises are state employees or the staff of companies and enterprises (non-state employees) in economic transactions depends on whether the identity of the staff members in the state-funded enterprises is whether they are state employees or employees of companies and enterprises (non-state employees). and where they are state employees, apply the provisions of paragraph 2 of Criminal Law article 385, and make a designation of **;and where they are employees of companies or enterprises, the provisions of paragraph 2 of Criminal Law article 163 are to be applied, and they are to be found to be non-state employees**.
According to the Opinions of the Supreme People's Court and the Supreme People's Court on Several Issues Concerning the Specific Application of Law in Handling Cases of Job-related Crimes in State-Funded Enterprises, state functionaries in state-funded enterprises include personnel engaged in public affairs in state-owned companies and enterprises;Personnel appointed by state-owned companies, enterprises or other state-owned units to engage in official business in state-owned holding or shareholding companies and their branches;Persons engaged in public affairs on behalf of state-owned holding or shareholding companies and their branches with the approval or research decision of the organization responsible for the management and supervision of state-owned assets in state-funded enterprises. Among them, the first two categories of personnel are generally not difficult to identify, and the difficulty is the identification of "representative" state functionaries.
The key to identifying "representative" state functionaries is the correct definition of "organizations in state-funded enterprises that are responsible for managing and supervising state-owned assets". The first view is that the "organization" here refers to the party committee and the party-government joint committee within the state-funded enterprise at the higher level or at the same level. The second view is that the "organization" here includes not only the party committees and the party-government joint committees in state-funded enterprises, but also the shareholders' meetings, the board of directors, and the board of supervisors of the company. The shareholders' meetings, board of directors, and boards of supervisors of state-funded enterprises, especially state-owned holding companies, are mainly composed of personnel appointed by the state-owned investors, who mainly represent the will of the state-owned investors and are responsible for managing and supervising state-owned assets.
The author agrees with the first viewpoint for the following reasons: First, the shareholders' meeting, the board of directors and the board of supervisors of a state-owned holding company and a shareholding company are the management, decision-making and executive organs of the entire company, representing the interests of the whole company, including non-state-owned assets, rather than simply being an organization that manages and supervises state-owned assetsSecond, according to the organizational principle of party management of cadres, state-funded enterprises generally have party committees, with party committees and party-government joint committees within state-funded enterprises as the main body of appointment, which not only reflects the actual operation and management of state-funded enterprises, but also embodies the substantive requirements for the identification of state functionaries engaged in public affairs, and can ensure the legitimacy, certainty, and restraint of the scope of designation. Therefore, the shareholders' meeting, the board of directors, and the board of supervisors of a state-funded enterprise, including the personnel organization department of the enterprise, are not qualified to appoint the entity.
In this case, the state-owned holding A research institute where Zhang and Wang worked was a state-funded enterprise. First of all, Zhang was appointed as the director of the Materials Research Institute of his subordinate secondary department after the research and decision of the board of directors of Research Institute A, and he belonged to the company and enterprise staff in the state-funded enterprise, and met the main elements of the crime of non-state functionary. Secondly, Wang's appointment as secretary of the party branch and deputy director of the Materials Research Institute was appointed by the research and decision of the Party Committee of the A Research Institute, and it belongs to the organization that has the responsibility of managing and supervising state-owned assets in the state-funded enterprises. At the same time, according to Article 11 of the Opinions of the Supreme People's Court and the Supreme People's Court on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Commercial Bribery, where a non-state functionary conspires with a state functionary to use their respective positions to facilitate the interests of others and jointly accept property from others, criminal responsibility shall be pursued in accordance with the nature of the crime of the principal offender. Specifically, in this case, Zhang and Wang took advantage of their positions in their economic dealings, violated state regulations, and jointly carried out the act of accepting kickbacks and belonging to individuals. Among them, Zhang, as the director of the institute, was the initiator of the criminal intent and the leader of the criminal act, and Wang only cooperated with him to complete the accelerated payment of the project money, and Zhang received 80% of the kickbacks, and Wang only received 20%. Therefore, Zhang should be the principal offender and Wang should be an accessory, and Wang should be convicted of the crime of non-state functionary ** of Zhang, that is, the crime of non-state functionary ** committed by a public employee under the jurisdiction of the Supervision Commission in the course of exercising public power.
2. Do the staff of companies and enterprises need to have the elements of seeking benefits for others in their economic dealings?
Judging from the legal provisions, the second paragraph of Article 163 of the Criminal Law stipulates that the employees of companies and enterprises in economic transactions only have provisions on taking advantage of their positions, and there are no provisions on seeking benefits for others. Therefore, there is a view that as long as the company or enterprise staff receives various kickbacks and handling fees in economic transactions, it constitutes a company, enterprise staff, and whether it seeks benefits for others does not affect the application of this clause and does not need to be proved.
In the author's opinion, this view is incorrect. First, according to the provisions of the first paragraph of Article 163 of the Criminal Law, the staff of a company or enterprise takes advantage of their position to solicit other people's property or illegally accept other people's property to seek benefits for others, and the conduct of a relatively large amount constitutes the crime of non-state functionary. This crime is objectively manifested as taking advantage of one's position to solicit or illegally accept a relatively large amount of property from others to seek benefits for others. It can be seen that in this crime, whether it is soliciting or accepting property from others, the elements of seeking benefits for others must be met. Second, the provisions of paragraph 2 of Article 163 of the Criminal Law on the economic transactions of the employees of companies and enterprises are only a manifestation of the crime of non-state functionaries, and must also be based on the criminal law's criminal composition of the crime of non-state functionaries, that is, the elements of seeking benefits for others must also be met. In this case, in order to accept kickbacks, Zhang and Wang used the convenience of their respective positions to seek benefits for Liu in terms of project acceptance, pricing, acceptance, and payment of project funds, so they have the elements of seeking benefits for others.
3. The understanding of "violation of national regulations" by the staff of companies and enterprises in economic exchanges.
According to the second paragraph of Article 163 of the Criminal Law, the economic transactions of the employees of companies and enterprises are objectively manifested in the conduct of accepting kickbacks and fees in various names in violation of state regulations in the course of economic transactions.
First of all, according to Article 96 of the Criminal Law, the term "violation of state regulations" as used in this Law refers to administrative regulations, administrative measures, decisions and orders issued in violation of the laws and decisions formulated by the National People's Congress and its Standing Committee. Secondly, in the case of this crime, it refers to the violation of Article 7 of the Anti-Unfair Competition Law, according to which a business operator shall not use property or other means to bribe in order to obtain transaction opportunities or competitive advantages. In the course of trading activities, business operators may pay discounts to the counterparty or commission to the intermediary in an explicit manner. Where business operators pay discounts to trading counterparties or commissions to intermediaries, they shall truthfully record them in their accounts. Business operators who accept discounts and commissions shall also truthfully record them in their accounts. In other words, discounts and commissions can be received in an explicit and truthful manner, while rebates and commissions are not allowed to be received covertly outside the account. Thirdly, according to the relevant provisions, the so-called "kickback" refers to a certain percentage of the price of the goods that the operator secretly refunds to the other unit or individual in cash, in kind or by other means off-the-books when selling the goods. The so-called "off-the-books covertly" refers to the failure to clearly and truthfully record in accordance with the provisions of the accounting system in the financial accounts established in accordance with the law that reflect the income and expenditure of production and business activities or administrative institutions, including not recording in financial accounts, transferring to other financial accounts, or making false accounts.
In this case, the kickbacks received by Zhang were directly transferred to his personal account, and then privately shared with Wang, and were not truthfully entered into his unit's account, and were secretly received off-the-books, which violated Article 7 of the Anti-Unfair Competition Law and should be found to have violated national regulations.
IV. Distinguish between the crime of non-state functionaries and the crime of embezzlement.
Non-state functionaries** and the objects of embezzlement and infringement of duties intersect with each other, objectively they both take advantage of their positions, the scope of subjects is the same, and subjectively they also have the purpose of illegally occupying property. In practice, it is necessary to strictly grasp the three key differences between non-state functionaries** and the property embezzled by their duties, the different methods of obtaining property, and the different meanings of taking advantage of their positions, and analyze them in light of the specific circumstances of the case.
First, the property of a non-state functionary** on the party of the bribe giver may be either public property or personal propertyAssets embezzled by public office are the public property of the unit that the perpetrator is in charge of, manages, or handles. Second, non-state functionaries** objectively show that the perpetrator takes advantage of his position to seek benefits for others and accepts property from others, which is manifested as trading power for money;Embezzlement in public office is objectively manifested in the perpetrator taking advantage of his position in handling and managing the unit's property to embezzle, steal, defraud, or take possession of the property by other means. Third, "taking advantage of one's position" in the crime of non-state functionaries** includes taking advantage of one's position to be in charge of, be responsible for, or undertake a certain public affairs;In the crime of embezzlement in public office, "taking advantage of one's position" refers to taking advantage of one's position to supervise, manage, or handle one's own unit's property and convenience.
In this case, Zhang and Wang violated state regulations by accepting a kickback of 5 million yuan in their economic dealings with Liu, and the recovered deductions were not truthfully recorded in the accounts, but were secretly received off-the-books, and should be formally recognized as non-state employees**. However, according to the agreement between Zhang and Liu, 50% of the normal income of 7 million yuan and the difference between the purchase price and the market price of 3 million yuan were charged as rebates. Therefore, among the rebates of 5 million yuan, including 3.5 million yuan of normal income rebates and 1.5 million yuan of difference income rebates, these should be accurately distinguished and determined separately.
First of all, the rebate of 3.5 million yuan for normal earnings is a bribe paid by Liu to thank Zhang and Wang for taking advantage of their positions to provide help, and should be recognized as a non-state functionary**. Secondly, the rebate of 1.5 million yuan for the difference income together with the 1.5 million yuan obtained by Liu was the difference between Zhang and the deliberate increase in the purchase price of the project higher than the market price in order to obtain more rebates, and it was an additional amount that Company A should not have spent. Finally, Article 3 of the Supreme People's Court's "Interpretation on Several Issues Concerning the Determination of Joint Crimes in the Trial of Cases of Embezzlement in Public Offices" stipulates that in a company, enterprise, or other unit, a person who does not have the status of a state functionary colludes with a state functionary to take advantage of their respective positions to jointly illegally take possession of the unit's property as their own, and is convicted in accordance with the nature of the principal offender's crime. In this case, Zhang was the principal offender and Wang was an accomplice, so Wang should be convicted in accordance with Zhang's crime of embezzlement, that is, the crime of embezzlement committed by a public employee under the jurisdiction of the Supervision Commission in the course of exercising public power.
*:* Commission for Discipline Inspection and State Supervision Commission**.