"And on the application of the people's Republic of China Criminal Law '' ninety-third section second of the interpretation of" understanding

 Since the implement of the criminal law of 1997, the village basic level organization -- the village committee and village Party branch members assist in Xiang, nationality townships, the town Party committee and government work and the management of village public affairs, whether to belong to the criminal law ninety-third stipulation "other engaged in public service according to law." the problem, because the provisions of the law is not clear, the relevant the judicial authorities took advantage of his position to the members of the villagers committee and village Party branch members, illegal possession of public property, embezzlement or bribery behavior should be convicted and punished the existence of different views, so that this kind of criminal case filing jurisdiction is unclear, the treatment is not the uniform application of the law, affect the case of severely dealt with according to law. Therefore, to explain the relevant departments and judicial organs of the NPC Standing Committee proposed. According to the 1981 National People's Congress Standing Committee "on the strengthening of the legal interpretation of the provisions of the resolution", all about the law itself needs to be further defined or supplementary provisions, are interpreted by the Standing Committee of National People's congress. The legislature in 1999 December will be "on" section second "of the people's Republic of China criminal law interpretation ninety-third (Draft) (hereinafter referred to as the draft)" submitted to the nine session of the National People's Congress Standing Committee at its thirteenth session. The meeting will draft issued provinces autonomous regions. Municipalities directly under the central government and the relevant departments of the central government to solicit the views of. After modification, the nine NPC Standing Committee fifteenth meeting, adopted in April 29, 2000.
    One, about the legislative interpretation problem
    In the draft in the process of soliciting opinions, some standing committee, departments and local governments to put forward: provided for in the second paragraph ninety-third of the criminal law is the "other personnel engaged in public service according to law", and "other personnel engaged in public service according to law" is not only the village grass-roots organizations, and city streets neighborhood organizations staff, only to the Village Grassroots draft organization personnel "in public" explained. Therefore, suggestions will be subject to "about whether the villagers committees and other grassroots organizations persons belonging to other personnel engaged in official business in accordance with legal interpretation" or "the second paragraph ninety-third of criminal law is applicable to the villagers committees and other grassroots organizations staff to explain". Considering the legislative interpretation should be the specific legal provisions relating to the meaning explanation, rather than for a concrete problem in the process of law applicable to explain, therefore, remains the "criminal law of the people's Republic of 'ninety-third' in the second paragraph explanation" (hereinafter referred to as the "interpretation"). "Explain" the start points out: "the National People's Congress Standing Committee discussed the villagers committee and village grassroots organization personnel engaged in what work belongs to the criminal law provisions of the second paragraph of the ninety-third 'in accordance with the law of other personnel engaged in official business,' explained below", so, put the "interpretation" scope very clearly the.
    It should be noted that, subject to the provisions of the second paragraph of the criminal law ninety-third "engaged in official business in accordance with the law of the people" is not only the villagers committees and other grassroots organizations, and other personnel, this should also explain. Considering the current judicial organs is reflected in the more prominent, is to be solved are "engaged in official business in accordance with the law of the people" of the villager committee and other members of the rural grass-roots organizations engaged in what work. Therefore, "explain" only on this issue made provisions, and not to "engaged in official business in accordance with the laws of the people" the full range of specified. As for the other are "engaged in official business in accordance with the laws of the people" the scope of the subject, some does not have problems in practice, some law has been clearly defined, and some also need further study.
    Two, villager committee organization of rural basic level personnel management of village public affairs work does not belong to the provisions in the second paragraph of the "criminal law ninety-third engaged in public service according to law" according to the "Village Committee Organization Law of villagers committee", the villagers self management, self education, self - Service organizations at the grassroots level. The village committee in accordance with the law, to manage the village land owned collectively by the peasants of the village and other property. Matters involving the interests of villagers, the village roads, such as establishment of the village collective enterprises, the villagers committee shall draw the villager congress, may apply for. The people's governments of townships, nationality townships, the town of support and help, the villagers committees in their work, but shall not interfere with the matters falling within the scope of the villagers self-government. The village committee members of the rural grass-roots organizations engaged in the village autonomy within the scope of the management of village public affairs and public welfare undertakings, development of various kinds of state affairs related to the implementation and to countries or on behalf of the government organization, leadership, supervision, management and staff of the interests of the masses and social and public affairs activity is completely different. Therefore, does not belong to the provisions of the second paragraph of the "criminal law ninety-third engaged in public service according to law".
    Three, the village committee members of the rural grass-roots organizations engaged in what work, belongs to the criminal law provisions of the second paragraph of the ninety-third "engaged in official business in accordance with the law personnel" as the village committee organization of rural basic level personnel engaged in the management of village public affairs work, does not belong to the provisions in the second paragraph of the "criminal law ninety-third engaged in public service according to law," considering the "Village Committee Organization Law of the people's government", villagers' committees have the obligation to assist in Township, nationality township, town work, "explain" in the provisions of the village committee members of the rural grass-roots organizations engaged in what work belongs to the criminal law provisions in the second paragraph ninety-third "engaged in official business in accordance with the laws of the people", the key to see whether it belongs to assist the government in the administration. Because, only in assisting the government engaged in administrative work, it can be the name of the government to participate in the organization, leadership, supervision, management and the interests of the masses and social development related national affairs and government affairs activities. It reflects the national organization of social work. Management functions. The criminal law of the second paragraph of the ninety-third "other personnel engaged in public service according to law" to "state functionaries", apparently referring to the affairs of state official and government affairs, not within the scope of the villagers self-government of village affairs.
    "Interpretation" in that village grassroots organization personnel must be in to assist the people's Government in the administration, is provided for in the second paragraph of the criminal law ninety-third "engaged in official business in accordance with the law of the people" at the same time, lists the following official work:
    1, disaster relief, rescue, flood prevention, special care, poverty, immigration, the management of relief funds and materials. Mainly refers to the village committee and Village Grassroots Organization to assist the people's government management issued through government channels under the disaster relief, rescue, flood prevention, special care. Poverty alleviation. Immigration. Relief funds and materials, not including the village self financing or directly with the village targeted aid the relevant property management.
    2 social charitable contributions to the cause of money and property management. Mainly refers to assist the people's government management by the government under the social donation welfare funds.
    The operation and management of the 3 state owned land. Mainly refers to the relevant provisions of the "land management law", to assist the operation and management of the government of state-owned land, not including the villagers' committee according to the "Village Committee Organization Law", "agricultural law", "land management law" and other regulations, contract management, the village collective land management, land management etc..
    Compensation fees for land requisitioned 4 management. Including the land for the country to the land compensation fees, resettlement fees, ground attachments and young crops compensation fee management.
    The 5 generation of sign, and remit tax.
    6 related to family planning, household registration, recruitment.
    Other administrative work to assist the people's Government in 7. For example, to assist the Township People's Congress government organizations at the county, the election. However, the village committee, village organizations at the grassroots level to the village grass-roots mass self-government organizations leadership election work of the organization, management, can not be considered in assisting the government engaged in administration.
    In the draft in the process of soliciting opinions, some members of the NPC Standing Committee, departments and local governments to think, the villagers committee and other members of the rural grass-roots organizations to state functionaries and the existing identity, enjoy the treatment and rights does not match. There is a need to explain, "interpretation" is not the village committee and other members of the rural grass-roots organizations, as national staff, but according to the provisions of the criminal law, when it is to assist the government in the administration, by taking illegal possession of public property, embezzlement, claim his property or accept bribes, which constitutes a crime, in the processing by state functionaries, application of criminal punishment about the crime of national staff.
    Four, the village committee and Village Grassroots Organization Staff
    China's rural grassroots organizations more, such as the village Party branch, village committee, village economic cooperatives, cooperative, agribusiness enterprises, Bulgaria, women's federations, Youth League branch, militia platoon, villager group and various associations. From the current situation, people in the village Party branch, village committee and village economic cooperatives, cooperative, agribusiness enterprises in charge of village economic activities of the body more problems. "The explanation" in the "village village of grass-roots organizations" mainly refers to the village Party branch, village committee and village economic cooperatives, cooperative, agribusiness enterprises in charge of village economic activities of the organization staff. Because, they are in the countryside power, may assist the government in the administration of personnel.
    Five, the village committee Village of grass-roots organizations by taking advantage of the crime in the management of village affairs, are not applicable to the "interpretation". "Explain" clearly stipulates: "the provisions of the preceding paragraph in the village committee, village grassroots organization personnel affairs, taking advantage of his position, illegal possession of public property, embezzlement, extort or accept bribes, which constitutes a crime, criminal law article 382nd and article 383rd of corruption, misappropriation of public funds, 385th 384th and 386th of the provisions of accepting bribes."
    Therefore, for the village committee, village organizations at the grassroots level management of village affairs, by taking advantage of how crime conviction and punishment question, does not belong to the criminal law ninety-third section second of the "explanation" category. But according to the relevant provisions of the criminal law, the village committee and village grassroots organization personnel using the convenience of duty, illegal possession of the village collective property, divert village collective funds, which constitutes a crime, the applicable criminal law 271st, 272nd respectively with embezzlement, misappropriation of funds of conviction and punishment.