国有资本控制公司中国家工作人员刑法甄别疑难问题研究

Hard Nut to Crack in Criminal Differentiation of State Personnel in Enterprises with State Capital Controlling Their Shares

国家出资公司中国家工作人员的身份确认不限于委派,更应强调国有资本代表权的授予。任命主体也不限于国有单位,国有资本控股、参股公司可以对国有资本运作的公务权力授权。国有资本控制公司中具有双重身份人员的主体认定,实际上无法根据其利用职务便利的性质进行研判,而应从国有资本是否实际受到侵蚀或实际损害的结果角度予以审视。

The status determination of state personnel in state-invested companies is not limited to appointment. The conferring of representation of state-owned capital is to be stressed all the more. The appointment subject is also not limited to state-owned entities. State-owned shareholding companies, whether controlling or un- controlling, may confer official right to state-owned capital operation. In fact, it is impossible to study and decide the subject determination of double status ofpersolanel in enterprises with state capital controlling their shares according to the nature of convenience in taking advantages of their positions. The subject determination is to be examined from the perspective of whether corrosion or damage to state-owned capital actually occurs.