我国刑法中“国家工作人员”的再研究

通过再次研究我国有关“国家工作人员”的刑事立法史和现行刑法第 93条的规定及相关的立法与司法解释 ,从宪法根据、学理和法理的角度界定国家工作人员、国家机关工作人员、准国家工作人员的概念、范围及逻辑关系 ,提出不宜将中国共产党的机关和中国人民政治协商会议等列为国家机关范围的建议 ,且在确定其国家工作人员身份时 ,将前者归属于政党或人民团体中 ,将后者归属于其他依法从事公务的人员。并建议将各级人大代表、签订用人合同的临时执法与司法人员、受委托管理经营国有财产的人员均纳入准国家工作人员的范围。

Re-study of the "Government officers" in China's Criminal Law

Through restudy of criminal legislation's history related to "government officers" in our criminal law and the ninety-third article of present Criminal Law as well as its related legislative and juridical interpretations,the article properly defines the notions,scopes and relationships of the government officers,national body's staff and quasi-national staff from the viewpoint of the constitutional basis,academic theory and legal theory.Especially,it suggests that the body of the Communist Party of China and that of the Political Consultation of Chinese People,etc,should not be covered in national body.Moreover,when identifying who is a government officer,the former should belong to political party or people's organizations and the latter the other staff enforcing public affairs according to law.At the same time ,the author suggests that persons be included in quasi-national staff as follows:delegates of the People's Representation Congress on different levels,temporary enforcing law and juridical persons executing employment contract and entrusted persons administrating state-owned property,etc.On objective analysis,the article will settle a part of disagreements in academic circles and in criminal judicature operating specific problems.