Author: Lu Huafu, Mao Ling See December 28, 2016

Interpretation of the relevant provisions of the Interpretation of the Second Paragraph of Article 93 of the Criminal Law of the People's Republic of China

Note: This article has won the first prize of the Criminal Professional Committee of Zhejiang Lawyers Association

Abstract: "Equal application of criminal law" is the basic principle of criminal law. The nature determination of compensation fees for land expropriation by village committees and other grassroots organizations is mainly the determination of the subject identity of village committees and other grassroots organizations. The same behavior will lead to completely different application of criminal law due to different identity determination. The staff of village committees and other grass-roots organizations are not state functionaries themselves, but in the Interpretation of the Second Paragraph of Article 93 of the Criminal Law of the People's Republic of China issued by the Standing Committee of the National People's Congress in 2000, the staff of village committees and other grass-roots organizations who assist the people's government in seven situations, including "management of land acquisition compensation fees", are regarded as state functionaries. The basic feature of the state staff is to be engaged in public affairs. The compensation fees for land acquisition include land compensation fees, resettlement subsidies, and subsidies for attachments and young crops on the ground. These three fees belong to different subjects and correspond to different management requirements. The management of the three fees by the village committee and other grassroots organizations may be either to assist the government in public affairs or to the autonomy of the village collective, The specific identification should be determined in combination with the characteristics of national public service and the basic characteristics of national staff.

Key words: land expropriation, grassroots organization, national staff, misappropriation and occupation

The Interpretation of the Second Paragraph of Article 93 of the Criminal Law of the People's Republic of China (hereinafter referred to as the Interpretation) made by the Standing Committee of the National People's Congress in 2000 stipulates that, "The villagers' committees and other village grassroots organizations who assist the people's government in the following administrative work are 'other persons who are engaged in public affairs in accordance with the law' as stipulated in the second paragraph of Article 93 of the Criminal Law:...... (4) Management of compensation fees for land acquisition Where a member of a village committee or other grass-roots organization of a village engages in the public service prescribed in the preceding paragraph and, taking advantage of his position, illegally occupies public property, misappropriates public funds, extorts property from others or illegally accepts property from others, which constitutes a crime, the provisions of Articles 382 and 3813 of the Criminal Law on the crime of embezzlement, 384 on the crime of misappropriating public funds, 385 and 386 on the crime of accepting bribes shall apply. " Although the Interpretation clearly defines that the village committees and other grassroots organizations' personnel assisting the people's government in the "management of land acquisition compensation fees" as "other personnel engaged in public service in accordance with the law" in the second paragraph of Article 93 of the Criminal Law, that is, the state functionaries in the criminal law, after all, it is still a kind of typed provision, which leads to different legal applications to the same criminal acts in the specific application process.

According to the Interpretation, the premise of the "national staff" theory in the process of "management of compensation fees for land acquisition" by the village committee and other grassroots organizations is to "assist the people's government in administrative work", while the basic orientation of the village committee and other grassroots organizations is self-management, self-education and self-service mass autonomous organizations, To some extent, it is intertwined to engage in autonomous affairs and "assist the people's government in administrative work" in the management of land acquisition compensation fees. How to distinguish which belongs to the autonomy scope of the village committee and which belongs to "assisting the government to engage in administrative affairs" in the process of "management of land acquisition compensation fees"? Different understandings of this issue will lead to completely different characterization and penalties for crimes involving embezzlement and misappropriation in the process of "management of land acquisition compensation fees". This article attempts to clarify the nature of the behavior of village committees and other grass-roots organizations in the management of land expropriation fees, and clarify their subject identity - that is, the state staff in the criminal law is still a general criminal subject - from the understanding of the state staff itself as the entry point, and in combination with the nature of village committees and other grass-roots organizations and the characteristics of land expropriation compensation fees, And then put forward the author's understanding of the nature of the crime involving land expropriation compensation fees, in order to help promote the perfection of relevant legislation and the unification of judicial practice.

1、 Main body identity of village committees and other grassroots organizations

For the identification of the crime of village committees and other grass-roots organizations involving land expropriation compensation fees, the first dispute is how to identify their subject identity in the process of the crime of land expropriation compensation fees, that is, whether they should be identified as the special subject of the state functionaries who are "other persons engaged in public affairs according to the law" as stipulated in the second paragraph of Article 93 of the Criminal Law, or just a general criminal subject.

（1） Connotation and characteristics of national staff

Article 93 of the Criminal Law stipulates that "State functionaries refer to those who are engaged in public service in State organs, those who are engaged in public service in state-owned companies, enterprises, institutions and people's organizations, and those who are assigned by State organs, state-owned companies, enterprises and institutions to non-state-owned companies, enterprises, institutions and social organizations to engage in public service, as well as other personnel who are engaged in public service in accordance with the law.". It can be seen from this provision that the premise of identifying as a national staff member must be those engaged in public affairs, and the current prevailing view is also to take the engagement of public affairs as the basis for identifying national staff members. Therefore, the author also agrees with the view that "engaging in public service" is regarded as the essential characteristic of state functionaries.

Public service itself is not a legal concept. According to the general understanding of public service, it includes national public service and collective public service. However, public service in criminal law must meet the requirements of "publicity" and be based on public power. Because whether from the public power protected by the criminal law or from the consideration of the official acts to be attacked, it is necessary to make certain restrictions on the launch of punishment, which is consistent with the modesty of punishment. Therefore, although "public service" can be understood as including national public service and collective public service in a general sense, public service in criminal law should be limited to national public service. The content of national public service is not unchangeable. With the deepening of economic and political system reform, the state society market ternary model has gradually formed. Previously, matters that originally belonged to the category of national public service are now more implemented through a large number of non-profit organizations (i.e. the third sector), such as the Bar Association The accountancy association and other various industrial autonomous organizations have begun to take the place of some affairs originally belonging to the national public service category in their duties, and assume the autonomy and self-discipline of the whole industry as non-governmental organizations. However, this part of the social field does not involve the public power factors that are traditionally backed by the national coercive force. Therefore, the author believes that public affairs should have the following characteristics: First, it is managerial, that is, it manages public affairs. The public affairs here are relatively extensive, which can be national affairs, social affairs and collective affairs. Their scope involves the management of politics, economy, culture, military, sports, health, science and technology, and various affairs related to social order; The second is the requirement of publicity, which means that such activities are carried out on behalf of the state with the public power of the state. It is an act related to the public power of the state, not an act on behalf of an individual, a collective, or a group. It is the concrete realization of state power.

It is not complete to determine whether they are national staff only by whether they are engaged in national public service, and they must also consider whether they have the characteristics of the staffing status of national staff. Although engaging in public affairs is the core of the duties of national staff, it is precisely because of the exercise of public affairs that we can perceive the specific existence of public power, so that the dignity and effectiveness of national public power can be demonstrated, and good national power is the basic guarantee for maintaining the order and security of the entire society at this stage of our mankind. Therefore, it is necessary to give special punishment to any criminal law related to the damage to the state power, and it is also necessary to regulate the state functionaries who directly and specifically exercise the state power with special subjects. However, with the enhancement of the whole society's civic consciousness and individual subject consciousness, the protection of basic human rights has gradually become the common understanding of our government and society today. The national power represented by the national interest is not absolutely the supreme interest, and the reason for suppressing basic human rights based on the national interest (and often the national interest is abstract and vague) is not absolutely sufficient. Therefore, the special regulation of state functionaries is not only because they exercise official duties representing the public power of the state, but also because of their own identity characteristics, which makes them enjoy stable wages and benefits that are difficult for general subjects to enjoy - such treatment enables state functionaries to ensure the stability and comfort of the middle class in the whole social hierarchy, And a certain degree of social honor - although its work content itself seems to be nothing special to ordinary people. Therefore, the criminal law has made more stringent requirements on the integrity of their posts than the general subject, which is consistent with the treatment they enjoy.

Therefore, in addition to the requirements for engaging in national public service, the conditions for several state functionaries included in Article 93 of the Criminal Law, or in the case of state functionaries, also require that they have the corresponding national personnel establishment and enjoy the conditions for the employment benefits supported by the state property, that is, they themselves have the status of state functionaries.

（2） Comparison between the staff of village committees and other grass-roots organizations and the national staff

According to the Constitution and the Organic Law of Villagers' Committees, villagers' committees are grass-roots mass autonomous organizations where village collective organizations exercise self-management, self-education and self service. They are responsible for handling public affairs and public welfare undertakings in the village, mediating civil disputes, assisting in maintaining public order, and reflecting villagers' opinions, requirements and suggestions to the government. We understand that there is no obstacle for the village committee to perform the above functions as official duties, but the official duties here are obviously not the official duties pointed out by the state staff in the sense of our criminal law, and do not have a direct connection with the state power and national representation. It is just an organizational setting for village collective organization members to achieve self-management. Compared with several state functionaries listed in Article 93 of the Criminal Law who enjoy fixed wages and benefits supported by state property, members of village committees and other grass-roots organizations are still farmers. The work of village committees is only a part-time job or an incidental affair. In many cases, especially in villages in remote areas, members of village committees do not even have wages, Not to mention receiving job training and assessment before performing their duties like national staff. For such subjects, if we require them to be treated the same as the state functionaries who enjoy fixed wages and benefits and regular assessment and training in criminal law, this is not the implementation and embodiment of the principle of equal application of criminal law, but a serious deviation. Therefore, there is an essential difference between the nature of the staff of village committees and other grass-roots organizations and the national staff as commonly understood.

Of course, the rural grass-roots organizations here do not only refer to the villagers' committees, but also include the village party branches, village economic cooperatives, economic cooperatives, agricultural and industrial joint enterprises, management and insurance associations, women's federations, league branches, militia platoons, villagers' groups and various associations. Because in practice, the personnel of these grass-roots organizations are often confused or overlapped with the members of the villagers' committees, and all exercise certain responsibilities in the villagers' self-management, In particular, the village party branch, as the grass-roots organization of the Communist Party of China in the countryside, and the village committee jointly exercise the villagers' autonomous management responsibilities. Therefore, the village committees and other grassroots organizations referred to in this paper also include the members of the above organizations.

（3） The possibility of the village committee and other grass-roots organization personnel being identified as national staff

According to the above understanding of the state staff, there seems to be no correlation between the village committees and other grassroots organizations and the state staff. However, because the township people's governments belong to the lowest level of administrative organs in China, their administrative work is directly facing the vast number of villagers, coupled with the restrictions of their own administrative resources and the complexity of rural affairs, Many of its administrative work has to be carried out with the assistance of village committees and other grass-roots organizations, As listed in the Interpretation of the Standing Committee of the National People's Congress on the Second Paragraph of Article 93 of the Criminal Law of the People's Republic of China, "management of funds and materials for disaster relief, emergency rescue, flood control, preferential treatment, poverty alleviation, migration and relief, management of funds and materials donated by the public welfare, operation and management of state-owned land, management of compensation fees for land collection, collection and payment of taxes on behalf, family planning, household registration and conscription" In general, it belongs to the category of national public service, with the characteristics of management and relevance of national power. Therefore, if only whether to engage in public service is taken as the standard for identifying national staff, then there is no problem for the village committee and other grass-roots organization personnel to be identified as "other personnel engaged in public service in accordance with the law" according to the second paragraph of Article 93 of the Criminal Law when they meet the seven situations of "assisting the people's government to engage in administrative work" defined in the Interpretation, And the interpretation itself has the effect of legislation. Therefore, it provides the possibility in fact and in law for village committees and other grass-roots organizations to become national staff.

However, because the personnel of village committees and other grass-roots organizations themselves are not included in the national staff establishment and do not enjoy the salary and welfare benefits supported by the state finance, their behavior is compared with the behavior of the national staff in the three situations listed in the second paragraph of Article 93 of the Criminal Law, and their corruption behavior in the process of accepting the entrustment to assist the government in management does not directly cause damage to the image of integrity of the whole country's officials, The damage to the public power of the state is obviously much less than that of the national staff on the payroll. Of course, from the perspective of empirical law, the author also has no intention to deny the provisions of the Interpretation on the identification of village committees and other grass-roots organizations as state functionaries. However, because the state functionaries are special subjects in the criminal law, they are more strict in conviction and sentencing than the general subjects. According to the modest nature of criminal punishment, when determining that village committees and other grass-roots organizations are engaged in the seven situations identified in the Interpretation, At least it should be strictly controlled.

2、 Specific Identification of Crimes Involving Compensation Fees for Land Expropriation

From the above analysis, it can be seen that village committees and other grassroots organizations are not national staff themselves, but they have achieved their status as national staff by assisting the people's government to perform national duties. The following section will mainly identify the criminal nature of land expropriation compensation fees from their nature in the whole process of land expropriation fee management.

（1） The Nature of the Management of Compensation Fees for Land Expropriation -- State or Collective Public Affairs

According to the provisions of the Constitution, the Property Law and the Land Management Law of our country, the state can expropriate or expropriate collective land and give compensation for the need of public interests. Therefore, the compensation for the land expropriated is an essential link in the process of national land acquisition, and the management of land acquisition compensation fees in the process of implementing specific compensation for the land expropriated is naturally one of the due contents of national official business. The village committee and other grass-roots organizations assist the people's government in the management of land acquisition compensation fees. Because the government's management and the village committee's assistance work together constitute the whole of land acquisition compensation, its leading behavior is the government's public service behavior. The village committee and other grass-roots organizations are also assisting in the implementation of the national public service, so the behavior of the village committee and other grass-roots organizations also reflects the representativeness of the country, It should also be recognized as a state official act.

However, land acquisition compensation fees are a collective concept. According to the provisions of the Land Management Law, land acquisition compensation fees include land compensation fees, resettlement subsidies, land attachments and young crops subsidies. At the same time, the Regulations on the Implementation of the Land Management Law stipulates that the land compensation fees shall be owned by rural economic organizations; The compensation fees for the ground attachments and young crops shall belong to the owners of the ground attachments and young crops. The resettlement subsidy for land requisition must be used for a specific purpose and may not be used for other purposes. If the persons who need to be resettled are resettled by rural collective economic organizations, the resettlement subsidies shall be paid to the collective economic organizations, which shall manage and use them; In case of resettlement by other units, resettlement subsidies shall be paid to the resettlement units; If there is no need for unified resettlement, the resettlement subsidy shall be paid to the individual resettled or used to pay the insurance expenses of the resettled after obtaining the consent of the resettled. The municipal, county and township (town) people's governments shall strengthen supervision over the use of resettlement subsidies. It can be seen from this that the nature of these three costs is not completely consistent. The land compensation fee payee is directly a rural economic organization. The resettlement subsidy belongs to different resettlement methods, while the subsidy for land attached crops and young crops is directly owned by the owner. At the same time, the second paragraph of Article 59 of the Property Law stipulates that the use and distribution of land expropriation compensation fees and other fees shall be decided by the members of the collective through legal procedures. Therefore, the use and distribution of land acquisition compensation fees and other fees is also a matter of village collective self-determination. Therefore, the "management of land acquisition compensation fees" by village committees and other grass-roots organizations is not entirely a state official act. It should also be determined whether the behavior of village committees and other grass-roots organizations in the process of managing and using land compensation fees conforms to the "assisting the people's government" in the "management of land acquisition compensation fees" specified in the Interpretation, in combination with the characteristics of the state official business and the nature of the management behavior itself.

（2） Specific conviction

According to the Circular of the Supreme People's Procuratorate on Implementing the Interpretation of the Standing Committee of the National People's Congress on the Second Paragraph of Article 93 of the Criminal Law of the People's Republic of China, "Villagers' committees and other village grassroots organizations assist the people's government in the interpretation" The cases of illegal possession of public property, misappropriation of public funds, extortion of property from others, or illegal receipt of property from others, which constitute crimes, shall be directly accepted, and the provisions of Articles 382, 383, 384, 385, and 386 of the Criminal Law shall apply respectively The crime of accepting bribes is put on file for investigation. " Therefore, the author also mainly discusses the identification of suspected corruption, misappropriation of public funds, and bribery in the process of land acquisition compensation cost management; At the same time, in order to more clearly present the criminal context involving land expropriation, the author first gives a typological analysis of the costs involved.

1. Crimes involving land compensation

As for the part of land compensation fees, since the Regulations on the Implementation of the Land Management Law clearly stipulates that the land compensation fees are owned by rural economic organizations, the ownership of the funds has changed from the original state ownership to the village collective ownership since they were entered into the village collective account. Of course, since the acquisition of land compensation is accompanied by the loss of the land on which the village collective relies, which means that the land has weakened the security function for the villagers, many places have also made strict restrictions on the management and use of land compensation, As pointed out in the Notice of Zhejiang Provincial People's Government on Strengthening and Improving Land Acquisition: "...... The land compensation fee is owned by the rural collective economic organization, and no other unit such as towns and villages may withhold or withhold in disguised form. The amount, distribution and objects participating in the basic living security of the land compensation fee should be included in the content of the village affairs disclosure. The land compensation fee should be included in the management of the public accumulation fund, which should be used exclusively for the purpose of participating in the insurance, development of production, and public welfare construction of land requisitioned farmers. It should not be divided equally among households, nor should it be listed as a collective economic debt Clearing up the arrears... "Although the provision has special requirements for the management and use of land acquisition compensation fees, we can also see from it that the management and use of the fees is still within the scope of village collective organization autonomy. Although it also involves administrative matters, it is not exercised on behalf of the state, and does not have the relevance of national public power. Therefore, the author believes that the management of land compensation fees by village committees and other grass-roots organizations should be recognized as the category of village collective public affairs.

However, in judicial practice, some courts believe that the management of land acquisition compensation fees should be recognized as an official act to assist the people's government in administrative management before the village collective has withheld the land acquisition compensation fees. The author believes that the provision is unreasonable and expands the scope of national public service. Because once the land compensation fee is entered into the village collective account, it has completed the transformation of its nature. As for whether to retain and how much to retain, it should be a matter of self-determination for the village collective organization. It is obviously collective funds here, and it is also obviously inconsistent with the target of the state's official acts - public funds, which is unfair to the village committee and other grassroots organization personnel who lack the identity of the state, It also deviates from the principle of legality in criminal law.

Therefore, in the management process of village committees and other grassroots organizations involved in land expropriation compensation, if the land expropriation compensation has not been paid into the village collective account, they are suspected of taking advantage of their positions to illegally occupy public property, misappropriate public funds, ask for other people's property or illegally accept other people's property in the process of assisting the government to determine the compensation, and they meet other conditions for constituting a crime, they should be identified as corruption crimes Crime of misappropriating public funds or accepting bribes. However, this rarely happens, because after the government has determined the compensation plan for land acquisition, the land compensation funds are directly transferred into the village collective account. Except for the government officials who are specially responsible for the allocation of compensation fees, there are few opportunities for village committees and other grass-roots personnel to contact. Therefore, if crimes are involved in the management of land compensation fees, they are mainly suspected to constitute the crime of duty embezzlement, the crime of accepting bribes by non state staff, and the crime of misappropriating funds.

2. Crimes involving resettlement subsidies

The identification of the criminal nature of resettlement subsidies is relatively complicated. Although the Regulations on the Implementation of the Land Management Law stipulates that the resettlement subsidy for land acquisition must be used for the resettlement of villagers, and the resettlement is also the due obligation of the state to the farmers whose land has been expropriated. If the government is responsible for organizing the implementation, it will be deemed that there is no problem with the state's official business. However, in practice, the government is only responsible for the determination of the corresponding resettlement plan and the allocation of resettlement subsidies. When determining the resettlement plan, the government either chooses the rural collective economic organization to be responsible for the resettlement, or other units to be responsible for the resettlement, or the resettlement subsidies that do not require unified resettlement are directly distributed to the resettled individuals or used to pay the insurance costs with the consent of the resettled people. If it is determined that other units are responsible for resettlement, the resettlement subsidies are generally paid by the government directly to the resettlement units, which does not involve the management of resettlement subsidies by village committees and other grassroots organizations. Therefore, the following mainly analyzes the situation where the collective economic organizations are responsible for resettlement and the resettlement subsidies are directly distributed to the resettled individuals.

(1) The village collective is responsible for resettlement.

According to Article 26 of the Regulations for the Implementation of the Land Management Law, if the persons to be resettled are to be resettled by the village collective economic organization, the resettlement subsidies will be paid directly to the village collective economic organization and managed and used by the rural collective economic organization. The management and use of resettlement subsidies here belong to the state's official business or the village collective's official business, or the management act of assisting the people's government or the autonomy act of the village collective? In this regard, some people hold the view that resettlement subsidies are determined by the people's government at or above the provincial level and must be used for specific purposes. Village collective economic organizations only have the right to manage and use them, and do not have ownership. Before they are distributed to villagers, they can only be treated as resettlement funds, which belong to public funds; Moreover, the management and use of resettlement subsidies by village collectives are under the supervision of the government, so their behavior should belong to the management behavior of assisting the people's government. However, the author believes that the reason why the Regulations on the Implementation of the Land Management Law does not explicitly stipulate that resettlement subsidies are collectively owned as land compensation fees is that resettlement subsidies are not necessarily owned by village collective organizations, and there are also insurance fees that are directly paid to other resettlement units, or directly paid to the resettled individuals or as the resettled subject. However, if the village collective is responsible for resettlement, after the resettlement subsidy is allocated to the village collective organization, the village collective, as an independent legal subject, has the right to independently manage and use the cost as long as it is used for resettlement. Even as a resettlement fund, the author believes that it should not be recognized as national public funds.

Just as other units are responsible for resettlement and directly pay the resettlement funds to other units, it is obviously untenable whether other units responsible for resettlement have no ownership of the resettlement subsidies received. Since they are responsible for resettlement, of course, the cost should belong to them, and the same is true for resettlement by village collective economic organizations. In addition, the government only supervises the management and use of the cost, and does not substantially interfere with the use of the cost. The same view can be obtained from the Guiding Opinions on Improving the Land Requisition Compensation and Resettlement System (GTZF [2004] No. 238) issued by the Ministry of Land and Resources, It stipulates that "after the land acquisition compensation and resettlement scheme is approved by the municipal and county people's governments, the land acquisition compensation and resettlement subsidies shall be allocated to the rural collective economic organizations with land acquisition within the time limit prescribed by law. The local land and resources departments shall cooperate with the relevant departments such as agriculture and civil affairs to supervise the distribution and use of the land acquisition compensation and resettlement subsidies within the collective economic organizations with land acquisition". As for how the village collective organizations ensure the effective implementation of resettlement and the security of resettlement subsidies, it should be how to improve the decision-making procedures and supervision mechanism of the village collective. Therefore, the author believes that the government has completed its mission of exercising national official duties after determining the resettlement plan and allocating resettlement subsidies. The management and use of resettlement subsidies by the village committee should be within the scope of village collective autonomy. In the process of the village collective organization being responsible for the resettlement, the village committee and other grass-roots organization personnel involved in the resettlement subsidy crime should be treated as ordinary criminal subjects.

(2) The resettlement subsidies are directly paid to the resettled individuals or the insurance premiums of the resettled individuals are paid.

According to the provisions of the Regulations on the Implementation of the Land Management Law, if there is no need for unified resettlement, resettlement subsidies shall be paid to the resettled persons or used to pay the insurance expenses of the resettled persons after obtaining their consent. Specifically, there are two situations: first, when the compensation scheme is determined, the resettlement subsidy will be paid to the people to be resettled; second, the people to be resettled will give up the unified resettlement and require the village collective to pay the resettlement subsidy. For the first case, as the resettlement plan has made it clear that the resettlement subsidies directly belong to the resettled individuals, the main body of resettlement and resettlement at this time is the government and the resettled individuals, and the costs are not directly related to the village collective organizations, but in practice, the village committee and other grass-roots organizations may be responsible for the specific resettlement subsidies, In this case, the management of resettlement subsidies by village committees and other grass-roots organizations is an act of assisting the government, so it should be recognized as a state official act. Crimes involving resettlement subsidies committed in this process should be recognized by state staff. For the second case, the author believes that although the resettlement subsidy ultimately belongs to the resettled individual, the main parties of the resettlement subsidy at this time are only the village collective economic organization and the resettled individual, which is the independent behavior of the resettled individual after the resettlement plan clearly states that the collective economic organization is responsible for resettlement, and does not involve the national representation of village committees and other grass-roots organizations, It also does not affect the nature of the village collective's official behavior of the village collective responsible for resettlement and the management of resettlement subsidies in this process.

In addition, there is another situation, because the resettlement personnel mainly exist when the cultivated land is expropriated, but the land expropriated in practice is not all cultivated land, but also includes the unused land of villages, industrial and mining land and other non cultivated land. According to the Land Management Law and the specific provisions of each province and city, the resettlement subsidy is still required to be paid when the non cultivated land is expropriated, This leads to the fact that there is no resettlement problem after the village collective receives resettlement subsidies. Then how to deal with this part of expenses, or how to view this part of expenses, and whether the management of this part of expenses belongs to the national public service act of assisting the government or the collective public service act. The author believes that since there is no resettlement problem, it will lose the original significance of the resettlement subsidy. But since these non cultivated land are usually collectively owned and there is no specific individual to be paid for the resettlement subsidy, the cost should also be owned by the village collective. As for how to use and manage the cost, it should also be a matter of autonomy for the village collective. The village committee and other grassroots organizations involved in the cost crime, It should be treated as a general subject of crime.

3. Crimes involving ground attachments and subsidies for young crops

For the part involving the subsidies for aboveground attachments and young crops, from the nature of the subsidies for aboveground attachments and young crops, it is the direct compensation of the state for the losses of aboveground attachments and young crops caused by land expropriation. The main body of both parties is directly the state and the owners of aboveground attachments and young crops. The village committee and other grass-roots organizations only assist the government in the management and distribution of the fees, Its process directly reflects the representativeness of the country, and does not involve the autonomy of the village collective. Therefore, before the above ground attachments and crop subsidies are distributed to the villagers, they should be recognized as assisting the people's government in the public administration. During the period before the above ground attachments and crop subsidies are transferred to the village collective account but not distributed to the villagers, the village committee and other grassroots organizations are suspected of taking advantage of their positions to illegally occupy public property, misappropriate public funds Those who ask for or illegally accept the property of others, and meet the constitutive requirements of other crimes, shall be identified as the crime of corruption, misappropriation of public funds or bribery, and there is no crime of official embezzlement, bribery of non-state personnel or misappropriation of funds.

The above is a typological model analysis of crimes involving various expenses of land expropriation compensation. In reality, because the expenses of various items of land expropriation compensation are generally transferred to the village collective account, and because the village collective often has only one basic account, there is confusion not only between the land expropriation compensation expenses of various items, but also with other original collective funds of the village collective. As a result, the money directed by related crimes is often mixed together, which may involve not only the crime of land compensation, but also the crime of resettlement subsidies, subsidies for crops and young crops attached to the land, and even the original collective funds of the village. This will face the problem of how to determine the criminal nature if the above two or three expenses are involved. In specific judicial practice, some courts use the subjective state of the perpetrator when committing a crime to distinguish the appropriation and misappropriation of the above specific funds. If there is evidence to prove that it clearly points to the compensation fees for land expropriation, it will be identified as a crime involving the compensation fees for land expropriation, otherwise it will be identified as a crime involving the relevant collective funds. This practice is in line with the requirements of the criminal law for the consistency of subjective and objective in the determination of crimes, and is presumed to infringe on lesser legal interests when it cannot be proved that the crime specifically points to money, which is in line with the requirements of the criminal law for modesty.

Therefore, the author believes that when it is impossible to distinguish which specific fees are involved in the specific determination of the crime involving compensation fees for land expropriation, if the amount involved falls within the scope of the amount of the lighter legal interests, then it should be determined in the case of infringement of the lighter legal interests. To be specific, after the land compensation fees are paid to the village collective organizations, if the above fees are involved in embezzlement and misappropriation, if it is impossible to distinguish which part of the money is involved, and the amount of misappropriation can be included in the scope of land compensation fees, then it should be identified as only involved in the embezzlement or misappropriation of land expropriation compensation fees. If there is an excess part, it should be identified according to the other fees involved.

3、 Conclusion

The provisions of Article 93 of the Criminal Law on the scope of state functionaries and the rationality of the Interpretation itself will not be commented for the time being. From the perspective of positive law, after all, positive law is the starting point of all legal thinking. Laws that have been formulated and are still in force should be implemented and observed. Therefore, the author has no intention to deny the provision that village committees and other grassroots organization personnel use the theory of "national staff" in the process of assisting the people's government to engage in national public affairs. However, due to the abstract nature of the provisions of the Interpretation, although the Interpretation has made typological provisions on the circumstances under which village committees and other grassroots organization personnel should be recognized as national staff, However, this still cannot eliminate the dispute over this issue in criminal justice practice, especially the problem of determining the nature of crime in the process of "management of land acquisition compensation fees", which is mainly discussed in this paper. Due to different understanding of the nature of state affairs and the management of land acquisition compensation fees, there are different practices in the identification of charges and the application of penalties in specific judicial practice, This not only infringes the right of "equal application of criminal law" enjoyed by those who apply criminal law, but also greatly infringes the unity and seriousness of criminal law. Therefore, the author hopes that through the discussion of this article, it will help to attract the attention of the relevant legislative departments and further improve the relevant legislation and unify the specific judicial application.

Notes:

[1] The author believes that the "expropriation" used in the interpretation should be understood as "expropriation", because the expropriation does not involve the change of land ownership, and the result is only the short-term loss of the land use right of the expropriated, and does not involve the payment and management of land compensation fees, resettlement subsidies and other fees. Moreover, the Land Management Law mainly refers to the calculation and management of land compensation fees in the case of land acquisition, which can also be confirmed by the Constitution Amendment (IV), Property Law and other relevant laws and regulations. Therefore, this article also mainly uses the meaning of "expropriation" to discuss it.

[1] If it is considered to be within the autonomy scope of the village committee and involved in embezzlement or misappropriation, it is only suspected to constitute the crime of job embezzlement and misappropriation of funds. If it is considered to be "assisting the people's government in administrative work", it is suspected to constitute the crime of corruption and misappropriation of public funds. This will lead to completely different criminal consequences. If the same act of misappropriation is identified as the crime of misappropriation of public funds, its basic sentencing range is not more than five years of fixed-term imprisonment, of which the maximum sentencing range with aggravating circumstances is life imprisonment; The basic sentencing range of the crime of misappropriation of funds is only three years or less of fixed-term imprisonment or criminal detention, and the sentencing range of aggravating circumstances is only three to 10 years of fixed-term imprisonment, obviously the two cannot be compared.

[1] At present, there are three main views on whether the personnel of grass-roots organizations such as village committees belong to the national staff: first, the negative view that the grass-roots organizations such as village committees are not level one political power organizations and their personnel should not be included in the scope of national staff; The second is to affirm that those who hold this view believe that although the members of the village committee and other grass-roots organizations do not belong to the first level political power organization, they are elected by the masses in accordance with the Organic Law of the Village Committee, and are entrusted by governments at all levels to engage in a large number of administrative affairs, representing a certain government image, and must be strictly managed; The third is the compromise theory. Those who hold this view believe that engaging in public affairs is the essential feature of national staff. This kind of public affairs is limited to national public affairs, not collective public affairs. However, when village committees and other grass-roots organizations are entrusted by the government to engage in national affairs such as family planning management, they are engaged in national public affairs and should be recognized as national staff. See Zhao Bingzhi's Typical Case Study of Chinese Criminal Law - Corruption, Bribery and Dereliction of Duty (Volume V), Peking University Press, 2008, page 60.

[1] Zhao Bingzhi, Yu Zhigang, Sun Qin: On the Definition of the Scope of State Personnel, Legal Science, 1999, Issue 5, page 118.

[1] Kang Cheng: On "Public Affairs" in Criminal Law, Modern Law, No. 7, 2008, page 87.

[1] Lin Jiekun: On the Legal Identification of State Personnel, Sun Yat sen University Newspaper Series, 2002, Issue 4, Page 11.

[1] The second paragraph of Article 4 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Handling Criminal Cases of Bribery, Embezzlement and Misappropriation in Violation of the Company Law stipulates that "the Decision of the Standing Committee of the National People's Congress on Punishing Crimes in Violation of the Company Law" Article 12 "State functionaries" mentioned in Article 12 refer to those who exercise management functions and powers in state-owned companies, enterprises or other companies and enterprises and have the status of state functionaries, including those who are appointed or hired by state-owned companies or enterprises to exercise management functions and powers as representatives of state-owned companies and enterprises in Sino foreign joint ventures, cooperatives, joint-stock companies and enterprises and have the status of state functionaries. " This also emphasizes the requirements for the identity characteristics of national staff.

[1] Interpretation of Paragraph 2 of Article 93 of the Criminal Law of the People's Republic of China by the Standing Committee of the National People's Congress. Weidong: http://www.weidong.gov.cn/ReadNews.asp?NewsID=12178 (Accessed on April 9, 2009).

[1] The same view can be drawn from the provisions of Article 24 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Cases Involving Rural Land Contract Disputes (Fa Shi [2005] No. 6), It stipulates that "the village collective economic organization or the villagers' committee or the villagers' group may, in accordance with the democratic negotiation procedure prescribed by law, decide to distribute the land compensation fees received within the collective economic organization. Those who have been qualified as members of the collective economic organization when the land requisition compensation and resettlement plan is determined shall be supported if they request to pay the corresponding share". Obviously, the Supreme Court also regards the management of land expropriation compensation fees as an autonomous affair of the village collective.

[1] Zhejiang Provincial High Court, Zhejiang Provincial Procuratorate The Answers to Several Questions about the Law Applicable to the Villagers' Committees and Other Grass roots Organizations Who Use Their Power to Commit Crimes jointly issued by the Zhejiang Provincial Public Security Department pointed out that: "The embezzlement and misappropriation of land expropriation compensation fees by village grassroots organization personnel shall be deemed as the crime of embezzlement or misappropriation of public funds before the village collective has withheld the land expropriation compensation fees. After the land expropriation compensation fees are distributed to the village and the village collective has withheld them, the village grassroots organization personnel embezzle and misappropriate the funds that should be distributed to farmers, which shall be identified as the crime of embezzlement or misappropriation of public funds; misappropriation of the funds withheld by the village, which shall be identified as the crime of official misappropriation or misappropriation Determination of capital crime. " It is obvious that this is the boundary point to divide the national public service and the collective public service.

[1] Before the land compensation fee is withheld, if it involves misappropriation and corruption, its impact is indeed relatively large, but this is how to strengthen the supervision of land expropriation compensation and improve the decision-making process of village collectives, which is not related to the criminal law, and it can also be considered as a plot in the sentencing process, but the characterization of its behavior is absolutely not allowed to go beyond the provisions of the criminal law, Otherwise, it is an injury to the criminal law itself.

[1] He Weiya, Zhu Weichun: The Right and Wrong of Village Cadres' Compensation for Corruption of Land

http://www.hicourt.gov.cn/theory/artilce_list.asp?id=4636&l_class=6 Accessed on April 11, 2009.

[1] The second paragraph of Article 30 of the Measures for the Implementation of Land Administration in Zhejiang Province: "If a land user needs to arrange employment, the following methods can be used: (1) if the land user meets the employment requirements of the land user, the land user will have priority in employment; (2) entrust a labor employment service agency to arrange employment; (3) Other methods. The resettlement subsidy is paid to the unit that arranges employment. For those who seek employment on their own, resettlement subsidies shall be paid to them. The number of people to be employed shall be calculated according to the ratio of the area of cultivated land requisitioned to the average cultivated land of the original labor, and their agricultural household registration shall be transferred to non-agricultural household registration according to the relevant provincial regulations. " It can be seen that if other units are responsible for resettlement, resettlement subsidies will be paid directly to the units responsible for resettlement.

[1] Article 23 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Cases Involving Rural Land Contract Disputes stipulates that "the family contractors who have expropriated the contracted land according to law and abandoned the unified resettlement shall be supported if they request the employer to pay the resettlement subsidies they have received."

[1] Zhejiang Provincial High Court, Zhejiang Provincial Procuratorate The Public Security Department of Zhejiang Province jointly issued the Answers to Several Questions on the Law Applicable to the Villagers' Committees and Other Grass roots Organizations Who Use Their Power to Commit Crimes: "If there is evidence to prove that the subjective intention of the perpetrator clearly points to the land compensation fees, if the funds misappropriated or misappropriated are within the amount of the land requisition compensation fees, it shall be determined as the crime of embezzlement or misappropriation of public funds; if the excess part is determined as the crime of official misappropriation or misappropriation of funds. If there is no evidence to prove that the subjective intention of the perpetrator points to the land compensation fees, it shall be determined as the crime of official misappropriation or misappropriation of funds; if the amount exceeds the village collective funds, it belongs to the crime of land requisition The part of the compensation shall be determined as the crime of embezzlement or misappropriation of public funds. "

References:

1. On Crime and Punishment, written by Beccaria and translated by Huang Feng, Encyclopedia of China Press, 2003

2. Criminal Law, written by Qu Xinjiu, Chen Xingliang, Zhang Mingkai, etc., China University of Political Science and Law Press, 2008

3. Gao Mingxuan and Mark Chang: Criminal Law, Higher Education Press/Peking University Press, 2004

3. Zhao Bingzhi, Yu Zhigang, Sun Qin: On the Definition of the Scope of State Personnel, Legal Science, 1999, Issue 5

4. Lin Jiekun: On the Legal Identification of State Personnel, Sun Yat sen University Journal Series, 2002, Issue 4

4. Kang Cheng: On "Public Affairs" in Criminal Law, Modern Law, 2008, Issue 7

5. Ma Qingwei, Zhang Dongxia: Understanding of "Engaging in Public Affairs" in Article 93 of the Criminal Law -- Also on the Legislative Improvement of "Public Workers", China Public Security University News, 2005, Issue 5

6. Chief Editor of the First Criminal Division and the Second Criminal Division of the Supreme People's Court: Criminal Trial Reference (the first episode in 2005, the 42nd episode in total), Law Press, 2005

7. Zhao Bingzhi, Chief Editor: Case Study of China's Criminal Code - Corruption, Bribery and Dereliction of Duty (Volume V), Peking University Press, 2008

5. Interpretation of Paragraph 2 of Article 93 of the Criminal Law of the People's Republic of China by the Standing Committee of the National People's Congress http://www.weidong.gov.cn/ReadNews.asp?NewsID=12178 (Accessed on April 9, 2009)

6. He Weiya, Zhu Weichun: The Right and Wrong of Village Cadres' Compensation for Corruption of Land

http://www.hicourt.gov.cn/theory/artilce_list.asp?id=4636&l_class=6 (Accessed on April 11, 2009)

7. Zhang Jianbing: Determination of the Crime of Embezzlement and Embezzlement of Land Expropriation Compensation, China Audit, 2007, Issue 23