Article 14 of the "People's Republic of China Law on Governmental Sanctions for Public Employees" (hereinafter referred to as the "Governmental Sanctions Law") provides that those who are sentenced to controlled release, short-term detention, or fixed-term imprisonment of less than three years for crimes of negligence shall generally be dismissed; Where the circumstances of the case are special and removal is more appropriate, dismissal may not be given, but shall be reported to the organ at the level above for approval. This article has attracted much attention because it involves the "job bowl" of relevant public officials. How to understand the specific procedures of "special circumstances of the case" and "reporting to the organ at a higher level for approval" is the premise for a comprehensive and accurate understanding and application of this article.
Comprehensively and accurately grasp the legislative spirit of blending leniency and severity
Before the implementation of the "Government Sanctions Law", after a public employee was sentenced to fixed-term imprisonment of less than three years, the standard of treatment was different in different historical periods, and different targets may face different results.
1. Handling of civil servants and managers participating in public affairs in administrative organs. The 1957 Interim Provisions of the State Council on Rewards and Punishments for Personnel of State Administrative Organs stipulate that if a staff member of a State administrative organ is sentenced to imprisonment and given a suspended sentence, his or her position will naturally be revoked. On the basis of the above provisions, where a staff member of an administrative organ is sentenced to a suspended sentence, he may retain his public office. The 1988 Interim Provisions on Administrative Punishment for Corruption and Bribery by State Administrative Organs contain similar provisions. Article 17 of the 2007 Regulations on the Punishment of Civil Servants of Administrative Organs stipulates that if a civil servant of an administrative organ is sentenced to a criminal penalty in accordance with the law, he shall be dismissed, which means that as long as he is sentenced to a criminal punishment, whether it is a fixed-term imprisonment, suspended sentence, criminal detention, public surveillance, fines or other lighter punishments, and whether it is an intentional crime or a negligent crime, he will be dismissed.
2. Handling of staff members of public institutions. Article 22 of the 2012 Interim Provisions on the Punishment of Staff of Public Institutions stipulates that if a staff member of a public institution is sentenced to a criminal punishment in accordance with law, he or she shall be given a sanction of demotion to his post level or removal from his post or above. Of these, those who have been sentenced to fixed-term imprisonment or higher in accordance with law are to be given a sanction of expulsion. Where staff members of public institutions appointed by administrative organs are sentenced to criminal punishment in accordance with law, they are to be dismissed.
3. Handling of court and procuratorate staff. The "Regulations on the Punishment of Personnel of the People's Courts" and the "Regulations on the Disciplinary Punishment of Procuratorial Personnel" both stipulate that if their staff members are sentenced to criminal punishment, they shall be dismissed.
Fourth, the handling of personnel of state-owned enterprises. The 1982 Regulations on Rewards and Punishments for Employees of Enterprises and the relevant answers stipulate that employees of enterprises, including those appointed by state administrative organs, who are sentenced to controlled release or given suspended sentences, may generally not be dismissed. After the repeal of the Regulations in 2008, leading cadres of state-owned enterprises appointed by administrative organs who were sentenced to criminal penalties were dismissed with reference to the Regulations on the Punishment of Civil Servants of Administrative Organs. If a person of a state-owned enterprise appointed by a non-administrative organ is sentenced to a criminal penalty, it shall be dealt with in accordance with Article 39 of the Labor Contract Law and the internal disciplinary provisions of the enterprise, and the contract shall not be terminated uniformly.
Judging from the historical evolution of disciplinary treatment given to public employees who have been sentenced to criminal punishment, there are three obvious characteristics: First, from categorical treatment to unified standards. Previously, the discipline of civil servants was stricter than that of non-civil servants, and the disciplinary treatment of public employees appointed by administrative organs in public institutions and state-owned enterprises was stricter than that of those appointed by non-administrative organs. After the implementation of the "Government Sanctions Law", the standards and standards have been unified in expression. Second, the procedures for retaining public office have become increasingly strict, and after the implementation of the "Government Sanctions Law", it is clear that it is necessary to report to the organ at the next higher level for approval. Third, the conditions for retaining public office have become more and more pragmatic and reasonable, from "conditionally retaining public office" to "all dismissals from public office" and then to "dismissal in principle and retention of public office under special circumstances", reflecting a more prudent legislative attitude towards governmental sanctions, and ensuring that the results of the handling fully reflect the requirement of blending leniency and severity.
In addition, Article 32 of the Regulations on Party Discipline Sanctions stipulates that "a person who is sentenced to fixed-term imprisonment of not more than three years (including three years) or is sentenced to controlled release or short-term detention for a crime of negligence shall generally be expelled from the Party." Where individuals may not be expelled from the Party, they shall be reported to the Party organization at the level above for approval in light of the provisions on the approval authority for sanctioning Party members." The "Government Sanctions Law" establishes the circumstances of retaining public office, and realizes the connection with the retention of Party membership, which is conducive to the balance of Party discipline and government sanctions.
It is recommended to focus on the issue of retaining public office after a crime of negligence
1. It must be a crime of negligence. Compared with intentional crimes, negligence crimes are less subjectively vicious, and many negligence crimes are caused by a lack of professional knowledge and work experience, and have a certain degree of accidentality, especially for negligent crimes with victims, after the offender admits guilt and repents and compensates for losses, it is also easy to obtain the victim's forgiveness, effectively reducing the harm to society.
2. Must be sentenced to controlled release, short-term detention or fixed-term imprisonment of not more than three years. Compared with punishments such as being sentenced to fixed-term imprisonment of more than three years, this kind of punishment is a "light punishment" in the traditional concept, and its harm to society is relatively small.
III. It is necessary to strictly grasp the circumstances of "special circumstances of the case". In general, dismissal is the principle, and non-dismissal is the exception. Only if the conditions of "the circumstances of the case are special and it is more appropriate to remove them from their posts" can they not be dismissed. It is suggested that the following situations may be considered to retain public office: first, the political literacy is good, the performance is outstanding or has made significant contributions, and the retention of public office is conducive to the development of regional and industrial undertakings; Second, they are experts with a high level of professional and technical skills, who have a high reputation in the region, industry or field, and have achieved fruitful results, and retaining public office is conducive to continuing to make contributions and serve the masses; (3) having special circumstances such as family difficulties, poor health, or imminent retirement, and dismissal from public office may seriously affect their lives; Fourth, it is necessary to retain public office in very rare special cases involving national defense, foreign affairs, ethnicity, religion, etc.; Fifth, there are other situations where the retention of public office can fully reflect the comprehensive effect of discipline enforcement and law enforcement.
In addition, the retention of public office should not be "one-size-fits-all", but should be considered comprehensively, not only to prevent the abuse of the idea of "good manism", but also to avoid not using it for fear of being held accountable. It is necessary to do a good job of balancing regions and systems, and from the perspective of warnings, the retention of public office should be strictly controlled from the perspective of negligence crimes that are prone to occur frequently and have a bad impact in their own regions or systems.
Fourth, the requirements of the approval procedure must be strictly implemented. With regard to the "higher-level organ" in article 14 of the "Government Sanctions Law", it is appropriate to distinguish between the following:
(1) For governmental sanctions given by the Supervision Organs, please refer to the spirit of the reply of the Laws and Regulations Office of the Central Commission for Discipline Inspection to the "Request for Instructions on the Procedures for Approval of Sanctions in the Application of Article 30 of the Regulations on Disciplinary Sanctions of the Communist Party of China" in July 2005. The author suggests that in cases where public office is to be retained, the relevant Supervision Organ may report to the Party committee at the same level for approval, and then report in writing to the Supervision Commission at the level above for review and approval in the name of the Party committee at the same level. The request for instructions shall focus on the "special circumstances of the case" to explain the specific reasons why "it is more appropriate to retain public office", and judge the effect of the disposition. The attached materials are recommended to refer to the requirements of the case for reporting and approving Party discipline, and attach effective judgments, rulings, materials on meeting the facts of violations of discipline and law, review reports, trial reports, confessions and reflections, as well as materials such as realistic performance, professional and technical levels, and honors and commendations that can prove that the case is special and can be retained. After the approval of the Supervision Commission at the level above, it shall be reported to the Supervision Commission for a sanction of removal from government affairs. Where the circumstances of the case are special or complex, when necessary, the supervision commission at the level above may report the case to the Party committee at the same level for approval or filing.
(2) Where a sanction of removal is to be given to an organ or unit for the appointment or removal of public employees, the "organ at the level above" includes the organ at the level above the organ for the appointment or removal or the unit to which they belong. In addition, it is necessary to grasp the time for the punishment of dismissal from office, and for those who may be sentenced to up to three years imprisonment or other punishments, and who meet the requirements for retaining public office, they may also temporarily not make a decision on governmental sanctions until the judicial organs make an effective judgment or ruling, and will handle it in light of the circumstances after the judgment or ruling is made.
Source: Official website of the Central Commission for Discipline Inspection and the State Supervision Commission
Editor: Zhou Jing
First instance: Shi Stern Yin
Second trial: Gu Yan
Third trial: Yang Hong
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