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Integrity Reminder List-Tighten Daily Supervision String September 2021 (Issue 7)
Are public officials prohibited from engaging in or participating in profit-making activities?
Article 36 of the "Administrative Punishment Law" stipulates: "Those who violate regulations to engage in or participate in profit-making activities, or violate regulations to concurrently hold positions or receive remuneration shall be given a warning, demerit or major demerit; if the circumstances are serious, they shall be demoted or Dismissed; if the circumstances are serious, they shall be expelled."
The subject of the illegal act is the general subject, that is, public officials; the subjective aspect is intentional, including direct and indirect intentional; the object of the infringement is the integrity of the official's official behavior; the objective aspect is the violation of relevant regulations, doing business, running a business, Engaging in paid intermediary, and owning shares or securities of non-listed companies (enterprises) in violation of regulations, buying and selling stocks or making other securities investments, acts such as registering a company or investing in shares outside the country (territory).
"For-profit activities" refer to all kinds of economic activities for the purpose of making profits, mainly including doing business, running enterprises, engaging in paid intermediary, and owning shares or securities of non listed companies (enterprises) in violation of regulations, buying and selling stocks or making other securities investment, registering companies or investing in shares outside the country (territory), etc.
The "Administrative Punishment Law" does not prohibit public officials from engaging in or participating in profit-making activities, but must be judged according to the specific type of public officials. As stipulated in Article 59 of the Civil Servants Law, civil servants shall not engage in or participate in profit-making activities in violation of relevant regulations.
For public officials in public institutions, Article 18 of the Interim Provisions on the Punishment of Staff of Public Institutions stipulates that they use the inside information they know or have to seek benefits, and violate national regulations to engage in or participate in profit-making activities or concurrently hold positions to receive remuneration, Corresponding sanctions shall be given. But at the same time, the state has also issued corresponding regulations to encourage professional and technical personnel of public institutions to participate in innovation and entrepreneurship activities.
For public officials in state-owned enterprises, according to Article 5 of the Regulations on the Honest Practice of State-owned Enterprise Leaders, state-owned enterprise leaders are not allowed to personally engage in profit-making business activities and paid intermediary activities, or in similar operating enterprises of the enterprise. Related enterprises and enterprises that have business relations with the enterprise invest in shares; the provisions of Article 2 and Article 26 shall apply to the members of the leading bodies of wholly state-owned enterprises, state-controlled enterprises (including wholly state-owned financial enterprises and state-controlled financial enterprises) and their branches. Other personnel other than members of the leadership team of state-owned enterprises who are responsible for the operation and management of state-owned assets, leaders of institutions affiliated to state-owned enterprises, and personnel who are responsible for the operation and management of state-owned assets in state-owned equity-participating enterprises (including state-owned equity-participating financial enterprises) refer to the provisions.
Article 71 of the Law on State-owned Assets of Enterprises stipulates that directors, supervisors and senior managers of state-funded enterprises shall not conduct transactions with their own enterprises in violation of the provisions of this Law. There are no special restrictions on personnel engaged in management in grass-roots mass autonomous organizations.
Therefore, when applying the provisions of Article 36 of the "Administrative Punishment Law", we should grasp the elements of "violation of regulations" and the essence of violation of integrity requirements, and the legitimate economic behavior of public officials cannot be regarded as illegal profit-making activities.
2021, or, enterprises, regulations, engaged in, activities, public officials, for-profit, participation, state-owned.
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