Industry associations and chambers of commerce are important components of social organizations in China. Their member entities are units engaged in economic activities of the same nature, industry personnel, or economic organizations in the same region. Their names are generally suffix with words such as "Industry Association", "Association", "Chamber of Commerce", "Industry Guild", "Federation", "Promotion Association", etc. In addition to possessing the basic characteristics of non-profit and non-governmental social organizations, industry associations and chambers of commerce also exhibit significant characteristics such as industry, industry, and economy.

Since the reform and opening up, with the rapid development of the market economy, China's industry associations and chambers of commerce have experienced a rapid development process, from non-existent to existing, from small to large, and from within the system to outside the system. From less than 1000 in the initial stage, the number has increased to 113900 at present (accounting for about 30.7% of the total number of social organizations and 12.6% of the total number of social organizations), including 886 national industry associations and chambers of commerce, 16300 provincial-level industry associations and chambers of commerce, 45500 city level industry associations and chambers of commerce, and 51100 county-level industry associations and chambers of commerce. A basic system of industry associations and chambers of commerce covering various sectors and levels of the national economy has been formed.

The industry associations and chambers of commerce have grown from the supporting role of industry management to the leading role of industry self-discipline, actively restricting the behavior of members, participating in the construction of credit system, and standardizing the order of industry development. In recent years, national industry associations and chambers of commerce have participated in the formulation of 2499 national standards, 364 international standards, and published 2996 group standards.

Employees of industry associations may also face issues such as accepting bribes and abusing their power in the process of performing their duties. Due to the public management function of some industry associations, there has been some controversy over whether their criminal behavior is classified as national or non-state personnel. This article attempts to explore this issue.

1、 The basic attribute of industry associations is non-public organizations, and their staff are non-state workers

Industry associations are social intermediary organizations that provide services, consultation, communication, supervision, self-discipline, coordination, and other functions for members, between the government and enterprises, and between producers and operators of goods. It does not belong to the government's management agency series, but is a non-governmental organization. From the perspective of civil and commercial law, it belongs to the category of corporate entities and enjoys the civil subject qualifications and litigation subject qualifications stipulated in the litigation law. It is a non-profit organization.

From the perspective of organizational structure and personnel composition, the highest authority of industry associations is the general assembly of members, which is composed of all members. The council is the executive body of the general assembly and is responsible to the general assembly. The council is responsible for leading the association's work during the recess of the member assembly. The council can also establish a standing council and a secretariat as daily administrative bodies. The president, vice president, and chairman of the association are elected by the general assembly of members. The Secretary General is elected by the Council and can also be appointed.

From the perspective of funding, the activity funds of industry associations mainly come from membership fees or donations paid by members, and some associations may also have some service income. Generally, there is no national financial allocation, and administrative fees cannot be charged. The funds of the association shall be used for the development of the association's business and its own construction, and shall not be distributed among members.

In summary, industry associations are purely non-public organizations, and the personnel working in them should also belong to non-state workers. This point has also been confirmed in the "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Commercial Bribery" of the Two High Schools: "The" other units "stipulated in Article 163 and Article 164 of the Criminal Law include permanent organizations such as public institutions, social organizations, village committees, resident committees, and village groups...".

The non-public nature of industry associations determines that their staff are non-state workers, which is a fundamental principle. But some industry associations perform administrative functions in specific circumstances, which may result in their staff having the status of national staff. Therefore, this article explores under what circumstances industry association staff belong to national staff.

2、 Special circumstances where industry association staff have national staff status

（1） Appointment or recommendation of state-owned units

Article 93 of the Criminal Law stipulates that personnel engaged in public service in state-owned companies, enterprises, public institutions, and people's organizations, as well as personnel appointed by state organs, state-owned companies, enterprises, and public institutions to engage in public service in non-state-owned companies, enterprises, public institutions, and social organizations, shall be regarded as state employees. On November 13, 2003, the minutes of the National Symposium on the Trial of Economic Crime Cases by the Supreme People's Court pointed out that the so-called appointment, namely appointment and dispatch, has various forms, such as appointment, assignment, nomination, approval, etc., but the appointed subject can only be state-owned units and requires certain appointment procedures.

From this, it can be seen that when personnel of industry associations are appointed by state-owned units, their identity is that of national staff. This situation usually occurs in national industry associations, to which management personnel are appointed by state agencies as business supervisory departments. For example, the articles of association of the banking industry stipulate that the president, full-time vice president, vice president, and chairman of the association shall be elected by the general meeting of members, and after being reviewed and approved by the China Banking Regulatory Commission, they shall be submitted to the Ministry of Civil Affairs for approval and registration. Similar regulations also exist in other national industry associations. Some of these appointed personnel are full-time, some are part-time, some receive salary and remuneration from industry associations, and some receive them from their original units. But as long as their positions in industry associations are approved or recommended by state agencies, they will be considered as state employees.

Among the cases published in the case database of the People's Court, Shen Mouzhong's suspected bribery case falls under this category. Shen Mouzhong served as the president of a certain management association, and was appointed by the state agency to hold this position before the association was decoupled from the state agency; After decoupling from the state organs in a certain management association, the position needs to be reviewed and approved by the state organs. They belong to state officials appointed by state organs to engage in leadership, management and other official activities in social organizations, and meet the main requirements of the crime of bribery. If they use the above-mentioned positions to seek benefits for others and accept bribes, they should be convicted and punished according to the crime of bribery.

（2） Authorized by law to engage in official duties

Article 93 of the Criminal Law stipulates that personnel engaged in public service in accordance with the law shall be considered as state employees. Article 1 (3) of the National Court Minutes states that "other personnel engaged in public service in accordance with the law" should have two characteristics: first, they exercise state management functions under specific conditions; The second is to engage in official duties in accordance with legal provisions. These two characteristics can be understood as one of the substantive elements: exercising state management functions; One is the formal requirement: there is a legal basis. Both conditions are indispensable.

Coincidentally, the Interpretation of the Standing Committee of the National People's Congress on the Application of Chapter 9 of the Criminal Law of the People's Republic of China on the Subject of the Crime of dereliction of duty stipulates that "personnel engaged in public affairs in organizations exercising state administrative powers in accordance with laws and regulations" can become the subject of the crime of dereliction of duty and naturally possess the identity of state officials. This regulation is also in the special situation of deepening institutional reform and partial decentralization of government power, where some laws and regulations authorize certain non-state organizations to exercise state administrative management powers.

The above laws and legislative interpretations clearly state that if an organization or individual is authorized by laws and regulations to engage in official duties, the identity of the organization's members or individuals in the performance of their duties shall be that of state officials. So, although industry associations themselves are non-public organizations, if they are authorized by laws and regulations to exercise a certain administrative management function, their staff will have the status of national staff when fulfilling that responsibility. For example, the Certified Public Accountants Law stipulates that "the state implements a national unified examination system for certified public accountants. The national unified examination methods for certified public accountants are formulated by the financial department of the State Council and organized and implemented by the China Institute of Certified Public Accountants." The Institute of Certified Public Accountants is a non-public organization, but due to legal authorization, it organizes and implements the unified examination for certified public accountants. When the staff of the association fulfill their examination related responsibilities, it belongs to the situation of engaging in public affairs in accordance with the law, and is considered a national staff member.

In addition, the bribery case of Cai in the case database of the People's Court also falls under the category of engaging in official duties in accordance with the law. Lawyer Cai, as a member of the bankruptcy administrator, illegally received property from others during the bankruptcy management work. The bankruptcy administrator is a bankruptcy management position established by the Enterprise Bankruptcy Law of the People's Republic of China, and its responsibilities and nature of behavior are unrelated to the original identity and responsibilities of the unit and individual serving as the bankruptcy administrator. The responsibilities of a bankruptcy administrator belong to assisting the court in handling bankruptcy cases and have the nature of engaging in official duties. Therefore, although lawyers themselves are non-state employees, during their work as bankruptcy administrators, they belong to those who engage in public affairs in accordance with the law and are considered as state employees.

（3） Authorized by state organs to exercise powers on behalf of state organs

In the Interpretation of the Standing Committee of the National People's Congress on the Application of the Subject of Chapter 9 of the Criminal Law of the People's Republic of China on the Crime of dereliction of duty, another situation that can be considered as state officials is stipulated, which is "personnel engaged in public affairs in organizations entrusted by state organs to exercise their powers on behalf of state organs.". Administrative delegation and the aforementioned legal and regulatory authorization are different concepts. Administrative authorization is granted by laws and regulations, enabling the authorized person to have administrative powers and responsibilities, and to independently assume responsibilities under administrative law. Administrative delegation is generated in specific administrative actions, and its subject is the competent administrative agency. Authorized administrative agencies may delegate some administrative power to other administrative agencies or organizations in order to better fulfill their administrative responsibilities.

Administrative delegation should meet the following conditions: 1. Administrative delegation should have legal basis, otherwise administrative management functions cannot be delegated on their own. 2. Administrative delegation must follow the corresponding delegation procedures, such as written delegation, public announcement, etc. 3. The entrusted organization should have the conditions and capabilities to perform administrative management functions. 4. The entrusted organization shall carry out activities in the name of the commissioning authority, and the legal consequences shall be borne by the commissioning authority. So, when an industry association accepts the commission of a national agency to exercise a certain administrative management function on its behalf, the personnel performing their duties have the identity of a national staff member.

In summary, industry associations are non-public organizations, and their staff are non-state workers. But in exceptional circumstances, if the conditions stipulated by laws and regulations are met, it can be considered by state officials.