【作者】 丁宇飞；

【导师】 郑少华；

【作者基本信息】 华东政法大学 ， 经济法， 2010， 博士

【摘要】 一中国的国有经济改革是一场自下而上,先微观后宏观的变革,走的是一条“摸着石头过河”的渐进道路,其围绕如何提高国有企业的效率问题从简单的放权让利开始,逐步经历了承包制、建立现代企业制度(公司化)等阶段。但在这一过程中,人们逐渐认识到,没有合理的国有资产管理体制,微观层面的国有企业改革犹如无本之木,难以实现。但国有资产管理体制问题诚如温家宝总理所说的,极具探索性、极具挑战性,各方意见在一些重大问题上并未形成共识。为此,在2008年出台的《企业国有资产法》中对于国有资产监管体制问题进行了规避,这也从而引发了理论界纷繁的争议和实践中不断出现的问题。企业国有资产监管体制也成为了无尽争议的焦点。而伴随着国有经济改革走向全面改革的深水区,“摸着石头过河”式的国有资产管理体制改革面临着巨大的试错成本和因朝令夕改而带来的改革风险。因此,应当立法先行,在深入系统思考的基础上,对于企业国有资产管理体制实行自上而下的整体性改革。这要求我们以法学严缜的思维对于国有资产管理体制的目标模式进行全面思考、严密设计、精心策划。二本文从国家所有权性质及其行使入手,分析了国有资本的双重属性。国有资本具有“公共性”与“盈利性”的双重属性,一方面,国有资本做为一种公共所有权,具有公共性。国有资本存在的终极价值在于实现国家、社会的整体公共利益,其从头到脚都渗透和充满了公共利益的气息,其必须服从社会整体公共利益的目的,并受其制约。国家必须将全社会利益放在首位,甚至不惜牺牲自身的财产增值目标来确保实现全社会共同目标。但另一方面,国有资本具有资本流动性、逐利性等“盈利性”的一般属性。对于企业国有资产这样一种经营性和资本化的资产而言,在现代市场经济环境下,有效率与可持续的运作是其经营目的得以实现的重要保证。因此,国有资本同样需要有效运营,并实现其保值增值。这种公共性与盈利性双重属性来源于国家这一主体的双重法律人格,而在具体法律关系的调整中表现为私法与公法的兼容,即国有资本的管理要遵守经济法、行政法等公法的法律规范,又要求其在运行过程要遵守商法等私法的有关规范。由此,国有资产管理体制的立法安排应以公法和私法兼容为基础,那种将全部规范全部纳入或排斥在私法框架中或框架外的立法模式选择,都未免削足适履、一厢情愿。同时,这要求对两种属性不同的权力(利)的进行合理的配置,避免国家以公法人格享有行使私权,抑或是以私法人格行使公权,使两者“各就各位”,并对彼此的潜入保持休惕之心,避免越位。这构成了我们设计国有资产管理体制模式的法律基础。三传统计划经济中,国有资产的管理被全部归入公法调整的范畴,国家以行政化的手段全面介入国有资产的管理,导致了国资管理的行政化、官僚化,使得国有企业失去了企业经营性的本性,而成为政府计划管理下的一个“车间”。这导致了国有企业管理的低效、软预算,并在市场经济的环境中成为政府日益难以承受之重负,也从而引发了以提高国有资产管理效率,解决迫在眉睫问题为宗旨的国有企业改革。在这一过程中,改革者尝试了放权让利——企业承包制——股份化改造等多种改革,试图打破传统计划经济体制下行政权力对于国有资产经营管理的全面干预,使国家所有权与企业经营权之间实现分离,企业摆脱行政附属的依赖成为具有独立法人财产和法律地位的市场经营主体,并最终在西方企业理论的影响下,探索出一条国有企业公司化改革之路。改革者认为,国有企业同西方现代大中型企业相似存在着所有者和经营者分离的委托—代理问题。为避免国有企业在经营者的内部人控制和国家行政权力的过度干预之间摇摆,国有企业改革的关键是建立具备合理公司治理结构的现代企业制度。在这一过程中,为隔绝行政权之介入,改革者认为国家所有权的行使与私人所有权之间并无实质差异,作为平等的市场主体,其法律调整,应当纳入《公司法》等民商私法的调整范畴。这一理论逻辑深刻地影响了与国有企业改革紧密相关的国有资产管理体制的变革,形成了现行国有资产管理体制的路径依赖。由此,引发了国有资产管理体制模式的变革,要求国家在对于企业国有资产的管理中,将所有者职能同社会公共管理职能进行分离,以同私人所有者平等的所有者角色出现来进行国有资本的管理。由此,企业国有资产管理从以行政权力管理的完全公法化调整,进入了以出资人制度为核心的私法化调整为主的管理阶段。中共中央十六大提出建立“中央政府与地方政府分别代表国家履行出资人职责,享有所有者权益,权利、义务和责任相统一,管资产和管人、管事相结合的国有资产管理体制”,确定了以出资人制度为核心的现行国资管理体制的基本框架,并于2003年经十届人大通过,设立了国资委这一专门机构来集中履行出资人职责,由其对国有资产的保值增值负责。随着出资人角色的组织化和具体化,国家所有权能得以市场化的方式实现国有企业经营层的制衡,推动国有资本的有效配置和流动,促进国有资本利用效率的提高,更好地实现了国有资本的保值增值。2003年颁布的《企业国有资产监督管理暂行条例》(以下简称《暂行条例》)和2008年出台的《企业国有资产法》分别通过行政法规和法律的形式对这一管理体制进行了确认和完善,形成了现行国有资产管理体制的基本法律框架。四以提高国资效率为宗旨,以出资人制度为核心的现行管理体制改变了传统计划经济体制下行政权力对于国有资产经营管理的全面控制。但随着国有经济改革的深入,人们日益认识到国家所有权是与私人所有权存在本质区别的公共所有权。国家所有权的实现可以通过私法化的方式来提高国有资本服务社会的能力,但国有资本追求的根本目标不同于私人资本的逐利性。而现行体制的问题就在于忽视了国有资本的公共属性,未将国有资产的管理同私人产权的治理进行根本的区分。导致在制度安排中,过于重视出资人制度的建设,而忽视了国有资产作为一种公共权力应当具有的人民民主、分权制衡等制度性的安排,认为只需要形成完善的出资人制度,与公司化后的国有企业进行对接,减少行政权力的过多干预,保证国有资产的保值增值就可以实现国有资产的有效管理。而这引发了诸多的理论和实践问题。这些问题集中反映在四个方面:一是立法理念的过度私法化。现行的体制以“进一步搞好国有企业,发展和壮大国有经济,实现国有资产保值增值”为目标,即其立法之宗旨在于提高国有资产利用之效率。而忽视了国有资本作为一种公共资本的社会整体利益的价值取向,从而引发了“国进民退”的广泛争论,也模糊了国有资本存在的根本意义所在。二是终极所有人的缺位,现行体制理顺了国有资产委托—代理链条中“出资人”、“履行出资人职责的机构”“出资企业”间下半段的问题,而对于全民这一终极所有者与“出资人”之间的关系的规定却语焉不详。三是国有资产监管机构的定位偏差。作为目前制度设计中履行出资人职能机构的政府特设机构——国资委,脱胎于经贸委、企业工委等党政部门,其人员组成为国家公务人员,其机构设置按照行政方式进行组织,遵循行政机构首长负责的行政科层行为模式。作为一个行政性机构,其内部机制比传统的国有企业还要僵化。由此,在国资委现有的组织方式和性质之下,其与“出资人”角色的定位存在着明显的冲突,国资委难以胜任市场经济环境下的股东角色。这导致了实践中国资委履行出资人职能的“缺位”“越位”“错位”等问题的出现。四是政府监管权的模糊和缺失。在《暂行条例》中,将监管职能同出资人职能一同赋予了国有资产监督管理机构,也引发了社会各方面对国有资产监管机构双重身份的广泛争议。《企业国资法》剥离了国有资产监管机构的监管权,“明确界定了其作为“纯粹”“干净”出资人的法律地位,规定国有资产监督管理机构根据本级人民政府的授权,代表本级人民政府对国家出资企业履行出资人职责”。但《企业国资法》在剥离了国资委的监管权的同时,却并没有明确新的政府监管部门,导致了国有资产政府监管权的缺失。五因此,国有经济改革的深化要求我们在立法先行的基础上对于国有资产管理体制的目标模式进行全面、系统的思考和探索,以建立一个更为科学、合理而高效的国有资产管理体制。本文认为,这一体制的构建应当以社会整体观为建制理念,以终极所有者——全民权利的行使为起点,遵循法治、人民民主、分权制衡、公私法协同配合的原则,在国有资本的投资决策、执行和监督三个层面对管理体制进行整体的设计。首先,应当理顺国有资产终极所有人与国家之间的委托—代理关系,在宪政层面上,赋予社会公众对于国有资产管理的代表选举权、参与权、监督权和知情权,真正体现出国有资产的全民所有性,以保证国有资产服务于社会的整体利益,而不是个别人、少数人和小团体的局部利益。其次,应当由人民代表大会来行使国有资产投资决策权,由其来决定国有资产存在的多少,存在的形态及其转化,需要存在的领域、行业,及其在各个形态、领域间的转化方式。之所以由人大来行使国有资产决策权是因为国有资产决策权是国有资产管理的最高处置权,而在人大、行政、司法等三大类机构中,人大最接近人民,其具有更为超脱和更具民主基础的政治地位。为防止此项权力的虚置,应当在人大常委会下设国有资产决策委员会来落实此项权力。再次,在国有资产的执行层面。对于企业国有资产这一经营性国有资产而言,为提高国有资产的利用效率,其主要采取私法化的形式来进行运营。因此,国有资产的管理执行权主要体现为出资权。在市场竞争条件下,要求承担出资人角色的组织是专业化、商业化的。而目前的实践证明,以行政方式进行组织和运作的国资委并不适于担任市场化环境下出资人的角色,需要对于出资权行使的主体进行变革。而变革的两种模式分别为,一是国资委的重构,推进其向专业化、商业化的组织转型,成为真正的“纯粹”“干净”的出资人;二是新设以由专业人士为管理者,具备现代公司治理结构的国有资产经营公司来行使出资权。而目前的探索证明,由于国资委运行惯性、人员构成、传统思维之影响,推进国资委之转型的难度极大,很难将彻底改革其行权模式。相比较而言,新设国有资产经营公司来履行出资人职能,对于提高国有资本之运营效率,实现国有资产的保值增值,无疑是一种更优选择。最后,在国有资产的监督层面。应当形成包括政府专职机构监督、人大监督、审计监督、司法监督的完整国有资产监督体系。特别是对于政府专职机构的监管权应当进行明确。应当明确到政府监管权是一种区别与传统行政干预的独立的行政监督权,其是国有资产监督的重要环节。政府监管权的理性回归可以使国有资产的管理制度化、规范化,有效防止国有资产的流失。更多还原

【Abstract】 ⅠThe transformation of Chinese state-own economy is from the bottom up to top, from the micro- to macro- revolution. The path is gradually extended, since there is no previous experience to fall back on, we have to“cross the river by feeling the stone,”as we say in Chinese. The surrounding issues are how to improve the efficiency of the state-own enterprises by first“Setting Free the Right and Making the Benefit”and then through the stages of contracting system and establishing modern enterprise system. During this process, people realized that it was almost impossible to transform the outlook of state-own enterprise from the micro-layer of the issue, especially in lack of a rational state-own assets management mechanism. However, the state-own assets management is, as Premier Wen Jiabao said, challenging and worth exploring. No consensus has been reached on some major facet of the issue. Therefore, Corporate State-owned Assets Law, which was issued in 2008, circumvent problem concerning state-own assets supervision system. This caused great controversy. Problems keep popping up in practices. State-own assets supervision system continues to be the focus of endless discussion.As the transformation of state-own economy goes deeper and deeper towards comprehensive scale, the reform model of“crossing the river by feeling the stone”brings far too much risk and costs if the reform goes wrong. So we should conduct state-own assets management from top to bottom on the basis of deliberation and by letting legislation goes first. This has posed a request that we think about the state-own assets management mechanism with logical mind and work out a carefully designed object model.ⅡThis thesis analyzes the duel nature of state-own assets by discussing the natures and exercise of state ownership. There are two natures of the assets, one being“public”and the other being“profitable”. On the one hand, state-own assets are owned by the public, so one of its natures is public ownership. The ultimate value of state-own assets is to serve the interests of the country and the society as a whole. Therefore, it is“public”all over and has to meet the purpose of and within the control of collective interests. The country must put the public interest above anything else, so as to realize the common goal of the society, even if it takes the entire state-own assets to fulfill that goal. On the other hand, state-own assets has common nature,“after the interest”, such as capital mobility, capital chasing the profit. Under current economic climate, it is vital for the purpose to be realized by efficient and sustainable operation, since state-own assets are assets of operation and capital characteristics. In these terms, state-own assets need efficient operation so that it can maintain and increase the value of itself.The duel natures of being public and profitable originate from double legal personality of a country, which is fully demonstrated in the adjustment of legal relationships as intermingling public law and private law. That is, the management of state-own assets should be complied with the regulations of public laws such as administrative laws and economic laws, while the operation state-own assets should be complied with private laws such as commercial laws. Judging from this, the legislation of management system of state-own assets should base on both the private laws and public laws. Only relying on private law or public law, or putting the legislation of management system of state-own assets above the present legal frame is absolutely unadvisable. Furthermore, we need to arrange the rights of different natures in a reasonable way, so that exercising private power with public law personality or exercising public power with private law personality can be avoided. The two personalities are, therefore, in their own place instead of violating each other’s territory.This lays the legal basis of designing the management system of state-own assets.ⅢUnder the traditional planed economy, the management of state-own assets was adjusted by the public law, and the administrative means was applied to manage state-own assets. That caused the administration and bureaucratization of management, the very nature of operational characteristic was gone, and enterprises became just factory plants of the government. This was the reason of low efficiency and soft budget during the management of state-own enterprises. What is worse, this became the burden which was bigger and bigger and unbearable for the government under market economy. Then, the transformation of state-own enterprises comes into being, with the purpose of improving efficiency and solving urgent problems.During this process, the transformer tried many means of transformation such as“granting decision-making power to enterprises and allowing them to keep more profit to public finance”,“enterprises contracting system”and“share holding system”. They tried to break the infringement of what planed economy system had on the management of state-own assets so that business right and state ownership were separated from each other. It was hoped that enterprises could be free from the administration and enjoyed its own legal personality and property as an independent legal entity. At last, a path of state-own enterprises transformation was found under the influence of western enterprise theory. The transformer thought, state-own enterprises had the principal-agent problem as the western enterprise did. In order to balance the power between those who run the enterprises and national administrative power, it was important to establish modern enterprise system, which had a rational management system. In order to avoid administrative interference, the exercising of state ownership was considered virtually the same as private ownership. As equally competent market players, the adjustment of relationships should be within the scope of private laws such as corporation law. This theory and logical thinking has profound impact on the transformation of state-own assets management, which is closely related to state-own enterprises reform. This theory builds the ground work for state-own assets management system.State-own assets management system model is also worth exploring. The state is asked to perform its right to manage as the same as private owner. The management power should be separated from the ownership. State-own assets management changes from being adjusted by public laws to mainly being adjusted by private laws which features investor system as the core.The 16th Central Committee of Communist Party of China put forward that a system of“The central government and local governments to fulfill the responsibilities of investor on behalf of the State, enjoying owner’s equity, rights, obligations and duties and administering assets, personnel and other affairs of combining state-owned assets management system”. This has confirmed the frame of current state-own assets management of which the investor was the core. This idea got approved on the 10th National People’s Congress of People’s Republic of China. A department, State-own Assets and Administration Commission was established to perform the responsibility as the investor on behalf of the state, so that state-owned assets can maintain and increase its value. As the investor role became more organized and specialized, state ownership can be realized in the way of market and reached the balance of management power. The distribution and mobility of state-own assets are more efficient, and drives the capital utilization as well. The value of state-own assets can be better increased. In 2003, the Interim Measures for the Supervision and Administration of State -Owned Assets of the Enterprises (hereinafter referred to as“the Measures”) was enacted. In 2008, Enterprise State-Owned Assets Law was issued. These two laws form current state-own assets management system framework from both administrative and legal regulation angle respectively.ⅣAiming at improving the efficiency of state-own assets, present management system changes the pattern of which administrative power had total control over state-own assets in traditional planned economy system by putting investor system as the core. As the reform of state-own economy goes into fully scale, people recognize increasingly that the substantial difference between state ownership and private ownership is public ownership. Implementation of national ownership by private law-based approach to improve the capacity of state-owned capital to serve the community, but the goal of state-owned capital is fundamentally different from that of profit-driven private capital. The problem of the current system is the negligence of the public nature of state-owned capital in that the current system makes no difference between management of state-owned capital and private-own funds. So, in the arrangement of the system, too much emphasis is put to investor system building, while little attention is put to peoples’democracy and separation of public power. People think that as long as a perfect investor system is built, and the new system can takes the state-owned enterprise along to the new stage, no administrative interference is in the way and the value of state-owned assets is increased, the efficient management of state-owned assets can be realized. It is, however, wrong to take it for granted. Many theoretical and practical problems pop up, mainly in the following four aspects:First, the legislation is over-private. The existing system aims to "further improve the state-owned enterprises, the development and expansion of state-owned economy to achieve value of state-owned assets", that is, its legislation purpose is to improve the efficiency in the use of state-owned assets. The society overall interests value orientation of state-owned assets as public capital lacks recognition. This arouses extensive controversy and obscures the fundamental value of the existence of state-owned assets.Second, the ultimate owner is missing. The current management system of state-owned assets have rationalized the relationship among“investor”,“invested enterprise to fulfill the responsibility of investor”and“investor institutions”in the principal-agent chain. But current system includes nothing about the relationship between the ultimate owner-the people and the investor.Third, the positioning of the state-owned assets supervision institution is bias. As a specially built institution by the government, State-own Assets and Administration Commission was born from the State Economic and Trade Commission and Central Work Commission for Enterprises, and the personnel are public servants. The way of the setting State-own Assets and Administration Commission is administrative, which is complied with the pattern of administrative heads being responsible for the administrative bureaucratic. As an administrative institution, the internal mechanism is far too rigid than that of traditional state-owned enterprises. It can be seen from this point that the positioning of investor role has conflicts with the organizational method and nature of the State-own Assets and Administration Commission, which is difficult to assume the role of share holders in market economy. Thus, the problem of the function of investor is“absence, offside or dislocation”by the State-own Assets and Administration Commission.Fourth, the governmental supervision power is obscure and missing. The Measures say, the State-own Assets and Administration Commission is entitled to the supervision function and investor function. The double identities of the State-own Assets and Administration Commission are highly controversial. The Law of the People’s Republic of China on the State-Owned Assets of Enterprises takes away the supervision power from state-own assets supervision institution and clearly state its legal position as a“pure”“clean”investor. It also stipulates that State-own Assets and Administration Commission has the authorized power to exercise the investor responsibility on behalf of the government on the same level. However, while The Law of the People’s Republic of China on the State-Owned Assets of Enterprises takes away the supervision power from state-own assets supervision institution, the law doesn’t appoint governmental department to assume the supervision responsibility. So, the governmental supervision power is obscure and missing.ⅤThe deepening reform of state-own economy requires us to explore extensively and comprehensively for a more rational and scientific system to manage state-own assets. The author thinks that the building of such a system should be based on the concept of“the society as a whole”, that is, a system should be built with the starting point being the exercise of ultimate owner, while abiding by the coordinated principles of following the rule of law, people’s democracy, and the separation of powers, public and private law. The investment decision, implementation and supervision should all be paid enough attention to.First, the principal-agent relationships should be struck a balance. On the constitutional level, the public should be given the rights to managing the state-own assets, voting, participating, supervising and knowing. This shows truly the assets’public ownership so that the state-own assets serve the interests of the society as a whole rather than just minority and small group’s interests.Second, the National People’s Congress should exercise the decision-making power of state-own assets, that is, to determine how many state-own assets there are, the form and transformation of state-own assets, the area and industry sector the state-own assets are in, and the approaches of state-own assets are transforming between different sectors. This thesis argues the reason of National People’s Congress exercising the ultimate disposal power since People’s Congress are most close to the people among National People’s Congress, administrative institutes and judicial institutes. The National People’s Congress also enjoys more democratic basis. In order to fulfill the power, a state-own assets decision making commission should be established under the National People’s Congress.Third, the reform should also happen on the implementation of state-own assets level. To improve the utilization of state-own assets, the operation of the profit-making assets should be run in the approach of private own funds. This means the management implementation power is primarily reflected in the right to contribute capital. So the investor organization should be professional and commercial in the competitive market. However, current practice shows that administratively-organized and operated State-own Assets and Administration Commission is not fit to serve the investor role. So, it is necessary to reform the main body of investment. There are two ways to reform the model. One is to restructure the State-own Assets and Administration Commission, push it toward professional and commercial organization so that it becomes“pure”“clean”investor. Two is to establish an operational company which has modern corporate management system for the state-own assets investment. Current exploration shows that since the State-own Assets and Administration Commission has its own pattern of operation, personnel recruitment and thinking, it is extremely hard to reform its power-exercising pattern. To build a operational company is much easier and preferable.Last, the reform should also take place on the supervision level. A complete supervision system which includes the governmental institutes, National Peoples’Congress, audit supervision and judicial supervision organizations should be constructed. The governmental institution needs to be specified in the exercising of supervision power. It should be fully recognized that governmental supervision is an administrative power different from traditional administrative intervention, and it is a very important link during the supervision of state-own assets. The rational return of governmental regulation can rationalize and standardize the management of state-owned assets and prevent the loss of state assets.更多还原