【作者】 王惠；

【导师】 华国庆；

【作者基本信息】 安徽大学 ， 经济法学， 2013， 硕士

【摘要】 早在1993年,党的十四届三中全会就明确提出：“建立政府公共预算和国有资产经营预算。”自2007年起,国务院开始在央企试行国有资本经营预算,随后北京、上海、江苏、湖北、云南等省市相继出台国有资本收益管理的相关政策,并有组织地开展资本经营预算试编工作。党的十八大再次提出要“完善各类国有资产管理体制”。为国有资本经营预算立法,有利于进一步转变政府职能,推动政企分离,落实国有资产出资人在企业中的代表职能,推动公共财政改革；有利于创造不同性质资本的企业公平竞争的市场环境,维护企业作为市场主体的法律地位,从而促进企业技术进步,提高企业核心竞争力；有利于合理配置国有资本,提高国有资本再投资的透明度,提升国有资本经营效率；有利于贯彻《宪法》、《企业国有资产法》的相关规定,保证公民知情权的实现,保障公民对国有资本经营预算进行有效监督。本文第一部分主要探讨了国有资本经营预算的内涵和性质。首先,本文探讨了资产、国有资产的概念和性质,为研究国有资本经营预算的定义和特点奠定理论基础。其次,本文在分析国有资本经营预算特点的基础上,试图概括其内涵。最后,关于国有资本经营预算的性质,本文立足法学理论,从法律调整范围、法的功能性两角度分析国有资本经营预算与政府公共预算的关系,认为前者应当独立于后者。文章第二部分主要探讨了国有资本经营预算立法的必要性和可行性。关于国有资本经营预算立法的必要性,本文认为,它是规范国有资本经营收益行为、实现国有资本保值增值、政府实现监管职能以及进一步完善预算法律制度的需要。关于国有资本经营预算立法的可行性,本文认为,我国国有资本经营预算立法具备良好的社会环境；地方政府的立法和实践为国有资本经营预算立法奠定了基础；国外的立法和实践为我国国有资本经营预算立法提供了丰富经验。文章最后一部分围绕国有资本经营预算立法,就国有资本经营预算的立法模式、立法宗旨、立法原则以及主要内容进行了探讨。首先,关于国有资本经营预算的立法模式,本文在借鉴地方立法实践的基础上,探讨我国当前应当采取的立法模式。其次,从规范国有资本经营预算编制、审批、执行行为；促进社会主义市场经济发展；合理分配国有资本收益和配置资源；维护国家对国有资本的所有者权益四个方面,分析其立法宗旨。再次,从法治性、民主性、科学性三方面去分析立法原则。最后,从国有资本经营预算的立法模式、收支范围、编制、收缴、监管五个方面,对我国国有资本经营预算的主要内容进行了初步设计。更多还原

【Abstract】 As early as in1993, the third plenary session of the fourteenth of the chinese communist party had suggested to establish the state-owned capital management budget.Beijing, Shanghai, Jiangsu, Hubei, Yunnan and other provinces had produced several policies of the state-owned capital management budget Systematically and carried out capital management budget making following the Sate Council began to try it out Since2007. The State Council released objection of trying out the state-owned capital management which is the sign of beginning to establish the state-owned capital management budget.The first part of this thesis mainly discuss definition and property of the state-owned capital management budget.Firstly,it has to clearly distinguish it from related concepts.We should know the definition and property of assets and state-owned assets which is the base of it.Moreovor, domestic scholars has different views on the definition and expression of it. Secondly,there are also arguments on the property of the state-owned capital management budget in academia.The focus is whether it should independent of the government public budget or not.There are two representative views:subsidiary theory and independent theory. Subsidiary theory is that the state-owned capital management budget is the important of the government public budget. On the contrary,independent theory is that the state-owned capital management budget should independent of the government public budget. Through analysing the relationship between them from law adjustment scope and legal function I think the former should independent of the latter.The second part of this thesis mainly discuss the necessity and feasibility of legislation of state-owned capital management budget.On the one hand,there are four points to probe into the necessity of state-owned capital management budget.Firstly,it is necessary to legislate for regulating state-owned capital gains.Secondly, it is helpful to legislate for maintaining and appreciating the value of state-owned assets. Thirdly,it has to legislate for government to achieve regulatory functions. Fourthly,it is helpful to consummate the budget process legal systems.On the other hand, there are three points to probe into the feasibility of state-owned capital management budget.Firstly,it has a good social environment for legislation. Secondly, legislation and practice of local government are based for legislation properly. Thirdly, foreign legislation and practice are also salutary lessons to china.The last part of this thesis mainly aims to set down the law of state-owned capital management budget included its model and principle as well as purpose and concept.Firstly,I learn from foreign legislative model so as to comment local model in china. Secondly,there are four points to analysis the legislative purpose such as distribute income and allocate resource reasonably, maintaining and appreciating the value of state-owned assets, strengthen government capacity and stabilize socialist market economy. Thirdly, we should stick to the key principles in legislation which are the government by law principle and balance of payments as well as scientific establishment. Fourthly,I present that we should establish this law included balance and collection as well as establishment and supervision.更多还原