现行外派监事会制度面临的难题

发布时间：2018-05-19 02:19

本文选题：监事会制度 + 外派监事会　；参考：《经济研究参考》2011年36期

【摘要】：正现行外派监事会制度的前身是1998年设立的稽查特派员制度,1999年党的十五届四中全会后过渡为外派监事会制度。外派监事会制度是相对于内设监事会制度而言的,根据《企业国有资产法》第39条,企业改制包括国有独资企业改为国有独资公司,国有独资企业、国有独资公司改为国有资本控股公司、国有资本参股公司等组织形式。《公司法》规定,国有资本控股公司、国有资本参股公司设立监事会,为区别于外派监事会,通常将国有资本控股公司和国有资本参股公司依据《公司法》设立的监事会称为内设监事会。我国实行外派监事会制度至今已超过10个年头。经过10多年的不断改革,外派监事会制度发挥作用的环境和条件发生了变化,同时,面临法律和操作两方面的冲击。一方面,《公司法》、《企业国有资产法》等法律法规关于公司制企业监事会的相关规定,给外派监事会制度的适用范围带来很大冲击。根据《国有企业监事会暂行条例》(以下简称《监事会暂行条例》)和《企业国有资产监督管理暂行条例》(以下简称《监督管理暂行条例》)规定精神,国有资本出资人机构依照规定代表本级人民政府向所出资企业中国有独资企业、国有独资公司派出监事会。国务院国资委代表国务院向所出资企业中国有独资企业、国有独资公司派出监事会。2005年新修订的《公司法》,尽管没有明确规定国有独资公司必须设立监事会,但明确规定,国有独资公司的监事会除职工代表外,监事会成员由国有资产监督管理机构委派,监事会主20席由国有资产监督管理机构从监事会成员中指定。对此,可以理解为国有独资公司实行外派监事会体制。《企业国有资产法》规定:国有独资公司依照《公司法》规定设立监事会,国有独资企业由履行出资人职责的机构按照国务院的规定派出监事组成监事会。根据现行法律法规,国有独资企业和国有独资公司实行外派监事会体制,国有控股企业实行内设监事会的体制。需要进一步研究的是由多个国有股东尤其是国家股和国有企业法人股构成的国有独资的公司制企业是实行外派监事会制度还是内设监事会制度。从上述分析不难看出,现行法律法规给外派监事会制度带来的冲击主要在于国有控股和国有参股的股份制企业。深化国有企业公司制股份制改革,发展混合所有制企业,是党中央、国务院确定的既定方针,并将成为国有企业改革的主要形式,因此,如何使现行外派监事会制度适应改革需要,已成为深化国有企业改革、加强国有企业监管的一个重大体制问题。另一方面,国有企业股份制改革特别是越来越多的中央企业整体改制上市,对外派监
[Abstract]:The predecessor of the current system of the board of supervisors on foreign assignment is the system of special inspectors established in 1998. After the fourth Plenary session of the 15th CPC Central Committee in 1999, the system of the board of supervisors on foreign assignment was transformed into the system of the board of supervisors on foreign assignment. According to Article 39 of the "Enterprise State-owned assets Law", the restructuring of an enterprise includes the transformation of a wholly state-owned enterprise into a wholly state-owned company, a wholly state-owned enterprise, and a wholly state-owned enterprise. A wholly state-owned company shall be transformed into a state-owned capital holding company and a state-owned capital shareholding company. The Company Law stipulates that a board of supervisors shall be set up by a state-owned capital holding company or a state-owned capital equity participating company, in order to distinguish it from an overseas board of supervisors, Usually, the board of supervisors set up by the state-owned capital holding company and the state-owned capital shareholding company according to the Company Law is called the internal board of supervisors. China has implemented the system of expatriate board of supervisors has been more than 10 years. After more than 10 years of continuous reform, the environment and conditions under which the system of expatriate board of supervisors play a role has changed. At the same time, it faces the impact of both law and operation. On the one hand, some laws and regulations, such as "Company Law", "Enterprise State-owned assets Law" and other laws and regulations, on the board of supervisors of the corporate system, bring a great impact on the scope of application of the system of the external board of supervisors. In accordance with the provisions of the interim regulations on the Board of Supervisors of State-owned Enterprises (hereinafter referred to as the interim regulations of the Board of Supervisors) and the interim regulations on Supervision and Administration of State-owned assets of Enterprises (hereinafter referred to as the interim regulations on Supervision and Administration), On behalf of the people's government at the corresponding level, the state-owned capital contributor institution shall, in accordance with the regulations, send a board of supervisors to the wholly state-owned enterprise and the wholly state-owned company. The SASAC of the State Council, on behalf of the State Council, sends supervisory boards to wholly state-owned enterprises and wholly state-owned enterprises funded by the State Council. The newly revised Company Law in 2005.Although there is no clear stipulation that a wholly state-owned company must set up a board of supervisors, it clearly stipulates that, In addition to the representatives of the staff and workers, the board of supervisors of the wholly state-owned company shall be appointed by the supervision and management organ of the state-owned assets, and 20 seats of the board of supervisors shall be appointed by the supervision and management organ of the state-owned assets from among the members of the board of supervisors. In view of this, it can be understood that a wholly state-owned company implements the system of sending out a board of supervisors. The Law on State-owned assets of an Enterprise stipulates that a wholly state-owned company shall set up a board of supervisors in accordance with the provisions of the Company Law. The solely-owned state-owned enterprise shall be composed of supervisors appointed by the institution performing the duties of the investor in accordance with the provisions of the State Council. According to the current laws and regulations, wholly state-owned enterprises and wholly state-owned companies implement the system of external board of supervisors, and state-owned holding enterprises implement the system of internal board of supervisors. What needs to be further studied is whether the system of external board of supervisors or the system of internal board of supervisors should be carried out in state-owned enterprises, which is composed of many state-owned shareholders, especially state-owned shares and state-owned enterprises' legal personnel shares. From the above analysis, it is not difficult to see that the impact of the current laws and regulations on the system of the board of supervisors mainly lies in the joint stock enterprises with state-owned holding and state equity participation. Deepening the reform of the corporate system of state-owned enterprises and developing mixed ownership enterprises is the established policy set by the Party Central Committee and the State Council, and will become the main form of reform of state-owned enterprises. How to adapt the current system of expatriate board of supervisors to the needs of reform has become a major institutional problem in deepening the reform of state-owned enterprises and strengthening the supervision of state-owned enterprises. On the other hand, the reform of the stock system of state-owned enterprises, especially that of more and more central enterprises as a whole, has been listed on the market and sent to foreign countries for supervision.
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