国有资产出资人制度批判与重构——从国资委到人民代表股东会

发布时间：2018-06-26 08:59

本文选题：国资委 + 国家所有权　；参考：《社会科学研究》2008年02期

【摘要】：国资委的双重地位在法律上被赋予了两种不同性质的权利:作为政府监管机构,国资委行使的是公权力性质的监督权和管理权,可借助权力的"公"的性质强制性地推行一些改革措施,或者借助公权力颁布行政规章;同时作为国有资产的所有权人,国资委将根据《公司法》《证券法》等法律行使国有股东权利,这种权利虽然以"国家的代表"作为主体,但是本质上仍然属于私权利范畴,基于这种权利"私"的性质,国资委必须按照市场规则运作。于是国资委享有的公权力和私权利在行使过程中发生利益冲突难免,最终只会导致两种权利的扭曲。既然中国改革的方向是社会主义市场经济,既然存在国有股权的公司是营利法人,那么委托代理理论对国有资产委托代理问题的分析应当具有重要参考价值,而且通过上述理论分析得到的结论亦应当是正确的,即本质上国资委出资人制度设计并没有解决国有资产委托代理出资人"缺位"问题。建立一个人民代表股东会组织行使国有资产出资人职能是国有资产监管与国有企业改革的方向选择。人民代表股东会中的国资委代表只享有召集、主持人民代表股东会的程序性职权及委派国有企业监事的实体性职权。
[Abstract]:The dual status of SASAC is legally endowed with two rights of different natures: as a government regulatory body, SASAC exercises supervisory and managerial powers of the nature of public power. By virtue of the nature of the "public" nature of power, some reform measures may be enforced, or administrative regulations may be promulgated with the aid of public power; at the same time, as the owner of state-owned assets, SASAC will exercise the rights of state-owned shareholders in accordance with laws such as the Company Law and the Securities Law. Although this right is "representative of the state" as the main body, it still belongs to the category of private rights in essence, and is based on the nature of "private" rights. SASAC must operate in accordance with market rules. As a result, the public power and private right enjoyed by SASAC are inevitably in conflict of interest, which will only lead to the distortion of the two rights. Since the direction of China's reform is the socialist market economy, and since the company with state-owned shares is a profit-making legal person, the principal-agent theory should have an important reference value for the analysis of the principal-agent problem of state-owned assets. Moreover, the conclusion obtained from the above theoretical analysis should be correct, that is, in essence, the design of the investor system of SASAC has not solved the problem of "absence" of the entrustment agent of state-owned assets. It is the direction of state-owned assets supervision and state-owned enterprise reform to establish a people's Congress of shareholders' organization to exercise the function of state-owned asset investor. Deputies to the SASAC of the people's Congress of shareholders shall only have the procedural functions and powers of convening and presiding over the meeting of the shareholders of the people's Congress and the substantive functions and powers of appointing supervisors of state-owned enterprises.
【作者单位】：
【分类号】：F123.7

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