我国国有企业的特殊法律地位

发布时间：2018-03-10 10:00

  本文选题：国有企业　切入点：公共性　出处：《南京大学》2017年硕士论文　论文类型：学位论文

【摘要】：国有企业是国家发展过程中国家设立的产物,国家因担负维护公共利益的使命而具有公共性。国家的公共性使得国有企业在三个方面具有显著的公共性:一是国有企业存在目的之公共性。国家以国有企业形式经营管理全民所有的财产是为达到如下目的:1.为公民提供公共产品、公共服务;2.国企上缴利润纳入公共财政以实现国家目的;3.国企存在本身彰显和维护社会主义制度。二是国有企业的出资人之公共性。按照公共信托理论,政府依法接受全民委托以出资人身份将归属于全民所有的财产注入到国有企业,妥善管理以使全体公民受益。又因信托资产事关多数人利益,政府出资人处置国有资产须受到"公共利益"的约束。三是国有企业的监管人之公共性。国企资产的公共性决定了监管人的广泛性与重要性,国企会受到来自企业内部、出资人、政府、人大、社会的监督。国有企业的公共性决定了国有企业必须履行特殊的义务,这种特殊义务多集中体现在保障公共利益方面。第一,国有企业必须要遵循国家政策,支持国家社会发展。例如公益类国有企业必须落实国家社会经济政策,商业类国有企业应该积极响应国家政策的号召。第二,国有企业必须以服务大众为原则,国企高级管理人员或员工不得垄断或独占国企资源。例如国有企业资源要面向社会公众开放,不能被某些集团垄断或滥用;国有企业的治理过程也应吸纳公众参与,公开面向社会招聘职工。第三,国有企业必须上缴利润纳入公共财产以实现公共目的。政府在取得国有企业利润分红后将其纳入公共财政,支持发展公共事业。第四,国有企业必须自觉接受出资人、国家机关和社会的监督。例如国企应该强化信息披露制度、建立绩效考核制度等,积极主动地接受全社会的监督。第五,国有企业高管应受到《宪法》、《行政法》等公法的约束。国有企业的公共性与国有企业的特殊义务决定了国有企业享有特殊权利。第一,根据权利与义务相一致原则和国家目的之优先性,国有企业享有优先发展权。但并不是所有国有企业都享有该类特殊权利。只有关系国计民生重大利益、处于战略性垄断行业、提供公共产品和公共服务的行业、战略竞争性行业的国有企业或公益类国有企业,享有这种优先发展权。值得注意的是,"优先支持国企的发展"是一项原则性的权利规定,包括但不限于享有财政补贴、税收优惠等政策扶持的权利,政府确保该类国有企业正常营业的权益,享有优先使用公共资源的权利等。无论国有企业获得何种具体的特殊权利,都应以公共利益需求为依据。只要国有企业经营的事业与公共利益挂钩,公共性就将政府、国有企业、特殊权利之间的链条衔接起来。第二,国有企业享有受保护权。由于国有企业关系经济社会发展、公共产品与公共服务供给、国家安全等公共利益,所以国家要保护好国有企业。国有企业的受保护权体现在两个方面:一是政府保护国有企业的发展。二是防止国有资产的流失。第三,国有企业高级管理人员获取报酬的权利也具有特殊性。国有企业高级管理人员的薪酬应由政府根据企业经营状况予以发放。原因有二:一是国企高管受政府委托管理国有企业,其行为可视为政府行为;二是政府支付报酬有助于防止国有资产损失,并对高管形成工作激励。在前述内容的基础上,本文对国有企业立法提出如下建议:一是建议在立法中明确国有企业公共服务职能。二是建议制定国有企业分类考核标准与实施细则。三是建议设计国有企业信息披露制度以强化公共监督。四是建议加强对国有企业高级管理人员公法监督与履职责任。五是建议起草《公共信托法》以缩减全民到国有企业之间的代理层级。
[Abstract]:The state-owned enterprise is a product of the establishment of the state in the development process, and the country has the public due to shoulder the maintenance of public interest of national public mission. So the state-owned enterprises have significant public in three aspects: one is the public purpose of existing state-owned enterprises. To state-owned enterprise management form of property owned by the whole people is to achieve the following objectives: 1. to provide citizens with public goods, public service; 2. of profits turned over to state-owned enterprises into public finance to realize the national objective; 3. state-owned enterprises exist highlight and maintain the socialist system. The two is the public investor of state-owned enterprises. According to the theory of public trust, the government entrusted with the investor to accept national identity Yu Quanmin will belong to all property into state-owned enterprises, in order to make the proper management of all citizens benefit. And because of the trust assets related to the interests of the majority of people, government funded disposal The state-owned assets shall be subject to the "public interest" constraints. Three is the public supervision of state-owned enterprises. The public supervision of state-owned assets determines people extensive and importance, state-owned enterprises will be from enterprises, investors, government, National People's Congress, the supervision of the society. The public state-owned enterprises determines the state-owned enterprises must perform special duties, this special obligations embodied in the protection of public interests. First, state-owned enterprises must follow the national policy, in support of national social development. Such as public welfare state-owned enterprises must implement the national social and economic policies, business class state-owned enterprises should actively respond to the call of the national policy. In second, the state-owned enterprises must be based on the principle of serving the public, state-owned enterprises senior managers or employees shall not be monopoly or exclusive state-owned resources. Such as state-owned enterprises resources should be open to public, some can not be set Group of monopoly or abuse; governance process of state-owned enterprises should absorb public participation, open society to recruit workers. In third, the state-owned enterprises must be paid profits into the public property to realize the public purpose. The government has profit after the state-owned enterprises will be incorporated into public finance, to support the development of public utilities. In fourth, the state-owned enterprises must consciously accept contributions people, state organs and social supervision. For example, state-owned enterprises should strengthen the information disclosure system, the establishment of performance appraisal system, and actively accept the supervision of the whole society. In fifth, executives of state-owned enterprises shall be governed by the constitution to < >, < > and other administrative law law constraints. Special obligation of public and state-owned enterprises state-owned enterprises decision the state-owned enterprises enjoy special rights. First, according to the rights and obligations of the principle of the priority of consistent and objective countries, state-owned enterprises enjoy priority. But not all There are state-owned enterprises enjoy the special rights. Only major interests in strategic relationship beneficial to the people's livelihood, monopoly, providing public products and public service industries, strategic competitive industry of state-owned enterprises or public welfare state-owned enterprises enjoy the priority. It is worth noting that, "give priority to support the development of the state-owned enterprises is a the principle of rights, including but not limited to enjoy financial subsidies, tax incentives and other policies to support the rights of the government, to ensure the normal business of the state-owned enterprises enjoy priority rights, the use of public resources rights. Whether state-owned enterprises obtain what kind of special concrete right, should be in the public interest needs as the basis. As long as the state owned enterprises the business and public interests, the public will be the government, state-owned enterprises, chain link up special rights between. Second, the state-owned enterprises enjoy the right to protection. The relationship between the economic and social development of state-owned enterprises, public product and public service supply, national security and other public interests, so the country to protect state-owned enterprises. To protect the power of state-owned enterprises is reflected in two aspects: one is the government to protect the development of state-owned enterprises. The two is to prevent the loss of state assets. Third, senior management personnel the state-owned enterprises the right to remuneration is also special. Remuneration of senior executives of state-owned enterprises by the government shall be issued according to business conditions. There are two reasons: one is the executives of state-owned enterprises commissioned by the government management of state-owned enterprises, their behavior can be regarded as the government behavior; the two is the government pays to help prevent the loss of state-owned assets, and the formation of work incentives for executives. Based on the above-mentioned content, this paper puts forward the following suggestions on the legislation of state-owned enterprises: one is that the state-owned enterprises clear public service functions in legislation Two. Proposal to develop a classified assessment of state-owned enterprises and the implementation details. Three is the recommended design of state-owned enterprise information disclosure system to strengthen public supervision. The four is the proposal to strengthen the state-owned enterprises senior management personnel supervision and public duty. The five is suggested to reduce the "public trust law > the whole people to agency level between state-owned enterprises.

【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291
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本文编号：1592839