公平竞争视角下国有企业改革法律问题研究

发布时间：2018-01-01 16:34

本文关键词：公平竞争视角下国有企业改革法律问题研究　出处：《湖南大学》2016年博士论文　论文类型：学位论文

【摘要】：作为世界范围内普遍存在的一种经济现象,国有企业并非中国的独有专利,无论是发达国家还是发展中国家,都不同程度地存在着国有企业,故国有企业具有现实的正当性。各国国有企业的发展实践也已经证明国有企业是政府克服自然垄断问题、解决公共产品供给不足、调节收入分配差距、保障国家经济安全、实现快速工业化的有效方式,故国有企业也存在充分的理论正当性。然而,实行市场经济制度的国家在近百年间所推行的国有企业改革,也说明了一个事实:在市场经济发展完善的过程中,国有企业与市场机制存在难以协调的矛盾,一个国家市场经济发展的程度越高,决定了其对国有企业的需求程度越低。这是因为,国有企业仅是市场机制的一种极为有限的补充,其通常是作为政府干预经济的手段之一而存在的,成熟的市场经济体制对政府干预始终持有谨慎的态度,以降低比重形式对国有企业进行控制,是发挥市场资源配置作用的前提,也是对公权力限制的客观需要。从1978年开始,我国国有企业改革至今已走过三十余年历程,回顾既往国有企业改革中的种种措施,可以发现,对企业微观经济效率的追求是贯穿于整个改革中的“主旋律”,当“做大做强国有企业,搞活搞好国有经济”成为国家政策的正当表述,“保值增值”被确立为国有资产运行的法定目标时,围绕着国有企业改革的主流学术研究也多以如何提高企业效率为中心展开。从目前国有企业的业绩表现来看,以效率为导向的改革是成功的,也是值得肯定的,但另一个不容忽视的关键是,国有企业改革是我国经济体制改革的重要组成部分,其改革的成功与否,必须放置在完善市场经济体制的背景框架下进行评判,如何协调国有企业与市场经济关系则是重点与难点。然而从目前的实践来看,我国做的并不够好。关于国有企业的争论并没有因为国有企业的效益改善而停止,近年来,公众对国有企业的诟病已从企业效率低下转向其参与市场竞争的公平性。市场经济的本质是竞争经济,公平竞争也是市场经济的最突出特征,相比起其他市场主体而言,国有企业目前享受着更多非市场性竞争优势,主要体现在四个方面:首先,在市场准入制度中,存在较为严重的所有制歧视现象,部分行业只允许国有企业进入并实行垄断经营;其次,在政府补贴中,国有企业总能够以低价甚至无偿方式占有稀缺性资源,并获得大量的政府专项拨款;再次,在企业税收优惠政策中,国家会为国有企业度身订制专属性的政策,实现对特定国有企业的税收减免;最后,在企业融资市场中,无论是以银行贷款为主的间接融资渠道还是以股票证券市场为主的直接融资渠道,国有企业都能获得更多的市场资本。在国有企业所享有的非市场竞争优势中,部分是因为法律与政策的规定显失公平,部分是因为貌似公平的制度在执行过程中因国有企业与政府的天然紧密关系而走样。从1992年我国将“建立社会主义市场经济制度”确定为经济体制改革的目标,到二十世纪末,宣布已初步建立社会主义市场经济体制,不过短短数年,并且,我国对完善社会主义市场经济的目标追求从未懈怠,这彰显了国家的决心,但仅靠宣示并不足以证明体制改革的成功,制度变迁必然是一个漫长复杂的过程。在我国构建市场经济制度的过程中,由于意识形态认知以及既有利益格局已然形成等复杂原因,本应作为约束国有企业的市场法律制度,却异化成为保护国有企业的武器。国家对国有企业的实质性保护显然偏离了市场化改革之本意,这是造成国有企业目前与市场经济机制不协调现象的根本原因,并且,对国有企业的过度保护是危害极大的,其是以侵蚀市场经济所要求的公平竞争机制为代价的。十八届三中全会指出,要“深化经济体制改革,坚持和完善基本经济制度,处理好政府和市场的关系,使市场在资源配置中起决定性作用和更好发挥政府作用。”新时期中央高层释放的积极信号为下一阶段深化国有企业改革指明了方向。从国有企业与市场经济制度的现实问题来看,完善市场经济的改革方向决定了将“公平竞争”理念融入国有企业改革的必要性,公平竞争的实现需要做到国有企业与其他市场主体间的起点竞争公平、过程竞争公平、结果竞争公平。从完善市场经济的长远目的来看,未来国有企业的改革总体方向是适度收缩规模。鉴于我国依然拥有庞大国有企业群体的事实,收缩规模的具体方式是对国有企业进行法治化的分类改革,将国有企业分为公益类国有企业与商业类国有企业。其中公益类国企应当进行专门立法,严格控制企业的业务经营范围,保证企业切实履行公益职能,并制定与企业职能相符的考核标准。商业类国有企业应当通过引入民营资本的方式进行混合所有制改革,以实现优化公司治理,提高企业绩效的目的,也为在未来,国有资本渐进式足价退出商业性领域,以及防止国有资产不当流失提供良好基础。此外,还应当禁止行政机关以履行部门职能为名,以实现部门利益为实,擅自新设竞争类国有企业。在未来深化国有企业改革的过程中,国家还应当完善以反垄断法为核心的竞争法律制度,践行市场经济是法制经济的本意。竞争法律制度需要解决的两个核心问题是其对国有企业的适用以及对政府行为的控制,为此,我国应当修订反垄断法中相关内容,以实现反垄断法对国有企业及其他市场主体的平等适用。强化对政府行为的控制,在反垄断法中引入竞争中立政策,增设对国家援助行为的控制,细化行政垄断法律规定,严苛法律责任,构建竞争推进制度以弥补刚性执法存在的不足,完善行政垄断私人诉讼机制。
[Abstract]:As a kind of economic phenomenon in the world exists, state-owned enterprises are not Chinese exclusive patents, both developed and developing countries, there are different degrees of state-owned enterprises, state-owned enterprises have the legitimacy of reality. The development practice of state-owned enterprises in different countries have already proved that the state-owned enterprise is the government to overcome the natural monopoly problem solving the inadequate supply of public goods, adjust the income gap and safeguard national economic security, effective way to achieve rapid industrialization, the state-owned enterprises have sufficient theoretical legitimacy. However, the implementation of the reform of state-owned enterprises in the past hundred years the implementation of market economic system of the country, but also means that in the development of the market economy to improve in the process of state-owned enterprises and the market mechanism is difficult to reconcile the contradictions, the higher a national market economy development level, determine the country There is a demand level of enterprise is low. This is because the state-owned enterprise is only a very limited supplement of the market mechanism, which is usually exist as one of the means of government intervention in the economy, mature market economy always hold a cautious attitude towards the government intervention, control of state-owned enterprises in order to reduce the proportion of the form is the premise to play the role of market allocation of resources, but also the objective need of public power restriction. From the beginning of 1978, the reform of state-owned enterprises in China has gone through thirty years of history, reviews various kinds of measures previously in the reform of state owned enterprises, can be found on the micro economic efficiency is throughout the whole reform in "the main melody", when the "bigger and stronger enterprises, invigorate the state-owned economy" has become a legitimate expression of national policy, the "value" was established as the state-owned assets operation method goals, Research on the academic mainstream of the reform of state-owned enterprises is to how to improve the enterprise efficiency as the center. From the current state-owned enterprise performance, efficiency oriented reform is successful, is worthy of recognition, but the other one can not be ignored is the key, the reform of state-owned enterprises is an important part of China's economy system reform, the reform is successful or not, must be placed in the perfect market economic system under the framework of evaluation, how to coordinate the relationship between state-owned enterprises and market economy is the key and difficult. However, judging from the current practice of our country, and do not good enough. The debate about state-owned enterprise and not because of benefits the state-owned enterprises to stop, in recent years, the public has been criticized for the state-owned enterprises from the enterprise efficiency to the fairness of participating in the market competition. The essence of market economy is a competitive economy, the public The most prominent feature of the market economy competition is flat, compared with other market players, the current state-owned enterprises enjoy more non market competitive advantages, mainly reflected in four aspects: first, the market access system, the system of ownership discrimination phenomenon is more serious, some industries are only allowed to enter and the monopoly management of state-owned enterprises secondly, government subsidies; in total, state-owned enterprises to low-cost or even free of charge way to occupy scarce resources, and get a lot of government funds; thirdly, the tax preferential policies for enterprises in the country for state-owned enterprises tailored specific policies, implementation of specific tax relief for the state-owned enterprises; finally, in enterprise financing market, whether it is indirect financing to bank loans or to the stock market as the direct financing channels, state-owned enterprises can obtain more market Capital. Enjoy state-owned enterprises in the non market competitive advantage, partly because the provisions of the law and the policy is unfair, partly because the seemingly fair system in the implementation process for state-owned enterprises and government and the close relationship between natural shape. From 1992, China will establish a socialist market economic system "as the goal of the economic system reform, to the end of twentieth Century, announced that it has established the socialist market economic system, but just a few years, and in China to improve the socialist market economic goals never slack, which demonstrates the country's determination, but it is not enough to prove that the success of reform, institutional change is an inevitable long and complex process. In the process of constructing market economy system of our country, because of the ideological cognition and existing pattern of interest is the formation of complex reasons, this should be the The constraint of state-owned enterprise market legal system, but alienation became a weapon. The protection of state-owned enterprises substantial protection of SOEs have obviously deviated from the market-oriented reform intention, which is the fundamental reason causing the current state-owned enterprises and market economy mechanism disharmony and excessive protection of state-owned enterprises is great harm it is, at the expense of the fair competition mechanism of erosion of market economy demanded. In the third Plenary Session of the 18th CPC Central Committee pointed out that "to deepen the reform of economic system, adhere to and improve the basic economic system, handle the relationship between government and market, make the market play a decisive role in the allocation of resources and better play the role of government. The central level positive signal in new period the release of the next stage of deepening the reform of state-owned enterprises and the direction. Practical problems from the state-owned enterprises and the market economy system, the perfection of the market economy The direction of reform will determine the necessity of "fair competition" concept into the reform of state-owned enterprises, to realize the fair competition so that the starting point of state-owned enterprises and other market players between the process of fair competition, fair competition, fair competition results. From the long-term goal of the market economy and the improvement of the overall direction of reform of state-owned enterprises, the future is moderate contraction the scale. In view of our country still has a huge state-owned enterprise group in specific ways to shrink the size of classification is the rule of law reform of state-owned enterprises, state-owned enterprises will be divided into public welfare state-owned enterprises and commercial state-owned enterprises. These should be special legislation for public welfare state-owned enterprises, strictly control the scope of business enterprises, ensure that enterprises to fulfill public functions, and to develop consistent with the enterprise function assessment standards. Business class state-owned enterprises should be the introduction of private capital through the way Mixed ownership reform, in order to realize the optimization of corporate governance, improve corporate performance, as well as in the future, the full price of state-owned capital gradually withdraw from the commercial area, and to prevent loss of state-owned assets not provide good foundation. In addition, it should prohibit administrative authorities to fulfill functions of the name, in order to achieve departmental interests for the real, without the new competitive state-owned enterprises. In the process of deepening the reform of the state-owned enterprises in the future, countries should also improve the anti-monopoly law as the core of the legal system of competition, the practice of market economy is the legal economy. The intention of the two core problems of competition legal system needs to be solved is the application of the state-owned enterprises and the control of the behavior of the government in our country should amend the relevant content in the anti-monopoly law, in order to achieve the anti monopoly law is equal to state-owned enterprises and other market players. To strengthen the government behavior control In the anti-monopoly law, we introduce the policy of competition neutrality in the anti-monopoly law, increase the control of state assistance behavior, refine the administrative monopoly laws, strictly enforce the legal responsibilities, and establish a competition promotion system to make up for the shortcomings of rigid law enforcement, and improve the administrative monopoly private litigation mechanism.

【学位授予单位】：湖南大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D922.294

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