On The Legal Procedures Of State Ownership’s Governance

As an important component of the modern system of ownership, the governance of state ownership is related to the value of the state-owned property, to enhancing the strength of the national economy and macro-control capacity, to public welfare and happiness index of all citizens, and to the success or failure of the country’s long-term stability and socialist cause. It is a major issue in the construction of the rule of law to clarify the rights and power structure of the state ownership, to protect the effective exercise of the state ownership through the legal procedure, to highlight the public value of the state-owned property, to realize the state ownership of the government. At the same time, it is also the proposed urgent demands of the times for the current state ownership’s operation practice to built rigid side-constraints through the legal process, to highlight the public law responsibility of state-owned property, to realize the "limited governance" of state ownership, and achieve the efficient, fair and shared governance. In view of that, the article makes systematic and thorough studies on the procedures of state ownership.Firstly, from the perspective of Marx’s theory, the article defines the basic category of the state ownership’s governing procedures. In China, state ownership plays an important role in the system of property rights, which shows the system function of the state to eliminate exploitation, maintain justice and safeguard human rights, but also truly reflects the economic basis of the public ownership in the superstructure. State ownership is the kind of right mixed private property and public power, which fundamental objective is to achieve the true equality and freedom, and which institutional practice is originated from the long-standing compulsory deprivation of the private ownership. The procedures’governance of state ownership means the different types of public institutions and rules, which ensures the government agencies’ behavior in accordance with law, efficient, equitable and sustainable, by reasonably exercising of possession, use, income and disposition and efficiently using and protecting the national properties, in order to achieve universal sharing and protect human rights.Secondly, the article analyses the acquisition procedure of state ownership, which is the premise of exercising and protecting the state ownership. Based on the type of thinking, the object of state ownership is divided into three types of being exclusive, being general and being special. The exclusive object of the state ownership is the basis of social development and individual survival, and refers to the important resources loading the public interests of the society and eliminating private encroaching, such as mineral resources, waters and sea areas, urban land, etc. In the interpretation of procedures’ governance, the type of public interest should be highlighted, the judgment subject and procedures of public interest should be established, and the judgment of public interest should be included in the scope of judicial review. The non-exclusive object of state ownership mainly includes the state financial revenue, the movable and immovable properties obtained from the state agencies and public services. The acquisition of tax revenue shall be followed by the legal procedure of tax revenue. Fines or administrative fees system is set up, which original intention is not to obtain state ownership, but to achieve the aim of system as the primary value choice; State agencies and public services obtain movable and immovable properties mainly through the government procurement procedures. It ought to respect the habits and do not conflict with the people on obtaining bona vacantia, objects buried and no inheritance property.Thirdly, the article analyses the exercising procedure of state ownership. The exercise of state ownership should follow socialist principle, the principle of national personality distinction and the public interest principle. Also, it ought to obey some particular principles. The exercise of exclusive state ownership should follow the principle of equality, environmental protection and sustainable development. The operational state-owned property must follow the principle of equal participation, efficiency and safety. The license use of the state property must accept the national supervision and shall be governed by the following limitations:the free use of the natural resources by citizens shall not be excluded, unless the use of such freedom is in conflict with the license. The transfer of state-owned land should get full equivalent payments, and the focus should be placed not on the nature of the transfer contract but on the nature of the specific dispute caused by the contract. The bidding process should focus on the comprehensive conditions of the bidders, the auction and listing must decides the land-user based on the price.Fourthly, the article studies the protection procedure of state ownership. Because the state ownership expresses the mixed nature of private rights and public powers, carrying the public interest, the protection of state ownership must rely on the cooperation between public law and private law. Confined to the inner defect, the substantive rules of protecting state ownership cannot be implemented in specific cases. It should build a diversified protection mechanism, pay attention to the combination of advance prevention and afterwards accountability, avoid the superstition about public power, and actively seek public-private partnerships, to completely change the accumulated problems of state ownership’s protection. For decoding the lack of relief power, the ability to state-owned assets supervision and administrative regulation, the state ownership’s public interest litigation should be established.Fifthly, the article proposes the target and the system design of state ownership governance. In current China, the basic target can be decomposed into many principles, such as making the safety and efficiency of state ownership, preventing the abuse of power, coordinating with substantive rules, and ensuring universal rule and share. At the same time, we ought to follow such principles as procedure is stipulated by law, fairness, the principle of "equality in priority, and giving consideration to efficiency", democracy and "Yuan" rule constraint principle, the principle of unified specification and classified design. In detail, we ought to improve the authorization procedure, decision-making procedure, and management procedure, establish benefit-distribution mechanism, and improve the procedures of asset assessment and budgetary control. Additionally, a comprehensive and multilevel supervision system ought to be built, especially the public interest litigation procedure led by the prosecution.