Study On The Legal Innovation Of Enterprise State-owned Property Right Transaction

The enterprise state-owned property right transaction is an important part of the state-owned asset management. It is important for strategic adjustment of state-owned economy distribution and structure; preserving and increasing the value of state assets; strengthening the state-owned enterprise governance; developing and perfecting multi-level capital market. For the legal system plays an important role in regulating and promoting the state-owned property right transaction, so we should continue innovating legal system in order to ensure its scientific development.The legal innovation of the enterprise state-owned property right transaction relates to several controversial core concepts such as property right, state-owned property right, enterprise state-owned property right and enterprise state-owned property right transaction. Defining them explicitly to clear the research objective is the logical starting point for this paper. In this paper, the enterprise state-owned property right transaction should be understood in the narrow sense, which can be defined as the paid juristic act that enterprise state-owned property right subject transfers its transferred property right legally owned through the tangible property market(institute, center) according to law. Its basic operation process includes transaction commission, transfer application, acceptance and examination, information disclosure, registration of the transferee, negotiating and determining the way of trade, turnover and signing, clearance and settlement, issuing transaction certification. The legal relationship of enterprise state-owned property right transaction is embodied in the operation process. Due to the legal relationship based on relevant regulations includes subject, object and content; and the state factor contained in the state-owned property makes it required efficient supervision, this paper will research on the legal innovation of legislation, subject, object, pricing mechanism and regulatory system systematically.The theoretical basis of the legal system of enterprise state-owned property right transaction lies in the particularity of state-owned property right compared with private property right, which embodied in principal-agent chain longer,the ultimate owner's ownership indivisible and non-transferable, impersonal agent, administrative commission and capital commission co-existing , profit-generating and public welfare coexisting. The practical value of innovation consists in macro value, meso value and micro value.In the aspect of the legislative innovation, it should be perfected through enacting"Interim Regulation on the State-Owned Property Right Transactions"; further perfecting state asset management regime provided in"Law of the People's Republic of China on the State-Owned Assets of Enterprises"and positioning State Asset Supervision and Administration Commission(SASAC) as a administrative organization performing regulatory functions; innovating matched the legal system of enterprise state-owned property right transaction, because the legislative starting point of"Law of the People's Republic of China on the State-Owned Assets of Enterprises"emphasizes on preventing loss of state-owned assets too much; the provisions in"Law of the People's Republic of China on the State-Owned Assets of Enterprises"are too principled and have some gaps; the level of the specific legislative is low and the nature of the specific legislative is suspenseful, the legal status of SASAC may affect the fairness of its legislations; local legislations and departmental standards are too inflated; the legislations lagging, contradictory,lack of a rational framework can hardly meet the development needs of the market economy and don't form a complementary and assorted legal system. The law region of"Interim Regulation on the State-owned Property Right Transaction"recommended in this paper is a part of economic law department. Its legal status should be"economic law——state-owned economic law——state-owned capital management law——"Interim Regulation on the State-owned Property Right Transactions". Its legal characteristics include: the unity of organic law and practice law; comprehension; strong policy and weak internationalism. Its fundamental principles include: open, fair and impartial principle; competitive principle; tampering principle and the principle considering both security and efficiency.In the aspect of the legal innovation of transaction entity, this paper argues that the transferee should be expanded through straightening out the legal system of MBO, strengthening employee stock ownership system and introducing "Equity Investment Fund Management Measures" as soon as possible. The legal system of MBO should be straightened through re-determining the scope of state-owned enterprises, modifying the legal restrictions on the shell company, perfecting related provision to open financing channel.In the aspect of the legal innovation of property market, this paper argues that property right is a significant legal innovation in the legal system of enterprise state-owned property right transaction and a china's creative contribution to the world, the essence of the tangible property market is whether the enterprise state-owned property rights should enter the market. This paper argues that it should maintain tangibility. In addition, because presently there are still some problems such as there are still large theoretical differences about the legal status of property market and too many property right markets; the layout of property right markets is lack of scientific; the legal nature of property right market is chaotic and the operation model of property right market is not uniform, the property right market should be rebuilt legally through adhering to the legislative idea that the property market is belong to capital market; establishing market access system of property right market; making the legal nature of property right market as a public institution legal person clear and making the member system as the basic operation mode.In the aspect of the legal innovation of the object, this paper presents the innovative measure of property right securitization. The theoretical basis of property securitization is contestable market theory. The necessity lies that it can prevent the loss of state-owned assets; preserve and increase the value of state-owned assets; promote the strategic adjustment of state-owned economy; benefit property right flowing, restructuring and optimizing the allocation of resources and building our country's multi-level capital market; achieve property right justice and accord with objective discipline. The feasibility lies that china has received both positive and negative experiences; the restructuring of enterprise has tended to be completed, asset securitization has also been preliminary carried out in practice; the current legal framework has also provided corresponding policy space; equity management services and equity transfer services of non-listed company have been generally carried out in the property market; stock exchange has been established in Tianjin and the risk of capital market doesn't depend whether to carry out property right securitization or not, but rather regulation, self-discipline, the quality of property rights, etc. So"Three No's","shall not be split, not standardized, not continuous traded", as property right securitization transaction's barriers should be cancelled. Then the enterprise state-owned property right transaction after property right securitization will transform into over-the-counter securities exchange. Drawing on the experience of international practice about the legal system of over-the-counter securities exchange, this paper argues that the basic system of property right securitization is supposed to include market access system, mixed market-maker system, information disclosure system and transfer plate system. information disclosure system, as for there are some problems as follows: the system does not achieve complete reunification over the country; the wide coverage and authenticity of information are very difficult to be guaranteed; the minimum period is too short and the eligible condition of the transferee is not detailed and specific. It ought to innovate through comprehensively providing information disclosure system in"Interim Regulation on the State-owned Property Right Transactions"; expanding the coverage of information disclosure compulsively; extending the minimum period of information disclosure system, clearing what a reasonable qualification of the transferee and formulating corresponding operational specifications for different situation and clearing the legal responsibility of information disclosure system. In the transaction method system, as for there are still some problems such as the rule of direct agreement is too principled, which can't make sure that the enterprise state-owned property right enter into property right market; there is not mandatory rule on the agreement after the open call causes that open bidding rate improved slowly; there is no provision about what is internet bidding, how are the several ways of internet bidding, how to apply the several bidding methods; the specific way of the auction is not cleared and the effectiveness of"one person bidding"is controversial, it ought to innovate through clearing the scope of the key industries and the key areas at the level of laws and regulations; providing compulsively that the property right market should control the agreement in a certain proportion; clearing the concept of internet bidding, the several specific forms and the specific applicable circumstances of internet bidding; amending"Auction Law"to clear the several specific forms and specific applicable circumstances of auction and amending"Law of the people's republic of china on bid invitation and bidding". In the aspect of asset valuation, as for there are still some problems such as the legislations are in a low level and lag behind, not forming a unified, rigorous, scientific laws and regulations system; the pattern of government management is"five dragons control water"; the rule of the assessment method is too principled; the individual direct civil liability of CPV is still blank, it ought to be innovated through amending"Administration of State Asset Valuation", enacting"Asset Valuation Management Law"and"CPV Law"timely; straightening the administration regime of asset valuation; providing detailed the specific circumstances that each asset valuation method applies; strengthening the supervision on asset valuation institutions based on the market mechanism.Apart from the five aspects above, the regulatory system of the enterprise state-owned property right transaction must be innovated to strengthen supervision of enterprise state-owned property right transaction too, because the market mechanism is very difficult to play an efficient role in the enterprise state-owned property right transaction, while the market environment is not satisfied and the market imperfections exist, further strengthened by the particularity of the state-owned property right. Against the current regulatory system of enterprise state-owned property right transaction, this paper argues that it should be innovated through the three macro aspects as follows: repositioning state-owned asset regulatory institution; constructing scientific supervision pattern of property right market and establishing the public interest litigation system.