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On Exertion Of State Ownership

Posted on:2006-08-21Degree:DoctorType:Dissertation
Country:ChinaCandidate:J HuangFull Text:PDF
GTID:1116360182967642Subject:Civil and Commercial Law
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Proprietary right is the foundation of jus rerem. As the basis for regulating property relation, proprietary right is the economic and legal phenomena of all ages existing at home and abroad. It is not only closely linked with the property owner's interests, influencing the protection of human's rights, but directly involves the essential economic system of the state and indirectly affects a country's fundamental political system.The state ownership has been the ever-present form of proprietary right ever since the country arose, not exclusive to socialist countries. The theory and practice of state ownership has long been the emphasis of socialist China's legal study. However, with the exposure of various problems in Chinese state-owned enterprises reform and the development in domestic legislation on right in rem, the disputes around state ownership never halted. The author insists that, how to construct the exercising system of state ownership is the key and nodus necessary to solve. Therefore, the legislation on right in rem shall not be evaded. This thesis carries out comprehensive analysis and research centering on the exertion of state ownership.Chapter 1 analyzes the basic domain of state ownership. The domestic civil law academia had long been highly consistent on the basic domain of state ownership, while many scholars challenged the concept, subject, object and nature of state ownership during the legislative process. Through reviewing several typical viewpoints, this thesis holds that state ownership is one form of proprietary rights, belonging to private right but not administrative power. The subject of state ownership is the country, possessing the characteristics of dualism and abstract in personality. The demarcation line between the object of state ownership and state-owned property must be clearly defined. And not all state-owned property can be incorporated into the domain of state ownership. Besides, commonality is one nature of state ownership, manifested in subject, utility and final aim. Jus rerem shows strong inherence, thus the legislative design on proprietary rights shall retain the distinction among state ownership, collective ownership and individual ownership. Simultaneously, the category of ownership shall be consistent with the protection of equal subjects, and the special treatment to the state ownership shall be abolished.Chapter 2 expounds upon the general questions on the exertion of state ownership. Firstly the exertion of state ownership is defined as: behavior of utilizing . state-owned property consistent with its social or natural attributes by subjects authorized by the state, features of which are being exercised by non-proprietor, commonality of exertion goal, diversification and distinction of exertion means. Secondly, the viable exertion modes of state ownership are analyzed, beginning with the Roman law classification of state ownership. Henceforth, several distinct classified legislation modes came into being. Because of the variety and distinct nature of the objects of domestic state ownership, these modes present important significance for Chinese exertion of state ownership. Our country shall construct such classified exertion modes according to the natural attributes and social missions ofstate property. Thirdly, the principles which should be followed during the exertion of state ownership are probed into. Because the legal principles derive from the social life, our country shall follow the principles of equality, separation, distinction and efficiency. Lastly, the exertion of state ownership shall be aimed at common good.Chapter 3 analyzed the historical flux of the exertion of state ownership and made comments on it. During this process, the exertion of state ownership features confusion of dual legal personality, direct exercising means, administrative exertion and hierarchy in exertion. It is these features that solicited various malpractices of state ownership and broad criticism by all circles. Digging into the source, the present exertion mechanism of state ownership is derived from the demonstration effect of former Soviet mode. To eradicate the present malpractices, the dual legal personality of state shall be distinguished, special bodies shall be established to exercise the state ownership, the hierarchy system shall be abolished, the direct and indirect means shall coexist, the direct control on reality shall be converted to control on value and the diversity and openness of state ownership exertion shall be retained to adapt to the continuous developments of practice.Chapter 4 discusses the exertion of non-business state property ownership. Non-business state property includes public property and resources property. Three elements must be comprised in public state property: subject (provided by the state), goal (for public use) and object (things corporeal). On the relation between the state and public property, the ascription and utilization are questions on two layers. The public missions for the public property do not cut off its ascription relation, and once the public use obligation was repealed, the public property would be the same with common property. Therefore, the relationship between the state and public property belongs to civil law proprietary right relation. The public property could only be owned by the state for the needs of country's operation and non-exclusiveness of use. The public property shall be occupied and used by the state limited for the aim of performing the duty. The use of public reality includes common use and approved use. Besides, limitations shall be set upon it for the public use aim. Considering the scarce and non-reproductive nature of natural sources, based upon the coordinating needs, resources are mostly owned by the state to conciliate the contradiction between the economic and ecological effect of natural sources.Chapter 5 centers around the exertion of state ownership of business property. It first reviewed some typical countries' existence of business property in competitive fields and pointed out that its existence in competitive fields is a common phenomenon. Retreat from general competitive fields in our country shall follow the principles of compensation and prevent inner persons from profiting. The exertion means of state ownership of business property can be contracting, lease, sale, share investment and trust, etc..
Keywords/Search Tags:state ownership, exertion, separation, classified exertion
PDF Full Text Request
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