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Study On Legal Issues Related To The Corporate Governace Of State-Owned Holding Company

Posted on:2008-11-24Degree:DoctorType:Dissertation
Country:ChinaCandidate:M J WuFull Text:PDF
GTID:1116360242471212Subject:Environment and Resources Protection Law
Abstract/Summary:PDF Full Text Request
This article approximately 190,000 words, altogether divide into nine parts.This article takes the state-owned holding company's government legal matter the research object. When selected topic mainly is or the supervising and managing authority is insufficient based on the current theory to the state-owned holding company's attention, or is mainly puts the energy in goes on the market the company, and above shareholder multiplication other companies, but to the government as the shareholder or the government took the main shareholder's company, namely the state-owned holding company has not given the enough attention. Certainly looked from government's stratification plane that government's period will transforms through the state-owned holding company's government structure for the state-owned holding company's practical action is a natural matter. Therefore the state-owned holding company's government question in overseas or domestic throughout has not obtained all the quite thorough research also is may understand.This article first obtains from the state-owned holding company's concept and the characteristic, inspection state-owned holding company in various countries economic system environment background status and function. Therefore first obtains from the concept thousandth of a Yuan clear limits, is because of the state-owned holding company's connotation in the theory and the solid service still very fuzzy ,nearly all is displays and the use from the practical angle, quite is at will big.After the comparative analysis, in the limits holding company concept foundation, according to the holding company shareholder's nature classification, this article believed that, the so-called state-owned holding company, is holding company's one kind, is in a present age many market economies country state asset management system important level, is national supervising and managing and one of management state asset organization forms, is the national investment and the authorized establishment state-owned enterprise, it is between the government and the enterprise intermediary, mainly is engaged in the state asset management and the management state-owned sole ownership or the company. The state-owned holding company is refers through has his company certain proportion the stock (either stockholder's rights) in the foundation is engaged in the property right operation and the significant account executive management state-owned sole ownership or the company, is the country by less capitals control more capitals, and is carrying out the economic organization which the management multitudinous state-owned enterprise's function and the realization government's some policy goal sets up. In order to understood well the state-owned holding company the concept, this article also conducts the classified research to the holding company and the state-owned holding company, and to the holding company and between the enterprise group, the connection company's difference and the relation carries on the comparison. This article thought the state-owned holding company has the shareholder aspect the particularity, but also must receive the special law restraint and undertakes the property management management intermediary in the state asset supervising and managing system and so on the general state-owned enterprise no characteristic.The state-owned holding company is the government in the regulative economy "the visible hand" one. The state-owned holding company besides has the general company the moral character, but also concurrently government "color". The state asset in the national economy movement, compares with the private property right exterior, the state-owned property right has the nature, the proper attention to both society overall benefit, pursues and satisfies the social goal, adjusts superiority which the market malfunctions. From on macroscopic looked that, the state-owned holding company is the government regulates the national economy the important tool and the government effective intervention economy method. The state-owned holding company is coordinating the local economy development and the macroeconomic regulation and control policy realization, the investment and the guidance social capital invests a country prioritize the domain and the essential profession, supports the relations state economy life and the national security important profession development, the promotion national economy, promotes the national economy rapidly to recover and so on the aspect function, continuously for sets up the state-owned holding company the country to love to talk about. Moreover, has under the pattern in the our country state-owned capital in the national economy which has draws back, the state-owned holding company massive existences domain often concentrates in the infrastructure profession. These domain critical time national sovereignties and the economic security, are closely linked with the national economy and the lives of the people; The right and wrong state-owned capital because invests in a big way, the recycling time is long, even has no benefits to be gained but is not willing to enter, but the economic society develops the profession which actually extremely needs. The government carried on take the state-owned holding company as the carrier ahead of time invests, was the society provides "the public product", the solution "the market malfunctioned" and undertakes the function which the boost economic society developed. The state-owned holding company undertakes the more social responsibility also is the government sets up one of state-owned holding company goals, the expanded employment, provides the more employment post for the society, stable price, safeguard economic society steady movement.From on microscopic says, the government investment sets up the state-owned holding company definitely to have it seeking to make a profit goal to anticipate, the realization state-owned capital guarantees the value increment. The government through the state-owned holding company's operation to the effective disposition resources, the adjustment economic structure is playing the extremely vital role. At present our country state-owned fund investment, basically is carries on take the state-owned holding company as the carrier, undertakes the investment project design, the construction and the management by the state-owned holding company.Looks over world main market economy country like US, Germany, France and so on the state-owned holding company manages the system environment, may discover, in world main market economy country state asset supervising and managing and management although respectively has the difference, but some same place, has manifested some countries in the exploration state asset management system and the management way aspect regularity knew rises to a new stratification plane.The main country has the difference to the state asset management system, but divides the work is clear about, the governance division is reasonable. Looked from the government stratification plane that, on roughly is through to the state-owned enterprise's management, including aspect and so on human affairs, finance, decision-making and investment carries on the management, realizes to the state as set surveillance and the management. Induces, mainly has following several kind of patterns: One, take the organization as the central management system. Italy is the representative which implements this kind of management pattern. Two, take Ministry of Finance as core management pattern. Three, take synthesizes the synchronizing gear to manage the pattern as the central multi- departments.The our country structure state asset effective supervising and managing management system bare bone is one kind of establishment supervising and managing, transport business and the management relative separation system overhead construction, the main national capital supervising and managing system is similar with the world in. In the world the main national state asset management system basically may divide into three levels: The first level, establishes the parliament and the government to state-owned enterprise's supervising and managing, exercises the enterprise major issue policy-making power, the enterprise high level the leadership personnel to appoint and dismiss the power, to the state as set usufruct and the property assignment power, manages the behavior to the enterprise the supervisory authority and owner right and so on instruction power which develops to the enterprise. The second level is, sets up the state-owned holding company, is engaged in the capital management, the country details to supervise and manage the representative to enter the holding company the board of directors, does not intervene the company daily management to exercise its main function is through the special property right management, the realization social economy development and the government policy goal. The third level is, under the general basic unit state-owned enterprise, establishes the standard the legal person governs the structure, manager which the implementation board of directors leads the responsibility system. The state-owned holding company actually is an important level which in our country and the world in main market economy country state asset supervising and managing and the management all has, plays the role between the government or the parliament and the concrete state-owned enterprise which links the preceding with the following. The state-owned holding company's existence and in the various countries' economy practice after the examination and the confirmation, is effectively alleviates government excessively many interventions concrete enterprise daily management "to isolate the belt" and "the buffer".The state-owned holding company domination is maintains the holding company group system the main link, is the holding company has through the stockholder's rights achieves "the tube person, the steward" the premise and the foundation.The state-owned holding company regularly uses controls its subordinate company the method to include: The sole ownership and so on manifest the stockholder's rights control, the enterprise controls the contract and is entrusted with, the contract rents and so on the aspect contract control. In the middle of holding company's each control method, is the various countries' state-owned holding company utilizes most one method. The state-owned holding company capital extends place, also is the place which its control antenna extends. The state-owned holding company's control method is not its efficient goal itself, but is by the share holder status the efficient right which derives from the shareholder property rights, displays for the state-owned holding company domination.This article from the shareholder, the company controls the stockholder's rights and the control, controls the shareholder ,the company domination, two aspects layer upon layer progressive, the analysis controls between the stockholder's rights and the domination difference and the relation. May infer, the company controls the stockholder's rights is in a domination main part. But western some countries in the process appear "the golden stock" in "the privatization" the system, may regard as is controls the stock holder's rights one kind of special shape. The domination since is one kind of efficient right, it produces the economical root should be the company shareholder benefit value orientation conflict and the balance result.Controls the stockholder's rights market, but are more is been called as the domination market, also has called it controls the stockholder's rights or the domination competition, numerous. The scholars basically the angle which governs from the company to prove the domination or to control the stockholder's rights market, governs the domination as the company the mechanism a part.In the domination market, holding company's motive mainly is the goal company's domination, the holding company obtains the goal company to control the stockholder's rights the fundamental mode to have the annexation and the purchase, frequently is called and buys. The state-owned holding company obtains the goal the domination namely to become controls the shareholder. Controls shareholder's good faith duty similarly to be suitable for the state-owned holding company. But controls the stockholder's rights transfer aspect in the state-owned holding company, current should pay attention prevented state-owned controls the stockholder's rights not when drains, also must pay attention gives dual attention to other shareholders' benefits.The company governs cannot govern the structure with the company to equate, but has not made the discrimination in our country some writings or equally with quite is also common. The company governs is through one kind of system arrangement, reasonably disposes between the owner and operator's right and the responsibility relations. The company governs is refers to the standard company to manage with the control company's institutional framework, is between the standard share holder, the board of directors and the management level mutual right and balances other benefit correlation benefits the system arrangement. The company governs at least including the below content: One is company's internal government, is refers to the company interior the organization establishment and the right arrangement. Two is the money market to enterprise's exterior government, mainly is the creditor supervises the company the related legal mechanism. Four is the capital market to company's exterior government, mainly includes goes on the market the system information to disclose legal system and so on the system and annexation purchase. Five is the manager market to company's government. The complete manager market will create the formidable pressure to company's incumbent operators. Six, drive mechanism to company's government, like stock time power system and soon.The company governs the typical pattern has the English America government pattern, Japan the Germany government pattern, the family government pattern and the government leadership government pattern. The state-owned holding company's government pattern theoretically analyzes should belong to the government leadership control pattern, although profits from other pattern rationalization ingredients, but its particularity quite is also obvious. Is opposite governs to other companies says, the state-owned holding company governs has the government object broadly, the government method complex is diverse, besides drive and surveillance, but also has the control and the coordinated question; State-owned holding company interior government proxy chain link long, the drive way is also richer than other companies. In the state-owned holding company exterior government's inspection and the appraisal holds the quite vital role.The state-owned holding company governs the mechanism also very much to have the characteristic. In the control machine-made aspect, the main method has the stockholder's rights to control, the strategic control, the human affairs and the financial control. But the state-owned holding company's control and the coordinated pattern have the capital control, the administrative control and the mixture control, the platform control. Moreover, because the various countries' company legislates the unceasing consummation, the state-owned holding company occupies in its or in the control company to the status, protects in the young shareholder's benefit and the protection parent company the creditor benefit legal system quite is perfect, this also is the state-owned holding company governs the health development a safeguard.In state-owned holding company's government structure, government "shadow" everywhere obviously. When state-owned holding company for state-owned sole ownership company, does not have the share holder meeting this organ of power, board of director's function and the authority obviously is bigger than east a non- annual bonus the state-owned holding company's board of directors. The state-owned holding company's shareholders are the government or government's special entity like our country national capital committee, or the parliament to the state-owned holding company's management and the monitoring, mainly appoints the trustee, appoints chairman of the board and general manager.The state-owned holding company's board of directors is must suppose the organization. But practices from the world main market economy country state-owned holding company looked that, the state-owned holding company board of director's authority certainly receives is restricted in the shareholder, but the state-owned holding company board of directors authority has limited, board of director's policy-making power is decided by the shareholder or the general meeting of shareholders will. In the state-owned holding company board of director's constitution, member's population are general. The state-owned holding company board of directors member's production aspect all appoints the system. The state-owned holding company board of directors member's status aspect, nearly all has quite part of trustees is an official.The state-owned holding company's board of supervisors overlaps in the responsibility hypothesis aspect and the current domestic independent trustee system. Looked from the development tendency that, extremely has the possibility independent trustee system to be able to substitute for the state-owned holding company the board of supervisors system.State-owned holding company's manager the system extremely is also frail, "officialdom standard" the thought still in has the very big market in the state-owned holding company high-level administrative personnel, makes the big enterprise the goal is for administrative duty being promoted. At present does not have the CEO aspect in our country the system arrangement, state-owned holding company chairman of the board and President (general manager) the responsibility division still was a long process. The overseas CEO system is reconciles chairman of the board and President's authority the position which forms in the same place. But is very big in our country risk, although may enhance the state-owned holding company to carryout the strength, but individual moral risk control also is a not allow to neglect question, otherwise the state-owned holding company's government structure returns factory system time. The best means are, lets chairman of the board's position hold the post by the of noble character and high prestige public celebrities, special matter decision-making and inspection realization, supervision management level activity whether does deviate the board of directors decision-making direction. Changes the legal representative population uniqueness, chairman of the board, President and other trustees all represents the state-owned holding company in its within the job duty. President's position and the candidate, appoint the authority completely gives the board of directors, such board of directors controls the management level empty the authority not as for. President's candidate market, is advantageous to forms a faithful assiduous professional manager the level.
Keywords/Search Tags:state-owned holdingcompany, company govern, stockholder's rights, the domination competition
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