| â… The transformation of Chinese state-own economy is from the bottom up to top, from the micro- to macro- revolution. The path is gradually extended, since there is no previous experience to fall back on, we have to"cross the river by feeling the stone,"as we say in Chinese. The surrounding issues are how to improve the efficiency of the state-own enterprises by first"Setting Free the Right and Making the Benefit"and then through the stages of contracting system and establishing modern enterprise system. During this process, people realized that it was almost impossible to transform the outlook of state-own enterprise from the micro-layer of the issue, especially in lack of a rational state-own assets management mechanism. However, the state-own assets management is, as Premier Wen Jiabao said, challenging and worth exploring. No consensus has been reached on some major facet of the issue. Therefore, Corporate State-owned Assets Law, which was issued in 2008, circumvent problem concerning state-own assets supervision system. This caused great controversy. Problems keep popping up in practices. State-own assets supervision system continues to be the focus of endless discussion.As the transformation of state-own economy goes deeper and deeper towards comprehensive scale, the reform model of"crossing the river by feeling the stone"brings far too much risk and costs if the reform goes wrong. So we should conduct state-own assets management from top to bottom on the basis of deliberation and by letting legislation goes first. This has posed a request that we think about the state-own assets management mechanism with logical mind and work out a carefully designed object model.â…¡This thesis analyzes the duel nature of state-own assets by discussing the natures and exercise of state ownership. There are two natures of the assets, one being"public"and the other being"profitable". On the one hand, state-own assets are owned by the public, so one of its natures is public ownership. The ultimate value of state-own assets is to serve the interests of the country and the society as a whole. Therefore, it is"public"all over and has to meet the purpose of and within the control of collective interests. The country must put the public interest above anything else, so as to realize the common goal of the society, even if it takes the entire state-own assets to fulfill that goal. On the other hand, state-own assets has common nature,"after the interest", such as capital mobility, capital chasing the profit. Under current economic climate, it is vital for the purpose to be realized by efficient and sustainable operation, since state-own assets are assets of operation and capital characteristics. In these terms, state-own assets need efficient operation so that it can maintain and increase the value of itself.The duel natures of being public and profitable originate from double legal personality of a country, which is fully demonstrated in the adjustment of legal relationships as intermingling public law and private law. That is, the management of state-own assets should be complied with the regulations of public laws such as administrative laws and economic laws, while the operation state-own assets should be complied with private laws such as commercial laws. Judging from this, the legislation of management system of state-own assets should base on both the private laws and public laws. Only relying on private law or public law, or putting the legislation of management system of state-own assets above the present legal frame is absolutely unadvisable. Furthermore, we need to arrange the rights of different natures in a reasonable way, so that exercising private power with public law personality or exercising public power with private law personality can be avoided. The two personalities are, therefore, in their own place instead of violating each other's territory.This lays the legal basis of designing the management system of state-own assets.â…¢Under the traditional planed economy, the management of state-own assets was adjusted by the public law, and the administrative means was applied to manage state-own assets. That caused the administration and bureaucratization of management, the very nature of operational characteristic was gone, and enterprises became just factory plants of the government. This was the reason of low efficiency and soft budget during the management of state-own enterprises. What is worse, this became the burden which was bigger and bigger and unbearable for the government under market economy. Then, the transformation of state-own enterprises comes into being, with the purpose of improving efficiency and solving urgent problems.During this process, the transformer tried many means of transformation such as"granting decision-making power to enterprises and allowing them to keep more profit to public finance","enterprises contracting system"and"share holding system". They tried to break the infringement of what planed economy system had on the management of state-own assets so that business right and state ownership were separated from each other. It was hoped that enterprises could be free from the administration and enjoyed its own legal personality and property as an independent legal entity. At last, a path of state-own enterprises transformation was found under the influence of western enterprise theory. The transformer thought, state-own enterprises had the principal-agent problem as the western enterprise did. In order to balance the power between those who run the enterprises and national administrative power, it was important to establish modern enterprise system, which had a rational management system. In order to avoid administrative interference, the exercising of state ownership was considered virtually the same as private ownership. As equally competent market players, the adjustment of relationships should be within the scope of private laws such as corporation law. This theory and logical thinking has profound impact on the transformation of state-own assets management, which is closely related to state-own enterprises reform. This theory builds the ground work for state-own assets management system.State-own assets management system model is also worth exploring. The state is asked to perform its right to manage as the same as private owner. The management power should be separated from the ownership. State-own assets management changes from being adjusted by public laws to mainly being adjusted by private laws which features investor system as the core.The 16th Central Committee of Communist Party of China put forward that a system of"The central government and local governments to fulfill the responsibilities of investor on behalf of the State, enjoying owner's equity, rights, obligations and duties and administering assets, personnel and other affairs of combining state-owned assets management system". This has confirmed the frame of current state-own assets management of which the investor was the core. This idea got approved on the 10th National People's Congress of People's Republic of China. A department, State-own Assets and Administration Commission was established to perform the responsibility as the investor on behalf of the state, so that state-owned assets can maintain and increase its value. As the investor role became more organized and specialized, state ownership can be realized in the way of market and reached the balance of management power. The distribution and mobility of state-own assets are more efficient, and drives the capital utilization as well. The value of state-own assets can be better increased. In 2003, the Interim Measures for the Supervision and Administration of State -Owned Assets of the Enterprises (hereinafter referred to as"the Measures") was enacted. In 2008, Enterprise State-Owned Assets Law was issued. These two laws form current state-own assets management system framework from both administrative and legal regulation angle respectively.â…£Aiming at improving the efficiency of state-own assets, present management system changes the pattern of which administrative power had total control over state-own assets in traditional planned economy system by putting investor system as the core. As the reform of state-own economy goes into fully scale, people recognize increasingly that the substantial difference between state ownership and private ownership is public ownership. Implementation of national ownership by private law-based approach to improve the capacity of state-owned capital to serve the community, but the goal of state-owned capital is fundamentally different from that of profit-driven private capital. The problem of the current system is the negligence of the public nature of state-owned capital in that the current system makes no difference between management of state-owned capital and private-own funds. So, in the arrangement of the system, too much emphasis is put to investor system building, while little attention is put to peoples'democracy and separation of public power. People think that as long as a perfect investor system is built, and the new system can takes the state-owned enterprise along to the new stage, no administrative interference is in the way and the value of state-owned assets is increased, the efficient management of state-owned assets can be realized. It is, however, wrong to take it for granted. Many theoretical and practical problems pop up, mainly in the following four aspects:First, the legislation is over-private. The existing system aims to "further improve the state-owned enterprises, the development and expansion of state-owned economy to achieve value of state-owned assets", that is, its legislation purpose is to improve the efficiency in the use of state-owned assets. The society overall interests value orientation of state-owned assets as public capital lacks recognition. This arouses extensive controversy and obscures the fundamental value of the existence of state-owned assets.Second, the ultimate owner is missing. The current management system of state-owned assets have rationalized the relationship among"investor","invested enterprise to fulfill the responsibility of investor"and"investor institutions"in the principal-agent chain. But current system includes nothing about the relationship between the ultimate owner-the people and the investor.Third, the positioning of the state-owned assets supervision institution is bias. As a specially built institution by the government, State-own Assets and Administration Commission was born from the State Economic and Trade Commission and Central Work Commission for Enterprises, and the personnel are public servants. The way of the setting State-own Assets and Administration Commission is administrative, which is complied with the pattern of administrative heads being responsible for the administrative bureaucratic. As an administrative institution, the internal mechanism is far too rigid than that of traditional state-owned enterprises. It can be seen from this point that the positioning of investor role has conflicts with the organizational method and nature of the State-own Assets and Administration Commission, which is difficult to assume the role of share holders in market economy. Thus, the problem of the function of investor is"absence, offside or dislocation"by the State-own Assets and Administration Commission.Fourth, the governmental supervision power is obscure and missing. The Measures say, the State-own Assets and Administration Commission is entitled to the supervision function and investor function. The double identities of the State-own Assets and Administration Commission are highly controversial. The Law of the People's Republic of China on the State-Owned Assets of Enterprises takes away the supervision power from state-own assets supervision institution and clearly state its legal position as a"pure""clean"investor. It also stipulates that State-own Assets and Administration Commission has the authorized power to exercise the investor responsibility on behalf of the government on the same level. However, while The Law of the People's Republic of China on the State-Owned Assets of Enterprises takes away the supervision power from state-own assets supervision institution, the law doesn't appoint governmental department to assume the supervision responsibility. So, the governmental supervision power is obscure and missing.â…¤The deepening reform of state-own economy requires us to explore extensively and comprehensively for a more rational and scientific system to manage state-own assets. The author thinks that the building of such a system should be based on the concept of"the society as a whole", that is, a system should be built with the starting point being the exercise of ultimate owner, while abiding by the coordinated principles of following the rule of law, people's democracy, and the separation of powers, public and private law. The investment decision, implementation and supervision should all be paid enough attention to.First, the principal-agent relationships should be struck a balance. On the constitutional level, the public should be given the rights to managing the state-own assets, voting, participating, supervising and knowing. This shows truly the assets'public ownership so that the state-own assets serve the interests of the society as a whole rather than just minority and small group's interests.Second, the National People's Congress should exercise the decision-making power of state-own assets, that is, to determine how many state-own assets there are, the form and transformation of state-own assets, the area and industry sector the state-own assets are in, and the approaches of state-own assets are transforming between different sectors. This thesis argues the reason of National People's Congress exercising the ultimate disposal power since People's Congress are most close to the people among National People's Congress, administrative institutes and judicial institutes. The National People's Congress also enjoys more democratic basis. In order to fulfill the power, a state-own assets decision making commission should be established under the National People's Congress.Third, the reform should also happen on the implementation of state-own assets level. To improve the utilization of state-own assets, the operation of the profit-making assets should be run in the approach of private own funds. This means the management implementation power is primarily reflected in the right to contribute capital. So the investor organization should be professional and commercial in the competitive market. However, current practice shows that administratively-organized and operated State-own Assets and Administration Commission is not fit to serve the investor role. So, it is necessary to reform the main body of investment. There are two ways to reform the model. One is to restructure the State-own Assets and Administration Commission, push it toward professional and commercial organization so that it becomes"pure""clean"investor. Two is to establish an operational company which has modern corporate management system for the state-own assets investment. Current exploration shows that since the State-own Assets and Administration Commission has its own pattern of operation, personnel recruitment and thinking, it is extremely hard to reform its power-exercising pattern. To build a operational company is much easier and preferable.Last, the reform should also take place on the supervision level. A complete supervision system which includes the governmental institutes, National Peoples'Congress, audit supervision and judicial supervision organizations should be constructed. The governmental institution needs to be specified in the exercising of supervision power. It should be fully recognized that governmental supervision is an administrative power different from traditional administrative intervention, and it is a very important link during the supervision of state-own assets. The rational return of governmental regulation can rationalize and standardize the management of state-owned assets and prevent the loss of state assets.
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