On The Right To Use Non-profit State-owned Assets

According to its nature and function, the state-owned assets in China can bedivided into the profit state-owned assets and the non-profit state-owned assets. Fromthe narrow sense, non-profit state-owned assets is not directly involved in theproduction and circulation process; it is a general term for a variety of nonprofiteconomic resources that are in possession and use of the corporate bodies ofgovernment and public institutions, for the completion of the tasks of stateadministration and pubic utilities, legally admitted by the state and able to bemeasured by monetary. It is the material cornerstone for the normal operation of thecorporate bodies of government and public institutions, which shares more thanone-third of the total amount of state-owned net assets, amounting to more than eighttrillion yuan. In reality, there exists the serious loss of non-profit state-owned assetsHowever, so far, there is still no national legislation for non-operating state-ownedassets system. Thus, how to build effective legal protection mechanisms fornon-operating state-owned assets system is a significant research subject for thescholars.In order to solve the problem of the loss of non-profit state-owned assets from alegal perspective, it is necessary to make a systematic research on the legal protectionmechanism of non-profit state-owned assets from the theoretical basis of the PropertyLaw to the construction of the system. The motivation for the birth of this research isthat the present researches on non-profit state-owned assets management systemmainly focused on the fields of researches on Economics and Administrative Scienceswhile the research achievements on the field of law is mainly on the formulating ofthe public property law from the perspective of administrative law. Limited by theapproaches, the methods and the contents of research, the present researchachievements cannot provide strong theoretical support for the non-profit state-ownedassets management system in our country. Thereby, the current legislation can noteffectively solve the problem of the loss of the non-profit state-owned assets andprovide a sufficient legal basis to solve the problem. This article provides a rational thinking on the legal protection of the non-profit state-owned assets from theperspective of private law and analyzes the legal means of the reform of the non-profitstate-owned assets from the dimension of the Property Law. The article makes a pointon a new type of usufructuray right—the right to use the non-profit state-owned assetsby building an object for the non-profit state-owned assets. The article provides acomprehensive and systematic research on four aspects including the current situationand the problems of the non-profit state-owned assets, the necessity and feasibility ofsetting up the right to use the non-profit state-owned assets, the legal elements andlegal protection of the right to use the non-profit state-owned assets, aimed atproviding theoretical support for solving the problem of the loss of the non-operatingstate-owned assets and opening up a new approach for exploring the protectionmechanisms of the non-operating state-owned assets. The essay is divided into fourparts, which is briefly described as follows:First, on the current situation and the problems of non-profit state-owned assets.To begin with, the state-owned assets can be divided into profit state-owned assetsand non-profit state-owned assets according to its nature, purpose and function. Theformer includes the profit and resource state-owned assets of state-owned companies.The latter includes public non-profit state-owned assets and narrow non-profitstate-owned assets. The non-profit state-owned assets in this article refers to a varietyof nonprofit economic resources that are in possession and use of the corporate bodiesof government and public institutions. It is concluded that the non-profit state-ownedassets has a wide permeability by analyzing its value and function and comparing itscommonness and individuality with that of the profit state-owned assets. It is thematerial guarantee of the national political, cultural and economic normal operation,which carries the historical mission to provide public and quasi-public products forsociety. The essence of the non-profit state-owned assets and the profit state-ownedassets is that they both are a kind of property. The natural separation of propertyownership and use is their common characteristics, which is also the common startingpoint and key point of establishing other legal protection mechanisms. Then, in orderto state the situation and causes of the institutional loss of non-profit state-ownedassets, this chapter will classify and list some typical assets examples such as the “three” official consumptions, uneven asset allocation, the idling and abandonment ofassets, the illegal construction of office buildings and hotels. Finally, this essay willanalyze the non-profit state-owned asset management model reforms in Shanghaimodel, Guangdong Nanhai model and Nanning Model, and it will refer the typicalexamples of public property management institution in Europe and the United Statesand the foreign public theory about production management, combined with theacademics of the non-profit state-owned assets’ management system, which areproposed by some scholars, such as public financial, public goods and property rightstheory. So it will be believed that the key to the reform of the non-operatingstate-owned assets regime is not to carry out the internal reform of administrativeinstitutions but to improve their legal protection mechanisms of the non-profitstate-owned assets.Second, on the necessity and feasibility of setting up the right to use thenon-profit state-owned assets. To begin with, analyzing the defects of the current legalprotection mechanisms, the article points out that the current adjusted laws of thenon-profit state-owned assets are in low legislation level with some inherentdisadvantages in the complete administrative law regulation and lack ofcorresponding civil responsibility mechanisms. Under the blend searches in publicand private laws, the essence of the non-profit state-owned assets is a kind of property.The use of it is a mixed legal relationship, in which property problems should be firstsolved by Property Law. In view of the above, it is right for Property Law to adjustthe system of the non-profit state-owned assets. In public, it is indispensable thatProperty Law sets the state-owned system, but the various levels of theprincipal-agent relationship weakens its function. Article53and Article54ofProperty Law indistinct the nature of the use right of the non-profit state-owned assetsand also confuse the boundary between the public power and the property rights.Therefore, it is very necessary that Property Law confirms a new type of usufructuaryrights----the use right of the non-profit state-owned assets. Next, the possession anduse of the non-profit state-owned assets by the corporate bodies of government andpublic institutions has the actual tube and direct control of the rights of property andcontent, whose nature is a kind of exclusive right in property rights. Based on the objective natural separation of property ownership and use, the non-profit state assetshas the function and nature of usufructuary rights. Property Law confirms thetheoretical and practical feasibility of the nonprofit state assets use right and has noconflicts with its basic principles. Finally, the coordination and connection betweenthe use right of the non-profit state assets and the real right system is a significanttheory system engineering, which needs further research. However,“the life of thelaw is to live but not to be logical.” Under the moderate legislation situation ofProperty Law, Article117of Property Law sets a type for the general clause ofestablishing the usufructuary rights, thus providing the legislation basis for the useright of the non-profit state assets.Third, on the legal elements of the right to use the non-profit state-owned assets.This part will analyze the law elements of the non-profit state-owned assets from thesubject, object and content. The right to use the non-profit state-owned assets shouldbe set up through the administrative examination and approval, be revoked andterminate by law because of national office legal person and the business unit, withaccounting statements for the registration of the real right as a public way. The legalperson’s personality is given by the state law according to its evolution in thecontinental law system and its independence doesn’t involve how much property onegets, thus explaining that there is particularity to definite the main body right ofnon-profit state assets. Expounding the corporate personality has been decided bywhether the rights and obligations between the group and its member can beindependently distinguished, and it also depends on whether the group is regarded as awhole to load the rights and obligations. The property can only be launched aiming atthe career goal and business objective material conditions, but not the necessaryconditions of corporate personality.In the National People’s Congress and its standingcommittee and the various local people’s congress and its standing committee, anon-profit state assets supervision and administration commission shall be establishedas the exercising main body of the state ownership and the using main body of thenational authority legal person and the business units. Secondly, the use right object ofnon-profit state assets can be explained by listing its various forms. Because the object of non-profit state assets is a composite with its legislation evolution of theProperty Law in civil law, the "real right binary structure theory" first advocates that"certain property interest" is the object of property right. So the non-profit state assetsis actually a composite and it can also be regarded as "a thing". The determination of"an object" is based on the social ideas for "an object" as the investigation basis, whilethe principle of one thing and one right is always in the state of investigatingownership in a particular time and space. Therefore, the idea of the non-profit stateassets as a composite and as "an object" doesn’t go against the principle one thing andone right. Again, we can analyze the use rights from the power to possess, utilize,profit and dispose. Among them, the power of the earnings shows that the users enjoya sustainable, stable and exclusive right to use. The user and the state owner whoagree definition between them, can have the punishment power made by law. Inaddition, the principle of combining assets management with budget management,assets management and financial management, the real management and its valuemanagement, can be regarded as the principle of exercising their rights restrictions.Finally, the user should obey the following obligations such as the proper andreasonable use of the assets, the specific, benefit and open use of the assets.Fourth, on the legal protection of the right to use the non-profit state-owned assets.To begin with, this paper believes that nonprofit state assets should be protectedcomprehensively by public and private law. In order to regulate the right to use thenon-profit state-owned assets, through the integration of public law and private law,the country shall adjust the content of the right to use the non-profit state-ownedassets, design the transition terms of public and private law, establish combination oflegislative arrangement between the private law (property law and tort liability law)and the public law (administrative law and criminal law). Second, the paper explainsthat the property laws consider the right to use the non-profit state-owned assets as theusufructuary rights. The person who has the right then enjoys the direct dominant realright potency and the real right request power. At the same time, according to theresearch results in this paper, the paper drafts the legislation suggestion manuscriptabout the property laws on the right to use the non-profit state-owned assets. Moreover, between the real right request power and the creditor’s rights request power,this paper also analyzes the necessity to protect the right to use the non-profitstate-owned assets through the right infringement responsibility law, and concerns theresponsibility principle and the constitution important document about violating theright to use the non-profit state-owned assets. Besides, by self-criticizing the presentpublic law of the legislation present situation about protecting the non-profit stateasset, the paper explains that, through the formulation of non-profit administrativelaws, property disposition law, official business expense law and property operationand the revision of criminal law, our country should build additionally the contentabout punishing non-profit state asset’s outflow and crime corresponding charge andproperty fine. All the above measures can protect the right to use the non-profitstate-owned assets from the view of public law. Finally, from the aspects of legalsurveillance, legal relief and public welfare lawsuit, the essay talks about theconstruction of the legal protection mechanism for the right to use the non-profitstate-owned assets.