| The profit distribution of state-owned enterprises has always been a controversial topic in academia and practice.During the planned economy period, state-owned enterprises were affiliated with the government, hence the profit distribution abided by the fiscal mode of "unified collection and allocation", which had been constantly in accordance with the rigid frame of planned economy system, even after several times of changes. Under the market economy system, the fiscal mode of "separation of profit from tax" has been set up through a series of reforms of "decentralization of power and transfer of profits". Modern enterprise system has made it possible for the state-owned enterprises to be endowed with the legal status of private-law main body of property in the market competition. The transitions of functions of "separating government from enterprises" and "separation of government from capitals" add more vitality to state-owned enterprises, which make many state-owned enterprises start to improve their management conditions and increase their profits significantly, some of which are already among the world top500. But the state-owned enterprise profit distribution is still a focus of controversy for all walks of life. How much is the payout rate of state-owned enterprise profits? Who is responsible for collecting them? How to use them? The promulgation of "The State Council’s Opinions of State-owned Capital’s Management Budget" and "The Interim Measures for Charge and Management of State-owned Enterprises’Capital Gains" had made policy responses to the above problems. State-owned capital management budgets had been implemented comprehensively in central enterprises since2008. Till then, important breakthroughs were made in state-owned enterprises’profit distribution system.For a long time, the mandatory changes of state-owned enterprises’profit distribution system have been dominated by the government, and the financial allocation relationship between state and state-owned enterprises has been dominated by the public power. The state-owned capital management budget system has not yet changed the path dependence. Hence, the construction of state-owned enterprise profit distribution system only stays in the field of financial allocation, the security function and value-added function of state-owned capital has been strengthened, and the state-owned enterprise profit allocation process is still dominated by administrative power. The questions of amount, method and receiver of state-owned enterprises profit allocation haven’t been answered under the frame of constitutional government.Our country is a country of socialist public ownership, and the premise of state-owned capital income’s distribution is that the state-owned enterprises are owned by the state. All the people are the true master of state-owned enterprises, and the real purpose of setting up state-owned enterprises is to provide a better material life for all the people. From the perspective of state-owned property rights, the ultimate owner of state ownership is all the people, and the ultimate owner of state capital is also all the people. Therefore, it is all the people who are in charge of answering the questions of amount, method and receiver of state-owned enterprises profit allocation.Although all the people are the ultimate subject of state ownership, the state-owned capital operation can’t be carried out by all the people. The management of state-owned enterprises should be implemented through the principal-agent mechanism. State and government are the agents who are entrusted by all the people to implement the management of state-owned enterprises. In the principal-agent mechanism of state-owned capital operation, the state and government, the agencies that perform the responsibility of sponsors, and the operating agencies of state-owned capital should exercise the power of state ownership within the scope of the authorization of the principals. In the process of socialist state-owned capital operation, the state, as the subject of a dual legal personality, has a dual identity of both social life managers and state capital owner. So, the process of state-owned enterprise profit allocation involves various subjects, including all the people, state and government departments, and state-owned enterprises. It also involve two legal relations, including the public budget relationship between state and government departments, and the state-owned assets’ management budget relationship between the agencies that perform the responsibility of sponsors and state-owned enterprises. The state-owned enterprise profit allocation relationship reflects both the financial relationship between state and the state-owned enterprise interest distribution and the legal relationship of various main bodies’right configuration in the process of state-owned capital operation.The central level of state-owned capital operation budget work has been conducted for six years, and related laws regulating state-owned assets management and state-owned capital gains has been enacted successively. But they failed to fundamentally change the habitual way of solving the problems of confiscating, distributing, and using state-owned capital gains though administrative means, owing to the present problems in the practice of state-owned capital management budget and the disadvantages of related laws and regulations."Law of the People’s Republic of China on Industrial Enterprises Owned by the Whole People" and "Supervision and Administration of State-owned Assets of Enterprises Tentative Regulation" have been unable to adapt to the needs of the development of state-owned enterprises after the reform. The legal levels of "Opinions of the State Council on state-owned capital operating budget" and "Provisional administration measures on state-owned capital of national enterprises revenue charge" are too low."Enterprise State-owned Assets Law" has too much emphasis on institution-building of investors so that it has overlooked legal status of laws passed by the NPC. The impacts of "Real Right Law" and "Corporation Law" are limited in correction of state assets. Therefore, it is urgent to structure the legal system to protect state assets in current state-owned enterprises reform.Western countries also have state-owned enterprises and profit distribution system of state-owned enterprises. Compared with China, state-owned enterprise profit allocation proportion is higher in the west, and most state-owned enterprises profits are used for public welfare spending. After the establishment of our country’s state-owned capital management budget system, the issues concerning profit distribution proportion of state-owned enterprises and the scope of use of state-owned enterprise profit are much-maligned, as well as the issues of loss of state-owned assets, high income of state-owned enterprises and state-owned enterprises corruption. How much is reasonable to determine state-owned enterprises profit delivering rate? How to locate the relationship between state-owned capital management budget and government public budget? How to better use the profits of the state-owned enterprise so as to accord with the real purpose of socialist public ownership? Relative legal system is needed to be designed along the path of the democratic constitutionalism under the public finance system.State-owned property right has a dual legal attribute, and the process of state-owned enterprise profit allocation is the process of exercising state ownership under the framework of public finance. The state-owned capital’s attribute of ownership by all the people determines that the state-owned enterprise profit distribution system should embody the people’s democratic principles, with all the interests of the people as the purpose of the legislation. State-owned capital’s profit-seeking nature determines that its value needs to be maintained and added. State-owned economy is the foundation of the public sector of the economy in our country, and the continuing operation of state-owned enterprises is the important guarantee of our national economy. Consequently, in addition to the interest of the people, the profit allocation system of state-owned enterprises should also take benefit appeal of themselves into account.For the purpose of establishing the legal system of state-owned enterprises’ profit distribution, we should at first explicit a brand-new legislation idea and implant the thought of democratic constitutionalism and coordination between public law and private law into the design of legal system. The legal system of state-owned enterprises’profit distribution should follow the principles of people’s democracy, rule of law, maintenance of state-owned capital and all-round consideration. It should reconfigure the rights of all kinds of legal subjects, explicit the participation right of all the people, establish the supreme legal status of the People’s Congress, reposition the right of governmental institutions who carry out the duties of investors, moderately limit the power of financial departments, and follow the reasonable demands of state-owned enterprises. The legal system of state-owned enterprises’ profit distribution should be able to classify the functions of state-owned enterprises and make laws in accordance with this classification. It should be realized on the basis of representative system and information disclosure mechanism. At the same time, the strict economic law responsibility should be established as well as the system of public interest litigation of state-owned capital management.As a matter of fact, no matter how the state-owned enterprises are reformed and in what forms the state capital is realized, the essence of socialist public ownership will not change, and the ultimate subject of state ownership and the ultimate owner of state capital is still all the people. What’s different is in what ways for the state-owned capital to achieve the original purpose of public ownership in different periods. Therefore, we will be sure to achieve the ultimate goal of the socialist state-owned capital, as long as the profit distribution of state-owned enterprises can follow the path of democratic constitutionalism, observe the principles of separation of powers, and abide by the legal procedures. |
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