Study On The Legal System Of State-owned Assets Investor

Third Plenary Session of the party' s eighteen proposed to improve the m anagement system and strengthen the supervision of state-owned assets, basing on the m anagement of capital, that pointed out the new way of st ate-owned assets management system reform on the n ew background. The ownership of state owned assets belongs to "state". According to the basic principle of "company law", once state-owned assets were invest ed to the enterprises, "the state", of course, became invest or. The ownership of state-owne d assets is also transfor med into the ownership of capital(the state-owned equity in the legal sense). It can be said that to strengthen the management of state-owned assets supervision through capital management, is the basic principal for the state as a state-owned assets investor to enforcement of the rule of law. China's current s tate-owned assets investment system was built to adapt to the state-owned enterprise joint-stock company system reform, comply with th e state-owned assets of the m arket, and the development of capital m anagement requirements. After the transformation of state-owned assets investm ent, we need to create a model of business behavior and the main body, to play as the role of shareholders in the state funded enterprises, and in accordance with the "com pany law" to form a corporate governance mechanism. The administrative management system of the divi sion of the state-owned assets is obviously difficult to m eet the requirem ents of the m odern enterprise legal person m anagement. To reform the management system of state-owned assets, to simulate th e operation mode of the commercial assets, and to estab lish the system and management system of the state-owned assets, are the ration al logics of the re form. In accordance with decision of 16 th communist party, central and local governm ents have set up state-owned assets supervision and administration commission(SASAC), which is on be half of the level of governm ent to fulfill their duties and functions of state-owned assets supervision and adm inistration. The birth of the SASAC was m arked by the state-owned asset management into the era of the investor. The characteristics of SASAC are: hierarch ical management between central and local government, SASAC take the responsibility of human resources, asset and issues management of the state-owned enterprises(S OEs). However, the co ntroversy never stops since the found of SASAC, cause the function of SASAC never been clear as he play the roles of referee and player simultaneously. In fact, SASAC always try to do more deep and m icro management as an investor and shareholder, but lack of supervision as a governm ent guider. That makes the supervision function divide fr om many other departments. Even the law of Enterprise State-own Assets encouraged the situation going on. Basing on the background of comprehensively deepens the reform nowadays, how to break this situation becom es a very important issue for SASAC. Thus, basing on th e capital m anagement, this article m akes research on legal system of state-ow ned assets investor, trying to answer the question how should SASAC run and supervise the capitalizati on of state-owned assets. From "history" to "realize", this article pays atte ntion to the connection of theory and reality. By analyzing the process of the reform of stat e-owned enterprises, we look b ack the reform process of the ownership of state-owned assets. Base on the perspective of practic e and e mpirical, we explains the core issue of the construction of state-owned assets investor's legal system, which is to shape a rational behavior of state-owne d capital(equity) and supervision of the m ain problems of the exercise.Due to the lack of unified cognition of the basic meaning of state-owned assets in the theor y and practice, the article research on the legal origin of the concept of "property", and bring the concept that the ownership of state-owned assets is the es cheatage of state-owne d, which make the issue of state-owned assets possible to be discuss in a unif ied cognition. As the owner of state-owned assets, the state becomes shareholder when he invests to the enterprise. The article discusses the legal personality and functions of the state, propose that the state has the personality of public law when he became shareholder. And base on the function theory of civil legal personality, the state also has the personality of private law personality. Meanwhile, the article reconstructs the function to a com bination of public administration and ownership, and brings the concept that the function of shareholder of the state belongs to the ownership function of the state.Because of the n ature of the national political entity and th e abstract natu re of legal personality, it is dif ficult for the state to meet the specific requirements of the shareholders' personality. As the investor, the state cannot simply be share holder in the ci vil law domain. The state's function and the exerci se of the rights as an invest or must be created through the function of the legislation and the system construction. The paper cons iders that the legal system of the state-ow ned assets is to id entify the status and function of the state-owned assets owners to the state funded enterprises, and provides a complete set of legal system. The legal system of the state-owne d assets investor has three f unctions: one is the functiona l boundary function, the second is the m ain mold function, and the third is the function of the responsibility construction. This paper concludes the current le gislative construction of the legal system of the investors for three parts: the investor management system, the main body of the investor and the responsibil ity of investor. In order to clarify the ideas and direction of the reform, the paper summarizes and analysis the theoretical disputes and practical puzzles of the current legal system of the state-owned a ssets. Theoretical controversy presents like SASAC should be "contribut or" or "regulation".Practical puzzles presents in three aspects : first is the confusion of the legal relationship identification of the authorized management of state-owned assets, the second is the confusion between the ownership and the exercise of the property rights of the "three tie r structure", th e third is the confusion of the relationship between the state-owned assets supervision and m anagement authority. The paper also research on legal system of the state-owned assets in th e United S tates, Britain, Japan, Singapore and other major western countries, which is worth to draw lessons from.was evolved from the state ownership system, which has becom e the "Yuan" concept of the state-owned assets legal system. This paper ar gues that many differences and confusion of current theory and practice of the s tate-owned assets legal system, rooted in the con cept of "state investor responsibility". In the context of deepening the reform, it has to surpass this argue and system gambling, meanwhile tracing the source of academy to promote the state-owned assets investor' s legal system reform. Moreover, we have to do the academ ic review and restatement of the law about "state investor responsibility" by reasonably thinking of law. It is believed that the so-called state investor responsibility is referring to the authority and responsibility for the state to supervise and administrate the state-owned enterprise after the investment. Based on the legal status of the SASAC, he should either be the administrator or supervisor. Thus, the paper does the legal r econstruction state investor responsibility from both angles of origin nature and power struct ure. The paper ar gues that the state investor responsibility is a complex of public and privat e with private gene. He has a new c oncept of legal characteristics of both public and priv ate. Base on the analytical paradigm of combination of right and authority, the legal orientation of state investor responsibility should be an economic right with inherent unified of right and authority. According to the principle of Corporation Law which said th e equity and corporate property all originate from invested assets, the paper cons iders that the state inv estor responsibility is origin ate from state ownership, or even, the stat e investor responsibility is the state ownership by the capitalization of state-owned assets. Based on the analysis of th e power and structure of state ownership, the paper puts forward the viewpoint that the function of the state investor responsibility is the construction of both the shareholder' s governance and the administrative supervision. In reference on the "two stage theory" of German administrative law, this paper puts forward a viewpoint that th e structure of state investor responsibility is formed by the combination of two stages: shareholder gove rnance and adm inistrative supervision. And based on this theory, this paper not only theore tically explains the SASAC' s legal status o f administrative organs attribute, and explains the SASAC should exercise the responsibility of both shareholder governance and adm inistrative supervision, but also responded to the argument of “player and referee”, which has the radical reform academic value. On the basis of the experience of foreign legal system, this paper puts forward three reform ideas:(1) To adhere to the "national unity" reform of the capital contribution of the "representative" system, to construct the "big s tate-owned" management system.(2) To clarify the f unction of the "investor supervision", and prom ote the refo rm of the or ganization and function of the SASAC.(3) To implement the division of the func tion of management and supervision of SASAC, find a new allocation mode of state investor responsibility.Based on the theory above, the pa per concludes the exercise of state investor responsibility should be SASAC, who behalf of the state, to exercise the responsibility of both shareholder governance and adm inistrative supervision. T he paper also analyses the context of that exercise above. In order to enhance the superv ision to SASAC, the paper finally analyses and discusses the supervision to SASAC and the legal liability for him.