| As of today, the Market Economy is a feasible path towards development, which has been repeatedly proved by experience and lessons of countries all over the world. If the so called “Socialism Market Economy” can be recognized as a real Market Economy, it should also include common elements of the latter, for example, equal status of market entities, individual rights protected, governmental powers restricted, fair and transparent competition order, expectable game rules, and so on. It is the offside, dislocation and absence of public powers that is the core problem to be solved in China's reform. Strengthening constraints and control over public powers effectively is the key point on helping China's reform out of the “deep water”.Under the market economic system, state-owned enterprises(SOE) still have the value and necessity of their existence. To a certain extent, state-owned enterprises are the products and tools of the state public power. The public power comes either from the enterprise's special field and special functions, or from the state-owned assets run by the enterprise. On the surface it seems to be some kind of “privilege” of state-owned enterprises, but essentially the source of SOE's power comes from the state power exercised by the government on behalf of all the people. It is a special form of state public power, named the “state's enterprise power”(SEP). Actually the government controls SEP's breadth and intensity realized the. Under the market system, SEP is realized through two steps: The government establishes SOEs andoutputs the power into SOEs, then SOEs exercise their market rights and realize the power. These two sides are integrally tied together, and both are indispensable. This special kind of power includes power of the government and of the SOE, which constitutes the key factor in China's SOE reform. Therefore, the essence of a “good” SOE reform is to identify and regulate the special state public power, thus to protect individual liberty and property rights, to maintain the fair order of the market, and to promote the realization of public interests; while a “bad” SOE reform is to blur the boundary between special enterprises and common enterprises, between the public power and private rights, and to maintain and expand the unconstrained power controlling resources and interests.Since restricting public power is the core issue of China's reform, the central task of the reform of SOE is also to restrict the state power involving in the operating and reforming of SOE. There are multiple options of means restricting the power, including moral means, political means, and legal means. Among them, the legal means should be the main. Because of the way through legislation, the restriction of power is filled with democracy, stability and repeated applicability. It is so clear and predictable that people can reasonably expect the government's behavior in the process of establishment, operation and exit of SOEs, and expect how public interests and their private interests will be affected. People can therefore correct the anomie of SEP according to law. According to experience from countries around the world, strict legal regulations on SOEs are popular practices of governments. Unfortunately, although there are extraordinarily great amounts of SOEs and state-owned capital in China, which play an extremely important role in the whole country, the legal regulation on SEP is quite weak and limited. This outcome is not only because of the low social level of “rule of law overall” and the low quality of the legislation, but also because of the fuzzy nature and disorder function of SOE, especially influenced by the lack of knowledge of the transitional and public nature of SOE. On the one hand, in academia, neither constitutional law scholars, administrative law scholars, nor economic law scholars of China has focused their research work on SEP, the state'sspecial power around SOE. This situation leads to a blind zone in the research of this overlapping and marginal power area. On the other hand, in practice, the legislative level of laws, administrative regulations and normative documents concerning SOE reform is generally low. Moreover, these legal documents have an obviously subordinate characteristic, which just “translate” the government's policies of state-owned sector into legal language, and lack of the independent value of regulating public power from the social angle. Only by comprehensive cleaning the public power involved in the whole process of SOE's establishment, running and exit, and clearly defining the boundary of the power in SOEs, more in depth, the power of the government, then the market economy system in China can be more healthy and orderly.This thesis is based on above ideas, and the logic way of thinking is as follow: What is power?”?Is there power in SOE's establishment and running?”?“What is the characteristic of the state's enterprise power(SEP)?”?“What principles should SEP obey?”?“What should be the regulation structure of SEP?”?“How to concretely regulate SEP as for different types of SOE?” The full text is divided into six chapters except the introduction.Chapter I is “Analysis of the fundamental problems of power”. This chapter can be seen as a starting point of the full text, providing initial location and macroscopic context for the argument of SEP. It does not directly refer to the research of SEP, but beginning with the general nature of power, it can form the research base of SEP, and help to grasp the crux of the problem through complicated phenomena. From the perspective of the concept of power, there are two core elements: one is “domination”, and the other is “subjection”. According to the nature, power can be divided into the public power and private power; According to the entity, power can be classified as the power of the government, enterprises, social and other; According to the content, power also can be labeled as economic power, political power and cultural power, etc. “Legitimacy” of power is the key issue, which decide whether the power be obeyedregularly, and whether the power keeps its domination stably. The nature of the legitimacy of modern power lies in publicity, but the risk of alienation to publicity always exists within public power, ascribing to the characteristic of power, the weakness of human being, and the defects of the institution. There are three main approaches to correct alienation of public power: ruling of virtue, ruling by politics and ruling of law, among which ruling of law has more advantage in terms of realism, efficiency and effectiveness.Chapter II is “SEP's justification and alienation”. This chapter demonstrates that SEP is an inevitable result of the development of state power. As a special kind of public power, SEP bases its legitimacy on many sides of publicity, but also may be alien and deviate from the publicity. Firstly, from the development course of the nation concept and state power, sovereignty tends to be relative, while strengthening of public constraint forces countries to attach greater importance to the government's social function and economic power increasingly. There is some kind of combination of state's power and enterprise's form in different types of countries. From the general phenomenon of history and reality, we can induce the concept of SEP, namely the state power included in the establishment, operation, and exit of SOE, which is realized through the approach of “government dominating enterprises, enterprises exercising rights”. So SEP is constituted with two levels of power: the first is government's power and the second is SOE's. In for-profit and nonprofit areas, SEP respectively has different mechanisms of action. Secondly, the publicity of SEP can be supported by several angles of theories. From the angle of transaction cost theory, SEP makes some productions happen, which are demanded by the public, but can't be realized by private enterprises or market transactions. From the angle of the public goods theory, SEP helps the government manage the public economy better by providing quasi-public goods. From the angle of the enterprise's social responsibility theory, the state undertakes special public responsibilities by SOEs. Finally, in actual operation of China's SEP, alienations can be observed in the competition relations, property relations, and transaction relations, due to the unclear orientation of thereform of SOE, the lack of legal binding in public power, as well as changes in the international and domestic economic environment. Alienations also manifest in the legislations of SOE, in that SOEs have not been located as special enterprises in the nature, not been emphasized power regulation in the purpose, and not been scientifically classified in the direction.Chapter III is “Regulation framework toward SEP”. This chapter attempts to form a whole regulation framework toward SEP against its alienations, including three aspects: basic ideas in regulation, the objective structure of regulation and the subjective structure of regulation. Firstly, the regulation framework toward SEP should be incorporated into the constitutional order. In Chinese constitution of the state economy system, some principles should be established, such as right-based, power prescribed by law, transparency of power and public interest, upon which we can set up a basic order of economic constitution to regulate the operation of SEP. Secondly, in terms of the objective structure of SEP regulation, China can draw lessons from international experience, divide SOEs into two basic types: public SOEs and commercial SOEs, according to their functions and property attributions through the SOE classification reform, and assign corresponding legal regulation resources according to the different characteristics of state power involved in these two types of SOEs. Finally, in terms of the subjective structure of SEP regulation, there are two main types: the subjects of the external and internal. Legislatures and stakeholders are the main external regulative subjects. The congress(NPC) should have the final decision-making power dealing with major matters relating to SEP. In China, the authority of National People's Congress in the structure of SEP regulation should be strengthened, and the participation of social public as stakeholders must been attached fully importance to. Internal regulative subjects are mainly the government and the enterprise itself. Current governmental regulation patterns should be reformed based on the distinguishment between public and commercial SOEs. Within the enterprise, the board of directors, board of supervisors and other power restriction roles should fully function.Chapter IV is “Power regulation relating to public SOEs”. This chapter is based on the special policy tool nature of public SOEs, and on the industry characteristic of public welfare and monopoly, focuses power regulation more on the government's behaviors than on the enterprise's behaviors. The emphases include regulating government's power in establishing SOEs, defining the operation scopes of SOEs, and adjusting the behaviors of SOEs. Firstly, the power to establish an SOE should be regulated. The current legal person system should be reformed on the basis of division between public and private legal person. The special legal person system suitable for public SOEs should be formed, including special set up principles and procedures different from common enterprises. Secondly, the power to define an SOE's operation scope should be regulated. For example, China's policy banks have power to carry out policy financial business. But the lack of regulation of this power leads to conflicts between policy banks and commercial banks. Thus we should clarify the scope of policy banks' business, strengthen the supervision on relative business and regulation of interests compensation. Finally, the power to adjust SOE's behavior should be regulated. For example, in the price control, due to the malposition of the government and the lack of public game between the government and enterprises, the regulation often encounters “failure”. In order to correct alienation of power, we should develop independent price control subjects such as independent committees; introduce the proportionality principle in administrative law to limit the adjustment power properly, and explore the transformation possibility of the price hearing procedure both into the individual lawsuit and into the public interest litigation.Chapter V is “Power regulation relating to commercial SOEs”. This chapter is based on the tool nature of the state capital to serve the national benefit's growth, and to coordinate the national economy development, and on the industry characteristic of competition and for-profit. The power regulation within this area focuses on the operation of state capital, so that the power “agented” by the government and enterprises to operate the national capital is under more comprehensive and effective supervision, through the reasonable cohesion among the NPC, the government, andSOEs. Firstly, the “insider control” in SOEs and the abuse of government regulation produce the risk of publicity alienation of state capital operation power. The reasonable positioning of state capital operating corporations should be a crux to adjust the current system of state capital operation, making both the government and enterprises to their own places. Secondly, the incorporation of the state capital operation into the fiscal budget is the fundamental guarantee of power regulation under the rule of law. The budget system for state capital operation should be improved under the idea of public finance, especially in the power regulation of capital profit, ensuring an open and fair public decision-making procedure concerning the profit delivering and expenditure direction. Finally, the power to merge SOEs should be regulated. The merger of SOEs is closely connected with the government administrative power, which leads to the failure of traditional antimonopoly law regulation in this area. The regulation should focus on the government power. The legislative, administrative, and judicial branches should all take part in the regulation of the administrative monopoly in SOEs' merger.Chapter VI is “Regulation of SEP's exit”. This chapter attempts to set up a regulation system of SEP's exit during the course of privatization, under the background of the mixed ownership reform. Since the privatization is unable to be avoided in the reform of SOE, it is necessary to address the SOEs' efficiency problem in competition areas, and the open market problem in monopoly areas. Firstly, it should be recognized that, the privatization process is the process of gradually exit of the government and SOEs' power. With the nature of publicity, the exit should choose a path of active, open, and legal-based, so as to realize the exit by sort and by step, and to protect the public interest during the power exit. Secondly, in the power exit of SOEs' privatization in competition industries, a regulation system of decision-making and transaction shall be established, reflecting the public will in the privatization decision-making and scheme design, and making the transaction and income treatment process open and transparent. Finally, in the power exit of SOEs' privatization in monopoly industries, anti-monopoly is the most important issue. Asfar as China's railway reform is concerned, an independent regulatory organization of natural monopoly industry should be established, carrying out the connection with anti-monopoly implementation, developing a reasonable market structure and a regulatory system against the exiting power of SOEs, and ensuring a fair order in the new competition field. |
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