Research On Legal Problems Of Reform Of State-owned Enterprises From Perspective Of Fair Competition

As a common economic phenomenon in the world,state-owned enterprises are not the exclusive patent in China.Both in developed and developing countries,to varying degrees,there are state-owned enterprises.Thus state-owned enterprises have the legitimacy of reality.The development practice of state owned enterprises in various countries has also been proved that state-owned enterprises are an effective way of overcoming the problem of natural monopoly,solving the problem of public goods supply,adjusting income distribution gap,ensuring national economic security,and achieving rapid industrialization for governments.Thus state-owned enterprises have the sufficient theoretical justification.However,results of reforms of state-owned enterprises introduced by countries with market economy systems in nearly a century also illustrate the fact that in the process of development and perfection of market economy,the contradiction between the state-owned enterprises and the market mechanism is hard to coordinate,and also the higher level of the development of a country's market economy,the lower demand of the state-owned enterprises is determined.The reason is state-owned enterprises are only a very limited supplement to the market mechanism,which is often used as a means of government intervention in the economy.Mature market economy system has always been cautious about government intervention.The new ways to control the state-owned enterprises is to reduce the proportion of state-owned enterprises,which is the prerequisite for giving play to disposition of the market resources,and are also the objective needs of public power restriction.Since 1978,China's state-owned enterprise reform has gone through more than thirty years of history.Looking back on the various measures in the reform of state-owned enterprises,it could be found that when the pursuit of micro economic efficiency of enterprises becomes the “main melody” that runs through the whole reform,when “making the state-owned enterprises great and powerful,enlivening and doing well the state-owned economy” becomes a legitimate expression of national policy,when “maintaining value and increasing in value” is established as the legal objective of the operation of the state-owned assets,researches of mainstream academic around the reform of state-owned enterprises also often make “how to improve the efficiency of enterprises” as the theme to discuss and research.From the current performance of state-owned enterprises,efficiency oriented reform is successful,and it is also worthy of recognition.However,another key point cannot be ignored is that the reform of state-owned enterprises is an important part of China's economic system reform,and the judgment on whether the reform is a success or not must be placed in the context of the perfection of market economic system.Moreover,how to coordinate the relationship between state-owned enterprises and market economy is the key and difficult point.While from the current practice,what have been done is not good enough.The argument about the state-owned enterprises has not stopped even China get benefits of the state-owned enterprises from efficiency improvements.In recent years,public criticism of state owned-enterprises has shifted from the low efficiency of enterprises to the fairness of their participation in market competition.The essence of market economy is a competitive economy,and the fair competition is the most prominent feature of market economy.Compared with other market players,the state-owned enterprises currently enjoy more non-market competitive advantages,and mainly in four aspects: First of all,in the market access system,there is a more serious phenomenon of discrimination on ownership system.Some industries only allow state-owned enterprises to enter and carry out monopoly operation;secondly,In terms of government subsidies,the state-owned enterprises always can occupy the scarcity of resources with a low-cost or even free of charge,and have access to a large number of government special funds;and then,in preferential tax policies for enterprises,state can tailor exclusive policies to state-owned enterprises' needs to realize the tax deduction for specific state-owned enterprises;Finally,in financing for enterprises,state-owned enterprises are able to obtain more market capital both in indirect financing channels,principally bank loans and the direct financing channels,principally stock market.Thus the origin of non-market competitive advantage enjoyed by the state-owned enterprises come from two parts,some come from the unfair laws and policies,and some come from the out of shape of those seemingly fair institutions during execution because of the natural close relationships between state-owned enterprises and governments.In 1992,China identified "establish a socialist market economic system" as the goal of economic system reform.And in the end of twentieth Century,China announced the preliminary establishment of a socialist market economic system.The whole period we only experienced a few years.And our country never slacks off in perfection of the target of socialist market economy,which shows the country's determination.While declaration alone cannot sufficiently prove the success of the reform,and institutional change is a long and complicated process.In the process of constructing the market economy system in our country,market legal systems originally should be used as a constraint to the state-owned enterprises,but alienated as a weapon to protect the state-owned enterprises,only because of the ideological cognition and the interest distribution pattern and so on.The substantial protection of the state to the state-owned enterprises is obviously deviated from the original intention of the market reform,which is the root cause that causing the phenomenon that state-owned enterprises are not in harmony with the market economy mechanism at present.And the excessive protection of state-owned enterprises has a great hazard to state-owned enterprises,which is at the expense of the fair competition mechanism demanded by the market economy.The Third Plenary Session of the 18 th CPC Central Committee pointed out that China needed to deepen economic reform,to adhere and improve the basic economic system,to deal with the relationship between the government and the market,to make the market plays a decisive role in the allocation of resources and to make the government plays a better role.The positive signal released by the central government of the new period is the direction for deepening the reform of state-owned enterprises in the next stage.From the perspective of realistic problems of state-owned enterprises and market economy system,to perfect the reform direction of the market economy,it is necessary to integrate the concept of "fair competition" into the reform of state owned enterprises.The realization of fair competition needs that state-owned enterprises and other market players fair compete at starting point,during the process,and to the end.From the perspective of the long-term goal of improving the market economy,the general direction of the reform of state-owned enterprises in the future is a moderate contraction scale.In view of the fact that our country still has a large group of state-owned enterprises,the specific way to shrink the size of the state-owned enterprises is the classification of the rule of law,making state-owned enterprises divided into public welfare state-owned enterprises and commercial state-owned enterprises.Public welfare state-owned enterprises should be regulated by special legislation in order to strictly control the business scope of the enterprise,and to ensure the enterprise are able to fulfill the function of public welfare,and to establish the evaluation standard of the enterprise function.Commercial state-owned enterprises should be reformed in mixed ownership way through the way of introduction of private capital to achieve optimization of corporate governance,and to improve the enterprise performance,and also to provide a good foundation of the gradual withdrawal of state-owned capital in commercial areas without the loss of state-owned assets.Moreover,administrative organs should be banned to newly establish state-owned enterprises without authorization in the name of performing the functions of the department while realizing the departmental interests.In the process of deepening the reform of state-owned enterprises in the future,the state should also improve the competition law system,and the anti-monopoly law is the core of them,And practicing the market economy is the intention of the legal economy.The two core issues to be solved in the competition law system are the application to the state-owned enterprises and the control of the government behavior.Therefore,China should amend the relevant content of the anti-monopoly law to realize the equal application of the anti-monopoly law to the state-owned enterprises and other market players.The specific ways are to strengthen the control of government behavior,to introduce competition neutrality policy in the anti monopoly law,to add control of the behavior of state aid,to refine the administrative monopoly law,to strict legal liability,to construct competitive promotion system to make up for the lack of rigid law enforcement,and to improve the private litigation system of administrative monopoly.