Research On The Legal System Of Corporate Governance Of Commercial State-owned Enterprises In My Country

At present,the reform focus of China's state-owned enterprises is to carry out corporate reform and improve corporate governance in the context of classified governance.The Third Plenary Session of the 18 th CPC Central Committee proposed to divide the functions of state-owned enterprises into commercial state-owned enterprises and public welfare state-owned enterprises,and reform according to the model of classified governance.The function of public welfare state-owned enterprises is essentially an extension of government functions.The government realizes its economic policies through public welfare state-owned enterprises to compensate for market failures and defects,and at the same time realize its functions of economic regulation and protection of public interests.Commercial state-owned enterprises refer to state-owned enterprises that are funded or controlled by the state,through commercial operation,with the ultimate goal of maintaining and increasing value of state-owned capital as a whole,and aiming at maximizing profits and having independent market competitiveness.At present,one of the important contents of the reform of China's commercial state-owned enterprises is the improvement of corporate governance.The corporate governance legal system is a contractual relationship that regulates and restricts the powers and responsibilities between the company's management,directors and other stakeholders through company law,company regulations and related laws and regulations,and laws governing the operation and control of the internal and external structure of the company system.Over the years,many of the issues in the reform of state-owned enterprises in China have been inextricably linked with the imperfect legal system of state-owned enterprises.The research on the legal system of corporate governance of state-owned enterprises is currently the company of commercial state-owned enterprises in China.Reform has a very important meaning.Improving the legal system of corporate governance of state-owned enterprises in business is conducive to the effective exercise of state ownership functions,safeguarding the rights and interests of state-owned enterprise investors,improving the efficiency of state-owned capital operations,and giving full play to the role of market mechanisms.With the promulgation of a series of corporate governance laws and regulations such as the "Company Law","Securities Law","Guidelines for the Governance of Listed Companies" and "Corporate State-Owned Assets Law",the legal system of corporate governance of state-owned enterprises in China has taken initial shape.However,at present,the corporate governance legal system of commercial state-owned enterprises has the problems of lack of ownership of property rights,irrational ownership structure,ambiguous boundaries of powers of the board of directors,imperfect legal system of information disclosure,and lack of legal regulation of executive compensation,which leads to corporate governance low efficiency of commercial state-owned enterprises.First,the lack of ownership of property rights is the primary problem for corporate governance of state-owned enterprises in China.The state is the main body of abstract property rights.It fulfills the duties of the investor in the State-owned Assets Supervision and Administration Commission of China,but the State-owned Assets Supervision and Administration Commission cannot effectively perform the duties of the investor.The state-owned enterprise actually faces the current situation of the absence of the property rights.The lack of ownership of state-owned enterprise property rights has not been resolved for many years,which easily leads to internal control and has very adverse consequences for corporate governance.Second,a reasonable shareholding structure is the basis for good corporate governance of state-owned enterprises.The shareholding structure of China's commercial state-owned enterprises has a high proportion of shares held in China,and the proportion of other non-state-owned shares is small.After the split share structure reform,the major shareholder is still in absolute control over the shareholding ratio and company funds control.Small and medium-sized shareholders lack the right to speak in corporate governance,and internal control is serious.The mutual checks and balances of the board of directors,managers and shareholders' meetings are difficult to achieve.Third,the board of directors is the key institution of corporate governance.At present,the boundaries of the board of directors of China's commercial state-owned enterprises are still not clear enough.China's legal system does not separately set the board of directors of different types of commercial state-owned enterprises,such as external directors,especially independent directors.The proportion of the board of directors is still low,and the board of directors' power guarantee mechanism and supervision mechanism are not perfect.The above problems in the legal system of the board of directors are not conducive to the improvement of corporate governance of state-owned enterprises in China,which may lead to serious internal control and the loss of state-owned assets.Fourth,China's commercial state-owned enterprise information disclosure legal system still has problems such as single information disclosure channels,lack of special legal rules for information disclosure,insufficient motivation for voluntary information disclosure,and imperfect internal and external supervision mechanisms for state-owned enterprises.Fifth,the executive compensation legal system is an important incentive mechanism for corporate governance of state-owned enterprises in China.At present,the lack of legal regulation of executive compensation in state-owned enterprises in China is mainly reflected in the lack of executive compensation classification management system,the disconnection of executive compensation and business performance,the imperfect executive compensation information mechanism,and the unreasonable senior executive compensation standards.The lack of property rights will lead to a series of problems such as imperfect corporate governance of state-owned enterprises in commercial enterprises.The fundamental reason for the absence of property rights is that property rights are not clear.Without clear property rights,corporate governance is meaningless.The fundamental reason for the absence of property rights is that property rights are not clear.Property rights theory holds that public property rights are naturally absent,but the law should clarify the boundaries of property rights.The principal-agent theory demonstrates the inevitability of the separation of ownership and management rights in public property rights.The theory of residual claim and residual control rights provides a theoretical basis for the transformation of the functions of Chinese investors and the effective separation of ownership and management rights.The state is the investor of state-owned assets,but the state cannot directly perform the functions of the investor.There is a long chain of principal and agent between the state and the actual operators of the enterprise,which is prone to the illusory ownership of state-owned assets,the control of insiders and the loss of state-owned assets.As a result,The State-owned Assets Supervision and Administration Commission(SASAC)not only perform the functions of the investor on behalf of the state,but also perform the supervision and management functions of state-owned assets.However,the two functions cannot be performed at the same time,and it is difficult to solve the problem of the lack of property rights of commercial state-owned enterprises.China can learn from the practice of Singapore Temasek and build a three-level management system for state-owned assets of government-state-owned capital investment and operating companies-state-owned subsidiaries.State-owned capital investment and operating companies exercise the role of funders,while the SASAC only exercises state-owned assets.Supervise management functions.The three-level management system of state-owned assets will separate the government and enterprises well,realize the benign operation of commercial state-owned assets,and fundamentally solve the problem of the lack of property rights of commercial state-owned enterprises.The ownership structure determines the type of corporate governance,and a reasonable shareholding structure is the basis for good governance of the company.Based on the special problems existing in the current shareholding structure of commercial state-owned enterprises in China,appropriate introduction and establishment of the legal system of class stocks such as preferred stocks and gold stocks,preferred stocks can be applied in commercial competitive enterprises,and commercial ones.Some state-owned shares of the enterprise are converted into preferred stocks,and the company's shareholding structure is not changed.The preferred shares held by state-owned controlling shareholders do not have voting rights.The proportion of control in the company is greatly reduced.The company's control structure has undergone great changes,and the control structure of the company has been controlled.The essence of the gold stock system is that although the government only occupies a small number of shares of state-owned enterprises,it has veto power over major decisions of enterprises.The gold stock system can be applied in commercial second-class non-competitive state-owned enterprises,such as national defense enterprises such as national defense,transportation,and energy.Because these enterprises involve the fundamental interests of the state,the state should retain control over the handling of some major issues.Appropriate introduction of the two-tier shareholding structure,reducing the proportion of state-owned shares from the shareholding structure,but state-owned shares still have absolute voting rights,and always guarantee the control of state-owned enterprises.In the process of equity reform,China's shareholding reduction should adopt a gradual model to ensure a smooth transition of state-owned enterprise reform.At the same time,increasing the proportion of institutional investors in commercial state-owned enterprises has a positive effect on corporate governance of state-owned enterprises.The power limit of the board of directors is the core content of corporate governance of commercial state-owned enterprises.In view of the unclear power limit of the board of directors of commercial state-owned enterprises in China,the "board centralism" was implemented,and the corporate governance structure of the company with the board of directors as the core was established to ensure that the board of directors had independent decision-making power and the right to dismiss and dispose of the manager.At the same time,we will establish a legal guarantee mechanism for the independent exercise of the powers of the board of directors,set up the internal institutions of the board of directors according to the classification of competitive commercial state-owned enterprises and non-competitive commercial state-owned enterprises,and at the same time set up professional committees to improve the board selection mechanism and ensure the effective exercise of the board of directors.On the other hand,in order to ensure the effective checks and balances of the board of directors,improve the mechanism of checks and balances on the board of directors.First,the SASAC cannot be both a funder and a supervisor,and clarifies the main functions of the SASAC.Second,the SASAC's investor's authority,that is,the shareholder's rights,is separated and exercised by state-owned assets investment and operating companies,thereby ensuring the independent operation of commercial state-owned enterprises.Third,China's relevant laws further stipulate the specific powers of the core leadership of the party committee,and should clarify the difference between the core leadership of the party committee and the independence of the board of directors.Fourth,for state-owned capital investment and operating companies to conduct pre-,post-,and post-supervision supervision of business operations and management through the Audit Commission.At the same time,other non-state-owned sole proprietorships,especially joint-stock companies and listed companies,shall establish supervisory committees to exercise their statutory duties in accordance with the provisions of the Company Law.The legal system of information disclosure is an important part of external governance in corporate governance.Constructing a comprehensive and standardized legal system for information disclosure is conducive to curbing the status quo of internal control,strengthening the supervision and control of state-owned enterprise operators,further improving the level of corporate governance,and reducing supervision and increasing the value of state-owned assets.The legal mechanism for improving the information disclosure of commercial state-owned enterprises in China can distinguish between state-controlled listed companies and non-listed state-owned enterprises.For state-owned listed companies in fully competitive industries,the relevant laws and regulations on the disclosure of information of listed companies are publicly and fully disclosed information.Non-listed commercial state-owned enterprises in the competitive industry may formulate specific legal norms for information disclosure with reference to the information disclosure requirements of listed companies.The manner of information disclosure and the degree of disclosure shall be determined in accordance with the business scope of the enterprise.Another type of commercial state-owned enterprises in important industries and fields that are in the national security and national economic lifeline can treat information disclosure differently according to different enterprises.The key to building an information disclosure system is to establish a legal system of information disclosure.Standardize the content of information disclosure and broaden the objects and channels of information disclosure.Establish a legal responsibility mechanism and supervision mechanism for information disclosure.The law stipulates that punitive measures,civil and criminal liability for statutory information disclosure obligations are not fulfilled.Establish a multi-level supervision system that integrates internal and external.Strengthen the education of state-owned assets attributes of the management of state-owned enterprises.The executive compensation legal system is an important incentive mechanism for corporate governance of state-owned enterprises in China.The reasonable level of compensation is one of the important determinants of corporate governance efficiency of state-owned enterprises and the profitability of state-owned enterprises.In order to strengthen the legal regulation of executive compensation in state-owned enterprises in China,establish a senior management salary classification management system and optimize the executive compensation structure.It distinguishes the selection,hiring,promotion methods and salary standards of non-competitive state-owned enterprises and competitive state-owned enterprise executives in commercial state-owned enterprises.The salary structure of China's commercial state-owned enterprises can be drawn from the experience of developed countries mainly consisting of basic annual salary and performance,and the competitive setting standards of competitive and non-competitive enterprises in commercial state-owned enterprises are separately formulated.Improve the compensation committee system,build a senior executive compensation review system,and pay recovery system.China's remuneration committee should be composed of external directors,and independently formulate a reasonable remuneration plan based on the company's operating conditions and the performance of senior executives.According to the different categories of commercial state-owned enterprises,the executive body of the executive compensation review decision,the review procedure,and the incentives and legal consequences of the review are determined to ensure that the executive compensation plan is reasonable and fair.The establishment of a salary recovery system,which stipulates that state-owned enterprise executives have suffered significant losses due to fraud or fraud,or that financial statements are wrong due to wrong decision-making,etc.,all their remuneration for a specific period will be recovered.The multi-level management of salary information disclosure,the content and procedures of salary information disclosure,and the standardization of senior management selection information are transparent.