A Study On The Law Concerning The System Reform Of Employee Stock Ownership In State-owned Enterprise

The state-owned enterprise reform is the focus of China reform, but it is going into a deep end, mainly attributing to the fact that state-owned character is too dense and employee is always the victim but not the beneficiary in the reform.Looking back on the reform, we found successful fields always related to full exertion of employee enthusiasm. In the last analysis, employee' s attitude is decided by their benefits and corresponding conditions coming with reform; it is a feasible way to establish employee stock ownership(ESOP), to perfect the shareholding design for Incorporation of state-owned enterprise, By employee holding stocks, the benefit and future of employee and enterprise are banded together tightly. Employee take part in enterprise management and surplus value distribution with labourer and capital investor identity. The development of ESOP and Incorporation of the state-owned enterprise in China is concurrent, and now it has comes into experiment stage at large. But on the whole, it has not achieved the desired results. The article tries to discuss some important legal problems on the ESOP reform.ESOP is based on the theory that human capital and matter capital create surplus value together. And it is also the demand of common governance pattern that stakeholders equally participate in management, decision-making and surplus rights distribution.ESOP is the development of past "internal employee stock", and its operation gets more standard. However, because of the lagging related legislation, there are many practical problems: the legal relations between employee and union holding employee stocks (the union) is unclear; many enterprises are short of effective employee participation system which ESOP is made a hollow system rust; and some present legal provisions are obstacles to ESOP reform. These problems areclosely related with factors of reform idea, ESOP theory, enterprise system concerned and exterior condition.The relation between employee and the union, which indirectly exercise ESOP right, is a kind of particular trust legal relation. In order to put ESOP reform into effect, it is a reasonable and feasible choice to endow the union with stockholder status of the state-owned enterprise which can be represented by the forms of trust invest corporation, trust invest fund, common trustee or interior enterprise setup. It should be up to enterprise and ESOP to decide the vote rule, and to decide whether employee stocks in suspend account can vote and whether employee stocks can be priority stocks. We should harmonize the relation between ESOP and employee representation conference system, in order to throw out the character of "twice-voting" in ESOP. It is the demand of interior labourer identity of employee and human integration of enterprise with ESOP to limit transfer of employee stocks to reasonable area. Meanwhile we should allow employee invest with human capital and take on limited assure liability, allow the enterprise buy employee stocks in particular situation and establish stock reserve system, and admit the validity of state-owned asset properly favorable deliver and fully exert revenue and finance levers.In addition, there are two points to explain. First, "employee" in the article only refers to common employee. Secondly, the ESOP enterprise studied in the article is the one employee possessed.