Conflicts Of Interests Of The Conversion Of State-owned Enterprises And Laws And Regulations

With the continuous deepening of the reform of the state-owned enterprises of China and due to the continuous breakthroughs of people's ideologies and understandings and the gradual perfection of the laws, regulations and policies guiding the conversion of enterprises, the reform of the state-owned enterprises has gone through the unprecedented development and change in the form or content or in the width or depth. The modes of conversion of enterprises are changed from the forms that do not basically involve the final property rights of enterprises such as "contractual management", "lease-based management"and "management on a commission basis"to the various forms influencing the final ownership of property rights of enterprises, focused on the corporate reforms, including the reform of the corporate system of enterprises, reform of the system of joint-stock and cooperation, the transfer of the creditors'rights of enterprises to the stock rights, sales of enterprises, merger and division of enterprises, etc. Therefore, the key period of fundamentally involving the property rights and the identities of employees of enterprises has been entered. Statistics show that about 44% of all the state-owned enterprises have been converted at present, including the central state-owned enterprises covering 25% of the total number and the local state-owned enterprises covering 56%, and 56% have not been converted. It is still an important task for the conversion of the state-owned enterprises, especially the large state-owned enterprises. The conversion of the state-owned enterprises is a systematic project involving various subjects and legal relations. The legal relations between the subjects include the ones of the material rights, the creditors'rights and labor as well. The legal relations between the subjects are complex and include the complicated groups of conflicts of interests. The conflicts of interests between assigners and assignees, the conflicts of interests between assigners or assignees and creditors and the conflicts of interests between assigners or assignees and employees of enterprises interweave with each other, which is easy to bring about the social factors of insecurity and prevent the conversion of the state-owned enterprises from being successfully carried out. The reasons for these conflicts of interests are included as follows. Firstly, the old system brings about the unclear structure of property rights of enterprises and no separation of power from responsibility, unsound operation and management and inadequate vigor as well as heavy burdens. Under the traditional planned economic system, the state directly interferences in the affairs in the enterprise by the administrative means and neglects the principal status of the enterprise as a legal person and the principal status of labor of a laborer. The state has been pursuing the "policy of high accumulation"for a long time, that is, the main part of the profits made by the operations of the state-owned enterprises are used for the national construction of other fields. The employees of enterprises have been getting the low wages or salaries for a long term, with their medical care, employment and pensions all depending on the enterprises. A large amount of accumulated funds withdrawn from the enterprises cannot produce the expected benefits for various reasons and most of the investments end up in smoke, which brings about the heavy burdens of the enterprises and large gaps in the interests. Secondly, the national laws, regulations and policies on the conversion of enterprises are not complete and the policies on conversion in all the local governments are not unified. Up to now, there has been no law established by the legislature to standardize the conversion of the state-owned enterprises. The adjustment of the conversion of enterprises is involved not only in the policies of the Central Committee of the Communist Party of China, the administrative laws and regulations of all the ministries and commissions under the State Council and the judicial interpretations promulgated by the Supreme Court but also in the different modes, policies and laws as well as regulations adopted or established by all the local governments. Some laws and regulations established by the local governments are in conflicts with the national policies, laws and regulations. The situation in which policies are made by various departments and there is lack of unified legislation objectively makes room for the participants of the conversion to operate in violation of regulations.Thirdly, the laws and regulations that are neither complete nor unified bring some enterprises an opportunity that can be taken advantage of. Some enterprises do not operate according to the relevant policies and laws, which damages the interests of the employees or the nation. Some enterprises take advantage of the opportunity of conversion to escape the debts, which damages the creditors'interests. And other enterprises deliberately conceal or neglect the debts, which damages the interests of the parties that merge or the purchasers. The conflicts of interests in the conversion of the state-owned enterprises should be standardized by the legal means. The legal means is a relatively broad concept, which can be understood at the different levels. Firstly, in view of the methodology, the legal means is that the subject consciously understands the things, thinks about and deals with the relations with the object according to the thinking modes of the legal science. Secondly, the legal means refer to the methods used by the subject takes the theories of the civil and commercial laws such as the company law and the enterprise law and the economic legal science as the guidance and consciously applies all these legal theories to the whole process of the conversion. Thirdly, in view of the ground for operations, the legal means refer to the methods used by the subject to design the programs and carry them out strictly according to the national laws, regulations and policies as well as the relevant regulations on enterprises promulgated by the relevant national ministries and commissions and the local people's governments. It is inevitably at a loss to face a great number of current documents on conversion, for which the key is to find the starting point, that is, from the establishment of the conversion procedure prior to conversion to the judicial protection of the substantive rights of the subject. In this paper, the procedure for the conversion of the state-owned enterprises is first dealt with, which make the conversion legitimate in the procedure and take into full account the rights of each subject in the entity, including the determination of property rights and estimate of assets, the governmental approval, the approval of the congress of the workers and staff members and creditors'supports. And then some disputes met in the judicial practice and the methods handling them areconcluded and some problems in the conversion of the state-owned enterprises such as invalid contracts, protection of assignees'rights and undertaking of debts as well as protection of the rights of the workers and staff members are dealt with, respectively. According to the analysis and argumentation of the conflicts of interests and laws and regulations in the conversion of the state-owned enterprises, the author thinks that the conversion of the state-owned enterprises influences a wide range of social fields and involves various subjects and complicated relations of interests and the social contradictions and unstable social factors are easy to be arisen if these problems are not well solved. The balance between justness and efficiency should be first found to deal with the conflicts of interests in the conversion of the state-owned enterprises. When the contradictions between justness and efficiency cannot be resolved, the justness that the law pursues should be regarded as the principal value concept instead of pursuing the rapid speed, neglecting the loss of the state-owned assets and damaging the interests of a great number of workers and staff members and creditors as well. The conversion of the state-owned enterprises should not be made on the sacrifice of the trade security and social credits. Therefore, on the one hand, the more unified and strict laws and regulations on the conversion of the state-owned enterprises should be established; on the other hand, the participants of the conversion of the state-owned enterprises should carry out their activities strictly in accordance with the provisions of laws and regulations and finally realize the successful conversion.