Questioning The Transfer Of The State-owned Property Right Of Enterprises To Management

China State-Owned Assets Regulatory Commission and The Ministry of Finance of the People's Republic of China enact "Temporary Regulation of the Transfer of the State-Owned Property Right of Enterprise to Management", on April 11, 2005, which arouses the heat debates among the academic fields and society. Many people think that MBO is the substitute for the drain of the state-owned assets. This paper points out that, being short of systematic legislations and regulations related to MBO, especially the absence of important conditions of western countries' MBO, and more importantly, the application of MBO in China has caused some negative effects like black case work, theft of state owned assets, the transfer of the state-owned property right of enterprise to management can not be legislated, or it will be another great banquet for management to plunder state-owned assets. There are three parts in this paper, the following is the general introduction of each parts.Part one: Introduction of the developed countries' MBO. This part briefly accounts for the implications of the MBO, its theoretical basis and its existing conditions. This part only analyzes the agency costs theory, rather than incentive theory, the transfer of controlling rights and wealth theory, and briefly mentions the economic system conditions, the legal conditions and social conditions.Part two: Analysis of the temporary legislation the transfer of the state-owned property right of enterprise to management. This part, from the prospect of Temporary Regulations, questions the transfer of the state-owned property right of enterprise to management. This part at first accounts for the background of the "temporary legislation", its main contents and compares the relative contents with the developed countries. And then explore the defects of the "temporary legislation ", including purchaser, purchased objects, financing, pricing, information disclosure. These defects cause illegal operations can not be regulated.Part three: Nowadays the transfer of the state-owned property right of enterprise to management should not be legislated. It is the important part in this paper. This part questions the regulations from the following points: including the wrong ideas of thelegislation, the transfer of the state-owned property right of enterprise to management will break the constitution, lack the conditions of the developed countries' MBO, the barrier of the existing law, the legal rights of the employee will bi damaged and the inherent defects of the MBO. In this part, this paper points out in detail that China nowadays lack the existing main conditions of the developed countries' MBO, such as personal ownership, market economic legal system, management, financing, social faithful system, intermediate organizations, social cultural environment, and what is more, this part also accounts for the existing wrong ideas, the break of constitution and protection of employee's legal rights.