Study On The Wholly State-owned Company Legislative Framework

From the perspective of the reform of wholly state-owned company legislative framework, this paper is aimed at analyzing the legislative history and current situation of wholly state-owned company under the dual-regulation framework of Company Law and State-owned Assets Legislation, researching problems of such framework and putting forward some ideas regarding wholly state-owned company legislative perfection.In the first charter, the paper is analyzing current legislative framework of wholly state-owned company. Firstly, it points out the definition of Chinese wholly state-owned company compliance with the provision of 2005 Company Law. Namely the Chinese wholly state-owned company funded by the state is the Limited Liability Company, which was authorized by the State Council or local government to the same State-owned Assets Supervision and Administration Commission to perform the contributors’ duties. Meanwhile, the paper also makes further research into the underlying meaning of that definition, based on which, the paper points out the wholly state-owned company’s three features, included limited on its layer and scope, specificity its incorporation and organization, subject of duty perform. Moreover, the first charter indicates the dual-regulation framework: “one point” is referred to the special concentrate provision about institution of wholly state-owned company according to the special clause of wholly state-owned company in fourth section of second charter in 2005 Company Law and “two sides” including two meanings, the first meaning(from the perspective of nature of organization), under the Corporation Law framework, is referred to the wholly state-owned company’s complementary norm based on the ordinary provision of the institution of limit liability company in 2005 Company Law because of its nature of company. The second meaning, under the state-owned property framework, is referred to the special rules formulated by(1) ordinary clauses of enterprise capitalized by state,(2) special provision of wholly state-owned company based on nature of “state-owned”.The second chapter of this paper analyzes the development path of wholly state-owned company legislation. Firstly, it analyzes the historical background that 1993 Company Law established a separate section regarding wholly state-owned company, and pointed out that, at that time, as the “wholly state-owned limited liability company”, the wholly state-owned company does not fall into the general category of general limited liability company, but appears more as a paratactic entity with the general limited liability company system, based on which, this chapter analyzes the historical changes from 1993 Company Law to 2005 Company Law, pointed out that the wholly state-owned company section was separately set up and then becomes a special provision, with the basic provisions of limited liability company as a supplement of the wholly state-owned company section on style; canceled the mandatory provisions on industry in the process of the incorporation of a state-owned company and therefore returned to company law’s characteristic as organizational legislation; pinpoint the contributors’ duty of the state-owned assets supervision and administration institution; As to supervision mechanism, it highlights playing Supervisory Board’s functions other than implementing supervision system. Meanwhile, it analyzes how to coordinate between the provisions on wholly state-owned company and the provisions on limited liability company, 2005 Company Law clearly defines the complementary role of the general system about limited liability company; part of the special provisions on wholly state-owned company actually complies with the general principle on limited liability company system, with strict provisions ton some matters on basis of the general principle on limited liability company system, which presents the differentiation of the power setting for functional departments, more stringent section mechanism for personnel and part-time restriction provisions. Furthermore, this chapter analyzes the phenomenon that the wholly state-owned company system cannot be applied to the one person limited liability company system and neither can the other way around in 2005 Company Law, take the corporation personality denial system of one person limited liability company for example, it points out that if the one person limited liability company system is directly applied to wholly state-owned company, obvious discrepancies between it and the existing provisions of the state-owned company to some extent would surely arise. Finally, this chapter analyzes the relationship between company law and state-owned assets legislation in the development process from historical perspective, and points out that the state-owned assets legislation plays a leading role in company law with regard to the development of the wholly state-owned company section as a whole. Currently, the state-owned assets legislation continuously develops and improves on the basis of some previous relevant provisions, but there are circumstances in which the company law fails to give feedback towards that through modification.The third chapter aims to analyze the theoretical support and practical demands of the wholly state-owned company legislation system reform in China. Theoretically, modern enterprise legislation system should be distinguished by the form of business organization. However, the provisions of Section IV Chapter II of 2005 company law, formally, are the residual legislative thoughts of forming the possessions. The foothold of distinguishing wholly state-owned company in itself is “state-owned” attribute, rather than “sole proprietorship” attribute. There are drawbacks to regulate wholly state-owned company by "special provisions of a wholly state-owned company " stipulated in company law, which mainly reflected in the following aspects: impairing the orientation and unity of company law as company-based enterprise fundamental organization legislation; reducing the efficiency of the implementation of the law due to repeated legislation; lagging the implementation schedule of the reform of state-owned enterprises. At the same time, reform of state-owned enterprises puts forward new requirements to wholly state-owned company law legislation, and in the process of state-owned enterprises categorization reform, special provisions of a wholly state-owned company by company law, to certain extent, ignored the institutional foundation which is necessity for function climatological implementation of state-owned capital operating companies and public enterprise, and fail to balance the particularity of two types of companies in supervision and management; also, based on the consideration of the reform to operation and regulatory system with the consideration of state-owned assets and the coming process which accompany with series of complicated operation system reform towards state-owned assets, it is beyond dispute that specifying the state-owned assets supervision and administration institution as the only entity who perform the functions of the capital contributor of wholly state-owned company will divorce from reality, thus hindering the process of reform.The content of Chapter IV is the perfection of the legislative style of state-owned companies. This chapter firstly points out that the reform of the state-owned asset management system and regulatory system is the premise and structure result of the adjustments of the special provisions of the state-owned company in company law. At the system level, the reform of the state-owned asset management system and regulatory system reform is the premise of the adjustments of the special provisions of the state-owned company in company law. At the framework level, we should strip the Section Four of the Chapter II of 2005 Company Law, in order to avoid becoming the system barriers of the reform of the state-owned asset management system and regulatory system. Then this chapter points out that we should reshape the relationship between company law and the special legislation of the state-owned assets, specifically at the level of corporate law, corporate law should be in the position of the basics business organization law of corporate enterprises. In the other hand, for satisfying the demand of formulating particular organization rules of wholly state-owned company and the act of its active in economic based on ordinary provision of One-person Limited Liability Companies and Limited Liability Companies in 2005 Company Law, it should specify the position that it is not only the particular organization rules of wholly state-owned company, but also the behavior law with respect to the State-owned Assets Legislation. What’s more, the feature of company organization of state-owned company also should be clear and the different kinds of wholly state-owned company should be regulated by classified act in the State-owned Assets Legislation. And, about the adjustment of bringing wholly state-owned company into the regulation of One-person Limited Liability Companies, this charter would make a discussion partly on perfecting the regulation of incorporation, governance and liability of wholly state-owned company under the One-person Limited Liability Companies legislative framework.