“国家所有”的本质回归及其现代法理

Returning the Essence of ‘State Ownership’ and Its Modern Legal Principle

对宪法"国家所有"科学合理地解释十分重要,需要对走向本土的"国家所有"进行历史性梳理。从马克思主义"国有化"到苏联模式的"国家所有"发生了巨大变化。"国家所有"引入中国直接受苏联模式影响,本质是为实现工业化而采取的"国有化运动","国家所有"呈现国家垄断经营的特征。改革开放后,社会经济结构发生巨大变化,"国家所有"不能再呈现单一的国家控制形态,应具备全方位、社会化的视角。认识"国家所有"的前提在于厘清"国家所有"与"全民所有"的关系。其次,"国家所有"的宪法规范实际上是"全民利益"的国家职责,法理基础是国家管理权能,即公权力现象,可分为直接管理权与间接管理权。直接管理权分为计划权、分配权、保护权;而私法上的"国家所有权"属间接管理权,本质上是国家利用私法形式来实现公共管理。

How understanding scientifically the constitution of state ownership is very important, which needs to comb out its history. From Marx's doctrine of nationalization to the Soviet model of state ownership actually there have undergone tremendous changes. The state ownership was introduced into China through the baptism of Marxism and Leninism, but mainly influenced by the Soviet Union mode. In essence it is to be realized through industrialization and nationalization, so the state ownership has national monopoly characteristics. After the reform and opening up, the social economic structure has undergone tremendous changes, which lead that the state ownership cannot show a single state control form, and a full range of social perspective arises. The premise is the need to clarify the ‘state ownership' and ‘ownership'. Secondly, the ‘constitution state' is actually ‘national interests' of the state responsibility, the legal basis is the management of national power, namely power law phenomenon, can be divided into direct and indirect management rights. The direct management program is divided into the right, distribution right and right protection; and private law of state ownership is the indirect management right, which uses the form of private law to realize public management.