WTO体制下中国商事组织法三大变革析论

Three Changes of China's Business Organization Law in the Shadow of WTO

中国商事组织法存在的创新机制缺失、身份立法、经营范围僵化等问题,不仅使我国商事组织在加入WTO后更为激烈的国际竞争中处于不利地位,而且构成中国履行相关国际承诺的障碍。为此,应在肯定商事组织法原有原则的前提下弱化法定原则、确立国民待遇原则和规则效率原则,并在根据新原则对中国商事组织权利能力和行为能力制度重构的基础上,设计商事组织经营范围和外贸经营权的改革方案,具体讲,就是应废除三资企业法、《全民所有制企业法》、《乡镇企业法》和《私营企业暂行条例》,将其所调整的商事组织分别归属于《公司法》、《合伙企业法》和《个人独资企业法》,并引进有限合伙、有限责任合伙等形式丰富我国合伙企业的类型。

Problems such as lack of innovative mechanism, making different laws in accordance with different status, rigidity of the provision of business scope, and so on, in China＇ s business organization law not only cause China＇ s business organizations to lose the edge in the fierce international competition market, but also hinder China from keeping its international promises. So, this paper, on the premise of maintaining the existing principles of the business organization law, proposes to weaken the strictness of statutory provisions and establish the national treatment principle and efficiency of rules. In accordance with the new principle the plan to restructure the rights and activities framework of China＇ s business organizations is proposed. This paper also suggests that we should abrogate the Joint Venture Investment Act, the State-~ed Enterprises Act, the Township Business Act, and the Provisional Regulations of Private Enterprises and that business organizations regulated by these Acts should be subject to the Corporate Act, the Partnership Act and the Sole Proprietorship Act. Finally it suggests that new forms of partnership, such as limited partnership, limited liability partnership, etc, should be introduced to diversify our partnerships.