国家所有权性质问题研究——针对国有资本的分析

Study of the Essence of State-ownership based on the Management of State-owned Capital

根据民法学界的主流观点和《物权法》的规定,在国有资本经营领域,国家对国企享有的"国家所有权"是一种物权。这一观点违背"资本不是物"的马克思主义政治经济学原理,无法解释国有资本领域内劳动者(国企职工)的法律地位,也与诸多部门法制度和我国的现实相冲突。从物权法律制度和理论上讲,国家既不可能对投入国企的财产享有所有权,也不可能对国企本身享有所有权。实际上,此等"国家所有权"乃是国家通过行使立法权和行政权而享有的对于国企的控制权和剩余(价值)索取权,是一种经济公法领域中的公权力。

According to the dominant view of the academe of civil law and the provision of Law of P. R. C on Real Right, the state-ownership right is some kind of real right on state-owned enterprises which hold by the state in the field of the running of state-owned capitals. While the view deviated from the principles of Marxist political economics that capital is not a kind of object of real right, which can not give a reasonable explanation of the laborers＇legal status in the field of state-owned capital, and also conflicts with many department legal systems and the reality of our country. The state, legally and theoretically, is impossible to enjoy the property rights to capital of the state-owned enterprise and the real right to state-owned enterprise itself. In fact, the so called the state-ownership right is some kind controlling right and acquiring right of surplus value that the state enjoy on the state-owned enterprises by the exercising the power of legislation and administration, that is a state power in the field of economy.