论国资委与国有独资公司董事会的关系

The Relationship between SASAC and Boards of Directors in Wholely State-owned Corporations

经济学中对股东会与董事会关系的理论主要是围绕股东和董事之间的关系展开的,包括企业的企业家理论和代理理论。企业的企业家理论认为,股东的股权与董事等经营者行使的经营权都是所有权职能的一种分裂,是企业家职能的一种分裂。代理理论认为,股东是委托人,经营者是代理人。企业的企业家理论更深刻、清晰地把握了股东会与董事会之间的关系。在法学上,关于股东会与董事会关系的理论主要包括委托代理说、委任说、信托说、双重关系说、法定关系说等。由于公司本身属于一种复杂的组织体,因公司类型、规模的不同,股东会与董事会之间的关系也特征各异,因此很难用一种单一的学说来解释。国资委与国有独资公司董事会之间的关系应当以股份公司,尤其是上市公司为模型来构建,而不能以一人公司为模型。在进行具体制度构建时,应该在法律上明确规定国资委享有小于其他类型公司股东会的权限。

In economics, the theory of relationship between general meetings of shareholders and committee of direc- tors is generally described under the title of relationship between shareholders and directors, which includes enterpriser theory and agency theory. Enterpriser theory considers that shareholder＇s equity and director＇s management are both functions split from ownership. Agency theory thinks that a shareholder is a principal and a director is an agent. In a sense,enterpriser theory discloses deeper character of relationship between shareholders and directors. In jurispru- dence there are mainly five theories about this area, namely principal-agency theory, deputy theory, trust theory, double relationship theory and legal relationship theory. In essence, corporations are complicated organizations and differ in type and scale, thus the relationships between shareholders and directors in different corporations are differ- ent accordingly. Any single theory can hardly describe all such relationships precisely. The relationship between State- owned Assets Supervision and Administration Commission of the State Council（SASAC） and wholely state-owned cor- porations is similar to that in stock corporations, especially like that in listed corporations. Regulations should explicitly prescribe that legal rights of SASAC are smaller in scope than that of shareholders in any other corporations.