关于国有股转持中国有股东义务履行的法制困境与完善

Legal dilemma of state-owned shareholders to perform their obligations and its improvement in the course of State-owned share transference

本文结合我国国有股转持五年以来的实践经验,提出在国有股转持过程中国有股东义务履行层面遇到的三个法制困境并提出了完善建议。第一,当前国有股转持份额的确定体现了充实全国社保基金与国有资产运营体制改革两者的价值失衡,建议分类、分步、分层设定国有股转持额度;第二,在转持方式的选择上,以上缴资金方式履行转持义务应当体现公平理念,当前以发行价定价的实践存在不合理性,应当依据不同上缴资金情形分别设定价格计算标准;第三,就第三方权益保护而言,对于混合所有制国有股东的非国有出资人,其补偿额度应以转持国有股份的二级市场价格计算,对于混合所有制国有股东的债权人,建议设立转持国有股东债权人保护基金以保护其合法权益。

Based on the five-year practical experience of enforcement of State-owned Share Transference Policy, this article presents three legal plights encountered in the period of State-owned Share Transference regarding shareholders＇obligations and proposes a perfecting resolution. Firstly, as the share determination of the current state owned shares transference fully reflects value imbalance between enriching the national social security fund and the operating system reform of state-owned assets, the method of setting credit of state-owned shares transference by way of classifying, taking steps and layering is strongly recommended. Secondly, with regard to methods of transference, implementing the duty of transferring shall embody the idea of fairness, but the existing practice of pricing on basis of issuing price is unreasonable and shall set prices calculation standard respectively per the situation of paying the money. Third, in terms of third-party rights protection, for non-state-owned investors of state-owned shareholders in mixed ownership enterprise, the compensation amount should be computed according to the transferring price of state-owned shares in the secondary market. For creditors of state- owned shareholders of mixed ownership enterprise, it is suggested that a protection fund be established for the creditors of state-owned shareholders to protect their legitimate rights.