论国企改革中全民股东法律关系的信托化处理——以共享发展理念为视角

The Trust of the Legal Relationship of the Whole People——in the Reform of State-owned Enterprises

在国企改革中贯彻《十八届五中全会公报》所提出的共享发展理念,需要重新重视全民股东的重要作用。全民股东的法律地位有着政策以及法律上的支持与根据,但是全民股东是"虚位"存在的,有其名而无其实;而全民股东缺位之后,当前国企改革困难重重。若要解决这一虚位,便要探究全民股东与国家之间的第一层关系的法律性质,之前学界所坚持的委托代理法律关系有着实践上的缺陷与法理上的不相容。可以将这第一层法律关系信托化,确定全民股东与国家的权利义务,从而解决全民股东的"虚位"问题,亦能体现共享发展理念。

Of the 18th CPC Central Committee in the reform of state-owned enterprises, it is necessary to stress the importance of national shareholder. The legal status of shareholders is guaranteed by the policies and laws, but shareholders＇ clearance does exist, that means it has its name but in fact it is vacant. Due to the vacancy, the current reform of state-owned enterprises is difficult. To solve this clearance, it is needed to explore the legal nature of the relationship between the first shareholder and the nation. The previously held principal-agent relationship in law has defects in practice and is incompatible in law. Thus the first legal relationship can be of trust and the rights and obligations of all shareholders and the state can be determined so as to solve the ＂clearance＂ problem. What＇ s more, the development of the concept of sharing can be reflected.