契约视角下企业国有资产法律监管研究

The Study of Legal Supervision on the State-Owned Assets in the Perspective of Contract

国有资产监管是国有资产法律制度的核心内容,特别是在企业国有资产监管中,行政干预权与企业经营权之间的平衡是实现国有资产安全与增值的关键,也是国企混合所有制改革的重要内容。现行《企业国有资产法》及相关国企法律法规没能与《公司法》等商事法律法规有效对接,导致行政干预超越企业市场化经营、治理结构中的决策程序冲突、以及因权力缺乏约束和激励而使得国有资产流失问题仍旧频发。契约是社会经济交往的最重要工具之一,尽管契约在不同领域表现出不同的结构特征,但契约的功能和核心框架具有同质性。国有资产监管本身就存在着监管者与被监管者之间的权责契约,国有企业国有资产监管中还存在着履行出资人职责机构与企业治理结构主体之间的契约。通过契约的方式,可以明确国有资产监管相关的不同主体之间的权责利,并建立有效的约束与惩戒机制,实现国有企业国有资产的监管目标。

The state-owned assets supervision is the core content of the legal system of state-owned assets, and especially in the state-owned assets supervision of enterprises.The balance of administrative intervention and the right of management in enterprises is the key to the safety and accrued of the State-Owned Asset and the important part for the reform of mixed ownership of state- owned enterprises. Because the law is not weed eomnected between the ＂Law of the State-Owned Assets of Enterprises＂ and the ＂Company Law＂, it has created problems such as the over interference of administrative power, the weakening Market-oriented management of enterprise, the conflict of decision-making process in governance structure, and loss of state-owned assets. Con- tract is one of the most important tools of social and economic interactions. Although the structural characteristics of contract have been show different in different areas, the function of the contract and core framework has homogeneous. There are two contracts in state-owned assets supervision, namely the power and obligation contract between regulator and the supervised entities, bodies performing the contributor＇s functions and the entities of governance structure. It can be summarized as the ＂power, responsibili- ty, and profit＂ in the different body related to the state-owned assets supervision. The effective constraint and punishment mecha- nism shall bebuih, in order to realize the goal in state-owned assets supervision.