民办高校法人治理结构的反思与重构

The Reconstruction of the Legal Person Governance Model in Private Colleges and Universities

中国民办高校以办学是否以营利为目的作为标准,可以划分为营利性民办高校和非营利性民办高校。但是这一划分标准未区分民办高校的产权归属,不能精准确定民办高校法人性质。而《中华人民共和国民办教育促进法》对民办高校的法人治理结构的规定较为笼统,没有区分营利性民办高校与非营利民办高校的不同治理模式,导致中国营利性民办高校在实践中呈现董事会受股东控制、教师监督缺乏、内部分权制衡机制不合理,非营利民办高校捐助法人属性不明确、党委和教师监督机制缺失等状况。基于产权理论与不完备契约理论,明确民办高校产权性质,对民办高校剩余控制权作合理划分是优化民办高校法人治理结构的必然路径。在未来民办高校法人治理结构改革中,应当根据产权性质对民办高校法人性质作区分。对营利性民办高校,应当构建股东会、董事会、监事会三权分立的现代公司治理结构;对于非营利性民办高校,应当构建以理事会为核心,校长独立行使权力,教师、党委、政府监督的共同治理模式。

Private universities are divided into nonprofit universities and for-profit universities according to whether they are running for profit or not.This standard of classification,however,does not distinguish the property ownership of private universities,and could not determine the nature of the legal person.In addition,Law of the People’s Republic of China on the Promotion of Privately-run Schools fails to distinguish the different types of private universities’governance model,which leads to the consequence that the for-profit universities are controlled by the board of directors but not the board of shareholders,and lack teachers’supervision.On the other hand,the nature of non-profit universities’consortium legal person is not clear and they lack the supervision of the communist party committee and teachers as well.Based on the property theory and incomplete contract theory,it is necessary to distribute the residual control rights of private universities more reasonably.In the future reform of governance model,the for-private universities should establish the corporate governance model that the board of directors,board of shareholders and board of supervisors are separated into three powers.For the non-profit universities,a joint governance model should be established in which the council is the core institution among other institutions,and the chancellor exercises the power independently so that the teachers,government and the communist party committee supervise together.