美国政府董事制度的缘起、发展及其启示

The Origin,Development and Implications of Government Directorship in the United States

政府董事制度自1833年发端于美国第二银行以来在美国一直延续至今。政府董事系政府依据国会特别立法授权委派到政府公司及政府支持企业履行公务职责的董事,其具公私法上双重法律地位,对实现政府的目标具有重要意义。我国各级政府国资委代表政府向公司制国有企业委派的国有股权董事以及外部董事,同样承担着企业国资经营监督之公务职责,事实上为我国的政府董事。但我国的政府董事仅具公司法上董事的私法身份,这使得其可能在公司私法人地位的保护下逃避公法性义务。对此,我们可借鉴美国的有益经验并结合我国国情,将政府董事定位为公职董事,以发挥其作为政府董事的应有功能,为当前国企混合所有制改革提供制度保障。

The government directorship has been in place in the United States since 1833,when it began with the Second Bank of the United States.Government directors,which have dual legal status in public and private law and are of great significance to the realization of the government’s goals,are directors appointed by the government to perform official duties in government companies and government-supported enterprises under the authority of special legislation of Congress.The state-owned equity directors and external directors appointed by the State-owned Assets Supervision and Administration Commissions at all levels of government in China on behalf of the government to the state-owned enterprises in the corporate system also undertake the official duties of supervising the operation of the state-owned assets of the enterprises,and are actually the government directors in China.However,the government directors in China only have the private law status of directors under the company law,which makes them evade their public law obligations under the protection of the company’s private legal person status.In this regard,we can learn from the beneficial experience of the United States and position government directors as public directors in accordance with China’s national conditions,so as to play their proper functions as government directors and provide institutional protection for the current reform of the mixed ownership system of state-owned enterprises.