国有企业监事会:基于本土需求的制度保留与融合

The Supervisory Board in SOE:Institutional Reservation and Fusion Based on Local Needs

由于外派监事会的撤销,《公司法(修订草案)》将监事会设置为可选出的公司治理机制,国企监事会的存废再次成为必须回答的问题。从比较法和政治经济学的视角来看,由于政企分开的本土需求、监督与管理职能区隔的国际趋势,监事会在国企内部仍有存续的必要。在过去的国企实践中,包括独立董事、稽察特派员、外派监事会和纪委在内的各种机制相继被引入国企内部,尽管这些机制存在明显的制度优势,却未能完全解决国企中存在的内部人控制问题。未来,伴随整体性的政企分开的大环境的形成,国企不再需要通过弱化监事会职权的方式来避免过度的政治干预,而与纪委进行“双向进入、交叉任职”可以在实现国企内部政经逻辑协调融合的同时,提升国企监事会的监督效果。通过对社会关系和文化约束的关注与制度回应、对监事任职资格的妥当安排、有限制的事前审批权与合规职权的赋予,国企监事会的独立性、专业性和权威性将会得到大幅提升,从而能够更好地解决国企所特有的代理成本问题。

Although the powers of supervisory board stay almost unchanged in the context of Chinese Corporate Law,legal practices in the relevant fields are very complex.On the one hand,the supervisory boards in state-owned enterprises do not display their corresponding functions well.Because of fierce criticism,lots of complementary institutions are introduced into state-owned enterprises.On the other hand,as outside appointed supervisory board was abolished by the State Council and the draft of new corporate law makes supervisory board an optional organ,the supervisory board may be totally removed from state-owned enterprises in the near future.From the historical perspective,the establishment of supervisory board was not a simple result of legal transplant which copied the corporate governance rules set by other continental jurisdictions.The Chinese version of supervisory board has three outstanding characteristics including being introduced by mandatory rules,holding parallel positions with board of directors,and one third of the members must be employee representatives at minimum.These characteristics make it clear that the establishment of supervisory boards in state-owned enterprises is a conscious choice to solve two local problems.One is the integration of government administration with enterprise,another is the employees’need to participate in corporate governance.Nowadays,although employees could participate in corporate governance through the board of directors and employee stock ownership plan,due to the international trend to separate management from supervision and the need to avoid excessive political interventions,the supervisory boards still need to be reserved in the state-owned enterprises.Compared with supervisory boards in state-owned enterprises,independent directors are more independent from management,more professional in the field of law,finance and strategic management,more authoritative.Because of these advantages,independent directors function much better in resolving agency cost problems.Nevertheless,influenced by the dilemma caused by taking management and supervise responsibility at once,group thinking problems rising from the homogenous background,unique culture constraints,independent directors also fail to supervise management members.Furthermore,contrast with independent directors,inspection commissioners and outside appointed supervisory board have more independence,expertise and authority.However,due to its limited role in supervising the finance of state-owned enterprises and limited power having no penetrating nature,they fail to function well.Acceding to empirical researches,the commission for inspecting disciplines has proved to be a useful institution in handling corruption in state-owned enterprises.The penetrating nature of its supervisory power and its high prestige inside the Party may explain its success.But,due to the existing flaws in its working mechanism,staff and expertise constraints,it still has not archived its full potential.In the future,with the overall formation of the separation of enterprise management from excessive political interventions,corporate and other relevant legislations no longer need to prevent excessive political interventions by reducing the power held by supervisory boards.Conversely,relevant legislations should make legal reforms to help supervisory boards in state-owned enterprises to fuse with commission for inspecting discipline,which can make supervisory board more authoritative and its power more penetrating.Furthermore,relevant legislation should increase independence of independent supervisors by focusing more on the influences exerted by social ties and cultural constraints,promote professionalism and authority of supervisory board by allowing employees to elect non-employee representatives,selectively enabling supervisory boards to pre-approve important corporate issues and giving them more say in the field of corporate compliance.