本文選題：監(jiān)事會(huì)制度 + 外派監(jiān)事會(huì)�。� 參考：《經(jīng)濟(jì)研究參考》2011年36期

【摘要】：正現(xiàn)行外派監(jiān)事會(huì)制度的前身是1998年設(shè)立的稽查特派員制度,1999年黨的十五屆四中全會(huì)后過(guò)渡為外派監(jiān)事會(huì)制度。外派監(jiān)事會(huì)制度是相對(duì)于內(nèi)設(shè)監(jiān)事會(huì)制度而言的,根據(jù)《企業(yè)國(guó)有資產(chǎn)法》第39條,企業(yè)改制包括國(guó)有獨(dú)資企業(yè)改為國(guó)有獨(dú)資公司,國(guó)有獨(dú)資企業(yè)、國(guó)有獨(dú)資公司改為國(guó)有資本控股公司、國(guó)有資本參股公司等組織形式�！豆痉ā芬�(guī)定,國(guó)有資本控股公司、國(guó)有資本參股公司設(shè)立監(jiān)事會(huì),為區(qū)別于外派監(jiān)事會(huì),通常將國(guó)有資本控股公司和國(guó)有資本參股公司依據(jù)《公司法》設(shè)立的監(jiān)事會(huì)稱(chēng)為內(nèi)設(shè)監(jiān)事會(huì)。我國(guó)實(shí)行外派監(jiān)事會(huì)制度至今已超過(guò)10個(gè)年頭。經(jīng)過(guò)10多年的不斷改革,外派監(jiān)事會(huì)制度發(fā)揮作用的環(huán)境和條件發(fā)生了變化,同時(shí),面臨法律和操作兩方面的沖擊。一方面,《公司法》、《企業(yè)國(guó)有資產(chǎn)法》等法律法規(guī)關(guān)于公司制企業(yè)監(jiān)事會(huì)的相關(guān)規(guī)定,給外派監(jiān)事會(huì)制度的適用范圍帶來(lái)很大沖擊。根據(jù)《國(guó)有企業(yè)監(jiān)事會(huì)暫行條例》(以下簡(jiǎn)稱(chēng)《監(jiān)事會(huì)暫行條例》)和《企業(yè)國(guó)有資產(chǎn)監(jiān)督管理暫行條例》(以下簡(jiǎn)稱(chēng)《監(jiān)督管理暫行條例》)規(guī)定精神,國(guó)有資本出資人機(jī)構(gòu)依照規(guī)定代表本級(jí)人民政府向所出資企業(yè)中國(guó)有獨(dú)資企業(yè)、國(guó)有獨(dú)資公司派出監(jiān)事會(huì)。國(guó)務(wù)院國(guó)資委代表國(guó)務(wù)院向所出資企業(yè)中國(guó)有獨(dú)資企業(yè)、國(guó)有獨(dú)資公司派出監(jiān)事會(huì)。2005年新修訂的《公司法》,盡管沒(méi)有明確規(guī)定國(guó)有獨(dú)資公司必須設(shè)立監(jiān)事會(huì),但明確規(guī)定,國(guó)有獨(dú)資公司的監(jiān)事會(huì)除職工代表外,監(jiān)事會(huì)成員由國(guó)有資產(chǎn)監(jiān)督管理機(jī)構(gòu)委派,監(jiān)事會(huì)主20席由國(guó)有資產(chǎn)監(jiān)督管理機(jī)構(gòu)從監(jiān)事會(huì)成員中指定。對(duì)此,可以理解為國(guó)有獨(dú)資公司實(shí)行外派監(jiān)事會(huì)體制�！镀髽I(yè)國(guó)有資產(chǎn)法》規(guī)定:國(guó)有獨(dú)資公司依照《公司法》規(guī)定設(shè)立監(jiān)事會(huì),國(guó)有獨(dú)資企業(yè)由履行出資人職責(zé)的機(jī)構(gòu)按照國(guó)務(wù)院的規(guī)定派出監(jiān)事組成監(jiān)事會(huì)。根據(jù)現(xiàn)行法律法規(guī),國(guó)有獨(dú)資企業(yè)和國(guó)有獨(dú)資公司實(shí)行外派監(jiān)事會(huì)體制,國(guó)有控股企業(yè)實(shí)行內(nèi)設(shè)監(jiān)事會(huì)的體制。需要進(jìn)一步研究的是由多個(gè)國(guó)有股東尤其是國(guó)家股和國(guó)有企業(yè)法人股構(gòu)成的國(guó)有獨(dú)資的公司制企業(yè)是實(shí)行外派監(jiān)事會(huì)制度還是內(nèi)設(shè)監(jiān)事會(huì)制度。從上述分析不難看出,現(xiàn)行法律法規(guī)給外派監(jiān)事會(huì)制度帶來(lái)的沖擊主要在于國(guó)有控股和國(guó)有參股的股份制企業(yè)。深化國(guó)有企業(yè)公司制股份制改革,發(fā)展混合所有制企業(yè),是黨中央、國(guó)務(wù)院確定的既定方針,并將成為國(guó)有企業(yè)改革的主要形式,因此,如何使現(xiàn)行外派監(jiān)事會(huì)制度適應(yīng)改革需要,已成為深化國(guó)有企業(yè)改革、加強(qiáng)國(guó)有企業(yè)監(jiān)管的一個(gè)重大體制問(wèn)題。另一方面,國(guó)有企業(yè)股份制改革特別是越來(lái)越多的中央企業(yè)整體改制上市,對(duì)外派監(jiān)
[Abstract]:The predecessor of the current system of the board of supervisors on foreign assignment is the system of special inspectors established in 1998. After the fourth Plenary session of the 15th CPC Central Committee in 1999, the system of the board of supervisors on foreign assignment was transformed into the system of the board of supervisors on foreign assignment. According to Article 39 of the "Enterprise State-owned assets Law", the restructuring of an enterprise includes the transformation of a wholly state-owned enterprise into a wholly state-owned company, a wholly state-owned enterprise, and a wholly state-owned enterprise. A wholly state-owned company shall be transformed into a state-owned capital holding company and a state-owned capital shareholding company. The Company Law stipulates that a board of supervisors shall be set up by a state-owned capital holding company or a state-owned capital equity participating company, in order to distinguish it from an overseas board of supervisors, Usually, the board of supervisors set up by the state-owned capital holding company and the state-owned capital shareholding company according to the Company Law is called the internal board of supervisors. China has implemented the system of expatriate board of supervisors has been more than 10 years. After more than 10 years of continuous reform, the environment and conditions under which the system of expatriate board of supervisors play a role has changed. At the same time, it faces the impact of both law and operation. On the one hand, some laws and regulations, such as "Company Law", "Enterprise State-owned assets Law" and other laws and regulations, on the board of supervisors of the corporate system, bring a great impact on the scope of application of the system of the external board of supervisors. In accordance with the provisions of the interim regulations on the Board of Supervisors of State-owned Enterprises (hereinafter referred to as the interim regulations of the Board of Supervisors) and the interim regulations on Supervision and Administration of State-owned assets of Enterprises (hereinafter referred to as the interim regulations on Supervision and Administration), On behalf of the people's government at the corresponding level, the state-owned capital contributor institution shall, in accordance with the regulations, send a board of supervisors to the wholly state-owned enterprise and the wholly state-owned company. The SASAC of the State Council, on behalf of the State Council, sends supervisory boards to wholly state-owned enterprises and wholly state-owned enterprises funded by the State Council. The newly revised Company Law in 2005.Although there is no clear stipulation that a wholly state-owned company must set up a board of supervisors, it clearly stipulates that, In addition to the representatives of the staff and workers, the board of supervisors of the wholly state-owned company shall be appointed by the supervision and management organ of the state-owned assets, and 20 seats of the board of supervisors shall be appointed by the supervision and management organ of the state-owned assets from among the members of the board of supervisors. In view of this, it can be understood that a wholly state-owned company implements the system of sending out a board of supervisors. The Law on State-owned assets of an Enterprise stipulates that a wholly state-owned company shall set up a board of supervisors in accordance with the provisions of the Company Law. The solely-owned state-owned enterprise shall be composed of supervisors appointed by the institution performing the duties of the investor in accordance with the provisions of the State Council. According to the current laws and regulations, wholly state-owned enterprises and wholly state-owned companies implement the system of external board of supervisors, and state-owned holding enterprises implement the system of internal board of supervisors. What needs to be further studied is whether the system of external board of supervisors or the system of internal board of supervisors should be carried out in state-owned enterprises, which is composed of many state-owned shareholders, especially state-owned shares and state-owned enterprises' legal personnel shares. From the above analysis, it is not difficult to see that the impact of the current laws and regulations on the system of the board of supervisors mainly lies in the joint stock enterprises with state-owned holding and state equity participation. Deepening the reform of the corporate system of state-owned enterprises and developing mixed ownership enterprises is the established policy set by the Party Central Committee and the State Council, and will become the main form of reform of state-owned enterprises. How to adapt the current system of expatriate board of supervisors to the needs of reform has become a major institutional problem in deepening the reform of state-owned enterprises and strengthening the supervision of state-owned enterprises. On the other hand, the reform of the stock system of state-owned enterprises, especially that of more and more central enterprises as a whole, has been listed on the market and sent to foreign countries for supervision.
【分類(lèi)號(hào)】：D922.291.91

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