On the joint-stock cooperative system related to the legal system construction and improvement of
Abstract: The joint-stock cooperative enterprises in urban and rural areas is a system of property rights reform of collective enterprises in exploring the creation of a new form of business organization, with the deepening of reform, joint-stock cooperative system and infiltration into the state-owned enterprises reform and property rights has become small and medium-sized state-owned Enterprises, collective enterprises form the main. Joint-stock cooperative system to practice, the theory behind, so far the lack of a unified legislative adjustments in the operation appeared to run a large number of irregular acts, the impact of joint-stock cooperative system for the healthy development of enterprises. Must be timely sum up practical experience and will be included in the joint-stock cooperative system to adjust the orbit of the law.
Key words: joint-stock cooperative joint-stock cooperative system to improve
First, joint-stock enterprises and cooperation between enterprises of the characteristics of the
Prevailing market economy is based on the classification of funding, undertaking the responsibility of the property in the form of business organization in the form of enterprises will be divided into companies, partnerships, sole proprietorship, cooperative enterprises, and other forms of law, China's planned economy system conditions, according to the Ownership of enterprises in the form of legislation, which will be divided into the whole people of all enterprises, collectives, private and foreign investment, such as the basic form, with the planned economy to the market economic system, China's enterprises form of legislation has been adopted towards the above-mentioned international Prevailing standards in the form of legislation has the "Company Law" and "partnership" and "individual-owned Enterprise Law" . Enterprise is the legal form of state-specific legal basis for standards-based enterprise category form the legal form of corporate legal practice, only the parties in the form of statutory and can not choose according to their will be created. Although the joint-stock cooperative enterprises in the development of township enterprises and enterprise reform in
a highly efficient type of business, but because of their different localities, the theoretical study and serious lag, the conditions for reunification of the legislation is not yet ripe, in 1993 launched Adjust the market economy the main body of the most important law "Law of the People's Republic" does not make a joint-stock cooperative enterprises, which
all over the joint-stock cooperative enterprises reform is
as the basis for more relevant principles and policies, departmental regulations, local laws and regulations. There are 1990 of the Ministry of Agriculture issued a "joint-stock cooperative system of farmers Provisions", published by the Ministry of Agriculture in 1994, "township enterprises reform of the system of property rights", in June 1997 issued by the State Commission for Restructuring the Economy "on the development of urban joint-stock cooperative enterprises The guidance ", in January 2003 released by the Supreme People's Court" on enterprises and to hear civil disputes relating to the case provided for a number of issues. " Shenzhen, Shanghai and the guidance of the respective joint-stock cooperative enterprises reform of regulations and methods. Note
joint-stock cooperative enterprises as an important form of enterprise, the rule of law into a preliminary orbit. State Commission for Restructuring the Economy "on the development of the city's joint-stock cooperative enterprises guidance" that the joint-stock cooperative system is to take a number of joint-stock cooperative economic practices of the socialist market economy, collective economy, a new organizational forms. Joint-stock cooperative system is able to adapt to the situation arising with the development of cities and small enterprises as an important form of promotion, with its own attributes is closely related to nature. Cooperation in the economic system and China's state-owned enterprises and collective enterprises, essentially a high degree of internal relations, joint-stock system and the economy is the main role of the market economy. As a result, the share-holding system integration and economic cooperation system, the economic advantages of joint-stock cooperative enterprises will be able to develop and promote. On the joint-stock enterprises, according to some of the main features of the theory of comparative understanding community, mainly the following aspects:
1, co-owned. All shareholders by the company's capital investment structure, the shareholders of the company funded the formation of the full enjoyment of the property of
corporate property rights, the shareholders of the Company entitled to share, transfer of shares in property companies generally will not affect the unity and integrity.
2, for-profit. The company set up in order to maximize profits for the pursuit of the objectives of the shareholders to invest in order to return huge profits.
3, shares of democracy. Shareholders of the company's
capital investment by the number of places, according to a one-vote principle of the exercise of the right to vote, shares in the Democratic elected on the basis of shareholders, board of directors, board of supervisors.
4, according to the allocation of capital. Dividends by shareholders into the distribution of shares, rather than the distribution of other criteria, the property company in completion of the national income tax and statutory set-aside, the distribution of Angufenhong fully implemented. But for cooperative system has a different understanding. From the cooperative system have a look at the history of the development, there are two sources, one by the International Cooperative Alliance confirmed that the statute and the majority of the market economy, national legislation to confirm the cooperative system, known as the Western classical cooperative system. This cooperative system began in Britain in 1844, founded by followers of Owen Rochdale Society of Equitable Pioneers, founded the Social solidarity, democracy and the principle of co-management, known as the Rochdale principles, and in 1895 the establishment of the International Cooperative Union recognition in 1984 of the International Cooperation 23rd Congress of the cooperatives will be defined as meaning "as long as its members to promote the economic and social progress as the goal, based on mutual assistance and cooperation so as to the operation of enterprises, and determined to follow Rochdale , By the International Cooperation of the General Assembly by the 23rd Amendment of the principles of cooperatives, can be considered Cooperation Organization. "
Another is a cooperative system had existed in the former Soviet Union and China's existing, mainly to the political orientation of the cooperative system, may be the Socialism cooperative system, the cooperative system is considered to be synonymous with collective ownership, such as China "Constitution" provides various forms of cooperation between urban and rural economy, are collective ownership of the socialist working people. This cooperative system, or the
characteristics of collective ownership of the property business is characterized by a high degree of abstract, vague and non-workers as a whole to enjoy the title but not the proceeds of property rights, collective property division can not be quantified; democratic management of enterprises, public accumulation extract The implementation of distribution according to work, labor co-workers, the cooperative system has been implemented as a tool for upgrading the ownership, to socialism, communism, the only way, with the classic Western-oriented economic cooperatives have the characteristics of the fundamental differences. The establishment of the founding of our country in the early primary agricultural cooperatives, handicraft cooperatives in the city still belong to the classical system of co-operation areas, with the political and social unity of the people's commune system, the establishment of cooperative way premature, China's current economic co-operation of the law has not Originally, the sense of Economic co-operation, joint-stock cooperative enterprises analysis of the cooperative system should be based on factors classic frame of reference for the cooperative system. According to the International Cooperative Alliance and the meaning of the statute on the cooperative principles of cooperation, the cooperative nature of the following characteristics:
1, and co-author. Are members of cooperatives in the production and consumption in areas such as the mutual aid association members do not depend on the status of a number of capital, financed with more qualified members of the symbolic significance; cooperative community has a strong and close, cooperative members are often members of their communities , The shares can be freely bought and sold.
2, for-profit and public welfare. For-profit cooperatives, but the distribution of shares by non-profit, or even distribution, first of all for-profit cooperative business development and public welfare undertakings, in order to improve the economic status of members, followed only by members of cooperatives and the trading volume in the distribution between members Or Angufenhong, but the dividends on restricted only to pay lower dividends, the dividends may not exceed the maximum loan capital market interest rates. This requirement is to put an end to capital at the disposal work.
3, the Democratic co-operation. Cooperatives are democratic organizations, members regardless of the number
of funded or the cooperative's trading volume, are equal members of the management of the vote on the implementation of the exercise of one person, one vote system.
4, according to his work. Restrictions on equity dividends, corporate members involved in the distribution of benefits of the main labor force and its actual contribution, and the size of the business volume is not funded by share allocation. This shows that the joint-stock cooperative system of the
of the property, one for-profit and a combination of nature
mutual aid. The purpose of the establishment of the enterprise, joint-stock enterprises to emphasize the pursuit of profit, cooperative enterprises is the main goal is to address mutual aid among members of the business, the issue of self-help. Joint-stock cooperative enterprises is to safeguard the interests of the members of the business to the mutual relations between members of the basis of market economy at the same time pursue the interests of the enterprise. Second, the joint capital for the joint work with the inherent characteristics of the business. Capital Corporation is a joint enterprise system characteristics, work is a joint cooperative enterprise of the characteristics of the two combined businesses of the main shareholders of both companies, but also enterprises with a dual role, so that labor conflicts have been alleviated. Under the present circumstances, to resolve the contradiction of employment, the elimination of social factors have a special role. The third is the implementation of enterprise management stake in democracy and democratic labor combined business decision-making that is not only embodies the company's shares in enterprises the right to vote, and shows that the cooperative enterprise (or collective enterprises) the democratic management of workers. This is the full mobilization of shareholders, the enthusiasm of enterprises with special effectiveness. Fourth, in accordance with the implementation of the distribution and allocation of funding combined with distribution according to work. This is to resolve the current difficulties in financing small and medium enterprises and workers of the social security problem is of great significance.
Second, the joint-stock cooperative enterprises and the basic characteristics of the legal status of
To discuss joint-stock cooperative enterprises in accordance with the legal form of investment is to discuss ways in the form of duty, forms of organization, joint-stock cooperative
enterprises can constitute a form of independent companies or under other forms of enterprises. This theory, the larger the differences, share the view that cooperation can not become a separate corporate form or ownership of it for the joint-stock, or for the attribution of cooperation,
The second view is that although the joint-stock partnership;
cooperative system has absorbed Some of the shareholding system, but essentially belongs to a cooperative enterprise; A third view is that joint-stock cooperative system belong to the scope of the shares, is a company; the view that the fourth joint-stock cooperative enterprises and joint-stock cooperative system by a combination of organic Kind of independent legal corporate form, that is, it is not business Feigongsizhi cooperative enterprises. I hold the fourth point of view.
Joint-stock cooperative enterprises constitute an independent legal form of enterprise, it depends on whether the unique features of the law, whether or not the intrinsic nature of the provisions. As the name suggests, joint-stock cooperative stock cooperative system and system is a joint-
the organic integration, it is necessary to joint-stock cooperative system analysis that the combination of characteristics.
Is a joint-stock cooperative enterprises and joint-stock cooperative system factors factors are taken care of the organic, rather than simply add up together, the organic combination of all regulatory documents are expressed to the Ministry of Agriculture in December 1992, "with regard to the introduction and improvement of Township enterprises joint-stock cooperative system of notification "that the most representative, the" notice "explained:" The shares have maintained a joint-stock cooperative enterprises to raise capital, according to the allocation of shares and management aspects of the rational core, the absorption of shareholders to participate in labor, Extraction of distribution according to work and the accumulation of public co-operation system, such as the basic core. " As the notice in the sense of collective ownership of the use of the concept of cooperative system. Therefore, the notice of joint-stock cooperative enterprises of the general features of the law is actually in the collective ownership by adding features on the basis of the joint-stock system, these features are not defined in science. Not enough to make the joint-stock cooperative enterprises from business-related patterns. Such as
extraction of public accumulation, there is collective ownership requirements of the joint-stock enterprises are also requirements of the joint-stock cooperative enterprises is not the nature of the characteristics of the joint-stock cooperative enterprises of the characteristics of the legal
. awareness of the need to re-
1, co-author and co-financing. Employees to implement full shares (and a small number of workers allowed to hold shares), trade union workers and investors who have dual identity. Employees are highly qualified to shareholders of identity. Foreign companies generally do not absorb the individual shares, the shares trade unions can not be freely bought and sold, with the exception of death, retirement, transfer, resignation or dismissal, dismissal and other reasons, the withdrawal must not workers, trade union rights do not depend on the shares they have. At the same time, corporate capital shares by the composition, divided into equal shares do not have to, but should provide for a maximum shareholding limit, to avoid over-concentration of capital,
the impact of labor cooperation.
2, for-profit and interactive. To the pursuit of profit-making enterprises, according to the share of profit distribution, but the fundamental purpose is to improve the economic situation of workers in pursuit of the realization of common prosperity, such as employees of collective enterprises to set up shares, stock dividend by collective labor unions to add dividends or social security costs. Self-help and mutual aid is to set up enterprises, the existence of the coagulant.
3, with the cooperation of the Democratic share of the compatibility of democracy. Generally, employees (on behalf of) shareholders and the General Assembly (representative) of the General Assembly in-one, shareholders in companies involved in the operation and management of benefits, such as the right to practice one person, one vote system, in the exercise of property rights for the content of the right of self benefit options to pursue the principle of equality, According to the number of shares in the calculation of property income, preferred shares in the enterprises set up, the property rights of the preferred shares to common stock in cash to obtain.
4, according to his work with the Angufenhong of both. There are two income workers, wages First, the implementation of income distribution according to work talcum powder, and
the other is capital income, according to the implementation of the allocation of funding, targeted at the enterprise distribution of the tax surplus to be retained after the distribution of interests, mainly the implementation of Angufenhong, Can also be a part of the implementation of labor according to the dividend.
The four joint-stock cooperative enterprises is the basic
in order to carry out labor cooperation and feature,
cooperation in the capital agreed to the basic principles of organic, these should determine the characteristics of the joint-stock cooperative system and the main factors in Des relations should be based co-author, co-funded
secondary ;-Based mutual aid, supplemented by for-profit; cooperation with the Democratic-oriented, shares of democracy as a supplement; distribution according to work mainly by the distribution of shares as a supplement. According to the joint-stock cooperative enterprises of the essential character, now make the definition of "joint-stock
cooperative enterprises are established by law, corporate capital shares to employees or workers constitute the main stake, labor and capital to shareholders by the principle of co-operation rights obligations, Enterprises of all property in order to bear civil liability for independent corporate organization. "
Treatment of joint-stock cooperative enterprises of the nature of property rights, there are two qualitative criteria, the first is characterized by ownership, which also includes two views, one point of view of collective ownership, and the other is the view of private ownership; the second is By enterprises as the main title to the property, including three perspectives, first, by a total of 000, said, and the other is a dual ownership, corporate ownership of the three said that a variety of perspectives on each of the following analysis .
That the collective ownership is the normative authority of the document says, is based on the enterprises into joint-stock cooperative system of economic cooperation, but a detailed analysis is not difficult to see, here's economic cooperation with China's traditional concept of economic co-operation, which it claims Democratic management, distribution according to work, extracting the exercise of public shareholders. And equity ownership is the nature of the two different rights, equity interests of the content of the atmosphere and the right to benefit from a total of benefits
including the right to vote, and other decision-making power to operate, including the right to benefit from the dividend distribution of the right to request such as property rights, including ownership of the possession, use, Income, empowerment of the four powers; stake is the object of the shares, the ownership of the object is a specific physical objects; rely on equity to shareholders in general meeting of shareholders on the exercise of voting, shareholders can not separate the specific action business property, ownership of enterprises in addition to the exercise by the laws and regulations and Business outside the statute of limitations, not subject to any other restrictions on shareholders equity on the basis of corporate debt to assume limited responsibility for all of its business outside the property of unlimited liability, and equity is the difference between legal separation of ownership, joint-stock cooperative enterprises constitute the property rights结构.
The resulting problem is that the legal recognition of ownership will not harm the interests of shareholders? This requires a correct answer to the economic nature of corporate ownership. Joint-stock cooperative enterprises, including other forms of corporate ownership of legal persons is not public ownership, private ownership is not, nor is mixed ownership, but ownership neutral. Can also be referred to as state ownership and individuals outside the ownership of ownership in the third, mixed-ownership should be neutral under the ownership. This ownership has the following characteristics: the economic interests of the enterprise for the interests of the intermediary, the intermediary for the realization of national interests or the interests of the ultimate personal service; joint-stock cooperative enterprises are the ultimate interests of individual countries or carriers, national, personal, social and legal persons as a result of business investment The formation of the enjoyment of property ownership neutral . We can see that ownership is a neutral country or individual ownership of the forms of ownership, it will not only weaken the position of public ownership also increase the value of the function of the state-owned assets, the investor who proceeds to use the system, the state may be holding, shares of the decision Major companies operating in decision-making, access to intermediate income, the same workers can also use the neutral mutual ownership to achieve labor, common prosperity neutral
as to quell the ownership of shares collectively owned and cooperative enterprises or individuals of all disputes, joint-stock cooperative system is conducive to faster and more The full development.
The joint-stock cooperative enterprises of the legal status of the current regulatory documents of different provisions. The Ministry of Agriculture in 1990 as "agricultural joint-stock cooperative enterprises Provisions" will be business as an independent economic organizations of civil liability, the Ministry of Agriculture in 1992, "notice" requirement for corporate enterprises or economic entities, the former State Commission for Restructuring the Economy, "guidance" As independent legal entities .
Theorists of the joint-stock cooperative enterprises is an independent legal opinion of the basic line. However, due to the enterprise are different forms of recognition, and some people think that joint-stock cooperative enterprises is a company or a cooperative and therefore only have a legal personality is in fact a specific form of corporate performance in the form of misunderstanding. This view is a prerequisite for enterprises is divided into independent enterprises, cooperative enterprises and companies, only companies with legal personality and therefore only joint-stock cooperative enterprises in the ownership of the company to obtain a legal personality; premise of the shares of another co-production enterprises are economic cooperation (China -Style), equivalent to economic cooperation, collective ownership economy, according to the provisions of collective ownership, joint-stock cooperative enterprises in order to obtain legal personality. Study the form of corporate history and current status of legal persons, including enterprises, cooperatives and other forms, some civil law countries will be treated as legal persons and commercial partner, the company shows that the system is not the only form of corporate representatives, establishing a modern enterprise system in China The goal for the model to the company on behalf of the enterprise, but not limited to the companies, joint-stock cooperative enterprises since the reform is to explore a new thing, to determine whether they have legal status, should have the legal analysis of whether the universal nature of the characteristics . I believe that certainly should be joint-stock cooperative system of corporate legal person status. The main reasons:
1, an independent legal personality. Employees or other