国有公司控制权私人收益的悖论与立法选择

控制权私人收益问题伴随公司法人制度的产生而出现,并日益成为公司治理上的一个难题.国外有关控制权私人收益的探讨和立法规则很少针对国有公司,因而国外的理论和经验用于分析中国的国有公司往往难以获得令人信服的结论.围绕着中国国有公司控制权私人收益问题,出现了高度集中的股权结构却产生了内部人控制、激励机制加剧控制权私人收益、否认控制权私人收益将不利于公司的长远发展这三个逻辑上的悖论,从而在理念和现实两个方面都导致中国国有公司的治理困局.解决问题的关键在于,必须正视中国国有公司在价值目标和市场地位等方面的独特秉性,立法上对因内部人控制而产生的控制权私人收益问题则不能有丝毫的迁就.

The Paradox of Private Gains from the Controlling Power in State-Owned Companies and the Legislation Option

The issue of private gains from controlling power appears along with the generation of the system of corporate juridical person and is increasingly becoming a problem of corporate governance.The discussion and legislative rules concerning the private gains from the controlling power in foreign countries rarely directed towards the state-owned companies,thus the theory and experience of foreign countries used in the analysis of China’s state-owned companies are often difficult to obtain convincing conclusions.Around the problem of private gains from controlling power in China’s state-owned companies,there appear the three logical paradoxes: the inside control generated from a highly concentrated ownership structure,the incentive mechanism exacerbating the private gains from the controlling power,and the denial of the private gains from controlling power going against the corporate long-term development.Thus,these paradoxes have led Chinese state-owned companies into the predicament of corporate governance in both aspects of the concept and reality.The key to solve the problem lies in that we must face the unique nature of the Chinese state-owned companies in such aspects as the value targets,market position and so on.In legislation,no concession should be given to any private gains from controlling power generated from inside control.