高校校办企业法律问题研究
发布时间：2019-04-19 19:19
【摘要】：高校校办企业是一个特殊的企业群体。它既是以营利为目的的企业,又是一个承担着接收学生实习、弥补教育交费不足、转化高校科技成果的重要阵地。我国高校校办企业发展50多年来,从规模很小的实习工厂,发展到拥有控股上市公司达40余家,科工贸企业5000余家,资产总额为1000多亿元的高校校办企业大军,可谓成绩斐然。当然,高校校办企业在发展过程中不可避免地患上了传统国有企业的通病:产权不清、活力不足、管理体制不顺等问题。2001年,由国务院办公厅牵头,原国务院体改办、教育部、科技部等九个部委共同参与,制定并下发了《关于北京大学清华大学规范校办企业管理体制试点指导意见》,此后教育部组织实施了两校试点工作。北大和清华经过三年左右的试点和改革探索,积累了在市场经济条件下高校创办和管理科技企业的经验,并逐步建立了新型高校企业管理体制,分别通过清产核资、行政划转成立了高校资产经营公司。2005年10月,教育部在总结北京大学、清华大学校办企业管理体制改革试点经验的基础上,经过广泛征求意见,发布了《关于积极发展、规范管理高校科技产业的指导意见》(教技发[2005]2号),全国高校校办企业的改制大幕全面拉开。截至2009年底,除了北京外国语大学、中国政法大学等7所高校因产业规模较小经教育部批准可以暂不组建资产经营公司外,其余68所部属高校均按照教育部的要求组建了资产经营公司。下属校办企业也进行了公司化改制。 笔者经过研究认为,高校校办企业发展过程中暴露的种种问题,归结到一点,是有关法律的缺位问题。《公司法》缺少高校资产经营公司的规定,使高校资产经营公司的法律地位尴尬;《企业国有资产法》没有明确把高校校办企业纳入调整范围,导致上千亿元的高校经营性资产无法可依;高校科技产业和文化创意产业蓬勃发展却无相应法律的支撑;校办企业改制也面临法律和政策的缺失。所以,高校校办企业这种在夹缝中生存的地位必须改变。笔者建议,通过修改《公司法》明确高校资产经营公司的法律地位;通过修改《企业国有资产法》明确高校经营性国有资产的管理体制;通过出台《高校科技产业促进法》和《高校文化创意产业促进法》来保障方兴未艾的高校科技产业和文化创意产业的健康发展。 笔者还注意到,高校校办企业的发展在微观层面也缺乏具体的制度设计。教育部的有关指导文件(《教育部关于积极发展、规范管理高校科技产业的指导意见》、《教育部关于高校产业规范化建设中组建高校资产经营有限公司的若干意见》)过于原则,不能指导高校校办企业改制后的管理实践。因此,笔者运用法律的思维,从新制度经济学的视角深入实际审视和研究了改制后校办企业的制度重构问题,提出制定《高等学校企业管理规范》的建议,并起草了建议稿,供学界和政府主管部门参考。 本文共分六个部分,第一部分是前言,主要阐述研究的背景、目的和意义,理清了研究思路;第二部分是高校校办企业的基本情况,为后文提出的完善高校校办企业立法和制定《高等学校企业管理规范》提供现实依据;第三部分是高校校办企业发展存在的法律问题;第四部分提出高校校办企业的立法完善;第五部分是关于高校校办企业的具体制度设计——制定《高等学校企业管理规范》;第六部分是结论。
[Abstract]:University-run enterprises are a special group of enterprises. It is not only a profit-oriented enterprise, but also an important position to receive the student's practice, to make up for the shortage of the education and to transform the scientific and technological achievements of the university. For more than 50 years in the development of the university-run enterprises in our country, from the small-scale practice factory, it has developed to more than 40 holding companies, with more than 5,000 enterprises and trade enterprises, with the total assets of over 10 billion yuan. Of course, in the course of development, the school-run enterprises of the university inevitably suffer from the common problems of the traditional state-owned enterprises: the unclear property rights, the lack of vitality, the non-compliance of the management system, etc. In 2001, it was led by the General Office of the State Council, and the former State Council, the Ministry of Education, the Ministry of Science and Technology and other ministries and other ministries participated, In addition, the Ministry of Education organized a two-school pilot project on the development and distribution of the pilot guidance on the management system of the Beijing University of Tsinghua University. After three years of pilot and reform exploration, Peking University and Tsinghua University have accumulated the experience of the establishment and management of scientific and technological enterprises in colleges and universities under the condition of market economy, and gradually set up a new type of enterprise management system for colleges and universities. In October,2005, the Ministry of Education, on the basis of summarizing the experimental experience of the reform of the enterprise management system of Peking University and Tsinghua University, has been widely used for comments and issued a report on the positive development. The guide to the management of the science and technology industry in the university is regulated in this paper. (No.2 of the teaching and technical development[2005] No.2), the reform of the enterprise of the university office of the whole country is fully opened. As of the end of 2009, in addition to the approval of the Ministry of Education for 7 universities, such as the Beijing Foreign Language University and the China University of Political Science and Law, the rest of the 68 colleges and universities formed the asset management company in accordance with the requirements of the Ministry of Education. The subordinate school-run enterprises have also carried out the corporate restructuring. The author, through the research, thinks that the problems that are exposed in the course of the development of the university's school-run enterprises come to a point, which is the absence of the relevant law. The Company Law> lacks the provisions of the company's assets management company, so that the legal status of the university's assets management company is awkward; the state-owned property law of the enterprise does not explicitly include the university-run enterprise into the adjustment range, which leads to the failure of the business assets of the university in the last 100 billion yuan to be able to The development of science and technology industry and cultural creative industry in colleges and universities is not supported by corresponding laws; the reform of the school-run enterprises also faces the shortage of laws and policies Therefore, the status of the university-run enterprises to survive in the gap must be changed The author suggests that through the modification of the Company Law, it is clear that the legal status of the assets management company of the university should be clarified; by modifying the state-owned assets law of the enterprise, it is clear that the management of the state-owned assets of the university To guarantee the healthy development of the scientific and technological industry and the cultural and creative industry of the university by introducing the Law of the Promotion of the Promotion of the Science and Technology of the University and the Promotion of the Cultural and Creative Industry of the University The author also notes that the development of university-run enterprises has a lack of specific system at the micro level. Degree design. The relevant guidance document of the Ministry of Education (the guidance of the Ministry of Education on the positive development, the regulation and management of the science and technology industry in the university, and the number of opinions of the Ministry of Education on the formation of the university asset management limited company in the standardized construction of the university industry) In principle, it is not possible to guide the reform of the university-run enterprises Therefore, the author uses the thought of law, from the perspective of the new system economics to examine and study the system reconstruction problem of the post-reform school-run enterprise, and put forward the suggestion of setting up the enterprise management standard of the higher learning institution, and drafted the suggestion for the academic circle and the government's competent department. The paper is divided into six parts, the first part is the preface, the background, purpose and significance of the research are mainly expounded, the research thought is clarified, and the second part is the university-run enterprise. On the basis of the basic situation, it provides a practical basis for the improvement of the legislation of the university-run enterprises and the development of the enterprise management norms of higher learning institutions. The third part is the legal problem of the development of the university-run enterprises, and the fourth part puts forward the university-run enterprises. The fifth part is about the specific system design of the university-run enterprise.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2461202
[Abstract]:University-run enterprises are a special group of enterprises. It is not only a profit-oriented enterprise, but also an important position to receive the student's practice, to make up for the shortage of the education and to transform the scientific and technological achievements of the university. For more than 50 years in the development of the university-run enterprises in our country, from the small-scale practice factory, it has developed to more than 40 holding companies, with more than 5,000 enterprises and trade enterprises, with the total assets of over 10 billion yuan. Of course, in the course of development, the school-run enterprises of the university inevitably suffer from the common problems of the traditional state-owned enterprises: the unclear property rights, the lack of vitality, the non-compliance of the management system, etc. In 2001, it was led by the General Office of the State Council, and the former State Council, the Ministry of Education, the Ministry of Science and Technology and other ministries and other ministries participated, In addition, the Ministry of Education organized a two-school pilot project on the development and distribution of the pilot guidance on the management system of the Beijing University of Tsinghua University. After three years of pilot and reform exploration, Peking University and Tsinghua University have accumulated the experience of the establishment and management of scientific and technological enterprises in colleges and universities under the condition of market economy, and gradually set up a new type of enterprise management system for colleges and universities. In October,2005, the Ministry of Education, on the basis of summarizing the experimental experience of the reform of the enterprise management system of Peking University and Tsinghua University, has been widely used for comments and issued a report on the positive development. The guide to the management of the science and technology industry in the university is regulated in this paper. (No.2 of the teaching and technical development[2005] No.2), the reform of the enterprise of the university office of the whole country is fully opened. As of the end of 2009, in addition to the approval of the Ministry of Education for 7 universities, such as the Beijing Foreign Language University and the China University of Political Science and Law, the rest of the 68 colleges and universities formed the asset management company in accordance with the requirements of the Ministry of Education. The subordinate school-run enterprises have also carried out the corporate restructuring. The author, through the research, thinks that the problems that are exposed in the course of the development of the university's school-run enterprises come to a point, which is the absence of the relevant law. The Company Law> lacks the provisions of the company's assets management company, so that the legal status of the university's assets management company is awkward; the state-owned property law of the enterprise does not explicitly include the university-run enterprise into the adjustment range, which leads to the failure of the business assets of the university in the last 100 billion yuan to be able to The development of science and technology industry and cultural creative industry in colleges and universities is not supported by corresponding laws; the reform of the school-run enterprises also faces the shortage of laws and policies Therefore, the status of the university-run enterprises to survive in the gap must be changed The author suggests that through the modification of the Company Law, it is clear that the legal status of the assets management company of the university should be clarified; by modifying the state-owned assets law of the enterprise, it is clear that the management of the state-owned assets of the university To guarantee the healthy development of the scientific and technological industry and the cultural and creative industry of the university by introducing the Law of the Promotion of the Promotion of the Science and Technology of the University and the Promotion of the Cultural and Creative Industry of the University The author also notes that the development of university-run enterprises has a lack of specific system at the micro level. Degree design. The relevant guidance document of the Ministry of Education (the guidance of the Ministry of Education on the positive development, the regulation and management of the science and technology industry in the university, and the number of opinions of the Ministry of Education on the formation of the university asset management limited company in the standardized construction of the university industry) In principle, it is not possible to guide the reform of the university-run enterprises Therefore, the author uses the thought of law, from the perspective of the new system economics to examine and study the system reconstruction problem of the post-reform school-run enterprise, and put forward the suggestion of setting up the enterprise management standard of the higher learning institution, and drafted the suggestion for the academic circle and the government's competent department. The paper is divided into six parts, the first part is the preface, the background, purpose and significance of the research are mainly expounded, the research thought is clarified, and the second part is the university-run enterprise. On the basis of the basic situation, it provides a practical basis for the improvement of the legislation of the university-run enterprises and the development of the enterprise management norms of higher learning institutions. The third part is the legal problem of the development of the university-run enterprises, and the fourth part puts forward the university-run enterprises. The fifth part is about the specific system design of the university-run enterprise.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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