论国有资产经济法保护的特殊性

发布时间：2018-04-29 10:19

本文选题：国有资产 + 经济法保护　；参考：《中国政法大学》2009年硕士论文

【摘要】： 我国《宪法》规定：“中华人民共和国的社会主义经济制度的基础是生产资料的社会主义公有制,即全民所有制和劳动群众集体所有制。社会主义全民所有制经济,是国民经济中的主导力量。国家保障国有经济的巩固和发展。”(第七条)作为国有经济发展基础的国有资产,则是国有经济增长的重要支柱,他的取得、占有、使用、收益和处分在我国的政治经济生活中具有重要意义。但随着国民经济的发展和国有企业改革的不断深化,国有资产流失问题却日益严重。据有关专家测算,在80年代,国有资产每年流失500亿元,从90年代以后,每年至少流失800-1000亿元。国有资产流失成为困扰改革与发展的一个日益严重的问题。在当前立法与实践不断发展进步的形势下,经济法在保护国有资产方面越来越显现出其他传统典型公、私法所不具有的优势。本文试从经济法角度出发,通过对国有资产概念的分析,准确界定出国有资产流失的法律概念,然后利用对传统典型公、私法在保护国有资产中的法律关系调整、理论基础与保护途径上的比较和减少国有资产流失法律保护作用分析,初步形成传统典型公、私法在国有资产法律保护体系中的地位、作用及局限性的分析结论。最后通过经济法对国有资产保护的优势概述、《企业国有资产法》在国有资产保护中所体现和没有体现的经济法理念、原则的措施分析、《企业国有资产法》在国有资产保护中的创新与突破以及不断完善经济法对国有资产保护的制度创建等方面的系统阐述,对国有资产的经济法保护的特殊作用作较为全面而深入的研究。全文共三章,约三万三千字左右。第一章简单介绍国有资产的基本概念。首先在对资产这一经济学上的词汇进行概念、特点、分类的分析阐述后,对国有资产的概念进行定义,并简要介绍了建国以后在不同历史条件下国有资产的形成和取得方式。随后对国有资产流失的概念做了法律上的界定,并列举了当前触目惊心的国有资产流失的严重后果和主要渠道,最后归纳了国有资产流失的深层次原因。第二章对典型公、私法—民法、商法和行政法、刑法国有资产护的理论基础、保护途径进行了比较分析,在此基础上,分析和指出他们在调整国有资产法律关系时存在的局限性,最后对典型传统公私法在减少国有资产流失法律保护作用进行了总结。可以说典型公、私法在减少国有资产流失法律保护中发挥着重要作用,但其局限性也是非常明显的,无论从理论或现实需求上,都需要经济法发挥其对国有资产的特殊保护作用。第三章是在第二章的基础上重点分析了国有资产经济法保护的特殊性。本章是全文的重点。民商法和行政法是国有资产传统保护方式中使用最多的法律,其对国有资产关系的调整经常与经济法产生交叉,甚至模糊了经济法调整的作用。本章正是通过对经济法与民商法、行政法关系的对比分析,明确经济法概念和特征,阐明经济法在调整国有资产法律关系中的独立性和准确性,进而论证了经济法较其他部门法的所具有的理论优势、机制优势和现实优势。最后,本章对国有资产经济法保护制度存在的问题进行了辨析,并从国有资产监督管理机构职能制度的完善、国有资产运营管理机构制度体系的完善、国有资产流失监管制度的完善、国有资产流失公益诉讼制度的完善等四个方面对国有资产经济法保护的制度完善提出了笔者个人的建议。结论中,笔者指出妥善保护国有资产实属繁难,笔者无意标新立异,只是试图运用比较分析的方法,对比传统的私法—民商法和传统公法—行政法及刑法与经济法各方面的异同点,在肯定传统公法和私法对国有资产保护作用的同时,指出传统公、私法在减少国有资产流失法律保护中的局限性。国有资产法律关系这种公私混合型的新的社会关系催生了经济法这样的新的法律部门,其对国有资产关系的调整更加适合,也更加有效。但是由于我国经济法的产生时间还不长,理论与实践还不够成熟,仍需不断完善相关制度,确实担负起保护国有资产的历史重任。
[Abstract]:The constitution > stipulates: "the socialist economic system of People's Republic of China is based on the socialist public ownership of the production data, namely the ownership of the whole people and the collective ownership of the working masses. The economy of the socialist ownership by the whole people is the leading force in the national economy. The state economy has been consolidated and developed by the state." (seventh) As the basis of the development of the state-owned economy, the state-owned assets are the important pillar of the growth of the state economy. His acquisition, possession, use, income and disposition are of great significance in the political and economic life of our country. But with the development of the national economy and the deepening of the reform of the state-owned enterprises, the problem of the loss of state-owned assets is becoming more and more serious. In 80s, the state assets lost 50 billion yuan per year, and at least 800-1000 billion yuan a year since 90s. The loss of state-owned assets has become an increasingly serious problem that has plagued reform and development.
Under the current situation of continuous development and progress of legislation and practice, economic law has increasingly shown the advantages of other traditional typical public and private law in the protection of state-owned assets. From the perspective of economic law, this paper accurately defines the legal concept of the loss of state assets through the analysis of the concept of state assets, and then uses the transfer of the law. The legal relationship adjustment in the protection of state assets, the comparison of the theoretical basis and the way of protection and the reduction of the legal protection of the loss of state assets are analyzed, and the status, the role and the limitations of the private law in the legal protection system of state assets are preliminarily formed. A summary of the advantages of the asset protection, the state-owned assets law of the enterprise, the concept of economic law embodied in the protection of state assets, the analysis of the measures of the principles, the innovation and breakthrough of the state-owned assets law in the protection of state-owned assets, and the systematic exposition of the establishment of the system of the protection of state-owned assets by the economic law, and so on. The special role of the protection of state assets in economic law has been studied comprehensively and thoroughly. The full text has three chapters, about thirty-three thousand words.
The first chapter briefly introduces the basic concept of state-owned assets. First, after the analysis of the concept, characteristics and classification of the asset, the concept of state assets is defined, and the formation and acquisition of state assets under different historical conditions after the founding of the people's Republic of China are briefly introduced. Then the loss of state assets is subsequently lost. The concept is defined by law, and the serious consequences and main channels of the current loss of state-owned assets are enumerated, and the deep causes of the loss of state assets are summed up at last.
The second chapter is about the typical public, civil law, civil law, commercial law and administrative law, the theoretical basis of the state asset protection of the criminal law and the way of protection. On this basis, it analyzes and points out the limitations of their existing legal relations in the adjustment of state assets. Finally, the typical traditional public and private law can reduce the legal protection of the loss of state assets. It can be said that the typical public and private law plays an important role in reducing the legal protection of the loss of state assets, but its limitations are also very obvious. Both in theory and in reality need economic law to play a special role in the protection of state-owned assets.
The third chapter focuses on the particularity of the protection of the state assets economic law on the basis of the second chapter. This chapter is the focus of the full text. The civil and commercial law and the administrative law are the most used laws in the traditional way of the state assets protection. The adjustment of the relationship between the state-owned assets is often crossed with the economic law, and even the role of the adjustment of the economic law is blurred. This chapter is through the comparative analysis of the relationship between economic law and civil and commercial law and administrative law. It clarifies the concept and characteristics of economic law, clarifies the independence and accuracy of economic law in the adjustment of the legal relationship of state-owned assets, and then demonstrates the theoretical advantages, mechanism advantages and practical advantages of economic law compared with other department laws. Finally, this chapter is to the country. The existing problems of the protection system of the asset economic law are analyzed and analyzed, and from four aspects, the perfection of the functional system of the state assets supervision and management institutions, the perfection of the system of the operation and management of the state-owned assets, the perfection of the supervision system of the loss of state assets, the perfection of the public interest litigation system of the loss of state assets and so on. The improvement of the protection system put forward the author's personal suggestion.
In conclusion, the author points out that it is difficult to properly protect the state-owned assets. The author does not intend to make a new difference, but tries to use the comparative analysis method to compare the similarities and differences between the traditional private law, the civil and commercial law and the traditional public law, the administrative law and the criminal law and the economic law, and affirm the protection of the traditional public law and the private law on the state-owned assets. The limitation of the traditional public and private law in reducing the legal protection of the loss of state assets. The new social relations of state owned assets legal relations, the new social relations of public and private type, have brought about a new legal department such as economic law. The adjustment of the relationship between the state assets is more suitable and more effective. However, the time of the production of our country's economic law is not long yet long. The theory and practice are not mature enough. We need to improve the relevant systems and take the historical responsibility of protecting state assets.

【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D921

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