Research On The Problem Of Interest Coordination In The Legislation Of Foreign Investment In China

The social relation is the regulation object of the law which is interest relation in final.The interest coordination is the main goal of the legislation. Legislative coordination is one of the important means of interest coordination. Foreign investment legislation is to protect the interests of foreign investors, more important is the protection of fundamental interests, long-term interests of our country, the realization of national independent and innovation and sustainable development of the society, to achieve the interests coordination and interest relationship balance in foreign investment. The interest coordination mechanism of foreign investment is the basic guarantee to control the behaviors of foreign investors and Chinese interest groups, to coordinate interest conflicts, and to identify and protect the interests of all parties. In order to pursue the high efficiency of foreign investment economy, our country shall not only consider the foreign investors’ interests at the expense of serious neglect and even harms of China’s interests.In the new period, with the change of domestic and foreign investment environment in China, interest conflicts between foreign investors and Chinese interest groups has changed during the introduction of foreign investment. The pattern of Chinese and foreign investors’interests is inharmonious.China’s national interests, environmental interests, the interests of investors and domestic labors are frequently damaged. The incompatible problem in foreign investment economic development is very prominent. However, the route and policy of the introduction of foreign investment in China has been affected by the false thought,"dependent on foreign capital", and "foreign omnipotent theory"still flood the market. The current foreign investment legislation does not distinguish the quality of foreign investment and is blind to encourage foreign investment, which hinder the harmonious between the foreign investors’ interests and Chinese interests. In response, many scholars don’t enough understand the harmfulness of blind reliance on foreign investment. The researches on foreign investment legislation most remain in the short-sighted mode piecemeal that is to pay more attention to improve the partial terms of foreign investment law and ignore the entirety law problems of interest’s imbalance.From the perspective of the interests coordination theory, it analysis of the main interest relations of foreign legislation to coordinate the complex and changeable interest conflicts, and explore the path to improve the foreign investment legislation, which has the important theory significance and practical significance. It not only is conducive to the realization of Marx’s interest coordination theory in foreign investment law in China and enhance the theory foundation of our foreign investment law legislation, but also is helpful to combine interests coordination theory and foreign investment legislation practice, to resolve interest conflicts, to achieve equitable and win-win interests of all parties and ultimately to promote the coordinated development of foreign economy and national economy, safeguarding national security and social stability.It based on the Marxism standpoint, viewpoint and method, in deeply studies theoretical basis and practical basis of interest coordination in Chinese foreign investment legalities, and analyse the root reasons and institutional reasons of interest coordination in Chinese foreign investment, finally proposed the law paths from the four main aspects including the coordination system, coordination body, coordination principle, and coordination measures. The main contents of this dissertation are as follows:The theory of national sovereignty, human rights theory, the internal decision theory and the socialism harmonious society form theoretical basis of interest coordination in Chinese foreign investment. The national sovereignty is a concentrated expression of the country’s fundamental interests, not a simple addition of a country’s political interests, economic interests, social interests, cultural interests and so on. To defend and resolutely implement the applicable national sovereignty theory in the foreign investment law is helpful to resistant to imperialism and grammatical of international investment liberalization. The view of China’s socialist human rights inhabitants and develops the core idea of Marx’s human rights theory, confirm the right to life is the most important human rights, and the development right and environment right are the main content of human rights. Human rights theory provides the main theoretical basis for interest coordination in Chinese foreign investment legislation for conflicts among the foreign investors’interests, labor’ interests, environmental interests. Intrinsic determinism is an effective method to solve the contradictions and conflicts which discloses China’s the nature of "foreign universal theory","external determinism theory".In order to pursue high efficiency of foreign economy, our country shall not only consider the foreign investors’ interests, and seriously neglect and even harm China’s interests. It is necessary to introduce foreign capital, but not dependent on foreign capital. In foreign investment legislation, it shall set up the guiding ideology of legislation,"rely on one’s own efforts supplemented by the introduction of foreign capital" to prevent foreign investment risk and coordinate the interest conflicts."The market for funds","market for technology" is unnecessary and wrong. The theory of socialist harmonious society inhabitants and develops of Marxism harmony theory, provides the thought origins for the reconstruction of interest coordination concept, value target, basic principle of the foreign investment law, which helps to eliminate disharmonious situation between foreign investors and our nature and society.The core interest Conflict is the conflict of economic interests between foreign investors and Chinese interest groups including Chinese public body and Chinese private body. With changes on our own investment environment and foreign investment in China during the new period, the interest conflicts between foreign and Chinese interest groups have been developed to the advanced stage conflict. The antagonistic conflicts develop more and more. Interest conflicts among economic interests, political interests, social interests, cultural interests increasingly are comprehensive and cross. The interest conflicts between foreign investors vested part interests and the overall social long-term increases gradually and hidden. The conflict between foreign investors’ private interests and public interests including national interests, social public interests has risen as the primary conflict. The conflict between foreign investors and competitors or foreign investment affiliated enterprises further increases the complexity of the interest relationship in foreign economy. The conflict between foreign investors and Chinese partners, workers is one of the main disharmony causes in the foreign economy and even the entire social. Among these conflicts of interest, foreign investors’interests often in a dominant position, whose obtained interests are often accompanied by the interests loss of Chinese groups. It poses a severe challenge to interest coordination in Chinese foreign investment legislation.On the surface, the interest loss of Chinese groups during the introduction of foreign investment seems to due to the market competition results, which in fact is caused by the lost of values and the defects of system in china. Because lawmakers didn’t identify people’s real interest needs, wrongly select the value target of interest coordination in Chinese foreign investment legislation, neglecting the safety value, focusing on formal justice and formal efficiency, without complying with the principle of people’s supreme benefit, the Marxism principle of equality and mutual benefit, the principle of overall consideration and the principle of interest maximization. There are many defects in the interest coordination mechanism of Chinese foreign investment legislation. From the macroscopic view, the legislative system is not unified, the built of legislative office is unreasonable. From the microscopic view, the current interest coordination mechanism of Chinese foreign investment legislation is not perfect. The national interests protection mechanism, the interest integration system between foreign investors’interests and environmental interests, the interest distribution system between the foreign investors and domestic enterprises, the interest harmonized system between the foreign and labor are not perfect. Interests of Chinese groups have not been protected sufficiently in law.In this regard, we should reconstruct the value orientation of the interest coordination, perfect the interest coordination mechanism in our foreign investment legislation, in order to coordinate conflicts in introducing foreign investment realize the interest balance and coordination. In recombinant of the value target order, we shall take the security value as the first, the justice value as the core, give consideration to fairness value and efficiency value both, and take the people’s comprehensive freedom development as the highest value goal. In the choice of specific legal path, we can built a unified coordination mode including dominate and foreign investment laws, cancel the foreign legislative authority of the local administrative organs, establishing the interest coordination system in Chinese foreign investment legalities which takes "Foreign Investment Law " as the core, uphold ideas including national security idea, sustainable development idea, the idea of taking labor and investor as interest community,the idea of taking rights and obligations as a consistent in the foreign investment law, establish and improve the national security review system, protection system of state-owned intangible assets, the system of market access and taxation system focusing on the protection of national security interests, national interests and tax incomes. We can encourage foreign investors to maintain and protect environment from investment encouragement systems, environmental anti-barrier mechanism, legal liability clauses against the curb of foreign investment on environmental benefits, ensure health right, existence right, employment right, association right, collective bargaining right, economic strike right of labors through the acknowledgement mechanism and interest expression mechanism, the protection of labor rights, the right of labor and, the of, the right to, establish the anti-control mechanism on the enterprise and market about including foreign organization control, personnel control, financial control, industry chain control, intellectual control to redistribute interest between foreign and dominate investors, clear specific scope of national treatment, right content and legal liability of foreign investors to recognize and protect legal interests of foreign investors.