| Under the new round of state-owned enterprises reform,a number of policies have been put forward such as the classification of state-owned enterprises(SOEs),the mixed ownership reform in SOEs,and the establishment of corporate governance.Besides inspiration,such policies have led to the following thoughts as well.Is it appropriate to classify the SOEs into welfare SOEs and commercial SOEs? What shall we call those organizations providing public goods(service)closely related to people's livelihood? What kind of government regulations shall be imposed on such organizations? What's the internal governance of those organizations? Who is able to be the supplier of the public goods(service)? Is it possible for private companies to provide such goods(service)? Under the mixed ownership reform,which models do the other countries tend to adopt? One of the features of the current reform is policy intensive.Internationally,is such reform driven by policy or by legislation?With these questions,the dissertation focuses its research perspective on the law of British and American public enterprises.On the one hand,it studies the relevant law of British and American public enterprises concerning corporate governance and administrative regulations;on the other hand,it studies how the public enterprises in the two countries utilize the private capital and explores relevant regulations on different privatizing models.The study is based on the translation and analysis of the certain law of British and American public enterprises,which includes British Electricity act 1947,Electricity act 1957,Electricity act 1989,Water Act 1963,Water Act 1973,Water Act 1989,Telecommunications Act 1981,Telecommunications Act 1984,American Government Corporation Control Act,Tennessee Valley Authority Act,and the law of some American states together with some policy documents of Britain and America.The study is essential for our country at present.It will shed light on our current state-owned enterprises reform by studying the specific law of British and American enterprises providing public goods(service),especially the law applied during their reform.It will also answer part of questions raised above and guide our reform.Especially under the circumstances of advocating the mixed ownership economy,it is of significance for us to study the mixed ownership model adopted by Britain and America and analyse their problems in reform and their method of solving the problems.The dissertation consists of five chapters,and the content is as follows:Chapter One studies supplying responsibilities of the public goods(service),the concept and classification of the public enterprises,which is the starting point of studying law of British and American public enterprises.Social goods are divided into private goods and public goods.Private goods are distributed in accordance with individual's willingness and demand,while the public goods are enjoyed by everyone.When using public goods,one shall neither prevent others from using it,nor reducing others' benefits from it.Therefore,non-rivalness and non-excludability are the two prominent features of the public goods,and the features are shared by public service as well.Due to the special features of public goods(service),the majority of scholars argue that public goods(service)shall be provided by the government.As the public goods(service)require immense initial investment,private companies are reluctant to invest for risk uncertainty.Besides,the pubic goods(service)are for the whole society,and the private companies are not willing to operate as someone may act as a free-rider.However,there are many ways for the government to provide public goods(service),either directly supplied by the government(the administrative model),or indirectly supplied by means of public enterprises.A public enterprise is defined as the enterprise specialized in providing public goods(service).In the legal sense,a public enterprise is an independent legal entity and is entitled to file a lawsuit or respond to a lawsuit.With the dual attributes,on the one hand it is an organization with the right of self-governance;on the other hand,it is a tool for a country to carry out national polices.There is no uniform criterion to classify public enterprises,but internationally it is generally classified into two categories.One is the public enterprises engaging in activities closely related to people's livelihood in the fields of water,electricity,gas,oil and so forth;the other is the public enterprises providing the public service,such as the infrastructure on behalf of the government.Comparing the administrative model with the public enterprise model,scholars find out that the public enterprise model is superior to the administrative model in efficiency and flexibility.Moreover,it is likely to remove the government's burdens to a great extent.It is still possible for the private capital to be invested in the field of public goods(service)theoretically.The private capital model emphasizes efficiency.To improve efficiency,it will adopt advanced management technology and deal with existing problems proactively.Under such circumstances,the quality of the public goods(service)will be guaranteed,and the user experience for public goods(service)will be improved as well.But it is possible for the private capital model to reduce their cost at the expense of the quality of the public goods(service).Therefore,institutional restraints are indispensable when the private capital is adopted to provide pubic goods(service).Chapter Two studies the law of British and American public enterprises during nationalization.For one thing,it studies the social background of the boom of public enterprises,the features of public enterprises,and the legal framework of nationalized public enterprises;for the other,it studies how the government regulates public enterprises during the nationalization,and the relevant laws and regulations on the internal governance of some public enterprises.In 1930 s,both Britain and America suffered the great depression.Having realized the defects of the laissez-faire policy,the majority of scholars and politicians considered that the economic recovery could only depend on active state intervention.Public enterprises thus boomed within such a background.During this time,public enterprises were mainly operated in the nationalized manner.In 1945,Britain started to legislate for the public enterprises.With the enactment of Electricity Act,the electricity industry in Britain was almost under control of the government.America enacted Government Corporation Control Act,which classified the public enterprises(government corporations)into the wholly-funded state-owned public enterprises and the state-owned public enterprises with mixed ownership.At that time,there were 13 wholly-funded government corporations and 26 government corporations with mixed ownership.Public enterprise is the general title of this kind of enterprises in Britain and America.In practice,public corporation,(public)authority and government corporation are all referred to as public enterprises.The public enterprises in the two countries share the features of nonprofit,flexible finance,self-governance,and so forth.Nonprofit does not mean that the public enterprise is not allowed to make profit,but the public enterprise shall not aim at making profit.The law provides the rules of using the surplus in detail.The surplus shall be invested into producing more public goods(service)or reducing the price of the public goods(service).During nationalization,the law of British and American public enterprises mainly focused on the following three aspects: ensuring the implementation of the macroeconomic regulation,ensuring the effective use of the state fund,and ensuring serving the public.Taking the effective use of the state fund for example,the law of the two countries emphasized on financing regulation of the public enterprises,it stipulates the reserve for public enterprises and specifies the content of annual report.Meanwhile,the compensating measures for local government and individuals due to nationalization were also stipulated.The law clearly stipulated that public enterprises were to adopt corporate governance mechanism in which the enterprise enjoyed the sufficient right of self-governance,and the director of board was the core of the enterprise.Chapter Three studies the law of British and American public enterprises in the initial stage of privatization.At that period,asset sale and outsourcing were two major models adopted by the two countries.On the one hand,it studies the social background of privatization,the methods of privatization,the application of asset sale and outsourcing in Britain and America.On the other hand,it studies the specific regulations on asset sale and outsourcing respectively.During the late 1970 s,British and American economies encountered the deflation.People recognized the limits of state intervention and reconfirmed the role of the market as the invisible hand.Britain and America started to conduct privatizing reform among public enterprises.There are many ways to privatization,such as asset sale,outsourcing,public-private partnership and employee stock ownership plan.But the two countries mainly adopted asset sale and outsourcing at that stage.The privatizing reform in this period was guaranteed by law in both countries.For asset sale,the amendment of British Telecommunications Act 1984,Electricity Act 1989 and Water Act 1989 demonstrated the transfer from nationalizing to privatizing of the industry in telecommunications,electricity and water.During the period,the law was mainly on licensing,asset transfer,restrictions on government investment,so as to ensure successful privatizing and the independent operation afterwards.But the privatized public enterprises are still public enterprises,which shall put the public interests into the first consideration.Therefore,the above-mentioned law stipulated detailly on operation regulation,and issued golden shares to guarantee the government the right of veto.For outsourcing,the Florida state modified the state law to provide legal foundation for water privatizing in this state.It not only specified the scope of water privatizing,but also put forward the processing of privatizing by legal guidance.The law allowed the public enterprises to execute contracts with private companies.Chapter Four studies the law of British and American public enterprises at the present stage.It studies the internal governance of the existing state-owned public enterprises and the institutional arrangement of the public-private partnership of the two countries.Although the two countries advocate the reliance on the private company to provide public goods(service),due to the public interest and the implementation of national policies,both countries have maintained the state-owned model to a certain extent.According to Government Corporation Control Act,by 2013,there were 17 wholly-funded state-owned public enterprises,4 increased compared with 1945.Tennessee Valley Authority remained the wholly-funded state-owned public enterprise.The requirements for the establishment of committees under the board of directors and the numbers of the committees in state-owned public enterprises represented by Tennessee Valley Authority are stipulated under Tennessee Valley Authority Act and Bylaws of the Tennessee Valley Authority in detail.Besides some state-owned public enterprises,Britain and America continue to develop privatization.Although the privatizing reform featured by asset sale and outsourcing is a general success,there are some major drawbacks causing heavy criticism.Therefore,the two countries turn to the public-private partnership which is milder than asset sale and more effective than outsourcing,and the institutional framework for the model has been established as well.There are various ways to achieve public-private partnership.Upon a series of exploring,Britain adopted the PFI model.In practice,however,this model reflected obvious defects in efficiency,transparency,risk management and so forth.Thus,Britain conducted an overall reform and put forward the modified model PF2.Chapter Five studies what China will learn from the law of British and American public enterprises.For one thing,we should reclassify the state-owned enterprises;for the other,we should constitute a comprehensive model of public enterprises.It is irrational to classify the state-owned enterprises into commercial state-owned enterprises and welfare state-owned enterprises.It is inappropriate to classify the state-owned enterprises in the fields of both national security and the lifeline of the national economy into commercial state-owned enterprises.By studying the public enterprises in Britain and America,the author figures out that presently,the so-called welfare state-owned enterprises and the state-owned enterprises concerning national security,the lifeline of the national economy shall be uniformly defined as the public enterprises.The evolvement of the public enterprises in Britain and America demonstrates the rheology of the public enterprise which means that the ownership of a public enterprise may transfer from being state-owned to private-owned,and today's public enterprise may not be the public enterprise anymore tomorrow.The study also demonstrates that within well-established legal system,national model,private model and the public-private partnership model could all become the operating method for the public enterprises.Therefore,we shall dedicate to constituting a comprehensive model of public enterprises which is an integration of the state-owned model,public-private model and private-owned model,while the state-owned and the public-private take the majority.Under the comprehensive model,the public interest shall be guaranteed since the core of the public enterprise is in the feature of providing public goods(service)instead of the ownership.Under the comprehensive model,competitive neutrality shall be kept as the foundation so as to attract the private capital to the supplying of public goods(service).Under the comprehensive model,the law shall always be put into the first position for it is more effective for the reform driven by law than by policy.Meanwhile,to constitute comprehensive model of public enterprises,we shall deal with some existing or potential problems. |
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