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“政企分开”原则具有形式及实质两方面内容,当前《企业国有资产法》中国资委直接对国家出资企业履行出资人职责构成对该原则的实质违反。冲突的根源在于国有企业公法目标与私法手段之间的矛盾,因此应借助设置国有资本运营公司这一“公私法缓冲地带”予以消解。同时,国资委的出资人与监管人的职责应兼而有之。同时,应梳理清楚人大、政府、国资委三者之间的关系,以构建国有企业治理的整体架构。
The principle of “separation of government from enterprise” has both formal and substantive content. At present, the “Systematization of Enterprise State-owned Assets Law” directly commits the SAC to the state-funded enterprises to fulfill the obligations of the investors as a material breach of the principle. The root of the conflict lies in the contradiction between the objective of public law and the private law of state-owned enterprises. Therefore, it should be solved by setting up a “public-private buffer zone” of state-owned capital operation companies. At the same time, the responsibilities of the investors and supervisors of SASAC should be both. At the same time, the relationship between NPC, government and SASAC should be clarified so as to build the overall structure of SOE governance.