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第一次国企改革公私合营中产权分配的争论还尚未消散,第二次国企混改就再次提出了公私合营的可行性问题。应从上次改革的纠纷解决过程中吸收经验教训,抛开意识形态的争论,从技术手段层面解决挂靠产权纠纷裁判难题。具体而言,一是事实层面从产权贡献形式入手、结合财务证据判断哪些投入应享有产权,高度重视财务事实,加强运用司法审计等手段以防止错判;二是法律定性层面,认清资金性质何时应判定为投资款,何时则应判定为借款,进而判断如何划分产权归属。
The debates over the distribution of property rights in public-private partnerships during the first state-owned enterprises reform have not yet dissipated. The second reform of state-owned enterprises once again raised the question of the feasibility of public-private partnerships. We should absorb the experience and lessons from the dispute resolution process of the last reform and put aside the ideological controversy and solve the difficulties in adjudication of property rights disputes through technical means. Specifically, one is to start with the form of contribution of property rights based on the factual level, determine which inputs should enjoy property rights with financial evidence, attach great importance to financial facts, and strengthen the use of judicial audits and other measures to prevent wrongful adjudication. Second, When should be judged as investment money, when should be judged as a loan, and then determine how to divide the property ownership.