Modern enterprise system refers to the general term for various systems related to enterprises that are compatible with the modern market economic system. [1] Because the company system is the most typical enterprise system among modern enterprise systems. It has its inherent advantages and is conducive to decentralizing and democratizing the decision-making and utilization of state-owned assets. More adaptable to the decision-making model of the market economy and the needs of market competition. Using laws to regulate the establishment of modern enterprise systems is the only way to standardize and formalize the construction of modern enterprise systems. The problem is that the current enterprise law, company law, civil law and labor law only regulate how state-owned enterprises establish a modern enterprise system from the perspective of restructuring state-owned enterprises into independent market entities. That is to say, it focuses on clarifying the civil or commercial subject status of enterprises. That is to say, before the internal relations of state-owned enterprises have been adjusted well (policy and social burdens have not been stripped away, and self-viability and internal vitality have not been generated), they are introduced to the market and let them compete with enterprises that are equal in form but unequal in substance. If non-state-owned enterprises with a wolfish nature compete, the consequences can be imagined. Many large and medium-sized enterprises are only in the form of a company system, but the personnel, management system, and operating mechanism are still the same as before. Either the government's executive agency or "insider control" cannot establish a scientific corporate governance structure. The reasons are multifaceted, but they are related to the imperfection of my country's corporate legislation. The author believes that corporate legislation to build a modern corporate system should:

1. Investment responsibility should be used as a classification standard in the legal system to reflect the equality of corporate entities. Our country's enterprise legislation is relatively complete in terms of system. Based on the ownership system, there are Industrial Enterprise Law owned by the whole people, Collective Ownership Enterprise Law, Township Enterprise Law, Interim Regulations on Private Enterprises, Foreign-Funded Enterprise Law, etc.; Based on the investor responsibility standard, there are Company law, partnership law, sole proprietorship law, etc. However, there are three main problems: First, there may be different legal adjustments for the same enterprise and their regulations are conflicting. For example, this kind of problem exists between state-owned enterprises, township enterprises and company law, and between sole proprietorship and private enterprise law. Second, there is a lot of duplication of legal provisions in the legislation of various enterprises, which wastes legislative resources. Third, the main status of each enterprise is unequal. Some companies enjoy more preferential policies, resulting in formal and substantive inequality among companies. Based on this, there are two problems that need to be solved to implement enterprise legislation at this stage: The first is to sort out the existing enterprise legislation. To clarify the relationship between corporate legal norms, Professor Qi Duojun provided an analytical framework on this issue, which is to divide the relationship between corporate legal norms into parallel relationships and cross-relationships. Thus, the relationship between the "Company Law" and the "Law on Industrial Enterprises Owned by the Whole People", the relationship between the "Company Law" and the Law on Foreign-Funded Enterprises, the relationship between the "Partnership Law" and the "Law on Industrial Enterprises Owned by the Whole People" and the "General Principles of Civil Law" The relationship between them has been analyzed more clearly. [2] However, the most critical criteria in this analytical framework are the division criteria between general law and special law, and between general corporate legal forms and special corporate legal forms, which are not easy to grasp. And whether these two relationships can only be used when the effectiveness level is the same, since the examples provided are all of the same effectiveness level, there is no explanation. If so, then the role of this analytical framework will be limited; if not, how to establish this analytical framework. Only with a clear understanding of the relationship between existing corporate legislation can we integrate existing corporate legislation to form a corporate law system with clear boundaries and comprehensive coverage. The second is to establish the value orientation of the legal system. Our country's current establishment legal system takes transaction security as its value orientation at the expense of economic efficiency. Franchiseism and approvalism are still the main criteria for enterprise establishment. The procedures are cumbersome, time-consuming and costly; the legislative content is often repetitive and strictly stipulates statutory capital and its delivery period, the implementation of paid-in capital and capital maintenance systems, and the scope of business operations of the enterprise. Strict restrictions; the legal liability of the entity establishing the enterprise is heavy. While focusing on transaction security, it has lost the efficiency to adapt to the needs of the market economy. Moreover, excessive emphasis on transaction security cannot bring real security, because only the law of efficiency is the highest law of the market economy. Anyone who is inefficient will be eliminated by the market. Therefore, enterprise legislation should pay equal attention to efficiency and transaction security, so that the establishment entities of enterprises have multiple choices, so that they can flexibly establish and exit smoothly at the same time; combine the market access system with the principle of enterprise establishment; rationally allocate enterprises The legal responsibilities for the establishment of entities, intermediaries and national competent authorities will truly improve the security of corporate transactions.

With regard to state-owned enterprise legislation, some scholars advocate the adoption of special forms of enterprise legislation, which can be named public enterprise law, state-owned enterprise law or state-owned enterprise restructuring law; some scholars advocate legislation based only on investor responsibilities, without Separate legislation for state-owned enterprises. The author believes that the particularity of state-owned enterprises should be taken into consideration. There are many state-owned enterprises that have to bear the country's strategic and social responsibilities. They cannot adopt the corporate system and can only adopt the form of state-owned and state-owned enterprises. We must also take into account that our country has joined the WTO, and all domestic and foreign companies will receive national treatment. Businesses need to be treated equally and non-discrimination legislation implemented.

Therefore, the Law on Foreign-Invested Enterprises, the Law on Township and Township Enterprises, the Law on Industrial Enterprises Owned by the Whole People, and the Law on Private Enterprises are decomposed and integrated into the Company Law, Partnership Enterprise Law, Sole Proprietorship Law, State-owned Enterprise Law, and Joint-stock Cooperative Enterprise Law, and then supplemented by State-owned Assets Management Law and special industry access legislation. Basically, it can not only ensure the uniformity of legislation, but also reflect the equality of enterprises. At present, it is difficult for state-owned enterprises to be essentially equal to non-state-owned enterprises in many aspects. Non-state-owned enterprises do not have heavy historical baggage and have first-mover advantages (they are independent market entities from the beginning). Therefore, according to Article 21 of the Company Law, the State Council should make unified provisions on the implementation steps and specific methods for converting state-owned enterprises into companies. If unified provisions cannot be made, it should make guiding opinions based on the actual situation. Its principle is to embody equality. This is the premise for state-owned enterprises to reconstruct market entities at the first level. Only by putting state-owned enterprises and non-state-owned enterprises on the same starting line to compete can we cultivate operators and market competitors with independent personalities. As long as privileges exist, it will be difficult to transform into an independent market entity.

2. Enterprise legislation theoretically focuses on the adjustment of incremental interests of enterprises[3]. At present, my country's corporate legislation is greatly influenced by civil law theory. The focus is on defining the relationship between ownership and management rights. Ownership legislation is the mainstream. Even the corporate legislation "Company Law" in the form of investor responsibilities introduced in 1993 also mainly defines investors. The relationship of rights and obligations between ownership (equity) and business management rights, although it involves the distribution of dividends, is only the distribution of interests between shareholders and investors, and does not involve investors, workers, managers (strictly The meaning is also the interest distribution relationship between workers).

(1) The theoretical logic adopted by civil law theory for the adjustment of incremental benefits is: determine the owner of the property → property rights generate legal interest (in civil law, corporate operating profits are regarded as legal interest) → property rights The owner has the legal right to collect interest. However, this adjustment method can only be applied to the era of agricultural society when the owners, operators and even producers of the factory are integrated. With the advent of the information society and the socialization and informatization of production, this adjustment method Adjusting the distribution of corporate interests simply does not meet the needs of the times. The first is that it ignores the existence of labor that generates incremental benefits. Things cannot increase in value on their own. Assets can only be put into operation and generate incremental benefits in the production process. And living labor is the only source of surplus value.

The second is to only focus on tangible assets and ignore human resources and intangible assets. With the advent of the information age, enterprises have undergone profound changes in two aspects: First, production factors such as technology and information play a significant role in the production of surplus value. Second, the proportion of knowledge workers among employees is increasing. The survival and development of enterprises are closely related to the creative and innovative work of knowledge workers in enterprises. However, my country's enterprise law does not recognize the property rights of workers' labor ownership (some scholars use the concept of human capital to replace the property rights of workers' labor ownership) and denies their right to participate in profit distribution. Even intangible property rights - intellectual property rights are also restricted. The company law stipulates that the proportion of investment in intangible assets such as patents, industrial property rights, reputation (trademark rights), etc. shall not exceed 20% of the registered capital, and that for high-tech enterprises shall not exceed 30%. The third is that it denies distribution according to work, and the essence is distribution according to capital. At present, the distribution relationship reflected in my country's enterprise law is that the state, as the owner of capital, receives profits and workers receive wages.

(2) The theory of corporate law should focus on the adjustment of incremental interests (but does not deny the definition of existing interests), and mobilize investors and labor through the adjustment of incremental interest relationships within the enterprise. To inject the vitality of the enterprise with the enthusiasm of the employees. This is the main guiding ideology of enterprise legislation. It is defined by law that investors obtain interest and part of profits as decision-making labor and capital owners, managers obtain part of the profit claim rights through management labor and the ownership of intangible assets formed, and technicians use their scientific and technological labor and technology to contribute to value creation. Contributions obtain the right to claim part of the profits, and ordinary workers obtain the right to claim part of the profits through their productive labor. In developed countries such as Europe and the United States, there have been multiple ways for employees to participate in the distribution of corporate net income: First, the profit sharing system. It is widely practiced in the United States, France and the United Kingdom: in France, the number of people participating in profit sharing reached 14 million in 1990, accounting for about 60% of the total number of employees; in the United States, 15% of companies implemented a profit sharing system in the late 1980s. , the number of participants accounted for 22% of the total number of employees in the country; the British government formulated profit sharing regulations in 1978, and the number of employees participating in profit sharing reached 510,000 in 1980 [4] and this part of the income can enjoy legal tax benefits. The second is the enterprise value sharing system, which is a system that uses stock options to share the added value of the enterprise. In 1997, 53% of the 1,100 listed companies selected by Fortune magazine granted stock options to all employees.[5] In the 1980s, the British government enacted policies to encourage companies to grant stock options to their employees. [6] The third is the sharing of corporate ownership, that is, the employee stock ownership plan (ESOP). The fourth is the management rights sharing system.

Employees participate in enterprise management in accordance with the law or relevant regulations and represent the interests of all employees. It is mainly popularized in Germany. The "Contract Decision Law" promulgated in Germany in 1976 stipulates that the supervisory board (equivalent to the board of directors) of a company with more than 2,000 employees shall be composed of labor and management. It is composed of representatives from both sides, with a ratio of 50% each. [7] By participating in the distribution of profits, enterprise employees enable the owners and employees of the enterprise to jointly bear risks, enjoy the benefits, and jointly care about the development of the enterprise. Our country is a socialist public ownership country, and employees are the owners of the enterprise and should participate in the distribution of enterprise profits with their respective contributions. Socialist laws should also give clear confirmation that the ownership of labor force (including the property rights of entrepreneurs) and the sharing of profit distribution with capital, technology, and information.

3. In the legal system, enterprises should be guided to carry out various forms of distribution according to work system through the confirmation of the entrepreneur's property rights system, the labor force ownership system, the technology property rights system and the implementation of the corporate tax preferential system. And the factor-based distribution system implements various corporate legal systems that balance the interests of investors and workers, and restructures state-owned enterprises as dynamic market entities.

(1) Entrepreneurial property rights system. Entrepreneurs are the main productive forces of economic development. Confirming the entrepreneur's property rights system is the key to solving the scarcity of entrepreneurial resources and the misconduct of entrepreneurs in state-owned enterprises in our country, and is an important condition for establishing a scientific corporate governance structure. Confirming the property rights system of entrepreneurs is carried out from the following three aspects: First, confirming the legal status of the entrepreneurial class. There are legal class divisions, such as bourgeoisie and proletariat. There are also occupational divisions, such as workers, farmers, intellectuals, and cadres, but there are no class divisions based on ownership and economic functions. Such as employer and employee, directors, managers and employees. If the legal status is unclear, there is no talk of rights, status and legal protection. Baumol proposed that the speed of a society's productivity development and technological progress is not mainly determined by the quality of the entrepreneurial resources in that society. , but depends on the guidance and play of entrepreneurial resources[8] by social institutional mechanisms. And put forward three theorems: the game rules that determine the rewards for various uses of entrepreneurial resources in various eras and societies; the direction of application of entrepreneurial resources in each society is different due to the above-mentioned game rules; entrepreneurial resources in productive fields and non-productive fields Application configuration in the sexual domain. That is, using laws to confirm the rules of the game that are suitable for the allocation and application of entrepreneurial resources to the production field is the primary institutional condition for society to play the role of entrepreneurial productivity. Therefore, clearly confirming the legal status of entrepreneurs and providing legal protection are the primary conditions for confirming the entrepreneur's property rights system. Second, entrepreneurs’ property rights include management rights, management innovation ownership, information ownership, and intangible property rights formed by entrepreneurs’ own operations. The law confirms the legality of entrepreneurs' property rights and gives them residual claim rights. In terms of the design of the company's legal system, whether the entrepreneur's property rights can be used as a form of capital contribution - to participate in the residual claim in the form of demutualization of property rights or in the form of a contract (contract) in the company's articles of association; whether to stipulate the entrepreneur's property rights in mandatory terms or to Use discretionary terms to confirm entrepreneurs’ property rights. It is necessary to sum up experience in practice, and European and American company laws are not consistent with this provision. Third, the establishment of the entrepreneur market is conducive to the definition and pricing of entrepreneurs' property rights. More than 90% of entrepreneurs in state-owned enterprises are appointed by the state through administrative agencies. The evaluation of entrepreneurs does not come from the market but from the government. The government's evaluation of entrepreneurs is actually just another form of civil servant assessment and cannot reflect the value of entrepreneurs' property rights.

Currently, the "annual salary system", "stock option system" and "MBO" (Management Buy-outs), which are "management buy-outs" or "manager buy-outs", are being piloted in state-owned enterprises. In fact, it is the recognition of residual claim rights obtained by entrepreneurs’ property rights. Its main function is to help form long-term relevance and consistency between entrepreneurs, owners and corporate interests. Match the entrepreneur's remaining control rights with his remaining claim rights. Respect the fruits of entrepreneurs' labor, give full play to their innovative and pioneering spirit, and shape the dynamic mechanism of the enterprise.

(2) Labor property rights system. The labor of workers includes the decision-making labor of investors, the guidance, coordination and supervision labor of business managers, the mental labor of technicians, and the production or service labor of ordinary workers. The labor of business managers has been included in the property rights of entrepreneurs, and the mental labor of technical personnel is recognized in two parts. One part is the result of the innovative labor of technical personnel: technology as a kind of intellectual property rights has been legally recognized. The other part is internalized by technical personnel. The scientific and technological labor in labor should also be legally recognized (will be explained in the technical property rights below). Therefore, the labor property rights system that requires legal confirmation here mainly refers to the decision-making labor of investors and the production or service labor of ordinary workers. In investors' investment decisions, labor property rights are easily overlooked because they are integrated with investors' capital ownership. It is believed that investors only enjoy residual claim rights based on capital ownership. The labor of ordinary workers is due to the rapid development of science and technology in the information age. , Pure production labor or service labor has less and less impact on commodity value creation and is easily ignored.

In addition, the profound influence of the "heroic view of history" ignores the status and role of ordinary workers. [9] It is always believed that the vitality of an enterprise only comes from the management skills of entrepreneurs. However, it is not known that there is no enthusiasm and creativity of all employees of the enterprise. It is impossible to run a business well. The most fundamental role of a good entrepreneur is to stimulate the enthusiasm and creativity of all employees, condense the will of the company's employees, work together, and fully bear risks and interests. Knowledge managers have also shifted from supervising labor to participating in labor themselves; from strengthening work plans and methods to understanding workers. [10] There is a saying in Taiwan's "Tianxia" magazine that says, "Mutual understanding between managers and workers can support the corporate building." Therefore, the legalization of the workers' property rights system is a catalyst for workers to increase the value of their property rights, which will It greatly promotes workers to learn knowledge, master technology and care about the interests of enterprises. Therefore it is an important source of corporate vitality. The combination of labor cooperation and capital cooperation in my country's joint-stock cooperative enterprises is a typical combination of the theory and practice of the workers' property rights system. It should also be a good attempt to introduce the workers' property rights system into the company system. "Opinions on Standards for Joint Stock Companies" and "Guiding Opinions on the Development of Urban Joint-stock Cooperative Enterprises", various provinces and cities have also formulated regulations on the development of joint-stock cooperative enterprises, and local governments in more than a dozen provinces and cities, including Shanghai, Beijing, and Shenzhen, have successively issued " Regarding the trial measures for establishing employee stock ownership committees, at present, there are generally four ways to implement employee stock ownership in our country: First, according to the "Standard Opinions on Joint Stock Companies" originally formulated by the National Restructuring Commission, in privately raised joint stock companies, Establish internal employee shares. Second, when establishing a limited liability company or a joint-stock company initiated by a joint stock company, employees shall become shareholders as natural persons. The third is to establish individual employee shares in joint-stock cooperative enterprises; the fourth is to establish employee stock ownership associations to invest in the company. Strictly speaking, employee stock ownership (ESOP) does not truly reflect the legalization of the labor property rights system. It also acquires equity through investment. It does not reflect the system of obtaining equity property rights through labor ownership. Like employee stock ownership acquisition (EBO. Employee Buy-outs), it is only a method of corporate governance structure.

(3) Technology property rights system. The carrier of knowledge and technology is the basic production factors, namely labor objects, labor materials and living labor. On the one hand, the value created by knowledge and technology relies on a large amount of knowledge and technology internalized in living labor, and on the other hand, it relies on a large amount of knowledge and technology internalized in the means of production, forming a joint force to maximize the use of new use value while creating new use value. The value of the consumed means of production is transferred to new products. Correspondingly, the content of the intellectual property rights system includes two parts: one is what we usually call intellectual property, which is the internalization of knowledge and technology into the means of production to form materialized labor, and is a form of property rights. The other part is the living labor in which knowledge and technology are internalized in scientific and technological workers. This kind of living labor is a kind of complex labor that is several times, dozens of times or even hundreds or thousands of times that of simple labor. It is a manifestation of the ownership of labor power and a kind of "internal property right". The equityization of "internal property rights" reflects the combination of distribution according to work and distribution according to production factors of intellectual and technological property rights. Based on the contribution of knowledge and technology in corporate profits, appropriate proportions of technological property rights investment should be given in company law. Improvement, of course, has a lot to do with the maturity and improvement of the technology market and evaluation market, but the value of technology property rights cannot be limited due to the immaturity of the market. There is a mutually reinforcing process here. In the design of the legal system, we should take into account the current underdeveloped level of productivity and the scarcity of capital. The regulation of technological property rights in company law is still stipulated in arbitrary terms, but there should be preferential legal provisions to guide taxation. .