Modern enterprise system refers to all kinds of systems related to enterprises that are adapted to the modern market economy system. [1] Because the company system is the most typical enterprise system in modern enterprise system. With its inherent advantages, it is conducive to the decentralization and democratization of the decision-making and utilization of state-owned assets. It is more suitable for the decision-making mode of market economy and the needs of market competition. Standardizing the establishment of modern enterprise system by law is the only way to standardize and institutionalize the construction of modern enterprise system. The problem is that the previous enterprise law, company law, civil law and labor law only regulate how state-owned enterprises establish a modern enterprise system from the perspective of reconstructing state-owned enterprises into independent market players. That is, it focuses on defining the civil or commercial subject status of enterprises. That is to say, before the internal relations of state-owned enterprises have been properly adjusted (the policy and social burden have not been stripped off, and the viability and internal vitality have not been produced), they will be pushed to the market and let them compete with the "wolf" non-state-owned enterprises with equal form and unequal substance. The result can be imagined. Many large and medium-sized enterprises are corporate, but the personnel, management system and operation mechanism are still the same as before. Neither the executive mechanism of the government nor "insider control" can establish a scientific corporate governance structure. There are many reasons, but it is related to the imperfection of enterprise legislation in China. The author believes that the enterprise legislation to build a modern enterprise system should:

1. In the legal system, investment responsibility should be used as the classification standard, which reflects the equality of enterprise subjects. China's enterprise legislation is relatively complete in system, including the Law on Industrial Enterprises Owned by the Whole People, the Law on Collective Enterprises, the Law on Township Enterprises, the Provisional Regulations on Private Enterprises, the Law on Foreign-funded Enterprises and so on. There are company law, partnership enterprise law, sole proprietorship enterprise law and so on. But there are three main problems: first, there may be different legal adjustments to the same enterprise, and their provisions are contradictory. For example, there are such problems between state-owned enterprises, township enterprises and company law, and between wholly-owned enterprises and private enterprise law. Second, legal provisions are repeated among enterprises, which wastes legislative resources. Third, the main position of enterprises is not equal. Some enterprises enjoy more preferential policies, resulting in formal and substantive inequality between enterprises. Based on this, two problems need to be solved to do well the enterprise legislation at this stage: First, sort out the existing enterprise legislation. In order to clarify the relationship between enterprise legal norms, Professor Qi Duojun provided an analytical framework on this issue, that is, the relationship between enterprise legal norms can be divided into parallel relationship and cross relationship. In this way, the relationship between public law and the law of industrial enterprises owned by the whole people, the relationship between company law and foreign-funded enterprise law, and the relationship between partnership law and the law of industrial enterprises owned by the whole people and the general principles of civil law are clearly analyzed. [2] However, it is not easy to master the two most critical dividing standards of general law and special law, and legal forms of general enterprises and special enterprises in this analytical framework. And whether these two relationships must be used at the same effective level, because the examples provided are at the same effective level and there is no explanation. If so, the role of this analytical framework will be limited; If not, how to establish this analysis framework. Only when we have a clear understanding of the relationship between the existing enterprise legislation can we integrate the existing enterprise legislation and form a distinct and comprehensive enterprise legal system. The second is to establish the value orientation of the legal system. The establishment of China's current legal system is based on transaction security at the expense of economic efficiency. Franchising and approval of enterprise establishment are still the main standards, and the procedures are cumbersome, time-consuming and costly; The legislative content is repetitive, and there are strict regulations on the statutory capital and its delivery period. The paid-in capital and capital preservation system shall be implemented, and the business scope of enterprises shall be strictly limited. The legal responsibility of the main body of enterprise establishment is biased. While paying attention to transaction security, it has lost the efficiency of adapting to the needs of market economy. Moreover, paying too much attention to the security of transactions can not bring real security, because only the law of efficiency is the highest law of market economy. Whoever is inefficient will be eliminated by the market. Therefore, enterprise legislation should give consideration to both efficiency and transaction security, so that the main body of enterprise establishment has multiple choices, and it can be established flexibly and withdrawn smoothly; Combine the market access system with the principle of enterprise establishment; Only by reasonably distributing the legal responsibilities of establishing enterprises, intermediaries and state departments can the transaction safety of enterprises be truly improved.

Some scholars advocate adopting a special form of enterprise legislation, whose name can be public enterprise law, state-owned enterprise law or state-owned enterprise restructuring law; Some scholars advocate that legislation should be made only according to the responsibility of investors, not only for state-owned enterprises. The author thinks that to take into account the particularity of state-owned enterprises, many state-owned enterprises should bear national strategy and social responsibility, and can only take the form of state-owned enterprises instead of corporate system. Considering that China has joined the WTO, all domestic and foreign enterprises will receive national treatment. Enterprises should be treated equally and non-discrimination legislation should be implemented. Therefore, the foreign-funded enterprise law, the township enterprise law, the industrial enterprise law owned by the whole people and the private enterprise law are decomposed and integrated into the company law, the partnership enterprise law, the sole proprietorship enterprise law, the state-owned enterprise law and the joint-stock cooperative enterprise law, supplemented by the state-owned assets management law and the special industry access legislation. Basically, it can not only ensure the unity of legislation, but also reflect the equality of enterprises. At present, it is difficult for state-owned enterprises to be substantially equal to non-state-owned enterprises in many aspects. Non-state-owned enterprises have no heavy historical burden and occupy the first-Mover advantage (they have been independent market players from the beginning). Therefore, according to Article 2 1 of the Company Law, the State Council should make uniform provisions on the implementation steps and specific ways of the corporatization transformation of state-owned enterprises. If uniform provisions cannot be made, guiding opinions shall be put forward according to the actual situation. Its principle is to embody equality. This is the premise for state-owned enterprises to reconstruct the primary market players. Only by putting state-owned enterprises and non-state-owned enterprises on the same starting line can we cultivate operators and market competitors with independent personality. As long as there is privilege, it is difficult to transform into an independent market entity.

2. Enterprise legislation focuses on the adjustment of incremental interests of enterprises in theory. At present, China's enterprise legislation is greatly influenced by the theory of civil law, with the focus on defining the relationship between ownership and management rights. Ownership legislation is the mainstream. Even the Company Law issued by 1993 in the form of investor's responsibility mainly defines the rights and obligations between investor's ownership (equity) and enterprise's management right. Although it involves the distribution of dividends, it is only the distribution of interests between shareholders and investors, not investors and workers.

(1) The theoretical logic adopted by the civil law theory for the adjustment of incremental interests is: determining the owner of property rights → property rights generate legal fruits (the business profits of enterprises are regarded as legal fruits in civil law) → property rights owners enjoy the right to collect legal fruits. However, this adjustment method can only be applied to the era of integration of factory owners, operators and even producers in agricultural society. With the advent of the information society, the socialization and informatization of production, it is no longer suitable for the needs of the times to adjust the profit distribution of enterprises by this adjustment method. The first is to ignore the existence of incremental income generated by labor. Things themselves cannot add value, and assets can only be put into operation, resulting in incremental benefits in the production process. And living labor is the only source of surplus value.

Second, only pay attention to tangible assets, ignoring human resources and intangible assets. With the advent of the information age, enterprises have undergone profound changes in two aspects: first, factors of production such as technology and information have played an important role in the production of surplus value. Second, the proportion of knowledge workers in employees is increasing, and the survival and development of enterprises are closely related to the creativity and innovative labor of knowledge workers in enterprises. However, China's Enterprise Law does not recognize the property right nature of laborers' labor ownership (some scholars use the concept of human capital to replace the property right of laborers' labor ownership) and denies their right to participate in profit distribution. Even intangible property rights-intellectual property rights are restricted. The contribution of the Company Law to intangible assets such as patents, industrial property rights and goodwill (trademark rights) shall not exceed 20% of the registered capital, and the contribution to high-tech enterprises shall not exceed 30%. Third, whether to admit that distribution according to work is essentially distribution according to capital. At present, the distribution relationship embodied in China's enterprise law is that the state, as the owner of capital, gets profits and the workers get wages.

(2) The theory of enterprise law should focus on the adjustment of incremental interests (but do not deny the definition of stock interests), mobilize the enthusiasm of investors and workers through the adjustment of incremental interests within enterprises, and inject vitality into enterprises. This is the most important guiding ideology of enterprise legislation. The law stipulates that investors, as decision-makers and capital owners, get benefits and part of profits, managers get part of the profit claim through managing labor and the ownership of intangible assets formed, technicians get part of the profit claim through their scientific and technological labor and technology's contribution to value creation, and ordinary workers get part of the profit claim through their productive labor. In developed countries such as Europe and America, there are many ways for employees to participate in the distribution of enterprise net income: one is profit sharing system. Widely used in the United States, France and Britain: in France, 1990, the number of people participating in profit sharing reached140,000, accounting for about 60% of the total number of employees; In the United States, at the end of 1980s, 65,438+05% companies implemented the profit sharing system, accounting for 22% of the total employees in China. The British government enacted the profit sharing regulations in 1978. In 1980, the number of employees participating in profit sharing reached 5 10000 [4], and this part of income can enjoy legal tax concessions. The second is the enterprise value sharing system, that is, the system of sharing enterprise value-added by stock options. Of the100 listed companies selected by Fortune magazine 1997, 53% granted stock options to all employees. [5] In the 1980s, the British government formulated measures to encourage enterprises to grant employees stock options. [6] The third is enterprise equity sharing, namely employee stock ownership plan (ESOP). The fourth is the management power sharing system. Employees participate in enterprise management according to laws or relevant regulations, representing the interests of all employees, which is mainly promoted in Germany. 1976 the same decision law promulgated by Germany stipulates that the board of supervisors (equivalent to the board of directors) of a company with more than 2,000 employees is composed of representatives of both employers and employees, each accounting for 50%. [7] Employees of enterprises participate in profit distribution, so that owners and employees of enterprises * * * share risks, * * * enjoy benefits and * * * care about the development of enterprises. China is a socialist public ownership country, and employees are the owners of enterprises, so they should participate in the profit distribution of enterprises with their respective contributions. Socialist law should also clearly confirm its labor ownership (including entrepreneurs' property rights) and capital, technology and information sharing profits.

3. In the legal system, we should guide enterprises to implement various forms of distribution according to work and distribution according to factors, implement various enterprise legal systems that balance the interests of investors and workers, and reconstruct the dynamic market subject of state-owned enterprises through the confirmation of entrepreneur property rights system, laborer labor ownership system and technology property rights system and the implementation of enterprise tax preferential system.

(1) Entrepreneur property right system. Entrepreneurs are the main productive forces of economic development. Confirming the entrepreneur property right system is the key to solve the shortage of entrepreneur resources and the anomie of entrepreneur behavior in China's state-owned enterprises, and it is also an important condition for establishing a scientific corporate governance structure. Confirming the property right system of entrepreneurs is carried out from the following three aspects: First, confirming the legal status of entrepreneurs. There are classes in law, such as the bourgeoisie and the proletariat. There are also occupational divisions, such as workers, peasants, intellectuals and cadres, but there is no class division according to ownership and economic functions. Such as employers and employees, directors, managers and employees. Without clear legal status, there is no right status and legal protection. B Omr pointed out that the development of productive forces and the speed of scientific and technological progress in a society are mainly determined not by the quality of entrepreneurial resources in society, but by the guidance and play of entrepreneurial resources by social institutional mechanisms. And put forward three theorems: the rules of the game that determine the reward of entrepreneurs' resources in different times and different societies; The application direction of social entrepreneurs' resources varies with different rules of the game; Application and distribution of entrepreneurial resources in production and non-production fields. That is to say, it is the primary institutional condition for society to play the role of entrepreneurial productivity to confirm the rules of the game suitable for the allocation and application of entrepreneurial resources to the production field through law. Therefore, it is the first condition to confirm the legal status of entrepreneurs and give them legal protection. Second, the contents of entrepreneur's property rights include management right, management innovation ownership, information ownership and intangible property rights formed by enterprises' own operations. The law confirms the legitimacy of entrepreneurs' property rights and gives them residual claims. In the design of the company's legal system, whether the entrepreneur's property rights can be used as a form of capital contribution-property rights shares or contracts (contracts) in the company's articles of association; Whether to stipulate the property rights of entrepreneurs with mandatory terms or to confirm the property rights of entrepreneurs with arbitrary terms. Need to sum up experience in practice, the provisions of European and American company laws are not consistent. Third, the establishment of entrepreneur market is conducive to the definition and pricing of entrepreneur property rights. More than 90% of entrepreneurs in state-owned enterprises are appointed by the state through administrative organs. The evaluation of entrepreneurs comes not from the market but from the government, and the government's evaluation of entrepreneurs is actually just another form of civil service assessment, which does not reflect the property value of entrepreneurs.

At present, the annual salary system, stock option system and MBO in state-owned enterprises are called MBO or MBO. In fact, it is the recognition of entrepreneurs' right to claim residual property rights. Its main function is to help entrepreneurs and owners as well as the interests of enterprises to form a long-term relationship and unity. Match the entrepreneur's residual control right with the residual claim right. Respect the labor achievements of entrepreneurs, give play to their innovative and pioneering spirit and shape the dynamic mechanism of enterprises.

(2) Workers' property rights system. Laborers' labor includes investors' decision-making labor, managers' guidance, coordination and supervision labor, technicians' mental labor and ordinary workers' production or service labor. The work of managers has been incorporated into the property rights of entrepreneurs, and the mental work of technicians has been recognized as two parts, one of which is the result of innovative work of technicians: technology as intellectual property rights has been legally recognized. Another part of scientific and technological labor that is internalized as the labor of technicians should also be confirmed in law (this will be elaborated in the technical property rights below). Therefore, the laborer property right system that needs to be confirmed by law here mainly refers to the decision-making labor of investors and the production or service labor of ordinary laborers. Investors' investment decision-making labor property rights are easily ignored because they are integrated with investors' capital ownership. It is believed that investors only enjoy the residual claim of capital ownership, the labor of ordinary workers is easily ignored because of the rapid development of science and technology in the information age, and the influence of pure productive labor or service labor on commodity value creation is getting smaller and smaller. In addition, the profound influence of "heroic historical view" ignores the status and role of ordinary workers. [9] It is always believed that the vitality of an enterprise only comes from the management ability of entrepreneurs, but it is not known that there is no enthusiasm and creativity of all employees in the enterprise. It is impossible for an enterprise to do well. The most fundamental function of a good entrepreneur is only to stimulate the enthusiasm and creativity of all employees, unite the will of enterprise employees, and share risks and interests together. Knowledge managers have also changed from supervising labor to personally participating in labor; Change from strengthening work plans and methods to understanding workers. [10] There is a saying in Tianxia magazine in Taiwan Province Province that "mutual understanding between managers and workers can support a large enterprise building." Therefore, the legalization of workers' property rights system is a catalyst for workers to enhance the value of property rights, which will greatly promote workers to learn knowledge, master technology and care about the interests of enterprises. Therefore, it is an important source of enterprise vitality. The combination of labor cooperation and capital cooperation in China's joint-stock cooperative enterprises is a typical combination of theory and practice of employee property rights system, and it should also be a good attempt to introduce employee property rights system into the company system. The normative opinions of joint-stock companies and the guiding opinions on the development of urban joint-stock cooperative enterprises, various provinces and cities have also formulated laws and regulations on the development of joint-stock cooperative enterprises, and local governments in more than a dozen provinces and cities such as Shanghai, Beijing and Shenzhen have successively introduced pilot measures on the establishment of employee stock ownership associations. At present, there are generally four ways to implement employee stock ownership in China: first, according to the standard opinions of joint stock limited companies originally formulated by the State Commission for Economic Restructuring, the shares are raised directionally. Second, when limited liability companies and joint stock limited companies are established, employees become shareholders as natural persons. Third, joint-stock cooperative enterprises set up individual shares of employees; Fourth, the establishment of employee stock ownership will invest in the company. Strictly speaking, employee stock ownership does not really reflect the legalization of workers' property rights system. It still obtains equity through investment. There is no system in which workers' labor ownership obtains equity property rights, which is just a way of corporate governance structure, just like EBO. Employee buyout.

(3) Technical property right system. The carriers of knowledge and technology are the basic factors of production, that is, labor objects, labor materials and living labor. On the one hand, the value created by knowledge and technology depends on a large number of knowledge and technology internalized in living labor, on the other hand, it depends on a large number of knowledge and technology internalized in means of production, forming a joint force, creating new use value while maximizing the value of consumed means of production into new products. Accordingly, the content of intellectual property system includes two parts: one part is what we usually call intellectual property, which is the materialized labor formed by the internalization of knowledge and technology in the means of production, and it is a form of property right. The other part is to internalize knowledge and technology into the living labor of scientific and technological workers. This kind of living labor is a kind of complex labor, which is several times, dozens or even hundreds of times that of simple labor. It is a manifestation of laborers' labor ownership and an "internal property right". The equity of "internal property rights" is a combination of distribution according to work and distribution according to production factors. Based on the contribution of knowledge and technology to enterprise profits, the company law should appropriately increase the proportion of technological property rights. Of course, this has a lot to do with the maturity and perfection of the technology market and the evaluation market, but the value of technical property rights should not be limited because of the immaturity of the market. There is a process of mutual promotion. In the design of the legal system, we should take into account the current underdeveloped level of productivity and the scarcity of capital. The provisions of the Company Law on technical property rights are still arbitrary, but preferential legal provisions should be guided.