国家出资人代表选任的机理分析

国资委委派或推选的董事与监事,实质为履行国资经营监督职责的公务代表,其选任不可避免地带有行政性,而作为公司的董监事,其选任又具明显的私法性。为实现其公私法上选任机制的融合,应在明确国资委统一代表国家行使选任权的基础上,利用行政立法对其选任标准予以明确,将现行转任及调任统一纳入公开选拔渠道,并通过与公司法上选任机制的有效对接使其得以协调构建。

An Analysis on the Mechanism of State-sponsored Representatives Election

The directors and supervisors commissioned or elected by SASAC in enterprises are state representatives who take the responsibility of supervising the running of states property and are inevitable to be under the control of administrative law. The process of electing directors and supervisors in the enterprise must follow the civil law at the same time. To achieve the goal of compromising public and civil law in the process of election, we should set clear election standards of directors and supervisors based on the fact that SASAC is the only agency exerting electing-rights. Besides, we should unify the ways of switching-position into the ways of public election and erect an institution which affiliates that of company law.