Ordinary civil cases by the Supreme Procuratorate recently together, the Supreme People's court has caused the attention. The case for many years, the people's courts at all levels have to confirm the ownership of enterprise, enterprise property right, confirm confirmation of enterprise property several case filing and hearing. The author here is not the facts of the case itself for evaluation and analysis, only a people's court hearing the case several times determined by whether it is reasonable and accurate, to talk about their own views. As the analysis needs necessary to describe the case.

Overseas Chinese Affairs Office of the government of a city (Overseas Chinese) in the early ninety's founded A, a by the citizens as the company's legal representative, responsible for the daily operation and management. After a few years, with the development of business and expand, armor and takes the A company as the main body of investment founded B. Two the company is operating well, accumulated a certain amount of wealth. After the Chinese legal representative who fired a duty, the two companies under its management and operation. A claim that overseas Chinese in early two the establishment of the company does not have any investment, both by raising his own money to set up the company, so his company, his legal representative shall have no right to dismiss Chinese official, nor will the two nationalisation. So the proper court for confirmation of the ownership of enterprise.

Obviously, this is a confirmation. Apart from the dispute of the facts of the case, the key to determine how to correctly handle the case has become the cause of action. Determine the cause is not just choose a name for the case, but also related to how to correctly apply the law and justice to protect the legitimate rights and interests of the parties.

The principle of civil case, the

"The word" is generally believed that the "causes" from then. Literally speaking, case refers to the origin of the case, the parties dispute to judicial authorities for what verdict. "Law Dictionary" (1984 Edition) explanation is: "for each particular case. In criminal cases, the defendant is accused of crime charges (such as theft, murder); refers to the plaintiff prosecution claim in civil cases (such as divorce, damage compensation, restitution of property)". Some people think that the name of that case, also some people think that the case is the type of case, some people think that the case is the case of the abstract [1]. Because the different understanding of the concept of the case, led directly to the client by determining standard of different. In judicial practice, with the object of litigation is case, to claim as the case, in order to have the civil liability as the case. In order to overcome the judges in determining the process of random and chaotic, regulate the use of the subject matter of the case, the Supreme People's Court promulgated the "Regulations of the civil cases in October 30, 2000" (Trial), and in the "on the issuance of" the cause of action of civil cases (for Trial Implementation) pointed out that the provisions > notice ", apply the ordinary procedure case the case is composed of two parts: the legal relationship between the parties to the dispute and litigation. Therefore, the author thinks, the essentially refers to the categories and the parties to the dispute dispute legal relationship. To determine the different case, means the legal basis for the different. The nature of legal relationship only dispute, decided its under applicable law, the legal relationship between the parties is because of legal rights and obligations, and the protection for the legal social relationships. Therefore, the judicial personnel in determining the case case, we must start from the two aspects, find the corresponding case types. 　

Determine the cause, to be exact, judge the nature reflects the controversial civil cases, I think we should adhere to the following principles: one is to reflect the equality of civil legal adjustment of the core idea and the civil procedure law, and always will be the equal protection of civil rights in the first place. The two is the nature of legal relationship to accurately grasp the case, accurately summed up the focus of the dispute. Because determine the cause, the fundamental one is to reveal the legal relationship of the controversial case. Just stay on the surface, it can not grasp the essence of the case. Three is to pay attention to the determination of principle and flexibility. Refers to the determination of the principle should be followed to the Supreme People's court in civil cases where the provisions promulgated the "Regulations" (for Trial Implementation); flexibility refers to certain provisions of the Supreme Court and not for all the cases with tailored, various new types of cases are increasing, the new legal relationship will also emerge in an endless stream, these must be the legal relationship between the model and the disputes of flexible action. In addition, determine the cause should be logical and concise.

Two, analysis of the case involved several case

In this case, the plaintiff's claim to confirm the ownership of enterprise. First, second, two times of retrial, highest check protest were determined, confirming their confirmation of enterprise ownership disputes over property rights, confirm the property dispute case. The following one by one analysis.

(a), to confirm the ownership of enterprise is the cause of action

Ownership (ownership) is one of the ancient Rome law very important concept of. According to the traditional theory of civil law, the ownership of a property, and his real right corresponding. Also called self ownership property, is a kind of property right, owner enjoys the possession, use, income, punishment power. Ownership means "in the range does not violate the law and the rights of the third party, random action and exclude others" right [2]. "German Civil Code" in the title refers only to dominate in the matter of the right things, only ", including substance". Therefore, in the enterprise on the right, shareholder's stock right, bank deposits and other creditor's rights do not belong to the scope of ownership. But these rights are property, so when people use the concept of ownership in economic policy and social policy, usually include them in the ownership. The sense of ownership, mainly refers to the production of the information on the ownership of [3].

The ownership of enterprise is a concept of economics, it refers to the residual claim to the enterprise (residualClaim) and residual rights of control(residualRightsOfControl). The right of residual claim is relative to the contract revenue rights, refers to the income of the enterprise after deducting all fixed contract payment (such as the cost of raw materials, fixed wage, interest balance) ("profit") claim. Residual control rights refers to no special provisions in the contract activities in decision making. Enterprise efficiency maximization requires the enterprise residual claim and control rights arrangements should correspond to (matching).Strictly speaking, enterprises as a kind of contract, its itself is not the "owner". Since entering the business contract is incomplete, the future is uncertain, to enable all enterprise members get the fixed contract revenue is not possible, this is the residual claim (residualThe origin of claim). Since entering the business contract is incomplete, the future is uncertain, when the actual status appears, someone must decide how to fill the contract in the presence of "vulnerability" (including the lifting of certain people involved in the contract). This is the residual rights of control(residualControlRight, referred to as the control) origin.Economists will allocate the enterprise residual claim and control rights arrangements for the ownership of the firm said. According to the theory of modern enterprise, the enterprise is a series of contract (contract) combination. Because the contract is incomplete, only a "ownership" problem. in corporate governance structure, the residual claim right is mainly manifested in the distribution of income priority sequence "last request" right of control "mainly, voting rights ("Right). Have the right to vote is also have no matter contract in decision making. Traditionally "shareholders are the owners", since the 80's, the theory of the firm of economists has been increasingly recognized, the ownership of enterprises is a kind of state contingent ownership (state-contingentOwnership), shareholders but is "owner" enterprise under the normal state of [4]. Because under certain conditions may be shareholders are the owners, may also the creditor is the owner, is also likely to workers is the owner, and may the manager is the actual owner.

The ownership of enterprises is not equal to the nature of the firm. The nature of the enterprise is to solve the enterprise is what and why business problems. There is a typical enterprise is what example, Liu Shijin in the "Chinese nature of state-owned enterprises and the reform logic" in one article mentioned "80 time metaphase, the famous Japanese economist Komiya Ryutaro had 'China does not exist in enterprise, or almost non-existent enterprises' said method (Komiya Ryutaro, 1986). This caused no small controversy at the time. Chinese state-owned enterprises not 'enterprise', what are they? If you want to Chinese nature of state-owned enterprises' saying 'a, so, it is of both production, social security, social welfare and social management functions of the' social units' "[5]. In Coase "nature of the firm" (1937) published previously, the enterprise is a can not and does not need to open the "black box". Since the article is published, western economists study on the origin of enterprise is more and more popular.

At the same time, the nature of the enterprise is different from the economic nature of enterprises. The economic nature of enterprises in our country is a "type of business", or our "type of enterprise" is according to enterprise's economic nature, such as state-owned, collective, private, foreign-funded company, etc..

Thus, the ownership of enterprise is a concept of economics, not a law concept. The law there is no concept of enterprise ownership. According to the economics of the ownership of the enterprise general explanation, Party A lawsuit request confirmation of enterprise ownership, is actually required to confirm the enterprise earnings power (residual claim rights) and the right to vote (residual rights of control), but this is not the original file for a. His meaning is very clear, is to advocate for the rights of enterprises. The causes of civil cases shall at the same time, the Supreme People's Court promulgated "" (for Trial Implementation) "ownership and ownership rights disputes" under the 140th to 153 case no confirmation of enterprise ownership of the. According to the preceding discussion confirming principle, determine the nature and controversial case first understand the parties dispute legal relationship, at the same time should follow the "Regulations" the cause of action of civil cases (for Trial Implementation), apparently the litigant request confirmation of enterprise ownership is not his original appeal, court to the litigant request of establishing case does not meet the nature and the parties to the dispute the dispute legal relationship, also do not accord with the provisions of "the civil cases (for Trial Implementation)" the provisions of.

(two), to confirm that the enterprise property rights disputes as the cause of action

About the ownership of the property, from the legislative style of China's "general principles of the civil law" look, property ownership and related property rights, creditor's rights, intellectual property rights, personal rights are the same sequence of the concept of civil rights. Property rights include property ownership, broader in scope than the ownership of the property. The concept of "general principles of civil law" in the property does not include the creditor's rights and other rights (the "company law" in the concept of property includes the creditor's rights and other rights). Some scholars also think that property is a concept and the personal rights are corresponding, its range is very extensive, including real right, creditor's rights, intellectual property rights, [6].

The property right of enterprises, according to the general says, is refers to the enterprise is entitled to possession, use, income, the right of disposition of all of its property, including the enterprise property rights and other rights. China's "company law" provisions of article fourth, "formed by the investment by shareholders, enjoy all legal person property rights according to law, enjoy civil rights, assume civil obligations." But the "company law" corporate property rights and the "general rules of the civil law" concept of property rights is different. "Company law" property right refers to the right to use the property or property rights, not property ownership, company property ownership belongs to shareholders (investors). The reason is: China's "general principles of civil law" the seventy-first regulation, property ownership means the owner is entitled to possess, use, disposal and the proceeds of the rights to own property in accordance with the law, "company law" article fourth also stipulates, "the shareholders of the company according to the company's investment to enjoy the benefits of the assets of, major decision making and selection of management other rights as investor." To illustrate the company's property ownership belongs to shareholders of the company. The provisions about "the state-owned assets in the company ownership belongs to the country", can be further explained. Therefore, property ownership and the "general rules of the civil law" provisions of the shareholders of the company actually enjoy the ownership of the property is consistent. Only in the company, the shareholders of the company are entitled to the property of the company property right is incomplete. Complete separation of right of possession, use of property ownership rights and other rights, main content of corporate property rights. The right of possession, the right to use property in the form of company legal person enjoys. At the same time, the right to dispose of the corporation and the shareholders of the company by share.

To confirm the property rights disputes of the case is not appropriate. First, change the litigant request, the litigant request is to confirm the ownership of enterprise, the court will change in violation of the "law of civil litigation principles will not ignore" the confirmation of enterprise property rights. Second, as mentioned above, the two independent legal person of A company and B two companies, their corporate property rights is no doubt belongs to the two companies, this is a legal person is the essence of corporate requirements. Legal person with all its legal property, enjoy civil rights according to law, shall bear civil liabilities independently. The enterprise property right belongs to the enterprises, it is not confirmed. Even the two companies all have a shareholder (a company), and the shareholders is himself, he can claim as a shareholder rights, the independent legal person cannot claim is independent of the shareholder of company property right.

(three), to confirm that the property disputes as the cause of action

Property is a very uncertain concept. Western scholars on the definition of property rights, although too many to count, but there is no unity of economic theory and legal system. Liu Wei has six main kinds of views on foreign in "property right" in one book are compared. China has no "constitution" or "general principles of civil law" have not "property" concept. "General principles of civil law" is using the "property ownership" and "intellectual property". In our country, is a property along with the deepening of enterprise reform and the popular concept of property right, and so far still is a concept of economics, jurisprudence and less involved, different scholars have different understanding. China academic point of view mainly have the following several kinds. It is equivalent to the ownership of property. Two is that the property rights from the ownership, and that ownership of property is broader than the. Three is that the property is different from the ownership of property rights, but is a group of specific conditions in the system of ownership of the movement, included in the general category of ownership.

"Oxford Law Dictionary" explanation is: "property or property ownership, is completely right in or on any object. It includes the right of possession, the right to use, lending right, transfer right, all right, consumer rights and other property rights."

The concept of property rights though often used in our country some administrative regulations, departmental rules and policy documents, but defining the connotation and extension of the property rights are not consistent, and even contradictory. Is drafting the law "draft" regulations, "property is related to property ownership and property rights and property rights". According to the law drafting team leader Liu Yishun explanation, the "draft" clearly this definition: property rights including ownership, management right and legal person property right; when the concept of property is suitable for different ownership property ownership, it refers to the ownership of property; when applies the concept of state ownership is different between the internal the property of the enterprise ownership, refers to the management right; sixteen of the Third Plenary Session of the "decision" pointed out that "property rights are the core and main content of the ownership, including real right, creditor's right, equity and intellectual property rights." According to the State Council "; registration of state owned property management approach" the provisions of article second, "said state owned property as mentioned in these measures (hereinafter referred to as the registration of property rights registration), refers to the state-owned asset management department on behalf of the government for the registration of the possession of state-owned assets of enterprises of all types of assets, liabilities, owner's equity, property status, according to the law to confirm property ownership behavior." The [7] property contains the assets, liabilities, owner's equity, etc.; "property definition of state-owned assets and property disputes Interim Measures" process second: "property refers to property ownership and power of management, related to property ownership rights and other property rights, excluding the creditor." [8], in accordance with the "measures" currency, real, land use rights, intellectual property rights and other intangible assets and other assets which belong to the category of property, but does not include debt.

Therefore, property right is a concept with extremely chaotic. Is a concept of economics, is a concept of law, at the same time, its content is also differ in thousands of ways. Therefore, before the law does not clearly define the connotation and extension of property rights, as the judicial organs of the court and the procuratorate should proceed from the law of unity, the seriousness and authority, do not use such inaccurate terminology in the judicial practice. The court also should not be to the confirmation of enterprise property rights disputes for the trial of the case, and the cause of action of civil cases "rules" (Trial) has no such case.

Three, the author of the case of the view

The Supreme People's Court of retrial case as "property ownership dispute", I don't think it is right. Although the causes of civil cases "rules" (Trial) "140th kinds of ownership dispute" under 1 is "property ownership dispute", but from the "ownership dispute" under the "property ownership disputes", "property ownership dispute" in the property rights should only is the ownership of property. According to the actual situation of the case, the plaintiff is not only the right of ownership of property, but for the whole of the rights and interests of the enterprises. The case for the "property ownership dispute" can not reflect the legal relationship of the parties of the dispute, the essence can not accurately reflect the contents of the two sides in the dispute.

I think this case should be "property right to confirm the identity of the shareholders and the shareholders in the company". The reasons are as follows:

(a), "the provisions of civil cases" (for Trial Implementation) "in dispute" Shareholder Class case. From 169 to 176 under the item of "stock right to request delivery disputes, equity transfer, the shareholders meeting to vote the right infringement dispute, companies the right to know the disputes, company profit distribution right dispute, the distribution of surplus property disputes, disputes resolution, company shareholders meeting of shareholders convened dispute" case, although not confirmed the identity of the shareholders and the right of shareholders in the company's property rights case, but it is closely related with the interests of shareholders. If a shareholder does not recognize, protect the rights and interests will not. Therefore, with the interests of shareholders closely related to "confirm the identity of the shareholders and the right of shareholders in the company's property right" into "the dispute" Shareholder Class as a cause of action is appropriate.

(two), the Supreme Court "on the issuance of" cause of action of civil case provisions (for Trial Implementation) "> notice that" "Regulations (Trial)" the legal relationship between the parties dispute only part lists, and the dispute parties by the court according to the specific dispute parties confirmation." Therefore, "dispute" Shareholder Class case only lists the legal relationship of the parties of the dispute, the parties should be combined with disputes to determine. The parties to the dispute is a thought; enterprise is his, that Chinese enterprises are state-owned, in accordance with the shareholder is the owner of the logic, which side is to become the real shareholder dispute, both parties are all shareholders, according to company jointly owned enterprise ownership. Only confirmed Is it right? Shareholders, in order to further confirm the company's property right. "Property rights" to confirm the identity of the shareholders and the right of shareholders in the company's case with the requirements of this.

(three), as mentioned before, prosecution "confirmation of enterprise ownership" this is wrong. His true meaning is that the rights and interests of enterprises. China's "company law" stipulates that the fourth shareholders of the company as the "investor according to the amount of capital invested companies enjoy the benefits of the assets of, making major decisions and the right to choose managers. The company formed by the investment by shareholders enjoy all legal person property rights according to law, enjoy civil rights, civil liability. The ownership of state-owned assets in the company belongs to the state". The company legal person property right belongs to the company, he cannot claim; the provisions "the ownership of state-owned assets in the company belongs to the state", the state-owned assets of assets by the state other than shareholders enjoy the ownership of the property. In this case, only to confirm the identity of the shareholders, to "as an investor in the company's capital investment, enjoy the benefits of the assets of the major decisions and the right to choose managers", but also to confirm the company's property right. But, the shareholder property rights (including the right of ownership of property) is not complete, he can only enjoy the property right of usufruct, right of possession, operation or use of the right to property rights in the form of company legal person enjoys. The right to operate a visible, also can't claim the company, management right belongs to the company, the shareholders can only through the exercise of "major decision making and selection of management" the rights of shareholders to exercise the right to operate the indirect. "Property rights" to confirm the identity of the shareholders and the right of shareholders in the company's case, not only reflects the legal relationship of the parties of the dispute, is also in line with the "company law". 

Reference

"Modern Chinese Dictionary" [1] edition in 2002, Tenth pages;

[2] "German civil law theory" on the list, "Carle" s, Wang Xiaoye et al legal publishing fifty-first pages;

[3]. [2]

[4] Weiying. "All the governance structure and principal-agent relationship" "economy studies" in 1996 ninth;

[5] Liu Shijin "nature and the logic of reform of state-owned enterprises" Chinese contained in the "economic research" in 1995 fourth;

[6] Wang Liming of "property law" Renmin University of China press in 2002 May first edition page twenty-eighth;

In January 25, 1996 the State Council of the people's Republic of China [7] promulgated by Decree No. 192nd;

[8] country state-owned asset management boardThe state owned assets supervision and administration regulations No. [1993]68;

                                          (2004.11.13)