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关于“道德银行”的实践与思考——兼对浙工大之江学院“道德银行”的个案分析/张维璋

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关于“道德银行”的实践与思考
——兼对浙工大之江学院“道德银行”的个案分析

张维璋


【内容摘要】 本文以浙江工业大学之江学院实践“道德银行”为个案,从儒家学说、伦理学、市场经济学、马克思主义道德等学说入手,用以证明“道德银行”创立的理论及实践基础,同时求证了其在具体操作上的可行性等相关命题。
【关 键 词】 道德银行 之江学院 道德伦理 功利与非功利

道德,被国人看重,也被国人遗忘。
中国有着悠远不断的道德发展史,中国人也因古老的伦理道德文化而被赞为“东方礼仪之邦”,对于道德领域的思考一直是中国儒家文化的血脉所在。老子的《道德经》的主旨就是言“道”言“德”,“道”与“德”无疑是老子哲学的核心范畴。然而,中国儒家的道德,长期被统治者当成是实现社会整合和社会教化的基本手段,以至后来,经过“独尊儒术”的形式革命和宋明理学兼容丛林法则的努力,中国的道德逐渐流变为一种单纯的社会教化手段,最后中国传统道德终于步入封建旮旯——吃人的礼教。
马克思把道德定义为“一定社会的价值规范总和”,从这一说法分析,“道德”自有其物质基础,而不单纯是精神领域的产物。因而“道德”的内涵有了拓展,外延也更加辽阔。
然而,道德在当前市场经济条件下的现状却不为乐见。首先,大多数人对于社会主义道德概念的界定也有着莫衷一是的懵懂,对于道德行为的出发点也有着“动机论”和“目的(结果)论”的差异。其次,它被排除在市场利益与条规制度之外,成为号召型的、政治性的“道德任务”与“道德政治”。再者,对于道德实施的制度性探索甚少,在理论上的支持更是不足,操作性极差。道德建设的任务艰巨且紧迫。
“道德银行”这一探索性机制的提出与实践,并以此为契机引起的争论,对于道德的重新定位及社会道德建设、对于大众提高对道德的重视都不无裨益。这也正是该实践近期引起社会关注的主要原因。
一 “道德银行”实践回顾
道德银行”在中国的产生不是突然的,追踪它的来龙去脉,或许会有助于对“道德银行”有一个更为立体的了解。
1.1“时间银行”的渊源与衍变
英国当代著名政治学者安东尼·吉登斯在《第三条道路》一书第三章《国家与公民社会》中介绍了20世纪80年代以来流行于美国和日本许多城市的“服务信用”:“参加慈善工作的志愿者可以从别的志愿者那里得到以时间为单位的‘报酬’。一套计算机系统登记着每一‘时间-货币’(time-dollar)的收支情况并且定期向参与者提供结算表。‘时间-货币’是免税的,并且可以积累起来以支付保健以及其他医疗卫生服务的费用,包括降低健康保险的成本。‘纽约时间-货币协会’正在创建一个就业机构,它将为人民提供工作、培训和获得帮助的机会。”
实际上,早在19世纪欧美空想社会主义者对未来社会的设计中,就出现过这种代替货币的劳动交换形式,比如德国社会主义者魏特林在《和谐与自由的保证》一书中所设计的“交易簿”,就用来记载劳动者的“劳动小时”以此来交换所有生活用品和服务。当然,那是空想社会中普遍的、强制性的制度,本来不具有什么道德性。事实证明,这样的制度至少在现在这个历史阶段是不可能在全民中推行的。但是,事实也证明,这样的制度在人类少数志愿群体中,在一些特定的劳动交换范围内是可以实现的。
我国的“时间银行”最早应该是由上海虹口区提篮桥街道借鉴国外的方式于1995年开设的。当时,该街道居委会创立的这种存取时间的银行,主要是针对老年人的养老办法与服务。在双方自愿的前提下,将志愿者为老人提供服务的时间累计储存起来,当志愿者进入老年或生活难以自理时,再由其他志愿者为其提供同等时间的志愿服务,用爱心和行动实现“我为人人、人人为我”的目标。“时间储蓄”以协议形式考核,居委会每月检查一次,街道半年“签证”一次。
之后,这种以社区为单位的“助老时间银行”迅速在上海市推广,并逐渐发展到太原、南京、广州、哈尔滨等地。
2001年3月5日,中国青年志愿者服务时间储蓄制度启动。将在深圳、上海、青岛等少数城市已有8000多万人次进行了40多亿小时的志愿服务的成功经验全面推广。倡导把向社会提供的无偿服务的时间“攒”起来,到年迈或失去劳动能力时可以优先享受同等时间的志愿服务。
在推广与发展的过程当中,时间银行存取的内容也不断丰富与充实。服务的对象不仅限于老年人,同时兼顾了伤残军人、困难家庭以及社会公益事业。服务范围也进一步扩大,不再限于社区生活,而迈向了社会。
“时间银行”坚持以时间为计算单位进行“劳动交换”,但它不是一种普遍的交换,不是志愿服务的人与服务对象之间具有“回报”性质的劳动交换,而是志愿者群体内部 (志愿者之间,可能是几代志愿者之间)的一种约定的生活方式。他们手中持有的所谓“特殊储蓄”,“时间币”(time-dollar),在市场上向普通的任何人是换不来任何东西的。它只是一个志愿人群中,人们相互认可的一种服务约定,是一批愿意这样生活的人们之间相互扶助、相互肯定、相互给予激励的一种方式。因此,既不存在志愿服务和服务对象之间的所谓“公平”,也不存在对道德纯洁性的损害。
1.2“道德银行”的实践与发展
2001年11月26日湖南长沙市岳麓区望月湖社区推出了第一家“道德银行”,它作为社区志愿者协会下属的一个载体,导入银行运作理念,以协会制度形式规范和保障志愿服务者可以获得社会志愿服务回报。这是全国首次提出“道德银行”的概念。  
其后,湖南株洲团市委创立的青少年“道德银行”、郑州市青年志愿者协会创办的郑州市青少年“道德银行”、苏州市沧浪区葑门街道创办的社会公益道德银行、吉林长春市朝阳区南湖社区、山东烟台莱山区万光小区等社区道德银行,如雨后春笋般拔地而起,遍地开花。
根据道德银行实践的范围与载体,大致可以分为三类:
1)社区型
指在社区活动实施、一般以社区活动为评估对象的道德银行。起源较早,目前数量较多,与传统的时间银行一脉相承,有许多类似之处。
2)校园型
指在校园内实施的道德银行制度。如浙江工业大学之江学院创办的“道德银行”就在此列。
3)其他类型
指其他渠道或载体创办的、服务对象不特定的“道德银行”。如星辰在线网站开辟了“网上道德银行”专题,以网络为载体开展道德银行活动等。
“道德银行”与“时间银行”有一定联系,却又有自身的特点:
(1)更加制度化和强调监督机制。根据《郑州市青少年道德银行管理办法》规定:储户每年至少保证存入48小时志愿服务时间,接受有关协会的指派提供相应的、力所能及的志愿服务;其服务对象是需要获得帮助的社会低收入群体和公益项目,以及提供了志愿服务的志愿服务者;志愿者的服务时间由银行、被服务者、志愿者三方共同认可,在储蓄卡上作记录,方可存入道德银行……
(2)服务项目更加丰富众多。 苏州市沧浪区葑门街道的社会公益道德银行经营的主要项目是家政、家教服务、医疗服务、技术服务、公益活动(帮老助残、植绿护绿、科技、卫生等)、帮困服务和确认的其他业务项目。明显多于时间银行。
(3)进一步确认道德的回报机制,将道德权利与道德义务统一起来。认为道德主体在履行了一定的道德义务之后,客观上应该给予相应的回报,“道德银行”就是为这种公正的奉献与回报提供保障。
(4)导入道德评价因素,不在纯粹以时间为计算单位。一些道德银行引入了道德评价体系,不同行为被赋役不同分值。浙江工业大学之江学院道德银行则采用了“道德币”的形式。
不管是时间银行或是道德银行,自身的发展都随着社会生产力的不断进步,社会文明的前进而发生着变化。我们必须不断的深入相关的理论研究,迎头赶上不断更新的道德变化至关重要。
二 “道德银行”概念及相关涵义诠释
对“道德银行”的讨论,首先当然要对其内涵与外延有一个清晰的界定,同时理清道德与伦理、经济学等相关学科之间的依存影响关系;再在道德的纵向发展上,对儒家思想及当前的道德体制现状作一个简单的涂描,以利于整个脉络的继承与明晰。
2.1道德的涵义
《现代汉语词典》(第3版修订本)对于道德(morality)词条的解释是“意识形态之一,是人们共同生活及其行为的准则和规范。道德通过社会的或一定阶级的舆论对社会生活起约束作用。”当然,这只是一个较为笼统正式的定义。
在原始社会中,某些习俗以及行为方式,逐渐被认为要比其他的习俗和行为方式更为重要,原因在于这些习俗和行为方式直接影响到该部落全体成员的生命和幸福,或者因为它们间接影响到该部落的安全、食物供应和全体成员的舒适问题。在大多数社会中,“说实话”和“不撒谎”,“信守诺言”和“不违背诺言”,“对他人不要残忍”,“保护老弱病残”,“尊敬父母”等等行为,都已经形成为习惯,而且是普遍的习惯,它们就渐渐被视作不仅仅是简单的风俗习惯,而且是道德。
道德一词在汉文中最早是分开使用的。中国商朝的甲骨文中已有“德”字。西周初年的大盂鼎铭文的“德”字,是按礼法行事有所得的意思。《老子》一书中有“是以万物莫不尊道而贵德”的命题。在《荀子·劝学》中“道”与“德”二字始连用,“故学至乎礼而止矣。夫是之谓道德之极”。中国古代的道德概念,即包含道德规范,也包含个人品性修养之义。
在中国古代,道德是人们互谅互让的一个主动协调方式,是人们为实现整体利益和长远利益而协调的唯一现实道路。正是在这个意义上,中国儒家把家庭伦理作为一个具有普遍意义的隐喻:代表的是个人生存状况不仅是取决于单纯物质利益的实现,而且更在于非物质利益的到位,人与人之间的真诚关怀也是人生幸福不可或缺的。道德要求的“利群和利他”不是一种个人物质利益的无意义牺牲,而是实现整体利益和长远利益不可回避唯一理性选择,个人生存状况的改善,有赖于整体利益和长远利益的良好实现。
马克思主义的唯物史观,正确地揭示了道德的真正起源,认为道德是在人类社会的一定生产方式或经济关系中产生的,它受着人们的物质生活条件也就是经济关系的制约,并随着社会经济关系的变革而发生变化。这个定义强调了“道德”最重要的两个特点:1、道德主要是规范,是义务,是约束性的,协调性的;2、道德是调整人与他人,个人与社会之间关系的规范,而不是自我安身立命的追求。虽然价值与义务很有关系,但我们要谨慎地使价值不直接混同于道德义务。不过,上述定义也有一些问题:它没有使“道德”与法律、与习俗明确区别开来,说“总和”也有些不妥,因此,我们不如把它调整为:“道德是有关善恶正邪的,调整人与他人及个人与社会之间关系的行为规范的体系。”现在有这一定义我们也就足敷应用。
历史上的道德相比,现代社会的道德接近于是一个最小的同心圆。这一“道德底线”也可以说是社会的基准线,水平线。法律最终是必须以道德正义为根基的,法律要得以顺利实行也必须依赖于人们道德观念的支持,何况还有许多在法律之外、却仍然是社会之内的问题。生活在一个共同体内的人们必须在这些基本问题上达成基本的道德共识,否则,谁都不会生活得舒服,人们会感到在互相妨碍,互相掣肘,于是就会有高尚者的逃避(虽然这越来越难),和卑鄙者的横行,甚至老实人也铤而走险。
普遍主义的道德要行之有效是需要建立在人们的共识基础上的,现代平等多元化的社会则使人们趋向于形成一个最小的共识圈。正是在这个意义上,我们会谈论乃至赞同今天道德规范的内容几乎就接近于法律,遵守法律几乎就等同于遵守道德。


The SOE reform in China
Zhou Dayong
Summer semester 2003
Europa-University Viadrina,Germany

Abstract:
The essay tries to study the process of the state-owned enterprise (SOE) reform in China. Chinese economic reform resulted in significant influences on all social aspects, SOEs as an especially economic sector suffers a change both in internal management as well in the outside economic environment. I try to discuss in the essay, that the Chinese SOE reform has made large progress, however, SOE can’t conquer many problems by itself, the resolution of SOE lies in elimination of SOE by a further reform including property transition and construction of a fairer market.


Outline
1. History of the SOE reform in China
2. The main problems left in the reform
3. The reasons of SOE problem behind
4. Argue of some reform plans and suggestion
5. Conclusion


1. The history of the SOEs reform in China
1.1 the establishment of SOE
In 1949, the Chinese Communist Party (CCP) came into power in Mainland China. One goal of the CCP was to lead China into a modern socialism society. In economic scale, it meant mainly industrialization. According to CCP’s policy, the form of industrial organization must be based upon state owned enterprises. The state-owned industrial system was set up by two ways. One was the new enterprise after the liberation. At the end WWII, most industrial sectors in China, such as communication network, transportation and power industry were destroyed and had to be rebuilt, at the same time, military industries and financial sector e.g. banking system was directly nationalized from the former control of Gongmin Party. Another way was transformation from the private ownership to state-owned enterprises. The private properties were regulated under state management, in some cases, for instance in commercial scale, the former private enterprises were bought by local government gradually. Till 1952, about 83% of industrial companies were controlled by the state; a socialism economic system was announced established. (Fig 1)
1.2 The reform began from 1978
Until Chinese economic reform began in 1978, public ownership in forms of state-owned and collectivized were only legal ownership of property. In industrial sector, the enterprises were controlled respectively under central or local governments, the latter made decisions for the enterprises, the enterprises were not profit seeking economic entities, they were simply workshops to execute centrally set policies.
In 1970s, the discontent of economic situation accumulated constantly, because the defects of central planning system became obviously more and more. Around 1978, the rural reform took place from grass roots and spread quickly, till 1982, the collectivized people commune had to be abolished. In company with the reform, the free market in a certain degree was developed. At the same time, the problem of lack of autonomy in SOE, which led to low efficiency, was also taken into account. Therefore, from 1978 on, the Communist Party, under the leading of Deng Xiaoping, put hand to solve the SOE problem. From 1978 to 1984, the efforts of the reform concentrated on giving the SOEs more autonomy by allowing them increased authority over the allocation of their profits, and limited production autonomy. The rest profits could be used either to finance increased investments or to pay bonuses to employees. Besides, administrative control over SOEs was decentralized to local governments. But as the prices were still centrally determined and SOEs did not realize the cost of their fixed and working capital, the reforms did not improve much the resource allocation or the utilization of capital. (1)

1.3 Contract is the main form in the second phase.
From 1985 to 1992 was the second phase of the SOE reform. The policy named Zhenqi Fenkai (separating government from enterprises), the central government decided to turn SOEs into truly independent production and management entities, and stipulate that enterprises must take responsibilities for their own profits and losses by means of contracts and leasing. The common practice was: the enterprises sign a manage contract with the responsible authorities. Under the contract, enterprises were not only allowed to retain the extra profits after they had fulfilled the contracted quotas, but also allowed to arrange their own manage including dismiss or enroll personnel. By the end of 1987, about 80% of state-owned industrial enterprises adopted the contracts system. In 1991, over 90% of the previously contracted enterprises signed the second round of contracts. Meanwhile, based on the first round contract practice, the content of the contract was improved; the authority introduced more rational norms to examine the fulfillment of contract. A multiple index system was formed, which included economic efficiency index, development potentiality index and management index etc.
During this period, the practice of shareholding reform appeared as well. This new creature was adopted at first by village enterprises, which come from the former collective enterprises. The village enterprises were always short of capital, so they raised money from the village residents. Along with the reform moved forward from countryside to cities, the shareholding system was also introduced into SOE reform. Early in April 1984 Chinese reform committee organized a seminar to discuss the exploitation of shareholding in SOE reform. That conference drew a conclusion that shareholding system is a rational way to restructure the collective and state owned enterprises in cities. In July the same year, the first shareholding company after Chinese liberation—Beijing Tianqiao department store (shareholding) came onto horizon. Till 1991, there were already 709 state owned enterprises restructured along shareholding system. These enterprises included industrial sector companies, trade companies, also financial enterprises, construction enterprises etc.
Besides, in the second phase of SOE reform, tax system had also a great change. Instead of handing in profit, SOEs paid a certain portion of tax according to their revenue level. The State and local government collected tax separately; this measure was implemented to loose the relation between SOE and local authority.
However, during this period, the SOEs showed their weakness in competition with the new developed private companies, joint venture companies and township and village enterprises, because at one side, the manager of SOEs didn’t get use to do business in a free market, the attitude of waiting, relying on government and begging for help were widespread. At another side, the relationship between government and enterprises became more complicated, because, although under the contract system, the government have no right to interfere in the SOEs management, they still rely on each other: the government need the SOE to have good performance in order to settle surplus labor forces and continue to play a role in maintain the social stability, at the same time, to increase the government’s revenue to deal with the raising infrastructure investment and other expense. The SOE, on the other side, need the protection of the authority, in order to obtain more chance to get loans, subsidizes or orders in government arranged projects. Besides, even though most of direct subsidies form the state have been cancelled, many domestic savings were also channeled into SOEs, because banks had been directed to take up the role of making "loans" to SOEs instead of the state. The total of non-performing loans has grown so large that it started to endanger the banking system. (2)

1.4 The MES is the key point in the third phase of the reform and the achievements
Form 1993 on, the reform moved into the third phase, the aim called setting up the modern enterprises system (MES). The Third Plenary Session of the 14th Party Central Committee in November 1993 proposed: "It is the inevitable request for market economy to set up modern enterprise system, it is a direction of the SOE reform of China. "This indicates that SOE reform enters a new stage of system innovation. In 1994 the State Council determined to chose 100 state-run large and medium-sized enterprises to launch an experiment to implement restructure along MES. The basic demands of the experiment were to "define right and responsibility clearly, separate government function from enterprise management, and operate scientifically”. Those requirements were in fact the basic characters concerning modern enterprises system. Along the policy of building MES system, and based upon the development of the whole economy, there were many achievements reached in the third phase.
1) By 2000, most large and middle scale SOEs have set up modern enterprise system tentatively. According to the investigation in 2473 enterprises of State Statistics Bureau 2000, 2016 enterprises have restructured, account 81.5%. Among those enterprises, 603 turned to Co., Ltd., accounts for 29.9%; 713 were restructured to limited companies, accounts for 35.4%; the number of solely state-owned company is 700, accounts for 34.7%. As for their management, 82.2% established shareholders’ meeting, 95.1% established the board of directors, and the board of supervisors has been established in 84.5% of enterprises. Therefore, corporate governance structure has already taken shape in SOEs.
2) In this phase, during" the Ninth Five-Year Plan", China began to adjust the state-run economic layout strategically, The idea called Zhuada Fangxiao (to grab the big ones and let the small ones go). The reform for medium and large SOEs focused on fostering a batch of trans-regional, inter-trade, inter-ownership big SOE groups through reorganizing, transforming, uniting annex. In 1997, the number of national large-scale enterprise groups expands to 120. For instance, under approval by the State Council, China Petrochemical Corporation, China Oil and Natural Gas Corporation were predominated to two large groups, whose assets of enterprise group reached in 40 billion dollars, such measure improved the intensification degree and international competitiveness of Chinese petrochemical industry greatly. Another example was in telecommunication market, six major SOE telecom groups (China Telecom, China Mobile, China Unicom, China satellite communication, China railway communication) were predominated. So a new form of competition in field of communication service took shape.
By the end of 2001, national key enterprises add up to 2710, total assets up to 1,280,450 million dollar. Among 179 super-huge enterprise groups, whose business income is over 500 million dollar, there are 165 state-owned or state-holding enterprise groups.
3) During this phase, separating government function from enterprise management was strengthened harder than before. Chinese government started administrative organization structure reform in 1998. Through this administrative restructure, the departments of the State Council reduced from 40 to 29. At provincial level, government departments reduced from 55 on average to 40, about 20% departments were simply. Some departments were cancelled totally. The cancellation of government departments indicated that the SOE stay in the charge of specialized official department manages changed completely. Meanwhile, the administration rank of the state-owned enterprise were cancelled, some administrative approval procedure were simplified.
4) To relieve the social burden of SOEs, re-employment service center were set up to shunt the redundant staff of enterprises. It has been a great difficult problem of the SOE reform from begin on that enterprises are overstaffed. It is an important measure of revitalizing the SOEs to dismiss and distribute workers. In June 1998, the state council required all regions to set up re-employment service center system. National Ministry of Labor and Social Security emphasized that the laid-off worker in SOEs must 100% enter the re-employment service center. The re-employment service center determined to provide serve functions such as grant basic living cost, withhold social insurance, organize job training and launch employment etc. for laid-off worker. The fund, which used for ensuring laid-off worker's basic life and paying the social insurance premium, come from financial budget, enterprise as well as societies (namely form contribution or from laid-off worker themselves), each part bears 1/3 of the whole fund. The re-employment service center provides service for laid-off workers for at longest 3 years. When they can’t reemploy after this period, can still enjoy unemployment compensation or the society relieve according to relevant regulation.
In this reform stage, re-employment service center played a positive role on maintain social stability. From 1998 to the end of 2001, 25,500,000 laid-off workers emerged (Fig 3) in national state-owned enterprises, among them more than 17 million people were reemployed, more than 3 million people retired. However, re-employment service center was only a transitional institute, because the SOE had to still take responsibility to settle down those laid off workers. According to a new policy, all laid-off workers after 2001 are treat as unemployed and have to enter free labor force market.
5) In order to extricate SOE from predicament, especially to resolve the problem of high liability-asset ratio, by December 2000, 580 SOEs began to implement debt-to-share swap, that mean the enterprises’ debt were recalculated as share (enterprises’ equity), so that the interest burden of SOEs were lightened. In the process, most of unperformed loans would be calculated as shares, which would be gathered and supervised by a new state commission-- State-owned Assets Supervision and Administration Commission (SASAC). Till 2001, the total amount of money of debt-to-equity swap account 40,5 billion dollars, and the result was that the average asset-liability ratio of debt-to-share swapped enterprises dropped from more than 70% to under 50%.

2. The main problems left in the reform
After three steps reform, the SOE acquired more autonomy, as we have seen, the whole economic circumstance were also better. But because the reform did not touch the socialism idea from begin on, thus the transition of ownership of SOE was left basically unchanged, the defects of SOE could not changed completely. In the context of China’s economic reforms, there are still a few problems in SOE sector existed and have also a deep influence.
First of all, the interventions from the government still maintained influence in SOE. The administrative relation between enterprise and government is still remaining. Even the Local State Assets management office was established, it belong to the same bureaucratic system like former authorities. It can appoint or remove senior executives of SOEs. If enterprise applies to the broad structure, the directors in broad are appointed by it. The office has also a say in the transfer of holdings, corporate mergers, closures or other major changes to the enterprises, it is also charged with the tasks of clarifying property rights and settling disputes (3) . It seemed that the state assets supervisory takes the place of former authority above the SOEs. Moreover, the local government maintains still strong power in local enterprise, they rely on each other as we discussed above. So long as the enterprises are state-owned, whether they are big groups, stock companies or little entities, it is difficult to shaking off the directly or indirectly control from the government.
Secondly, because of the long tradition, enterprises are still taking responsibilities for their employees in pension, medical areas, therefore the so-called “soft budget constraint” cannot be given up completely. Although we have discussed that the Chinese government has managed to start re-employment plan, SOEs also take a part of the fund to support the plan. Correspondenly, government had to shoulder some failures resulted from the mismanagement of SOEs’ and avoid from their bankruptcy, in order to prevent the enterprise from bankrupcy and thus endanger the social stability.
Thirdly, the management of SOEs has low quality compare with other economic sectors. Though SOEs have produced an average 10% growth rate in the value of industrial output during the period 1978-98, this rate is considerably below the average of other sectors. The problem has two reasons. One of them is lacking of the inner incentive of the managers. The SOE managers are not entrepreneurs in the true sense, but bureaucrats at any rate. Their appointment by the government not basically according to their managerial capability, but based on their rankings in the bureaucratic hierarchy through the politic system. Another factor concerns the supervision within the SOE, it is also lacking in most cases. In practice, the position of supervisor in a enterprise is normally taken by staff within the enterprise and in most cases, the position of president of the supervision committee is taken by somebody within the enterprise, who is under the leadership of the directors and managers in his ranks both at work and in the Party. This system makes it very hard for the supervision committee to fully perform its authority (4) .
Fourth, the high liability-asset ratio is also regarded as a fatal problem of SOEs. It was observed, that during the reform period, the liability-asset ratio of industrial SOEs rose from around 11% in 1978 to approximately 65% in 1997. In as many as one-fourth of industrial SOEs, liabilities have even come to exceed assets; these enterprises are in fact insolvent. The World Bank suggests that in debt restructuring may be necessary for the most heavily indebted enterprises to bankrupt. After the implement of debt-to-share swap, the ratio decreased, but the debtor, in most cases are banks, didn’t collect the loan back, so it made the SOE even harder to get new loan for production. (5)
Furthermore, the whole process of the SOE reform companied by a serials of social problems, in compare to some difficulties such as lack or reserve labor force, ageing of the equipments, the most troublesome is the unemployment in large scales. In addition, in rural areas, millions of flowing population has been produced because of the bankruptcy and low profitability of the township and village enterprise. In urban China there are frequent reports about workers’ unrest. Although until now China still maintain a relative political stability, the menace will not fade away in a short time.

一、在行政诉讼中,证据的证明标准尚无法律规定,在审判实践中如何把握,是一个值得探索的问题。探索诉讼证明标准的高低,原则上取决于被诉具体行政行为对原告权益影响的程度。
法官在证据审查中需要具备的能力,主要是对最高人民法院制定的《行政证据规定》的具体运用能力。
举证期限,是法律、法规和司法解释以及审理法官对当事人向法庭提交证据材料的时间要求和限制。行政诉讼中,规范举证期限的主要依据是《行政诉讼法》和最高法院的司法解释,被规范的当事人首先是被告,其次才是原告和第三人。
对被告举证期限的规定,主要是《行政诉讼法》第四十三条规定,被告应当在收到起诉状副本之日起十日内向人民法院提交作出具体行政行为的有关材料,并提交答辩状。《行政诉讼法解释》第二十六条规定明确,被告在收到起诉状副本之日起十日内,不提供或者无正当理由逾期提供的,应当认定该具体行政行为没有证据、依据。《行政证据规定》第一条明确,未经申请和批准,逾期提供的,视为被诉行政行为没有相应的证据。应注意在程序上把握好。
对原告和第三人举证期限,《行政诉讼法》和司法解释未作具体规定,但《行政证据规定》第七条明确,应当在开庭审理前或者法院指定的交换证据之日提供;因正当事由经申请和批准可在法庭调查中提供;逾期提供的视为放弃举证权利。一审中无正当理由未提供而在二审中提供的,不予接纳。
由此可见,行政诉讼中举证责任的行为责任和结果责任可以分离,原告和第三人主要承担行为责任《行政证据规定》,被告则既要承担行为责任也要承担结果责任。
二、行政证据的证明标准

证明标准是负担证明责任的人提供证据对案件事实加以证明所要达到的程度。当事人提供的证据达到了证明标准,当事人便履行完了他的证明标准。
英美法系不同的诉讼法实行不同的证明标准。在英美刑事诉讼中适用的是排除合理怀疑的证明标准我国适用一元制证明标准。统一性是我国证明标准制度的一大特点。我国三大诉讼法所规定的证明标准是一致的,都强调案件事实清楚,证据确实充分,因此可以说我国实行的是一元化的证明标准。
在行政诉讼中,证据的证明标准尚无法律规定,在审判实践中如何把握,是一个值得探索的问题。探索诉讼证明标准的高低,原则上取决于被诉具体行政行为对原告权益影响的程度。
法官在证据审查中需要具备的能力,主要是对最高人民法院制定的《行政证据规定》的具体运用能力。

作者:北安法院 杨亚新