Prison enterprises are special enterprises that meet the needs of criminals' labor reform and have their own particularity. Prison enterprises are also social commodity production and business units, which have the basic conditions of enterprises in content and form and have the general nature of enterprises. Particularity cannot deny generality. To study prison enterprises, we must first affirm the general nature of their enterprises.

(1) Prison enterprise is the most suitable organizational form for the prison system in China to organize criminals to carry out labor reform. On the one hand, it is the most suitable form of production organization. "The productive labor of criminals is not ineffective labor, but products and interests that create material wealth for society. To organize production, there will be planned management, production management, technical management, material supply, product sales and other activities, and these are the contents of enterprise management. " Therefore, "prison production has the commonality of general social production and must also be included in the scope of enterprise management. "As early as the early days of the founding of People's Republic of China (PRC), the criminal production in China has adopted the organizational form of enterprises. In the resolution 1952 of the first national conference on reform-through-labour work, it was clearly pointed out: "Reform-through-labour production is a policy to transform criminals into new people politically, and it is a special enterprise with the nature of state-owned economy economically. "Under the conditions of socialist market economy, prison production is more closely integrated with social needs. In the face of increasingly fierce market competition, only by adopting a more suitable enterprise organization form can we survive and develop better. On the other hand, prison enterprises are the most suitable organizational form for prisoners' labor reform. Prison enterprises organically combine the labor of reforming criminals with the labor of creating value, and provide productive, open and socialized jobs for criminals, so that they can learn useful skills, get paid for their labor, experience the hardships and gains of labor, accept the system and management constraints of enterprises, feel the socialized working environment at all times, and realize the socialization of their labor through product sales. Making criminals obey legal control and often accept various social norms is not only the object of supervision and reform, but also the role of social producers, which is more suitable for criminals to change their bad habits, update their concepts and become useful talents in a self-reliant society.

(2) The nature and objective existence of prison enterprises cannot be denied because of the current compound existence of prison and enterprises. Prison enterprises are essentially different from prisons in organization and management, which cannot be replaced by prisons. On June 5438+0997+1 October1,the Ministry of Finance formulated and implemented the Prison Finance System and the Prison Accounting System, which clearly distinguished the assets, finance and accounting work between prisons and enterprises. The Explanation on Formulating (Prison Financial System) and (Prison Accounting System) issued by the Ministry of Finance clearly points out that prisons and prison production and business units in China belong to different subjects, prisons are state-owned enterprises with special nature, which embodies dictatorship, while prison production and business units are places for organizing criminals to carry out productive labor and reform. "And pointed out:" Prison production and business units should implement enterprise management in finance, and implement the general principles of enterprise finance, accounting standards for enterprises and industry financial accounting systems. "1 February, 19971day, the Ministry of Finance, the State Administration of State-owned Assets and the Ministry of Justice jointly issued the Notice on Relevant Provisions on the Division of Prison Assets. Article 1 stipulates that prison assets are divided into regulatory assets and production and operation assets, and the two parts of assets are managed respectively according to the asset management measures of administrative units and enterprises. This shows that prison enterprises have their own independent assets and independent financial management and accounting work, which is an important condition for them as enterprises.

(3) Prison enterprises, as enterprises, have complete factors of production, and mainly work for criminals, which meets the basic conditions of enterprises. Criminals, especially those who have the ability to work, are special workers under special circumstances. They will not be disqualified from work because they are put in prison. Article 69 of the Prison Law stipulates: "Criminals who have the ability to work must take part in labor." Therefore, criminals in the whole country have formed a huge labor force resource, which is not in line with reality and Marxist viewpoint of productive forces without reasonable organization and utilization. Prison enterprises take criminals as the basic producers, and in fact they are special laborers employed in special forms. In prison enterprises, the combination with the criminal labor force is "the production facilities and production funds necessary for the state to provide criminal labor", thus gathering basic production factors in a legal way and form, forming realistic productivity through enterprise management, providing valuable products and services for the society, sharing certain difficulties for the country, which is more in line with the original intention of the state to organize criminal production labor, and is also the prison enterprise as a society.

(4) The nature of prison enterprises cannot be denied just because it is difficult for prison enterprises to obtain completely independent status. Judging from the degree of autonomy of prison enterprises, prison enterprises are not completely autonomous, and even can never become completely independent enterprises just because they have to accept the labor of criminals-people often demand that prison enterprises be reformed into independent market entities from the rules of market economy, but it seems that if they are not, prison enterprises are not enterprises. In fact, among the various types and properties of enterprises studied by many enterprise management scientists, the existence of some independent enterprises is not excluded. For example, Dr. Schwiertz, a German enterprise management scientist, also defined an enterprise as "the basic social unit within L" and pointed out: "The degree of autonomy of an enterprise may vary with different types of enterprises." He said: "Under the condition of market economy, there are many interdependent relationships among enterprises, industries and industries, and the freedom of enterprises is restricted by other units and society. Although enterprises still maintain their independence in law, in fact, enterprises are losing their independence step by step while increasing their independent decision-making power. " Therefore, Dr. Schwiertz pointed out: "This does not rule out that under special circumstances, the state can compensate enterprises for their risk losses through subsidies." Prison enterprises must take criminals as the labor force, must be interfered or controlled by prisons and their competent departments, and even cannot freely choose the market, thus losing some independence. At the same time, prison enterprises also enjoy various preferential policies such as national and government budget allocations, low-interest or discount loans from banks, and value-added tax, which proves that prison enterprises are not completely independent special enterprises.

Second, the special public enterprise nature of prison enterprises

Prison enterprises are not ordinary state-owned enterprises. Prison is the penalty executing organ of the country and the tool of people's democratic dictatorship. The nature of prison enterprises is closely related to the nature of prisons. The competent department of prison enterprises is the prison management institutions of the central government and provinces, autonomous regions and municipalities directly under the central government, and its investment subject is the state. Therefore, prison enterprises are invested by the government and belong to the government, not state-owned enterprises owned by the whole people. According to international practice, they should be characterized as public enterprises.

(1) What's the difference between state-owned enterprises and public enterprises?

First, state-owned enterprises exist only in socialist countries, and public enterprises exist in all countries. In China, the specific meaning of state-owned enterprises is enterprises owned by the whole people, public-owned economic organizations owned by the state on behalf of all the people, and the foundation of the socialist system. Public enterprises are also called government enterprises. In 1980, the European Community defines public enterprises as enterprises over which the government can exert direct or indirect dominant influence by virtue of its ownership, controlling interest or management regulations. Strictly speaking, in non-socialist countries, enterprises funded by the government are called public enterprises, not state-owned enterprises. Capitalist countries have only public enterprises, while socialist countries have both state-owned enterprises, that is, enterprises jointly owned by the state, that is, the central government on behalf of the whole people, and public enterprises funded by governments at all levels. Therefore, public-owned industries are shared by all countries in the world, while state-owned industries are only available in socialist countries, which is a feature of socialism. China has always brought the public enterprises that should be independent into the scope of state-owned enterprises, which is a prominent manifestation of unclear property rights.

Second, the establishment of state-owned enterprises is mainly in competitive industries, and the establishment of public enterprises is mainly in non-competitive industries. The key to the reform of state-owned enterprises is to make them competitive in the market, and not participating in competition is not the reform requirement of state-owned enterprises. If state-owned enterprises are forced to withdraw from the market, it means that this form of public ownership economy can not be integrated with the real market economy in the end. If state-owned enterprises are required to withdraw from the competitive field, it is actually equivalent to canceling the existence of state-owned enterprises as an organizational form and confusing them with public enterprises. Only for the purpose of government regulation of economy or public welfare, will public enterprises withdraw from the competitive field and develop only in non-competitive industries.

Third, the reform of state-owned enterprises requires the separation of government and enterprise, and the basic nature of public enterprises is the separation of government and enterprise. Public enterprises are enterprises directly controlled by the government. Due to the adjustment of particularity, the market positioning is a special legal person. In Japan, the government established a public enterprise, and at the same time formulated a law specifically applicable to this enterprise, and clearly stipulated the government's control over the enterprise in the law, especially stipulated that the government directly appointed the main * * * of the enterprise. The difference between government and enterprise is public enterprise, and the public plays the role of government, which obviously enters the enterprise. The purpose of state-owned enterprise reform is to make enterprises become independent commodity producers and operators and cut off the direct control of the government on enterprises.

Fourth, the ownership of state-owned enterprises only belongs to the central government representing the country, while the ownership of public enterprises is in the hands of governments at all levels. Public enterprises are divided into central public enterprises and local public enterprises. Central public enterprises are enterprises funded by the central government, and local public enterprises are enterprises funded by local governments. Although state-owned enterprises are distributed in various places, local governments have no ownership, only the agency property rights authorized by the central government. The capital source of state-owned enterprises is mainly the accumulation of state-owned enterprises themselves, or it can be a clear additional investment made by the central government to represent the interests of the whole people, while the capital of public enterprises is the direct appropriation of finance at all levels.

(2) Why should prison enterprises be defined as public enterprises?

First, the funds of prison enterprises are financial allocations from governments at all levels. The ownership of enterprises belongs to the government rather than the whole people, which is determined by the legal guarantee system of prison production in China. Paragraph 2 of Article 8 of the Prison Law stipulates that the state provides necessary production facilities and production funds for prisoners' labor. This shows that the main body of prison production is the state. Because China's prisons are managed at the central and provincial levels, and the management system is based on provincial management, the country mentioned here refers to the central people's government-the State Council and provincial local people's governments ". Article 3 of the State Council's Notice on Further Strengthening Prison Management and Reeducation through Labor stipulates that the productive capital construction investment and technical transformation investment of prisons and reeducation through labor institutions should be included in the central and local fixed assets investment plans, and separate accounting should be gradually increased according to the financial situation. The two investments allocated by the central government to various localities should be arranged according to the local financial situation. This shows that the investment of prison enterprises is carried out by the central and local governments in accordance with laws and national policies, and most of them are provincial-level financial investments, according to who contributes. It is essentially different from the state-owned enterprises owned by the whole people representing the central government, but it has the same attribute as other government-owned enterprises, that is, the attribute of government power. So it is a public enterprise.

Second, prison enterprises are established to provide places and means for reforming criminals, and their special political goals determine that prison enterprises are not only owned by the government, but also directly controlled by the government. Prison enterprises and prisons are accompanied by the development of supervision reform in China. It can be said that they are all machines that supervise the reform in China, and they are all under the prison administration under the judicial departments of provinces, autonomous regions and municipalities directly under the Central Government. When the financial accounting work of prison enterprises is separated from prison assets, although prison enterprises have independent property and independent accounting, their production, operation and management are inevitably controlled by prison administration and prison levels. On the one hand, prisons should exercise major control rights on behalf of the government, that is, prison administration, such as the use of labor force in prison enterprises, the choice of business areas, and the use of cadres. On the other hand, it is more necessary and direct for the people's police to supervise the criminal production process. In addition, prison enterprises must be directly or indirectly controlled by the prison administration in terms of capital increase and share expansion, major adjustment of management structure and major appointments, which not only reflects the essential requirements of prison enterprises, but also shows that they have the essential characteristics of public enterprises.

Thirdly, based on the above understanding of prison enterprises, prison enterprises can be redefined as: prison enterprises are public enterprises invested and controlled by the government for the needs of criminal labor reform. After entering the market economy, prison enterprises suffered large-scale losses and faced with survival crisis, which just reflected the maladjustment of prison enterprises in the field of competition, which was the main drawback of public enterprises.

Thirdly, the significance of defining the enterprise nature and public utility nature of prison enterprises.

(1) Prison enterprise is an enterprise's understanding, which can make us clear the obstacles in understanding and concept, proceed from the reality of prison enterprise and firmly embark on the road of enterprise management. For a long time, many prison enterprise managers started from the particularity of prison enterprises, doubted and denied the enterprise nature of prison enterprises, complained about the existence of prison enterprises, lost the initiative and enthusiasm of their work, and affected the management level of prison enterprises. Facing the objective existence of prison enterprises, only by making realistic choices can we get rid of the passive situation.

(2) Defining prison enterprises as public enterprises has strategic guiding significance for the reform and development of prison enterprises.

First, the reform of prison enterprises should take clear property rights as a breakthrough. According to China's provincial-level management system, most prison enterprises are invested by local governments. The key to the reform of the property right system of prison enterprises is to separate prison enterprises from the current state-owned enterprises, make their property rights clearly owned by their own governments, and restore their true colors as public enterprises. The local government can mainly exercise the ownership of prison enterprises by the prison administration, and directly dispose and operate prison enterprises as owners, instead of acting as the central government and being the owner of state-owned assets, thus improving the management enthusiasm of local governments.

Second, it helps us to re-understand and grasp the reform of separating supervision from enterprises. On the one hand, the reform of prison enterprises into independent enterprises is not the essential requirement of public enterprises; On the other hand, under the control of the Prison Administration, for the management of prison enterprises, it is necessary to implement a moderate separation between prisons and enterprises, that is, according to the requirements of the Prison Financial Accounting System and the Notice on the Relevant Provisions on the Division of Prison Assets, prisons and prison enterprises are relatively separated in terms of assets, finance and personnel, making prison enterprises relatively independent.

Third, it will help us to re-select and adjust the business areas of prison enterprises. According to the characteristics of public enterprises and the practice that public enterprises in various countries mainly focus on non-competitive fields, as well as the particularity of prison enterprises, in the future, most prison enterprises will gradually adjust to non-competitive fields, except for a few prison enterprises that are currently operating well, and their industrial fields should choose the fields that are most suitable for them. In this regard, the state should have macro policies and local governments should have long-term plans. Combined with the needs of local social and economic development, some public utilities and infrastructure industries can be entrusted to prison enterprises, which can not only play the role of prison enterprises, but also reduce the losses of prison enterprises.

Fourthly, prison enterprises are special cases of enterprises and public enterprises. The central and local governments should formulate special laws or regulations on prison enterprises to restrict the operation of prison enterprises and protect their legitimate rights and interests. In addition, local governments should invest and support prison enterprises in a planned way according to the Prison Law, and implement an investment guarantee system. I believe that through the good control and management of governments at all levels, we will certainly accomplish certain economic tasks while completing the task of reforming criminals through labor.

Fourth, the necessity of prison enterprise legislation

Prison enterprises have become a special market subject, different from ordinary enterprises, which is certain. Of course, other types of enterprise laws cannot be directly applied. Can it be applied to the Law on Township Enterprises? Can't! Can the foreign-invested enterprise law be applied? Can't! Can the company law be fully applied? Can't! Can prison enterprises develop at will without applying any laws and regulations? Even less! Therefore, the legislation of prison enterprises should be necessary and urgent! The necessity of legislation on prison enterprises mainly includes the following points:

First, China's prison law does not make corresponding provisions for prison enterprises. Since the 1990s, the pace of legislation in China has obviously accelerated, and legislation in various fields has surged. The prison law was also promulgated under this historical background. The promulgation of the prison law marks that China's prison industry has gradually embarked on the road of legalization, and the pattern of holding criminals by policy in the past is gradually changing to holding criminals according to law. However, after all, the reform of criminals through labor involves how criminals work and how to deliver the fruits of their labor. There is no explicit provision in the prison law, which means that the prison economy is neglected by the prison legislation.

Second, prison enterprises in China have no legal basis. Without the application of the general enterprise law, China's prison enterprises are almost in a state of no legal basis. The internal organization and management of enterprises, the relationship between enterprises and prisons, the relationship between enterprises and countries, and the relationship between enterprises and society are all in a disorderly state without legal regulation. The boss of the prison enterprise is the warden, who is not only a national civil servant, but also the owner of the enterprise and a real red-topped businessman. To a certain extent, these red top businessmen have party discipline but no national laws, which is very easy to breed corruption. Because there is no legal basis, no statutory national preferential policies and preferential policies, some enterprises with inadequate policies may face difficulties; However, the prison enterprises that made the first bucket of gold in the market lack the legal proportion of payment and the channels for using profits. Once the enterprises make profits, they will pay wages and bonuses indiscriminately, resulting in the loss of state-owned assets; Once the benefit is slightly worse, the wages of prison enterprise employees will plummet.

Third, it is impossible to grasp the reasonable division of labor between prisons and prison enterprises. The function of holding criminals in prison is different from that of reforming criminals in prison enterprises. On the one hand, the confusion of prisons and prison enterprises is the confusion of personnel; On the other hand, it is functional confusion. At present, in many local prison enterprises, most of their managers, especially middle and senior managers, are prison people's policemen, or "amphibians" who are responsible for production and operation. They bring the methods of supervising prisoners into enterprise management, and even manage ordinary employees in the same way; In foreign relations, people often wear police uniforms to sign contracts. The so-called functional confusion refers to the fact that prison enterprises have essentially undertaken the detention task in the process of reforming criminals, which is the key point for criminals to often flee and escape punishment in recent years. The above reasons should be sufficient for the drafting of the Prison Enterprise Law.