|
Welcome Guest
|
|
You are using Guest Account
|
|
||||||||||||||||||||||||||||||||||
|
TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II DISPOSING DIVISIONS CHAPTER III EXAMINATION AND APPROVAL OF ASSET DISPOSAL CHAPTER IV IMPLEMENTATION OF DISPOSAL CHAPTER V MANAGEMENT OF DISPOSAL CHAPTER VI LOSS FROM DISPOSAL CHAPTER VII SUPERVISION AND INSPECTION CHAPTER I GENERAL PROVISIONS Article 1. These Measures are formulated in accordance with the Regulations on the Administration of Asset Management Companies and other relevant provisions of the state with a view to regulating the asset disposal of the financial asset management companies (hereinafter referred to the "companies") and the management and working procedures therefore, and preserving assets and reducing loss to the largest degree. Article 2. The asset disposal of company shall be carried out by adhering to the principles of openness, fairness and impartiality, competition and selection of the better and in accordance with the provisions of other relevant laws and regulations. The confirmation and management of the loss arising from the asset disposal shall be handled strictly according to the specified procedures. Article 3. The asset disposal of companies shall be carried out in a way of "separation of evaluation and handling, separation of examination and handling, collective examination, level-by-level approval and the reporting to the higher authority for the record". CHAPTER II DISPOSING DIVISIONS Article 4. A company shall set up a special division for examining the asset disposal that is responsible for examining the planning for asset disposal. The division established exclusively for examining the asset disposal of the company shall be composed of 7 persons or more from divisions such as fund and financial, asset management and disposal, asset evaluation, and law division of company which are responsible to the president of the company. The members of the division for examining the asset disposal of the company from any division shall not exceed 1/3 of all its members. The company shall also establish reserve members for the special division for examining the asset disposal whose number shall be equal to that of the members of the special division for examining the asset disposal. The members of and reserve members for the special division for examining the asset disposal shall have certain qualifications, be familiar with the work relating to the asset disposal of the Corporation and the business in related sectors and have a strong sense of responsibility. The formation of the special division for examining the asset disposal of the Corporation shall be reported to the Ministry of Finance for archival purposes. The offices of the company shall accordingly establish a special division for examining the asset disposal, which shall be responsible to the general-managers (directors) of the offices. A company shall not handle the planning for the asset disposal without examination and approval by its special division for examining the asset disposal with an exception unless the people's court or the arbitration institution renders an effective judgment, ruling or award on the asset disposal project. No matter what the amount of value and loss the asset to be disposed is, any individual of the company has no right to make an independent decision thereon. Article 5. A company and its offices must perfect the internal control system and check and balance mechanism for the asset disposal, implement the disposal and evaluation of assets and the separation of examination and approval, clarify functions and liabilities and strengthen the internal supervision of the asset disposal. The asset management and disposal divisions of the company and its offices shall be mainly responsible for formulating, and implementing the planning for the asset disposal. The evaluation divisions shall be mainly responsible for organizing and verifying the asset evaluation. The fund and finance divisions shall be mainly responsible for the fees verification and funds settlement for the asset disposal. The legal divisions shall be mainly responsible for reviewing the legality of the asset disposal. All business divisions or persons of the company responsible for the asset disposal shall not participate in the evaluation of assets, and the operational divisions shall be responsible for the asset evaluation in disposing assets. If there is no professional evaluation division, a relevant division shall be designated to be responsible for it. CHAPTER III EXAMINATION AND APPROVAL OF ASSET DISPOSAL Article 6. The working procedures for examining and approving the planning for the asset disposal shall be as follows: (1) The asset management and disposal division of an office of the company shall formulate the planning for the asset disposal, and, after seeking the opinions from divisions such as assets evaluation, fund and finance, legal divisions, submit the planning for asset disposal and the relevant materials such as the asset evaluation report legal opinions within its authority to the special division for examining the asset disposal of the office which shall be implemented with the approval of the general-manager (director) of the office. Such materials beyond its authority shall be reported to the company for examination and approval; (2) The relevant division designated by the company shall conduct a preliminary examination over the planning for asset disposal submitted by the office and submit the planning for asset disposal and its preliminary examination opinions to the special division for examining asset disposal. Upon examination and adoption of the special division for examining asset disposal, the planning for asset disposal may be implemented with the approval of the president of the company. With respect to the planning for the asset disposal, before it is submitted to the special division of the company for examining asset disposal, the opinions shall be solicited from divisions such as assets evaluation, fund and finance and legal divisions; and (3) The special division for examining asset disposal must notify all members of the convening of meeting for examining the asset disposal, and the matters deliberated at the meeting may be effective only if over 2/3 of all members are present at the meeting; and according to the number of the members not present at the meeting, reserve members shall be elected at random from the members reserve to participate in the meeting. All members present at the meeting shall vote on the planning for the asset disposal by disclosed ballot, the system of "one person, one vote" shall be implemented, and the planning for the asset disposal may be adopted only by at least 2/3 of all votes of the members present at the meeting. Article 7. Examination basis and key points. The basis for examining the planning for the asset disposal shall be the laws and regulations of the state relating to assets evaluation, value verification and commodity (property right) trading and the market value of similar assets. The key points of examining the plan of asset disposal shall be the regularity of the evaluation method, the openness and regularity of the asset disposal and the procedures therefore, the reasonableness of the assets pricing and disposing fees, the properness and accuracy of identifying the loss of the assets, and the feasibility and optimum of the planning for the assets planning. Article 8. The legal representative of a company and the principals of its offices shall be liable for the process and results of asset disposal. The legal representative of a company and the person-in-charge of any of its offices shall not act as a member of the special division for examining asset disposal, but may attend the meeting to examine the asset disposal without expressing any opinion on any matter to be deliberated and shall have the power to veto the planning for the assets planning examined and adopted by the special division for examining asset disposal. If the planning for the asset disposal is adjusted, the planning needs to be re-examined by the special division for examining asset disposal according to the procedures for disposing assets. The vice-president of a company and the vice manager (director) of its office who are members of the special division for examining asset disposal shall, when present at the said meeting, not express their personal prior opinions on whether to consent to the matters to be deliberated. The persons-in-charge of the divisions directly participating in the asset disposal and other related personnel may attend the meeting of the special division for examining asset disposal to examine the asset disposal and introduce the relevant conditions of the planning for asset disposal but shall not participate in the voting of the special division for examining the asset disposal unless he (they) is (are) the member(s) of the special division for examining asset disposal. The auditors and disciplinary inspection and supervision personnel must attend the meeting to examine the asset disposal without voting right. Article 9. With respect to the asset disposal of a company, the withdrawal system shall be implemented, and any individual of the company that has any lineal relative relationship with the party whose assets are disposed, the assets transferee (trustee), or the entrusted assets evaluation institution etc. shall withdraw. Article 10. An asset disposal project on which the people's courts or arbitration institutions have rendered a judgment, ruling or award does not need not be examined and adopted by the special division for examining asset disposal. However, a project shall be examined and adopted by the special division for examining asset disposal in advance if any loss is predicted to arise from carrying out its disposal by mediation, compromise and settlement, the waiver of all or part of litigation rights, the application for the termination of enforcement or application for bankruptcy etc. in its litigation or execution. Article 11. No office of a company may establish any sub-branch. The project manager group shall be the working team sent by the office, and is not a division and thus cannot re-authorize any other one to effect the asset disposal. CHAPTER IV IMPLEMENTATION OF DISPOSAL Article 12. A company may dispose its assets in such ways as debts recovery, lease or transfer by other means, restructuring, and debt-to-equity swap. Any Corporation shall, within the business scope specified in the Regulations on the Administration of Financial Asset Management Companies and the business license scope permitted by the financial regulatory department, explore all disposing ways in an active and steady manner so as to accomplish the aim to maximize the returns on its assets. Article 13. A company may recover debts from the creditors and guarantors by an announcement or litigation etc., strengthen the management of litigation limitation and prevent from the loss arising from the lapse of the limitation period caused by various factors. If a Corporation takes the method of a litigation, the specific conditions of the asset disposal project shall be taken into account to evade the blindness and reduce the cost of the asset disposal to the largest degree. Article 14. A company shall, in the process of the asset disposal and under the specific conditions of each asset disposal project and the fairness and reasonableness principle as well as the cost efficiency principle, determine whether to make an evaluation, and if so, to determine the specific method of evaluation. A company shall implement the principle of separation of assets evaluation and disposal thoroughly and conscientiously, strengthen the management of assets evaluation, establish the corresponding internal control system, determine reasonably the prices of the assets to dispose and reduce the intentionally incurred loss in the process of asset disposal. The assets disposed by a company by means such as claims restructuring, debt-to-equity swap, sale of debts, etc., the assets shall, as a general rule, be first valued by legal and independent valuation institutions, the equity prices or basic prices thereof shall be determined with reference to such evaluations, and the fair value of the recovered assets shall be valued and identified legally and reasonably. Policy-based debt-to-equity swap projects shall be entered in the records under the provisions of the state on the administration of the records for state-owned assets valuation projects, but the procedures for the records for other asset disposal projects need not be followed. Article 15. A company shall transfer non-performing assets by competitive tender or bidding in principle. The company shall, in disposing assets, obtain the legal documents relating to evaluation, competitive tender, competitive bidding, public announcement and notarization. Corporations shall, in disposing assets, eliminate under-table operation, and prohibit the private disposal and internal trading. The disposal by Corporations of non-performing assets shall be carried out by public invitation tender under the principle of openness, fairness and impartiality, and such tender shall be effective only if there are three or more bidders. Article 16. Where a company disposes its assets by auction, it shall choose a qualified auction intermediary institution under the provisions of Auction Law of the P.R.C in a open way. The confirmation of the base prices for auction shall be handled according to the asset disposal procedures. Where a company organizes to auction non-performing assets, it shall first notify the Financial Commissioners' Office (hereinafter referred to "Commissioners' Office") dispatched by the Ministry of Finance of participating in such auctions, and the Commissioners' Office shall conduct supervision over whether the confirmation of the base prices for auctions and the auctions procedures comply with the relevant provisions. Article 17. A company may transfer the creditor's assets in packages. If the original book value of a single package of assets to be transferred totals RMB100 million yuan or less, and if the original book value of a single package of assets composed of mere bad account claims totals RMB 500 million yuan or less, the company shall determine the transfer methods and prices on their own accord according to the asset disposal procedures. If the original book value of a single package of assets to be transferred totals more than RMB100 million yuan, and if the original book value of a single package of assets composed of mere bad account claims totals more than RMB 500 million yuan, the company shall first seek the prior opinions on the necessity and properness of the package from the local Commissioners' Office, and then it shall have the special divisions of the company for examining asset disposal to make a decision upon deliberation and report to the Ministry of Finance for archival purposes. The debts of a county specially supported by the state are encouraged to be packed on the county basis and to be transferred to the local governments at a price upon negotiations of both parties. Article 18. Where a company disposes non-performing assets by entrustment, it shall follow the principle that the recovered value shall be greater than the asset disposal cost, that is to say, the value to be recovered shall be sufficient to pay the processing fee for the entrusted disposal and direct fees such as litigation fee, notarization fee, assets preservation fee, auction commission and other direct expenses arising in the entrusted disposal, and there shall be a surplus. Article 19. A company shall carry out the debt-to-equity swap within the scope approved by the state under the provisions of the relevant laws, regulations and regulatory documents. In the company newly established by a debt-to-equity swap enterprise, the company shall actively safeguard the rights and interests of shareholders, give full play to the roles of shareholders and promote the development of the enterprises. The company shall adopt a time limit for the administration of the debt-to equity swap enterprise. The interest shall be resumed to accrue on a debt if the new company still fails to be established within the specified time limit after the approval of the debt-to-equity swap enterprise. If a debt does not comply with the debt-to-equity swap conditions, the performance of the claim on the debt shall be resumed in a timely way, and the debt shall be disposed according to the provisions to avoid the phenomenon of non-debt and non-equity. If it is really necessary to report the adjustments to the debt-to-equity swap planning to the State Council, the company shall check on strictly and examine carefully the planning according to the policies and provisions relating to debt-to-equity swap enterprise, properly handle the relationship between protecting the safety of state-owned financial asset and promoting the development of state-owned enterprises. As for the debt-to-equity swap enterprise' equities held by the company, the company shall, under relevant policies and provisions regarding the administration of state-owned assets of financial enterprises, the asset disposal procedures and the principle of maximum recovery values, transfer these equities at a price on the basis of valid asset assessment results. The company may determine the form and price of the transfer by itself. Under the same conditions, the former shareholders shall have the preemptive right. The company shall comply with relevant provisions of the state when it transfers the state-owned equities held by it in a listed company. No debt-to-equity enterprise (including the whole debt-to-equity swap enterprise and subsidiary debt-to-equity swap enterprise) may, in principle, carry out policy bankruptcy. If it is really unable to continue business operations, it shall, as a special case, report to the State Council for examination and approval. Article 20. A company may restructure and dispose of their respective assets by absorbing foreign capital in strict compliance with Chinese foreign investment laws and relevant regulations, and determine the disposal planning according to the asset disposal procedures. If the company uses foreign investments to dispose the assets, it shall lay stress on introducing foreign advanced technologies and management experience to promote the establishment of the modern enterprise system and to enhance the value of the assets. Article 21. In the process of disposing assets, if it is necessary for the company to inject some funds to enhance the recovery values of the assets to be disposed, the company shall handle these assets in accordance with the market principle and asset disposal procedures. The specific provisions shall be separately formulated. Article 22. In order to avoid suppressing prices one after another, to recover non-performing assets to the largest degree and to reduce the assets losses, if two or more companies are involved in a joint claim, the company shall, in the process of disposing assets, strengthen communication and coordination between or among themselves in an attempt to determine through consultation one company to take the lead in the negotiation with external parties, and no blind competition between or among themselves may arise. If a company is involved in a joint claim with a bank in disposing the assets, the company shall actively strengthen communication and coordination between it and the bank and properly complete the rights protection and recovery works. Article 23. A company shall establish the assets preservation and recovery system, continue to retain the right to recover the assets that have not been disposed or whose disposal has not been terminated, and continue to collect due interests of the assets such as the accrued interest and off-balance-sheet accrued interest. After accepting the assets for offsetting the debts, the company shall ensure the safety of the assets, and shall follow the procedures for the registration of the change of the assets ownership as soon as possible in a timely way and be cashed according to the asset disposal procedures and the principle of the maximization of the recovered value, which shall be neither delayed nor used by itself in violation of the provisions. Among the assets for offsetting debts, the vehicles need to be disposed and realized within three months after being received, the notice of those Corporations that fail to dispose vehicles within the specified time limit shall be circulated, and the check-up reward shall be reduced in light of the circumstances. The company shall strengthen the maintenance of the assets for paying debt and establish a regular screening system so as to avoid the improper management leading to the depreciation of the assets. CHAPTER V MANAGEMENT OF DISPOSAL Article 24. A company shall establish and perfect the accounts for the asset disposal projects, implement the project-budget management of each asset disposal project, strengthen the planned management of the recovered assets, disposing fees and disposal losses and gains and track and monitor the progress of each project. If the recovered value of all assets under one planning for the asset disposal is predicted to less than those direct disposal fees, another economic and feasible planning for the asset disposal should be considered in principle. Article 25. A company shall strengthen the management of archives relating to asset disposal under the provisions of the State on the management of archives. The materials relating to the process and results of asset disposal must be complete and authentic. The opinions on examining and the result of voting the asset disposal from the special divisions for examining asset disposal must be recorded accurately, and summaries of meetings therefore shall be formed. If the creditors' rights that the company sells in disposing non-performing assets fall within the scope of the accounting transactions that have not been settled and transferred, the original vouchers together with the creditor's rights shall be handed over to the accepting entities for preservation under relevant procedures. The company shall, after transferring creditor's rights and handing over their original vouchers, take the photocopies of the transfer contract, the receiving vouchers and other original vouchers as the basis for financial accounting handling. Article 26. A company or any individual thereof shall keep confidential the planning for and the result of asset disposal. The department of finance must keep confidential the materials for the record submitted by Corporations. No asset disposal information of a company may be disclosed to any external party unless provided otherwise by the state or the company must release relevant information for disposing assets. Article 27. Under the relevant provisions of the state, no entity or individual may intervene in the asset disposal, and a company shall resist the intervention of any entity or individual in the asset disposal. Article 28. A company shall strengthen the management of its head offices as the first-level legal person, establish and improve the restricting system on the clear division of work and the authorized management, perfect the mechanism on the comparative analysis of all feasible planning for asset disposal projects and strictly prohibit the asset disposal by such illegal means as beyond their own authorization or power or in violation of procedures, the false evaluation and the falsification of any archive and record. The company shall take various measures to prevent moral risks and guarantee the optimal planning for the asset disposal. CHAPTER VI LOSS FROM DISPOSAL Article 29. The term "loss from asset disposal" refers to the balance between the assets value recovered by a company after it disposes the loans and interests thereon (including on-balance-sheet interests, off-balance-sheet interests and accrued interests), the assets for paying loans and other assets in which it enjoys an ownership and a lien purchased and received by it from a bank and the value of the said assets at the time when it purchases and receives them and the loss arising from re-disposing the recovered assets. Article 30. The base amount for computing all claims for asset disposal shall be the principal amounts and the interests thereon purchased and received from banks, including such claims as the on-balance-sheet interests, off-balance-sheet interests and accrued interests. If the company authorizes an office to dispose assets, the base amounts for computing the amounts of the loss from asset disposal shall be such claims as the principal amount of the loans purchased from banks and on-balance-sheet interests receivable excluding off-balance-sheet interests and the accrued interests. Article 31. The planning for asset disposal involving the asset disposal loss of RMB 10 million yuan or more (that is computed by a single debtor, the same below) shall, upon examination and adoption by the special divisions of the company for examining asset disposal, be subject to the approval of the president of the company. The planning for asset disposal involving the asset disposal loss of less than RMB 10 million yuan shall, upon examination and adoption by the special divisions of offices for examining asset disposal, be subject to the approval of the general manager (director) of the office. Article 32. In disposing assets, the company shall, in strict compliance with the provisions, examine the disposal of the claims of a merged and bankrupt enterprise that is incorporated into the plan of the national team for leading the merger and bankruptcy of enterprises, and cancel the claims that complies with the conditions. As of the date when the national team for leading the merger and bankruptcy of enterprises issues the approval opinions of the State Council, the cancelled claims shall be handled as the loss from the assets to be disposed. Article 33. A company shall do a good job in the recognition of zero recovered assets and the confirmation of losses, clarify the standards, basis and time limit therefore, and handle the matter as soon as possible in accordance with the asset disposal procedures and authorization. Article 34. Except that it is otherwise provided by the State, a company shall have the independent right to decide on the loss from asset disposal no matter how large is the value and whether a state-owned enterprise or a privately owned enterprise is involved or not. CHAPTER VII SUPERVISION AND INSPECTION Article 35. An office shall submit the approved and adopted planning for asset disposal to the Commissioners' Office for the record on a monthly basis. The materials for the record shall include contents such as the asset disposal projects, the amount of all claims, disposing methods direct disposal fees, the recovered non-cash assets, recovered cash, disposal loss, the assets transferee, the entrusted evaluation institutions and auditing institution. A company shall report about the progress of asset disposal to the Ministry of Finance on a monthly basis. Article 36. A company shall establish rules for the duteous investigations and after-the-event inspection for asset disposals, and conduct regular or irregular audits on the assets disposed by its office. The audit and discipline inspection and supervision divisions of a company shall set up a public reporting telephone for asset disposal, accurately note down the contents so reported, conduct relevant verifications and investigations. The Ministry of Finance and the Commissioners' Office shall regularly or irregularly conduct selective examinations over the legality of the examination and approval procedures for asset disposal and the disposed results of Corporation and offices. Commissioners' Office may, in light of the needs, attend the meeting of offices to examining asset disposal as a non-voting delegate. Article 37. Any one, who commits any of the following acts and thus causes any loss to the state-owned assets, once verified, shall be given corresponding economic and administrative penalties in light of the seriousness of the circumstances and the severity of the loss under the principle of combining the handling of persons and the handling of matters and other relevant provisions of the state. If it or he violates the Party disciplines or political disciplines, it or he shall be transferred to the relevant discipline inspection and supervision department for handling. If it or he violates criminal laws, it or he shall be transferred to the judicial organ for handling: (1) To relinquish the due rights and interests of company without examination and approval in accordance with the specified procedures; (2) Disposing assets beyond authorization or without examination and approval in accordance with the specified procedures; (3) Changing the disposing planning without examination and approval in accordance with the specified procedures; (4) Concealing or retaining the disposed assets, the recovered assets and the disposal proceeds; (5) Commiting fraud to exaggerate or reduce the assets loss arbitrarily; (6) Ignoring its (his) own duties, leading debtors to evade their own debts and expanding the risks and loss arising from the asset disposal; (7) Colluding with persons inside and outside of the company to commit fraud and bid down the prices of the assets to be disposed; (8) Committing under-table operation, internal trading or private disposal; (9) The management of archives for asset disposal is in disarray; (10) Disclosing the commercial secrets of the company; (11) Managing the assets for paying debts in an improper way and use them without authorization, causing any loss to these assets; (12) Seeking small collective interests and private interests; or (13) Other acts that cause the assets loss due to its or his own faults. Article 38. A company may formulate detailed implementation rules for the administration of asset disposal in accordance with these Measures and shall submit them to the Ministry of Finance for archival purposes. Article 39. The present Measures shall enter into force as of the date of the promulgation. The Notice of the Ministry of Finance about Printing and Distributing the Measures for the Administration of Asset disposal of Financial Assets Management Corporations (No. 122 [2000] of the Ministry of Finance) shall be repealed simultaneously. If there is any inconsistency between other provisions and the present Measures, the present Measures shall prevail. |
||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||
|
Copyright 2002 NovexCn.com
|