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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II IN-HOUSE LEGAL COUNSELS CHAPTER III CHIEF IN-HOUSE LEGAL COUNSELS CHAPTER IV THE LEGAL AFFAIRS ORGANS OF THE ENTERPRISES CHAPTER V SUPERVISION AND INSPECTION CHAPTER VI AWARDS AND PUNISHMENTS CHAPTER VII SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. With a view to establishing and improving the legal risk prevention mechanism of state-owned enterprises, regulating the work of in-house legal counsels, safeguarding the in-house legal counsels' practicing according to law, promoting the enterprises to make business operation according to law, and further strengthening the supervision over and administration on the state-owned assets of enterprises, as well as maintaining the legal rights and interests of the owners of the state-owned assets of enterprises and the enterprises, the present Measures are hereby formulated in accordance with the Interim Regulations on the Supervision over and Administration on the State-owned Assets of Enterprises and the relevant provisions of the state. Article 2. The present Measures shall be applicable to the work of administration on the legal counsels of state-owned enterprises and state-owned shareholding enterprises (hereinafter referred to the "enterprises"). Article 3. The "contributed enterprises" mentioned in the present Measures shall refer to the enterprises, for which the State Council, the people's governments of the provinces, autonomous regions, and municipalities directly under the Central Government, and the people's governments at the level of the cities divided into districts or autonomous prefectures authorize the state-owned assets supervision and administration bodies to perform the contributor's duties according to law. Article 4. The state-owned assets supervision and administration bodies shall be responsible for guiding the work of administration on the in-house legal counsels. The state-owned assets supervision and administration bodies of the superior governments shall make guidance and supervision over the work of administration on the in-house legal counsels undertaken by the state-owned assets supervision and administration bodies of the lower level governments in accordance with the present Measures. Article 5. The state-owned assets supervision and administration bodies and the enterprises shall establish legal mechanism of risk prevention, and establish and improve the in-house legal counsel system. Article 6. The state-owned assets supervision and administration bodies and the enterprises shall establish and improve the stimulation and binding mechanism for the work of in-house legal counsels. CHAPTER II IN-HOUSE LEGAL COUNSELS Article 7. The "in-house legal counsel" mentioned in the present Measures shall refer to the internal professionals of enterprises engaged by the enterprises, who have obtained the qualification for the practice of an in-house legal counsel, and undertake specially the work of enterprise legal affairs. Article 8. In his practice, an in-house legal counsel shall abide by the relevant state provisions, and obtain the qualification certificate for the practice of an in-house legal counsel. The qualification certificate for the practice of an in-house legal counsel shall be obtained after he has passed the national uniform examination on the qualification for the practice of an in-house legal counsel and has got the qualified score. The state-owned assets supervision and administration body of the State Council and those of the provincial level shall be responsible for the administration on the qualifications for the practice of an in-house legal counsel uniformly in accordance with the relevant state provisions. If the conditions are mature, they shall entrust the in-house legal counsel associations to handle specifically. Article 9. The enterprises shall support their employees to study and master the legal knowledge in relation to their own jobs, and encourage the qualified personnel to take part in the national examination on the qualification for the practice of an in-house legal counsel. The enterprises shall establish vocational training systems of an in-house legal counsel to improve the professional quality and practicing level of the in-house legal counsels. Article 10. The in-house legal counsels shall follow the following principles of work: (1) Practicing in accordance with the laws and regulations of the state and the relevant provisions; (2) Maintaining the legal rights and interests of the enterprises; (3) Maintaining the legal rights and interests of the owners of state-owned assets and other contributors; and (4) Focusing on prevention of legal risks beforehand and legal control in the process of handling affairs, with the legal remedies afterwards as the auxiliary means. Article 11. The in-house legal counsels shall enjoy the following rights: (1) Being responsible for handling the legal affairs in the business operation, administration and decision-making of the enterprises; (2) Putting forward opinions and suggestions on acts impairing the legal rights and interests of the enterprises and the contributors and acts in violation of laws and regulations; (3) Consulting the relevant documents, materials upon the need of work, and inquiring of the relevant personnel of the enterprises; and (4) Other rights invested by laws, regulations, and rules and by the enterprises. In the event that an enterprise fails to adopt the opinions and suggestions put forward by the in-house legal counsels concerning item (2) of the preceding paragraph, which results in a great economic loss, and seriously harms the legal rights and interests of the contributors, the legal counsels of the enterprises subject to the contributed enterprises may reflect to the contributed enterprises, whose legal counsels may reflect to the state-owned assets supervision and administration bodies. Article 12. The in-house legal counsels shall perform the following duties: (1) Observing the state laws and regulations and the relevant provisions, as well as the regulations and systems of the enterprises, scrupulously abiding by the professional ethics and practicing disciplines; (2) Performing the functions of an in-house legal counsel according to law; (3) Being responsible for the legality of the legal opinions he proposes, for the legal documents he drafted and for other legal affairs he handles; (4) Keeping state secrets and commercial secrets of the enterprises; and (5) Other duties he should perform prescribed by laws, regulations, and rules and by the enterprises. Article 13. The enterprises shall establish a scientific and normative working system and flow of work for in-house legal counsels, specifying the power, procedures and time limit for in-house legal counsels to handle enterprise legal affairs, and other contents to ensure that the in-house legal counsels may carry out work smoothly. Article 14. The enterprises shall establish the system of professional technical class for in-house legal counsels. In-house legal counsels shall have three grades, namely the Grade One in-house legal counsel, Grade Two in-house legal counsel and Grade Three in-house legal counsel. The measures for appraisal shall be formulated additionally. Article 15. The enterprise legal affairs organs may recruit assistants of in-house legal counsel to assist the in-house legal counsel to carry out work. CHAPTER III CHIEF IN-HOUSE LEGAL COUNSELS Article 16. The "chief in-house legal counsel" mentioned in the present Measures shall refer to the senior management personnel engaged by an enterprise, who has the qualification for the practice of an in-house legal counsel, and is responsible for the overall legal affairs of the enterprise. The chief in-house legal counsels shall be responsible to the legal representatives of the enterprises or the general managers thereof. Article 17. Large enterprises shall have chief in-house legal counsels. Article 18. A chief in-house legal counsel shall meet the following requirements concurrently: (1) Upholding and implementing the basic route, guidelines and policies of the Communist Party of China and the state, fulfilling duties justly and strictly abiding by laws and disciplines; (2) Being familiar with the business operation and management of the enterprises, having higher level of mastering the policies and stronger ability of organization and coordination; (3) Being skilled in legal business, and having work experiences and abilities to handle complicated or difficult legal affairs; and (4) Having qualification for the practice of an in-house legal counsel, and acting as the main responsible person in the management department of an enterprise at or above the middle level for three full years; or having been engaged as a Grade One in-house legal counsel, and acting as the responsible person of an enterprise legal affairs body. Article 19. The chief in-house legal counsels may be recruited from the society. The measures for the recruiting shall be formulated separately. Article 20. The system of putting-on-records shall be practiced for holding the post of a chief in-house legal counsel. The contributed enterprises shall report for putting on records the chief in-house legal counsel they choose and engage according to the procedure for appointing and removing the responsible person of an enterprise to the state-owned assets supervision and administration bodies. The subsidiary enterprises of a contributed enterprise shall report for putting on records the chief in-house legal counsel they choose and engage to the contributed enterprise. Article 21. A chief in-house counsel shall perform the following functions: (1) Being responsible for the overall work of enterprise legal affairs, coordinating uniformly the handling of legal affairs in the decision-making, business operation and management of the enterprises; (2) Taking part in the major decision-making on business operations to ensure the legality of the decision-making, and putting forward prevention opinions on the relevant legal risks; (3) Taking part in the formulation and implementation of major regulations and systems of the enterprises, and establishing and improving the enterprise legal affairs bodies; (4) Being responsible for the work of legal system publicity, education and training, organizing the establishment of the system of training on the business of in-house legal counsels; (5) Putting forward opinions on correcting acts of the enterprises and the subordinated entities in violation of laws and regulations, supervising or assisting the relevant departments in making correction; (6) Guiding the work of legal affairs of the subordinated entities, and putting forward suggestions on the appointment and removal of the responsible person of legal affairs thereof; and (7) Other functions that should be performed by a chief in-house legal counsel. CHAPTER IV THE LEGAL AFFAIRS ORGANS OF THE ENTERPRISES Article 22. The "legal affairs organ of an enterprise" mentioned in the present Measures shall refer to the functional department established by an enterprise specially for undertaking the work of enterprise legal affairs, which is the organ where the in-house legal counsels practice. Article 23. Large enterprises shall establish special legal affairs organs. Other enterprises may establish legal affairs organs upon need. The enterprises shall recruit in-house legal counsels for their legal affairs organs upon the need of work. Article 24. The legal affairs organs of the enterprises shall perform the following functions: (1) Accurately implementing state laws and regulations, and putting forward legal opinions for major business decision-making of enterprises; (2) Drafting or taking part in the drafting and examining of major regulations and systems of enterprises; (3) Managing and examining contracts of the enterprises, taking part in the work of negotiation and drafting of major contracts; (4) Taking part in major economic activities of the enterprises such as the division, merger, bankruptcy, dissolution, investment and financing, guarantee, tenancy, transfer of property right, bid invitation and tendering, and restructuring, reorganization as well as listing of companies, etc.; and handling the relevant legal affairs; (5) Handling enterprise registration for industry and commerce and the protection, notarization, and identification of trademarks, patents and commercial secrets, and the relevant legal affairs, doing a good job for the protection of such intellectual property rights of the enterprises as trademarks, patents and commercial secrets; (6) Being responsible for making legal systems publicity to and education on employees or cooperating with the relevant departments of the enterprises to do this; (7) Providing relevant legal consultation regarding the production and business operation of the enterprises; (8) Upon the entrustment of the legal representatives of the enterprises, taking part in the litigation, arbitration, administrative reconsideration and hearing of the enterprises, and other activities; (9) Being responsible for selecting and engaging lawyers and making supervision over and appraisal on the lawyers' work; and (10) Handling other legal affairs assigned by the responsible persons of the enterprises. Article 25. The legal affairs organs shall strengthen coordination and cooperation with the departments of finance, audit and supervision of the enterprises, and establish and improve various internal supervision mechanisms of the enterprises. Article 26. The enterprises shall give support to the legal affairs organs of the enterprises and in-house legal counsels so that they may perform duties according to law, and provide necessary safeguards of organizations, systems and materials for the carrying-out of the legal affairs work. CHAPTER V SUPERVISION AND INSPECTION Article 27. The state-owned assets supervision and administration bodies shall strengthen supervision over and inspection on the construction of legal systems of the contributed enterprises. Article 28. The state-owned assets supervision and administration bodies shall urge the contributed enterprises to make decisions according to law, make business operation and management according to law and maintain their own legal rights and interests according to law. Article 29. For important matters such as the division, merger, bankruptcy, dissolution, capital increase or decrease, major investment and financing, etc., which are submitted to the state-owned assets supervision and administration bodies for approval by the contributed enterprises according to the relevant provisions, the in-house legal counsels shall issue legal opinions, analyze the relevant legal risks and clarify the legal liabilities. Article 30. In case the contributed enterprises have legal disputes concerning the major rights and interests of contributors, they shall put them on records at the state-owned assets supervision and administration bodies within one month after the occurrence of the legal disputes, and accept the relevant legal guidance and supervision. Article 31. The contributed enterprises shall make supervision over and inspection on the legal system construction of their subsidiary enterprises by referring to the provisions of the present Chapter. CHAPTER VI AWARDS AND PUNISHMENTS Article 32. The state-owned assets supervision and administration bodies and the enterprises shall grant honors and awards to the legal affairs organs of the enterprises and the in-house legal counsels that have made great contributions to the enterprises in aspects such as promoting the enterprises to make business operations according to law, avoiding or retrieving great economic losses of the enterprises, or realizing the inflation-proof and increment of the state-owned assets, etc.. Article 33. In case the in-house legal counsels and chief in-house legal counsels are derelict of duty, or misuse powers to seek for private gains, which result in a greater loss to the enterprises, they shall be prosecuted for legal liabilities. And the enterprises they work in may, according to the relevant provisions, report to the administrative departments to suspend their practice or revoke their qualification certificate for the practice of an in-house legal counsel. If they are suspected of committing a crime, they shall be transferred to and handled by the departments of justice. Article 34. In case the enterprises fail to establish and improve the legal supervision mechanism according to the relevant provisions of the state, which results in major mistakes in decision-making, the state-owned assets supervision and administration bodies or the contributed enterprise shall circulate a notice of criticism or give warnings. If the circumstances are serious or result in a great loss of the state-owned assets of the enterprises, the persons in charge who are directly responsible and other persons directly liable shall be given a disciplinary punishment according to law. If they are suspected of committing a crime, they shall be transferred to and handled by the departments of justice. Article 35. In case any of the relevant responsible persons of the enterprises takes revenge on the in-house legal counsels who perform duties according to law, the state-owned assets supervision and administration bodies or the contributed enterprise shall circulate a notice of criticism or give warnings. If the circumstances are serious, he shall be given a disciplinary punishment. If he is suspected of committing a crime, he shall be transferred to and handled by the departments of justice. Article 36. In case the staff members of the state-owned assets supervision and administration bodies illegally interfere with the work of in-house legal counsels, infringe upon the legal rights and interests of the contributed enterprises and the in-house legal counsels, an administrative punishment shall be imposed according to law on the persons in charge who are directly responsible and other persons directly liable. If they are suspected of committing a crime, they shall be transferred to and handled by the departments of justice. CHAPTER VII SUPPLEMENTARY PROVISIONS Article 37. The enterprises and the in-house legal counsels may join in the in-house legal counsels associations and organizations, and take part in the activities thereof. Article 38. The local state-owned assets supervision and administration bodies may make detailed implementation rules according to the present Measures. Article 39. The present Measures shall be implemented as of June 1, 2004. |
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