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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II THE SUPERVISION AND MANAGEMENT OVER THE STATE-OWNED PROPERTY RIGHT OF ENTERPRISES CHAPTER III PROCEDURES FOR THE TRANSFER OF STATE-OWNED PROPERTY RIGHT CHAPTER IV THE PROCEDURES FOR THE APPROVAL OF THE TRANSFER OF THE STATE-OWNED PROPERTY RIGHT OF ENTERPRISES CHAPTER V LEGAL LIABILITIES CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. In order to regulate the transfer of the state-owned property right of enterprises, to strengthen the supervision over and regulation of the transactions of state-owned property right of enterprises, to promote the rational flow of the state-owned assets of enterprises, to improve the strategic adjustment of state-owned economic distribution and structure, and to prevent the loss of state-owned assets, the present Measures are formulated in accordance with the Interim Measures for the Supervision and Regulation of State-Owned Assets of the Enterprises, the relevant laws and administrative regulations of the state. Article 2. The present Measures shall be applicable to the activities that the state-owned assets supervision and regulation institutions and the enterprises holding state-owned capital (hereinafter referred to the transferors) transfer the state-owned property of enterprises to overseas or domestic legal persons, natural persons or other organizations (hereinafter referred to the transferees) on the non-gratuitous basis. The transfer of the state-owned property right of financial enterprises and that of listed companies shall be in line with the relevant regulations of the state. The term "the state-owned property right of enterprises" mentioned in the present Measures refers to the rights and interests formed by various investments put into the enterprises by the state, the enjoyable rights and interests formed by various investments of the state-owned and state controlling companies, and other rights and interests that shall be determined as state-owned in accordance with the law. Article 3. The transfer of the state-owned property right of enterprises shall be in line with the laws, administrative regulations and policies of the state, shall be advantageous to the strategic adjustment of state-owned economic distribution and structure, to promoting the optimized allocation of state-owned capital, shall adhere to the principle of openness, fairness and impartiality, and shall protect the lawful rights and interests of the state and all the other parties concerned. Article 4. The transfer of the state-owned property right of an enterprise shall be openly completed in a property transaction institution established in accordance with the law, shall not be subject to the limitations on the basis of geographical location, capital contribution or subordination. If it is otherwise provided for in the laws and the administrative regulations, the relevant laws and administrative regulations shall prevail. Article 5. The transfer of the state-owned property right of an enterprise may be completed by auction, bidding, agreement or other means. Article 6. The ownership of the to-be-transferred state-owned property right of an enterprise shall be clear. The state-owned property right of an enterprise shall not be transferred if its ownership is ambiguous or under dispute. The transfer of the state-owned property of an enterprise used as guarantee shall be in line with the relevant provisions of the Guarantee Law of the People's Republic of China. Article 7. The state-owned assets supervision and regulation institutions shall be responsible for the supervision and management over the transfer of the state-owned property right of enterprises. CHAPTER II THE SUPERVISION AND MANAGEMENT OVER THE STATE-OWNED PROPERTY RIGHT OF ENTERPRISES Article 8. A state-owned assets supervision and regulation institution shall exercise the following functions in supervising the transfer of the state-owned property right of enterprises: (1) To formulate supervision rules and measures for transactions of the state-owned property right of enterprises in accordance with relevant laws and administrative regulations of the state; (2) To decide or approve the transfer of state-owned property right of the enterprises to which it has made capital contribution ("contributed enterprise"), to discuss and deliberate the items related to a significant transfer of property right and report to the people's government of the same level for approval; (3) To select and determine the property transaction institutions engaged in transactions of the state-owned property right of enterprises; (4) To be responsible for the supervision over and inspection of the transactions of the state-owned property right of enterprises; (5) To be responsible for collecting, consolidating, analyzing and reporting the information about the transfer of state-owned property right of enterprises and reporting the information; and (6) To exercise other supervision functions granted by the government of the same level. The term "contributed enterprise" mentioned in the present Measures refers to an enterprise for which the state-owned assets supervision and regulation institutions shall exercise the functions of a contributor upon the authorization of the State Council, the people's government of the provinces, the autonomous region, the municipalities directly under the Central Government, and the people's governments at the level of the districted cities or the autonomous prefectures. Article 9. A contributed enterprise shall perform the following duties in transferring the state-owned property right: (1) To formulate measures for the management of the transfer of the state-owned property of the enterprise and report the measures to the state-owned assets supervision and regulation institution for archival purposes; (2) To study whether the transfer of the state-owned property right is advantageous to enhancing the core competitive ability of the enterprise, promoting the sustainable development of the enterprise and maintaining the stability of the society; (3) To study and deliberate the important matters involving the transfer of the state-owned property right of its subordinate enterprises, and decide the transfer of the state-owned property right of its subordinate enterprises; and (4) To report the information about the transfer of the state-owned property right to the state-owned assets supervision and regulation institution. Article 10. A property right transaction institution may be chosen for the transfer of the state-owned property right of enterprises if it: (1) complies with the relevant laws, administrative regulations, rules and policies on the transaction of the state-owned property right of enterprises; (2) performs the duties of the property right transaction institution, strictly examines the qualifications and conditions of the subject of any transfer of the state-owned property right of an enterprise; (3) discloses the property right transaction information in accordance with the relevant regulations of the state, and can regularly report the information of the transactions of the state-owned property right of enterprises to the state-owned assets supervision and regulation institutions; (4) has corresponding transaction sites, information disclosure channels and professional personnel, and is able to meet the requirements for the transactions of the state-owned property right; and (5) deals with the property right transactions properly, has no continuous transaction after dividing the state-owned property right of an enterprise into small parts or has no bad record due to violating the laws or regulations for 3 consecutive years. CHAPTER III PROCEDURES FOR THE TRANSFER OF STATE-OWNED PROPERTY RIGHT Article 11. The transfer of the state-owned property right of an enterprise shall be based on a good feasibility study, be deliberated under the internal decision-making procedures and be decided in writing. The transfer of the property right of a solely state-funded enterprise shall be deliberated at the executive meeting of the general managers. The transfer of the property right of a solely state-funded company shall be deliberated by the board of directors; if the company hasn't established a board of directors, the said transfer shall be deliberated at the executive meeting of the general managers. If the said transfer involves the legitimate rights and interests of the staff, the opinions of the employees representative assembly of the target enterprise of the said transfer shall be consulted, the relocation of the employees and other matters shall be subject to the discussion and adoption of the employees representative assembly. Article 12. Under the approving procedures prescribed in the present Measures, after the transfer of the state-owned property right has been approved or decided, the transferor shall organize the target enterprise of the transfer to verify the assets and capital in accordance with the relevant regulations, to create a asset-liability statement and a list of the to-be-transferred assets on the basis of the result of the assets and capital verification, to entrust an accounting firm to conduct an overall auditing (including conducting leaving-post auditing to the legal representative of the target enterprise of the transfer in accordance with the relevant regulations of the state). The determination and writing-off of the asset losses shall be handled in accordance with the relevant regulations of the state. Where the transferor loses its holding position due to the transfer of the state-owned property right of the invested enterprise, its assets and capital shall be subject to the verification organized by the state-owned assets supervision and regulation institution, and a non-governmental intermediary institution shall be entrusted with relevant operations. A non-governmental intermediary institution shall practice independently and impartially in pursuance of the law. No enterprise or individual may interfere with its normal work. Article 13. On the basis of the assets and capital verification and auditing, the transferor shall authorize an asset assessment institution with corresponding qualifications to appraise the assets according to the relevant regulations of the state. Upon approval or being kept in the archives, the assessment report shall be considered the basis for determining the transfer price of the state-owned property right of the enterprise. In the course of a property right transfer transaction, if the transaction price is lower than 90% of the assessment result, the transaction shall be stopped for the time being, which may not be resumed until it is approved by the relevant authoritative institution for the transfer of property right. Article 14. The transferor shall authorize a property right transaction institution to publish a property right transfer announcement through an openly released economic or financial newspaper or periodical of the province level and the website of the property right transaction institution for the purposes of disclosing the relevant information about the to-be-transferred state-owned property right of the enterprise and widely inviting transferees. The property right transfer announcement shall last 20 working days. The transferor shall disclose the following information about the to-be-transferred state-owned property right of an enterprise: (1) The basic information about the transfer target; (2) The structure of the property right of the transfer target enterprise; (3) The information about the internal decisions and approvals concerning the property right transfer; (4) The data of the main financial indicators in the recent audit to the transfer target enterprise; (5) The information about the approval of the asset assessment or records of the transfer target enterprise; (6) The basic requirements for the transferee; and (7) Other items necessary to be disclosed. Article 15. In the course of inviting transferees, the transferor may put forward some basic requirements for the transferees' qualifications, business reputation, operations, financial status, management ability and asset scale. A transferee shall meet the following requirements: (1) Having good financial status and payment ability; (2) Having good business reputation; (3) If the transferee is a natural person, it shall have complete civil capacity; and (4) Other requirements provided for in the laws, administrative regulations. Article 16. If a transferee is a legal person, natural person or any other organization of a foreign country, Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan Region, the state-owned property right of the transferred entity shall be in line with the Regulations on Guiding Foreign Investments issued by the State Council and other relevant regulations. Article 17. If two or more transferees appear upon open invitations, the transferor shall negotiate with the property right transaction institution so as to organize and complete the property right transaction by way of auction or bidding in light of the actual target of the transfer. If the transfer is made by way of auction, the transfer of the state-owned property right of an enterprise shall be in line with the Auction Law of the People's Republic of China and relevant regulations. If by way of bidding, the transfer of the state-owned property right of an enterprise shall be in line with the relevant regulations of the State. Where a bargain is made on the transfer of the state-owned property right of an enterprise, the transferor and the transferee shall enter into an property right transfer contract and shall acquire the property right transaction voucher issued by the property right transaction institution. Article 18. If only one transferee appears upon open invitations, or if it is approved by the state-owned asset supervision and regulation institution in accordance with relevant regulations, the transfer may be completed on the basis of an agreement. If the transfer is conducted on the basis of an agreement, the transferor shall fully negotiate with the transferee, shall sign a draft property right transfer contract after having properly handled the relevant matters involved in the transfer pursuant to the law, and shall deliberate the transfer according to the procedures prescribed in Article 11 of the present Measures. Article 19. A contract on the transfer of the state-owned property right of an enterprise shall contain: (1) the name and addresse of the transferor and the transferee; (2) the basic information of the state-owned property right of the transfer target enterprise; (3) the employees relocation program relating to the transfer target enterprise; (4) the creditor's rights and debts treatment program relating to the transfer target enterprise; (5) the way and price of transfer, the time, way and conditions of payment; (6) the delivery of the property right; (7) the sharing of the tax payments relating to the transfer; (8) the settlement of contract disputes; (9) the liabilities of each party for breach of contract; (10) the conditions for modifying and canceling the contract; and (11) other terms that both the transferor and the transferee consider necessary. If the transfer of the state-owned property right of an enterprise results in the transferor's loss of the controlling position, when the transferor signs the property right transfer contract, the transferor may put forward an enterprise restructure program upon negotiation with the transferee, including the priority relocation program for the employees of the transfer target enterprise under identical conditions. Article 20. The total price of the transfer of the state-owned property right of an enterprise shall be paid by the transferee according to the stipulations in the property right transfer contract. In principle, the transfer price shall be paid off in a lump sum. If the amount of the price is rather big and it is really difficult to be paid off in a lump sum, it may be paid by installments. Where the amount of the price is paid by installments, the initial payment shall not be less than 30% of the total price and shall be made within 5 working days from the day when the contract takes effect. The rest amount of the transfer price shall be accompanied with a lawful guaranty, the transferor shall be paid the interest of the payment by installments according to the banking loan interest rate of the same period, duration of payment by installments shall not exceed one year. Article 21. Where the transfer of the state-owned property right of an enterprise involves the transfer of the use right of the state-owned allocated land, the exploration right or mining right formed by the contributions of the state, the relevant formalities shall be separately gone through in accordance with the pertinent regulations of the State. Article 22. Where the transfer of the state-owned property right of an enterprise results in the transferor's loss of the controlling position, the labor relationship with the employees shall be handled properly in accordance with relevant policies, the salaries of the employees, all kinds of social insurance premiums and other relevant expenses deferred by the transfer target enterprise shall be settled, and the continuity work of all kinds of social insurances of the employees of the enterprise shall be done well. Article 23. The net income from the transfer of the state-owned property right of an enterprise shall be dealt with in accordance with the relevant regulations of the State. Article 24. After a bargain is made on the transfer of the property right of an enterprise, both the transferor and the transferee shall, pursuant to the relevant regulations of the State, timely undergo the property right registration formalities upon the property right transaction voucher issued by the property right transaction institution. CHAPTER IV THE PROCEDURES FOR THE APPROVAL OF THE TRANSFER OF THE STATE-OWNED PROPERTY RIGHT OF ENTERPRISES Article 25. The transfer of the state-owned property right of the contributed enterprises shall be decided by the state-owned assets supervision and regulation institutions. Where the transfer of the state-owned property right of an enterprise results in the State's loss of the controlling position, it shall be reported to the people's government of the same level for approval. Article 26. The transfer of the state-owned property right of the subsidiary enterprise(s) of a contributed enterprise shall be decided by this contributed enterprise. The significant transfer of the state-owned property right of its important subsidiary enterprise (s) shall be reported to the state-owned assets supervision and regulation institution of the same level in collaboration with the public finance department for approval. Where such a transfer relates to the social public regulation items subject to the examination and approval of the government, it shall be reported in advance to the relevant departments of the government for examination and approval. Article 27. Where the transfer of the state-owned property right of an enterprise relates to the change of the nature of the state-owned shares of a listed company or the change of the actual controlling power, it shall be in line with the laws and administrative regulations of the State and the rules of the pertinent regulatory departments. With regard to the regulation on the transfer of the state-owned property right of a non-listed joint-stock limited company, if it is otherwise provided for by the State, such provisions shall be followed. Article 28. The following written documents shall be examined in deciding or approving the transfer of the state-owned property right of an enterprise: (1) The resolution documents relating to the transfer of the state-owned property right of the enterprise; (2) The program on the transfer of the state-owned property right of the enterprise; (3) The state-owned property right registration certificate of the transferor and the transfer target enterprise; (4) The legal advice given by a law firm; (5) The basic requirement s for the transferee; and (6) The other documented required by the approving institution. Article 29. As a general rule, the program on the transfer of the state-owned property right of an enterprise shall contain: (1) the basic information about the state-owned property right of the transfer target enterprise; (2) the information about the argumentation of the transfer of the state-owned property right of the enterprise; (3) the employees relocation program relating to the transfer target enterprise that has been examined by the administrative department of labor security where the enterprise is located; (4) the settlement program about the creditor's rights and debts (including the deferred salaries of the employees) relating to the transfer target enterprise; (5) the program about the handling of the income from the transfer of the state-owned property right of the enterprise; and (6) the main content in the announcement of the transfer of the state-owned property right of the enterprise. Where the transfer of the state-owned property right results from the transferor's loss of the controlling position, it shall be accompanied with the written agreement on relevant creditor's rights and debts upon approval of the financial institutions as the creditors and resolutions about the relocation of employees deliberated by the employees representatives assembly. Article 30. With regard to the key industries or spheres of the national economy, if there are special requirements for the transferee, upon approval of the state-owned assets supervision and regulation institution at (above) the province level, the enterprise that is to transfer the state-owned property right to the holding enterprise to which it is subordinate in carrying out asset restructure may transfer the state-owned property right by way of agreement. Article 31. After the transfer of the state-owned property right of an enterprise has been approved or has been decided, if the transferor and transferee adjust the transfer proportion of the property right, or if there is any important change in the program about the transfer of the state-owned property right of the enterprise, it shall be submitted for a new approval according to the prescribed procedures. Chapter V Legal Liabilities Article 32. In transferring the state-owned property right of an enterprise, where the transferor, the transfer target enterprise and the transferee are under any of the following circumstances, the state-owned assets supervision and regulation institution or the relevant approving institution of the transfer of the state-owned property right of enterprises shall demand the transferor to stop the transfer of the property right, and shall file a lawsuit in the people's court where necessary so as to make the transfer null and void: (1) Failing to conduct the transaction in a property right transaction institution in accordance with the relevant provisions of the present Measures; (2) The transferor or transfer target enterprise fails to observe the corresponding internal decision-making procedures, approving procedures or override their power and transfer the state-owned property right without permission; (3) The transferor or the transfer target enterprise deliberately hides the assets that shall be listed into the assessment scope or provides false accounting materials to the intermediary institution, thus causes an untrue auditing or assessment result, or leads to the loss of state-owned assets; (4) In collusion with the transferee, the transferor transfers the state-owned property right at a low price and leads to the loss of the state-owned assets; (5) The transferor or the transfer target enterprise fails to properly locate the employees, to settle the continuity of the social insurances, to pay the various debts owing to the employees and to make up all kinds of the payable insurance premiums, infringes on the legitimate rights and interests of the employees; (6) The transferor fails to settle the creditor's rights and debts of the transfer target enterprise according to the relevant provisions, it illegally changes the creditor's rights or evade the liabilities to pay off the debts; the state-owned property right of the enterprise is set as a guaranty, the transfer of this state-owned property is subject to no approval of the guarantor; (7) The transferee affects the transferor' selection and signing the property right transfer contract by fraudulent and concealing means; or (8) In the price competition or auction of the transfer of property right, the transferee suppresses the price in collusion with others and leads to the loss of state-owned assets. In any of the above-mentioned transfer acts, the direct liable persons-in-charge and other direct liable persons shall be given a warning by the state-owned assets supervision and regulation institutions or by the connected enterprise according to the personnel management powers; if the circumstance is serious, they shall be given a disciplinary sanction; where any loss of state-owned assets is caused, they shall be liable for the compensations, where any loss of state-owned assets is caused due to the transferee, the transferee shall be compensate for the economic losses of the transferor in accordance with the law; where any crime is constituted, the direct persons-in-charge and other direct liable persons shall be transferred to the judicial organ and subject to the criminal liabilities in accordance with the law. Article 33. With regard to a social public intermediary institution that has illegal practices in the auditing, assessment or legal service relating to the transfer of the state-owned property right of an enterprise, the state-owned assets supervision and regulation institution shall inform the relevant information to the administrative organ of this industry, propose to give it corresponding punishment; if the circumstance is serious, it may demand that the enterprise not entrust the social public intermediary institution with operations relating to the transfer of the state-owned property right of the enterprise any longer. Article 34. In a transaction of the state-owned property right of an enterprise, if the property right transaction institution practices fraud or neglects its duties, impairs the interests of the State or the legitimate rights and interests of both parties of the transaction, the direct liable persons shall be subject to the responsibilities in accordance with the law. The state-owned assets supervision and regulation institution shall not choose this property right transaction institution to engage in the operations relating to the transactions of the state-owned property right of enterprises. Article 35. Where the approving institution of the transfer of the state-owned property right of enterprises and the relevant persons cause any loss of the state-owned assets due to their violations of the present Measures, granting any approval without authorization or seeking private interests in granting approvals, they shall be given a disciplinary sanction by the pertinent department according to the administrative rules governing cadre; if any crime is constituted, they shall be transferred to the judicial organ for criminal liabilities. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 36. The administrative measures for the transfer of the state-owned property right of enterprises based abroad shall be formulated separately. Article 37. The transfer of the state-owned property right of an enterprise without separating governmental functions from enterprise management and the transfer of the state-owned property right of an enterprise held by any other entity shall be subject to approval of the administrative department of finance, and shall be implemented by referring to the present Measures. Article 38. The power to interpret the present Measures shall remain with the State-owned Assets Supervisory and Regulatory Commission. If any issue involving other relevant departments, the State-owned Assets Supervisory and Regulatory Commission shall make interpretations upon discussion with the other departments. Article 39. The present Measures shall be implemented as of February 1, 2004. |
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