In 2005, the State-owned Assets Supervision and Administration Commission (SASAC) issued the Interim Measures for the Administration of Gratuitous Transfer of State-owned Property Rights of Enterprises (SASFAA Property Rights [2005] No. 239, hereinafter referred to as the "Interim Measures"), which is the first departmental normative document that systematically regulates the procedures for gratuitous transfer of state-owned property rights of enterprises. 2009, the SASAC issued the Guidelines for the Work of Gratuitous Transfer of State-owned Property Rights of Enterprises (SASDF Property Rights [2009]). In 2009, SASAC issued the Working Guidelines on the Gratuitous Transfer of State-owned Property Rights of Enterprises (SASDF [2009] No. 25, hereinafter referred to as the "Working Guidelines"), which is mainly targeted at centralized enterprises, and which provides more targeted and operational regulations on the gratuitous transfer of the state-owned property rights of centralized enterprises, and which is an effective supplement to the Interim Measures.
Consolidating the Interim Measures and the Working Guidelines, gratuitous transfer of state-owned property rights of enterprises refers to gratuitous transfer of state-owned property rights of enterprises among governmental agencies, institutions, wholly state-owned enterprises, wholly state-owned companies, and one-person state-owned companies.
Note: State-owned one-person companies refer to wholly state-owned enterprises, wholly state-owned companies, one-person limited liability companies invested by state-owned institutions and one-person limited liability companies reinvested by them.
I, the main body of gratuitous transfer of enterprise state-owned property rights
According to the Interim Measures, the transfer of gratuitous transfer of the transferring party (the transferring party) including government agencies, institutions, wholly state-owned enterprises, wholly state-owned companies; the "Working Guidelines" increased the state-owned one-person company as the main body of gratuitous transfer. Thus, the subject of gratuitous transfer of enterprise state-owned property rights includes government agencies, institutions, wholly state-owned enterprises, wholly state-owned companies, as well as wholly state-owned enterprises, wholly state-owned companies, wholly state-owned institutions invested in the establishment of a one-person limited liability company and its reinvestment in the establishment of a one-person limited liability company.
Second, the process of gratuitous transfer of enterprise state-owned property rights
According to the Interim Measures and the Working Guidelines, the procedures and requirements for gratuitous transfer of enterprise state-owned property rights include the following seven items:
1, conduct a feasibility study.
2. On the basis of the feasibility study, deliberation is carried out in accordance with internal decision-making procedures and a written resolution is formed.
If the transferring party (the transferring party) is a wholly state-owned enterprise, it shall be considered by the general manager's office meeting; if a board of directors has been established, it shall be considered by the board of directors. If the transferring party (the transferring party) is a wholly state-owned company, it shall be considered by the board of directors; if the board of directors has not been established, it shall be considered by the general manager's office meeting. Matters relating to the separation and resettlement of employees shall be considered and passed by the employee representative assembly of the transferred enterprise.
Where a state-owned one-person company acts as the transferring party (the transferring party), the matters of gratuitous transfer shall be considered by the board of directors; where no board of directors has been set up, a written resolution shall be made by the shareholders and stamped with the seal of the shareholders.
Note: Where the property rights of a wholly state-owned enterprise are to be transferred to a wholly state-owned company or a one-person state-owned company without compensation, the enterprise shall be restructured into a company in accordance with the law.
3. Notify the creditors of the enterprise (unit) and formulate the corresponding debt disposal program.
4. Audit or liquidation
The transferring parties shall organize the transferred enterprise to carry out audit or liquidation in accordance with the relevant provisions, and take the audit report issued by the intermediary institution or the result of the liquidation approved by the State-owned Assets Supervisory Body of the transferring party as the basis for the transfer of the state-owned property rights of the enterprise without compensation.
5, the signing of gratuitous transfer agreement
Transferring the consensus of the two sides, shall sign an agreement on gratuitous transfer of enterprise state-owned property rights. Free transfer of matters in accordance with the provisions of these measures, the transfer agreement shall come into effect after the approval of the procedure. Before the effective date of the transfer agreement, the transferring parties shall not perform or partially perform.
6, reported to the relevant departments for approval
(1) enterprise state-owned property rights in the same state-owned enterprises funded by the regulatory body of gratuitous transfers between the funded enterprises **** the same report to the state-owned enterprises regulatory body for approval.
(2) enterprise state-owned property rights in different state-owned institutions funded enterprises between the gratuitous transfer, based on the transfer of property rights of the two sides of the ownership of the relationship, by the funded enterprises were reported to the same level of state-owned assets regulatory bodies for approval.
(3) the implementation of the separation of government and enterprises, the state-owned property rights of the gratuitous transfer of the funded enterprises or their subsidiaries held by the same level of state-owned assets regulatory bodies and the competent departments for approval.
(4) In case of gratuitous transfer of state-owned property rights of enterprises financed by the state-owned capital supervisory body of a lower level government to enterprises financed by the state-owned capital supervisory body of a higher level government or their subsidiaries, the approval shall be given by the lower level government and the state-owned capital supervisory body of the higher level government respectively.
(5) The gratuitous transfer of state-owned property rights of enterprises within the funded enterprises shall be approved by the funded enterprises and copied to the state-owned capital regulatory bodies at the same level.
Note: the gratuitous transfer of enterprise state-owned property rights after approval, the transferring party and the transferring party to adjust the proportion of property rights transfer or transfer agreement with significant changes, should be in accordance with the prescribed procedures for re-approval.
To be reported to the SASAC for approval, the application documents and related materials shall be submitted to the SASAC after internal procedures, and the SASAC shall put forward the preliminary examination opinions within 5 working days after receiving the application documents and related materials. For the problems found in the preliminary examination, the reviewers of SASAC shall promptly communicate with the central enterprise; if the central enterprise has no objection, it shall revise and improve the relevant materials and report to SASAC within 5 working days. If the materials are complete and have the conditions for processing, SASAC shall process them in a timely manner.
7. Adjustment of accounts and registration of property rights
Third, the materials required for administrative approval
Applicants for gratuitous transfer of state-owned property rights of the enterprise shall submit the corresponding application materials, including:
(1) the application documents for gratuitous transfer;
(2) the resolution of the general manager's office meeting or board of directors' meeting on gratuitous transfer, the resolution of the shareholders' meeting, and the approval documents of the contributing enterprises. resolution of the general manager's office or the board of directors, the resolution of the shareholders' meeting, and the approval documents of the contributing enterprises;
(3) the property right registration certificates of the transferring parties and the transferred enterprises;
(4) the feasibility study report of the gratuitous transfer;
(5) the gratuitous transfer agreement signed by both parties of the transfer;
(6) the auditing report of the transferred enterprises on the base date of transfer issued by the intermediary institution or the approval document of the results of the liquidation of capital and assets issued by the state-owned assets supervisory authority at the same level. (7) Debt disposal program of the transferring party;
(8) Employee streaming and resettlement program adopted by the staff council of the transferred enterprise;
(9) Other relevant documents.
Four, enterprise state-owned property rights in the transfer of disputes
As mentioned above, enterprise state-owned property rights in the transfer of more for the government's administrative behavior, so due to the transfer of enterprise state-owned property rights in the transfer of disputes can not be recognized as civil disputes.
According to the Reply of the Supreme People's Court on the Admissibility of Disputes Arising from the Government's Adjustment and Transfer of State-owned Assets of Enterprises (Law Reply [1996] No. 4), disputes arising from the government and its competent departments in the process of adjusting and transferring the state-owned assets of enterprises should be dealt with by the government or by the government's state-owned assets management department. Where a state-owned enterprise, as a party, files a civil lawsuit with a people's court, the people's court shall not accept the case. If the parties concerned do not accept the decision made by the government and its subordinate authorities on the adjustment and transfer of the state-owned assets of an enterprise in accordance with the relevant administrative regulations and file an administrative lawsuit with the people's court, the people's court shall accept the case if it meets the legal conditions for filing a lawsuit.
According to Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Civil Dispute Cases Relating to the Restructuring of Enterprises (Legal Interpretation [2003] No. 1), the people's courts shall not accept disputes arising from administrative adjustments and transfers of enterprise state-owned assets made by governmental competent departments, where the parties concerned file a civil lawsuit in the people's courts.
In the case of China Orient Asset Management Company Wuhan Office and Wuhan Zhengda Logistics Company Limited, Wuhan Wuwu Materials Mechanical and Electrical Equipment Company Limited, Wuhan Wuwu Materials Storage and Transportation Company Limited, Wuhan Mechanical and Electrical Equipment Company Limited, and Wuhan Mechanical and Electrical Equipment Company Limited, a case of dispute over the recovery of financial non-performing claims ((2015) E Wuhan Zhongminshangzhi No. 00633, (2017) E Minzheng re No. 46), the court held that, as the Wuhan Municipal Bureau of Materials based on the reorganization of assets, play a holistic advantage, which, as the superior authority of Wuhan Municipal Electromechanical Equipment Corporation and Wuhan Municipal Materials Storage and Transportation Corporation, issued Wuwu Matters (1995) No. 75, Wuwu Matters Finance (1995) No. 81 to transfer the assets of the ___ Kou Warehouse of Wuhan Municipal Electromechanical Equipment Corporation, as well as the employees on the rolls and the retired employees, to Wuhan Municipal Materials Storage and Transportation Corporation, and that, according to the Wuwu According to WMTC (2003) No. 31, WMTC (2003) No. 27, No. 43, No. 44, Zhengda was established by Wuhan Municipal Materials Storage and Transportation Corporation in 2003 after the split and restructuring of asset evaluation, and the assets of ___ mouth warehouse were transferred to Zhengda at this time. According to this can be known, wuhan city material storage and transportation company and wuhan city mechanical and electrical equipment company of the assets involved in this case are based on the adjustment, transfer of the administrative allocation of approval documents, in accordance with the relevant provisions of the law has been for personnel, property, land and other adjustments, changes in registration formalities. Wuhan city material bureau as the two sides of the higher authorities should have the corresponding administrative functions, its adjustment, transfer behavior should belong to the performance of administrative functions, wuhan city material storage and transportation company to obtain wuhan city mechanical and electrical equipment company of the assets involved in the case, is the administrative act of the competent government departments. The dispute belongs to the competent government departments in the process of administrative adjustment and transfer of state-owned assets, does not belong to the scope of the court's civil cases.
Therefore, disputes in the process of gratuitous transfer of enterprise state-owned assets should be submitted to the approval or competent authorities to resolve, depending on the circumstances of administrative litigation.
Fifth, the transfer of enterprise state-owned property rights without compensation for other issues
1, the transfer of enterprise state-owned property rights without compensation for the distinction between the transfer of state-owned assets
The transfer of enterprise state-owned property rights without compensation for the transfer of state-owned assets is independent of each other and different concepts. According to the "Chinese people's *** and state enterprise state-owned assets law" (hereinafter referred to as "enterprise state-owned assets law"), article 51, the transfer of state-owned assets, refers to the state's capital contribution to the enterprise's interests in accordance with the law to other units or individuals; in accordance with the state provisions of the gratuitous transfer of state-owned assets, except. Although the same as the transfer of state-owned assets, but the transfer of state-owned assets for the usual circumstances of the market transaction behavior with consideration, and enterprise state-owned property rights transfer without compensation is a state-owned property rights in the main body of the transfer of administrative behavior without consideration. In order to prevent the loss of state-owned assets, both gratuitous transfers and transfers need to be approved. When transferring, it is also necessary to fulfill the evaluation procedures and determine the minimum transfer price.
2, the gratuitous transfer of enterprise state-owned property rights need to go through the on-site trading procedures
According to the "enterprise state-owned assets law", article 54, in addition to direct agreement in accordance with state regulations can be transferred, the transfer of state-owned assets shall be in the legally established property rights trading venues openly. However, as mentioned earlier, the gratuitous transfer of enterprise state-owned property rights and the transfer of state-owned assets are different concepts independent of each other. The aforementioned requirements for on-market transactions do not cover the gratuitous transfer of enterprise state-owned property rights. In addition, according to the Interim Measures and the Working Guidelines, the procedure of gratuitous transfer of enterprise state-owned property rights does not require on-market transactions. The transfer of property rights in gratuitous transfers does not have a corresponding consideration, is not a typical trading behavior, and does not involve the loss of state-owned assets that may be caused by an unreasonable trading price, and the absence of trading is not contrary to the legislative intent of the protection of state-owned assets. Thus, after the standardized procedures and approved by the statutory departments of the gratuitous transfer of enterprise state-owned property rights, without the need to enter the transaction.
Sixth, conclusion
The gratuitous transfer of enterprise state-owned property rights is mainly for the purpose of state-owned economic layout and structural adjustment and optimization of industrial structure and improve the core competitiveness of enterprises, and need to comply with the requirements of the relevant reduction of the level of enterprise management. The gratuitous transfer of enterprise state-owned property rights is not a typical market property rights transaction, and is greatly influenced by administrative planning and industrial policies, and the administrative approval of the competent authorities is an important and critical link. In the process of integration and industrial layout adjustment of state-owned enterprises, especially central enterprises, gratuitous transfer will still be one of the important ways, which should be paid special attention to.