The first is the principle of conditional transfer.
In view of the social purpose of state-owned equity, it is necessary to conduct feasibility study, set up a reasonable equity structure and conduct strict asset evaluation and audit when transferring state-owned equity; In particular, it is necessary to prevent the rigid transfer of state-owned shares that are unnecessary or do not have the conditions for transfer. According to the current situation in China, the state should first conduct a comprehensive analysis and calculation of the state-owned shares of existing listed companies, and then determine which industries and companies need to transfer shares to the market and how much, and then formulate specific policies to organize the transfer and listing by stages. Because no matter in which country, the listing and transfer of state-owned shares has its specific scope, that is, only a part of state-owned shares can be transferred to non-state-owned shareholders through listing and transfer, and the shares suitable for the state to continue holding shares can decide whether to flow between state-owned units according to the specific situation. This is obviously a big project.
Second, the transfer of state-owned shares should be based on the principle of adjusting the investment structure and promoting the optimal allocation of state-owned assets.
State-owned enterprises are too widely distributed and scattered, so the government has done many things that it does not have to do. At the same time, there are some things that the government must do, but it is unable to do because of lack of funds. The result of the transfer of state-owned shares is to transfer state-owned shares from the state to another owner. Therefore, when transferring state-owned shares, we need to consider the purpose of establishing state-owned shares. For this principle, the provisions of China's current laws and regulations have been reflected.
Legal provisions on the transfer of state-owned shares
1, the concept of state-owned equity. According to the Interim Measures for the Administration of State-owned Equity of Joint Stock Limited Companies issued by the State Administration of State-owned Assets and the State Economic Restructuring Commission10.3, 1994, 165438 (these Provisions are applicable to limited liability companies by reference), the shares that have the right to contribute to the joint stock company on behalf of the state or that are obtained according to legal procedures are state shares. Registered as the shares held by the institution or department in a joint-stock company' The shares formed by state-owned enterprises, institutions and other units with legal personality to a joint-stock company independently of themselves or in accordance with legal procedures are state-owned legal person shares, which are registered as shares held by state-owned enterprises, institutions and other units in the equity registration of joint-stock companies. State-owned shares and state-owned corporate shares are collectively referred to as state-owned shares.
2. Requirements for the transfer of state-owned shares. According to the Interim Measures for the Administration of State-owned Equity of Joint Stock Limited Companies, the Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises and the Interim Measures for the Administration of the Transfer of State-owned Equity of Enterprises promulgated by SASAC and the Ministry of Finance and implemented on February/Kloc-0, 2004, the transfer of state-owned equity of a limited liability company should meet the following requirements: it is in line with laws, administrative regulations and policies, conducive to the strategic adjustment of the layout and structure of the state-owned economy, and can promote the optimal allocation of state-owned assets, with clear ownership. In the legally established property rights trading institutions; Take auction, bidding, agreement transfer or other means as prescribed by laws and administrative regulations; The state-owned assets supervision and administration institution or the investor agrees (if all or part of the state-owned shares are transferred so that the state no longer holds shares, it shall be approved by the government at the same level).
3, the state-owned equity transfer procedures.
① Internal review. It is necessary to do a good job in the feasibility study of the transfer of state-owned shares of enterprises, review them in accordance with internal decision-making procedures, and form a written resolution. The equity transfer of a wholly state-owned company shall be reviewed by the board of directors; If there is no board of directors, it shall be considered by the general manager's office meeting. Involving the legitimate rights and interests of employees, it shall listen to the opinions of the workers' congress of the transferred enterprise, and the placement of employees shall be discussed and approved by the workers' congress.
(2) examination and approval by investors. The state-owned assets supervision and administration institution decides the transfer of state-owned shares of the invested enterprises. Among them, the transfer of state-owned shares of enterprises leads to the state no longer having a controlling position, which shall be reported to the people's government at the corresponding level for approval. The invested enterprise decides to transfer the state-owned shares of its subsidiaries, but the major transfer of the state-owned shares of important subsidiaries shall be reported to the state-owned assets supervision and administration institution at the same level and countersigned by the financial department for approval. Among them, the examination and approval matters involving government social management need to be reported to the relevant government departments for examination and approval in advance.
③ Asset verification and audit. After the transfer of state-owned shares of an enterprise is approved or decided, the transferor shall organize the target company to carry out assets verification in accordance with the relevant provisions, prepare the balance sheet and asset transfer list according to the results of assets verification, and entrust an accounting firm to conduct a comprehensive audit.
④ Asset appraisal. On the basis of asset verification and audit, the transferor shall entrust an asset appraisal institution to conduct asset appraisal. After approval or filing, the evaluation report will be used as a reference for determining the transfer price of state-owned property rights of enterprises. In the process of property right transaction, when the transaction price is lower than 90% of the evaluation result, the transaction should be suspended and the transaction can be continued only with the consent of the relevant property right transfer examination and approval authority.
⑤ Information disclosure and collection of the transferee. The transferor shall entrust the equity transfer announcement to the property rights trading institution to publish on the websites of economic or financial newspapers and property rights trading institutions publicly issued at or above the provincial level, publicly disclose the information on the transfer of state-owned equity of enterprises, and solicit opinions from the transferee. The announcement period of property right transfer is 20 working days.
⑥ Sign the transfer agreement. A. Agreement mode: If only one transferee is produced after public solicitation or approval by the state-owned assets supervision and administration institution in accordance with relevant regulations, it can be transferred by agreement. If the key industries and fields of the national economy have special requirements for the transferee, the state-owned equity of the enterprise will be transferred to the state-owned property right of its holding enterprise in the asset reorganization, and it can also be transferred by agreement after being approved by the state-owned assets supervision and administration institution at or above the provincial level. B auction/bidding mode: when more than two transferees are produced by public solicitation, the transferor shall negotiate with the property rights trading institution and organize the implementation of equity trading by auction or bidding according to the specific conditions of the transferred object. After the transfer of state-owned equity of an enterprise is completed, the transferor and the transferee shall sign an equity transfer contract and obtain the property right transaction certificate issued by the property right transaction institution.
⑦ Fulfill the transfer agreement. In principle, the transferee shall pay the equity transfer price in one lump sum. If the amount is large, it is really difficult to pay in one lump sum, and installment payment can be adopted. If installment payment is adopted, the down payment of the transferee shall not be less than 30% of the total price and shall be paid within 5 working days from the effective date of the contract; The remaining funds provide legal guarantee, and the interest during the deferred payment period shall be paid to the transferor at the bank loan interest rate for the same period, and the payment period shall not exceed 1 year. The transferor and the transferee shall, on the strength of the property right transaction certificate issued by the property right transaction institution, handle the relevant property right registration formalities in a timely manner in accordance with the relevant provisions of the state.