Introduction: Auditing in the process of enterprise restructuring is a new concept in China, which is produced with the gradual deepening of economic system reform and the development of enterprise restructuring. The so-called enterprise transformation is to transform wholly-owned state-owned enterprises into? A company limited by shares? Or? Limited liability company? . The core link of enterprise restructuring is the evaluation and determination of assets of restructured enterprises, and the audit of enterprise restructuring process is a monitoring means to ensure the safety of assets of restructured enterprises.
Reorganization is an important way for state-owned enterprises to get out of the predicament and establish a modern enterprise system. Under the socialist market economy system, enterprise restructuring has been carried out in an all-round way, and the production and operation of most enterprises after restructuring tend to be normalized and standardized. However, in practice, the enterprise restructuring has also exposed some problems that need to be improved and standardized. This paper discusses the problems existing in enterprise restructuring, hoping to avoid and learn from them in future work.
First, the problems of enterprise restructuring are mainly manifested in the following aspects:
(A) the assets evaluation of restructured enterprises is not standardized, and the loss of state-owned assets is serious.
In the process of enterprise restructuring, the restructured enterprises only pay attention to the evaluation of fixed assets such as real estate and equipment, but do not evaluate or evaluate intangible assets such as trademarks, patents, trade names and enterprise names. People who are interested in enterprise restructuring often try to remove the intangible assets accumulated by enterprises for many years from the total assets of enterprises in order to reduce the cost of purchasing equity, thus encroaching on state-owned assets and classifying them as existing assets. In order to revitalize enterprise assets as soon as possible, it is also common for party committees and governments not to evaluate or underestimate intangible assets. Moreover, there is a lack of proper supervision on whether the asset appraisal institution has the qualification and ability to evaluate the value of intangible assets and make accurate intangible assets appraisal. At the same time, in order to achieve their own goals, people engaged in the restructuring of enterprises often make speculative profits, falsely increase debts or falsely reduce assets, and try their best to reduce the value of the assets being evaluated by pulling relationships and entrusting people, which is also one of the reasons for the loss of state-owned assets.
(B) The property rights trading market in the process of enterprise restructuring is imperfect and lacks openness and transparency.
In the process of enterprise restructuring, enterprise property rights transactions are often not open to public bidding and auction, and party committees, governments and competent departments often adopt administrative means to realize enterprise restructuring through negotiation and transfer with operators interested in enterprise restructuring, zero transfer, etc. State-owned shares are sold without approval, and the Law on the Sale of State-owned Assets clearly stipulates that they can only be sold after approval by the department with the power of examination and approval. But in reality, many enterprises sell state-owned assets without approval, and the sale procedures are seriously illegal, which eventually leads to black-box operation and fails to protect state-owned assets to the maximum extent. In addition, in practice, most restructured enterprises are insolvent and cannot continue to operate. In the case of insolvency, the debt is far greater than the assets, which gives the operators engaged in restructuring some opportunities, so that they can offset the value of the purchased enterprise assets with debt without paying a penny, thus greatly benefiting. In addition, the old debts of Zhongyuan enterprises have not been cleared up in the enterprise restructuring, and there are still a large number of creditors and their abilities in reality, and there is no situation that creditors or property heirs do not seriously verify dormant account and bad debts. Blind offsetting of corporate debts will inevitably lead to a large number of state-owned and collective assets flowing to individuals, which will ultimately greatly harm the interests of the state, the collective and the broad masses of workers.
(3) Enterprise restructuring lacks mechanism constraints, and the phenomenon of debt evasion is still serious.
In the process of enterprise restructuring, the superior department in charge of the enterprise, the government's system reform department and the state-owned assets management department go hand in hand, and there is no unified leadership and supervision institution. The enterprise restructuring work carried out is out of touch with the competent government departments and functional departments such as property right registration of state-owned assets, real estate, industry and commerce, taxation, etc. , making these directors and functional departments unable to participate in enterprise restructuring. Especially in the case that the original enterprise's guaranteed debts have not been fully implemented, the registration is forcibly cancelled. Although the new enterprise took over the assets, it did not take responsibility, which made the creditor's rights unpaid for a long time, and the creditor's rights actually stopped, infringing on the interests of creditors. In addition, the administrative department focuses on the protection of local interests, underestimates and underestimates the state-owned and collective assets in the enterprise restructuring, and inflated debts? Turn a blind eye? . Enterprise restructuring may also lead to the transfer of debts to departments that have no ability to perform, which will make the restructured enterprises go into battle lightly and infringe on the interests of creditors. This is called reorganization, in fact, it is an evasion of debts, which harms the interests of creditors, the state, the collective and the broad masses of workers. There is also a situation where major shareholders play? Karate? Take state-owned assets as your own. Its basic practice is to take the assets of the enterprise as the guarantee, borrow money from the bank to buy shares, and then become the major shareholder of the enterprise. By this means, the enterprise was acquired and gained huge benefits. In most cases, employees of restructured enterprises will not actually contribute to the purchase of enterprise assets and form a limited liability company, but will offset the enterprise assets with the wages owed by the enterprise. This seems fair and reasonable on the surface, but in fact it is a way to avoid debt. In this way, the rights and interests of employees in this enterprise will be protected, and the original corporate responsibility property will be lost.
(d) Due to structural adjustment, the composition of wages is single-factor wages, and the reasonable elements of wages are destroyed.
The wages of workers are determined by various distribution factors, which embodies a scientific and reasonable distribution method, including the expenses for workers to solve their own survival, support their parents and educate their children. Before the enterprise restructuring, workers' wages were still paid according to the provisions. However, after the restructuring of enterprises, the leaders of some enterprises mistakenly believe that the government can't control the restructured enterprises, and the wages of workers are determined by the enterprises themselves, so they set their own wage standards: the wages of managers are high, the wages of workers are low, and many units are lower than the minimum wage; Some increase piecework at will to increase labor intensity, extend working hours in disguise, some cancel the necessary welfare benefits of workers such as seniority allowance, and some stipulate that the monthly attendance time is more than 25 days, which infringes on employees' legal right to rest and overtime treatment. These regulations have seriously damaged the legitimate wage components and seriously infringed on the interests of workers, especially the old workers who have made many years of contributions to the establishment of enterprises. After the restructuring of enterprises, it is obvious that they can no longer engage in posts that are inconsistent with their age because of their age, and they can only do what they can. Therefore, according to the unreasonable wage standards of enterprises, these old workers can only get simple and meager wages, and it is difficult to bear basic family responsibilities. Such wage standards are widespread in restructured enterprises, which has been enough to affect the long-term development of enterprises and social stability.
(E) There are many difficulties in the application of law in the trial of cases of restructured enterprises.
Because the process of enterprise restructuring is quite complicated, it is impossible to cover everything, and the majority of judges lack the overall concept of the trial of restructuring cases, which will inevitably lead to some disputes. How to deal with the debts omitted or evaded in the reorganization? Although the Supreme People's Court promulgated "Provisions on Several Issues Concerning the Trial of Civil Cases Related to Enterprise Restructuring" on June 35438+1October 3, 2003, China's corporate restructuring lacks standardization, and the debts formed for enterprise guarantee are often omitted, resulting in the original enterprise? Debt leakage? . The "Regulations" have no provisions on the liability for debt leakage. For example, if the evaluation report is untrue, whether the buyer will bear the excess debt; How to straighten out the relationship between new and old enterprises and the qualification of debt-bearing subject have not been clearly defined. Without the implementation of practical laws and regulations, the case of enterprise restructuring disputes has become a hot and difficult point in civil and commercial trials of people's courts. Disputes over enterprise restructuring are complex and involve a wide range, so we should handle them carefully. The people's courts should also coordinate from top to bottom, and the higher courts should guide the lower courts to handle disputes over enterprise restructuring. Otherwise, it will cause social instability. Therefore, it is extremely important to standardize and guide the smooth progress of enterprise restructuring according to law.
Second, suggestions and countermeasures to standardize enterprise restructuring
(a) establish and improve the supervision mechanism of state-owned and collective assets, establish a unified state-owned and collective assets management department, improve and standardize the legislation of enterprise restructuring. Unified management of state-owned and collective assets of restructured enterprises in China, strict asset management to prevent the loss of state-owned and collective assets. The unified state-owned assets management department manages the state-owned assets of restructured enterprises on behalf of the government. Through market-oriented operation, we can increase the transparency of the property rights trading market, maximize the revitalization of state-owned assets, prevent the loss of state-owned and collective enterprises' assets, achieve the goal of maintaining and increasing the value of state-owned and collective assets, reduce burdens and increase income, ensure a virtuous circle of enterprise restructuring, and safeguard the interests of the state, the collective and the broad masses of workers.
Through the perfection of legislation, enterprises (including non-state-owned enterprises) can obtain a perfect and clear legal system, standardize government behavior, dilute the administrative color of the government in enterprise restructuring, give full play to its supervisory and coordinating functions, give play to its service-oriented functions such as anti-monopoly control, guiding restructuring according to law, providing policies, regulations and preferential policies, and properly resettling laid-off workers, thus creating a good social soft environment for enterprise restructuring. At the same time, it is necessary to strengthen the supervision of restructured enterprises in accordance with the law, standardize the behavior of restructured enterprises by legal means, protect the interests of employees, and make restructured enterprises move toward the legal track.
(two) strictly in accordance with legal procedures, prohibit the sale of state-owned shares without approval. The sale of state-owned assets is expressly stipulated by the state, and it can only be sold after the approval of the department with the power of examination and approval. However, in reality, many enterprises sell state-owned assets without approval, and the sale procedure is seriously illegal. For such violations, the relevant departments should be advised to cancel them and resell them according to legal procedures.
(three) clear responsibilities, strengthen the supervision and management of intermediary institutions, and strengthen the formulation and improvement of laws and regulations on property rights transactions. Qualified intermediaries should conscientiously implement the relevant laws, regulations and policies of the state and adhere to? Open, fair and just? The principle of avoiding disputes in the restructuring, strict institutionalization of property right evaluation, auction and transaction announcement. Intermediaries that resort to deceit, conceal or omit debts in the evaluation report should be held accountable. In the transaction of property rights, we should learn from the relevant provisions of the bankruptcy law and try our best to avoid the phenomenon of harming the interests of creditors. In the process of restructuring, relevant property rights transfer procedures should be handled according to law, and the consent of creditors should be obtained, so as to avoid disputes in property rights transactions and promote social stability and economic development. Strictly regulate the behavior of intermediary institutions to ensure the smooth progress of restructuring.
(four) the establishment of specialized agencies or enterprises to reduce the risk of corporate responsibility. In the modern market economy, guarantee plays an important role in ensuring the smooth performance of debts. However, the uncertainty of secured debt often leads to the leakage of secured debt in enterprise restructuring. We should establish a risk prevention mechanism to prevent the occurrence of debt leakage in enterprise restructuring, put an end to mutual guarantee among enterprises, avoid mutual losses among enterprises, and improve their ability to resist risks. Therefore, it is necessary to establish professional institutions or enterprises. For example, the establishment of a special guarantee company can transfer the risk differentiation to the guarantee company, and China People's Insurance Company can also carry out special business to transfer the risk to the insurance company in the form of insurance, so as to reduce the risk of enterprises taking responsibility in their operations, make enterprises really go into battle lightly, ensure the smooth operation of enterprises and promote regional economic development.
(five) do a good job in the placement of workers and social security, and earnestly safeguard the legitimate rights and interests of workers. The issue of workers' placement, social security and protection of workers' rights and interests is a major event in the restructuring work, which is related to the overall situation of social stability, and the party and the government also attach great importance to it. Because China's system is socialist public ownership, the relationship between employees and managers of enterprises is not a complete employment relationship, and workers also enjoy the democratic right to participate in enterprise supervision and management according to law. In joint-stock and joint-stock cooperative enterprises, employees are both employees and shareholders, and they are not employed. By creating employment opportunities, government departments establish and improve relief mechanisms for laid-off workers and social security mechanisms such as endowment insurance and medical insurance, fully protect the interests of workers, set reasonable wage standards, limit the absolute power of enterprises, and relieve their worries. Labor departments should standardize labor contracts and strengthen supervision and management. Supervise the restructuring enterprises to sign labor contracts with employees, strictly abide by the labor law, and avoid infringing on the rights and interests of employees. Labor, arbitration, supervision and judicial departments should properly handle labor disputes, give priority to safeguarding the legitimate rights and interests of employees, promote social order stability, safeguard the autonomy of enterprises in employment, and ensure the healthy operation of enterprises without worries.
(six) actively play the judicial role of the people's courts in the enterprise restructuring, and deal with disputes arising in the enterprise restructuring. The following judicial policies and principles should be grasped in handling cases of restructured enterprises:
1, determination of debt items concealed or omitted in the sale of enterprises
Flexible application of the principle of transferring debts with assets. When selling an enterprise, the creditor shall be notified with reference to the relevant provisions of the Company Law. If the creditor declares his creditor's rights during the announcement period, the buyer shall bear civil liability. The buyer can claim compensation from the seller again. If the creditor fails to declare the creditor's rights, the creditor shall claim the creditor's rights from the seller, and the seller shall bear corresponding civil liabilities. If the seller fails to notify the creditors by public announcement with reference to the relevant provisions of the Company Law, or if the notice is notified to the creditors by public announcement, it will have no legal effect, and the seller shall bear civil liability for the debts concealed or omitted in the sale of the enterprise.
2, the determination of the debt undertaker concealed or omitted in the enterprise merger.
After the merger of enterprises, the debts of the merged enterprise shall be borne by the merging party or the new manager in principle. If both parties have fulfilled the announcement procedures, the hidden or omitted debts shall be borne by the merging party or the new manager. If the creditor fails to declare his rights during the announcement period, friendly merger will not bear the part of concealing or omitting debts. Hidden or omitted debts shall be borne by the original asset manager of the merged enterprise. If the merging party knows or should know, it shall still bear this part of the debt. The new merger is completely different. If the creditor fails to declare his rights within the announcement period, the surviving enterprise, as the merging party, will also bear this part of the debt. Failing to perform the procedure of notifying creditors by public announcement, or the notice of creditors by public announcement has no legal effect. Hidden or omitted debts shall be borne by the surviving enterprise or newly established enterprise legal person after the merger.
3. Correctly handle the problems of internal staff salaries and equity transfer financing in enterprise restructuring.
The employees' wages and capital conversion within the enterprise will change the ownership structure of the enterprise, but the total assets of the enterprise will not decrease. In order to avoid debt, enterprises turn employees' wages and fund-raising into equity of newly established enterprises, and then offset them with some assets to invest in new enterprises. The original enterprise was malicious, used enterprise reorganization to divest assets, evaded debts, and infringed on the interests of creditors. Therefore, the new enterprise should bear joint and several liability for the debts of the original enterprise.
4. Disposal of debts of the original enterprise after separation.
First, respect the principle agreed by the parties. If there is an agreement on the debts of the original enterprise, it shall be handled according to the agreement of the parties with the consent of the creditors. The second is the statutory principle. If the parties have no agreement on the debt or the agreement is unclear, or if there is an agreement but the creditor does not agree, the separate enterprise shall bear joint and several liability. Debt sharing or recovery between separated enterprises shall be shared according to the agreed or separated asset ratio.
5. The overall transformation of China enterprises is the responsibility of the company.
As long as the whole enterprise is restructured, the debts of the original enterprise will be borne by the restructured company. When a state-owned enterprise is transformed into a wholly state-owned company, all its assets are invested in the wholly state-owned company, and the legal person status of the original state-owned enterprise is eliminated. A wholly state-owned company after restructuring should be a continuation of state-owned enterprises. There is an inheritance relationship between the newly established company and the original enterprise, and the creditor's rights and debts of the original enterprise are generally transferred to the reorganized company.
6, part of the enterprise restructuring for the company's responsibility.
Generally, it should be handled according to the following principles: First, respect the principle agreed by the parties. If the assigned debt is approved by the creditor, it shall be deemed as valid as long as the agreement does not violate the mandatory provisions of the law. According to the agreement, it will be borne by the new company. If the creditor is not recognized, it shall be borne by the original enterprise and has nothing to do with the new company. The second is the principle that debt follows assets. This principle applies to the situation that the original enterprise is unable to pay off its debts after reorganization. The new company shall be jointly and severally liable with the original enterprise within the scope of the property it receives.
7, the problem of enterprise shareholding system reform.
From the external point of view of the enterprise, the legal person qualification of the enterprise has not been eliminated, and the debt property of the enterprise legal person still continues its original state and does not transfer under the principle of relativity. In other words, the debts of the original enterprises are all borne by the reformed joint-stock system. In case of debt leakage, the restructured enterprise has the right to recover from the original asset manager (investor) after undertaking it. Before the implementation of the enterprise shareholding system reform, the creditors shall be notified within ten days from the date of making the reform resolution, and shall be announced in the newspaper at least three times within thirty days. If the creditor declares his creditor's rights to the enterprise within the three-month announcement period, the creditor has the right to claim rights from the restructured enterprise, and the restructured enterprise has the right to recover from the asset manager of the original enterprise. If you don't declare, you will lose the right to the restructured enterprise, and you can only claim the right from the asset manager (investor) of the original enterprise.
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