Article 2 These Measures shall apply to China Huarong Asset Management Company, China Great Wall Asset Management Company, China Oriental Asset Management Company and China Cinda Asset Management Company established with the approval of the State Council.
These Measures shall apply to China Yin Jian Investment Co., Ltd. and Huida Asset Custody Co., Ltd.
Article 3 The term "asset disposal" as mentioned in these Measures refers to the business activities of an asset company that comprehensively uses various means and methods within its business scope in accordance with relevant laws and regulations to realize the value of acquired non-performing assets.
The management and disposal of non-performing assets entrusted by asset companies can be implemented with reference to these measures. If there are other provisions in the entrustment agreement, such provisions shall prevail.
Article 4 An asset company shall adhere to the principles of giving priority to benefits, strictly controlling risks, selecting the best in competition, openness, fairness and impartiality, and conduct the disposal in accordance with the provisions of relevant laws and regulations.
Article 5 An asset company shall follow the principles and methods of "separation of evaluation departments, separation of trial departments, collective deliberation, grading examination and approval, and reporting for the record". Article 6 An asset company must set up a special asset disposal audit institution to be responsible for auditing the asset disposal plan. The special audit institution for asset disposal of an asset company is composed of personnel from relevant departments of asset disposal and is responsible to the president of the asset company. An asset company may establish a reserve member library of professional audit institutions for asset disposal. Members and reserve members of specialized audit institutions for asset disposal should have certain qualifications, be familiar with asset disposal and related businesses, and have a strong sense of responsibility.
Branches of asset companies should also improve the disposal procedures, set up corresponding special audit institutions for asset disposal, and be responsible to the person in charge of the branches.
Article 7 An asset company and its branches must improve the internal control system and check-and-balance mechanism of asset disposal, clarify the responsibilities of various departments involved in asset disposal, and strengthen the internal supervision of asset disposal. Article 8 Without the approval of the special audit institution for asset disposal, an asset company may not dispose of the asset disposal plan, except for the asset disposal matters for which the people's court or arbitration institution has made an effective judgment or ruling. No individual in an asset company has the right to decide the disposal of assets independently, regardless of the amount and profit or loss.
Article 9 Procedures for examination and approval of asset disposal plans.
(1) The asset management and disposal department of the branch formulates the disposal plan, and after soliciting the opinions of relevant departments when necessary, submits the disposal plan and related materials (such as evaluation report and legal opinions) within the scope of authorization to the special audit institution for asset disposal of the branch for examination and approval, and the person in charge of the branch will approve the implementation. Beyond the scope of authorization, it shall be reported to the asset company for approval.
(II) The asset company designates the centralized department to conduct preliminary examination on the disposal plan reported by the branch company, and submit the disposal plan and preliminary examination opinions to the asset disposal special audit institution of the asset company for examination and approval, and then the president of the asset company will approve the implementation. Before the disposal plan submitted by the branch company is submitted to the asset disposal special audit institution of the asset company for review, the opinions of the asset appraisal, fund finance, legal and other departments should be sought if necessary.
(3) A special asset disposal audit institution of an asset company must notify all the members when convening an asset disposal audit meeting, and the meeting shall be valid only if there are more than 7 members (including 7) present; When the branch holds an asset disposal audit meeting, there must be more than 5 members (including 5 members) present, and the matters considered at the meeting are valid. All the participants voted on the disposal plan by secret ballot, and the one-person-one-vote system was implemented. Only when the number of attendees reaches more than two-thirds (including two-thirds) of the total number of participants can they pass.
Article 10 Basis and main points of review.
(1) The audit basis of the asset disposal plan is asset acquisition cost, evaluation value, due diligence and evaluation results, market price of similar assets, and national laws and regulations on asset management, asset disposal, asset evaluation, value verification and commodity (property right) transaction.
(2) The review of the asset disposal plan focuses on the cost-effectiveness, necessity and feasibility of the disposal plan, controllability of risks, compliance of evaluation methods, rationality of asset pricing and disposal expenses, and openness and compliance of disposal behaviors and procedures.
Article 11 The legal representative of an asset company and the heads of its branches shall be responsible for the process and results of asset disposal.
The legal representative of the asset company and the person in charge of its branches may attend the asset disposal audit meeting as nonvoting delegates, not participate in the asset disposal audit institution, and may not express opinions on the matters under consideration, but have the veto power over the asset disposal plan approved by the asset disposal audit institution. If the disposal plan is adjusted, if the adjusted disposal plan is inferior to the original disposal plan, it needs to be re-examined by the asset disposal special audit institution according to the asset disposal procedure.
When the vice president of an asset company and the deputy general manager (deputy director) of a branch participate in the special audit institution for asset disposal, they shall not express their personal opinions on whether to agree to the matters reviewed in advance when attending the meeting.
The person in charge of the department directly involved in asset disposal and relevant personnel may attend the asset disposal audit meeting of the asset disposal special audit institution as nonvoting delegates and introduce the relevant information of the asset disposal plan.
Audit, discipline inspection and supervision personnel of asset companies and branches shall attend the asset disposal audit meeting as nonvoting delegates.
Article 12 An asset company must implement the avoidance system in asset disposal. With the disposed assets, the assets transferee (the trustee), the entrusted assets appraisal institution and other individuals of the asset company in lineal relatives. It must be avoided in the whole process of asset disposal.
Thirteenth asset disposal projects that have been effectively judged, ruled or ruled by the people's court or arbitration institution will no longer be examined and approved by the special asset disposal audit institution. However, when the project is disposed of through mediation, reconciliation, waiver of all or part of litigation rights, application for termination of execution, application for bankruptcy, etc. , it shall be approved by the special asset disposal audit institution in advance.
Article 14 A branch shall not delegate the power to examine and approve the disposal of assets to its internal institutions and project teams.
Article 15 Asset companies and their branches shall report the progress of asset disposal to the Ministry of Finance and the local financial Ombudsman offices of the Ministry of Finance (hereinafter referred to as the Commissioner's Office) on a monthly basis. The contents of the report include asset disposal items, total creditor's rights, disposal methods, non-cash asset recovery, cash recovery, etc. Branches shall report to the Commissioner's Office for the record, for projects where the acquisition principal of a single asset disposal project is above RMB 65.438+million (including RMB 65.438+million) and the acquisition principal of a single asset package is above RMB 65.438+billion (including RMB 65.438+billion). Article 16 An asset company may dispose of its assets through debt recovery, lease, transfer, reorganization, asset replacement, entrusted disposal, debt-to-equity swap and asset securitization. Asset companies should explore disposal methods within the scope of business license approved by financial supervision departments in order to achieve the goal of maximizing disposal income.
Article 17 An asset company may, in accordance with the law, defend its rights and claim compensation from debtors and guarantors through announcements, lawsuits, etc. Strengthen the management of limitation of action to prevent various factors from losing their effectiveness.
When an asset company adopts litigation, it should consider the specific situation of the asset disposal project, avoid blindness and minimize the disposal cost.
Article 18 In the process of asset disposal, an asset company shall, according to the specific conditions of each asset disposal project and the principles of fairness, reasonableness, cost-effectiveness and efficiency, determine whether to conduct an evaluation and the specific evaluation methods.
When an asset company disposes of creditor's rights assets, an external independent appraisal agency can analyze the solvency, or determine the asset value through due diligence and internal valuation, without going through the formalities of asset appraisal and filing with the Ministry of Finance.
When an asset company disposes of assets by means of debt-to-equity swap, sale of equity assets (including equity assets of debt-to-equity swap projects approved by the State Council, the same below) or sale of real estate, in addition to tradable equity assets of listed companies, assets shall also be evaluated by an external independent evaluation agency. The equity assets of the debt-to-equity swap project approved by the State Council shall be filed in accordance with the relevant provisions on the management of state-owned assets appraisal projects; Other equity assets and real estate disposal projects do not need to be reported to the Ministry of Finance for filing, and the asset company shall go through the internal filing procedures.
The asset company shall determine the discount or reserve price of the assets to be disposed of with reference to the evaluation value or internal valuation.
Article 19 An asset company shall, in principle, transfer its assets by public bidding, including but not limited to bidding, auction, invitation to bid, public inquiry, etc. Among them, the disposal of non-performing assets by bidding shall be organized and implemented in accordance with the provisions of the Bidding Law of People's Republic of China (PRC). To dispose of assets by auction, a qualified auction agency shall be selected and implemented in accordance with the provisions of the Auction Law of People's Republic of China (PRC). The reserve price of bidding and auction shall be determined according to the asset disposal procedures.
In case of disposal by invitation to offer or public inquiry, two or more persons must participate in the bidding. When only one bidder bids, a supplementary announcement shall be made according to the announcement procedure, and if it is determined that no new bidder participates in the bidding, the transaction can be concluded after 7 working days.
An asset company may not transfer its assets to a non-state-owned transferee by agreement without public bidding disposal procedures.
Article 20 When an asset company sells the creditor's rights assets of state-owned enterprises (including wholly state-owned and state-controlled enterprises), it shall notify the state-owned enterprises and their investors or the state-owned assets management department in writing 15 days in advance.
Article 21 When an asset company disposes of equity assets by way of sale, if the transfer of equity assets of unlisted companies (including unlisted equity in debt-to-equity swap projects approved by the State Council, the same below) meets the following conditions, the asset company may transfer them to the original state-owned investors or enterprises designated by the state-owned assets department through direct agreement:
(a) the national laws and administrative regulations have special requirements for the transferee;
(2) Equity assets of key military enterprises engaged in the production of strategic weapons, related to national strategic security and involving state core secrets;
(3) Resource-based, monopolistic and other equity assets related to national economic security and the national economy and people's livelihood;
(four) other equity assets that are not suitable for public transfer as determined by the relevant government departments.
Article 22 Where an asset company directly agrees to transfer the equity assets of a non-listed company, the transfer price shall not be lower than the asset appraisal result, except for the following circumstances:
(1) If an asset company transfers its equity to the original state-owned investor in the debt-to-equity swap project approved by the State Council, it may not conduct asset appraisal after being examined by the Ministry of Finance in consultation with SASAC. On the basis of the audited net asset value per share, the two parties shall negotiate and determine the purchase price according to commercial principles, and the purchase price shall not be lower than the latest audited net asset value.
(2) The original shareholders of the debt-to-equity swap project approved by the State Council use the income tax of the debt-to-equity swap enterprise to return the equity of the debt-to-equity swap enterprise held by the company that purchased the assets without going through the disposal announcement and asset evaluation. Both parties shall determine the transfer price based on the audited net assets per share of the enterprise, which shall not be lower than the latest audited net assets.
Article 23 When an asset company disposes of equity assets by way of sale, except under the circumstances stipulated in Article 21 and Article 22 of these Measures, if the equity assets of debt-to-equity swap projects approved by the State Council and the equity assets of other unlisted companies exceed100000 yuan, it shall be conducted openly in the legally established property rights exchange market at or above the provincial level in accordance with relevant state procedures. The initial listing price shall not be lower than the asset appraisal result. When the transaction price is lower than 90% of the evaluation result, the transaction shall be suspended and the approval procedures for the internal disposal of the asset company shall be re-performed.
Article 24 When an asset company disposes of equity assets by way of sale, the transfer of equity assets of a listed company shall be conducted through a legally established securities trading system in accordance with the relevant provisions on the transfer management of state-owned assets of financial enterprises, and the transfer information shall be disclosed in accordance with the relevant provisions on securities trading.
Article 25 An asset company shall not transfer the following assets except to the government, government departments, investors and their designated institutions and asset companies: the debtor or guarantor is the creditor's right of the state organ; Creditor's rights of state-owned enterprises approved by the State Council to be included in the national enterprise policy closure and bankruptcy plan; Claims involving national security and sensitive information such as national defense and military industry; Other creditor's rights whose transfer is restricted by national laws and regulations.
Article 26 An asset company may not transfer non-performing assets to the following personnel: state civil servants, staff of financial supervision institutions, police officers of politics and law, staff of asset companies, debtor managers of state-owned enterprises, lawyers, accountants, appraisers and other intermediaries involved in asset disposal. The asset company has the obligation to remind the above-mentioned personnel not to buy assets in the disposal announcement.
Twenty-seventh asset companies can determine the assets to be packaged and transferred according to the asset disposal procedures. For packaged disposal projects, sampling method can be adopted, and the overall value of the asset package can be inferred through the evaluation or internal valuation of the sampled projects, and the reserve price for packaging transfer can be determined.
For assets (packages) mixed with commercial acquisition assets and policy assets, the asset company must reasonably determine the cost allocation of various assets and distribute the income according to the facts, and shall not make artificial adjustments.
Article 28 An asset company must make an announcement on the disposal of assets in accordance with the prescribed scope, contents, procedures and time, unless otherwise stipulated by relevant state policies. Special circumstances are not suitable for publication, and the relevant government departments shall issue certificates.
Article 29 When an asset company entrusts to dispose of assets, it must follow the principle that the recovered value is greater than the disposal cost, that is, the recovered value should be enough to pay the agency fees and the direct expenses such as legal fees, notarization fees, asset preservation fees and auction commissions generated in the process of agency disposal, and there is a balance.
Article 30 An asset company may absorb foreign capital, reorganize and dispose of its assets, and strictly implement the laws and relevant regulations on foreign investment in China. The disposal plan shall be determined according to the asset disposal procedure.
Asset companies should pay attention to introducing foreign advanced technology and management experience, promote the construction of modern enterprise system and enhance asset value.
Article 31 In the process of asset disposal, if an asset company needs to inject some funds in order to improve the value of disposal and recovery, it shall, within the scope of business license, handle it in accordance with the principle of marketization and asset disposal procedures.
Article 32 In order to avoid competitive price reduction, recover assets to the maximum extent and reduce asset losses, if two or more asset companies are involved in the disposal of assets by asset companies, communication and coordination should be strengthened, and * * * should do a good job in rights protection and recovery, and vicious competition should not occur between them.
Article 33 An asset company shall establish an asset preservation and recovery system, continue to retain the right of recovery for assets that have not been disposed of or finally disposed of, and continue to collect the rights and interests due to these assets (including accrued interest, off-balance sheet interest receivable, etc.). ).
After accepting the debt-paid assets, the asset company must ensure the safety of the assets, go through the handover procedures as soon as possible, and cash them at the right opportunity in accordance with the asset disposal procedures and the principle of maximizing recovery, and shall not deliberately delay or illegally use them for its own purposes. Asset companies should strengthen the maintenance of debt-paying assets and establish a regular liquidation system to avoid asset impairment caused by improper management. Article 34 An asset company shall establish and improve the ledger of asset disposal projects, implement project budget management for each asset disposal project, strengthen the planned management of asset recovery, disposal expenses and disposal gains and losses, and continuously track and monitor the progress of the project. For an asset disposal scheme (the amount is calculated by combining all debts of a single debtor), if the value of all recovered assets is expected to be less than the direct disposal cost, in principle, a more economical and feasible asset disposal scheme should be considered separately.
Thirty-fifth asset companies must strictly strengthen the management of asset disposal files in accordance with the relevant provisions of the state archives management. The information on the process and result of asset disposal must be complete and true. The examination opinions and voting results of the special audit institution for asset disposal must be truthfully recorded, and the minutes of the meeting shall be formed.
Thirty-sixth asset companies and individuals shall keep the asset disposal plan and results confidential. Unless otherwise stipulated by the state and the asset company must publish relevant information for the disposal of assets, it is strictly forbidden to disclose the asset disposal information of the asset company.
Article 37 According to the relevant regulations of the state, no unit or individual may interfere in the process of asset disposal, and the asset company must resist any unit or individual's interference in asset disposal.
Article 38 An asset company shall strengthen the management of the first-level legal person, establish and improve the restraint mechanism and authorization management with clear division of labor, improve the comparative analysis mechanism of various feasible schemes for asset disposal projects, and prohibit illegal means such as exceeding authorization, reversing procedures beyond authorization, false evaluation, and forging false records to dispose of assets. Various measures should be taken to substantially prevent commercial risks and moral risks, and assets should be disposed of according to the optimal scheme. Article 39 An asset company shall allocate the acquisition cost of the whole package of assets to the individual assets in the package in an appropriate way and include it in the acquisition cost of the individual assets of the household.
Article 40 An asset company shall adopt reasonable and prudent methods to determine the break-even point of asset disposal. When calculating the breakeven point, factors such as asset acquisition cost, financing cost, related costs and various taxes and fees incurred in the process of asset acquisition, management and disposal should be considered. If the estimated recovery value of the asset disposal project can make up for or exceed the above costs and taxes, it shall be regarded as reaching or exceeding the breakeven point; If it is not enough to cover various costs and taxes, it shall be regarded as not reaching the breakeven point, and the difference shall be the estimated loss.
Article 41 For asset disposal projects that reach or exceed the breakeven point, the asset company may determine the authorized amount of branches according to certain asset acquisition costs and actual conditions. Asset disposal projects within the authorized amount must be audited by the branch's special audit institution for asset disposal and approved by the person in charge of the branch; Asset disposal projects that exceed the authorized amount must be audited by the special audit institution for asset disposal of the asset company and approved by the president of the asset company.
Article 42 For asset disposal projects that have not reached the breakeven point, the asset company may, according to the actual situation and a certain expected loss, determine the authorized amount of branches. Asset disposal projects within the authorized amount must be audited by the branch's special audit institution for asset disposal and approved by the person in charge of the branch; Asset disposal projects that exceed the authorized amount must be audited by the special audit institution for asset disposal of the asset company and approved by the president of the asset company.
Article 43 In the process of asset disposal, the asset company shall review and issue opinions on the disposal of policy-related write-off creditor's rights such as merger and bankruptcy included in the plan of the National Leading Group for Enterprise Merger and Bankruptcy, and dispose of relevant creditor's rights from the date of approval or notification by relevant departments. Article 44 An asset company shall establish a system of due diligence and after-the-fact inspection on asset disposal, and audit the asset disposal of branches regularly or irregularly.
The audit, discipline inspection and supervision departments of the asset company and the Commissioner's Office set up a public report telephone number for asset disposal, truthfully record the contents of the report, and conduct verification and related investigations.
Article 45 The Ministry of Finance and the Commissioner's Office will organize regular or irregular spot checks on the compliance and disposal results of asset companies and their branches.
Forty-sixth of the following acts, resulting in the loss of state-owned assets, once verified, in accordance with the principle of people to things and the relevant provisions of the state, depending on the seriousness of the circumstances and the size of the loss, give corresponding economic penalties and administrative penalties; Violation of party discipline and discipline, handed over to the relevant discipline inspection and supervision departments; Suspected of illegal crimes, transferred to judicial organs:
(a) without the approval of the prescribed procedures, give up the rights and interests of the asset company;
(two) beyond the authority or without the approval of the prescribed procedures to dispose of assets;
(three) without the approval of the prescribed procedures, changing the disposal plan without authorization;
(4) Concealing or withholding the income from asset disposal, asset recovery and disposal;
(5) When allocating the acquisition cost, changing the established cost allocation principle of the asset company without the approval of the prescribed procedures;
(six) dereliction of duty, causing the debtor to evade debts;
(seven) internal and external collusion, collusion, disposal of assets;
(eight) black-box operation, internal transactions, private disposal;
(9) disclosing the business secrets of the asset company.
(10) Mismanaging the debt-paying assets and using them without the approval of the prescribed procedures, resulting in asset losses;
(eleven) to seek small collective interests and personal interests;
(twelve) the management of asset disposal files is chaotic;
(thirteen) other acts of asset loss caused by their own fault. Article 47 Equity assets under the capital of an asset company shall be implemented in accordance with the unified provisions on property rights registration, asset evaluation and property rights management of state-owned assets of financial enterprises.
Article 48 An asset company may formulate detailed rules for the implementation of asset disposal management according to these Measures and report them to the Ministry of Finance for the record.
Article 49 These Measures shall come into force as of the date of promulgation. The Notice of the Ministry of Finance on Printing and Distributing the Measures for the Administration of Asset Disposal of Financial Asset Management Companies (Revised) (Jin Cai [2004]4 1No.) shall be abolished at the same time. Where other provisions in the past are inconsistent with these Measures, these Measures shall prevail.