1, Company Law of People's Republic of China (PRC)
Article 72 Shareholders of a limited liability company may transfer all or part of their shares to each other.
Shareholders' transfer of equity to persons other than shareholders shall be approved by more than half of other shareholders. Shareholders shall notify other shareholders in writing to agree to the transfer of their shares. If other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have agreed to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the transferred equity; Do not buy, as agreed to transfer.
Under the same conditions, other shareholders have the priority to purchase the equity transferred with the consent of shareholders. If two or more shareholders claim to exercise the preemptive right, their respective purchase proportions shall be determined through consultation; If negotiation fails, the preemptive right shall be exercised in accordance with their respective investment proportions at the time of transfer.
Where there are other provisions on equity transfer in the articles of association, such provisions shall prevail.
2. Judicial Interpretation of Company Law III
Article 25 Where the actual investor of a limited liability company enters into a contract with a nominal investor, stipulating that the actual investor contributes capital and enjoys investment rights and interests, and the nominal investor is a nominal shareholder, and there is a dispute between the actual investor and the nominal shareholder on the validity of the contract, the people's court shall consider the contract valid.
The people's court shall support the dispute between the actual investor and the nominal shareholder on the ownership of the capital contribution rights as stipulated in the preceding paragraph, and the actual investor claims the rights to the nominal shareholder on the grounds of actually fulfilling the capital contribution obligations. If a nominal shareholder denies the rights of the actual investor on the grounds that the register of shareholders of the company has been recorded and registered by the company registration authority, the people's court will not support it.
Without the consent of more than half of the other shareholders of the company, if the actual investor requests the company to change its shareholders, issue a capital contribution certificate, record it in the register of shareholders, record it in the articles of association and register it with the company registration authority, the people's court will not support it.
Article 26 If a nominal shareholder transfers, pledges or otherwise disposes of the equity registered in his name, and the actual investor requests that the disposition of the equity be deemed invalid on the grounds that he has actual rights to the equity, the people's court may refer to the provisions of Article 106 of the Property Law.
The people's court shall support the nominal shareholder's disposition of equity, which causes losses to the actual investor, and the actual investor requests the nominal shareholder to bear the liability for compensation.
Article 27 If the creditors of a company claim that the shareholders registered in the company registration authority have failed to fulfill their capital contribution obligations, and require them to bear supplementary compensation responsibilities for the portion of the company's debts that cannot be repaid within the scope of unfulfilled principal and interest, and the shareholders argue that they are only nominal shareholders and not actual investors, the people's court will not support them.
If a nominal shareholder claims compensation from the actual investor after assuming the liability for compensation in accordance with the provisions of the preceding paragraph, the people's court shall support it.
Article 28 If the original shareholder transfers, pledges or otherwise disposes of the equity still registered in his name after the equity transfer, and the transferee shareholder requests that the equity disposition is invalid on the grounds that he has actual rights to the equity, the people's court may refer to the provisions of Article 106 of the Property Law.
If the transferee requires the original shareholders and the directors, senior managers or actual controllers who are at fault for failing to register the change in time to bear the liability for compensation, the people's court shall support it. If the transferee shareholder is also at fault for failing to register the change in time, the responsibilities of the above directors, senior managers or actual controllers may be appropriately reduced.
Article 29. Where the capital contribution is made in the name of another person and the other person is registered as a shareholder in the company registration authority, the person who falsely registered shall bear the corresponding responsibilities; The people's court shall not support the company, other shareholders of the company or creditors who require the shareholders registered with false names to bear the responsibility of making up the capital contribution or compensating the outstanding part of the company's debts on the grounds that they have not fulfilled their capital contribution obligations.
3. People's Republic of China (PRC) State-owned Assets Law
Section 5 Transfer of State-owned Assets
Article 51 The term "transfer of state-owned assets" as mentioned in this Law refers to the act of transferring the rights and interests formed by the state's investment in enterprises to other units or individuals according to law; Except for the transfer of state-owned assets free of charge in accordance with state regulations.
Article 52 The transfer of state-owned assets shall be conducive to the strategic adjustment of the layout and structure of the state-owned economy, prevent the loss of state-owned assets, and shall not harm the legitimate rights and interests of all parties to the transaction.
Article 53 The transfer of state-owned assets shall be decided by the institution that performs the responsibilities of the investor. Where the institution performing the responsibilities of investor decides to transfer all state-owned assets, or transfer some state-owned assets so that the state no longer has a controlling position in the enterprise, it shall report to the people's government at the corresponding level for approval.
Article 54 The transfer of state-owned assets shall follow the principles of equal compensation, openness, fairness and impartiality.
Unless it can be directly transferred by agreement in accordance with state regulations, the transfer of state-owned assets shall be conducted in public at the legally established property rights trading place. The transferor shall truthfully disclose relevant information to attract the transferee; If there are more than two transferees in the bidding, the transfer shall be made through public bidding.
The transfer of listed shares shall be conducted in accordance with the provisions of the Securities Law of People's Republic of China (PRC).
Article 55 The transfer of state-owned assets shall be based on the price assessed according to law, recognized by the institution that performs the investor's duties or reported to the people's government at the same level for approval by the institution that performs the investor's duties, and the minimum transfer price shall be reasonably determined.
Article 56 The state-owned assets that can be transferred to the directors, supervisors and senior managers of this enterprise or their close relatives or the enterprises owned or actually controlled by these personnel as stipulated by laws, administrative regulations or the state-owned assets supervision and administration institution of * *, if these personnel or enterprises participate in the transferee at the time of transfer, they shall bid on an equal footing with other transferee participants; The transferor shall truthfully disclose relevant information in accordance with the relevant provisions of the state; Relevant directors, supervisors and senior management personnel shall not participate in the formulation and organization of the transfer plan.
Article 57 The transfer of state-owned assets to overseas investors shall conform to the relevant provisions of the state and shall not endanger national security and public interests.
4 Interim Measures for the administration of the transfer of state-owned property rights of enterprises
Article 2 These Measures shall apply to the activities of state-owned assets supervision and administration institutions and state-owned capital holding enterprises (hereinafter referred to as the transferor) to transfer state-owned property rights to domestic and foreign legal persons, natural persons or other organizations (hereinafter referred to as the transferee) for compensation.
The transfer of state-owned property rights of financial enterprises and the transfer of state-owned shares of listed companies shall be carried out in accordance with relevant state regulations.
The term "state-owned property rights of enterprises" as mentioned in these Measures refers to the rights and interests formed by various forms of state investment in enterprises, the rights and interests enjoyed by state-owned and state-holding enterprises, and other rights and interests recognized as state-owned according to law.
Article 4 The transfer of state-owned property rights of enterprises shall be conducted openly in legally established property rights trading institutions, and shall not be restricted by regions, industries, capital contribution and affiliation. Where there are other provisions in national laws and administrative regulations, those provisions shall prevail.
Article 5 The transfer of state-owned property rights of enterprises can be conducted by auction, bidding, agreement transfer and other means as stipulated by national laws and administrative regulations.
Article 8 The state-owned assets supervision and administration institution shall perform the following supervisory duties on the transfer of state-owned property rights of enterprises:
(a) according to the provisions of the relevant laws and administrative regulations of the state, formulate the supervision system and measures for the transaction of state-owned property rights of enterprises;
(two) to decide or approve the transfer of state-owned property rights of the invested enterprises, study and consider major property rights transfer matters and report them to the people's government at the same level for approval;
(three) to select and determine the property rights trading institutions engaged in state-owned property rights trading activities of enterprises;
(four) responsible for the supervision and inspection of state-owned property rights transactions of enterprises;
(five) responsible for the collection, summary, analysis and reporting of information on the transfer of state-owned property rights of enterprises;
(six) to perform other supervisory duties entrusted by the government at the same level.
The term "invested enterprises" as mentioned in these Measures refers to enterprises authorized by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government and the people's governments of cities and autonomous prefectures divided into districts to perform the responsibilities of investors.
Chapter III Procedures for Transfer of State-owned Property Rights of Enterprises
Eleventh enterprises should do a good job in the feasibility study of the transfer of state-owned property rights, review in accordance with internal decision-making procedures, and form a written resolution.
The transfer of property rights of a wholly state-owned enterprise shall be considered by the general manager's office meeting. The transfer of property rights 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.
Article 12 In accordance with the examination and approval procedures stipulated in these Measures, after the transfer of state-owned property rights of an enterprise is approved or decided, the transferor shall organize the transfer target enterprise 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 (including the outgoing audit of the legal representative of the transfer target enterprise in accordance with the relevant provisions of the state). The identification and write-off of asset losses shall be handled in accordance with relevant state regulations.
If the transferor no longer holds a controlling position due to the transfer of state-owned property rights of the invested enterprise, the state-owned assets supervision and administration institution at the same level shall organize assets verification and entrust social intermediary institutions to carry out related business. Social intermediary institutions shall conduct business independently and impartially according to law. Enterprises and individuals shall not interfere with the normal practice of social intermediary institutions.
Article 13 On the basis of asset verification and audit, the transferor shall, in accordance with the relevant provisions of the state, entrust an asset appraisal institution with corresponding qualifications 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.
Article 18 If there is only one transferee through public solicitation or it is approved by the state-owned assets supervision and administration institution in accordance with relevant regulations, it may be transferred by agreement.
In case of transfer by agreement, the transferor shall fully negotiate with the transferee, properly handle the related matters involved in the transfer according to law, initialled the property right transfer contract, and conduct deliberation according to the procedures specified in Article 11 of these Measures.
Chapter IV Examination and Approval Procedures for the Transfer of State-owned Property Rights of Enterprises
Article 25 The state-owned assets supervision and administration institution decides on the transfer of state-owned property rights of the invested enterprises. Among them, the transfer of state-owned property rights of enterprises, so that the state no longer has a holding position, should be reported to the people's government at the same level for approval.
Twenty-sixth funded enterprises independently decide the transfer of state-owned property rights of their subsidiaries. Among them, the transfer of major state-owned property rights of important subsidiaries shall be reported to the state-owned assets supervision and administration institution at the same level for approval after being countersigned by the financial department. 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.
Article 27 Where the transfer of state-owned property rights of enterprises involves the change of the nature of state-owned shares of listed companies or the transfer of actual control rights, it shall abide by the laws, administrative regulations and provisions of relevant regulatory authorities.
If the state has other provisions on the management of the transfer of state-owned shares of unlisted joint stock limited companies, such provisions shall prevail.
Twenty-eighth decision or approval of the transfer of state-owned property rights of enterprises, the following written documents shall be examined:
(a) the relevant resolutions on the transfer of state-owned property rights of enterprises;
(two) the transfer plan of state-owned property rights of enterprises;
(three) the transferor and the target enterprise's property right registration certificate of state-owned assets;
(4) Legal opinions issued by law firms;
(five) the basic conditions that the transferee should have;
(six) other documents required by the examination and approval authority.
Twenty-ninth enterprise state-owned property rights transfer scheme should generally include the following contents:
(a) the basic situation of the transfer of state-owned property rights of the target enterprise;
(two) the relevant demonstration of the transfer of state-owned property rights of enterprises;
(three) the employee placement plan involved in the transfer of the target enterprise audited by the administrative department of labor and social security where the enterprise is located;
(four) the creditor's rights and debts involved in the transfer of the target enterprise, including the debts owed to the employees;
(five) the disposal plan of the proceeds from the transfer of state-owned property rights of enterprises;
(six) the main contents of the announcement of the transfer of state-owned property rights of enterprises.
If the transfer of state-owned property rights of an enterprise results in the transferor no longer holding a controlling position, it shall be accompanied by the relevant creditor-debtor agreement agreed in writing by the creditor-debtor financial institution, the resolution of the workers' congress to consider the employee resettlement plan, etc.