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. According to the examination and approval procedures stipulated in the present Measures, after the transfer of state-owned property rights of an enterprise is approved or decided, the transferor shall, in accordance with the relevant provisions, organize the transfer target enterprise to conduct asset verification, prepare the balance sheet and asset transfer list according to the results of asset 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. 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. The transferor shall entrust the property rights transfer announcement to the property rights trading institution to publish it 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 property rights of enterprises, and extensively solicit the opinions of the transferee. The announcement period of property right transfer is 20 working days.
The information on the transfer of state-owned property rights of enterprises disclosed by the transferor shall include the following contents:
(a) the basic situation of the transfer target;
(2) the composition of the property rights of the target enterprise;
(three) the internal decision-making and approval of property rights transfer;
(4) The audited main financial index data of the transfer target enterprise;
(five) the evaluation, approval or filing of the assets of the transfer target enterprise;
(six) the basic conditions that the transferee should have;
(seven) other matters that need to be disclosed. When collecting the transferee, the transferor may put forward the necessary transferee conditions for the transferee's qualification, business reputation, operating status, financial status, management ability and asset scale.
The transferee shall generally meet the following conditions:
(a) has a good financial situation and ability to pay;
(2) Having good commercial credit;
(3) If the transferee is a natural person, it shall have full capacity for civil conduct;
(4) Other conditions stipulated by national laws and administrative regulations. When more than two transferees are produced by public solicitation, the transferor shall negotiate with the property right transaction institution and organize the implementation of property right transaction by auction or bidding according to the specific conditions of the transfer target.
The transfer of state-owned property rights of enterprises by auction shall be organized and implemented in accordance with the Auction Law of People's Republic of China (PRC) and relevant regulations.
The transfer of state-owned property rights of enterprises through bidding shall be organized and implemented in accordance with relevant state regulations.
After the transfer of state-owned property rights of an enterprise is completed, the transferor and the transferee shall sign a property right transfer contract and obtain the property right transaction certificate issued by the property right transaction institution. If only one transferee is produced through public solicitation or 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. The contract for the transfer of state-owned property rights of enterprises shall include the following main contents:
(a) the name and domicile of the transferor and the transferee;
(two) the basic situation of the transfer of state-owned property rights of the target enterprise;
(three) the employee placement plan involved in the transfer of the target enterprise;
(4) Transferring the creditor's rights and debts involved in the target enterprise;
(5) the mode of transfer, the transfer price, the time and method of payment and the terms of payment;
(six) the delivery of property rights;
(seven) the relevant tax burden involved in the transfer;
(eight) the way to solve the contract dispute;
(9) Liability of the parties to a contract for breach of contract;
(10) Conditions for the alteration and dissolution of the contract;
(1 1) Other terms deemed necessary by both parties.
If the transfer of state-owned property rights of an enterprise results in the transferor no longer holding a controlling position, when signing a property right transfer contract, the transferor shall negotiate with the transferee to put forward a plan for enterprise restructuring, including a plan for giving priority to the employees of the transferred enterprise under the same conditions. The transferee shall pay the full price of the transfer of state-owned property rights of the enterprise in accordance with the stipulations of the property rights transfer contract.
In principle, the transfer price should be paid 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. 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 laws, administrative regulations and the 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. To decide or approve 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. The transfer scheme of state-owned property rights of enterprises shall 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. In the process of transferring the state-owned property rights of an enterprise, if the transferor, the target enterprise and the transferee commit one of the following acts, the state-owned assets supervision and administration institution or the relevant examination and approval institution for the transfer of state-owned property rights of the enterprise shall require the transferor to terminate the property rights transfer activities, and bring a lawsuit to the people's court according to law when necessary to confirm that the transfer behavior is invalid.
(1) Failing to conduct transactions in property rights trading institutions in accordance with the relevant provisions of these Measures;
(two) the transferor and the target enterprise do not perform the corresponding internal decision-making procedures and approval procedures, or transfer the state-owned property rights of the enterprise without authorization;
(3) The transferor and the target enterprise intentionally conceal the assets that should be included in the evaluation scope, or provide false accounting information to the intermediary institutions, resulting in the distortion of the audit evaluation results and the loss of state-owned assets without audit evaluation;
(four) the transferor and the transferee collude to transfer the state-owned property rights at a low price, resulting in the loss of state-owned assets;
(5) The transferor and the target enterprise of the transfer fail to properly arrange the employees, continue the social insurance relationship, handle the debts owed to the employees, and pay the social insurance premiums owed, thus infringing upon the legitimate rights and interests of the employees;
(six) the transferor fails to implement the creditor's rights and debts of the target enterprise in accordance with the provisions, illegally transfers the creditor's rights or evades the debt repayment responsibility; Taking the state-owned property right of an enterprise as a guarantee and transferring the state-owned property right without the consent of the guaranteed party.
(seven) the transferee uses fraud, concealment and other means to influence the selection of the transferor and the signing of the property right transfer contract;
(eight) the transferee in the transfer of property rights bidding, auction, malicious collusion to lower the price, resulting in the loss of state-owned assets.
The person-in-charge and other directly responsible personnel who are directly responsible for the above acts of the transferor and the target enterprise shall be given a warning by the state-owned assets supervision and administration institution or related enterprises in accordance with the personnel management authority, and if the circumstances are serious, disciplinary sanctions shall be given, and those who cause losses to state-owned assets shall be liable for compensation; If the losses of state-owned assets are caused by the responsibility of the transferee, the transferee shall compensate the transferor for the economic losses according to law; If the case constitutes a crime, it shall be transferred to judicial organs for criminal responsibility. These Measures shall come into force as of February 6, 2004.