in violation of the regulations on the management of state-owned property, in the process of enterprise restructuring, merger and division, related party transactions, etc., those who transfer at a low price, conspire to divide up, guarantee without authorization or otherwise cause losses to state-owned property shall bear legal responsibilities according to law.
Explain that this article is about the legal liability of state-owned property management.
strengthening the protection of state-owned property and effectively preventing the loss of state-owned property is an important part of consolidating and developing the public-owned economy. From the main situation of the loss of state-owned property, we should strengthen the protection of state-owned property and effectively prevent the loss of state-owned property. On the one hand, we should strengthen the management and supervision of state-owned property; On the other hand, it is necessary to clearly stipulate the legal responsibilities that should be borne for the loss of state-owned property. The management and supervision of state-owned property, as well as the legal responsibility for the loss of state-owned property, have been stipulated in the company law, criminal law and other laws, as well as administrative regulations and departmental rules for the supervision of state-owned property. Property law focuses on strengthening the protection of state-owned property from its adjustment scope, effectively preventing the loss of state-owned property, and makes provisions linking with the laws on state-owned property supervision. Therefore, the first paragraph of this article provides for the institutions and their staff who perform the duties of state-owned property management and supervision to effectively perform their duties, while the second paragraph provides for the outstanding problems of the loss of state-owned property in reality.
(I) Responsibilities of State-owned Property Management and Supervision Institutions and Their Staff
According to the spirit of the 16th National Congress of the Communist Party of China and the Second Plenary Session of the 16th Central Committee on deepening the reform of the state-owned assets management system and establishing a special state-owned assets management and supervision institution, the State-owned Assets Supervision and Administration Commission of the State Council was established with the approval of the First Session of the Tenth National People's Congress. Local governments have also set up corresponding state-owned assets supervision and administration institutions. The Third Plenary Session of the 16th CPC Central Committee decided to put forward: "State-owned assets management institutions shall perform the investor's duties for the state-owned capital authorized for supervision, safeguard the owner's rights and interests, safeguard the rights enjoyed by enterprises as market entities according to law, and urge enterprises to maintain and increase the value of state-owned capital to prevent the loss of state-owned assets." According to the above requirements, the State-owned Assets Supervision and Administration Commission of the State Council, in addition to fulfilling the responsibilities of investors in accordance with the Company Law and other laws and administrative regulations, has the following main responsibilities: (1) guiding and promoting the reform and restructuring of state-owned enterprises; Supervise the maintenance and appreciation of the state-owned assets of the supervised enterprises and strengthen the management of state-owned assets; Promote the modern enterprise system construction of state-owned enterprises and improve the corporate governance structure; Promote the strategic adjustment of the structure and layout of state-owned economy. (2) On behalf of the state, sending supervisory committees to some large enterprises; Responsible for the daily management of the board of supervisors. (3) Appoint, remove and assess the person in charge of the enterprise through legal procedures, and reward and punish according to its business performance; Establish a mechanism for selecting and employing people that meets the requirements of the socialist market economic system and modern enterprise system, and improve the incentive and restraint system for operators. (4) to supervise the maintenance and appreciation of state-owned assets under supervision through statistics and auditing; Establish and improve the index system of maintaining and increasing the value of state-owned assets, and formulate assessment standards; Safeguard the rights and interests of investors in state-owned assets. (5) Drafting laws and administrative regulations on the management of state-owned assets and formulating relevant rules and regulations; Guide and supervise the management of local state-owned assets according to law. There are three other points to note: First, the institutions that perform the duties of state-owned assets management and supervision are not only the state-owned assets supervision and management committees (bureaus) established by the central government and local governments, but also other institutions, such as the finance department, audit department, water conservancy department, foreign exchange management department, banking supervision committee, etc., as well as the state-owned property management departments established by state organs and state-sponsored institutions, all of which have certain duties of state-owned property management and supervision. Second, the state-owned property supervision and administration institutions should support enterprises to operate independently according to law, and shall not interfere with the production and business activities of enterprises except performing the duties of investors. Third, this article emphasizes the responsibility of the staff of the state-owned property management and supervision institutions. If they abuse their powers and neglect their duties, resulting in the loss of state-owned property, they will also bear administrative and criminal responsibilities according to law. As stipulated in Article 397 of the Criminal Law, any functionary of a state organ who abuses his power or neglects his duty, thus causing heavy losses to public property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.
(II) Legal liability for the loss of state-owned property caused by violation of regulations on the management of state-owned property
It is understood that the loss of state-owned property mainly occurs in the process of restructuring, merger and separation and related party transactions of state-owned enterprises.
the restructuring of state-owned enterprises refers to the establishment of a modern enterprise system with property rights as the core, which conforms to the laws of the market economy, through reorganization, association, merger, leasing, contracted operation, joint venture, transfer of state-owned property rights, joint-stock system and joint-stock cooperative system. Nowadays, the corporatization reform of state-owned enterprises has been basically completed. Except for some institutions with the nature of government functions or occupying monopoly resources, which still retain wholly state-owned property rights structure, most state-owned enterprises have diversified their investment subjects and established a modern enterprise management system with shareholders' meeting, board of directors and board of supervisors as the main symbols. In the process of restructuring state-owned enterprises, assets verification, financial audit, asset evaluation and information disclosure must be carried out according to law. Involving the transfer of state-owned property rights, auction, bidding and other bidding transfer methods and other ways stipulated by national laws and regulations shall be adopted.
the separation of state-owned enterprises refers to the division of a state-owned enterprise as a legal person into two or more legal persons. Enterprises retained due to division shall apply for registration of change; Enterprises newly established due to division shall apply for business registration. The merger of state-owned enterprises refers to the merger of two or more state-owned enterprise legal persons into one enterprise legal person or a new enterprise legal person. Enterprises retained due to merger shall apply for registration of change, and enterprises terminated due to merger shall apply for cancellation of registration; Enterprises newly established due to merger shall apply for business registration. When an enterprise as a legal person is divided or merged, its rights and obligations shall be enjoyed and assumed by the legal person after the division or merger.
related party transactions in this article refer to transactions between related parties of an enterprise. According to the Accounting Standards for Enterprises-Disclosure of Related Party Relations and Transactions promulgated by the Ministry of Finance in 1997, if one party has the ability to directly or indirectly control, * * * control the other party or exert significant influence on the other party, it is regarded as a related party; If two or more parties are controlled by the same party, they are also regarded as related parties. Control here refers to the right to decide the financial and business policies of an enterprise, and to obtain benefits from the business activities of the enterprise accordingly. The so-called significant influence refers to the power to participate in the decision-making of an enterprise's financial and operating policies, but it does not decide these policies. The ways to participate in decision-making mainly include: sending representatives to the board of directors or similar authority, participating in the policy-making process, and exchanging management personnel with each other. Any transfer of resources or obligations between the above related parties, regardless of whether the price is charged, is regarded as a related party transaction. Because related parties can use administrative power to match the transaction, it is possible that the price and method of the transaction will be unfair under non-competitive conditions, and the rights and interests of shareholders or some shareholders will be infringed.
In the above-mentioned restructuring, merger, division and related party transactions of state-owned enterprises, the common situations that cause the loss of state-owned assets are as follows: (1) low-cost transfer. Some don't evaluate state-owned assets according to regulations or lower the evaluation price. Some do not count the land allocated by the state as state-owned shares; Some do not evaluate intangible assets such as patents and trademarks; Some transfer state-owned assets for free or sell them to non-state-owned units or individuals at low prices; Some enter at a high price and leave at a low price in business activities. (2) Violating the financial system and conspiring to embezzle state-owned assets. Some make accounts receivable into bad debts, some set up "small coffers" or set up "parasitic companies", and then extract and embezzle them later. (3) Guarantee without authorization. Some people simply don't seriously investigate the credit status of the guarantor, and without legal procedures and the provisions of the company's articles of association, they guarantee to non-state-owned units or individuals without authorization, resulting in the loss of state-owned property. In addition, it also includes the following situations: (1) illegal profit-making through management shareholding; (2) Underestimate the enterprise's property and make up the enterprise's debt, so as to reduce the capital needed for holding shares; Some of them have not actually invested, and the property of the enterprise to be acquired is used as their financing guarantee; (3) embezzlement and misappropriation of state-owned property; False bankruptcy, avoiding debts; (4) The debt is left in the original enterprise by means of division and reorganization, which makes the original enterprise become a shell enterprise and infringes on the state-owned property of the bank; (5) The directly responsible person in charge neglects his duty, resulting in bankruptcy or serious losses of the enterprise, etc.
the second paragraph of this article aims at the main situation that causes the loss of state-owned property in the above-mentioned reality, and stipulates that the above-mentioned acts that violate the management of state-owned property shall bear legal responsibilities according to law, including civil responsibilities such as compensation for losses and administrative responsibilities such as disciplinary actions. If the case constitutes a crime, criminal responsibilities shall be investigated according to law. According to the provisions of Article 41 of the Provisional Regulations on the Supervision and Administration of State-owned Assets, the person-in-charge of state-owned and state-holding enterprises who are responsible for the loss of state-owned assets of enterprises and are subject to disciplinary action above dismissal shall not be the person-in-charge of any state-owned and state-holding enterprises for five years; Whoever causes heavy losses to the state-owned assets of an enterprise or is sentenced to punishment shall not be the person in charge of any state-owned or state-controlled enterprise for life.