Problems existing in current enterprise restructuring and countermeasures
Introduction: Through the reform of property rights system, the original enterprises have established new enterprise organizational forms that meet the requirements of the development of socialist market economy. Corporate enterprise, partnership enterprise and sole proprietorship enterprise are the main forms of original enterprise restructuring. In addition, it is a special form for domestic companies to be transformed into foreign-invested enterprises and foreign-invested enterprises to be transformed into domestic enterprises.
restructuring 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, the 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 actual operation, the enterprise restructuring has also exposed some problems that need to be improved and standardized. Here, the problems existing in the enterprise restructuring are discussed, hoping to be avoided and used for reference in future work.
first, the problems of enterprise restructuring are mainly manifested in the following aspects:
(a) the assets evaluation of the restructured enterprises is not standardized, and the state-owned assets are seriously lost.
in the process of enterprise restructuring, the restructured enterprises only pay attention to the evaluation of fixed assets such as real estate and equipment, while the intangible assets such as trademarks, patents, trade names, etc. are not evaluated or evaluated insufficiently. People who intend to engage in the restructuring of enterprises 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 ones. In order to revitalize the assets of enterprises 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 due supervision on whether the asset appraisal agency is qualified and capable of evaluating the value of intangible assets and making accurate evaluation of intangible assets. At the same time, in order to achieve their own goals, people who are engaged in the operation of restructured enterprises often speculate to gain profits, falsely increase debts or falsely reduce assets, and try their best to reduce the value of the assessed assets by pulling relationships and trusting 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, public bidding and auction are often not conducted for property rights transactions of enterprises, and the party committees, governments and competent departments mostly adopt administrative means to realize enterprise restructuring through negotiation and zero transfer with operators who want to engage in enterprise restructuring; 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. However, in reality, many enterprises are selling state-owned assets without approval, and the selling procedures are seriously illegal, which eventually leads to black-box operation and fails to protect state-owned assets to the maximum extent. Moreover, in practice, most of the restructured enterprises are insolvent and unable to 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 use the debt to offset the value of the purchased enterprise assets without paying a penny, thus greatly benefiting. In addition, the old accounts of the original enterprise have not been cleaned up in the enterprise restructuring, and there are still a large number of cases in reality where there are creditors and their abilities, and there are no creditors or property heirs who do not carefully verify the dead accounts and bad debts. Blindly offsetting the debts of enterprises 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) The restructuring of enterprises lacks institutional constraints, and the phenomenon of debt evasion and leakage 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 government directors and functional departments of state-owned assets property registration, real estate, industry and commerce, taxation and so on, which makes these directors and functional departments unable to participate in the enterprise restructuring work. Especially when the secured debts of the original enterprise have not been fully implemented, the registration is forcibly cancelled. Although the new enterprise has received the assets, it does not bear the responsibility, so that the creditor's rights have not been repaid for a long time, and the creditor's rights are actually suspended, which infringes on the interests of creditors. In addition, the administrative department focuses on the protection of local interests, underestimating, underestimating state-owned and collective assets, and inflating debts in enterprise restructuring? Turn a blind eye? . The restructuring of enterprises may also lead to the transfer of debts to departments that have no ability to perform, so as to make the restructured enterprises go into battle lightly and infringe on the interests of creditors. This is called restructuring, but it is actually debt evasion, which harms the interests of creditors, the state, the collective and the broad masses of workers. There is also a situation in which major shareholders play? Karate? Take state-owned assets as your own. Its basic practice is to borrow money from the bank to buy shares with the assets of the enterprise as a guarantee, and then become the major shareholder of the enterprise. By this means, the enterprise has been acquired and huge benefits have been obtained. In most cases, employees of restructured enterprises will not actually contribute to the phenomenon of purchasing enterprise assets and forming 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 it is actually a way to avoid debts. As a result, the rights and interests of employees of this enterprise will be protected, while the original enterprise responsibility property will be lost.
(D) The wage components are single-factor wages due to the restructuring, and the reasonable factors of wages are destroyed.
The wages of workers are determined by various distribution factors, which embody a scientific and reasonable distribution mode, and include 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 specified contents. However, after the enterprise restructuring, the responsible persons of some enterprises mistakenly thought that the government could not control the restructured enterprises, and the wages of workers were decided by the enterprises themselves, so they set their own wage standards: high salary standards for managers, single coolie wage standards for workers, and many units were lower than the minimum wage standards; Some increase piece work at will to increase labor intensity, extend working hours in disguise, some cancel workers' necessary welfare benefits such as seniority allowance, and some stipulate the monthly attendance time to be more than 25 days, which infringes on employees' legal rest rights 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 contributed to the establishment of enterprises for many years. After the restructuring of enterprises, it is obvious that they can no longer work in posts that are not in line with their age because of their old age, but can only do what they can. Therefore, according to the unreasonable wage standards of enterprises, these old workers can only get a simple and meager salary, and it is difficult to assume 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.
(5) There are many difficulties in the court's application of law in dealing with cases of restructuring enterprises.
Because the process of enterprise restructuring is quite complicated and tedious, it is impossible to cover everything, and the vast number of judges lack a holistic approach to the trial of restructuring cases, which is bound to lead to some disputes. How to deal with the debts left out or evaded in the restructuring? Although the Supreme People's Court promulgated the Provisions on Several Issues Concerning the Trial of Civil Cases Related to Enterprise Restructuring on January 3, 23, the reform of corporate system in China lacks norms, and the debts formed by enterprise guarantees are often left out, forming the original enterprises? 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, the qualification of debt-bearing subject and other issues have not been clearly defined. Without the implementation of feasible laws and regulations, cases of enterprise restructuring disputes have become hot and difficult in civil and commercial trials of people's courts. The cases of enterprise restructuring disputes are complex and wide-ranging, so we should handle them carefully. The people's courts must also coordinate from top to bottom, and the higher courts should guide the lower courts to handle the cases of enterprise restructuring disputes well. Otherwise, it will cause social instability. Therefore, it is extremely important to standardize and guide the smooth progress of enterprise restructuring according to law.
ii. suggestions and countermeasures for standardizing enterprise restructuring
(1) establish and improve the supervision mechanism of state-owned and collective assets, establish a unified state-owned and collective assets management department, and improve and standardize enterprise restructuring legislation. Unified management of state-owned and collective assets of restructured enterprises in China, and 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 the restructured enterprises in a unified way on behalf of the government. Through market operation, it can increase the transparency of the property rights trading market, revitalize the state-owned assets to the maximum extent, prevent the loss of assets of state-owned and collective enterprises, realize the goals of maintaining and increasing the value of state-owned and collective assets, reducing burdens and increasing 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 improvement of legislation, enterprises (including non-state-owned enterprises) should obtain a perfect and clear legal system, standardize the government's behavior, dilute the administrative color of the government in enterprise restructuring, make it give full play to its supervisory and coordinating functions, and play a service-oriented role such as anti-monopoly control, guiding restructuring according to law, providing policies and regulations, preferential policies, and properly arranging laid-off workers, so as to create a good social soft environment for enterprise restructuring. At the same time, we should strengthen the supervision of the restructured enterprises according to law, standardize the behavior of the restructured enterprises by legal means, protect the interests of workers, and make the restructured enterprises move towards the legal track.
(2) strictly follow legal procedures, and the sale of state-owned shares is prohibited without approval. The sale of state-owned assets is expressly stipulated by the state, and it must be approved by the department with the power of examination and approval before it can be sold. However, in reality, there are many enterprises that sell state-owned assets without approval, and the procedures for selling them are seriously illegal. For such violations, the relevant departments should be advised to cancel them and resell them according to legal procedures.
(3) clarify the responsibilities, strengthen the supervision and management of intermediaries, 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? Openness, justice and fairness? The principle of avoiding disputes in the restructuring, and strictly institutionalizing property right evaluation, auction and transaction announcement. For intermediaries who resort to deceit, conceal or omit debts in the evaluation report, they 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, the relevant property rights transfer procedures should be handled according to law, and the consent of creditors should be obtained 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 the restructuring work.
(4) set up special institutions or enterprises to reduce the liability risk of enterprises. 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. A risk prevention mechanism should be established to prevent the occurrence of debt leakage in enterprise restructuring, put an end to mutual guarantees between enterprises, and avoid mutual losses of enterprises, so as to improve the ability of enterprises to resist risks. Therefore, professional institutions or enterprises should be established. 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, and transfer the risk to the insurance company by means of insurance, so as to reduce the risk of enterprises taking responsibility in operation, make enterprises really go into battle lightly, ensure the smooth operation of enterprises and promote the development of regional economy.
(5) do a good job in resettlement and social security, and earnestly safeguard the legitimate rights and interests of employees. The issue of workers' placement, social security and the 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 the supervision and management of enterprises according to law. In joint-stock and joint-stock cooperative enterprises, employees are both workers and shareholders, and they are not employed. By creating employment opportunities, establishing and perfecting relief mechanisms for laid-off workers and social security mechanisms such as pension insurance and medical insurance, government departments fully protect the interests of employees, formulate reasonable wage standards, limit the absolute power of enterprises, and relieve their worries. Labor authorities should standardize labor contracts and strengthen supervision and management. Supervise the restructured 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, put the legitimate rights and interests of employees in the first place, promote the stability of social order, safeguard the autonomy of enterprises in employment, and ensure that enterprises have no worries and operate healthily.
(6) Give full play to the judicial role of the people's courts in enterprise restructuring, and handle disputes arising from enterprise restructuring. The following judicial policies and principles should be grasped to deal with cases involving restructured enterprises:
1. Determination of the debt subject concealed or omitted in the sale of enterprises
The principle of transferring debts with assets should be applied flexibly. When selling an enterprise, the seller shall notify the creditor by public announcement with reference to the relevant provisions of the Company Law. If the creditor has declared the creditor's right within the announcement period, the buyer shall bear civil liability. The buyer may claim compensation from the seller again. If the creditor has not declared the creditor's right, the creditor shall claim the creditor's right from the seller, and the seller shall bear the corresponding civil liability. The seller shall bear civil liability for the debts concealed or omitted in the sale of the enterprise if the seller fails to notify the creditors by public announcement with reference to the relevant provisions of the Company Law, or if the creditors are notified by public announcement, it will not take legal effect.
2. Determination of the debt-bearing subject concealed or omitted in enterprise merger
After enterprise merger, the debt principle of the merged enterprise shall be borne by the merging party or the new manager. If the parties have fulfilled the announcement procedures, the debts concealed or omitted shall be borne by the merging party or the new manager. If the creditor fails to declare his rights during the announcement period, and the debt is concealed or omitted in good faith, the merging party will not bear this part of the debt. Concealed or omitted debts shall be borne by the original asset manager of the merged enterprise. If the merging party knows or should know, it should still bear this part of the debt. The new merger is completely different from this. If the creditor has not declared his rights during 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 notifying creditors by public announcement without legal effect. The hidden or omitted debts shall be borne by the surviving enterprise or the newly established enterprise legal person after the merger.
3. Correctly handle the problems of internal staff salaries and fund-raising to share ownership in enterprise restructuring
Internal staff salaries and fund-raising to share ownership will change the ownership structure of the enterprise, but the total assets of the enterprise will not decrease. In order to avoid debt, enterprises convert employees' wages and fund-raising into equity in newly established enterprises, and then use some assets to offset them and invest them in new enterprises, the original enterprises.