The enterprise property right transfer contract refers to the agreement signed by the enterprise asset manager or investor as the transferor and the transferee to transfer all or part of the enterprise property right and clarify the rights and obligations of both parties. The main body of the enterprise property right transfer contract includes the transferor (seller) and the transferee (buyer). From the perspective of state-owned enterprises, the property ownership of state-owned enterprises belongs to the whole people, that is, the state, and is uniformly exercised by the State Council. An enterprise only has the right to operate its property, and the enterprise itself cannot transfer the property rights belonging to the owner. Therefore, the transferor of property rights of state-owned enterprises must be a department authorized by the state or an investment institution authorized by the state and a state-owned enterprise or institution that directly owns the right to contribute to the enterprise, and the transferred enterprise itself does not become the subject of property rights transfer. According to the Company Law, authorized investment institutions refer to state investment companies, state holding companies and state-owned asset management companies. In the case that the state authorized department is not clear, the enterprise department and industry head office of the government are generally responsible for the asset owners. From the perspective of collective enterprises, the property ownership of collective enterprises belongs to collective ownership, which is uniformly exercised by the competent department or authorized department according to the level, or by the investor, thus becoming the transferor. The transferee of the enterprise property right transfer contract must be a legal person, natural person or other organization with civil rights capacity and civil capacity, which can be domestic or foreign. The transfer of enterprise property rights can be divided into the whole transfer, that is, the whole assets of the enterprise are transferred to the transferee, forming the whole sale of the enterprise; Partial transfer, that is, the investor of the original enterprise still retains certain shares in the enterprise, while other enterprises, individual citizens and other investors participate in the enterprise. Partial transfer is only a part of the change of investors or shareholders.
Second, the effectiveness of the enterprise property right transfer contract
When concluding an enterprise property right transfer contract through consultation, the transferor and transferee of enterprise property right must determine the rights and obligations of both parties in strict accordance with the relevant provisions of laws, regulations or national policies, otherwise the enterprise property right transfer contract will be invalid. In judicial practice, we should pay attention to the following points when determining the validity of the enterprise property right transfer contract:
1. Both parties shall not violate the mandatory provisions of laws and administrative regulations when signing the enterprise property right transfer contract. Otherwise, the contract shall be confirmed invalid. For example, a limited liability company established in accordance with the company law must have more than two people. In the process of transfer, the name of the original limited liability company cannot be retained when the property right of the company is transferred to a person, which violates the law.
2. Neither party may suspend or evade the creditor's rights of banks or creditors by means of enterprise property right transfer. According to the relevant regulations, the creditor's rights of banks and creditors before the reorganization shall be borne by the reorganization enterprise, regardless of the reorganization form (including the transfer of property rights). However, it is not uncommon for some enterprises to call on or evade the creditor's rights of banks and creditors when transferring property rights. First, when transferring the property right as a whole, that is, when selling the enterprise, they divide the property right of the enterprise and transfer it to two different transferees. One of the transferees undertakes most or all of the debts while accepting some of the effective assets of the enterprise, or even undertakes all or most of the debts while accepting the invalid assets. In fact, the transferor uses this kind of reorganization to transfer effective assets, so that a shell enterprise can bear all or most of the debts, so as to achieve the purpose of avoiding debts. Second, when the property right of the enterprise is partially transferred, the effective assets of the enterprise are transferred to the transferee, and the debts remain in the original enterprise, deliberately concealing or leaving debts; Third, the transferor and the transferee colluded maliciously and did not inform the bank of the transfer of the enterprise. The original enterprise was still paying or partially paying the bank interest, which caused the illusion and deliberately evaded the debt. In judicial practice, all kinds of "transfer" methods and transfer contracts that evade debts without the creditor's consent can be deemed invalid by the people's court.
3. Both parties shall not collude maliciously, intentionally harm the national interests and cause the loss of state-owned assets. In reality, the parties to the enterprise property right transfer contract collude maliciously, which damages the national interests and causes the loss of state-owned assets from time to time. One is not to evaluate or evaluate the losses caused by falsehood. In the process of restructuring state-owned enterprises, the key is to evaluate the state-owned assets of the restructured enterprises. However, in the process of transfer, some state-owned enterprises did not evaluate the state-owned assets properly, and the evaluation was not standardized or true, which led to the loss of state-owned assets to varying degrees, such as underestimating the high value of tangible assets, not evaluating or deliberately underestimating intangible assets such as trademark rights and business reputation rights, and ignoring the calculation of the value of trade secrets. The second is to transfer the land use right of state-owned enterprises free of charge or at a low price; Third, the same shares have different benefits; Fourth, taking advantage of the transfer of state-owned enterprises, illegally disposing of state-owned assets, or delaying the exercise of rights on accounts receivable or accounts receivable, the sales revenue management is lax and wasteful. In judicial practice, if the two parties collude maliciously to harm the national interests and cause serious loss of state-owned assets, the transfer contract shall be deemed invalid, and the relevant responsible persons shall be investigated for legal responsibility and even criminal responsibility according to law.
4. The transfer of enterprise property rights, especially the overall transfer, should adopt standardized operation methods such as public auction, tender transfer and agreement transfer. Where an enterprise is sold by agreement transfer, it shall be approved by the relevant departments. Public auction and tender transfer are conducted on the basis of "openness, fairness and justice", and their contract effectiveness should be recognized. However, if the agreement transfer is not made public or cannot be made public, such as involving major business secrets of enterprises and national interests, it is advisable to replace the first two methods by agreement transfer, and there should be certain restrictions on procedures.
5. With regard to the effectiveness of the "zero price" sale of small enterprises, in the process of small enterprise transfer, enterprises with debts equal to or greater than assets are sold, resulting in the so-called "zero price" sale problem. In this regard, as long as the parties do not violate the laws, administrative regulations and the mandatory provisions of the state on enterprise restructuring policies, the assets of the sold enterprise are evaluated in a standardized, objective and fair manner, the operating procedures for the sale are standardized and legal, and the sale behavior is approved by the competent department, it should be considered effective.
After the sales contract for the overall transfer of enterprise property rights is confirmed invalid, in accordance with the provisions of Article 60 of the General Principles of Civil Law and Article 58 of the Contract Law, the people's court shall order the parties to restore the enterprise to its original state, and the property acquired by the buyer shall be returned to the seller. If it cannot be returned or there is no need to return it, appropriate compensation shall be given. The specific treatment should be based on the principle of fault liability. For business losses, the party that causes the contract to be invalid shall bear civil liability; If both parties are at fault, their respective responsibilities shall be confirmed according to the size of the fault; The buyer shall bear the responsibility for non-operating losses; For the operating profit, if the seller pursues and there is no fault of invalid contract, it should be supported; The natural appreciation of assets, regardless of fault liability, should be returned. In addition, if the investors or shareholders are changed due to the overall sale of the enterprise or the change of some property rights, the parties concerned shall handle the industrial and commercial change or cancellation of registration. However, if it is not handled, it does not deny the effectiveness of reorganization. The court may order the parties to go through the formalities of industrial and commercial change or cancellation of registration within a time limit, and if one party overturns the agreement on this basis, it will not be supported.
In addition, according to the provisions of Article 114 of the Contract Law: both parties agree on the proportion of liquidated damages in the contract, and after the breach of contract, it shall be handled in strict accordance with the contract; If the agreed liquidated damages are lower than the economic losses caused by breach of contract, the parties may request the people's court or arbitration institution to increase them; On the contrary, it can be reduced accordingly.
Third, the performance of the enterprise property right transfer contract
After the enterprise property right transfer contract is signed according to law, according to the provisions of Article 60 of the Contract Law, both parties shall perform their respective obligations in accordance with the principles of full performance and good faith, that is, fully perform the contractual obligations according to the subject matter agreed in the contract and its performance period, and perform the notification obligations, assistance obligations and confidentiality obligations according to the nature, purpose and trading habits of the contract. When performing the enterprise property right transfer contract, we should pay attention to the following points:
1. Go through the formalities for examination and approval of property right transfer according to regulations. According to China's current laws and regulations, the transfer of property rights of state-owned assets must strictly follow the relevant approval procedures: the approval of property rights transfer of state-owned enterprises at the central level should be reported to the State Economic and Trade Commission, the Ministry of Finance or the State Council for approval according to the different divisions of small, medium and large state-owned enterprises; The examination and approval of property rights transfer of local state-owned enterprises should be divided into: the transfer of property rights of state-owned enterprises and large and extra-large state-owned enterprises in batches must be reported to the State Council for examination and approval by the departments authorized by the provincial government, and the transfer of state-owned enterprises managed locally but invested by the central government should first obtain the consent of relevant departments in the State Council; Where a department or institution that has the right to directly exercise the property rights of state-owned enterprises on behalf of the government transfers the state-owned property rights of a single enterprise or institution, it shall, in accordance with the affiliation, apply to the property rights transfer institution for transfer after examination and approval by the state-owned assets management department at the same level. The transfer of property rights of collective assets shall go through the relevant examination and approval procedures at the relevant government departments, industrial enterprises shall go through the examination and approval procedures at the Economic Commission, and other enterprises and institutions shall go through the relevant procedures at the Commission for Economic Restructuring.
2. Assess assets and deal with debts. Asset evaluation is an essential link in the implementation steps of enterprise restructuring. Asset evaluation refers to the price judgment of time-sensitive assets. That is to say, when an enterprise needs to carry out restructuring or transfer, it must entrust a qualified asset appraisal institution to conduct appraisal and evaluation by adopting a scientific method and taking a unified currency as the unit of measurement according to the relevant state regulations, the specific purpose, time and environment of restructuring, and the principles of asset appraisal. First of all, the evaluation should embody the principle of "truthfulness, scientificity, fairness and reasonableness". See whether the existing assets evaluation carefully examines the existing book assets and physical assets of state-owned enterprises, and consider the actual value of the market price that the enterprise may reach if it is sold, and whether the real rights and interests of the state owners are determined. See if intangible assets have been reasonably evaluated. Intangible assets mainly refer to intangible economic resources owned by enterprises and institutions that have a lasting impact on production, operation and subsequent development, such as patents, trademarks, land use rights, non-patented technologies, computer software, service trademarks, business reputation, etc. Intangible assets play an important role in modern enterprises, and it is also an important symbol to measure modern enterprises and traditional enterprises. Therefore, we must focus on the assets evaluation. See whether the handling of debt is in line with reality and whether the principle of debt and capital is implemented. For example, in the restructuring of state-owned enterprises involving creditor's rights and debts with banks, it is necessary to strictly implement the provisions of relevant laws and regulations, respect the opinions of financial institutions on preserving financial creditor's rights in accordance with the State Council's Opinions on Strengthening the Management of Financial Creditor's Rights in the Restructuring of Small and Medium-sized State-owned Enterprises and Collective Enterprises, and implement financial debts according to law. In line with the principle of respecting history and facing reality squarely, and on the premise of insisting that debts go with capital, we should gradually properly handle the relationship with other creditors and create a good legal environment for the reform of state-owned enterprises. Second, the evaluation should be entrusted to intermediaries with high qualification level, good reputation and strong ability, and should be standardized. In strict accordance with the regulations on the management and evaluation of state-owned assets, the state-owned assets are evaluated by an evaluation institution with legal qualifications; Collective assets evaluation should be entrusted to qualified accounting firms, audit firms and other social intermediary institutions as far as possible; The evaluation of small township enterprises can be entrusted to the township finance office or the township evaluation team for evaluation, and then audited by social intermediary institutions to effectively control the evaluation. Third, the assets evaluation made by unqualified evaluation agencies on restructured enterprises should be re-evaluated by qualified evaluation agencies in principle. However, if the parties have no objection and do not violate the prohibitive provisions of the law, the court may recognize its effectiveness; If there is an error in the asset appraisal report, or there is a major omission in the report provided by the appraisal institution due to negligence, the parties may apply, and the court shall entrust the original appraisal institution to correct it; Where an appraisal institution conducts improper appraisal or intentionally provides false appraisal reports, the court may entrust other appraisal institutions to conduct appraisal according to the application or authorization of the parties concerned, and investigate the relevant responsibilities of the appraisal institutions according to law. If losses are caused to the party concerned or the third party, the assessment institution shall be liable for compensation according to law.
3. Deliver the subject matter as agreed, and strictly perform the collateral obligations of this contract. Therefore, when one party refuses to perform the contract at the expiration of the contract period, so that the purpose of the contract cannot be achieved, the other party may request to terminate the contract and demand economic compensation from the other party. When the contract expires and the buyer fails to fully perform the payment obligations (including full or partial non-performance), and the seller requests to terminate the contract, the people's court shall first seriously investigate the property status and payment ability of the buyer. If the buyer has the ability to pay or has an enforceable full guarantee, it shall continue to perform its payment obligations within a time limit; If the buyer does not have the ability to pay and can't provide full guarantee, or if the buyer has the ability to pay, but fails to perform the payment obligation within the time limit, and the seller requests to terminate the contract, the people's court shall support it; If the seller still fails to fully fulfill the obligation to deliver (assets) at the expiration of the contract, the buyer may require the seller to continue to perform the contract and compensate the economic losses. The two sides did not agree on the time limit for performance. A reasonable time limit should be determined according to the actual situation, and the relevant responsibilities of both parties should be determined accordingly. It should be noted that when dealing with such contract disputes and providing remedies for breach of contract, in accordance with the provisions of Article 107 of the Contract Law, the continued performance of the contract should be considered first, and it is not easy to solve it by dissolving the contract or compensating for losses. This is because: a contract is essentially a promise between the parties, but the promise must be observed. Abiding by contracts is not only a moral requirement, but also a legal requirement. In addition, both parties shall fulfill the obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract. For example, if the seller fails to fulfill the obligation to inform the enterprise of major matters and the buyer suffers economic losses, he has the right to demand compensation from the seller; After performing the contract, the seller is still obliged not to infringe or keep the intellectual property rights and business secrets owned by the original enterprise according to the contract or relevant regulations, otherwise it will bear the liability for tort compensation.
Four, after the transfer of enterprise property rights, the original enterprise left or omitted debts.
There are generally the following situations in which the original enterprise leaves (leaks) debts: First, the debts left during the evaluation are mainly the debts that the original enterprise should bear when carrying out economic activities. It mainly occurs in the process of capital verification, only paying attention to book review without investigation and verification, and the debts of the approved enterprises are not strictly controlled, such as payment for goods and loan interest; Second, the registered capital of the transferred enterprise is not in place or the debts missed by the start-up unit to withdraw the registered capital; Third, the debts provided by the original enterprises, and some enterprises' external guarantees are difficult to reflect from the books of the original enterprises because of irregular management, resulting in debts left over; Fourth, the debt of the affiliated unit. After the enterprise is transferred, when the affiliated enterprise is unable to bear it, the affiliated enterprise shall bear joint and several liability; Fifth, some special companies infringe debts. The people's courts should adhere to the following three principles when trying such cases:
(1) legal principle. Where the division, merger, change or transfer of creditor's rights and debts of enterprises that meet the legal requirements, the subject who undertakes the debts shall be determined in accordance with the legal provisions. For example, if an enterprise is merged or united, the debts left over or omitted shall be borne by the merged enterprise; When an enterprise is divided, it shall adhere to the principle that debts follow assets (capital), distribute debts according to the reasonable distribution of assets, and conclude a clear debt transfer agreement;
(2) The principle of legal person system. Shareholders or investors of an enterprise shall bear limited liability with their shares or capital contributions in the enterprise;
(3) The principle that debts are transferred with enterprise assets. If there is no provision in the law and the parties have no agreement, the subject to bear the debt shall be determined according to the principle that the debt will be transferred with the assets of the enterprise.
Under the premise of these three principles, to deal with the debt problem in enterprise restructuring, specifically: if the transfer of enterprise property rights is only the change of enterprise investors or shareholders, and the original enterprise has not been eliminated, the debts left over or omitted before the transfer of enterprise property rights should be borne by the transferred enterprise legal person. All the transfer of enterprise property rights should be handled differently: the original enterprise legal person has not been eliminated, but the investors have changed, so the debts left over before the sale of the enterprise are still borne by the enterprise legal person itself; If the transferee jointly invests the wholly transferred enterprise with others to form a new company, the original enterprise will be cancelled, and the debts left (leaked) before the enterprise transfer will be borne by the transferee to the extent of its equity in the new company; The transferee shall re-register a new enterprise as a legal person on the basis of the acquired enterprise. If the debts left (owed) before the transfer of the enterprise are cancelled by the original enterprise, they shall be borne by the newly registered enterprise legal person. If the original enterprise should be deregistered but not deregistered, the court shall list the new enterprise as a legal person and the old enterprise as defendants. In the lawsuit, the court should order the enterprise that has not gone through the cancellation procedures and order the new enterprise to bear civil liability.
In addition, if the debts before the transfer of the enterprise are clearly agreed by both parties and confirmed by the creditor's rights, the court shall confirm their validity. If there is no agreement between the parties or if there is an agreement, but the creditor's consent is not obtained, the remaining debts before the transfer shall be borne by the transferee according to the principle of "debts go with the capital". When the enterprise is transferred, if the transferor intentionally conceals or leaves behind (omits to record) the debts of the original enterprise, the transferor shall bear the debts concealed or omitted. If the registered capital is not in place or the competent department or start-up unit in registered capital flight, it shall be borne by the original competent department or start-up unit of the enterprise within the scope of funds that are not in place or withdrawn; For the remaining problems of secured debts, the transferor shall bear the guarantee responsibility from the transfer income. If the transfer proceeds are accepted by the government department, the transferee shall bear the guarantee responsibility from the scope of accepting the proceeds, or according to the principle that the debt goes with the capital, the transferee shall bear the guarantee responsibility from the scope of accepting the assets. For some debts with special infringement damage, the transferee shall be liable for compensation within the scope of accepting assets in accordance with the principle of "debts go with capital".