Point of View... A brief analysis of whether the transfer of real estate by state-owned real estate enterprises needs to "enter the transaction"
Published:
2022-12-15
According to everyone's common sense, of course, real estate companies can directly transfer real estate agreements, but in fact, state-owned real estate companies also need to distinguish whether they need to "enter the market for transactions" according to the nature of the house ". According to the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (SASAC and Ministry of Finance Order No. 32) (hereinafter referred to as "Order No. 32") and the "Notice on Matters Related to the Transaction and Circulation of State-owned Assets of Enterprises" issued by SASAC in May 2022 (Guo Zi Fa Property Regulation [2022] No. 39) (hereinafter referred to as "Document No. 39") both involve the regulation of the transaction and, from the aforementioned system, it can be seen that the transaction of state-owned assets is based on the "entry transaction" as the main applicable principle. This article will be based on the above system to explore whether the transfer of real estate state-owned real estate development enterprises need to "enter the transaction". Does the 1. apply the provisions of Order 32 on "entry transactions? Article 2 of Decree No. 32: "The transaction of state-owned assets of enterprises shall abide by national laws, regulations and policies, which is conducive to the layout and structural adjustment and optimization of the state-owned economy, give full play to the role of the market in allocating resources, and follow the principles of equal compensation, openness, fairness and justice. The established property rights trading institutions shall be openly conducted, and the national laws and regulations shall follow their provisions." Therefore, in principle, the transaction of state-owned assets of enterprises should be carried out openly in the property rights trading institutions established in accordance with the law, and the provisions of national laws and regulations shall prevail. However, it is not clearly stipulated that the housing assets involved in the normal operation of state-owned real estate enterprises can be transferred by direct agreement. In addition, according to the SASAC's reply on related issues, this paper holds that the transfer of assets involved in the normal operation of state-owned enterprises does not apply to Order 32 for "entry transactions". The specific reply of the relevant SASAC is as follows: By analogy, it can be seen that the transfer of housing assets developed by state-owned real estate enterprises does not belong to the "entry transaction" that needs to be carried out in accordance with the provisions of Decree No. 32, but needs to be determined according to the nature of the housing. That is, commercial houses listed under the inventory of real estate development enterprises do not need to be "traded in" when they are transferred, because the sale of commercial houses developed by them is a normal business operation, while the housing assets listed under the fixed assets of state-owned real estate development enterprises should be implemented in accordance with the relevant provisions on the transfer of enterprise assets in order No. 32, which requires "trading in the market". Does the 2. "enter the market" according to document 39 "? Document No. 39 is based on Order No. 32, in order to promote the optimization of the layout and structural adjustment of the state-owned economy, help enterprises achieve high-quality development, and strengthen the management of the transaction and circulation of state-owned assets, supplementary provisions are made on the matters involved in the transaction and circulation of state-owned assets of enterprises. The introduction of document No. 39 did not affect the transaction mode of state-owned real estate enterprises, mainly as a supplement to order No. 32. Therefore, whether state-owned real estate enterprises need to enter the market for housing asset transactions still need to refer to Decree 32. To sum up, this paper holds that the commercial housing listed under the inventory of real estate development enterprises does not need to "enter the transaction" at the time of transfer, which belongs to the behavior of normal business operation. Therefore, the requirements of "entering the transaction" under Decree No. 32 should not be applied, and after the promulgation of Circular No. 39, the applicable principle of "entering the transaction" has not changed substantially.
According to everyone's common sense, of course, real estate companies can directly transfer real estate agreements, but in fact, state-owned real estate companies also need to distinguish whether they need to "enter the market for transactions" according to the nature of the house ".
According to the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (SASAC and Ministry of Finance Order No. 32) (hereinafter referred to as "Order No. 32") and the "Notice on Matters Related to the Transaction and Circulation of State-owned Assets of Enterprises" issued by SASAC in May 2022 (Guo Zi Fa Property Regulation [2022] No. 39) (hereinafter referred to as "Document No. 39") both involve the regulation of the transaction and, from the aforementioned system, it can be seen that the transaction of state-owned assets is based on the "entry transaction" as the main applicable principle. This article will be based on the above system to explore whether the transfer of real estate state-owned real estate development enterprises need to "enter the transaction".
Does the 1. apply the provisions of Order 32 on "entry transactions?
Article 2 of Decree No. 32: "The transaction of state-owned assets of enterprises shall abide by national laws, regulations and policies, which is conducive to the layout and structural adjustment and optimization of the state-owned economy, give full play to the role of the market in allocating resources, and follow the principles of equal compensation, openness, fairness and justice. The established property rights trading institutions shall be openly conducted, and the national laws and regulations shall follow their provisions." Therefore, in principle, the transaction of state-owned assets of enterprises should be carried out openly in the property rights trading institutions established in accordance with the law, and the provisions of national laws and regulations shall prevail. However, it is not clearly stipulated that the housing assets involved in the normal operation of state-owned real estate enterprises can be transferred by direct agreement. In addition, according to the SASAC's reply on related issues, this paper holds that the transfer of assets involved in the normal operation of state-owned enterprises does not apply to Order 32 for "entry transactions". The specific reply of the relevant SASAC is as follows:
By analogy, it can be seen that the transfer of housing assets developed by state-owned real estate enterprises does not belong to the "entry transaction" that needs to be carried out in accordance with the provisions of Decree No. 32, but needs to be determined according to the nature of the housing. That is, commercial houses listed under the inventory of real estate development enterprises do not need to be "traded in" when they are transferred, because the sale of commercial houses developed by them is a normal business operation, while the housing assets listed under the fixed assets of state-owned real estate development enterprises should be implemented in accordance with the relevant provisions on the transfer of enterprise assets in order No. 32, which requires "trading in the market".
Does the 2. "enter the market" according to document 39 "?
Document No. 39 is based on Order No. 32, in order to promote the optimization of the layout and structural adjustment of the state-owned economy, help enterprises achieve high-quality development, and strengthen the management of the transaction and circulation of state-owned assets, supplementary provisions are made on the matters involved in the transaction and circulation of state-owned assets of enterprises. The introduction of Circular 39 did not affect the trading methods of state-owned real estate enterprises, mainly as a supplement to Decree 32. Therefore, whether state-owned real estate enterprises need to enter the market for housing asset transactions still need to refer to Decree 32.
To sum up, this paper holds that the commercial housing listed under the inventory of real estate development enterprises does not need to "enter the transaction" at the time of transfer, which belongs to the behavior of normal business operation. Therefore, the requirements of "entering the transaction" under Decree No. 32 should not be applied, and after the promulgation of Circular No. 39, the applicable principle of "entering the transaction" has not changed substantially.
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