Viewpoint... Analysis of state-owned enterprise management and legal risk prevention and control -- take the crime of collusion bidding as an example.

The "lifelong accountability system" for major decisions on illegal operation and investment of state-owned enterprises has been established ". By the end of 2017, the accountability system and accountability mechanism for illegal operation and investment of state-owned enterprises will be basically formed. By the end of 2020, the accountability system covering all levels of institutions performing the responsibilities of investors and state-owned enterprises will be comprehensively established, and the accountability working mechanism with clear responsibilities, clear processes, and standardized and orderly accountability will be formed.

Tenure performance appraisal-the pursuit of short-term investment income, resulting in a long-term loss black hole-"executives make mistakes, the state pays the bill".

De-capacity is an important task of the current supply-side structural reform, some excess capacity, zombie enterprises, it is precisely some state-owned enterprises unrealistic pursuit of scale, excessive expansion caused. With the increasingly active investment of state-owned enterprises, the acceleration of mergers and acquisitions of state-owned enterprises, the pilot reform of mixed ownership has been launched (e. g. high-speed, sea investment, transportation;), there is an urgent need to strengthen the long-term supervision of the investment decision-making of state-owned enterprises, to prevent the side of the production capacity, while blind investment. The lifelong accountability system is expected to solve the problem of short-term investment decision-making of state-owned enterprises, which is an inevitable move to adapt to the current situation and prevent the loss of state-owned assets.

Article 5 The term "state-funded enterprises" as mentioned in this Law refers to wholly state-owned enterprises and wholly state-owned companies funded by the state, as well as state-owned capital holding companies and state-owned capital shareholding companies.

Article 4 of the Measures for the Supervision and Administration of the Transactions of State-owned Assets of Enterprises The term "state-owned and state-controlled enterprises" as mentioned in these Measures includes:

Wholly State-owned enterprises (companies) funded by (I) government departments, institutions and institutions, as well as wholly State-owned enterprises in which the above-mentioned units and enterprises directly or indirectly hold 100 per cent of the total shares;

An enterprise that (II) the units or enterprises listed in paragraph (I) of this Article, individually or jointly, with a total ownership of more than 50% of the property (share) rights, and one of them is the largest shareholder;

Subsidiaries at all levels (III) the enterprises listed in the (I) and (II) of this Article that contribute to the outside world and own more than 50% of the equity;

(IV) government departments, institutions, institutions, single state-owned and state-controlled enterprises directly or indirectly hold less than 50% of the shares, but are the largest shareholders, and can be effectively controlled by them through shareholder agreements, articles of association, resolutions of the board of directors or other agreements.

The core of the "Opinions" is aimed at relevant personnel in the operation and management of state-owned enterprises who violate national laws and regulations and internal management regulations of enterprises, fail to perform or fail to perform their duties correctly, resulting in losses of state-owned assets and other serious adverse consequences, which are divided:

Directly Responsible Person:Refers to the relevant personnel of state-owned enterprises who violate the regulations, fail to perform or fail to perform their work duties correctly, and play a decisive and direct role in the loss of assets or other adverse consequences caused; (directly related party)

Responsible person in charge:Refers to the direct supervisor (in charge) personnel who violates regulations, fails to perform or fails to perform their duties correctly within the scope of their direct supervisor (in charge) duties, resulting in asset losses or adverse consequences;

Leader responsible person:Refers to the main person in charge of the loss of assets or adverse consequences caused by violation of regulations, failure to perform or improper performance of duties within the scope of their work responsibilities. (Failure to perform review and supervision duties)

Group management and control (major violations of rules and disciplines by affiliated enterprises)

Purchase and sale management (transfer of benefits from buying high and selling low)

Bidding and procurement (violation of the Bidding Law)

Project contracting and construction (illegal subcontracting and subcontracting)

Transfer of property rights, equity and assets of listed companies (transfer at low prices)

Investment in fixed assets (without feasibility study, unauthorized change of construction content)

Investment and M & A (valuation violations, transfer of related benefits)

Restructuring and restructuring (discount of state-owned assets, arbitrage of private shares)

Fund management (small treasury, illegal guarantee, illegal fund-raising)

Risk management (major deficiencies in internal processes, over-indebted operations)

Accountability for project contracting and construction:

1. Failure to investigate and demonstrate the subject matter of the contract in accordance with the provisions, unauthorized or unauthorized bidding, the winning price is seriously lower than the cost, resulting in the loss of enterprise assets; (bidding problem)

2, in violation of the provisions of the unauthorized signing or modification of the contract, the contract has not been strictly examined, there are major omissions;

3, in violation of the provisions of subcontracting, subcontracting;

4, the project organization and management confusion, resulting in the quality of the project is not up to standard, the project cost is seriously overspent.

Key points: As a bidding unit, the construction party discovers that the construction party violates the contract agreement, subcontracts and subcontracts in violation of regulations. Article 13 of the administrative measures for the determination, investigation and punishment of illegal acts of contracting and contracting of construction projects: any unit or individual who discovers illegal acts such as contracting, subcontracting, illegal subcontracting and affiliation may report to the competent department of housing and urban and rural construction of the people's government at or above the county level where the project is located.

1, due diligence exemption 2, avoid major liability accidents and losses 3, the competent department to take measures to order immediate rectification 4, to avoid the unit's civil legal risks

(1) If the relevant personnel of the operation and management of state-owned enterprises violate the regulations during their tenure, fail to perform or fail to perform their duties correctly, resulting in the loss of state-owned assets and other serious adverse consequences, they shall be investigated for corresponding responsibility;

(2) Those who have been transferred to other positions or retired shall be included in the scope of accountability, and a lifelong accountability system for major decisions shall be implemented. Operating and investment responsibilities are divided into direct responsibilities, supervisor responsibilities and leadership responsibilities according to job responsibilities.

The person in charge of the enterprise shall bear direct responsibility for the following circumstances:

(I), personally or jointly with others to violate national laws and regulations and internal management regulations of the enterprise; instigate, instigate, compel, connive and shield subordinates to violate national laws and regulations and internal management regulations of the enterprise;

(II), without democratic decision-making, relevant meeting discussion or document signing, submission for review and other prescribed procedures, directly decide, approve and organize the implementation of major economic matters, and cause major asset losses or other serious adverse consequences;

When (III) or presiding over relevant meetings to discuss or study by means of document transmission and signature, if the majority of people do not agree, directly decide, approve and organize the implementation of major economic matters, resulting in major asset losses or other serious adverse consequences;

(IV). According to the relevant laws and regulations, the matters that should be regarded as the first responsible person (overall responsibility), the relevant target responsibility matters signed, or other important duties that should be performed, authorize (entrust) other leading cadres to make decisions and make improper decisions or make mistakes in decision-making. Major asset losses or other serious adverse consequences.

(I), according to the degree of asset loss, the nature of the problem, etc., the relevant responsible persons shall be dealt with by means of organization, deduction of salary, prohibition of entry, disciplinary action, transfer to judicial organs, etc.

1. Organizational processing. Including criticism and education, ordering written inspection, notification of criticism, admonition, suspension, transfer from work, demotion, change to non-leadership positions, ordering resignation, removal, etc.

2. Deduction of remuneration. Deduction and recovery of annual performance salary or tenure incentive income, termination or recovery of medium-and long-term incentive income, cancellation of eligibility to participate in medium-and long-term incentives, etc. Deductions and recourse (back three years)

3. Prohibition restrictions. He shall not serve as a director, supervisor or senior manager of a state-owned enterprise for five years or even for life.

4. Disciplinary action. The corresponding discipline inspection and supervision organs shall investigate and deal with them in accordance with the law.

5. Transferred to judicial organs for handling. In accordance with the relevant laws and regulations of the State, it shall be transferred to judicial organs for investigation and punishment in accordance with the law.

The above treatment methods can be used alone or in combination.

Article 3 of the Tendering and Bidding Law: The following construction projects within the territory of the People's Republic of China, including the survey, design, construction, supervision of the project, and the procurement of important equipment and materials related to the construction of the project, must be tendered: (1) Large-scale infrastructure, public utilities and other projects related to the public interest and public safety; (II) projects that use all or part of state-owned funds for investment or state financing; projects that (III) use loans or aid funds from international organizations or foreign governments.

The specific scope and scale standards for the projects listed in the preceding paragraph shall be formulated by the development planning department of the State Council in conjunction with the relevant departments of the State Council and submitted to the State Council for approval. If the law or the State Council has provisions on the scope of other projects that must be subject to bidding, such provisions shall be followed.

Article 2 of the Provisions on Engineering Projects Subject to Bidding (Order No. 16 of the National Development and Reform Commission), projects that use state-owned funds or state financing in whole or in part, include:

Projects that (I) use budget funds of more than 2 million yuan, and the funds account for more than 10% of the investment;

Projects that (II) use the funds of state-owned enterprises and institutions, and the funds occupy a controlling or dominant position.

Article 5 For projects within the scope of Articles 2 to 4 of these Provisions, if the survey, design, construction, supervision, and procurement of important equipment and materials related to project construction meet one of the following standards, bidding must be conducted:

The estimated price of (I) construction single contract is above 4 million yuan;

For the procurement of important (II) equipment, materials and other goods, the estimated price of a single contract is above 2 million yuan;

For the procurement of (III) survey, design, supervision and other services, the estimated price of a single contract is above 1 million yuan.

For the procurement of survey, design, construction, supervision and important equipment and materials related to project construction that can be combined in the same project, if the total estimated contract price meets the standards specified in the preceding paragraph, bidding must be invited.

(I) the personnel of the bidding unit to disclose to others the names and quantities of potential bidders who have obtained the bidding documents or other circumstances that may affect fair competition

(II) the personnel of the bidding unit to disclose the bid price to the bidder

(III) the personnel of the bidding unit to disclose the list of members of the bid evaluation committee to the bidders.

If a warning is given, a fine of not less than 10,000 yuan but not more than 100,000 yuan may be imposed, and the person in charge and other persons directly responsible for the unit shall be punished according to law. If a crime is constituted, criminal responsibility shall be investigated according to law. If the acts listed in the preceding paragraph affect the bid winning result, the bid winning shall be invalid.

A park area project of a beautiful rural construction project in a county in Binzhou is subject to public bidding through a county public resources trading center, and a Shandong audit accounting firm Co., Ltd. is responsible for the bidding agency.

Wang mou borrowed the qualification of a water municipal engineering co., ltd. in Shandong province to bid (borrow the qualification) by paying management fees and benefits. at the same time, he contacted three companies, namely, a construction engineering co., ltd. in Shandong province, an engineering co., ltd. in Shandong province and a municipal engineering co., ltd. in Jinan city, through tan mou ", after that, Ma (in the same case with Wang) arranged a holding company in Binzhou, which he operated, to pay a deposit of 280000 yuan (70000 yuan per company) to the above four companies to participate in the bidding (the deposit was transferred out by the same unit or individual).

The bidding documents of the above four companies were made by Wang mou in contact with Cui mou, and the bidding quotations involved were all decided by Wang mou (the bidding documents were prepared by the same unit or individual).

In order to further improve the probability of winning the bid, Wang mou and ma mou contacted a Shandong auditing and accounting firm co., ltd. through a related person of a county office of the tenderee (party a) to provide help (mediation), and Wang mou gave the technical bid of a water municipal company to party a's judges in advance before the bid opening. party a judges gave a water municipal company a high score (co-offender) in the scoring process of the judges.

Subsequently, a water municipal company won the bid for the above-mentioned project at a price of RMB 4.248 million, and Ma arranged the project to Wei and others for construction (illegal subcontracting and subcontracting).

Penalty results:

Wang and Ma colluded in bidding, bribery, and combined punishment for several crimes.

Tan mou and Shandong water municipal engineering co., ltd (borrowing qualifications) colluded in bidding.

A construction engineering company in Shandong, an engineering company in Shandong, and a municipal engineering company in Jinan participated in the "bid encirclement" and committed the crime of collusion in bidding.

A holding company in Binzhou, controlled by Ma, pays a security deposit and is an accomplice in the crime of colluding in bidding.

Cui a production of tender documents, tender documents prepared by the same unit or individual, the crime of collusion in bidding accomplice.

A county, a certain office, a related person, complicity in the crime of colluding in bidding, bribery.

Shandong an audit accounting firm Co., Ltd. and a member of the evaluation committee, complicity in the crime of collusion in bidding.

Ma and Wei and others construction (illegal subcontracting, subcontracting), the subcontracting contract is invalid, confiscation of illegal income, administrative punishment.

Six companies, more than ten people, criminal accountability, job-related crimes, administrative penalties, and civil disputes.

The crime of colluding in bidding means that bidders collude with each other in bidding to the detriment of the interests of the tenderer or other bidders, or that a bidder colludes with a tenderer in bidding to the detriment of the legitimate interests of the State, the collective or the citizens, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or shall only be fined.

1. Subject of crime

According to the provisions of Article 223 of the Criminal Law, the subject of this crime is a special subject, that is, the tenderer and the bidder. In addition, according to the provisions of Article 231 of the Criminal Law, the unit can also become the subject of the crime.

In judicial practice, the actor participated in the bidding activities, even if the actor is not the tenderer and bidder in the sense of the Tendering and Bidding Law, as long as the implementation of the act of collusive bidding, to achieve the purpose of collusive bidding, can become the subject of the crime of collusive bidding (third person).

The following persons or units may be the subject of the crime of bid-collusion:

(1) The person in charge and other persons directly responsible for the bidding unit and the bidding unit.

(2) The bidding agency and the directly responsible person in charge and other directly responsible personnel of the bidding agency.

(3) Members of the bid evaluation committee.

(4) The bidding construction enterprise and the bidding construction enterprise are directly responsible for the supervisors and other directly responsible personnel. The person in charge directly responsible for the bidding enterprise refers to the person who decides to implement the collusion bidding behavior in the bidding activities, such as the legal representative, chairman and general manager of the construction enterprise. Other directly responsible personnel of the bidding enterprise refer to the personnel who participate in the bidding activities and concretely implement the collusion bidding behavior, such as the operation department, marketing department, finance department director and employees of the construction enterprise, project manager, etc.

(5) The actual bidder who borrows the qualification of the bidding enterprise. If the implementer borrows the name of a construction enterprise with corresponding qualifications to participate in the bidding activities and carry out the act of colluding in bidding, the perpetrator of the colluding in bidding shall bear criminal responsibility. If the enterprise whose qualifications are borrowed does not know about the collusive bidding by the borrower, it shall not be liable; if it knows, it shall bear criminal liability as an accomplice in the collusive bidding.

subjective aspect

The subjective aspect of this crime is intentional, that is, the actor of colluding in bidding knowingly that his act of colluding in bidding will undermine the fair, competitive and merit-based market economic order and harm the interests of the tenderer and other bidders. (Not required to knowingly violate the criminal law)

2. Object of crime

The object of this crime is a complex object, including three aspects:

(1) a fair, competitive and merit-based market economic order;

(2) the interests of the tenderer and other bidders;

(3) The legitimate interests of the State, the collective and citizens.

Objective aspect

According to the "Bidding Law", "Bidding Law Implementation Regulations" and other laws and regulations, collusive bidding behavior is mainly divided into two categories, namely, collusive bidding between bidders, collusive bidding between bidders and tenderers.

(1) Collusive bidding behavior between bidders

According to Article 39 of the Regulations on the Implementation of the Tendering and Bidding Law, the circumstances in which bidders collude with each other in bidding are:

① Negotiation between bidders on the substantive content of the tender documents such as tender offer;

② The successful bidder shall be agreed between the bidders;

③ It is agreed between the bidders that some of the bidders abandon the bid or win the bid;

④ Bidders who are members of the same group, association, chamber of commerce and other organizations bid collaboratively in accordance with the requirements of the organization;

⑤ Other joint actions taken by bidders to win the bid or exclude specific bidders.

According to Article 40 of the Regulations on the Implementation of the Tendering and Bidding Law, the circumstances in which bidders are deemed to have colluded with each other in bidding are:

① The bidding documents of different bidders shall be prepared by the same unit or individual;

② Different bidders entrust the same unit or individual to handle bidding matters;

③ The project management member specified in the bidding documents of different bidders is the same person;

④ The bidding documents of different bidders are abnormally consistent or the bidding quotations are regularly different (increasing and decreasing);

⑤ The bidding documents of different bidders are mixed with each other;

⑥ The bid bond of different bidders is transferred from the account of the same unit or individual.

(2) Collusion between bidders and tenderers

According to Article 41 of the Regulations on the Implementation of the Tendering and Bidding Law, the circumstances in which the tenderer and the bidder collude with each other in bidding include:

① The tenderer opens the tender documents and divulges the relevant information to other bidders before the bid opening;

② The tenderee directly or indirectly divulges information such as the bottom of the bid and the members of the bid evaluation committee to the bidders;

③ The tenderer expressly or implicitly lowers or raises the bid price;

④ The Tenderee shall instruct the Bidder to replace or modify the Bidding Documents;

⑤ The tenderer expressly or implicitly provides convenience for specific bidders to win the bid;

⑥ Other acts of collusion between the tenderer and the bidder to seek the bid of a specific bidder.

According to Article 76 of the (II) on the Standards for Prosecution of Criminal Cases, if bidders collude with each other in bidding, or if a bidder colludes with a tenderer in bidding, and is suspected of one of the following circumstances, a case shall be filed for prosecution:

1. Damage the legitimate interests of the tenderee, bidder or the state, collective or citizen, causing direct economic losses of more than 500000 yuan. This has two meanings:

First, it has carried out the act of collusive bidding that harms the legitimate interests of the tenderer, the bidder or the state, the collective and the citizens;

Second, the collusion bidding caused direct economic losses of more than 500000 yuan.

For these two meanings, what are the legitimate interests of the tenderer, the bidder, or the state, the collective, and the citizens? What kind of loss is a direct economic loss? How to define the amount of loss? There is no clear stipulation in the (II) of Criminal Cases Prosecution Standards, and the Supreme People's Court and the Supreme People's Procuratorate have not issued corresponding judicial interpretations to clarify it. Therefore, in judicial practice, this item is generally not used as the basis for filing a case for the crime of collusion in bidding.

1. The amount of illegal income is more than 100000 yuan. (The term "illegal income" in this item generally refers to the bid-rigging fees or facilitation fees obtained by participating in collusive bidding. For projects obtained by collusive bidding, the profits obtained after the completion of the project do not belong to the illegal income mentioned in this item.)

2. The amount of the winning project is more than 2 million yuan. (Construction Engineering)

3. Adopting illegal means such as threat, deception or bribery.

4. Although the above-mentioned amount standard is not met, but within two years due to collusion in bidding, has been subject to administrative punishment twice or more, and colluded in bidding.

5. Other serious circumstances.

The "Tendering and Bidding Law" stipulates administrative penalties such as fines, confiscation of illegal income, revocation of the business license of the colluding bidder, or cancellation of the bidder's bidding qualification for general collusion in bidding. Therefore, the general collusion bidding behavior is not suspected of crime. According to the provisions of the Criminal Law, collusion bidding behavior needs to reach "serious circumstances" to constitute a crime. The "Criminal Case Prosecution Standard (II)" has specific provisions on "serious circumstances". Only when the collusion bidding behavior reaches a certain level or causes corresponding consequences can the criminal investigation procedure be initiated.