State-owned supervision... Do state-owned enterprises need to enter the market to transfer their share of property in a limited partnership?
Published:
2022-05-08
Recently, we have been entrusted by the consultant unit to issue a legal opinion on the 20% property share of a limited partnership enterprise to be transferred. Among them, regarding the transaction method of the target share transfer, that is, whether the state-owned enterprise needs to enter the market to transfer its property share in the limited partnership enterprise, after inquiring about relevant laws and regulations, the website of SASAC and consulting with the State-owned Assets Supervision and Administration Commission of Shandong Provincial People's Government, it is preliminarily believed that the transfer of the share of the property of a limited partnership held by the state-owned advisory unit in that country does not need to be made public with the property rights trading institution. However, in practice, due to the lack of clear legal provisions, it is controversial whether the transfer of limited partnership property shares by state-owned enterprises is subject to the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (Order No. 32 of the Ministry of Finance of the State-owned Assets Supervision and Administration Commission of the State Council) and whether it is necessary to enter the market for transactions. I. Controversies and main points in practice [Viewpoint 1]: State-funded limited partnerships are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not need to enter the transaction. The main reasons for holding this view are as follows: The legislative basis of Decree No. 1.32 does not include the Partnership Law, so state-funded limited partnerships are not regulated and bound by it. 2. The State-owned Assets Supervision and Administration Commission of the State Council has made it clear in its response to a question on its official website on May 27, 2019 that "the scope of application of Decree 32 is for corporate enterprises established under the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises shall be stipulated separately.", As a result, partnerships established under the the People's Republic of China Partnership Act are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not require a market entry transaction. [Viewpoint 2]: The transfer of the share of limited partnership property by state-owned enterprises shall be subject to Decree No. 32 and shall be carried out publicly in property rights trading institutions. The main reasons for holding this view are as follows: 1. From the definition of the concept of state-owned assets of enterprises and state-owned enterprises and enterprises, the provisions of the State-owned assets Law of Enterprises and Decree No. 32 on "state-funded enterprises", "state-owned and state-controlled enterprises, enterprises funded by state-owned enterprises" and "various forms of capital contribution to enterprises" do not exclude "partnership enterprises, the share of limited partnership property held by a state-owned enterprise belongs to the state-owned assets of the enterprise, so the transfer of the share of limited partnership property by a state-owned enterprise shall be made public in the property rights trading institution. 2. The reply to the question made by the State-owned Assets Supervision and Administration Commission of the State Council on its official website on May 27, 2019, that is, "The scope of application of Decree No. 32 is for corporate enterprises established in accordance with the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises is separately stipulated" is not a formal document, which has no legal effect, and the reply also indicates that the opinion is for reference only. 3. On February 7, 2020, the State-owned Assets Supervision and Administration Commission of the State Council issued the Interim Provisions on the Registration of State-owned Rights and Interests of Limited Partnership Enterprises, Article 1 of which states that its purpose is "to strengthen the registration and management of state-owned rights and interests of limited partnership enterprises and to reflect the status of state-owned rights and interests of limited partnership enterprises in a timely, accurate and comprehensive manner, in accordance with the" State-owned Assets Law of the People's Republic of China Enterprises "," the People's Republic of China Partnership Enterprise Law "," Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises "(State Council Order No. 378) and other relevant laws and regulations, these regulations are formulated". It can be seen from the promulgation of these regulations that the supervision The department has begun to strengthen the supervision of the state-owned rights and interests of limited partnerships. At present, although there are no laws and regulations to make clear provisions on the transfer of state-owned shares of partnership enterprises, the introduction of this provision to a certain extent releases a signal that the disposal of state-owned rights and interests of limited partnership enterprises may be clearly regulated in the future. Two relevant laws and regulations 1. Law on State-owned Assets of the People's Republic of China Enterprises (hereinafter referred to as the Law on State-owned Assets of Enterprises) Article 2: "The state-owned assets of enterprises (hereinafter referred to as state-owned assets) referred to in this Law refer to the rights and interests formed by the state's various forms of capital contributions to enterprises." Article 5 The term "state-funded enterprises" as mentioned in this Law refers to wholly state-owned enterprises and wholly state-owned companies, as well as state-owned capital holding companies and state-owned capital shareholding companies. Article 30 Major matters such as merger, division, restructuring and listing of state-funded enterprises, increase or decrease of registered capital, issuance of bonds, major investment, provision of large amount of guarantee for others, transfer of major property, large amount of donation, distribution of profits, dissolution and application for bankruptcy shall abide by laws, administrative regulations and the provisions of the articles of association of the enterprise, and shall not damage the rights and interests of investors and creditors. Article 51 The term "transfer of state-owned assets" as mentioned in this Law refers to the act of transferring the rights and interests formed by the state's capital contribution to the enterprise to other units or individuals in accordance with the law, except for the free transfer of state-owned assets in accordance with the provisions of the state. Article 54: "The transfer of state-owned assets shall follow the principles of compensation for equal value and openness, fairness and impartiality. Except for those that can be transferred by direct agreement in accordance with the provisions of the State, the transfer of state-owned assets shall be carried out openly in property rights trading venues established in accordance with the law". 2. Measures for the Supervision and Administration of the Transactions of State-owned Assets of Enterprises (hereinafter referred to as "Decree No. 32") Article 1 In order to regulate the trading of state-owned assets of enterprises, strengthen the supervision and management of state-owned assets transactions of enterprises, and prevent the loss of state-owned assets, these measures are formulated in accordance with the Law on State-owned Assets of the People's Republic of China Enterprises, the the People's Republic of China Company Law, the Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises and other relevant laws and regulations. Article 3 The transaction of state-owned assets of enterprises referred to in these Measures includes: (1) the transfer of rights and interests formed by institutions performing the duties of investors, state-owned and state-owned holding enterprises, and state-owned actual control enterprises (hereinafter referred to as the transfer of enterprise property rights); the increase of capital by (II) state-owned and state-owned holding enterprises, and state-owned actual control enterprises (hereinafter referred to as enterprise capital increase), except for the government's investment in state-funded enterprises by increasing capital, (III) the transfer of major assets of state-owned and state-controlled enterprises and state-controlled enterprises (hereinafter referred to as the transfer of enterprise assets). Article 4 The term "state-owned and state-owned holding enterprises and state-owned actual control enterprises" as mentioned in these Measures includes: wholly state-owned enterprises (companies) funded by (I) government departments, institutions and institutions, as well as state-owned wholly-owned enterprises in which the above-mentioned units and enterprises directly or indirectly hold 100% of the total shares; (II) the units and enterprises listed in the (I) paragraph of this article are individually or jointly funded, with a total ownership of more than 50%, and one of them is the enterprise with the largest shareholder; (III) the enterprises listed in the (I) and (II) paragraphs of this article, the subsidiary enterprises at all levels with an equity ratio of more than 50%; (IV) government departments, institutions, institutions, single state-owned and state-owned holding enterprises directly or indirectly hold less than 50% of the shares, but are the largest shareholder, and through the shareholders' agreement, the articles of association, the resolution of the board of directors or other agreement arrangements can actually control the enterprise. Article 13 The transfer of property rights shall, in principle, be carried out openly through the property rights market. The transferor may, according to the actual situation of the enterprise and the work schedule, adopt a combination of information pre-disclosure and formal disclosure, disclose the property rights transfer information in stages through the website of the property rights trading institution, and openly solicit the transferee. The time for formal disclosure of information shall not be less than 20 working days. three summary The author believes that although the SASAC has made a targeted reply to the question of whether the transfer of the share of limited partnership property by state-owned enterprises is applicable to Decree 32, the content of the reply is not comprehensive, the expression is not clear, and it is not an official document, which has no legal effect. According to the provisions of the State-owned Assets Law of Enterprises, the share of limited partnership property held by state-owned enterprises belongs to the state-owned assets of enterprises. In principle, the transfer of the share of limited partnership property by a state-owned enterprise shall be carried out publicly in the property rights trading place. At present, there is no clear legal regulation on whether the transfer of limited partnership property shares by state-owned enterprises needs to be traded, and there are disputes in practice. However, from the perspective of relevant legislative purposes, the principles of state-owned assets trading and the prudence of state-owned assets supervision, the transfer of limited partnership property shares by state-owned enterprises can be carried out openly in property rights trading institutions with reference to the application of Decree No. 32, and it is best to get a written reply to avoid the transaction of state-owned assets being identified as a violation of regulations and causing the loss of state-owned assets.
Recently, we have been entrusted by the consultant unit to issue a legal opinion on the 20% property share of a limited partnership enterprise to be transferred. Among them, regarding the transaction method of the target share transfer, that is, whether the state-owned enterprise needs to enter the market to transfer its property share in the limited partnership enterprise, after inquiring about relevant laws and regulations, the website of SASAC and consulting with the State-owned Assets Supervision and Administration Commission of Shandong Provincial People's Government, it is preliminarily believed that the transfer of the share of the property of a limited partnership held by the state-owned advisory unit in that country does not need to be made public with the property rights trading institution. However, in practice, due to the lack of clear legal provisions, it is controversial whether the transfer of limited partnership property shares by state-owned enterprises is subject to the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (Order No. 32 of the Ministry of Finance of the State-owned Assets Supervision and Administration Commission of the State Council) and whether it is necessary to enter the market for transactions.
I. Controversies and main points in practice
[Viewpoint 1]: State-funded limited partnerships are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not need to enter the transaction.
The main reasons for holding this view are as follows:
The legislative basis of Decree No. 1.32 does not include the Partnership Law, so state-funded limited partnerships are not regulated and bound by it.
2. The State-owned Assets Supervision and Administration Commission of the State Council has made it clear in its response to a question on its official website on May 27, 2019 that "the scope of application of Decree 32 is for corporate enterprises established under the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises shall be stipulated separately.", As a result, partnerships established under the the People's Republic of China Partnership Act are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not require a market entry transaction.
[Viewpoint 2]: The transfer of the share of limited partnership property by state-owned enterprises shall be subject to Decree No. 32 and shall be carried out publicly in property rights trading institutions.
The main reasons for holding this view are as follows:
1. From the definition of the concept of state-owned assets of enterprises and state-owned enterprises and enterprises, the provisions of the State-owned assets Law of Enterprises and Decree No. 32 on "state-funded enterprises", "state-owned and state-controlled enterprises, enterprises funded by state-owned enterprises" and "various forms of capital contribution to enterprises" do not exclude "partnership enterprises, the share of limited partnership property held by a state-owned enterprise belongs to the state-owned assets of the enterprise, so the transfer of the share of limited partnership property by a state-owned enterprise shall be made public in the property rights trading institution.
2. The reply to the question made by the State-owned Assets Supervision and Administration Commission of the State Council on its official website on May 27, 2019, that is, "The scope of application of Decree No. 32 is for corporate enterprises established in accordance with the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises is separately stipulated" is not a formal document, which has no legal effect, and the reply also indicates that the opinion is for reference only.
3. On February 7, 2020, the State-owned Assets Supervision and Administration Commission of the State Council issued the Interim Provisions on the Registration of State-owned Rights and Interests of Limited Partnership Enterprises, Article 1 of which states that its purpose is "to strengthen the registration and management of state-owned rights and interests of limited partnership enterprises and to reflect the status of state-owned rights and interests of limited partnership enterprises in a timely, accurate and comprehensive manner, in accordance with the" State-owned Assets Law of the People's Republic of China Enterprises "," the People's Republic of China Partnership Enterprise Law "," Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises "(State Council Order No. 378) and other relevant laws and regulations, these regulations are formulated". It can be seen from the promulgation of these regulations that the supervision The department has begun to strengthen the supervision of the state-owned rights and interests of limited partnerships. At present, although there are no laws and regulations to make clear provisions on the transfer of state-owned shares of partnership enterprises, the introduction of this provision to a certain extent releases a signal that the disposal of state-owned rights and interests of limited partnership enterprises may be clearly regulated in the future.
Two relevant laws and regulations
1. Law on State-owned Assets of the People's Republic of China Enterprises (hereinafter referred to as the Law on State-owned Assets of Enterprises)
Article 2: "The term" as used in this LawState-owned assets of enterprises (hereinafter referred to as state-owned assets) refer to the rights and interests formed by the state's various forms of capital contributions to enterprises."
Article 5 As used in this LawState-funded enterprises refer 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 participation companies.
Article 30 Major matters such as merger, division, restructuring and listing of state-funded enterprises, increase or decrease of registered capital, issuance of bonds, major investment, provision of large amount of guarantee for others, transfer of major property, large amount of donation, distribution of profits, dissolution and application for bankruptcy shall abide by laws, administrative regulations and the provisions of the articles of association of the enterprise, and shall not damage the rights and interests of investors and creditors.
Article 51 The term "transfer of state-owned assets" as mentioned in this Law refers to the act of transferring the rights and interests formed by the state's capital contribution to the enterprise to other units or individuals in accordance with the law, except for the free transfer of state-owned assets in accordance with the provisions of the state.
Article 54:"The transfer of state-owned assets shall follow the principles of compensation for equal value and openness, fairness and impartiality. Except for those that can be transferred by direct agreement in accordance with the provisions of the State, the transfer of state-owned assets shall be carried out openly in legally established property rights trading venues".
2. Measures for the Supervision and Administration of the Transactions of State-owned Assets of Enterprises (hereinafter referred to as "Decree No. 32")
Article 1 In order to regulate the trading of state-owned assets of enterprises, strengthen the supervision and management of state-owned assets transactions of enterprises, and prevent the loss of state-owned assets, these measures are formulated in accordance with the Law on State-owned Assets of the People's Republic of China Enterprises, the the People's Republic of China Company Law, the Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises and other relevant laws and regulations.
Article 3 The term"The transaction of state-owned assets of enterprises includes: (1) the transfer of rights and interests formed by institutions performing the duties of investors, state-owned and state-controlled enterprises, and state-controlled enterprises (hereinafter referred to as the transfer of enterprise property rights);(II) the capital increase of state-owned and state-controlled enterprises and state-owned actual control enterprises (hereinafter referred to as enterprise capital increase), except for the government's investment in state-funded enterprises by increasing capital; (III) the major assets of state-owned and state-controlled enterprises and state-controlled enterprises Transfer behavior (hereinafter referred to as corporate asset transfer).
Article 4 The term "state-owned and state-owned holding enterprises and state-owned actual control enterprises" as mentioned in these Measures includes: wholly state-owned enterprises (companies) funded by (I) government departments, institutions and institutions, as well as state-owned wholly-owned enterprises in which the above-mentioned units and enterprises directly or indirectly hold 100% of the total shares; (II) the units and enterprises listed in the (I) paragraph of this article are individually or jointly funded, with a total ownership of more than 50%, and one of them is the enterprise with the largest shareholder; (III) the enterprises listed in the (I) and (II) paragraphs of this article, the subsidiary enterprises at all levels with an equity ratio of more than 50%; (IV) government departments, institutions, institutions, single state-owned and state-owned holding enterprises directly or indirectly hold less than 50% of the shares, but are the largest shareholder, and through the shareholders' agreement, the articles of association, the resolution of the board of directors or other agreement arrangements can actually control the enterprise.
Article 13In principle, the transfer of property rights is carried out openly through the property rights market.The transferor may, according to the actual situation of the enterprise and the work schedule, adopt a combination of information pre-disclosure and formal disclosure, disclose the property rights transfer information in stages through the website of the property rights trading institution, and openly solicit the transferee. The time for formal disclosure of information shall not be less than 20 working days.
three summary
The author believes that although the SASAC has made a targeted reply to the question of whether the transfer of the share of limited partnership property by state-owned enterprises is applicable to Decree 32, the content of the reply is not comprehensive, the expression is not clear, and it is not an official document, which has no legal effect. According to the provisions of the State-owned Assets Law of Enterprises, the share of limited partnership property held by state-owned enterprises belongs to the state-owned assets of enterprises. In principle, the transfer of the share of limited partnership property by a state-owned enterprise shall be carried out publicly in the property rights trading place. At present, there is no clear legal regulation on whether the transfer of limited partnership property shares by state-owned enterprises needs to be traded, and there are disputes in practice. However, from the perspective of relevant legislative purposes, the principles of state-owned assets trading and the prudence of state-owned assets supervision, the transfer of limited partnership property shares by state-owned enterprises can be carried out openly in property rights trading institutions with reference to the application of Decree No. 32, and it is best to get a written reply to avoid the transaction of state-owned assets being identified as a violation of regulations and causing the loss of state-owned assets.
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