Viewpoint | Interpretation of issues related to corporate restructuring of enterprises owned by the whole people
Published:
2021-11-30
The corporate restructuring of state-owned enterprises is an important decision and deployment of the Party Central Committee and the State Council on deepening the reform of state-owned enterprises. After years of in-depth reforms, the corporate restructuring of state-owned enterprises in my country has now fully covered more than 90%, which has effectively promoted the separation of state-owned enterprises from government. The corporate governance structure is gradually improving. As the main organizational form of state-owned enterprises, enterprises owned by the whole people actively respond to the requirements of the central to local corporate system reform, and promote the continuous deepening of the reform of state-owned enterprises. This article is based on the "the People's Republic of China Enterprise State-owned Assets Law", "the People's Republic of China Company Law" (hereinafter referred to as the "Company Law"), "Enterprise State-owned Assets Transaction Supervision and Administration Measures", "Enterprise State-owned Property Rights Transfer Management Interim Measures", "Shandong Province State-owned Property Rights Transaction Management Measures," Implementation Opinions on Further Regulating the Restructuring of State-owned Enterprises "(Guo Ban Fa Fa [2005] No. 60)," notice on the Implementation Plan for the Restructuring Work (Guo Ban Fa [2017] No. 69), and the Operational Guidelines for Lawyers of the All-China Lawyers Association for the Restructuring of State-owned Enterprises and Related Corporate Governance Businesses. List the main legal basis and normative policy document guidelines, and discuss the relevant practical issues in the process of corporate restructuring of enterprises owned by the whole people. 1. the corporate restructuring of enterprises owned by the whole people An enterprise owned by the whole people refers to a commodity production and business unit whose property belongs to the whole people, operates independently in accordance with the law, is responsible for its own profits and losses, and is an organizational form of state-owned enterprises in a broad sense. The target of the corporate system reform is enterprises owned by the whole people. According to the requirements of the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Reform of Central Enterprises", all enterprises owned by the whole people that operate normally should be restructured into limited liability companies registered in accordance with the "Company Law" Or joint stock limited companies, accelerate the formation of effective checks and balances of corporate governance structure and flexible and efficient market-oriented operating mechanism, therefore, enterprises owned by the whole people, cultural and financial enterprises owned by the whole people, if there are no other special regulations, all need to implement corporate reform. The reform of the corporate system of enterprises owned by the whole people should be carried out in accordance with the conditions of the enterprise, in line with the actual operation of the enterprise, and effectively promoted. Enterprises owned by the whole people that are difficult to be reformed due to suspension of production and business, revocation of business license, etc., can directly implement reorganization, integration or liquidation and cancellation in accordance with the reform requirements of inefficient and invalid asset disposal. In addition, it is agreed that after the parent company controls a number of subsidiary enterprises owned by the whole people, the parent company can also adopt the "sub-reform" method to cancel the subsidiary enterprises in accordance with the law and set up branches to undertake the business, assets and personnel related to the atomic enterprise. General process of 2. corporate restructuring In accordance with the provisions of the Company Law and the relevant requirements of industrial and commercial registration, enterprises owned by the whole people are transformed into wholly state-owned companies or wholly-owned subsidiaries of state-owned and state-controlled enterprises. The specific process is as follows: (1) According to the specific conditions of the restructured enterprise (the basic situation of the restructured enterprise, financial status, operating status, personnel and social security, enterprise qualifications, land and real estate, etc.), weave a restructuring plan. If the resettlement of enterprise employees is involved, the employee resettlement plan shall also be formulated; (2) Formulate the articles of association of the company (for state-owned enterprises transformed into limited liability companies or joint stock limited companies, the articles of association shall be formulated in accordance with the State-owned Assets Law of Enterprises, the Company Law and relevant policy documents); (3) reporting to the registration authority the change of the name of the enterprise after the restructuring; (4) The restructuring plan shall perform internal decision-making procedures, and the employee placement plan shall be reviewed and approved by the employee representative assembly or the employee assembly; (5) To carry out the procedures for approving the restructuring plan and the articles of association of the company; (6) involving the liquidation of nuclear capital, asset assessment and other work, in accordance with the relevant provisions; (7) for industrial and commercial change registration; (8) Handling property rights, bank account changes and qualification succession, employee social security succession, labor contract succession or change, etc. Relevant contents of 3. restructuring plan When an enterprise owned by the whole people is transformed into a corporate enterprise, it is necessary to formulate a restructuring plan to clarify the organizational form and assets of the enterprise after the restructuring. The main contents of the restructuring plan include the following items: (1) Basic information of the enterprise; (2) The mode of restructuring (the organizational form of the enterprise after the restructuring and the establishment of the property right structure, etc.); (3) Basic information of the enterprise after the restructuring (name, domicile, legal representative, amount of registered capital and basis for determination, business scope, etc.); (4) Post-restructuring corporate governance arrangements (the establishment of shareholders' meetings, boards of directors, supervisory boards or supervisors and their related rights and obligations, etc.); (5) Employee placement; (6) Disposal of claims and debts; (7) Disposal of State-owned allocated land; (8) Party organization setup; (9) The succession of business qualifications. The above contents are the general contents of the restructuring plan, which should be determined in combination with the actual situation of restructuring into a wholly-owned subsidiary of a state-owned and state-owned enterprise holding enterprise and a diversified equity enterprise. Approval procedures for 4. restructuring plans The principle of examination and approval of the reform plan of the corporate system of enterprises owned by the whole people is to strictly control, earnestly and steadily promote the reform of the corporate system in an orderly manner, and prevent the loss of state-owned assets. According to the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Restructuring of Central Enterprises" (Guo Ban Fa [2017] No. 69), the restructuring of central enterprise groups into wholly state-owned companies shall be approved by the institutions authorized by the State Council to perform the duties of investors; The restructuring into a diversified equity enterprise shall be submitted to the State Council for approval in accordance with the procedures. The restructuring of a subsidiary enterprise of a central enterprise shall, unless otherwise specified, perform the examination and approval procedures in accordance with the relevant internal regulations of the enterprise. In accordance with the principle of "who contributes, who is in charge, and who is responsible", after being reported to the provincial bureau for filing and approval, the competent unit will examine and approve the enterprise restructuring plan. How to determine the registered capital involved in the restructuring of 5. companies? According to the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Restructuring of Central Enterprises" (Guo Ban Fa [2017] No. 69), enterprises owned by the whole people are restructured into wholly state-owned companies or wholly-owned subsidiaries of state-owned and state-controlled enterprises. The audited net asset value of the previous year is used as the basis for determining the registered capital in the registration of industrial and commercial changes. Does the 6. need to be restructured into a corporate enterprise? When enterprises owned by the whole people implement the reform of the corporate system, they shall carry out the liquidation of assets and capital in accordance with the relevant provisions. Among them, for the implementation of enterprise accounting standards, the establishment of a standardized financial system, the most recent annual financial statements audited by an intermediary and issued a standard unqualified audit report, the enterprise to the restructuring plan approval unit for approval, may not carry out the liquidation of nuclear capital. If the competent department has other provisions, they shall be implemented in accordance with the provisions. Does the 7. restructuring plan need to be passed by the workers' congress? According to the relevant provisions of the "Enterprise State-owned Assets Law," if the restructuring of an enterprise involves the resettlement of employees, an employee resettlement plan shall be formulated and approved by the employee representative assembly or the employee assembly. 8. lawyers in the corporate restructuring. According to the Operational Guidelines for Lawyers of the All-China Lawyers Association for the Restructuring of State-owned Enterprises and Related Corporate Governance Businesses, lawyers accept the entrustment of restructured enterprises to undertake the restructuring of state-owned enterprises and conduct due diligence. In the Legal Due Diligence Report, the following matters should generally be involved: (I) the verification of "establishment, evolution and change; (II) verification of the "basic operating structure; (III) the verification of "equity situation; (IV) verification of "tangible assets" (V) the verification of the "land use rights and other intangible assets; (VI) the verification of the "major contracts" signed or related by the restructured enterprise; (VII) the verification of "major claims and debts" of the restructured enterprises; (VIII) the verification of "major legal disputes, administrative penalties, etc." involved in the restructuring of enterprises; Verification of the "basic situation of personnel" of the (IX) restructuring enterprise; Lawyers can also request the restructured enterprise and the investigated object to provide other relevant documents or information according to the different restructuring plan, restructuring plan, characteristics and requirements. In the process of corporate restructuring, enterprises owned by the whole people should standardize their operations in accordance with laws and regulations and relevant regulations on the restructuring of state-owned enterprises and the management of state-owned property rights, strictly and carry out the decision-making and examination and approval procedures, strengthen and improve the supervision and guidance of the restructuring process, and promote the corporate restructuring of enterprises owned by the whole people in accordance with the requirements of centralized and unified supervision of the state.
The corporate restructuring of state-owned enterprises is an important decision and deployment of the Party Central Committee and the State Council on deepening the reform of state-owned enterprises. After years of in-depth reforms, the corporate restructuring of state-owned enterprises in my country has now fully covered more than 90%, which has effectively promoted the separation of state-owned enterprises from government. The corporate governance structure is gradually improving. As the main organizational form of state-owned enterprises, enterprises owned by the whole people actively respond to the requirements of the central to local corporate system reform, and promote the continuous deepening of the reform of state-owned enterprises.
This article is based on the "the People's Republic of China Enterprise State-owned Assets Law", "the People's Republic of China Company Law" (hereinafter referred to as the "Company Law"), "Enterprise State-owned Assets Transaction Supervision and Administration Measures", "Enterprise State-owned Property Rights Transfer Management Interim Measures", "Shandong Province State-owned Property Rights Transaction Management Measures," Implementation Opinions on Further Regulating the Restructuring of State-owned Enterprises "(Guo Ban Fa Fa [2005] No. 60)," notice on the Implementation Plan for the Restructuring Work (Guo Ban Fa [2017] No. 69), and the Operational Guidelines for Lawyers of the All-China Lawyers Association for the Restructuring of State-owned Enterprises and Related Corporate Governance Businesses. List the main legal basis and normative policy document guidelines, and discuss the relevant practical issues in the process of corporate restructuring of enterprises owned by the whole people.
1. the corporate restructuring of enterprises owned by the whole people
An enterprise owned by the whole people refers to a commodity production and business unit whose property belongs to the whole people, operates independently in accordance with the law, is responsible for its own profits and losses, and is an organizational form of state-owned enterprises in a broad sense. The target of the corporate system reform is enterprises owned by the whole people. According to the requirements of the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Reform of Central Enterprises", all enterprises owned by the whole people that operate normally should be restructured into limited liability companies registered in accordance with the "Company Law" Or joint stock limited companies, accelerate the formation of effective checks and balances of corporate governance structure and flexible and efficient market-oriented operating mechanism, therefore, enterprises owned by the whole people, cultural and financial enterprises owned by the whole people, if there are no other special regulations, all need to implement corporate reform.
The reform of the corporate system of enterprises owned by the whole people should be carried out in accordance with the conditions of the enterprise, in line with the actual operation of the enterprise, and effectively promoted. Enterprises owned by the whole people that are difficult to be reformed due to suspension of production and business, revocation of business license, etc., can directly implement reorganization, integration or liquidation and cancellation in accordance with the reform requirements of inefficient and invalid asset disposal. In addition, it is agreed that after the parent company controls a number of subsidiary enterprises owned by the whole people, the parent company can also adopt the "sub-reform" method to cancel the subsidiary enterprises in accordance with the law and set up branches to undertake the business, assets and personnel related to the atomic enterprise.
General process of 2. corporate restructuring
In accordance with the provisions of the Company Law and the relevant requirements of industrial and commercial registration, enterprises owned by the whole people are transformed into wholly state-owned companies or wholly-owned subsidiaries of state-owned and state-controlled enterprises. The specific process is as follows:
(1) According to the specific conditions of the restructured enterprise (the basic situation of the restructured enterprise, financial status, operating status, personnel and social security, enterprise qualifications, land and real estate, etc.), weave a restructuring plan. If the resettlement of enterprise employees is involved, the employee resettlement plan shall also be formulated;
(2) Formulate the articles of association of the company (for state-owned enterprises transformed into limited liability companies or joint stock limited companies, the articles of association shall be formulated in accordance with the State-owned Assets Law of Enterprises, the Company Law and relevant policy documents);
(3) reporting to the registration authority the change of the name of the enterprise after the restructuring;
(4) The restructuring plan shall perform internal decision-making procedures, and the employee placement plan shall be reviewed and approved by the employee representative assembly or the employee assembly;
(5) To carry out the procedures for approving the restructuring plan and the articles of association of the company;
(6) involving the liquidation of nuclear capital, asset assessment and other work, in accordance with the relevant provisions;
(7) for industrial and commercial change registration;
(8) Handling property rights, bank account changes and qualification succession, employee social security succession, labor contract succession or change, etc.
Relevant contents of 3. restructuring plan
When an enterprise owned by the whole people is transformed into a corporate enterprise, it is necessary to formulate a restructuring plan to clarify the organizational form and assets of the enterprise after the restructuring. The main contents of the restructuring plan include the following items:
(1) Basic information of the enterprise;
(2) The mode of restructuring (the organizational form of the enterprise after the restructuring and the establishment of the property right structure, etc.);
(3) Basic information of the enterprise after the restructuring (name, domicile, legal representative, amount of registered capital and basis for determination, business scope, etc.);
(4) Post-restructuring corporate governance arrangements (the establishment of shareholders' meetings, boards of directors, supervisory boards or supervisors and their related rights and obligations, etc.);
(5) Employee placement;
(6) Disposal of claims and debts;
(7) Disposal of State-owned allocated land;
(8) Party organization setup;
(9) The succession of business qualifications.
The above contents are the general contents of the restructuring plan, which should be determined in combination with the actual situation of restructuring into a wholly-owned subsidiary of a state-owned and state-owned enterprise holding enterprise and a diversified equity enterprise.
Approval procedures for 4. restructuring plans
The principle of examination and approval of the reform plan of the corporate system of enterprises owned by the whole people is to strictly control, earnestly and steadily promote the reform of the corporate system in an orderly manner, and prevent the loss of state-owned assets. According to the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Restructuring of Central Enterprises" (Guo Ban Fa [2017] No. 69), the central enterprise group level is restructured into a wholly state-owned company.Institutions authorized by the State Council to perform the duties of investorsApproval; restructured into a diversified equity enterpriseThe institution performing the duties of the investor shall report to the State Council for approval in accordance with the procedures.Approval. The restructuring of subsidiaries of central enterprises, unless otherwise provided, is in accordance withExamination and approval of relevant internal regulations of the enterpriseProcedure. In accordance with the principle of "who contributes, who is in charge, who is responsible", the reportApproved by the provincial bureau for the recordAfter,Competent UnitReview and approve the enterprise restructuring plan.
How to determine the registered capital involved in the restructuring of 5. companies?
According to the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Restructuring of Central Enterprises" (Guo Ban Fa [2017] No. 69), enterprises owned by the whole people are restructured into wholly state-owned companies or wholly-owned subsidiaries of state-owned and state-controlled enterprises.Audited net asset value of the previous yearAs the basis for determining the registered capital in the registration of industrial and commercial changes.
Does the 6. need to be restructured into a corporate enterprise?
When enterprises owned by the whole people implement the reform of the corporate system, they shall carry out the liquidation of assets and capital in accordance with the relevant provisions. Among them, for the implementation of enterprise accounting standards, the establishment of a standardized financial system,If the most recent annual financial statements have been audited by an intermediary and a standard unqualified audit report has been issued, the enterprise shall apply to the approval unit of the restructuring plan for approval, and may not carry out liquidation and capital verification.If the competent department has other provisions, they shall be implemented in accordance with the provisions.
Does the 7. restructuring plan need to be passed by the workers' congress?
according to the relevant provisions of the "law on state-owned assets of enterprises," where the restructuring of an enterprise involves the relocation of staff and workers,A plan for the placement of workers shall be formulated and reviewed by the workers' congress or the workers' congress.Pass.
8. lawyers in the corporate restructuring.
According to the Operational Guidelines for Lawyers of the All-China Lawyers Association for the Restructuring of State-owned Enterprises and Related Corporate Governance Businesses, lawyers accept the entrustment of restructured enterprises to undertake the restructuring of state-owned enterprises and conduct due diligence. In the Legal Due Diligence Report, the following matters should generally be involved:
(I) the verification of "establishment, evolution and change;
(II) verification of the "basic operating structure;
(III) the verification of "equity situation;
(IV) verification of "tangible assets"
(V) the verification of the "land use rights and other intangible assets;
(VI) the verification of the "major contracts" signed or related by the restructured enterprise;
(VII) the verification of "major claims and debts" of the restructured enterprises;
(VIII) the verification of "major legal disputes, administrative penalties, etc." involved in the restructuring of enterprises;
Verification of the "basic situation of personnel" of the (IX) restructuring enterprise;
Lawyers can also request the restructured enterprise and the investigated object to provide other relevant documents or information according to the different restructuring plan, restructuring plan, characteristics and requirements.
In the process of corporate restructuring, enterprises owned by the whole people should standardize their operations in accordance with laws and regulations and relevant regulations on the restructuring of state-owned enterprises and the management of state-owned property rights, strictly and carry out the decision-making and examination and approval procedures, strengthen and improve the supervision and guidance of the restructuring process, and promote the corporate restructuring of enterprises owned by the whole people in accordance with the requirements of centralized and unified supervision of the state.
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