Legal analysis of whether state-owned enterprises can act as general partners of limited partnership funds.
Published:
2019-03-13
Article 3 of the Partnership Law stipulates: "Wholly state-owned companies, state-owned enterprises, listed companies, public welfare institutions and social organizations shall not become general partners." In practice, there has been controversy over the ability of enterprises with state-owned components to serve as general partners, which is analyzed as follows:
1. Determination of "Wholly State-owned Company" as provided for in Article 3 of the Partnership Enterprise Law
1. Article 64 of the "Company Law" stipulates: "The term" wholly state-owned company "as mentioned in this Law refers to a limited liability company that is solely funded by the state and authorized by the State Council or the local people's government to perform the duties of the investor by the state-owned assets supervision and administration agency of the people's government at the same level."
2. Therefore, "wholly state-owned company" shall mean a limited liability company in which the State-owned Assets Supervision and Administration Commission of the State Council or the State-owned Assets Supervision and Administration Commission of the local people's government directly serves as a shareholder.
3. At the same time, according to the above provisions, for the secondary and tertiary subsidiaries of a wholly state-owned company, the investor is not "the state-owned assets supervision and administration institution of the people's government at the same level authorized by the State Council or the local people's government", it shall not be recognized as a "wholly state-owned company".
Identification of "State-owned Enterprises" in 2. with Article 3 of the Partnership Law
1. "State-owned enterprises" should be understood in a narrow sense.
In the "Company Law" and other legal levels, there is no clear definition of "state-owned enterprises". In a broad sense, "state-owned enterprises" can include: wholly state-owned companies, enterprises owned by the whole people, state-controlled enterprises, state-owned shareholding enterprises, etc.
Since Article 3 of the Partnership Law lists "wholly state-owned companies" and "state-owned enterprises" side by side, from the usual legislative intent, "wholly state-owned companies" and "state-owned enterprises" should not be included and included. If a broad understanding of "state-owned enterprises" is made, it will inevitably include "wholly state-owned companies". Therefore, "state-owned enterprises" should be understood in a narrow sense, and such narrow understanding should not include "wholly state-owned companies".
2, "state-owned enterprises" narrow understanding of the relevant provisions.
Article 3 of the "Relevant Provisions on the Classification of Enterprise Registration Types" (Guo Tong Zi [2011] No. 86 ") jointly promulgated by the State Administration for Industry and Commerce and the National Bureau of Statistics stipulates:" State-owned enterprises refer to non-corporate economic organizations that have all their assets owned by the State and are registered in accordance with the Regulations on the Registration of Legal Persons of the People's Republic of China Enterprises. Excluding wholly state-owned companies in limited liability companies."
At the same time, Article 2 of the Regulations on the Registration of the People's Republic of China Enterprises as Legal Persons promulgated in 1988 stipulates: "The following enterprises that meet the requirements of legal persons shall register as legal persons in accordance with the provisions of these Regulations: (1) Enterprises owned by the whole people; (II) collectively owned enterprises; (III) associates; Sino-foreign joint ventures, Sino-foreign cooperative ventures and foreign-funded enterprises (IV) established in the People's Republic of China; (V) private enterprises; (VI) other enterprises that need to be registered as legal persons in accordance with the law.
According to the above provisions, the "state-owned enterprises" recognized by the State Administration for Industry and Commerce shall refer to "enterprises owned by the whole people".
3. The Partnership Enterprise Law was amended and adopted at the 24th Meeting of the Standing Committee of the Eighth National People's Congress on February 23, 1997, and shall come into force on August 1, 1997. The terms used should be understood in the context of the times.
Although at present, "enterprises owned by the whole people" have been gradually transformed into a corporate system, when the Partnership Law was enacted in 1997, a large number of enterprises owned by the whole people still existed. The Partnership Law regarded enterprises owned by the whole people as "state-owned enterprises" in the law, and the relevant provisions on this are also in line with the background of the legislation.
The actual establishment of state-owned enterprises as general partners of partnership funds in 3..
At present, most of the industrial and commercial administration departments and the China Securities Investment Fund Industry Association have not imposed restrictions on state-owned enterprises other than wholly state-owned companies, enterprises owned by the whole people and listed companies. In practice, there are many cases of enterprises with state-owned components serving as general partners.
When such enterprises act as general partners of limited partnership funds, the partnership has completed the establishment registration with the industrial and commercial administration department and completed the filing of the partnership fund with the China Securities Investment Fund Industry Association. For example:
1. "Suzhou Loucheng Guofa High-tech Industrial Investment Enterprise (Limited Partnership)", its general partner is Suzhou Guofa Asset Management Co., Ltd., and its ultimate shareholder is Suzhou State-owned Assets Management Committee.
The limited partnership completed its industrial and commercial registration with Taicang Market Supervision Administration on January 23, 2018, with a unified social credit code of 91320585MA1UY4KBX3.
The limited partnership completed the fund filing with the Fund Industry Association on November 30, 2018, with the filing fund number SEL158.
2. Guangzhou Haizhu District Zhichuang Equity Investment Partnership (Limited Partnership), its general partner is Guangzhou Financial Holding Fund Management Co., Ltd., a wholly-owned subsidiary of Guangzhou Financial Holding Group Co., Ltd., and Guangzhou Financial Holding Group Co., Ltd. It is wholly-owned by the Guangzhou Municipal People's Government.
The limited partnership completed its industrial and commercial registration with the Guangzhou Administration for Industry and Commerce on September 30, 2018, with a unified social credit code of 91440101MA5CHUUQ5U.
The limited partnership completed the fund filing with the Fund Industry Association on November 28, 2018, with the filing fund number SET589.
4. Conclusion
In summary, although there is considerable controversy in the theoretical community, according to the above relevant provisions and practical cases, the author tends to believe that:
The term "wholly state-owned company" in Article 3 of the Partnership Law shall refer to a limited liability company in which the State-owned Assets Supervision and Administration Commission of the State Council or the State-owned Assets Supervision and Administration Commission of the local people's government directly serves as a shareholder; "state-owned enterprise" shall refer to an enterprise owned by the whole people and shall not include other companies with state-owned components. Other enterprises with state-owned components may act as general partners of limited partnership funds without violating the Partnership Law and other laws and regulations.
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