法释[2003]1号

（Promulgated¹ by the Supreme² People's Court on 3 January 2003 and effective as of 1 February 2003.）

颁布日期：20030103 　实施日期：20030201 　颁布单位：最高人民法院

　　These Provisions are formulated³ in accordance with the provisions of laws and regulations such as the PRC， Civil Law General Principles， the PRC， Company Law， the PRC， State Industrial Enterprise Law， the PRC， Contract Law and the PRC， Civil Procedure Law and with the adjudication practice， in order to correctly try civil dispute cases related to the restructuring of enterprises.

　　1. ACCEPTANCE OF CASES

　　Article 1　People's courts shall accept the following civil dispute cases between equal civil principals arising from the restructuring of enterprise equity⁴ system：

　　（1） civil disputes arising from enterprise corporate⁵ restructuring；

　　（2） civil disputes arising from enterprise cooperative share system restructuring；

　　（3） civil disputes arising from division of enterprises；

　　（4） disputes regarding conversion⁶ of claim to equity of enterprises；

　　（5） disputes regarding contracts for sale of enterprises；

　　（6） disputes regarding enterprise merger⁷ contracts； and

　　（7） other civil disputes related to the restructuring of enterprises.

　　Article 2　People's courts shall accept cases brought by a party that comply with the circumstances set forth⁸ in Article 1 hereof and the conditions for instituting an action under Article 108 of the Civil Procedure Law.

　　Article 3　People's courts shall not accept civil actions instituted by a party with a people's court regarding a dispute occurring in the course of administrative⁹ adjustment or transfer of an enterprise's State-owned assets by a competent government department.

　　2. ENTERPRISE CORPORATE RESTRUCTURING

　　Article 4　If a State-owned enterprise is completely restructured into a wholly State-owned limited liability company in accordance with the Company Law， the debts of the original enterprise shall be borne by the limited liability company that results from the restructuring.

　　Article 5　If an enterprise realizes equity participation¹⁰ of another party by way of capital and share increase or assignment of part of its equity， and is thereby¹¹ completely restructured into a limited liability company or a company limited by shares， the debts of the original enterprise shall be borne by the newly established company after the restructuring.

　　Article 6　If an enterprise utilizes¹² part of its property and corresponding debts to set up a new company with another party and the creditor¹³ of the debt being assigned approves the same， the civil liability for the debt shall be borne by the newly established company. If the assignment of the debt has not been notified to， or has been notified to but not approved by， the creditor， the civil liability shall be borne by the original enterprise. If the original enterprise is unable to repay the debt and the creditor asserts its claim against the newly established company， the newly established company shall bear joint¹⁴ and several civil liability for the debts with the original enterprise to the extent of the property received from the original enterprise.

　　Article 7　If an enterprise utilizes its quality property to set up a new company with another party while retaining its debts in the original enterprise， and a creditor asserts its claim by instituting an action against the newly established company and the original enterprise as joint defendants¹⁵， the newly established company shall bear joint and several liability with the original enterprise to the extent of the property received from the original enterprise.

　　3. ENTERPRISE COOPERATIVE SHARE SYSTEM RESTRUCTURING

　　Article 8　If the staff and workers of an enterprise buy out the property rights in the enterprise and restructure the original enterprise into a cooperative share system enterprise， the debts of the original enterprise shall be borne by the cooperative share system enterprise that results from the restructuring.

　　Article 9　If an enterprise assigns part of its property rights to its staff and workers and sets up a cooperative share system enterprise with the staff and workers， the debts of the original enterprise shall be borne by the cooperative share system enterprise that results from the restructuring.

　　Article 10　If an enterprise is restructured into a cooperative share system enterprise with the investment of its staff and workers through capital and share increase， the debts of the original enterprise shall be borne by the cooperative share system enterprise that results from the restructuring.

　　Article 11　When an enterprise is undergoing cooperative share system restructuring， it shall， in accordance with the relevant provisions of the Company Law， notify its creditors¹⁶ by public announcement. In cases where a creditor institutes an action against the cooperative share system enterprise for concealment¹⁷ or omission¹⁸ of a debt by the asset manager （or contributor of capital） of the original enterprise after the enterprise has been restructured into a cooperative share system enterprise， if the creditor has declared such claim during the public notification period， the cooperative share system enterprise may seek compensation from the asset manager （or contributor of capital） of the original enterprise after bearing the civil liability for the debt. If the creditor failed to declare the claim during the public notification period， the cooperative share system enterprise shall bear no civil liability and the people's court may notify the creditor to institute a separate action against the asset manager （or contributor of capital） of the original enterprise.

　　4. DIVISION OF ENTERPRISES

　　Article 12　If a creditor asserts a claim against an enterprise after division and an agreement regarding the assumption of the debts of the original enterprise was reached at the time of division， and such agreement has been approved by the creditor， the debts shall be handled in accordance with the agreement between the parties. If at the time of division of the enterprise， no agreement regarding the debts of the original enterprise was reached， or the agreement is unclear， or although there was an agreement， the creditor did not approve it， the enterprises that result from division shall assume joint and several liability for the debts.

　　Article 13　After the enterprises that result from the division have assumed joint and several liability， if they have an agreement on the assumption of the debts of the original enterprise， the debts shall be settled in accordance with the agreement. If there is no agreement， or the agreement is unclear， the debts shall be borne by the enterprises in proportion to their assets at the time of division.

　　5. CONVERSION OF CLAIM TO EQUITY OF ENTERPRISES

　　Article 14　If a creditor has entered into an agreement on conversion of claim to equity with the debtor¹⁹ on a voluntary basis and such agreement does not violate the mandatory²⁰ provisions of laws and administrative regulations， the people's court shall confirm the validity of the agreement on conversion of claim to equity when trying related civil dispute cases.

　　Conversion of claim to equity of a policy type shall be handled in accordance with the regulations of the relevant State Council departments.

　　Article 15　If a debtor defrauds²¹ the creditor into signing an agreement on conversion of claim to equity by way of concealing²² or falsifying a list of the enterprise's assets， and the creditor exercises his right of rescission within the statutory time limit， the people's court shall support the creditor.

　　After rescission of the agreement on conversion of claim to equity， the creditor shall have the right to demand that the debtor repay the debt.

　　Article 16　The engagement of some creditors in conversion of claim to equity shall not affect the assertion of claims against the debtor by other creditors.

　　6. SALE OF SMALL-SCALE STATE-OWNED ENTERPRISES

　　Article 17　If an enterprise is sold through assignment by agreement and the sale contract for the enterprise has not been examined and approved by the local people's government with the examination and approval authority or by its authorized²³ functional²⁴ department， the people's court shall confirm that the sale contract for the enterprise is void when trying related civil dispute cases.

　　Article 18　If， in the course of the sale of an enterprise， both parties maliciously²⁵ collude to damage State interests， the people's court shall confirm that the sale of the enterprise is invalid²⁶ when trying related civil dispute cases.

　　Article 19　If， in the course of the sale of an enterprise， the seller engages in an act specified²⁷ in Article 54 of the Contract Law and the buyer exercises his right of rescission within the statutory time limit， the people's court shall support the buyer.

　　Article 20　If， upon expiration²⁸ of time limit for performance stipulated²⁹ in a contract for the sale of an enterprise， one party has refused to perform the contract or has failed to fully³⁰ perform his contractual obligations， thereby making the objective of the contract unachievable， and the other party demands rescission of the contract and compensation for his losses， the people's court shall support the other party.

　　Article 21　If， upon expiration of time limit for performance stipulated in a contract for the sale of an enterprise， one party has failed to fully perform his contractual obligations and the other party demands continual performance of the contract and compensation for his losses， the people's court shall support the latter. If both parties have failed to fully perform their contractual obligations， the civil liability to be borne by each party shall be determined³¹ based on their fault.

　　Article 22　If， during the sale of an enterprise， the seller fails to fulfil its obligation to truthfully disclose major matters such as the assets and liabilities， and profits and losses， etc. of the enterprise to be sold， thereby affecting the sale price of the enterprise， and the buyer claims for compensation in a people's court， the people's court shall support the buyer.

　　Article 23　Where a contract for sale of an enterprise has been confirmed as being void or has been rescinded³²， the business profits or losses incurred³³ during the time period in which the buyer operated the enterprise after the sale of the enterprise shall be enjoyed or borne by the buyer.

　　Article 24　If， after an enterprise has been sold， the buyer injects the assets of that enterprise into its own enterprise or converts the purchased enterprise into a subsidiary of its own enterprise， the buyer shall bear the debts of the purchased enterprise unless the seller and the buyer have agreed otherwise and the creditor has approved such agreement.

　　Article 25　If， after an enterprise has been sold， the buyer sets up a new company with another party by injecting the assets of the enterprise as capital contribution and the registration³⁴ of the legal person of the purchased enterprise has been cancelled， the buyer shall bear the civil liability for the debts of the purchased enterprise incurred before purchase to the extent of all of his assets， including his equity in the newly established company.

　　Article 26　If， after an enterprise has been sold， the buyer re-registers the purchased enterprise as a new enterprise legal person and cancels the registration of the legal person of the purchased enterprise， the debts of the purchased enterprise incurred before purchase shall be borne by the newly registered enterprise legal person unless the seller and the buyer have agreed otherwise and the creditor has approved such agreement.

　　Article 27　If， after an enterprise has been sold， cancellation³⁵ of registration of the enterprise legal person should have been handled but were not handled， and a creditor institutes an action against the enterprise， the people's court shall， in accordance with the circumstances after the transfer of the enterprise's assets， notify the creditor to join other responsible entities³⁶ in the action and order the responsible entity³⁷ to bear civil liability.

　　Article 28　During the sale of an enterprise， the seller shall notify the creditors by public announcement in accordance with the relevant provisions of the Company Law. If， after an enterprise has been sold， a creditor institutes an action against the buyer for concealment or omission of a debt of the original enterprise by the seller， and the creditor has declared such claim during the public notification period， the buyer may seek compensation from the seller after bearing civil liability for the debt. If the creditor has failed to declare the claim during the public notification period， the buyer shall bear no civil liability. The people's court may notify the creditor to institute a separate action against the seller.

　　Article 29　If the purchased enterprise engages in any of the acts specified in Article 74 of the Contract Law and a creditor exercises his right of rescission during the statutory time limit， the people's court shall support the creditor.

　　7. MERGER OF ENTERPRISES

　　Article 30　Enterprise merger agreements shall be effective as of the date the agreement is signed and sealed by the parties. Enterprise merger agreements that require the approval of the competent government department shall be effective as of the date the merger agreement is approved. Enterprise merger agreements that have not been approved shall not enter into effect. However， if a party completes the submission³⁸ and approval procedures before the conclusion of the court debate in the court of first instance， the people's court shall confirm the validity of the merger agreement.

　　Article 31　After an enterprise has been merged³⁹ by absorption， the debts of the merged enterprise shall be borne by the surviving party.

　　Article 32　An enterprise shall notify its creditors by public announcement in accordance with the relevant provisions of the Company Law when carrying out merger by absorption. If， after the enterprise has been merged by absorption， a creditor institutes an action against the surviving party for concealment or omission of a debt by the original asset manager （contributor of capital） of the merged enterprise and has declared the claim during the public notification period， the surviving party may seek compensation from the original asset manager （contributor of capital） of the merged enterprise after bearing civil liability for the debt. If the creditor has failed to declare the claim during the public notification period， the surviving party shall bear no civil liability. The people's court may notify the creditor to institute a separate action against the original asset manager （contributor of capital） of the merged enterprise.

　　Article 33　When an enterprise is merged by establishment， the debts of the merged enterprise shall be borne by the enterprise legal person that results from the merger.

　　Article 34　After merger by absorption or merger by establishment， if the merged enterprise should have cancelled its business registration but failed to do so and a creditor institutes an action against the merged enterprise， the people's court shall， in accordance with the circumstances after the merger， notify the creditor to join other responsible entities in the action and order the responsible entity to bear civil liability.

　　Article 35　Where the controlling shareholding⁴⁰ of an enterprise is acquired by way of acquisition， the debts of the controlled enterprise shall continue to be borne by itself. However， if the controlled enterprise is unable to repay its debts due to the withdrawal⁴¹ of funds or evasion⁴² of debts by the controlling enterprise， the debts of the controlled enterprise shall be borne by the controlling enterprise.

　　8. SUPPLEMENTARY⁴³ PROVISIONS

　　Article 36　These Provisions shall be implemented⁴⁴ as of 1 February 2003. Judicial⁴⁵ interpretations⁴⁶ formulated prior to the implementation⁴⁷ hereof by this Court with regard to enterprise restructuring that contradict these Provisions shall no longer apply.

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