国资发产权[2005]78号

（Issued by the State-owned Assets Supervision¹ and Administration Commission of the State Council and Ministry² of Finance on 11 April 2005.）

颁布日期：20050411 　实施日期：20050411 　颁布单位：国务院国有资产监督管理委员会、 财政部

　　1. These Provisions have been formulated³ in accordance with the State Council General Office， Transmission of the Circular （Guo Ban Fa [2003] No. 96） and the Administration of the Assignment of State-owned Assets and Equities⁴ of Enterprises Tentative Procedures （State-owned Assets Supervision and Administration Commission of the State Council and Ministry of Finance Order No. 3） （hereafter， the “Tentative Procedures”） in order to further accelerate the reform of State-owned enterprises， regulate the assignment of State-owned assets and equities of enterprises and safeguard the orderly transfer of State-owned assets and equities.

　　2. For the purposes of these Provisions， the term “management” means the responsible persons and other members of the leadership team of the enterprise subject to assignment or the unit that directly or indirectly⁵ holds State-owned equities of the subject enterprise； the term “assignment of State-owned assets and equities of enterprises to the management” means the act of assignment to the management or making direct or indirect investment to the management for the establishment of an enterprise for assignment.

　　3. Assignment of State-owned assets and equities of small and medium-sized State-owned or State-controlled enterprises to the management may be explored by regions or departments where State-owned assets supervision and administration authorities have been established or where the principal entities⁶ and responsible entities for the value preservation⁷ and appreciation⁸ of State-owned assets have been determined⁹ by the government （unless otherwise provided for by laws， regulations and departmental rules）。

　　No assignment to the management shall be made of the State-owned assets and equities of large State-owned or State-controlled enterprises and their major wholly-owned or controlled subsidiaries that engage in their main line of business or of State-owned equities in listed companies.

　　4. Standards for classifying State-owned and State-controlled enterprises shall be implemented¹⁰ in accordance with the classification standards set out in the Issue of the Standards of Small and Medium Enterprises Tentative Provisions Circular （Guo Jing Mao Zhong Xiao Qi [2003] No. 143） by the former State Economic and Trade Commission， the former State Planning Commission， the Ministry of Finance and the State Statistics Bureau and the Classification of Small， Medium and Large-sized Enterprises for Statistical¹¹ Purposes Procedures （Trial Implementation¹²） （Guo Tong Zi [2003] No. 17） issued by the State Statistics Bureau. If there is any adjustment to the relevant national standards， the new standards shall be implemented.

　　5. Assignment of State-owned assets and equities to the management shall be in strict compliance¹³ with the relevant provisions of the Tentative Procedures and shall satisfy the following requirements：

　　（1） The unit holding State-owned assets and equities shall appoint an intermediary in strict accordance with State provisions to audit¹⁴ the enterprise subject to assignment； if the legal representative of the subject enterprise or the unit holding State-owned assets and equities of the subject enterprise participates in accepting the assignment of State-owned assets and equities of the enterprise， he shall be subject to an economic liability audit.

　　（2） The formulation of the assignment plan of State-owned assets and equities and the major matters related thereto， such as asset and capital verification， financial audit， asset valuation， determination of base price and appointment of intermediaries， shall be centrally organized and pursued by the unit holding State-owned equities with administration authority thereon in accordance with the relevant State provisions， and the management shall not participate.

　　（3） The management shall bid on equal terms with other proposed assignees. Assignment of State-owned assets and equities of enterprises to the management must be conducted openly in an asset and equity¹⁵ exchange institution selected by a State-owned assets supervision and administration authority and， when the information of the assignment of State-owned assets and equities is made public， the following matters shall be disclosed in detail： the assets and equities of the subject enterprise held by the management， the name list of the management that accept the assignment， the proposed ratio of assignment， the purposes of accepting the assignment of State-owned assets and equities and the related follow-up plans， any change to the main line of business of the subject enterprise， any material reorganization of the subject enterprise， etc. The conditions for accepting the assignment set out in the announcement of asset and equity assignment shall not contain any exclusive clause specific to the management and any arrangement in favour of the management.

　　（4） The unit holding State-owned assets and equities shall not offset¹⁶ employee relocation costs against the net assets （except otherwise provided for by the State） and shall not drive down the assignment price of State-owned assets and equities under any excuse.

　　（5） When accepting the assignment of State-owned assets and equities of the enterprise， the management shall provide evidence of the sources of their acquisition funds， and they shall not obtain financing from any State-owned or State-controlled enterprise including the subject enterprise， and the State-owned assets and equities or the assets of such enterprise shall not be used as guarantee， security， pledge or discount for the financing to the management.

　　6. If the following circumstances occur to the management， they shall not accept the assignment of State-owned equities of the subject enterprise：

　　（1） they are directly responsible for the deterioration¹⁷ in business performance of the enterprise as determined by audit；

　　（2） they intentionally¹⁸ transferred or concealed¹⁹ assets， or affect the net assets of the enterprise through affiliated²⁰ transactions in the course of assignment；

　　（3） they provide false information to intermediaries which results in distorted audit or valuation results， or collude with the relevant parties to drive down the asset valuation and the assignment price of State-owned assets and equities；

　　（4） they have， in violation²¹ of the relevant provisions， participated in the formulation of the plan for the assignment of State-owned assets and equities and in the major matters related thereto， such as asset and capital verification， financial audit， asset valuation， determination of base price and appointment of intermediaries； or

　　（5） they cannot provide the relevant evidence of the sources of their acquisition funds.

　　7. The working procedures and material submission²² in relation to assignment of State-owned assets and equities of enterprises to the management shall be handled in accordance with the Tentative Procedures.

　　8. If an enterprise still holds State-owned assets and equities after assignment of the State-owned assets and equities of the enterprise to the management， the management that have accepted the assignment of State-owned assets and equities of the enterprise shall not be the shareholder²³ representative of State-owned shares of the restructured enterprise. The relevant unit holding the State-owned assets and equities shall appoint a qualified²⁴ person in accordance with the relevant State provisions to be the shareholder representative of State-owned shares and to exercise shareholder‘s rights according to law.

　　9. The management shall not indirectly accept the assignment of　State-owned assets and equities of the enterprise by such means as trust or appointment.

　　10. If， after assignment of State-owned equities of an enterprise to the management， there is a change to the nature of State-owned shares held by that enterprise， the change shall be handled in accordance with the relevant State provisions.

　　11. If an enterprise which is in the course of separating main and ancillary²⁵ businesses and restructuring ancillary businesses and reassigning and relocating excessive personnel is determined by the State-owned assets supervision and administration authority and relevant departments as an enterprise subject to separation of main and ancillary businesses and restructuring of ancillary businesses and needs to assign State-owned assets and equities of the enterprise to the management， it shall handle the transfer in accordance with the provisions of the Separation of Main and Ancillary Businesses， Restructuring Ancillary Businesses and Reassignment and Relocation of Excessive Employees in State-owned Large and Medium-sized Enterprises Implementing²⁶ Procedures （Guo Jing Mao Qi Gai [2002] No. 859） and the relevant ancillary documents.

　　12. If a State-controlled high technology enterprise or a scientific research institution subject to restructuring which satisfies the provisions of the State Council General Office， Transmission of the Circular （Guo Ban Fa [2002] No. 48） and the State Council General Office， Transmission of the Circular （Guo Ban Fa [2003] No. 9） needs to assign State-owned equities of the enterprise to the management in carrying out pilot projects of equity incentives²⁷， it shall apply to the department in charge of finance at or above the provincial²⁸ level or the relevant State-owned assets supervision and administration authority for approval.

　　13. State-owned assets supervision and administration authorities and the relevant regulatory authorities at all levels shall effectively strengthen their supervision and administration in respect of assignment of State-owned assets and equities of enterprises to the management， and shall timely sum up their experience in order to improve the relevant rules， systems and the regulatory measures and to safeguard the lawful²⁹ rights and interests of capital contributors and employees.

　　14. Asset and equity exchange institutions selected by State-owned assets supervision and administration authorities at all levels shall strengthen their examination of the matters relating to acceptance of assignment by the management in connection with assignment of State-owned equities of enterprises， and conscientiously³⁰ perform the duties and obligations of asset and equity exchange institutions.

　　15. If a relevant institution and its personnel effect an assignment of State-owned assets and equities to the management in violation of these Provisions， the State-owned assets supervision and administration authority， the department in charge of finance or any department authorized³¹ by the government shall demand the assignor to terminate the assignment and， if necessary， institutes proceedings³² in a people‘s court petitioning to invalidate the assignment， and it shall pursue the liabilities of the relevant personnel in accordance with the Supervision and Administration of State-owned Assets of Enterprises Tentative Regulations （State Council Order No. 378）， the Punishment of and Disciplinary Actions Against Illegal Financial Acts Regulations （State Council Order No. 427） and the Tentative Procedures； if a criminal offence is suspected， the case shall be handed over to judicial³³ authorities to handle in accordance with law.

　　16. If State-owned assets and equities of enterprises held by a unit where government administration is not separated from enterprise management or any other unit are to be assigned to the management， such assignment shall be subject to the approval by the government department in charge of finance or the authorized State-owned assets supervision and administration authorities and handled by reference to these Provisions.