Notice of the Ministry of Finance on Regulating Issues Concerning Shareholding by Individuals on Behalf of State-owned Enterprises Investing Overseas

财政部关于规范国有企业境外投资中个人代持股份有关问题的通知

Promulgating Institution: Ministry of Finance

Document Number: Cai Qi [2010] No. 24

Promulgating Date: 03/26/2010

Effective Date: 03/26/2010

颁布机关: 财政部

文      号: 财企[2010]24号

颁布时间: 03/26/2010

实施时间: 03/26/2010

To the relevant departments of the CPC Central Committee, the relevant ministries and commissions under the State Council, the relevant institutions directly under the State Council, the finance departments (bureaus) of all provinces, autonomous regions, municipalities directly under the Central Government, specially designated cities in the State plan, the Finance Bureau of Xinjiang Production and Construction Corps and all centrally-administered enterprises:

During the preliminary stage of the reform and opening up, to facilitate the smooth development of investment overseas, with due approval, some state-owned enterprises were allowed to invest overseas in the form of private investment by their senior executives holding state-owned shares on their behalf. In recent years, state-owned enterprises have established initial management relations with property ownership as the link, and the property ownership relationships of overseas investment have become clear. However, according to the audit survey conducted by the National Audit Office, state-owned enterprises have not straightened out the relevant management relations regarding shares held by individuals on their behalf in the process of overseas investment, hence risks of state-owned assets loss and disputes over property ownership still exist, which could not meet the demands of state-owned asset management systems reform and therefore needs further regulating. We hereby notify the relevant issues as follows:

   党中央有关部门， 国务院有关部委、有关直属机构，各省、自治区、直辖市、计划单列市财政厅（局），新疆生产建设兵团财务局，各中央管理企业：

   我国在改革开放初期，为便于境外投资的顺利开展，经批准，允许一些国有企业采取对外以民间投资的形式，由高管人员代持国有股份。近年来， 国有企业以产权为纽带的管理关系已基本建立，境外投资的产权关系基本明细。但据审计署的审计调查反映，国有企业在境外投资中，个人代持股份的有关管理关系没有理顺，存在造成国有资产流失或产权争议的风险，不能适应国有资产管理体制改革的需要，应当进一步予以规范。现将有关事项通知如下：

1. For state-owned enterprises investing overseas, existing shares held by individuals on their behalf are subject to regulation according to the relevant provisions of the Interim Measures for Financial Management of Overseas Investment (Cai Wai Zi [1996] No. 215) which are printed and distributed by the Ministry of Finance and the Notice of the General Office of the State Council on Forwarding the Opinions of the Ministry of Finance, the National State-owned Assets Administration Bureau on Issues Concerning Property Ownership Registration Formalities for Agencies Stationed in Hong Kong and Macau in the Name of Individuals (Guo Ban Fa [1989] No. 54).

The original versions of the Statement of Shares, Authorization Agreement and Equity Transfer Agreement notarized by the notary office in places where the domestic principals are located are to be retained by the domestic authorisors for further check and the duplicated versions thereof are to be submitted to the agencies (departments) which perform the duties of a capital contributor for record-filing.

      一、国有企业境外投资中，现有的个人代持股份应当按照财政部印发的《境外投资财务管理暂行办法》（财外字[1996]215号）和《国务院办公厅转发财政部、国家国有资产管理局关于驻港澳机构以个人名义办理产权注册登记手续等问题的意见的通知》（国办发[1989]54号）的有关规定进行规范。

   经境内委托人所在地公证机关公证的“股份声明书”、“委托协议书”和“股权转让书”正本应当由境内委托人保存备查，文件副本报履行出资人职责的机构（部门）备案。

2. In the case of any change to an authorisor or authorisee, the Statement of Shares, Authorization Agreement and Equity Transfer Agreement, concerning shareholding by an individual on behalf of a state-owned or state-controlled enterprise investing overseas, are to be adjusted within 30 days from the date of change of the authorisor or authorisee according to new property ownership management relationship.

      二、国有及国有控股企业境外投资中个人代持股份涉及的“股份声明书”、“委托协议书”和“股权转让书”，委托人及受委托人发生变化的，应当按照新的产权管理关系，在委托人或者受委托人发生变化的30天内予以调整。

3. Shareholding by individuals on behalf of state-owned enterprises investing overseas is in principle not to be approved. The agencies (departments) which perform the duties of a capital contributor as well as the state-owned and state-controlled enterprises are to conduct an all-round scrutiny and registration of existing shares held by individuals on behalf of their affiliated enterprises investing overseas. Incompliance is subject to an order of rectification within a specified time limit. The results of scrutiny and rectification are to be submitted in a special pouch to the agencies (departments) which perform the duties of a state-owned assets contributor before the end of September 2010, and copied to the financial departments.

      三、国有企业境外投资，原则上不再审批新的个人代持股行为。履行国有资产出资人职责的机构（部门）和国有及国有控股企业，对其所属企业境外投资中现有的个人代持股份情况，进行一次全面的清查登记，凡不符合规定要求的，限期整改。企业清查及整改结果应当在2010年9月底之前，专项报送履行国有资产出资人职责的机构（部门），同时抄报财政部门。

4. If it is provided otherwise by financial enterprises, the provisions thereof are to apply.

      四、金融企业另有规定的，从其规定。

Ministry of Finance

March 26, 2010

中国人民共和国财政部

2010年3月26日