Notice of the Ministry of Finance on Issues Concerning the Freeze or Auction of Listed Companies’ State-Owned Shares by People’s Courts

财政部关于上市公司国有股被人民法院冻结、拍卖有关问题的通知

Promulgating Institution: Ministry of Finance

Document Number: Cai Qi [2001] No. 656

Promulgating Date:11/02/2001

Effective Date: 11/02/2001

颁布机关: 财政部

文      号: 财企[2001]656号

颁布时间: 11/02/2001

实施时间: 11/02/2001

To the relevant ministries and commissions of the State Council, finance departments (bureaus) of all provinces, autonomous regions, municipalities directly under the Central Government and cities specifically designated in the State plan, the State-owned assets management offices of Shanghai and Shenzhen, enterprises administered by Central Government, the General Logistics Department of the Chinese People's Liberation Army, the Finance Bureau of the Xinjiang Production and Construction Corps, Shanghai Stock Exchange, and Shenzhen Stock Exchange:

In order to refine the administration of the State-owned equity, increase the risk awareness of representative bodies authorized by State-owned shareholders, substantially intensify the supervision of the State-owned equity, and safeguard the legal rights and interests of creditors and other interested parties, issues concerning the freeze and auction of listed companies' State-owned shares by people' courts are hereby notified as follows:

1. An authorized representative body of State-owned shareholders shall exercise shareholder's rights pursuant to law, perform obligations provided by the State, establish and improve internal fund management system, clarify the access rights to and procedures for fund procurement, control the size and structure of debts, and guard against financial risks.

In case that the authorized representative body of State-owned shareholders genuinely needs to pledge State-owned shares for financing, it shall establish stringent examination and approval procedures and a accountability system, and conduct a thorough feasibility study on each pledge-related loan project; furthermore, the amount of State-owned shares to be pledged shall not exceed fifty percent of the total shares held thereby of a listed company.

In case that the authorized representative body of State-owned shareholders genuinely needs to provide an external guaranty, it shall act in accordance with the Guaranty Law of the People's Republic of China, fully considering the credibility and solvency of the guaranteed entity concerned, and deliberate over decisions according to the procedures and authority as prescribed by its internal management system.

2. In case that the State-owned shares held by an authorized representative body of State-owned shareholders are frozen by a people's court, said representative body shall, within five working days of the receipt of the freeze notice served by a people' court, submit a report on the freezing of the State-owned shares to the Ministry of Finance for record-filing, and inform the listed company of such. Where the authorized representative body of State-owned shareholders is locally administered, a copy of such report shall be submitted to the provincial financial department.

In case of any opposition to the ruling on such freeze, the authorized representative body of State-owned shareholders shall promptly file reconsideration review application with the people's court that has made such ruling, and after the people's court has made a ruling on defreeze, said representative body shall, within five working days of the receipt of relevant legal document, submit a report on defreeze to the Ministry of Finance for record-filing, and inform the listed company of such. Where the authorized representative body of State-owned shares is locally administered, a copy of such report shall be submitted to the provincial financial department.

3. After the State-owned shares held by an authorized representative body of State-owned shareholders have been frozen, said representative body shall, within the prescribed time limit, offer other assets that are convenient to execute, including, among other things, bank deposits, cash, finished products and semi-finished products, raw materials, and traffic transportation. In case that other assets are insufficient to satisfy the debts, the State-owned equity concerned shall be auctioned by a people's court.

4. An auctioneer entrusted with the auction of State-owned shares shall, within ten days prior to the date of the auction, make an announcement on the auction of State-owned shares of a listed company on a newspaper designated for the information disclosure of listed companies by the securities regulatory authority under the State Council.

Such auction announcement shall include, among other things, the auctioneer, time and place of the auction, the name, stock code, line of business, core business, the business performance over the past three years, shareholding information about the top ten shareholders, of the listed company, original entity that holds the State-owned shares, the quantity of the State-owned share to be auctioned as well as its proportion to the general capital, the required qualification for a bidder, and formalities necessary for participating in the bidding.

5. The reserve price shall be set for the auction of State-owned shares. The party concerned shall entrust an evaluation agency qualified for securities businesses with the evaluation of the State-owned shares to be auctioned, and set a reserve price based on the evaluation outcome.

After the evaluation outcome has been determined, the evaluation agency shall report such outcome to the Ministry of Finance for record-filing prior to the equity auction. -Where the authorized representative body of State-owned shares is locally administered, such outcome shall also be reported to the provincial financial department.

6. The parties concerned or insiders shall keep confidential the reserve price for the auction of State-owned shares. Where the highest price offered by the bidders in the first auction sale fails to reach the reserve price, the auction shall be continued, and the reserve price of each auction sale shall not be lower than ninety percent of the last one. If the highest price still stayed below the reservation price in the third auction sale, such highest price will not be effectuated, and the auction agency shall terminate the auction of State-owned shares.

7. A bidder shall satisfy the conditions for the purchase of State-owned shares as prescribed by laws and administrative regulations.

8. After an auction sale has been concluded, the authorized representative body of State-owned shareholders shall, within five working days after receiving the notice of a people's court concerning the auction outcome of the State-owned shares held thereby, report such auction outcome to the Ministry of Finance for record-filing, and inform the listed company of such. Where the authorized representative body of State-owned shares is locally administered, such outcome shall also be reported to the provincial financial department.

9. After the auction of State-owned shares, a buyer shall, by virtue of the attestation issued by the auction agency on the conclusion of the sale, coupled with its business license, articles of association and other legal documents capable of proving its identity, and in accordance with the Provisions of the Supreme People's Court on Issues Concerning Freeze or Auction of State-Owned Shares and Social Corporate Shares of Listed Companies, file an application with the original competent financial department in charge of the authorized representative body of State-owned shareholders for determining the nature of the equity, and go through procedures for the equity transfer at a securities depository and clearing institution thereafter.

10. The authorized representative body of State-owned shares shall effectively safeguard the State-owned equity, and if any party concerned or insider is found to have divulged the reserve price, or the party concerned is found to have colluded maliciously with a bidder or a creditor, said representative body shall appeal to a people's court for terminating the auction and holding responsible persons liable according to the law.

If the State-owned equity suffers any loss due to the negligence of the authorized representative body of State-owned shareholders, the competent financial department shall circulate a notice of criticism, and impose corresponding liabilities there on according to the law.

11. This Notice shall take effect from the date of its distribution.

    国务院有关部委,各省、自治区、直辖市、计划单列市财政厅(局),上海市、深训市国有资产管理办公室,中央管理企业,中国人民解放军总后勤部,新疆生产建设兵团财务局,上海证券交易所,深训证券交易所:

    为进一步完善国有股权管理工作,提高国有股东授权代表单位的风险防范意识,切实加强国有股权的监管,维护债权人和其他当事人的合法权益,现就上市公司国有股被人民法院冻结、拍卖的有关问题通知如下：

    一、国有股东授权代表单位应当依法行使股东权利,履行国家规定的职责,建立健全内部资金管理制度,明确资金调度的权限和程序,控制负债规模并改善债务结构,注意防范财务风险。

    国有股东授权代表单位确需通过国有股质押融资时,应当建立严格的审核程序和责任追究制度,并对质押贷款项目进行周密的可行性论证,用于质押的国有股数量不得超过其所持该上市公司国有股总额的50%。

    国有股东授权代表单位确需对外提供担保时,应当遵守《中华人民共和国担保法》的规定,充分考虑被担保单位的资信和偿债能力,并按内部管理制度规定的程序、权限审议决定。

    二、国有股东授权代表单位所持国有股被人民法院司法冻结的,应当在接到人民法院冻结其所持国有股通知之日起5个工作日内,将该国有股被冻结的情况报财政部备案,并通知上市公司。国有股东授权代表单位属地方管理的,同时抄报省级财政机关。

    国有股东授权代表单位对冻结裁定持有异议的,应当及时向作出冻结裁定的人民法院申请复议,人民法院依法作出解除冻结裁定后,国有股东授权代表单位应当在收到有关法律文书之日起5个工作日内,将该国有股解冻情况报财政部备案,并通知上市公司。国有股东授权代表单位属地方管理的,同时抄报省级财政机关。

    三、国有股东授权代表单位所持国有股被冻结后,应当在规定的期限内挺供方便执行的其他财产,其他财产包括银行存款、现金、成品和半成品、原材料和交通工具等,其他财产不足以}清偿债务的”由人民法院执行股权拍卖。

    四、拍卖人受托拍卖国有股,应当于拍卖旧前10天在国务院证券监督管理部门指定披露上市公司信息的报刊上刊登上市公司国有股拍卖公告。

    拍卖公告包括但不限于以下内容.拍卖人、拍卖时间、地点、上市公司名称、代码、所属行业、主营业务、近3年业绩、前10名股东持股情况、原持股单位、被拍卖的国有股数量、占总股本的比例,竞买人应具备的资格、参与竞买应具备的手续。

    五、国有股拍卖必须确定保留价。当事人应当委托具有证券从业资格的评估机构对拟拍卖的国有股进行评估,并按评估结果确定保留价。

    评估结果确定后,评估机构应当在股权拍卖前将评估结果报财政部备案。-国有股东授权代表单位属地方管理的,同时抄报省级财政机关。

    六、对国有股拍卖的保留价,有关当事人或知情人应当严格保密。第一次拍卖竞买人的最高应价未达到保留价时,应当继续拍卖,每次拍卖的保留价应当不低于前次保留价的90%。第三次拍卖最高应价仍未达到保留价时,该应价不发生效力,拍卖机构应当中止国有股的拍卖。

    七、竞买人应当具备法律、行政法规规定的受让国有股的条件。

    八、拍卖成交后,国有股东授权代表单位应当在接到人民法院关于其所持国有股拍卖结果通知之日起5个工作日内,将该国有股被拍卖情况报财政部备案,并通知上市公司。国有股东授权代表单位属地方管理的,同时抄报省级财政机关。

    九、国有股拍卖后,买受人持拍卖机构出具的成交证明以及买受人的工商营业执照、公司章程等证明买受人身份性质的法律文件,按照《最高人民法院关于冻结、拍卖上市公司国有股和社会法人股若干问题的规定》,向原国有股东授权代表单位主管财政机关握出股权性质界定申请,并经界定后向证券登记结算公司办理股权过户手续。

    十、国有股东授权代表单位应当切实维护国有股权益,若发现有关当事人或知情人泄露拍卖保留价,或有关当事人与竞买人、债权人恋意串通等违法行为,应当及时请求人民法院中止拍卖,并依法追究有关责人的责任。

    若因国有股东授权代表单位过失,使国有股权益遭受损失的,主管财政机关给予通报批评,并依法追究相关责任。

    十一、本通知自印发之日起施行。