Notice of the State-owned Assets Supervision and Administration Commission of the State Council and the Ministry of Finance on Issues Concerning the Transfer of State-owned Property Rights of Enterprises

国务院国有资产监督管理委员会、财政部关于企业国有产权转让有关事项的通知

Promulgating Institution: State-owned Assets Supervision and Administration Commission of the State Council; Ministry of Finance

Document Number: Guo Zi Fa Chan Quan [2006] No.306

Promulgating Date: 12/31/2006

Effective Date: 12/31/2006

颁布机关: 国务院国有资产监督管理委员会; 财政部

文      号: 国资发产权[2006]306号

颁布时间: 12/31/2006

实施时间: 12/31/2006

State-owned assets supervision and administration commissions and departments (bureaus) of finance of all provinces, autonomous regions, municipalities directly under the Central Government, cities separately designated in the State plan, and the Xinjiang Production and Construction Corps, and all central enterprises,

Since the promulgation of the Interim Administrative Measures for the Transfer of State-owned Property Rights of Enterprises (Order No. 3 of the State-owned Assets Supervision and Administration Commission of the State Council and the Ministry of Finance, hereinafter referred to as the Measures), the transfer of State-owned property rights of enterprises has been further standardized, and the fundamental role of market-based resource allocation has been playing an increasingly important part in optimizing the layout and structure of the State-owned economy. However, a number of issues remain to be further clarified during the specific implementation process. Upon study, this Notice is hereby given as follows:

    各省、自治区、直辖市及计划单列市、新疆生产建设兵团国资委，财政厅（局），各中央企业： 

    《企业国有产权转让管理暂行办法》（国资委、财政部令第3号，以下简称《办法》）颁布以来，企业国有产权转让得到了进一步规范，市场配置资源的基础性作用在国有经济布局和结构调整中日渐加强，但在具体实施工作中还有一些事项需要进一步明确。经研究，现通知如下： 

1. Issues concerning the approval of transfer by agreement by State-owned assets regulatory bodies at or above the provincial level

As regards transfer of State-owned property rights of enterprises, the proportion of transfers carried out at equity exchange centers shall be constantly increased, while control on transfers made by agreement outside such centers shall be tightened up. Where there are special requirements on the transferees in the structural adjustment of key industries or fields of national economy, or where direct transfer by agreement is genuinely necessary for the internal asset reorganization of the invested enterprises (for the purpose of this Notice, invested enterprises shall mean enterprises in which State-owned assets supervision and administration commissions at all levels perform the duties of contributors), relevant approval authorities shall make careful examination and monitoring.

(1) Scope of permitted transfers by agreement

(a) In the structural adjustment of the State-owned economy, direct transfer of State-owned property rights by agreement shall be in compliance with State industrial policies as well as the overall planning for the arrangement and structural adjustment of the State-owned economy. The acceptance of transfer by transferees shall not be in violation of the restrictive or prohibitive provisions on national economic security, and instead shall have obvious advantages over others in terms of promoting technical progress and industrial upgrading of enterprises. Where the target enterprise belongs to a key industry or field of national economy, the State shall remain the absolute controlling shareholder after the State-owned property rights of the enterprise are partially transferred by agreement.

(b) Where State-owned property rights are to be directly transferred by agreement during the internal asset reorganization of an invested enterprise, the transferor and the transferee shall be the invested enterprise or enterprises wholly-owned or absolutely-controlled thereby.

(2) The authority to approve transfer by agreement conducted by invested enterprises shall be determined based on the administrative affiliation of the transferors, i.e. transfer by central enterprises shall be approved by the State-owned Assets Supervision and Administration Commission of the State Council (SASAC) while that by enterprises under local governments shall be approved by State-owned assets regulatory bodies at the provincial level. Relevant approval authorities shall not expand the scope of permitted transfers by agreement without authorization. Neither shall they delegate or decompose their approval authority to authorities at lower levels.

(3) The asset valuation report of a project to be transferred by agreement shall be verified and approved or record-filed by the authority approving the transfer, and the transfer price thereof shall not be lower than the asset valuation results verified and approved or record-filed.

(4) An approval authority shall expressly state the term of validity for implementing issues relating to the transfer by agreement in the approval documents, and shall establish a tracking and reporting system for the approved transfers by agreement. State-owned assets regulatory bodies at the provincial level shall report the approval process and the implementation results of transfers by agreement to the SASAC.

       一、关于省级以上国资监管机构对协议转让方式的批准 

    企业国有产权转让应不断提高进场交易比例，严格控制场外协议转让。对于国民经济关键行业、领域的结构调整中对受让方有特殊要求，或者所出资企业（本通知所称所出资企业系指各级国有资产监督管理机构履行（一）允许协议转让的范围 

    1．在国有经济结构调整中，拟直接采取协议方式转让国有产权的，应当符合国家产业政策以及国有经济布局和结构调整的总体规划。受让方的受让行为不得违反国家经济安全等方面的限制性或禁止性规定，且在促进企业技术进步、产业升级等方面具有明显优势。标的企业属于国民经济关键行业、领域的，在协议转让企业部分国有产权后，仍应保持国有绝对控股地位。 

    2．在所出资企业内部的资产重组中，拟直接采取协议方式转让国有产权的，转让方和受让方应为所出资企业或其全资、绝对控股企业。 

    （二）所出资企业协议转让事项的批准权限，按照转让方的隶属关系，中央企业由国务院国资委批准，地方企业由省级国资监管机构批准。相关批准机构不得自行扩大协议转让范围，不得下放或分解批准权限。 

    （三）协议转让项目的资产评估报告由该协议转让的批准机构核准或备案，协议转让项目的转让价格不得低于经核准或备案的资产评估结果。 

    （四）相关批准机构应当在批准文件中明确协议转让事项执行的有效时限，并建立对批准协议转让事项的跟踪、报告制度。各省级国资监管机构应当将协议转让的批准和实施结果报告国务院国资委。 

2. Issues concerning foreign investors being transferees of State-owned property rights of enterprises

Where the State-owned property rights of an enterprise are to be transferred to a foreign enterprise, a foreign economic organization or foreign individual (hereinafter collectively referred to as the Foreign Investor), the transfer shall be conducted pursuant to the following provisions:

(1) The transfer of State-owned property rights of an enterprise to Foreign Investors shall be publicly made on the equity exchange market. Under special circumstances where transfer by agreement is needed, the transfer shall comply with relevant provisions relating to the approval of transfers by agreement set out in the Measures and this Notice.

(2) When laying down the requirements for accepting the transfer, the transferor shall refer to the Catalogue for the Guidance of Foreign Investment Industries and other relevant provisions, and specify, in the property right transfer announcement, the restrictive or prohibitive provisions of the State, if any, on purchase of State-owned property rights of enterprises by Foreign Investors.

(3) Where a Foreign Investor is determined as the transferee through the equity exchange market, the case shall be reported by the transferor concerned to the relevant government departments for verification and approval, pursuant to relevant administrative provisions of the State.

The purchase of State-owned property rights of enterprises by investors from Hong Kong Special Administrative Region or Macao Special Administrative Region or Taiwan region shall be made with reference to the aforesaid provisions.

       二、关于外商受让企业国有产权 

    在企业国有产权转让中，涉及受让方为外国的企业和其他经济组织或者个人的（以下统称外商），应当按以下规定办理： 

    （一）向外商转让企业国有产权应在产权交易市场中公开进行。特殊情况下，确需采取协议方式转让的，应符合《办法》及本通知中关于批准协议转让的相关规定。 

    （二）转让方在提出受让条件时，应对照《外商投资产业指导目录》及相关规定，对国家对外商受让标的企业产权有限制性或禁止性规定的，应在产权转让公告中予以提示。 

    （三）通过产权交易市场确定外商为受让主体的，由转让方按照国家有关管理规定报政府相关职能部门审核批准。 

    香港特别行政区、澳门特别行政区和台湾地区的投资者受让企业国有产权，参照以上规定办理。 

3. Issues concerning the examination and administration of the conditions for Purchasing State-owned property rights of enterprises

Participation by an extensive number of transferee candidates is a key to the successful implementation of the system where State-owned property rights of enterprises are transferred at equity exchange centers. Transferors, relevant approval authorities and property right transfer agencies shall further strengthen the examination and administration of the purchase conditions.

(1) When formulating the transfer program of State-owned property rights of the enterprise, the transferor concerned shall specify the requirements on the transferees according to the actual situation of the target enterprise to be transferred.

(2) Where the purchase conditions are unclear or contravene the principle of fair competition, the property right transfer agency concerned shall promptly suggest the transferor to make necessary revisions, or require the transferor to make interpretations or explanations in writing on the implementation standards of the purchase conditions.

(3) After the written interpretations or explanations on the purchase conditions and their implementation standards have been examined and verified by the relevant approval authority, the property right transfer agency concerned shall publicize the same together with the property right transfer announcement. Purchase conditions not publicized shall not be taken as the basis for confirming or negating the qualifications of the parties with purchase intent.

(4) Without permission, purchase conditions publicized in the property right transfer announcement shall not be modified once published. Prior to the receipt by the property right transfer agency concerned of the application for formal purchase intent, if the purchase conditions really need to be modified, the modifications shall be announced via the original information release channel, subject to the approval of the relevant approval authority. Under such circumstances, the announcement period shall be re-calculated.

       三、关于企业国有产权受让条件的审核管理 

    广泛征集受让方是落实企业国有产权进场交易制度的关键环节，转让方、相关批准机构和产权交易机构要进一步加强受让条件的审核管理工作。 

    （一）转让方在制订企业国有产权转让方案时，应当根据转让标的企业的实际情况，明确提出对受让方的受让条件要求。 

    （二）对受让条件中表述不明确或者有违反公平竞争内容的，产权交易机构应及时向转让方提出修改建议，或要求转让方对受让条件的执行标准作出书面解释和具体说明。 

    （三）受让条件及其执行标准的书面解释和具体说明经相关批准机构审核后，由产权交易机构在产权转让公告中一并公布。未经公布的受让条件不得作为确认或否定意向受让方资格的依据。 

    （四）在产权转让公告中公布的受让条件，一经发布不得擅自变更。在产权交易机构尚未收到正式受让意向申请之前，确需变更受让条件的，应经产权转让相关批准机构批准后，在原信息发布渠道予以公告，公告期重新计算。 

4. Issues concerning the examination and confirmation of purchase qualifications

The relevant property right transfer agency shall give its examination opinions on the qualifications of the candidate transferees pursuant to the publicized purchase conditions, and give a final confirmation of the said qualifications after consulting with the transferor.

(1) The relevant property right transfer agency shall include all legal persons and natural persons that have formally expressed their intention to purchase into the scope of registration administration, and shortlist qualified candidate transferees after a qualification examination in strict accordance with the publicized purchase conditions.

(2) Where the relevant property right transfer agency and the transferor hold different opinions on whether a certain candidate transferee satisfies the publicized conditions, the property right transfer agency may consult with relevant government functional departments (institutions) in writing with respect to the issues in dispute or resolve the disputes through the coordination mechanism for disputes over property right transactions.

(3) After completion of the examination and confirmation of the qualifications of candidate transferees, the relevant property rights transfer agencies shall, in a timely manner, notify all parties concerned of the examination results in writing.

(4) When a registered candidate transferee fails to respond to all the requirements of the purchase conditions contained in the property right transfer announcement, or makes purchase requests with additional conditions, the relevant property right transfer agency shall, in a timely manner, notify the candidate transferee in writing. Where the said transferee fails to make adjustment or correction within the prescribed announcement period, it shall be disqualified from the transferee selection process.

       四、关于受让资格的审核确认 

    产权交易机构按照公布的受让条件提出对受让方资格的审核意见，并在征求转让方意见后，最终确认意向受让人资格。 

    （一）产权交易机构应当将正式表达受让意向的法人、自然人全部纳入登记管理范围，严格按照公布的受让条件进行资格审核后，提出具备受让资格的意向受让人名单。 

    （二）产权交易机构和转让方对意向受让人是否符合公告条件产生分歧时，产权交易机构可就有关分歧事项书面征求政府有关职能部门（机构）意见，也可通过产权交易争端协调机制，对分歧事项进行协调。 

    （四）当登记的意向受让人没有响应产权转让公告中受让条件的全部要求，或提出带有附加条件的受让要求时，产权交易机构应当及时以书面形式对其进行提示，在规定的公告期限内该意向受让人没有作出调整、纠正的，应取消其受让资格。 

5. Issues concerning the transfer price of State-owned property rights of enterprises

Pursuant to the Measures, the transfer price of State-owned property rights of enterprises shall be determined through public bidding on the equity exchange market, with reference being made to the asset valuation results. Property right transfer agencies shall actively explore new price competition methods based on the principle of encouraging market competition.

(1) The initial listed price of the State-owned property rights of an enterprise to be transferred shall not be lower than the asset valuation results examined and approved or record-filed. Where there is no candidate transferee upon public invitation, the transferor may determine a new listed price according to the conditions of the target enterprise and issue a new announcement. If the newly proposed listed price is lower than 90% of the asset valuation results, the price shall be approved, in writing, by the authority in charge of approving the transfer.

(2) Where there is only one (1) candidate transferee after public invitation and the method of transfer by agreement is thus adopted, the transfer price shall be determined according to the listed price.

(3) Relevant expenses to be incurred by the transfer of the State-owned property rights of the enterprise in staff resettlement, social security, etc. shall not be deducted, prior to the valuation, from the State-owned net assets to be transferred or be deducted from the transfer price.

(4) No discount or concession is allowed for the transfer price of State-owned property rights of an enterprise that is publicly formed on the equity exchange market, regardless of the payment method adopted.

       五、关于企业国有产权转让价格 

    按照《办法》的规定，企业国有产权转让价格应当以资产评估结果为参考依据，在产权交易市场中公开竞价形成，产权交易机构应按照有利于竞争的原则积极探索新的竞价交易方式。 

    （一）转让企业国有产权的首次挂牌价格不得低于经核准或备案的资产评估结果。经公开征集没有产生意向受让方的，转让方可以根据标的企业情况确定新的挂牌价格并重新公告；如拟确定新的挂牌价格低于资产评估结果的90%，应当获得相关产权转让批准机构书面同意。 

    （二）对经公开征集只产生一个意向受让方而采取协议转让的，转让价格应按本次挂牌价格确定。 

    （三）企业国有产权转让中涉及的职工安置、社会保险等有关费用，不得在评估作价之前从拟转让的国有净资产中先行扣除，也不得从转让价款中进行抵扣。 

    （四）在产权交易市场中公开形成的企业国有产权转让价格，不得以任何付款方式为条件进行打折、优惠。 

6. Issues concerning the administration by financial departments at all levels in the transfer of State-owned property rights of enterprises

Finance departments at all levels shall do a good job in supervising and inspecting transfers of State-owned property rights of relevant enterprises as well as in sorting out the financial policies of target enterprises, and shall carry out relevant examination and verification or examination and approval pursuant to the following provisions:

(1) When examining and verifying the transfer of State-owned property rights of relevant enterprises pursuant to Article 26 of the Measures, the said finance departments shall focus on examining and verifying whether the matters specified in Article 28 and Article 29 of the Measures comply with relevant State policies and provisions on finance management of enterprises.

(2) Pursuant to Article 37 of the Measures, the transfer of State-owned property rights of an enterprise that has not yet been detached from the government or the transfer of State-owned property rights of an enterprise held by any other entity shall be subject to the approval of the finance department at the same level after being examined and verified by the said enterprise and entity.

       六、关于各级财政部门在企业国有产权转让中的管理工作 

    各级财政部门应当认真做好有关企业国有产权转让的监督检查以及标的企业财政政策清理等工作，并按以下规定进行审核或者审批： 

    （一）按照《办法》第26条审核企业国有产权转让时，重点审核涉及《办法》第28条、29条规定的事项是否符合国家有关企业财务管理的政策规定。 

    （二）按照《办法》第37条的规定，政企尚未分开单位以及其他单位所持有的企业国有产权转让，由政企尚未分开单位以及其他单位审核后，报同级财政部门批准。 

State-owned Assets Supervision and Administration Commission of the State Council

Ministry of Finance 

December 31, 2006

国务院国有资产监督管理委员会 

财政部 

二〇〇六年十二月三十一日