China: A股科创板研究系列:国资问题小结(二)

Last Updated: 8 August 2019
Article by Bi Xiuli and He Wang
Most Read Contributor in China, September 2019

国资问题是A股上市中经常遇到的问题,由于我国特殊的国情及历史背景,国资的规定相对而言较为繁杂。在系统梳理、学习科创板相关知识时,笔者将现行有效的国资方面的规定予以了简要的、系统性的总结,并结合目前科创板企业上市的案例予以简要分析,以期对于意图登录国内资本市场的存在国资问题的企业有所启示及借鉴。本专题系列研究包括两部分,即国资方面的主要规定及上市案例。本专题分为3篇文章予以小结,由于国资方面的规定较多,其中前2篇为国资问题的主要规定,第3篇为国资方面的案例,本文为第二篇。

第一部分 国资方面的主要规定

笔者将国资方面的法律法规予以小结,主要可以从九个方面予以掌握,分别为:国资基础知识(包括国资的认定)、产权登记、国资评估、国有产权交易、国有企业改制、无偿划转、上市公司国有股、员工持股。

六、国有企业改制

国有企业改制是一个复杂的系统性工程。国有企业改制,包括转让国有控股、参股企业国有股权或者通过增资扩股来提高非国有股的比例等,国有企业改制必须制订改制方案。方案可由改制企业国有产权持有单位制订,也可由其委托中介机构或者改制企业(向本企业经营管理者转让国有产权的企业和国有参股企业除外)制订。国有企业改制方案需依法按照有关规定履行决定或批准程序,未经决定或批准不得实施。国有资产监督管理机构所出资企业改制为国有股不控股或不参股的企业(或简称"非国有的企业"),改制方案需报同级人民政府批准。

国有企业改制主要体现为以下几个方面:

1.清产核资。国有企业改制,必须对企业各类资产、负债进行全面认真的清查。2.财务审计。国有企业改制,必须由直接持有该国有产权的单位决定聘请具备资格的会计师事务所进行财务审计。凡改制为非国有的企业,必须按照国家有关规定对企业法定代表人进行离任审计。3.资产评估。国有企业改制,必须依法聘请具备资格的资产评估事务所进行资产和土地使用权评估。4.交易管理。非上市企业国有产权转让要进入产权交易市场,不受地区、行业、出资和隶属关系的限制。5.定价管理。向非国有投资者转让国有产权的底价,或者以存量国有资产吸收非国有投资者投资时国有产权的折股价格,由依照有关规定批准国有企业改制和转让国有产权的单位决定。底价的确定主要依据资产评估的结果。6.转让价款管理。转让国有产权的价款原则上应当一次结清。分期付款时,首期付款不得低于总价款的30%,其余价款应当由受让方提供合法担保,并在首期付款之日起一年内支付完毕。7.依法保护债权人利益。国有企业改制要征得债权金融机构同意。8.维护职工合法权益。国有企业改制方案和国有控股企业改制为非国有的企业的方案,必须提交企业职工代表大会或职工大会审议,充分听取职工意见。其中,职工安置方案需经企业职工代表大会或职工大会审议通过后方可实施改制。改制为非国有的企业,要按照有关政策处理好改制企业与职工的劳动关系。改制企业拖欠职工的工资、医疗费和挪用的职工住房公积金以及企业欠缴的社会保险费等要按有关规定予以解决。改制后的企业要按照有关规定按时足额交纳社会保险费,及时为职工接续养老、失业、医疗、工伤、生育等各项社会保险关系。9.管理层收购。向本企业经营管理者转让国有产权必须严格执行国家的有关规定,以及法定的各项要求,并需按照有关规定履行审批程序。

七、无偿划转

(一)无偿划转的基本要求

企业国有产权无偿划转,是指企业国有产权在政府机构、事业单位、国有独资企业、国有独资公司之间的无偿转移。企业国有产权无偿划转应当遵循以下原则:(1)符合国家有关法律法规和产业政策的规定;(2)符合国有经济布局和结构调整的需要;(3)有利于优化产业结构和提高企业核心竞争力;(4)划转双方协商一致。被划转企业国有产权的权属应当清晰。被设置为担保物权的企业国有产权可依法无偿划转。中央企业及其子企业无偿划入企业国有产权,应当符合国资委有关减少企业管理层次的要求,划转后企业管理层次原则上不超过三级。

(二)无偿划转的程序

无偿划转的程序主要包括:(1)国有产权无偿划转应当做好可行性研究。(2)按照内部决策程序进行审议,并形成书面决议。(3)划出方应当就无偿划转事项通知本企业(单位)债权人,并制订相应的债务处置方案。(4)划转双方应当组织被划转企业按照有关规定开展审计或清产核资,以中介机构出具的审计报告或经划出方国资监管机构批准的清产核资结果作为企业国有产权无偿划转的依据。(5)划转双方协商一致后,应当签订企业国有产权无偿划转协议。无偿划转事项按照本办法规定程序批准后,划转协议生效。划转协议生效以前,划转双方不得履行或者部分履行。

(三)无偿划转的审批机关

企业国有产权在同一国资监管机构所出资企业之间无偿划转的,由所出资企业共同报国资监管机构批准。企业国有产权在不同国资监管机构所出资企业之间无偿划转的,依据划转双方的产权归属关系,由所出资企业分别报同级国资监管机构批准。企业国有产权在所出资企业内部无偿划转的,由所出资企业批准并抄报同级国资监管机构。

(四)不得实施无偿划转的情形

有下列情况之一的,不得实施无偿划转:(1)被划转企业主业不符合划入方主业及发展规划的;(2)中介机构对被划转企业划转基准日的财务报告出具否定意见、无法表示意见或保留意见的审计报告的;(3)无偿划转涉及的职工分流安置事项未经被划转企业的职工代表大会审议通过的;(4)被划转企业或有负债未有妥善解决方案的;(5)划出方债务未有妥善处置方案的。

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