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企业国有资产监督管理暂行条例 Supervision and Administration of State-owned Assets of Enterprises Tentative Regulations

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国务院令第378号

(Promulgated by the State Council on 27 May 2003 and effective as of date of promulgation.)

颁布日期:20030527  实施日期:20030527  颁布单位:国务院

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in order to establish a system for the supervision and administration of State-owned assets that is in accord with the requirements of a socialist market economy, to further improve State-owned enterprises, to promote the strategic adjustment of the distribution and structure of the State-owned economy, to develop and expand the State-owned economy, and to realize the maintenance of and increase in the value of State-owned assets.

  Article 2 : These Regulations shall apply to the supervision and administration of State-owned assets of State-owned enterprises, State-controlled enterprises, and enterprises in which the State has an equity participation.

  These Regulations shall not apply to the supervision and administration of State-owned assets of financial institutions.

  Article 3 For the purposes of these Regulations, the term “State-owned assets of enterprises” shall refer to all forms of investment by the State in enterprises, the rights and interests created by such investment, and other rights and interests that are determined as being owned by the State according to law.

  Article 4 State-owned assets of enterprises are owned by the State. The State shall implement a system for administration of State-owned assets wherein the State Council and the local people's governments respectively perform the duties of investors and enjoy the rights and interests of owners on behalf of the State, wherein the rights, obligations and responsibilities are unified and the administration of assets, personnel and matters are combined.

  Article 5 The State Council shall, on behalf of the State, perform the duties of investors in large State-owned or State-controlled enterprises, or in which the State has an equity participation and that are vital to the national economy or related to national security, and in enterprises that are State-owned, State-controlled or in which the State has an equity participation that are in sectors such as major infrastructure and important natural resources, etc. The enterprises in which the State Council performs the duties of investors shall be determined and announced by the State Council.

  The people's governments of provinces, autonomous regions and municipalities directly under the central government, and the people's governments at the level of municipalities divided into districts and autonomous prefectures shall respectively perform the duties of investors on behalf of the State in State-owned enterprises, State-controlled enterprises, or enterprises in which the State has an equity participation other than those in which the State Council performs the duties of investors. The people's governments of provinces, autonomous regions and municipalities directly under the central government shall determine and announce the State-owned enterprises, State-controlled enterprises and enterprises in which the State has an equity participation in which they perform the duties of investors and shall report the same to the State-owned assets supervision and administration authority of the State Council for record filing. The people's governments at the level of municipalities divided into districts and autonomous prefectures shall determine and announce the State-owned enterprises, State-controlled enterprises and enterprises in which the State has an equity participation in which they perform the duties of investors and shall report the same to the State-owned assets supervision and administration authority of the people's governments of the provinces, autonomous regions and municipalities directly under the central government for record filing.

  The enterprises in which the State Council, the people's governments of provinces, autonomous regions or municipalities directly under the central government and the people's governments at the level of municipalities divided into districts and autonomous prefectures perform the duties of investors shall hereinafter be referred to as “Funded Enterprises”。

  Article 6 The State Council, the people's governments of provinces, autonomous regions and municipalities directly under the central government and the people's governments at the level of municipalities divided into districts and autonomous prefectures shall respectively set up State-owned assets supervision and administration authorities. State-owned assets supervision and administration authorities shall, in accordance with their authorized powers, perform the duties of investors in accordance with the law and supervise and administer the State-owned assets of enterprises in accordance with the law.

  Municipalities divided into districts and autonomous prefectures that have relatively few State-owned assets in enterprises may, subject to the approval of the people's government of the province, autonomous region or municipality directly under the central government, be exempted from the requirement of setting up an independent State-owned assets supervision and administration authority.

  Article 7 All levels of people's governments shall rigorously implement the laws and regulations on the administration of State-owned assets, separate the public administration function of government from that of investors of State-owned assets, maintain the separation of government and enterprise and implement the separation of ownership and right of operation.

  State-owned assets supervision and administration authorities shall not carry out the public administration function of government. Other government authorities and departments shall not perform the duties of investors of State-owned assets of enterprises.

  Article 8 State-owned assets supervision and administration authorities shall establish sound systems of internal supervision in accordance with the provisions of these Regulations and other relevant laws and administrative regulations, and shall rigorously implement laws and administrative regulations.

  Article 9 In the case of war, serious natural disaster or other major urgent circumstances, the State may centrally allocate or dispose of the State-owned assets of enterprises in accordance with the law.

  Article 10 Funded Enterprises and enterprises invested in and established by them shall enjoy the right of autonomous operation in accordance with the relevant laws and administrative regulations.

  State-owned assets supervision and administration authorities shall support autonomous operation of enterprises in accordance with the law and may not interfere in the production and operation activities of enterprises except when carrying out their duties as investor.

  Article 11 Funded Enterprises shall work hard to improve their economic efficiency and shall be responsible for maintaining and increasing the value of the State-owned assets of enterprises that they operate with and administer.

  Funded Enterprises shall accept supervision and administration of State-owned assets supervision and administration authorities in accordance with the law, and may not harm the lawful rights and interests of the owner of State-owned assets of enterprises or other investors.

  PART TWO STATE-OWNED ASSETS SUPERVISION AND ADMINISTRATION AUTHORITIES

  Article 12 The State-owned assets supervision and administration authority of the State Council is a directly subordinate authority specially established to perform the duties of investors on behalf of the State Council and is responsible for the supervision and administration of State-owned assets of enterprises.

  The State-owned assets supervision and administration authorities of people's governments of provinces, autonomous regions and municipalities directly under the central government and those of people's government at the level of municipalities divided into districts and autonomous level are directly subordinate authorities specially established to perform the duties of investors on behalf of the people's government at their level and are responsible for the supervision and administration of State-owned assets of enterprises.

  The State-owned assets supervision and administration authority of people's governments at higher levels shall guide and supervise work on supervision and administration of State-owned assets of people's governments at lower levels in accordance with the law.

  Article 13 The main duties of State-owned assets supervision and administration authorities shall be:

  1. to perform the duties of investors and to safeguard owners' rights in accordance with laws and regulations such as the PRC, Company Law;

  2. to guide and promote reform and reorganization of State-owned and State-controlled enterprises;

  3. to appoint boards of supervisors to Funded Enterprises in accordance with regulations;

  4. to appoint, dismiss and assess the responsible persons of Funded Enterprises in accordance with statutory procedures, and to reward or penalize them on the basis of the results of the assessments;

  5. to supervise the maintenance of and increase in the value of State-owned assets of enterprises through such methods as statistics and audits; and

  6. to perform other duties of investors and to undertake other duties delegated to them by the government at the same level.

  The State-owned assets supervision and administration authority of the State Council may, in addition to the duties specified in the preceding paragraph, formulate rules and regulations and systems for the supervision and administration of the State-owned assets of enterprises.

  Article 14 The main obligations of State-owned assets supervision and administration authorities shall be:

  1. to promote the rational circulation and optimal distribution of State-owned assets and to promote the adjustment of the distribution and structure of the State-owned economy;

  2. to maintain and improve the dominance and competitiveness of the State-owned economy in sectors vital to the national economy and related to national security, and to improve the overall quality of the State-owned economy;

  3. to explore effective systems and methods of operating the State-owned assets of enterprises, to strengthen supervision and administration work of the State-owned assets of enterprises, to promote the maintenance of, and increase in, the value of the State-owned assets of enterprises, and to prevent the loss of the State-owned assets of enterprises;

  4. to guide and promote the establishment of modern enterprise systems, improvement in the legal person governance structure and promotion of modernization of management in State-owned and State-controlled enterprises;

  5. to respect and safeguard the right of autonomous operation of State-owned and State-controlled enterprises, to safeguard the lawful rights and interests of enterprises, to promote operation and management of enterprises in accordance with the law, and to strengthen the competitiveness of enterprises; and

  6. to guide and coordinate the resolution of difficulties and problems encountered in the reform and development of State-owned and State-controlled enterprises.

  Article 15 State-owned assets supervision and administration authorities shall report to the government at the same level on their work on supervision and administration of the State-owned assets of enterprises, the maintenance of and increase in the value of State-owned assets and other major matters.

  PART THREE ADMINISTRATION OF THE RESPONSIBLE PERSONS OF ENTERPRISES

  Article 16 State-owned assets supervision and administration authorities shall establish sound selection mechanisms and incentive and restraint mechanisms for responsible persons of enterprises that fulfil the requirements of modern enterprise systems.

  Article 17 State-owned assets supervision and administration authorities shall appoint and dismiss or propose the appointment and dismissal of the responsible persons of enterprises in accordance with relevant regulations:

  1. appoint and dismiss the general manager, deputy general manager, chief accountant and other responsible persons of wholly State-owned enterprises;

  2. appoint and dismiss the chairman of the board of directors, the vice chairman of the board of directors and the directors of wholly State-owned companies, and propose the appointment and dismissal of the general manager, deputy general manager and chief accountant, etc. of such companies;

  3. nominate candidates for the positions of director and supervisor of State-controlled companies, recommend candidates for the positions of chairman of the board of directors, vice chairman of the board of directors and chairman of the board of supervisors of State-controlled companies, and propose candidates for the positions of general manager, deputy general manager and chief accountant of such companies in accordance with the articles of association of the companies; and

  4. nominate candidates for the positions of directors and supervisors of companies in which the State has an equity participation in accordance with the articles of association of the companies.

  Where the State Council, the people's government of provinces, autonomous regions or municipalities directly under the central government, or the people's government at the level of municipalities divided into districts or autonomous prefectures has other provisions governing the appointment and dismissal of responsible persons of Funded Enterprises, the relevant provisions shall apply.

  Article 18 State-owned assets supervision and administration authorities shall establish systems for assessment of the management performance of responsible persons of enterprises, sign a performance contract with the responsible persons of enterprises that they appoint, and conduct annual and office term assessment of the responsible persons in accordance with the performance contract.

  Article 19 State-owned assets supervision and administration authorities shall, in accordance with relevant regulations, determine the remuneration of the responsible persons of wholly State-owned enterprises and companies among the Funded Enterprises, and shall decide on the rewards and penalties for the responsible persons that they appointed to the Funded Enterprises based on the results of the assessments.

  PART FOUR ADMINISTRATION OF MAJOR MATTERS OF ENTERPRISES

  Article 20 State-owned assets supervision and administration authorities shall be responsible for guiding State-owned and State-controlled enterprises in the establishment of modern enterprise systems. They shall examine and approve plans for reorganization and reform of the share system of the wholly State-owned enterprises and companies among their Funded Enterprises and the articles of association of the wholly State-owned companies among their Funded Enterprises.

  Article 21 State-owned assets supervision and administration authorities shall, in accordance with the statutory procedures, decide on major matters regarding wholly State-owned enterprises and companies among their Funded Enterprises such as division, merger, bankruptcy, dissolution, increase or decrease in capital and issue of corporate bonds. After a State-owned assets supervision and administration authority has examined and approved important division, merger, bankruptcy or dissolution of wholly State-owned enterprises and companies, it shall report the same to the people's government at the same level for approval.

  When, in accordance with the statutory procedures, State-owned assets supervision and administration authorities examine, verify and decide on major matters of wholly State-owned enterprises and companies among their Funded Enterprises in the sector of national defence science and technology industry, they shall perform in accordance with the relevant State laws and regulations.

  Article 22 State-owned assets supervision and administration authorities shall, in accordance with the provisions of the Company Law, appoint shareholders' representatives and directors to attend the shareholders' meetings and board meetings of State-controlled companies and companies in which the State has an equity participation.

  When the shareholders' meetings or board meetings of State-controlled companies and companies in which the State has an equity participation decide on major matters such as division, merger, bankruptcy, dissolution, increase or decrease in capital, issue of corporate bonds, appointment or dismissal of responsible persons of enterprises, etc., the shareholders' representative and director appointed by the State-owned assets supervision and administration authority shall express opinions and exercise his voting rights as directed by the State-owned assets supervision and administration authority.

  Shareholders' representatives and directors appointed by State-owned assets supervision and administration authorities shall report the details of their performance of duties to the State-owned assets supervision and administration authority in a timely manner.

  Article 23 State-owned assets supervision and administration authorities shall decide on the assignment of State-owned equity in their Funded Enterprises. Where the assignment of all the State-owned equity or the assignment of part of the State-owned equity would result in the State no longer having the controlling interest in the enterprise, it shall be reported to the people's government at the same level for approval.

  Article 24 In respect of major matters of major subsidiaries invested in and established by Funded Enterprises that must be reported by Funded Enterprises to the State-owned assets supervision and administration authority for approval, the procedures for administration thereof shall be formulated by the State-owned assets supervision and administration authority of the State Council separately and reported to the State Council for approval.

  Article 25 State-owned assets supervision and administration authorities shall organize and coordinate work in regards to merger and acquisition, and bankruptcy of the wholly State-owned enterprises and companies among their Funded Enterprises in accordance with relevant State regulations, and shall coordinate with the relevant departments on work such as arrangements for laid-off staff and workers of the enterprises.

  Article 26 State-owned assets supervision and administration authorities shall, in accordance with relevant State regulations, draw up guiding opinions on the reform of the income distribution systems of their Funded Enterprises and regulate the overall level of wage distribution in their Funded Enterprises.

  Article 27 Subject to the approval of the State Council, wholly State-owned enterprises and companies among Funded Enterprises may enjoy the rights stipulated in Article 12 of the Company Law in the capacity of investment company or holding company specified by the State Council and the rights stipulated in Article 20 of the Company Law in the capacity of organizations authorized by the State to invest.

  Article 28 State-owned assets supervision and administration authorities may authorize the wholly State-owned enterprises and companies among their Funded Enterprises that are qualified to operate State-owned assets.

  Wholly State-owned enterprises and companies so authorized shall operate, administer and supervise, in accordance with the law, State-owned assets created by State investment in the enterprises that they wholly own, have a controlling interest, or have an equity participation.

  Article 29 Authorized wholly State-owned enterprises and companies shall establish and improve standardized modern enterprise systems and shall be responsible for maintaining and increasing the value of State-owned assets of enterprises.

  PART FIVE

  ADMINISTRATION OF STATE-OWNED ASSETS OF ENTERPRISES

  Article 30 State-owned assets supervision and administration authorities shall be responsible for basic administration of State-owned assets of enterprises such as delineation and registration of property rights, regulation of asset valuation, inventorying of assets and verification of capital, compilation of statistics concerning assets, overall valuation, etc. in accordance with relevant State regulations.

  State-owned assets supervision and administration authorities shall coordinate resolution of disputes between their Funded Enterprises over property rights to the State-owned assets of enterprises.

  Article 31 State-owned assets supervision and administration authorities shall establish systems for supervising and administering transactions involving property rights over the State-owned assets of enterprises, strengthen supervision and administration of transactions involving property rights over the State-owned assets of enterprises, promote the rational circulation of the State-owned assets of enterprises, and prevent the loss of the State-owned assets of enterprises.

  Article 32 State-owned assets supervision and administration authorities shall perform their duties as investors in respect of the income from the State-owned assets of their Funded Enterprises in accordance with the law. They shall perform their duties as investors in respect of the major investment and financing plans, development strategies and plans of their Funded Enterprises in accordance with State development plans and industrial policies.

  Article 33 Major disposal of assets of wholly State-owned enterprises and companies among the Funded Enterprises that must be approved by State-owned assets supervision and administration authorities shall be carried out in accordance with relevant regulations.

  PART SIX SUPERVISION OF STATE-OWNED ASSETS OF ENTERPRISES

  Article 34 The State-owned assets supervision and administration authority of the State Council shall, on behalf of the State Council, appoint supervisory boards to wholly State-owned enterprises and companies among its Funded Enterprises. The composition, functions and standards of acts, etc. of such supervisory boards shall be handled in accord with the Supervisory Boards of State-owned Enterprises Tentative Regulations.

  The State-owned assets supervision and administration authorities of local people's governments shall, on behalf of the people's governments at the same level, appoint supervisory boards to wholly State-owned enterprises and companies among their Funded Enterprises with reference to the Supervisory Boards of State-Owned Enterprises Tentative Regulations.

  Article 35 State-owned assets supervision and administration authorities shall, in accordance with the law, supervise the finances of their Funded Enterprises, establish and improve index systems for the maintenance of and increase in the value of State-owned assets and safeguard the rights and interests of the investors of State-owned assets.

  Article 36 State-owned and State-controlled enterprises shall strengthen internal supervision and risk control and shall, in accordance with the relevant State regulations, establish sound systems for finance, audit, enterprise legal counsel and democratic supervision by staff and workers, etc.

  Article 37 Wholly State-owned enterprises and companies among Funded Enterprises shall, in accordance with regulations, regularly report on their financial position, production and operation, and the maintenance of and increase in the value of the State-owned assets to the State-owned assets supervision and administration authority.

  PART SEVEN

  LEGAL LIABILITY

  Article 38 If a State-owned assets supervision and administration authority fails to appoint and dismiss, or propose the appointment and dismissal of, responsible persons of its Funded Enterprises in accordance with regulations, or interfere in the production and operation activities of its Funded Enterprises in violation of the law, thereby infringing the lawful rights and interests of the enterprises and causing loss of the State-owned assets of the enterprises or other serious consequences, the persons directly in charge and other directly responsible persons shall be subjected to administrative penalties in accordance with the law. If a criminal offence is constituted, criminal liability shall be pursued in accordance with the law.

  Article 39 If a wholly State-owned enterprise or company among Funded Enterprises fails to report its financial position, production and operation, and maintenance of and increase in the value of State-owned assets to the State-owned assets supervision and administration authority in accordance with regulations, it shall be issued a warning. If the circumstances are serious, the persons directly in charge and other directly responsible persons shall be subjected to disciplinary punishment in accordance with the law.

  Article 40 If a responsible person of a State-owned or State-controlled enterprise abuses his powers or is derelict in his duties, thereby causing loss of State-owned assets of enterprises, he shall be liable for compensation and shall be subjected to disciplinary punishment in accordance with the law. If a criminal offence is constituted, criminal liability shall be pursued in accordance with the law.

  Article 41 A responsible person of a State-owned or State-controlled enterprise that is removed from office or subjected to heavier disciplinary punishment for his responsibility for the loss of State-owned assets of enterprises may not serve as a responsible person of any State-owned or State-controlled enterprise within five years. If he has caused major losses of State-owned assets of enterprises or is sentenced to criminal punishment, he may never serve as a responsible person of any State-owned or State-controlled enterprise again.

  PART EIGHT SUPPLEMENTARY PROVISIONS

  Article 42 The organizational form, organizational structure, rights and obligations of State-owned enterprises, State-controlled enterprises and enterprises in which the State has an equity participation shall comply with the provisions of laws such as the PRC, Company Law, administrative regulations and these Regulations.

  Article 43 The establishment of grassroots organizations of the Communist Party of China, socialist spiritual civilization and the Party's practices and honesty in State-owned enterprises, State-controlled enterprises and enterprises in which the State has an equity participation shall be handled in accordance with the Communist Party of China, Constitution and the relevant regulations.

  Labour unions in State-owned enterprises, State-controlled enterprises and enterprises in which the State has an equity participation shall be handled in accordance with the PRC, Labour Union Law and the PRC, Charter of Labour Union.

  Article 44 The State-owned assets supervision and administration authority of the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the central government may formulate implementing procedures in accordance with these Regulations.

  Article 45 In the event of inconsistencies between administrative regulations on the supervision and administration of State-owned assets of enterprises formulated prior to the implementation hereof and these Regulations, these Regulations shall prevail.

  Article 46 Work units in which government and enterprise have not been separated shall accelerate reform and realize the separation of government and enterprise in accordance with the regulations of the State Council. The State-owned assets supervision and administration authorities shall perform the duties of investors in enterprises in which government and enterprise have been separated and supervise and administer the State-owned assets of enterprises in accordance with the law.

  Article 47 These Regulations shall be implemented as of the date of promulgation.

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