利用外资改组国有企业暂行规定 Using Foreign Investment to Reorganize State-owned Enterprises Tentative Provisions

国家经济贸易委员会、财政部、国家工商行政管理总局、国家外汇管理局令第42号

（Promulgated by the State Economic and Trade Commission， the Ministry of Finance， the State Administration for Industry and Commerce and the State Administration of Foreign Exchange on 8 November 2002 and effective as of 1 January 2003.）

颁布日期：20021108 　实施日期：20030101 　颁布单位：国家经济贸易委员会、 财政部、 国家工商行政管理总局、 国家外汇管理局

　　Article 1　These Provisions have been formulated pursuant to the PRC， Company Law， the PRC， Contract Law and State laws and regulations concerning foreign investment and administration of State-owned assets， in order to attract and regulate the use of foreign investment to reorganize State-owned enterprises， promote the strategic restructuring of the State-owned economy， accelerate the pace at which State-owned enterprises establish modern corporate systems and safeguard social stability.

　　Article 2　These Provisions shall govern the use of foreign investment to reorganize State-owned enterprises and company system enterprises with State-owned equity （with the exception of financial enterprises and listed companies） or to establish them as company system foreign-invested enterprises （hereafter， Use of Foreign Investment to Reorganize State-owned Enterprises）。

　　Article 3　For the purpose of these Provisions， the Use of Foreign Investment to Reorganize State-owned Enterprises shall include the following：

　　1. the owner of State-owned property rights in a State-owned enterprise assigns all or part of the property rights to a foreign company， enterprise or other economic organization or individual （Foreign Investor） and the enterprise is reorganized as a foreign-invested enterprise；

　　2. the owner of State-owned equity in a company system enterprise assigns all or part of the State-owned equity to a Foreign Investor and the enterprise is reorganized as a foreign-invested enterprise；

　　3. the domestic creditor of a State-owned enterprise assigns its claim to a Foreign Investor and the enterprise is reorganized as a foreign-invested enterprise；

　　4. a State-owned enterprise or a company system enterprise with State-owned equity sells all or its main assets to a Foreign Investor and the Foreign Investor uses the assets that it purchased， alone or together with the enterprise that sold the assets， to establish a foreign-invested enterprise； or

　　5. a State-owned enterprise or a company system enterprise with State-owned equity attracts investment from a Foreign Investor to increase its capital and its shares and the enterprise is reorganized as a foreign-invested enterprise.

　　Article 4　The State-owned enterprises and company system enterprises described in Items （1）， （2）， （3） and （5） of Article 3 hereof shall be termed “Enterprises to be Reorganized”。

　　The State-owned property rights of State-owned enterprises and the State-owned equity of company system enterprises shall collectively be termed “State-owned Property Rights”。 The owners of State-owned property rights and State-owned equity shall collectively be termed “Owners of State-owned Property Rights”。

　　The term “Owner of State-owned Property Rights” means a department authorized by the State or an organization， an enterprise owning State-owned capital or other economic organization authorized to invest by the State. The Owners of State-owned Property Rights， creditors of State-owned enterprises that assign their claims and enterprises that sell their assets shall collectively be termed the “Reorganizing Party”。

　　Article 5　The Reorganizing Party shall select a Foreign Investor that satisfies the following conditions：

　　1. having the business qualifications and technical level required by the Enterprise to be Reorganized；

　　2. having a fine business reputation and management capabilities； and

　　3. having a solid financial position and economic strength

s.

　　The Reorganizing Party shall require the Foreign Investor to submit a restructuring programme to improve the enterprise's corporate governance structure and promote the sustained growth of the enterprise. The restructuring programme shall include the development of new products， technical transformation and a related investment plan， measures to strengthen corporate management， etc.

　　Article 6　The following principles shall be complied with when Using Foreign Investment to Reorganize State-owned Enterprises：

　　1. abiding by State laws and regulations and ensuring the economic security of the State；

　　2. satisfying the requirements of State industrial policy； if the business scope of the enterprise （including those enterprises in which it has a direct or indirect interest） is in an industry in which foreign investment is prohibited by the Foreign Investment Industrial Guidance Catalogue， Foreign Investors may not participate in the reorganization； if the enterprise is one in which the Chinese party must have a controlling interest or a relative controlling interest， the Chinese party shall maintain its controlling interest or relative controlling interest after the reorganization；

　　3. being beneficial in the economic restructuring effort and promoting the optimal deployment of State-owned capital；

　　4. emphasizing the introduction of advanced technology and management experience， establishing a compliant corporate governance structure and promoting corporate technical advance and industrial upgrading；

　　5. adhering to the principles of openness， fairness， impartiality and good faith， preventing the loss of State-owned assets， not evading， repudiating or suspending the claims of banks and other creditors， not prejudicing the lawful rights and interests of staff and workers and safeguarding the lawful rights and interests of Foreign Investors； and

　　6. promoting fair competition and not leading to monopolization of the market.

　　Article 7　Prior to the assignment of the property rights of a State-owned enterprise or a wholly State-owned company or the State-owned equity of a limited liability company invested in and established by two or more State-owned enterprises or two or more State-owned investment entities other than State-owned enterprises， the Reorganizing Party shall seek the opinions of the staff and worker congress of the Enterprise to be Reorganized. The assignment of the State-owned equity of a company system enterprise shall require the consent of the shareholders' meeting of the Enterprise to be Reorganized. If claims against a State-owned enterprise are to be assigned， the consent of the Owner of the State-owned Property Rights of the Enterprise to be Reorganized shall be required. Prior to selling all of or its main assets， the enterprise shall obtain the consent of the Owner of the State-owned Property Rights of the enterprise or the shareholders' meeting of the enterprise and notify its creditors thereof.

　　Article 8　The Use of Foreign Investment to Reorganize a State-owned Enterprise shall satisfy the following requirements：

　　1. Prior to the reorganization of the enterprise， the Owner of the State-owned Property Rights shall arrange for an inventory of the assets， a determination of the property rights and a screening of the claims and debts of the Enterprise to be Reorganized， engage qualified intermediary organizations to conduct a financial audit and to conduct an asset appraisal in accordance with such relevant regulations as the Administration of State Asset Valuation Procedures （State Council Order No.91）， the Several Issues Concerning the Administration of State Asset Valuation Provisions （Ministry of Finance Order No.14）， etc. After the appraisal results have been approved or placed on the record in accordance with regulations， they shall serve as the basis for determining the price of the State-owned Propert

y Rights or assets.

　　2. If the controlling interest in the enterprise is to pass to， or if all or the main business assets of the enterprise are to be sold to， the Foreign Investor after the reorganization， the Reorganizing Party and the Enterprise to be Reorganized shall formulate an appropriate plan to settle the staff and workers that shall be subject to the approval of the staff and worker congress. The Enterprise to be Reorganized shall use its existing assets to pay in full all such expenses as the wages of its staff and workers， non-refunded pooled wages， unpaid social insurance premiums， etc. The Enterprise to be Reorganized shall offer its staff and workers two options. It shall， in accordance with the law， execute new labour contracts with， or amend the labour contracts of， its staff and workers who are kept on. It shall， in accordance with the law， pay severance pay to those staff members and workers whose labour contracts are terminated and for those staff and workers， the responsibility for whom is transferred to the social insurance authority， it shall pay in full in one lump sum the social insurance premiums. The funds required shall be deducted from the net assets of the Enterprise to be Reorganized before the reorganization or on a priority basis from the proceeds derived by the Owner of the State-owned Property Rights from the assignment of the State-owned Property Rights.

　　3. If the reorganization is to be effected through the sale of assets， the original enterprise shall succeed to the enterprise's claims and debts， otherwise the reorganized enterprise shall succeed to the enterprise's claims and debts. The assignment of mortgaged or pledged State-owned Property Rights or assets shall comply with the relevant provisions of the PRC， Security Law. The successor to the debts shall execute rel

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