(Adopted at the 57th Executive Meeting of the Shenzhen Municipal People’s Government, promulgated by Order No. 12 of the Shenzhen Municipal People’s Government of August 17, 1993)
Chapter I General Provisions
Article 1 In order to promote the change of the operation mechanism of the state-owned enterprises of the Shenzhen Special Economic Zone (hereinafter referred to as the Special Economic Zone), increase the operation efficiency of the state-owned assets, and guarantee the consolidation and development of the state economy, these measures are hereby formulated in accordance with Regulations of the Shenzhen Special Economic Zone on Companies Limited by Shares and Regulations of the Shenzhen Special Economic Zone on Companies of Limited Liability (hereinafter referred to as the two regulations).
Article 2 The state-owned enterprises referred to in these measures shall mean the state-owned enterprises under the Shenzhen Municipality, the state-owned enterprises under districts which are registered and established in the Special Economic Zone, and jointly-run enterprises, enterprises stationed in Shenzhen which are owned by the whole people.
These measures shall apply to the reorganization of the state-owned enterprises
referred to in the previous section into companies limited by shares (hereinafter referred to as joint-stock companies) or companies of limited liability.
Article 3 The reorganization of the state-owned enterprises into joint-stock companies or companies of limited liability (hereinafter referred to as the reorganization of state-owned companies) shall follow the following principles:
(1) to make sure that the state ownership of the state-owned assets shall not be encroached on;
(2) to carry out the industrial policies of the state and the Special Economic Zone and to promote the optimization of industrial structure and the adjustments of organizational structure;
(3) to reorganize type by type according to the two regulations and to set strict standards;
(4) to insist the separation of governmental functions from enterprise management and to put into practice the managerial autonomy of enterprises;
(5) to insist on the unification of responsibility, power, and profits, and to deal with the relationship of interests between the state, enterprises, and employees of enterprise in a right way.
Article 4 The joint-stock companies or companies of limited liability established
by the reorganization of state-owned enterprises according to these measures shall succeed the claims and debts of the original enterprises.
Chapter Patterns of the Reorganization of State-Owned Enterprises
Article 5 State-owned enterprises may be reorganized according to the following patterns:
(1) to set up a company of limited liability by taking in the investment from natural persons, legal persons both at home and abroad;
(2) to promotee the establishment of a joint-stock company by joint investment with other legal persons and conversion of the respective proportion of the investment of each party into stocks;
(3) to set up a joint-stock company through raising capital from the public by floating stocks.
Article 6 The patterns to organize a joint-stock company or a company of limited
liability according to the previous section may be used for both setting up a new state-owned enterprise and expanding an old one except when there is an express provision of the state to prohibit the establishment of joint-stock companies or companies of limited liability.
Article 7 When a state-owned enterprise merges other enterprises, the owners of the other enterprises may price the whole or part of the assets of the merged enterprises for becoming shareholders, the state-owned enterprise as the merging party may be reorganized into a joint-stock company or a company of limited liability according to these measures.
Article 8 When state-owned enterprises merge or separate, the enterprises formed in merging or separating may be organized as joint-stock companies or companies of limited liability according to these measures.
Article 9 When other enterprises make an investment in a state-owned enterprise, the state-owned enterprise, which accepts the investment, may be reorganized into a joint-stock company or a company of limited liability according to these measures.
Article 10 Any state-owned enterprise may promote the establishment of a joint-stock company by pricing its state-owned assets as capital stock and inviting other legal persons to make an investment to become shareholders.
If a state-owned enterprise meets the related stipulations and has the approval from the office in charge of securities, it may establish a joint-stock company through raising capital from the public by floating stocks as promoter itself or with other legal persons as joint promoters.
Article 11 The core enterprise of an enterprise group of the Special Economic Zone may reorganize the state-owned enterprises among the members of the enterprise group into a company of limited liability by making an investment in, buying shares from these state-owned enterprises.
Article 12 When a state-owned enterprise is reorganized, the appropriation that the state-owned enterprise has not paid back shall be changed to a loan which, with the approval of the creditor of this loan, may partly or wholly be priced as state-assets stocks.
The rights of the shareholder of the state-assets stocks referred to in the previous section shall be exercised by the original creditor, and the claim of the original creditor shall be extinguished at the same time.
Article 13 When the state-owned enterprises operated by contract, lease, entrustment are reorganized, the operators may use their own assets to make investments for becoming shareholders if it is approved by the department in charge of the state assets.
Chapter III Conditions of the Reorganization of State-Owned Enterprises
Article 14 The state-owned enterprises doing business in the competitive industries which are allowed and encouraged to be developed according to the industrial policies of the state and the Special Economic Zone shall be encouraged to be reorganized into joint-stock companies or companies of limited liability.
Article 15 The state-owned enterprises operating in the infrastructural industries of energy, transportation, communication, etc. that concern the national economy and the people’s livelihood may be reorganized into joint-stock companies or companies of limited liability, but the state-assets stocks shall reach the proportion to have controlling interests.
Article 16 Without special approval by the responsible office, there shall be no reorganization of state-owned enterprises for the state-owned enterprises in the industries concerning the national security, defense, and war production, and for the state-owned enterprises taking the projects of exclusive operations, exclusive dealings prescribed by the laws, regulations of the state as their principal business.
Article 17 Foreign investors shall be encouraged to invest in state-owned enterprises for becoming shareholders except in the industries where foreign investment is restricted, prohibited by the laws of the state and the related stipulations of the Special Economic Zone.
Article 18 The reorganization of state-owned enterprises into companies of limited liability shall meet the following conditions:
(1) the principal business projects are in line with the industrial policies of the state and the Special Economic Zone;
(2) the total of the assets of a state-owned enterprise converted into capital stocks shall not exceed the current net assets. If the total assets converted into capital stocks exceed the current net assets, the difference shall be made up by the investment recovered by the title-holder of the state-owned enterprise;
(3) the registered capital satisfies the stipulations and corresponds with the scale of production, operation and service;
(4) the name, institutional framework, and bylaw of a company satisfy the stipulations of Regulations of the Shenzhen Special Economic Zone on Companies of Limited Liability;
(5) the other legal requirements for the establishment of a company of limited liability.
Article 19 If a state-owned enterprise promotes the reorganization into a joint-
stock company, it shall meet the following conditions in addition to Items (1), (2) of the previous article:
(1) the promoters shall be more than 5 legal persons;
(2) the registered capital of the company shall not be less than 10,000,000 RMB, and the promoters shall fully subscribe to all capital stocks;
(3) the name, institutional framework, and bylaw of the company satisfy the stipulations of Regulations of the Shenzhen Special Economic Zone on Companies Limited by Shares;
(4) the other legal requirements for the establishment of a joint-stock company.
Article 20 If a state-owned enterprise is reorganized into a joint-stock company
through raising capital from the public by floating stocks, it shall meet the following conditions:
(1) the enterprise has made profits for 3 consecutive years, and its principal business projects are in line with the industrial policies of the state and the Special Economic Zone;
(2) the net assets at the end of the last year shall not be less than 30% of the total assets, the intangible assets shall not be more than 20% of the net assets. As for the high-tech enterprises identified by the state, the proportion of their intangible assets in the net assets may be set according to practical conditions;
(3) if the total of the state assets converted into capital stocks is more than the net assets, the difference shall be made up by the investment added by the title-holders of the state-owned enterprises;
(4) the sum of stocks subscribed to by promoters shall be less than 35 of the total of the floated capital stocks;
(5) the other legal requirements for the establishment of a joint-stock company through raising capital from the public.
Chapter IV Procedure of the Reorganization of State-Owned Enterprises
Article 21 In case of the reorganization of a state-owned enterprise, the enterprise shall work out the statement of assets and liabilities, inventory of property, list of debts and credits, and the plan for reorganization, and submit a written application for reorganization to the title-holder of the state-owned enterprise.
Article 22 The following items shall be made clear in a written application of a state-owned enterprise for reorganization:
(1) the name, domicile of the applying enterprise (i.e. the state-owned enterprise which is applying for reorganization, same below);
(2) the name, post of the legal representative of the applying enterprise;
(3) the matters to apply for;
(4) the reason to apply for reorganization;
(5) the seal of the applying enterprise and the signature of its legal representative;
(6) the date of application.
Article 23 The following items shall be made clear in a plan of a state-owned
enterprise for reorganization:
(1) a brief account of the enterprise;
(2) the name of the joint-stock company or company of limited liability planned to be established;
(3) the channels to raise capital;
(4) the analysis of the capital structure of the company;
(5) the scope and forecast of the company’s operations;
(6) the institutional framework of the company;
(7) the major rules and regulations of the company on operations and management;
(8) other items which should be included.
The plan of a state-owned enterprise for reorganization shall be stamped with the
seal of the applying company and signed by its legal representative. As for the part of the plan which concerns professional analysis and forecast, it shall be signed by the related professionals.
Article 24 The applying enterprise shall submit its written application for reorganization, statement of assets and liabilities, inventory of property, list of debts and credits in triplicate to the title-holder of the applying enterprise. The title-holder shall examine the items of the application, send people or entrust professionals to do examinations if it is necessary.
The title-holder shall make a written decision in 30 days on whether to consent to the application for the reorganization of the enterprise. In case of making a decision to consent, it shall be made clear whether to be reorganized into a joint-stock company or a company of limited liability; in case of making a decision not to consent, a reason shall be given.
Article 25 When consenting to reorganize an enterprise into a joint-stock company, the title-holder shall turn over to the municipal office in charge of securities the written decision to consent to the reorganization with the various materials, which are listed in Article 24 for the applying enterprise to submit, for examination.
The municipal office in charge of securities shall make a written decision in 30 days to consent to the reorganization into a joint-stock company if an applying enterprise meets the legal requirements for the reorganization into a joint-stock company.
When making a decision not to consent to the reorganization of an applying enterprise into a joint-stock company, the municipal office in charge of securities shall give reason.
Article 26 The state-owned enterprises whose reorganization has been examined and approved according to the procedure prescribed in Articles 24, 25 shall engage an assets-valuation agency certified according to law to value assets. The result of the assets valuation shall be reported to the department of state assets administration for the records.
If the department of state assets administration has an objection to a result of assets valuation, it shall have the right to ask for revaluation. If there is still a dispute on the result of the revaluation, it may be submitted to arbitration by an assets-valuation agency jointly accepted by both parties in dispute.
Article 27 In case of the reorganization of a state-owned enterprise, a certified public accountant shall audit the financial position of the enterprise, set a date of the basis of accounting, and issue an auditing report.
Article 28 In case of the reorganization of a state-owned enterprise, an application for business license shall be filed to the governmental department in charge of the business if a newly added principal business project is in one of the following categories:
(1) the special industry and project concerning the social stability and the people’s safety;
(2) the projects of the industries restricted and controlled by the industrial policies of the Special Economic Zone;
(3) the projects of exclusive operation, exclusive distribution prescribed by laws, regulations, and the rules of the Special Economic Zone.
The governmental department in charge of the business shall make examinations
according to law and make a decision in 30 days on whether to approve an application. If an application is rejected, a reason shall be given.
Article 29 After having gone through the above-mentioned legal formalities, an applying enterprise shall invite other promoters (capital subscribers in case of forming a company of limited liability, same below) to jointly sign an agreement on the establishment of a company.
The following items shall be made clear in the agreement on the establishment of a company referred to in the previous section:
(1) the designation or name, domicile of various promoters;
(2) the name, domicile, business scope of the company planned to establish;
(3) the registered capital of the company;
(4) the categories, sums of the capital subscription of various capital subscribers, and its proportion converted into the stock ownership or the sum of shares;
(5) the time limit for various promoters to make a payment for capital subscription;
(6) the categories, sums, payment methods of the special interests or earnings of various promoters;
(7) the method of the amortization of the expenses for the establishment of a company;
(8) the composition, duties, authority of the temporary organizations in the procedure to establish a company; the designation or name, address of the promoters jointly designated to deal with the matters of the establishment if there is no temporary organization;
(9) the responsibilities that a promoter should bear to the company and other promoters in case of breaking the agreement;
(10) the share of responsibilities between promoters if a company has failed to be established;
(11) other items agreed on;
(12) the date of signing the agreement.
The agreement to establish a company shall be unanimously agreed on, signed,
stamped with seals by all promoters.
Article 30 When a state-owned enterprise establishes a joint-stock company alone through raising capital by floating stocks, the items of the agreement to establish a company referred to in the previous article shall be made clear in the plan to reorganize this state-owned enterprise.
Article 31 In case of the reorganization of state-owned enterprises, the bylaw of a company shall be unanimously adopted by all promoters.
Every promoter shall make a full payment for the capital subscription within a prescribed time limit. The investment of promoters for capital subscription shall be assessed by a certified public accountant and a certification on assessment of capital shall be issued.
Article 32 Applying enterprises shall go through the following procedures respectively according to Regulations of the Shenzhen Special Economic Zone on Companies of Limited Liability and Regulations of the Shenzhen Special Economic Zone on Companies Limited by Shares:
(1) in case of the reorganization into a company of limited liability, a state-owned enterprise shall apply for the registration as a company according to Regulations of the Shenzhen Special Economic Zone on Companies of Limited Liability and its detailed rules;
(2) in case of promoting the reorganization into a joint-stock company, a state-owned enterprise shall apply to the registration office for the registration as a company according to Regulations of the Shenzhen Special Economic Zone on Companies Limited by Shares and its detailed rules, and apply to the office in charge of securities for issuing stock certificates;
(3) in case of the reorganization into a joint-stock company through raising capital from the public, a state-owned enterprise shall apply to the office in charge of securities for raising capital, floating stocks, and to the registration office for the registration as a company according to Regulations of the Shenzhen Special Economic Zone on Companies Limited by Shares.
Article 33 After the reorganization into a company, a state-owned enterprise shall
apply to the department of state assets administration for the registration of the title of the state assets except those companies which already obtained Certification on the Title of State Assets when the companies were established.
Chapter V Definition of Titles and Setup of Stock Rights in the Reorganization of State-Owned Enterprises
Article 34 The titles of the following assets of a state-owned enterprise shall be clearly defined as those belonging to the state:
(1) the investment in kind and monetary investment in a state-owned enterprise by the people’s governments at various levels, the administrative departments of the state, or other state units, and the investment of intangible assets such as inventions, technological achievements whose property rights belong to the state;
(2) the taxes which are rebated and exempt, and then used for investment or paying back the loan for investment according to the rules of the state or after approval;
(3) the profits used for paying back the loan for investment according to the rules of the state or after approval;
(4) the various special funds set up by withdrawing from operation income, listing as cost, and withdrawing from retained profits according to the rules of the state, except the funds set up by withdrawing according to the rules of the state to be distributed for personal consumption as wage rewards, welfare benefits of employees;
(5) the credit funds, investment funds, fiscal working funds, and other operation funds and capital funds to which the state investment corporations, state banks, and other state-owned financial business units have transferred fiscal appropriations and retained profits;
(6) the internally accumulated funds of the state-owned enterprises created totally by the funds which are borrowed from both home and abroad through the guarantee by the state offices or whose risk in investment is actually assumed by the state, or by various ways of the state investment;
(7) the stock rights and property rights obtained by state-owned enterprises in using state assets to invest in other enterprises or to merge, buy other enterprises;
(8) the other assets which should belong to the state according to law.
Article 35 In the process of the reorganization of state-owned enterprises, it shall
be prohibited to use state assets to set up enterprise stocks or collective employee stocks; it shall be prohibited to change state assets to the legal common reserve funds or public welfare funds of joint-stock companies or companies of limited liability after the reorganization without consideration; it shall be prohibited to offer stocks without consideration or distribute stocks to employees and other people at the price lower than that to float stocks to the public.
Article 36 The legal holders of the titles to the following assets of state-owned enterprises shall be clearly defined:
(1) it shall be made clear that the titles to the fixed assets, liquid assets, and other assets of state-owned enterprises which should belong to collective enterprises or other enterprises and individuals according to laws, regulations, or contracts based on law belong to their legal holders;
(2) it shall be made clear that the titles to the assets of state-owned enterprises which belong to these enterprises themselves according to the related rules of the state and after the verification by the departments of state assets administration or its authorized offices belong to these state-owned enterprises;
(3) if the holders of the titles to the assets of a state-owned enterprise cannot be clearly defined for the time being, the state-owned enterprise shall set a special account for these assets, and transfer them to their legal title-holders after it is clear to whom the assets should belong to.
Article 37 After the reorganization of a state-owned enterprise into a company,
the setup and administration of its stock rights shall be dealt with according to the related stipulations of the two regulations, if the laws, regulations of the state have different special provisions, these provisions shall be honored.
Article 38 After the reorganization of a state-owned enterprise into a company, its stock rights may be called respectively as state assets stocks, legal persons stocks, individual stocks, and foreign capital stocks according to the different title holders.
The state assets stocks shall be defined as the stock rights or shares into which state-owned assets are converted.
The legal person stocks shall be defined as the stock right or shares formed by the property owned by the legal persons of enterprises or the institutions and social organizations which have the status of legal persons.
The individual stocks shall be defined as the stock rights or shares formed by the property owned by the natural persons of this country.
The foreign capital stocks shall be defined as the stock rights or shares formed by the property owned by foreign investors (including natural persons, legal persons and other economic organizations).
Article 39 The shareholders of the various stock rights set up according to the previous article shall exercise the rights of shareholders according to the principle of equality of the stock rights of a company.
Article 40 The department of state assets administration shall, in compliance with the principle of level-to-level management, carry out the functions to administer the state assets stocks according to law.
Article 41 The method of appointment and duties of a representative of state assets stock rights shall be stipulated separately by the department of state assets administration jointly with the related departments.
Chapter VI Legal Liabilities
Article 42 If a state-owned enterprise and the related personnel violate these measures in the reorganization of the state-owned enterprise and encroach on the state assets, the department of state assets administration shall order to make compensation for the loss, and the department of administrative supervision shall inflict administrative or economic punishments on the persons in charge of the enterprise and other responsible persons. If the circumstances are serious and a crime is constituted, the judicial office shall investigate into the criminal responsibility.
Article 43 If the staff members of the department of state assets administration and its authorized offices neglect duties, practice favoritism and engage in irregularities, and do damages to the rights and interests of state assets in the reorganization of state-owned enterprises, but there is no crime constituted, the department of administrative supervision shall inflict administrative or economic punishments on the responsible persons; if a crime is constituted, the judicial office shall investigate into the criminal responsibility according to law.
Article 44 If the office in charge of securities and its staff members do not execute duties according to law or neglect duties, practice favoritism and engage in irregularities, and do damages to the rights and interests of state assets in the reorganization of state-owned enterprises, but there is no crime constituted, the department of administrative supervision shall inflict administrative or economic punishments on the chief officers and directly responsible persons; if a crime is constituted, the criminal responsibility shall be investigated into according to law.
Chapter VII Supplementary Provisions
Article 45 The related departments of the municipal government may formulate necessary administrative measures according to these measures.
Article 46 If there is a conflict between the rules on the reorganization of state-owned enterprises issued by the municipal government in the past and these measures, these measures shall be implemented.
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