Case playback:

　　

　　In 2000 October, A enterprises and state-owned enterprises B farm talks to merger plan, the assembly of the representatives of the employees to the B C farm unit in charge of the provincial civil affairs department proposed merger report. In October 23, 2000, the Department of civil affairs below agreed merger plan, the two sides signed the acquisition contract AB. In November 5th, A received the B farm assets, seal and related certificates, and in November 7th to apply for the cancellation of the B farm to rent land. In November 30th, AB D commissioned the asset appraisal firm to B farm assets assessment, but not evaluated B farm of state-owned land transfer, also did not report to the land bureau. In March 5, 2001, C State-owned Assets Management Bureau confirmed that the assessment report. Then, without the government department in charge of examination and approval, to the B A farm assets disposal. In 2002 May, the provincial Civil Affairs Department in C company A occupation of state-owned assets and state-owned land use rights on the grounds, to apply to the court for the merger of the contract is invalid.

 

　　Intensive analysis:

 

　　The sixteen National Congress of the CPC, China's state-owned enterprise reform, a large number of state-owned enterprises through joint, mergers, restructuring, leasing, contracting, joint-stock, joint-stock cooperative system, the sale of the enterprise restructuring, transformation mechanism. Many enterprises of rapid turnaround, but there is also the loss of state-owned assets, the enterprise of new shareholders, creditors, employees, assets of the transferee rights issues. Once the failure of reform, not only makes the reform achievements all one's efforts wasted, restructuring behavior of the participants, stakeholders and corporate restructuring will also bear the corresponding legal responsibility, and may therefore lead to social shock, endanger social stability. In order to avoid the negative effects of reform, our country law to carry on the strict and complete regulations on state-owned enterprise reform. But the enterprises that ignore national policy requirements, in the restructuring of illegal operations, is still the cause of the most common causes of failure.

　　A. decides to approve risk

　　1, the transfer, the transfer target enterprise fails to perform the corresponding internal decision-making procedures, approval procedures or beyond the scope of authorization, unauthorized transfer of state-owned property rights of enterprises, state-owned assets supervision and administration institution or enterprise state-owned property rights transfer relevant approval institution shall require the transferor to stop the transfer of the property right, shall file a lawsuit to the people's court according to law, confirm the transfer invalid, persons in charge directly responsible for the above behavior of transfer, the transfer target enterprise and other directly responsible personnel, by the state-owned assets supervision and administration institutions or enterprises to give a warning in accordance with the personnel management authority, if the circumstances are serious, shall be given a disciplinary punishment, resulting in the loss of state-owned assets, shall be liable for compensation; due to the transferee responsibility for causing the loss of state-owned assets, the transferee shall compensate the transferor to economic loss; constitutes a crime, shall be transferred to the judicial organ for investigation of criminal responsibility;

　　2, the enterprises invested by the state-owned enterprise, a wholly state-owned company not in accordance with the provisions to the state-owned assets supervision and management institutions, financial status report production status and value maintenance and appreciation of state-owned assets status, shall be given a warning; if the circumstances are serious, the persons directly in charge and the other persons directly responsible shall be given disciplinary sanctions;

　　3,The transfer of an agreement to form the sale of the business enterprise, the approval of the examination and approval of the sale contract without the local people's government or its authorized departments, the sale contract is not in force.

　　4, relevant institutions and personnel in violation of the provisions of the transfer of the state-owned property right to the management, the state-owned assets supervision and administration institution, financial departments or authorized government departments shall file a lawsuit to the people's court for confirmation of the transfer act invalid.

　　B.The property risk transfer

　　1, not in accordance with the relevant provisions of law in the transactions of property rights institutions in the transaction, the state-owned assets supervision and administration institution or enterprise state-owned property rights transfer relevant approval institution shall require the transferor to stop the transfer of the property right, shall file a lawsuit to the people's court according to law, to confirm the transfer act invalid, persons in charge directly responsible for the above behavior of the transferor, the transfer target enterprise and other directly responsible personnel, by the state-owned assets supervision and administration institutions or enterprises to give a warning in accordance with the personnel management authority, if the circumstances are serious, disciplinary sanctions, resulting in the loss of state-owned assets, shall be liable for compensation; due to the transferee, result in the loss of state-owned assets, the transferee shall make compensation for the transfer of party in accordance with the economic loss; constitutes a crime, shall be transferred to the judicial organ for investigation of criminal responsibility;

　　2, enterprise of sale, the parties malicious collusion, damage the interests of the state, the enterprise selling act is invalid;

　　3, enterprise of sale, the seller of the act with contract law may revoke the contract, the buyer may exercise the right of revocation in the legal time limit;

　　4,The sale of the business contract expiration, party refuses to perform the contract, or not fully perform its obligations under a contract, the contract can not be achieved, the other party may request to terminate the contract and claim compensation for losses;

　　5, the enterprise to sell the contract expiry of the performance period, Party A is not fully perform its obligations under a contract, the other party may request to continue to perform the contract and claim damages. Both parties are not fully perform its obligations under a contract, according to the fault of the parties, civil liability is determined to be borne by each;

　　6, enterprise sale contract is confirmed invalid or revoked, when the business is sold to buy Budget Management during the operation of enterprises, the buyer enjoyed or borne.

　　C. registered risk

　　1, the enterprise is not within the prescribed time limit for property registration and annual inspection, the registration authorities ordered its deadline for, and depending on the seriousness of the case, impose a one thousand yuan to thirty thousand yuan fine, fails to handle the registration of property rights, according to the seriousness of the circumstances, impose a fine of thirty thousand yuan and sixty thousand yuan, and drew the government the relevant departments to give corresponding disciplinary action of the enterprise leaders and the directly responsible personnel;

　　2,Providing false financial report enterprise or documents, concealing the true situation, diddle property registration and annual inspection; forged, altered, lent, leased, sold the property registration and property registration certificate and other behavior, property rights registration authority shall order it to correct within a prescribed time limit, and be informed criticism, depending on the seriousness of a fine of sixty thousand yuan a fine of one hundred thousand yuan, and draw the relevant government departments to give corresponding disciplinary action of the enterprise leaders and the directly responsible personnel.

　　3, false registered capital, the company registration, the company registration authority shall order it to make corrections, punishable by a fine of the amount of the registered capital of more than 5% false below 15%; if the circumstances are serious, shall cancel the registration of the company or its business license shall be revoked.

　　4, submitted false documents or by other fraudulent means to conceal important facts, obtains company registration, the company registration authority to make corrections, punishable by a fine of 50000 yuan and 500000 yuan; if the circumstances are serious, shall cancel the registration of the company or its business license shall be revoked.

　　5, the founder of the company, the shareholders, false capital contribution, fails to deliver or fails to deliver on schedule as capital contribution in currency or non-currency property, the company registration authority shall order it to make corrections, punishable by a fine of false capital contribution amount more than 5% below 15%.

　　6, Registration of the change, the company did not apply for the alteration registration according to the regulations, be ordered by the company registration authority registration within a prescribed time limit; if it fails to register, impose a fine of 10000 yuan of above 100000 yuan of the following. Among them, the change of business scope relates to the provisions of laws, administrative regulations or decisions of the State Council shall be subject to the approval of the project without approval, to engage in the relevant business activities, if the circumstances are serious, its business license shall be revoked. The company is not in accordance with stipulations about the archival filing, the company registration authority shall order the deadline for; failure to comply with, impose a fine of 30000 yuan of the following.

　　7, the company in the merger, division, reduction of registered capital or liquidation, not in accordance with the provisions of notice or announcement creditor, the company registration authority shall order it to make corrections, punishable by a fine of 10000 yuan of above 100000 yuan of the following.

　　In this case, the AB merger agreement is the true meaning of the parties, also confirmed the related department. But the B farm merger A company belongs to the non-state-owned enterprises or state-owned enterprises, involving state-owned assets disposal and state-owned enterprise workers' legitimate rights and interests, must comply with the relevant national laws and policies, and in accordance with the procedures prescribed by law shall have the force of law. The laws and regulations of our country: enterprise transfers all the state-owned property rights or after the reform is no longer set the state-owned shares, shall submit to the registration authorities for cancellation of the registration of property rights. Approval documents issued by the enterprises apply for cancellation registration shall be submitted to the relevant government departments, the contribution of the parent company or superior departments, enterprises of the shareholders' meeting; the Finance (state-owned assets management) departments compliance audit assets evaluation report, data file. Without obtaining the confirmation and approval of the land administration department of the situation, A company that cancellation of B farm and foreign rent of land acts, not only damage the interests of the state, but also violates the state mandatory provisions, the merger agreement is invalid. The contract is confirmed to be invalid, should be restored to the state before the contract is signed in. The parties according to the contract the property shall be returned to each other. The party at fault shall compensate the other party for the losses thus incurred.

 

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