国务院关于在国有中小企业和集体企业改制过程中加强金融债权管理
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国发明电19984号 People's governments of the province, autonomous region and municipality directly under the Central Government, ministries and commissions of the State Council, and organizations directly under the State Council: Since the conclusion of the 15th National Congress of the Party, all localities and departments have made some achievements in quickening enterprise restructuring in accordance with the requirements of establishing the socialist market economic system. However, in the course of the structural reform of medium- and small-sized state-owned enterprises and collective enterprises, quite a few localities present the phenomenon of taking enterprise restructuring as an opportunity to suspend, evade or reject financial debts. This activity has seriously undermined the social credit relations and resulted in a large quantity of suspended creditor's rights in financial institutions, as well as a drop in quality of credit assets and drain on state-owned assets. For the purposes of standardizing the structural reform work in medium- and small-sized state-owned enterprises and collective enterprises, preventing and curbing acts of evading or rejecting financial debts in various forms, conscientiously protecting the legitimate rights and interests of financial institutions, and taking precautions against financial risks, this Circular regarding strengthening the administration of financial creditor's rights in the structural reform of medium- and small-sized state-owned enterprises and collective enterprises is hereby issued as follows: 1. To Strengthen Conscientiously the Guidance and Supervision over Enterprise Restructuring All localities and departments should proceed with the general interests, conscientiously carry out state policies and measures for enterprise restructuring, strengthen the guidance and supervision over the structural reform work in medium- and small-sized state-owned enterprises and collective enterprises, standardize behaviours in enterprise restructuring, and resolutely curb acts of evading and rejecting financial debts in various forms. Local people's governments should attach great importance to the preservation of financial creditor's rights in enterprise restructuring of their respective regions and lend strong support to financial institutions in the administration of their financial creditor's rights; they are strictly prohibited from shielding and conniving at the acts of evading and rejecting financial debts committed by enterprises in the restructuring. 2. To Confirm Financial Debts According to law by Enterprises in the Restructuring The structural reform of medium- and small-sized state-owned enterprises and collective enterprises shall be carried out in strict accordance with relevant state laws and policies as well as the provisions of the Circular Concerning Prevention of Drain on Bank Credit Assets (Yinfa [1994] No. 40) promulgated by the People's Bank of China, the State Economic and Trade Commission and the Administration of State Property. All enterprises must devote their whole attention to financial institutions' views on the preservation of their creditor's rights in the restructuring and confirm financial debts according to law, no matter whatever forms of the restructuring they will adopt. Those enterprises whose financial debts have not yet been confirmed shall not start the restructuring work and departments concerned shall not handle formalities for examination and approval of their restructuring and registration and shall not renew their business licences. Evasion and rejection of financial debts occurring in the restructuring of enterprises before the issuance of this Circular must be corrected without delay and the financial creditor-debtor relationship must be reestablished. 3. To Take an Active Part in Enterprise Restructuring and Maintain the Safety of Financial Creditor's Rights According to Law by Financial Institutions The structural reform of medium- and small-sized state-owned enterprises and collective enterprises shall require the participation of financial institutions if their creditor's rights have been involved. The financial institutions should exercise strict supervision over the verification and evaluation of assets in the restructuring of enterprises. All financial institutions should conscientiously practise a responsibility system for the preservation of financial creditor's rights, make a great effort to check up and confirm creditor's rights, maintain the safety of financial creditor's rights in real earnest, and report at regular intervals the preservation of financial creditor's rights to the People's Bank of China. For those regions where financial debts are suspended, evaded and rejected seriously, all financial institutions having claims on these financial debts should lower the credit grades of their branches in the regions. 4. To Do a Good Job in the Evaluation of Assets and Registration of Property Rights of the Enterprises in the Restructuring The structural reform of medium- and small-sized state-owned enterprises and collective enterprises must be subjected to the strict evaluation and verification of their assets. With regard to medium- and small-sized state-owned enterprises, results of assets evaluation shall be submitted to the department in charge of state property administration for confirmation. In accordance with provisions of the Measures for the Registration of State Property Rights of Enterprises (Decree No. 192 of the State Council), formalities for registration of change in property rights should be completed in case of any change in property rights in the restructuring of medium- and small-sized state-owned enterprises. In handling formalities for registration of change in property rights, relevant departments should require the restructured enterprises to present the document for the preservation of financial creditor's rights that is issued by the financial institutions concerned. The department of the State Council in charge of state property administration should step up the administration and inspection of assets evaluation agencies, conscientiously ensure the confirmation and evaluation of assets for the restructured enterprises, and impose strict prohibitions against the distribution of state property to individuals by means of intentional underrating or free apportioning of assets of restructured enterprises. Assets evaluation agencies must obtain the legal qualification authentication and the permit for business and should be formed into genuine social intermediary organizations that run in a fair and just manner, exercise evaluation according to law, practise self-discipline, and bear corresponding legal responsibilities. 5. To Further Strengthen the leadership, organization and coordination over the Administration of Financial Creditor's Rights The People's Bank of China should attach great importance to the administration of financial creditor's rights in the structural reform of enterprises and take the initiatives in exchanging views with local people's governments and coordinating their actions in order to strengthen the leadership over the administration of financial creditor's rights. Safeguarding financial creditor's rights shall be treated as an important job in financial supervision by setting practical measures, promptly resolving problems emerging in the work, and reporting major issues, if found, to the State Council as soon as possible. Any branch of the People's Bank of China should, upon discovery of actions evading and rejecting financial creditor's rights within its jurisdiction, immediately impose a ban and report the case to the local people's government and the bank at the next higher level. The People's Bank of China should organize financial institutions concerned in checking up on accounts opened by enterprises in different names. Any financial institution should resolutely practise the fundamental deposit account system in strict accordance with the provisions of the People's Bank of China regarding account management and prevent restructured enterprises from evading and rejecting financial debts by opening accounts in different names. For those restructured enterprises that the People's Bank of China considers have evaded and rejected financial debts, all financial institutions shall not open accounts for them and nor provide services such as extending loans and settling accounts. 6. To Strengthen Publicity on Financial Laws and Promote the Understanding of Social Credit All localities and departments should make great effort at publicity on financial laws, raise the sense of financial safety in the whole society, and maintain the proper relationship of social credit. All local people's governments should lend support to people's courts in trying cases of disputes over financial claims and debts independently and impartially according to law, strengthen the cultivation of the sense and mentality of legality, and create a favourable environment for governing by law. Wide publicity should be given to enterprises that have accomplished the preservation and appreciation of state-owned and collectively-owned assets through being restructured according to law. Units and individuals that have caused the loss of credit assets as a result of illegal restructuring measures and taking advantage of restructuring to evade and reject financial debts should be dealt with sternly and made public by circulating a notice. Where violation of the provisions of this Circular has resulted in losses of financial creditor's rights, the person in charge of the unit concerned and persons directly responsible shall be investigated for their responsibilities in all earnestness. If crimes have been constituted, the violators should be transferred to the judicial organs and investigated for criminal responsibility according to law. Where a local people's government supports and winks at evasion and rejection of financial debts in the restructuring of enterprises, the leading official concerned shall be investigated for his responsibility. |
