企业兼并有关财务问题的暂行规定
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（Promulgated by the Ministry of Finance on， and effective as of， 20 August 1996.） 1. These regulations are formulated in accordance with the PRC， Company Law， the Financial Affairs of Enterprises General Provisions and other relevant national laws and regulations in order to promote the regulation of structures within enterprises and standardize the financial activities of enterprise mergers by takeover. 2. The term “merger by takeover” as used in these regulations， refers to one type of enterprise activity that， through purchase or other compensatory means obtains the property rights of another enterprise， causing the latter enterprise to forfeit its legal person status or， although retaining its legal person status， alters the main part of its investment policy. Where the assets of the enterprise being taken over are of equal value to its debts， the enterprise taking over shall assume responsibility for the debts of such enterprise. Following approval， the enterprise taking over may obtain the assets of the enterprise being taken over by transfer. 3. Before an enterprise takes over and merges or is taken over and merged with another enterprise， such enterprises shall， in accordance with regulations， present a written report to the government department-in-charge and also file a report with the financial-authority-in-charge for mergers which will include relevant information on the financial affairs of the enterprises. The financial authority-in-charge shall examine the report for approval. Each level of the financial authority-in-charge must carry out all aspects of work relating to the administration of the financial affairs and supervision of enterprise mergers by takeover in a conscientious manner and actively take part in the entire process of enterprise mergers by takeover by discharging the following duties： （1） Take part in the examination and approval of the overall plan of enterprise mergers； （2） Handle the examination and approval of the results of the assets check and financial affairs of the enterprise being taken over； （3） Handle in conjunction with the Department for the Administration of State Assets examination and approval of the results of all losses of assets during assets assessment； （4） In conjunction with the Department for the Administration of State Assets， examine and approve capital fund mergers and matters related to the finances of the enterprise being taken over； （5） In conjunction with the Department for the Administration of State Assets， takeover such income that should be taken over by the higher authorities that is derived from the assignment of the property rights of the enterprise being taken over and other State-owned assets derived from the income of its business operations； and （6） Carry out management， supervision and inspection of other financial activities during the course of a merger by takeover. 4. Where an enterprise that is being taken over is undergoing ratification， such enterprise shall carry out a comprehensive check and registration of all its fixed assets， floating assets， invisible assets， long-term investments and all other assets. All loss of assets as well as creditor's rights and debts must be comprehensively checked and verified. On the basis of this， the enterprise being taken over must draw up a list of incurred assets and debts， a profit and loss balance sheet and a profit allocation sheet with an attached property inventory which shall be reported to the financial authority-in-charge for examination and approval. 5. On the basis of such property inventory the enterprise being taken over shall， in accordance with national regulations and through the offices of a legally-recognized property evaluation organization， fix a price on its property value and report the price to the Department for the Administration of State Assets for examination， approval and confirmation and undertake its financial accounting on the basis of such evaluation. 6. During the process of the property check and asset appraisal， the enterprise being taken over shall put in order all asset items， such as checked surplus， checked losses， damages and retired assets and include them in its current profit and loss balance sheet. Hidden losses， losses in the accounts ledger and finished products checked as losses that have not been handled shall， after they have been reported to the financial administration responsible for mergers for examination and approval， be balanced by surplus funds from the public accumulation fund and capital public accumulation fund. Where funds are insufficient， the remaining part shall be written off through the enterprise's capital. During the process of carrying out confirmation of the results of an enterprise's asset appraisal， the Department for the Administration of State Assets shall handle asset losses and other financial affairs on the basis of the recommendations for examination and approval put forward by the financial authority-in-charge. Where an enterprise has not undergone examination and approval by the financial authority-in-charge， no losses may be declared void after verification. 7. The base price for the assignment of the property rights of an enterprise being taken over shall be based on the examination and approval confirmation of the net value of the appraised assets. A reasonable appraisal and decision shall be made after taking into account the status of the staff and workers， assets， creditor's rights， debts and other factors of the enterprise being taken over. The concluding price for the assignment of the property rights of the enterprise being taken over must be confirmed by the financial authority-in-charge working in conjunction with the Department for the Administration of State Assets. Where the concluding price for the assignment of property rights is lower than the base price， this must be reported to the financial authority-in-charge and the Department for the Administration of State Assets for examination， verification and approval. 8. Where， following approval， a method of transfer is adopted in order to obtain the assets of the enterprise being taken over， transfer procedures concerning enterprise property rights and financial systems must be handled. Where enterprises in mergers by takeover are of the same financial systems such mergers shall be the responsibility of the same level of the Department for the Administration of State Assets and the financial authority-in-charge. Where enterprises in such mergers are not of the same financial systems such mergers shall be the responsibility of the next higher level of the Department for the Administration of State Assets and the financial authority-in-charge. 9. On conclusion of the assignment of the property rights of an enterprise being taken over， the latter shall draw up a financial report of the date of conclusion of the merger by takeover to be reported to the financial authority-in-charge for the record. The enterprise taking over， shall on acceptance of the assets， creditors rights and debts of the enterprise being taken over， promptly enter all such items in its own accounts and draw up a financial report of the date of conclusion of the merger by takeover and send it to the financial authority-in-charge for examination and approval. 10. Where the legal person status of the enterprise being taken over is cancelled， and there is a difference between the cost of the assignment of property rights paid by the enterprise taking over and the net assets of the enterprise being taken over， the enterprise taking over must in good faith declare this as invisible assets and， in accordance with regulations， pay it off in monthly units over a set time period beginning on the month following the date of conclusion of the merger. Where there is no stipulated time limit， payment may be spread over 10 years. Where the enterprise being taken over retains its legal person status， the money paid by the enterprise taking over may be dealt with as a long-term investment. 11. In general， the enterprise taking over shall pay in full the costs of the purchase on the day of completion of the merger procedures. Where the costs are comparatively large and a lump sum payment may cause difficulties， the cost of the purchase may， on the precondition of a qualified person agreeing to act as guarantor， be paid in instalments over a time-period not exceeding three years. The money paid for the purchase on the day of the conclusion of the agreement must not be less than 50 per cent of the agreed cost of the assignment of the property rights of the enterprise being taken over. 12. The cost of the assignment of the property rights of the enterprise being taken over， the net income from the interest instalments paid by the enterprise taking over minus clearing assessment and notarization fees and the profits made from State-owned assets during the merger process must， in accordance with the implementation of the Administration of Proceeds Derived from State Assets in Takeovers Procedures （[1994] No. 295） promulgated by the Ministry of Finance， the State Administration for State-owned Assets， and the People's Bank of China； and the Questions Concerning the Administration of Proceeds Derived from State Assets in Takeovers Explanations Circular （[1995] No. 31） promulgated by the Ministry of Finance， be received by the financial authority-in-charge of the enterprise being taken over and the relevant department in charge of assets， and channelled into the administration of the budget and used as capital for re-investment. 13. Where strong State-owned enterprises takeover struggling State-owned industrial enterprises in cities in the “capital structuring and improvement” experimental scheme， as well as those enterprises which wholly accept the property of bankrupt enterprises， they shall assume a programme to confirm and clear the debts of the bankrupt enterprise and make arrangements for all the employees of the bankrupt enterprise. Such enterprises may， in accordance with the provisions drawn up by the People's Bank of China， the State Economic and Trade Commission and the Ministry of Finance in the Questions Concerning the Handling of Relevant Bank Loans and Interests and Encouragement and Support after Takeover of Struggling State-owned Industrial Production Enterprises by Strong State-owned Enterprises in the 18 Experimental Cities Circular （Bank Issue [1995] No. 130）， enjoy interest-free or no-interest special policies. 14. Where the enterprise being taken over is part of a policy on losses， the enterprise taking over may， after reaching an agreement on the assignment of property rights， receive the ratified subsidies granted to the enterprise being taken over under the policy on losses. Such subsidies shall be ratified and granted to the enterprise taking over by the corresponding level of the financial authority-in-charge according to the status of the production and operation of the enterprise taking over. 15. Where， on completion of the merger， the enterprise being taken over loses its legal person status， operations shall continue under the financial affairs administration of the enterprise taking over. Where the enterprise being taken over retains its legal person status but changes its investment focus， the administration of its financial affairs shall be implemented in line with the application of this focus. 16. Where State-owned enterprises takeover or are taken over by other enterprises， these provisions shall apply. Where enterprises operating on whatever systems merge， such enterprises may refer to these Provisions. 17. The Ministry of Finance will be responsible for the interpretation of these Provisions. 18. These Provisions shall be effective as of the date of promulgation. The Ministry of Finance， Handling of the Financial Matters of Mergers of State-run Enterprises Tentative Provisions （Cai Gong Zi [1989] No. 131） are simultaneously repealed. |
