Chinese State-owned Equity Transfer Legal Issues Research

In a very long period of time, our country always took a strict planned economy, using administrative measures to strengthen the management of state-owned enterprises, which resulted in a large number of integration of government administration with enterprise, severely suppressed the enterprise vitality, shackled enterprise development space. Since the reform and opening up, the old state-owned property management increasingly unable to meet the development needs of the new economic situation. Thus, China began to reform the structure of old state-owned enterprises property, the administrative power is desorbed from the management rights of enterprises, and the right to operate independently was given to the vast number of enterprises. In this reform model, the original large number of state-owned property was converted into the state-owned shares, which established the premise of state-owned shares into the market to trade. However, in the earlier period, due to the development of China’s market economy was still not perfect, China’s state-owned equity transfer management philosophy was lagging behind, not fully aware of the positive significance of the transfer of state-owned shares, just blindly identified state-owned shares transfer will result in a large number loss of state-owned assets. Thus, during this period, the transfer of state-owned shares were limited strictly in terms of policy, due to control the transfer of state-owned shares in the greatest degree, so as to achieve the purpose of preventing loss of state assets. However, this strict control policies, not only hindered the vitality of state-owned shares greatly, making state-owned shares to difficult to integrate into a major trend of the market economy and to difficult to achieve the diversification of its value, but also greatly weakened the state-owned shares dominant position in the state-owned property, making the state-owned assets become "dead assets", which not conducive to increasing the value of state-owned assets. Since the 1990 s, along with the rapid development of China’s market economy and the rise of the stock market, our country gradually realized the transfer of state-owned shares could support and limit the development of certain types of companies, could guide the rational flow of factors of production, could adjust the limited the rational allocation of resources, could effectively achieve the goals and policy objectives to adjust the industrial structure, optimize the structure of state-owned capital investment, then gradually relaxed restrictions on the transfer of state-owned shares, and developed a number of legal regulations for the transfer of state-owned shares in each period, in order to achieve the purpose of the state-owned equity transfer specification better. However, from the actual situation of the state-owned equity transfer practical point of view, the laws of the state-owned equity transfer is still have many deficiencies, resulting in many problems in the state-owned equity transfer process. Such as the huge loss of state assets in the state-owned equity transfer process because of the inadequate state-owned equity valuation mechanisms, state-owned enterprises integration of government administration with enterprise in the nature, lack of qualification of the transferee, the examination and approval procedures of chaos in the state-owned shares transfers, the regulatory body position not accurate in the state-owned shares transfers and so on. Chen Fa Shu VS Yunnan Hongta equity transfer dispute, which is known as "China’s first equity dispute," vividly exposed a series of problems in the current process transfer of state-owned shares. This article tries to analyze the actual case and combine with the current status quo of China’s legislation concerning the transfer of state-owned shares, to explore the problems in the process of our country state-owned equity transfer at this stage, and ultimately put forward my solution about these questions,because I wish I can take my modest contribution for perfecting our system of state-owned shares transfer.In this paper, the main structure is divided into five parts:The first part is the introduction, research background and research significance of this article made a brief description, introduced in this paper, using the main research methods in the process of writing and research difficulties existing in the writing process.The second part is a basic part of the legal analysis, mainly from the theoretical knowledge of Chinese state-owned equity transfer are introduced and analyzed. This section contains three section, the first section introduces the concept of the content is mainly state-owned equity transfer bid from the basic concept of the transfer of the current state-owned shares of China has a basic understanding. Section II describes the contents of the state-owned equity transfer mode, through the introduction of state-owned equity transfer mode, a clear transfer agreement means an important role in our current state-owned equity transfer process. The third section describes the differences between the state-owned equity transfer and general equity transfer, trying to distinguish between two different nature through the equity transfer, the transfer of state-owned shares to clarify the characteristics of their own existence, in order to better grasp of the current state-owned shares the transfer of the complexity and particularity that exist, thereby laying the foundation for the discussion below.The third part is made part of the problem. In this part, the author mainly in reality a very typical state-owned equity transfer dispute as a starting point, I hope through the analysis of the case, and to refine the current problems in our country in the process of state-owned equity transfer exist. In this section, the author introduces Mr Chen v Yunnan Hongta equity dispute the basic facts, and secondly based on the merits of the analysis, to extract the main focus of controversy in this case the two sides, and finally extracted from the bone of contention between the two sides in our current state-owned share transfer process of the existence of the approval body positioning is unclear, and the value of the approval process is not standardized assessment system is not perfect and so on, so as to lay the foundation for the following analysis of the problem.The fourth part is the analysis part of the problem. This part is the key part of this paper,which is mainly based on the third part of the case the focus of the parties to the dispute leads to the question, raised from the level of the main problems of the current system of state-owned equity transfer process in the presence of our country, and thus the existence of the problem for a more detailed analysis, thereby laying the foundation for the next part of the solution. This section includes the contents of three sections, the first section of the status quo of China’s major state-owned equity transfer were analyzed, including our current regulatory system of state-owned equity transfer, the transfer of state-owned shares of the approval process and the current hotly discussed because of the state-owned equity transfer caused Problems loss of state assets, in a bid by the current situation of China’s state-owned equity transfer analysis, we found the problem of state-owned equity transfer lies. Section II analyzes the main problems of the existence of state-owned equity transfer. In this section, the author mainly based on China’s current legal regime governing the transfer of state-owned shares, on the basis of the legal system are discussed, based on the results of state-owned equity transfer of the main problems that exist. Section III is to undertake, mainly discusses the adverse effects of the current system of state-owned equity transfer problems arising.The fifth part is the solution of the problem. According to our country present stage of the defects in the system of state-owned equity transfer, put forward in the process of state-owned equity transfer must be clear for examination and approval of state-owned equity transfer main body positioning, must standardize the procedures of the transfer of state-owned equity, and state-owned equity value evaluation mechanism must be perfected.