1. Problem import

Mixed ownership economy refers to the mixed ownership economy of cross-shareholding and integration of state-owned capital, collective capital and non-public capital, which is an important form of realization of China's basic economic system. The reform of mixed ownership of state-owned enterprises has always been a hot spot in the market, and in the integration of various types of capital, it may involve the transfer of state-owned equity without compensation. For example, if Company A, a state-controlled listed company, its controlling shareholder, Company B, is a wholly state-owned company, and Company B intends to transfer its equity interest in Company A to Company C, another wholly state-owned company outside the province. At this time, the natural person Ding, the minority shareholder of Company A, requested to exercise the right of pre-emption on the grounds that, according to paragraph 3 of Article 71 of the Company Law, the shareholders of a limited liability company transferred their shares, and other shareholders had the right of pre-emption. So, in the case of the transfer of state-owned shares without compensation, do other shareholders enjoy the right of pre-emption?

Second, problem analysis

(1) The conditions for shareholders to exercise their pre-emptive rights

According to paragraph 3 of Article 71 of the Company Law: "Equity transferred with the consent of the shareholders shall have the right of pre-emption to other shareholders under the same conditions. ”

That is, the shareholders need to meet two conditions to exercise the pre-emptive right:

1. Equity transfer occurs

2. Same conditions as buyers other than shareholders

According to the second paragraph of Article 2 of the Measures for the Transfer of State-owned Property Rights without Compensation, a wholly state-owned company as a party transferred or transferred out shall comply with the relevant provisions of the Company Law. At the same time, Article 5 of the Measures stipulates that the transfer of state-owned equity of a limited liability company shall also follow the relevant provisions of the Company Law. However, in the Company Law, in Chapter II, Section 4, the special provisions on wholly state-owned companies, there are no specific provisions on the transfer of state-owned shares without compensation.

(2) Whether the gratuitous transfer of equity in a state-owned enterprise is an "act of equity transfer"

According to Article 51 of the Law of the People's Republic of China on State-owned Assets of Enterprises (2008): "The transfer of state-owned assets as used in this Law refers to the transfer of rights and interests formed by the state's contribution to an enterprise to other units or individuals in accordance with the law; Except for the transfer of state-owned assets without compensation in accordance with state regulations. ”

According to Article 2 of the Interim Measures for the Administration of the Free Transfer of State-owned Property Rights of Enterprises (2005): "The transfer of state-owned property rights of enterprises without compensation as used in these Measures refers to the gratuitous transfer of state-owned property rights between government agencies, public institutions, wholly state-owned enterprises and wholly state-owned companies. Where a wholly state-owned company is transferred or transferred out of the party, it shall comply with the relevant provisions of the Company Law of the People's Republic of China. ”

According to the first paragraph of Article 2 of the Guidelines for the Free Transfer of State-owned Property Rights of Enterprises issued by the State-owned Assets Supervision and Administration Commission of the State Council on February 16, 2009, a one-person limited liability company invested and established by a state-owned institution and a one-person limited liability company established by its reinvestment may also act as the transferee or transferee.

According to Article 2 of the Provisions on the Procedures for the Free Transfer of State-owned Assets of Enterprises (1999), "the gratuitous transfer of state-owned assets of enterprises referred to in these Provisions refers to the gratuitous transfer of all or part of the state-owned assets of an enterprise between different state-owned property rights subjects due to the reform of the management system, adjustment of organizational form and asset reorganization. Article 4: "The transfer of state-owned assets of enterprises without compensation shall be handled by the financial (state-owned asset management) departments at all levels. ”

According to Article 1 of the Reply of the Supreme People's Court on the Acceptance of Disputes Arising from the Government's Adjustment and Transfer of State-owned Assets of Enterprises: "Disputes between relevant state-owned enterprises arising from the adjustment and transfer of state-owned assets of enterprises by the government and its subordinate competent departments shall be handled by the government or its state-owned asset management departments." Where a state-owned enterprise files a civil lawsuit with the people's court as a party, the people's court shall not accept it. Article 2: "If a party is dissatisfied with the decision of the government and its subordinate competent departments to adjust or transfer the state-owned assets of an enterprise in accordance with relevant administrative regulations, and files an administrative lawsuit with the people's court, the people's court shall accept it if it meets the statutory requirements for prosecution." ”

According to the People's Court Daily on June 14, 2012, "The Handling of Disputes Arising from the Transfer of State-owned Assets of Enterprises by Government Departments - Nanjing Intermediate People's Court Ruling Great Wall Company v. Building Materials Company and Other Loan Contract Disputes": "As the agent of state-owned assets, the transfer of state-owned assets of enterprises through asset restructuring is an administrative act, so that state-owned assets are transferred between enterprises without compensation. It breaks the principle of relativity of civil acts and has an impact on the interests of third parties. However, since the gratuitous transfer fulfills the examination and approval procedures of the competent government departments, it will have effect on the world. ”

Accordingly, we believe that the transfer of state-owned property rights without compensation is a special form of transfer of state-owned assets, which belongs to a special form of transfer of property rights and interests, but it is different from the transfer of property on the basis of consideration, this act is not an act of equal transaction between independent civil subjects, but an administrative act of performing the management right of the state-owned asset management department on state-owned property rights, and does not follow the commercial principle of fairness, equivalence and compensation between market entities. The gratuitous transfer of equity in a state-owned enterprise is an administrative act, not an "equity transfer" in the civil sense.

(3) Same conditions as buyers other than shareholders

According to the Supreme People's Court (2012) Min Kang Zi No. 32 "Civil Retrial Civil Judgment of Ding Xiangming and Qu Feijian Other Civil Cases", the Supreme People's Court held that "the pre-emptive right of shareholders is a priority right enjoyed by shareholders over buyers other than shareholders, so the pre-emptive right of shareholders is that the proposed transfer of shareholders and persons other than shareholders have reached an agreement on the transfer of shares, and this agreement includes not only the expression of intention to transfer externally. The full consideration should also include the amount of the price, the time of payment, the payment method, etc. That is, the same conditions as buyers other than shareholders mean that other shareholders are willing to purchase shares at the same consideration as buyers other than shareholders, including the amount of price, time of payment, payment method, etc.

The purpose of the gratuitous transfer of state-owned assets is to adjust and rationalize the state-owned capital operation system, achieve rational allocation of economic resources, and adjust the layout of the state-owned economy. The mission of the assigned party is also significant. In addition to meeting the qualifications of the entity, the selection of the transferred party also requires various other management and operation conditions that match the realization of the purpose of the transfer. Therefore, whether from the perspective of entity qualifications or other conditions, it is difficult for other shareholders to meet the same conditions as being classified as entities. If the same conditions do not exist, there can be no pre-emptive right.

Therefore, in the case of a gratuitous transfer of equity in a state-owned enterprise, other shareholders do not have the same conditions as buyers other than shareholders.

III. Conclusion

In summary, interested parties to the gratuitous transfer of equity in state-owned enterprises do not have the right to exercise the right of pre-emption.

(This article is translated by software translator for reference only.)