Lawyers to undertake state-owned enterprise restructuring and related corporate governance business operational guidelines

目    录

One chapter general rules

Chapter II Restructuring of State-owned enterprises

Section 1 Due Diligence and Preparation of the Due Diligence Report

Section 2 Preparation of "Restructuring Plan" and "Employee Resettlement Plan"

Three sections are submitted for approval and record

Section 4 Transfer of Property rights and property rights transactions

Section five policy document formulation and reform counseling

Section 6 Industrial and Commercial Registration

Chapter Three related corporate governance business

Chapter four legal opinions

Five chapters supplementary provisions

One chapter general rules

1 Purpose

To guide lawyers to undertake state-owned enterprise restructuring and related corporate governance business，Standardize lawyers' practice，Ensure that lawyers perform their duties in accordance with the law，Give full play to the role of lawyers in the reform of state-owned enterprises and corporate governance，In accordance with the Company Law of the People's Republic of China (hereinafter referred to as the "Company Law"), the Implementation Opinions on Further standardizing the Reform of State-owned Enterprises (hereinafter referred to as "Document No. 60"), the Interim Measures for the Administration of the Transfer of State-owned Property Rights of Enterprises (hereinafter referred to as "Decree No. 3") and other relevant laws, regulations, rules and the State's normative policies on standardizing the reform of State-owned enterprisesThe provisions of the document (hereinafter referred to as "normative Policy document")，Formulation of these Guidelines。

2 Definitions and business scope

2.1 The lawyers referred to in these Guidelines undertake the restructuring of state-owned enterprises and related corporate governance business，It refers to the law firm accepting the entrustment of restructuring enterprises, property rights holders and other parties to the restructuring，Assign lawyers to provide clients with legal services related to the restructuring of state-owned enterprises，Assist the restructured enterprises to establish and improve the modern enterprise system and corporate governance structure。

2.2 Lawyers undertaking state-owned enterprise restructuring business includes but is not limited to the following scope:

2.2.1. Conduct due diligence and prepare the Due Diligence Report;

2.2.2. Assist property rights holders or restructured enterprises to complete the work of defining state-owned property rights, and handle disputes concerning state-owned property rights on behalf of property rights holders or restructured enterprises;

2.2.3 Preparation of "Restructuring Plan", "employee resettlement plan", involving the transfer of state-owned property rights, the preparation of "State-owned property rights transfer plan";

2.2.4. Prepare various normative legal documents, participate in negotiations, and review materials or legal documents provided by other transaction parties;

2.2.(5) Issue legal Opinions on the "Reform Plan" and "State-owned Property Rights Transfer Plan" submitted for approval by property rights holders or restructuring enterprises in accordance with the law, and express opinions together with the relocation of employees;

2.2.6. Witness the staff (representative) assembly, the board of directors, and the shareholders (large) meeting of the restructured enterprises and issue witness opinions, and assist in completing various internal audit and approval procedures of state-owned enterprises;

2.2.7. Assist in the implementation of the restructuring plan and the state-owned property rights transfer plan, complete the property rights transaction, and assist the company or enterprise to handle the industrial and commercial change registration procedures。

2.3 Lawyers undertaking related corporate governance business including but not limited to the following:

2.3.1. Assist enterprises to improve their corporate governance structure after restructuring;

2.3.2. Assist the restructured corporate enterprises to establish rules and regulations;

2.3.3. Assist the reformed corporate enterprises to improve the incentive and restraint mechanism;

2.3.4. Assist the restructured corporate enterprises to improve the construction of the company's director integrity system;

2.3.5. Assist the restructured corporate system to improve the external governance system and effectively prevent legal risks。

Three special items

3.1 The purpose of this guide is to provide lawyers with experience in handling SOE restructuring and related corporate governance business, rather than mandatory provisions, for lawyers' reference in practice。

3.2 Lawyers engaged in state-owned enterprise restructuring and related corporate governance business, in accordance with laws, regulations, rules and normative policy documents, within the scope of the client's authorization, independent work。

3.In the name of the law firm, the lawyer and the client enter into a written "Legal Service Contract", which clearly stipulates the entrusted matters, contractors, the way and scope of providing services, the rights and obligations of both parties and the amount of fees。

Lawyers can participate in the whole process of state-owned enterprise reform and corporate governance as the main coordinator，As authorized by the principal，Overall leadership in the activities of the restructuring Working Group，Arrange related work of accounting firms, asset appraisal agencies and other intermediaries，Coordinate the activities of intermediaries，To give full play to the role of lawyers in state-owned enterprise reform and corporate governance。

3.4 When lawyers engage in legal services related to the restructuring of state-owned enterprises and related corporate governance business, they may refer to these Guidelines。

Chapter II Restructuring of State-owned enterprises

Section 1 Due Diligence and Preparation of the Due Diligence Report

Article 4 Due diligence as referred to in these Guidelines，Specifically, legal due diligence，That is, in the process of restructuring state-owned enterprises，Lawyers based on the restructuring of the restructured enterprises, property rights transactions and other plans，Through the collection of relevant materials, documents, information and other facts，Investigate, research, analyze and judge from the perspective of legal or normative policy documents。

Article 5 Lawyers should follow three basic principles when conducting due diligence:

5.1 Independence principle。Due diligence conducted by lawyers shall be independent of the will of the client and independent of other intermediaries such as auditing and evaluation。

5.2 Principle of Prudence。During the due diligence process, lawyers should exercise prudence and maintain reasonable doubt。

5.3 Professional Principles。In the process of due diligence, lawyers should make professional judgments from a legal perspective based on their own advantages。

5.4 Principle of avoiding conflict of interest。Lawyers should perform the duty of conflict of interest review，The information obtained should not be used for any benefit during or after the provision of the services，Nor should it be in the course of providing services，Representing any litigation or non-litigation matters with entities or individuals who have a direct or indirect conflict of interest with a property right holder or a restructured enterprise。

Article 6 The lawyer shall carry out due diligence, and the subject of investigation shall be required to provide the lawyer with authentic and complete original materials or copies consistent with the original review within a reasonable or agreed time。

Lawyers learn about the situation through oral questioning of the relevant person under investigation or on-site investigation of the matter under investigation。Conversation records, scene investigation records and other documents produced by lawyers cannot be used as the basis for the production of the Due Diligence Report unless there is a written guarantee or written proof from the relevant personnel or departments。

Article 7 Due diligence conducted by lawyers should generally involve the following matters:

7.The verification of the "establishment, evolution and change" shall include but not be limited to the following documents (supplemented by the inquiry information of the enterprise's industrial and commercial registration if necessary) :

7.1.1 Business license of the restructured enterprise;

7.1.2. The articles of association of the restructured enterprise changed over time and the articles of association currently in effect;

7.1.3. Approval from competent government departments related to the establishment of restructured enterprises;

7.1.4 Approvals, permits or authorizations related to the operation of the business;

7.1.5 The qualification certificate obtained by the enterprise, such as the business operation license;

7.1.Application and approval documents for the change of registered items of the enterprise;

7.1.7 Audit and evaluation reports;

7.1.Minutes and resolutions of the shareholders' meeting and the board of directors;

7.1.9. Certificate of enterprise branches and foreign investment;

7.1.10 Tax registration certificate and relevant tax incentives description and approval;

7.1.11 Foreign exchange registration certificate;

7.1.12. Customs registration certificate;

7.1.13 Relevant supporting documents of preferential policies obtained by the enterprise;

7.1.14 Other supporting documents。

7.The verification of the "basic operating structure" shall include but not be limited to the following documents:

7.2.A description of the current share capital structure of the enterprise or the capital contribution of the investor;

7.2.2. Documents related to the current management structure and salary system of the enterprise;

7.2.3 Documents related to the internal management system and risk control system of the enterprise。

7.The verification of the "shareholding situation" shall include but not be limited to the following documents:

7.3.1. Supporting documents relating to the ownership structure of the enterprise and its evolution process;

7.3.(2) There is no proof of pledge or other forms of obstacles to the exercise of rights;

7.3.3. Supporting documents relating to the method and amount of contribution of the shareholder;

7.3.(4) The property ownership certificate of the shareholder's contribution of non-monetary property and the registration document of ownership change。

7.The verification of "tangible assets" shall include, but not be limited to, the following documents:

7.4.A list of property rights and important equipment of the enterprise and its affiliated institutions;

7.4.(2) Documents of the enterprise and its subsidiaries relating to the rental of houses and important equipment;

7.4.Documents certifying the machinery and equipment (vehicles) of the enterprise and its subsidiary institutions for customs exemption;

7.4.4. List of other tangible assets of the enterprise and ownership documents。

7.The verification of "land use right and other intangible assets" shall include but not be limited to the following documents:

7.5.A list of intellectual property rights owned by the enterprise and its subsidiaries on intangible assets such as software and products, including patents, trademarks, Copyrights and other intellectual property rights;

7.5.All registration certificates and agreements relating to intellectual property rights;

7.5.3. Land use rights certificate and land lease agreement of the enterprise and its subsidiary organizations;

7.5.Major intellectual property or proprietary technology agreements signed by the enterprise and its subsidiaries。

7.The verification of the "major contracts" signed or related by the restructured enterprises shall include but not be limited to the following documents:

7.6.1 Any contract relating to the shareholding of the enterprise and its subsidiaries;

7.6.Any mortgage, pledge, lien or other security interest or other contract relating to limitation of interest created in the movable or immovable property of the enterprise and its subsidiaries;

7.6.Contracts related to the merger, division, merger, closure, liquidation and bankruptcy of the enterprise and its affiliates;

7.6.All significant service agreements signed by the enterprise and its subsidiaries;

7.6.5. All significant licensing agreements, licensing arrangements and conditional sales contracts signed by the Enterprise and its subsidiaries;

7.6.Contracts for the supply of all important energy and raw materials or essential goods signed by the enterprise and its subsidiaries;

7.6.Major insurance contracts signed by the enterprise and its subsidiaries;

7.6.Any material documents relating to a merger, combination, reorganization, acquisition or sale signed before the restructuring of the enterprise and its subsidiaries;

7.6.Other contracts signed by the enterprise and its subsidiaries with major customers that have a significant impact on its operation;

7.6.10 Other important contracts, such as joint venture contracts, land acquisition contracts, large loans or lending contracts, major contracting operations, leasing operations or investment participation/holding and profit sharing contracts or agreements。

7.The verification of the "major creditor's rights and debts" of the restructured enterprise shall include but not be limited to the following documents:

7.7.The authenticity and integrity of the company's receivables and other receivables;

7.7.2. Whether the payables are related to the business, and whether there are abnormal liabilities;

7.7.3 Whether there are any other contingencies;

7.7.(4) Whether or not mortgage guarantees are provided for creditor's rights and debts and their specific circumstances;

7.7.5. There are no disputes that may be caused by creditor's rights and debts。

7.8 Lawyers need to investigate "major legal disputes, administrative penalties, etc." involved in restructuring enterprises, should include but not limited to the following documents:

7.8.1. Details of the company's outstanding litigation, arbitration, administrative penalties, claims and investigations or inquiries by government departments;

7.8.(2) The situation in which the enterprise violates or is informed of the violation of laws, regulations and notices concerning health, fire prevention, construction, planning, safety and environmental protection;

7.8.3. Facts known to the enterprise that may involve litigation, arbitration, administrative penalties, claims, investigations or inquiries by government departments in the future。

7.9 Lawyers need to investigate the "basic situation of personnel" of the restructured enterprise, should include but not limited to the following documents:

7.9.1. The basic situation of senior management personnel of the enterprise;

7.9.2. Sample of the labor contract signed by the enterprise and its employees;

7.9.The organization of the enterprise's trade union and the collective labor contract or agreement signed with the trade union;

7.9.4. Employee welfare policy;

7.9.5. Enterprises pay social insurance premiums。

7.According to the reform plan, characteristics and requirements, the lawyer may also ask the client and the subject of the investigation to provide other types of relevant documents or information。

Article 8 When conducting due diligence, lawyers shall pay attention to the following issues:

8.1. The lawyer shall maintain good communication with the client and the subject of investigation, so that the problems found by the lawyer in the investigation process and the solution of the problem can be timely feedback to the client。

8.2 Lawyers should pay attention to cooperation with other intermediaries。Lawyers shall cooperate with other intermediaries in their work to ensure the smooth completion of the restructuring project。

8.3. When conducting due diligence, lawyers should carefully review and compare relevant materials。If it is found that there are contradictions or inconsistencies in the relevant information, the client shall be asked to verify it, and other intermediaries can be asked to assist in the investigation, or lawyers can investigate again to ensure the accuracy of due diligence。

8.4 When carrying out due diligence, lawyers should pay attention to collecting complete investigation data, and should clearly state in relevant legal documents if documents and evidence that are important to the restructuring or the transfer of property rights cannot be obtained due to objective reasons。

8.5. When conducting due diligence, lawyers should prepare working papers to prevent practice risks。The working paper shall be true, complete, well documented and suitable for long-term storage。

8.Without the consent of the property right holder or the restructured enterprise, the lawyer shall not disclose the relevant information learned to any third party during or after the service is provided, and shall fulfill the confidentiality obligation。

Article 9 Preparation of Due Diligence Report

The Due Diligence Report generally includes the following:

9.1.1 Scope and purpose。Clarify the scope of due diligence work carried out by lawyers and the purpose of issuing due diligence reports;

9.1.2 Rules of practice for lawyers。Whether the lawyer issues work reports in accordance with relevant laws, regulations, rules and normative policy documents, according to the authorization of the client, and in accordance with the professional standards, ethics and diligence recognized by the lawyer profession;

9.1.3. Working procedures of lawyers。The main working methods, working hours and working procedures of lawyers in the process of conducting due diligence;

9.1.4 Relevant Basis。All written materials and documents, conversation records, scene investigation records, etc. obtained by lawyers;

9.1.5正文。The content of the text should be consistent with the work procedure of the lawyer and the scope of the investigation list issued by the lawyer, such as company profile, business situation, asset status, intellectual property rights, litigation and punishment, etc. The text can confirm, analyze and explain each specific problem respectively;

9.1.6结尾。The lawyer gives a concluding opinion on the results of due diligence。

Section 2 Preparation of "Restructuring Plan" and "Employee Resettlement Plan"

Article 10 Preparation of the Reform Plan

10.1 Lawyers should prepare the reform plan in accordance with national laws, regulations, rules and normative policy documents, deal with the relationship between reform, development and stability, and properly solve the problems encountered in the reform process。

10.The restructuring plan generally includes the following contents:

10.2.1. Basic information of the restructured enterprise and the parties to the proposed investment (history, main business, personnel structure, financial status, operation in recent years, organizational structure chart, etc.);

10.2.2. The purpose, necessity and feasibility of the reform;

10.2.3. Development prospect and planning of the enterprise after restructuring;

10.2.4. Basic principles of reform;

10.2.5. The form of restructuring to be adopted;

10.2.6. Methods and conditions for the transfer of state-owned property rights, disposal of assets and debts;

10.2.7. Staff placement;

10.2.Handling of relations among party, labor and league organizations;

10.2.9 Equity setup and corporate governance structure;

10.2.10. Organization and leadership of restructuring work;

10.2.11 Reform implementation procedures and steps。

10.3 In the case of equity Settings involved in the reform plan, lawyers should pay attention to the following issues when deciding on state holding, participation or withdrawal according to whether it is in the key industries and key areas of the country:

10.3.1 Industries involving national security and economic security, natural monopoly industries, industries providing important public goods and services, resource industries and the main business of two types of enterprises, namely pillar industries and backbone enterprises in high-tech industries，State-owned economy should continue to exert its control and influence，During the equity restructuring，State-owned shares should occupy the relative holding position in principle;

10.3.2 According to the size of the decision should adopt the overall reform or the separation of the main and auxiliary industries reform。After the implementation of the subsidiary industry reform, the shareholding ratio of state-owned major shareholders cannot exceed 75% in principle, and lawyers should assist the restructuring enterprise to prepare the equity restructuring plan on the basis of listening to the state-owned assets supervision agency and its funded enterprises, the parties to be funded and the employees of the restructured enterprises。

10.4 Where the restructuring plan involves "disposal of assets and creditor's rights and debts", lawyers should pay attention to the following issues:

10.4.1. Accept the entrustment, and formulate the creditor's rights and debts disposal plan according to the restructuring purpose of the property right holder and the specific situation of the restructured enterprise on the basis of property verification and financial audit;

10.4.2. Restructuring enterprises are required to truthfully inform the outstanding claims and debts, and if the financial institutions among the creditors have objections or reservations, they should explain the impact of the financial claims on the restructuring;

10.4.3 If contingent liabilities or ongoing litigation, arbitration and enforcement of claims and debts are involved, the impact of contingent liabilities and litigation and arbitration matters on the reform should be highlighted。

10.5 In the process of restructuring of state-owned enterprises, if cash compensation is converted into equity compensation, lawyers should pay attention to the following matters:

10.5.(1) The choice of equity compensation shall be voluntary, and employees shall not be forced to choose on the condition of retaining their jobs;

10.5.If the number of employees is large, it should be suggested to separate the voting rights of employees from the right to distribute dividends in the form of trust, strengthen the right to distribute dividends, dilute the voting rights, and realize the concentration of voting rights through trustees, so as to improve the level of corporate governance and decision-making efficiency。

Article 11 Preparation of the Employee Resettlement Plan

11.1 Lawyers should be familiar with the Labor Law and relevant laws, regulations, rules and normative policy documents when participating in the process of restructuring and reorganization of state-owned enterprises。

11.2 The lawyer shall help the restructuring enterprise to establish the labor relationship with the employees in accordance with the relevant provisions of the Labor Law, establish a market-oriented mechanism for the independent employment of the enterprise and the independent employment of the workers, and properly arrange the employees。

11.3. Lawyers should prevent the parties concerned from taking advantage of the reform to infringe on the interests of employees。At the same time, lawyers should also carefully deal with various problems in the reform, avoid intensifying conflicts, and assist enterprises and government organs at all levels to maintain social stability。

11.4 After accepting the entrusting of the property right holder or the restructured enterprise, the lawyer shall advise the client to listen to the opinions of the trade union or the employee (representative) assembly of the enterprise on any issue involving the legitimate rights and interests of the employee。

11.5 Lawyers shall, as far as possible, require due diligence on employee issues before assisting property ownership units or restructured enterprises in preparing relevant restructuring plans。When conducting due diligence, lawyers shall, in accordance with the relevant requirements of Chapter II, Section 1 of this Guideline, eliminate all kinds of interference, carefully collect and review all materials, and ensure the independence, authenticity and accuracy of due diligence。

11.6 The lawyer should first understand the company's preliminary views on the restructuring matter, and based on this, find the focus of due diligence:

11.6.1 The lawyer should know whether the restructuring of the enterprise will result in the transferor no longer having a controlling position。If state-owned shares do not hold a controlling position in the enterprise after restructuring or reorganization, lawyers should pay special attention to understand the debts such as unpaid wages, medical expenses, misappropriation of employees' housing provident fund and unpaid social insurance premiums when conducting due diligence on the situation of relevant employees;

11.6.2 The lawyer should know what kind of arrangement the restructured enterprise intends to take。If the transferor wants to replace the employee status of the enterprise owned by the whole people through one-time compensation, the lawyer should require the restructuring enterprise to sort out and state the basic information of all the employees, especially the continuous working hours of the employees in the restructuring enterprise, so as to calculate the employee resettlement costs in the next step。

11.7. During due diligence, lawyers should pay attention to collecting and studying the original policy documents and rules and regulations of the restructured enterprise;Review the minutes and resolutions of the staff (representative) assembly;Review samples of collective contracts, labor contracts and related agreements;Review existing or ongoing labor dispute mediation, arbitration or litigation documents，It also requires restructuring enterprises to provide basic information of employees and explanations of social insurance and housing provident fund payment for employees。

11.8 In the due diligence on the basic information of employees provided by the restructured enterprise, the lawyer should specifically understand the following:

11.8.(1) The number of employees, their working hours, their continuous working hours in the restructured enterprise, their salaries, and the basic information of their positions and positions;

11.8.2. The basic situation of employees who are not on the job (including internal retirement, secondment, retention without pay or diversion in any other form);

11.8.3. Whether the labor contract signed between the restructuring enterprise and its employees violates the contents or provisions of the law;

11.8.4. Whether the restructured enterprise is in arrears of employee wages or in arrears of social insurance and housing provident fund;

11.8.5. Work-related injuries and occupational diseases of employees;

11.8.6. Whether there has been or may be arbitration or litigation between the employees and the restructured enterprise;

11.8.The relevant welfare system that may be affected or changed after the reform;

11.8.8 Whether the labor discipline and rules and regulations of the restructured enterprise comply with the relevant provisions of the Labor law。

11.9. The lawyer shall advise the enterprise to correct the violation of labor laws and regulations by the restructuring enterprise in a timely manner。

11.10 The lawyer should help the restructuring enterprise draft the employee resettlement plan on the basis of due diligence。The employee resettlement plan shall generally include the following contents:

11.10.1. Formulate the guiding ideology, principles and policy basis of the employee resettlement plan;

11.10.2. Personnel status of the enterprise and opinions on relocation;

11.10.3. Methods for changing, rescinding and re-signing labor contracts;

11.10.4. Methods for the payment of economic compensation to employees who terminate labor contracts;

11.10.5. Continuity of social insurance relationship;

11.10.6. Measures to deal with debts such as wages and collection funds of employees in arrears and social insurance premiums unpaid by enterprises。

11.11 In the case of an enterprise with a transfer of property rights, especially one in which the state-owned shares no longer hold a controlling position after the transfer of property rights, the lawyer shall urge the enterprise to submit the employee settlement plan to the employee (representative) assembly for discussion, and request the enterprise to assist the employee (representative) assembly to vote for the employee settlement plan as required by law。When drafting the contract for the transfer of state-owned property rights of the restructured enterprise, the lawyer shall include the content of the employee resettlement plan, and the resolution or decision passed by the staff (representative) assembly as an annex, and submit it to the relevant department for approval together with other restructuring plans。

11.12 When issuing the Legal Opinion on the reform plan of State-owned enterprises, lawyers shall clearly put forward their own opinions on the employee resettlement plan。If the lawyer believes that there is any illegal or improper place in the employee resettlement process of the restructured enterprise, it should be stated or explained in the reservation。

11.13 If state-owned enterprises pay economic compensation for employee resettlement in the process of restructuring, lawyers should carefully examine whether the method is legal and compliant, including:

11.13.1 Whether the standard of economic compensation meets the legal minimum requirements;

11.13.2. Whether there is a legal basis for economic compensation。

11.14 Lawyers shall abide by labor laws, regulations and policies when helping restructuring enterprises to determine plans, and shall not harm the rights and interests of employees。

11.15 When helping the restructuring enterprise to determine the method of economic compensation, unless the restructuring enterprise has real difficulties, the lawyer should first consider the method of immediate cash payment。If it is necessary to choose other compensation methods, it should be based on the premise of voluntary negotiation between the two parties, especially the voluntary acceptance of the employee。

11.16 In restructured enterprises, the following vulnerable groups need to be given special attention by lawyers in their work and their practical difficulties and modes of placement taken into account in the resettlement programme:

11.16.1 Internal retirement personnel;

11.16.2. Working personnel less than 5 years from the statutory retirement age;

11.16.Persons who have lost or partially lost their ability to work due to work-related injuries or occupational diseases;

11.16.4 Survivors of employees;

11.16.5 Land expropriation migrant workers and so on。

Three sections are submitted for approval and record

Article 12 Lawyers accept the entrustment to assist in the approval of the Reform Plan according to law。In providing advice on approval procedures, attention should be paid to the following issues:

12.1 The state-owned enterprise restructuring plan shall not be implemented if the following conditions exist:

12.1.1. Failure to perform the decision or approval procedures in accordance with the Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises;

12.1.2 Failure to follow the relevant provisions of the state-owned assets supervision and administration agency of The State Council or the provincial or municipal state-owned assets supervision and administration agency to implement the decision or approval procedures。

12.The restructuring of state-owned enterprises involving financial and labor security matters shall be reported to the relevant departments of the people's governments at the same level for examination and approval, and then submitted to the state-owned assets supervision and administration agency for coordination and examination。

12.Where the restructuring of state-owned enterprises involves matters for examination and approval by the government for social public administration, it shall be reported to the relevant government departments for examination and approval in accordance with the relevant laws and regulations of the State。

12.If the restructuring of state-owned enterprises involves the restructuring of enterprises funded by state-owned assets supervision and administration institutions into non-state-owned enterprises, the restructuring plan shall be submitted to the people's government at the same level for approval。

12.Where the restructuring of a state-owned enterprise involves the relocation of employees, the relocation plan shall be approved by the labor and security administrative department of the place where the restructuring enterprise is located。

12.Where the restructuring of state-owned enterprises involves the transfer of state-owned shares of listed companies, the approval procedures shall be handled in accordance with the relevant provisions of SASAC and CSRC。

12.Where the restructuring of state-owned enterprises involves the transfer of bank assets, the approval procedures shall be handled in accordance with the relevant provisions of the SASAC, the CBRC and the People's Bank of China。

Article 13 Lawyers accept the entrustment to assist in the approval and filing of the "State-owned Property Rights Transfer Plan" according to law。When lawyers provide advice on the application for approval and filing procedures, they should pay attention to the following operating norms:

13.The restructuring of state-owned enterprises involves enterprises funded by state-owned assets supervision and administration institutions, and the transfer of state-owned property rights shall be submitted to the people's government at the same level for approval。

13.The unit holding property rights shall, in accordance with the relevant provisions of the State, formulate administrative measures for the transfer of state-owned property rights of its affiliated enterprises and report them to the state-owned assets supervision and administration institution for the record。

13.If the state-owned assets supervision and administration institution decides to transfer the state-owned property rights of the invested enterprises, and the transfer behavior results in the state no longer having the controlling status, it shall be reported to the people's government at the same level for approval。

13.(4) The property right holding unit decides on the transfer of state-owned property rights of its funded sub-enterprises, and the major transfer of state-owned property rights of important sub-enterprises shall be submitted to the state-owned assets supervision and administration institution at the same level for approval。

13.5 After the transfer of state-owned property rights of the enterprise is approved or decided, if the transfer and the transferee need to adjust the transfer ratio of property rights or the transfer plan of state-owned property rights of the enterprise has a major change, the property rights holding unit shall submit a new approval in accordance with the prescribed procedures。

13.6 The transfer of state-owned property rights by the property rights holder to the operation and management of the restructured enterprises shall strictly implement the relevant provisions of the State Decree No. 3 and the Interim Provisions on the Transfer of State-owned Property Rights of Enterprises to the Management。

13.The price for the transfer of state-owned property rights shall, in principle, be settled in one lump sum。If it is really difficult to settle the settlement at one time, after the two parties to the transfer of property rights have reached a consensus through consultation and have reported to the department that approves the restructuring of state-owned enterprises or the transfer of state-owned property rights for examination and approval according to law, payment by installments may be adopted。In the case of installment payment, the first installment shall not be less than 30% of the total price and shall be paid within 5 working days after the signing of the contract for the transfer of property rights;The remaining price shall be legally guaranteed by the transferee, and shall pay to the transferor the interest during the deferred payment period according to the bank loan interest rate of the same period, and the payment period shall not exceed one year。Where the parent company of the listed company transfers the controlling equity resulting in a change in the nature of the equity, the transferee shall pay in full。

Article 14 Lawyers shall assist creditors of restructured enterprises and financial institutions to go through the formalities of restructuring confirmation according to law。When lawyers provide advice on legal issues involved in confirmation procedures, they should pay attention to the following operating norms:

14.If the transferor no longer holds a controlling position due to the transfer of the state-owned property rights of the enterprise, the restructuring enterprise shall conclude a written creditor's debt disposal agreement with the creditor's financial institution, or obtain a confirmation letter of consent to the restructuring issued by the creditor's financial department。

14.In the examination and approval of the restructuring of state-owned enterprises, the restructuring enterprise shall not be restructured without the consent of creditors of financial institutions and without the submission of a written agreement or confirmation。

Article 15 Lawyers may provide legal services for the settlement and verification of assets, financial audit and asset evaluation of restructured enterprises。When providing advice on issues related to approval or filing procedures, lawyers should pay attention to the following practices:

15.1 Where a property right holder transfers state-owned property rights, it shall entrust a qualified asset evaluation institution to conduct asset evaluation on the basis of property verification and financial audit。After the evaluation report has been submitted for approval or filed in accordance with the law, it shall be used as the reference basis for determining the transfer price of the state-owned property rights of the enterprise。In the process of property rights transaction, when the transaction price is lower than 90% of the evaluation result, the transaction shall be suspended and can be continued only after obtaining the consent of the relevant property rights transfer approval department。

15.2 Where the identification and disposal of asset losses are involved in the restructuring of enterprises, the restructuring enterprises shall perform the approval procedures in accordance with the relevant provisions。

Article 16 Lawyers shall be entrusted to assist in the approval of matters related to "reorganizing state-owned enterprises with foreign capital" according to law。When lawyers provide advice on the approval procedure, they should pay attention to the following operating norms:

16.Where a property right holder intends to reorganize a state-owned enterprise with foreign capital, it shall, in addition to filing an application with the state-owned assets supervision and administration agency, refer to the State catalogue of foreign investment industries and the relevant provisions of the Ministry of Commerce。

16.The foreign exchange proceeds from the transfer of state-owned property rights, creditor's rights or the sale of assets by the property rights holder shall be submitted to the foreign exchange control department for approval on the basis of the application for reorganization and the approval documents of the transfer agreement and the relevant documents。

16.(3) Restructuring enterprises using foreign capital reorganization that absorb foreign investors' investment for reorganization through capital increase and share expansion may, upon approval by the foreign exchange administration departments, open a foreign exchange capital account and retain the foreign exchange funds invested by foreign investors。

Section 4 Transfer of Property rights and property rights transactions

17 State property rights transfer and property rights transaction overview

17.The term "transfer of state-owned property rights" as mentioned in these Guidelines refers to the activities of state-owned assets supervision and administration agencies and property rights holders transferring state-owned property rights of enterprises held by them to domestic and foreign legal persons, natural persons or other organizations (hereinafter referred to as transferees) with compensation。

17.The transfer of state-owned property rights may be carried out by auction, bidding, online bidding, transfer by agreement and other means prescribed by national laws and administrative regulations。State-owned shares or corporate shares of listed companies shall be carried out in the prescribed stock exchange market;The state-owned equity held by the bankrupt enterprise shall be auctioned by an auction institution entrusted by the court accepting the bankruptcy case unless otherwise decided by the debtor's meeting。

17.3 The transfer of state-owned property rights shall be carried out openly in the property rights trading institutions established according to law, which involve the state-owned property rights of enterprises funded by the State-owned assets supervision and administration agency of The State Council, shall be carried out in the Beijing Property Rights Exchange, Shanghai United Property Rights Exchange, Tianjin Property Rights Trading Center。Lawyers involved in property rights transactions shall follow the following principles:

17.3.1 is conducive to the preservation and appreciation of state-owned assets and prevent the loss of state-owned assets;

17.3.2. Enable all parties to complete the transaction under the premise of equal compensation and good faith;

17.3.3. It conforms to the national industrial policy and is conducive to the optimal allocation of resources;

17.3.4. Facilitate the introduction of domestic and foreign funds, advanced science and technology and management experience;

17.3.5 is not limited by region, industry, affiliation, and the nature of the enterprise。

17.4 Lawyers may be entrusted to assist the principal in selecting brokerage members。Equity exchanges generally implement a member agent trading system, and the transferor and transferee engaged in property rights trading shall entrust a brokerage member of the exchange with a property rights brokerage qualification (hereinafter referred to as "brokerage member") to conduct property rights trading。In the same property rights transaction, a brokerage member shall not accept the entrustment of both the transferor and the transferee, except in the following cases:

17.4.1. Property rights transactions between wholly state-owned enterprises and wholly owned enterprises (undertakings) under legal persons;

17.4.Other property rights transactions approved by the property rights trading institution。

Article 18 Lawyers may be entrusted to assist enterprises in completing the state-owned property rights transaction process:

18.1 The lawyer may assist the transferor or its broker to submit the following documents to the property rights trading agency:

18.1.1 Application for Transfer of Property Rights;

18.1.(2) The business license of the transferor and the transferee;

18.1.3. Property rights registration certificate of state-owned assets transferred to the target enterprise;

18.1.4. Internal decision documents of the transferor;

18.1.5. The approval letter or resolution of the authority that has the right to approve the transfer of property rights;

18.1.6. If the target enterprise is a limited liability company, the resolution of the shareholders' meeting and the articles of association of the target enterprise shall be submitted;If the object of transfer is a Sino-foreign joint venture or a Sino-foreign cooperative enterprise, the resolution of the board of directors and the articles of association of the object of transfer of the enterprise shall be submitted;

18.1.(7) Where the relocation of employees is involved, the resolution of the staff (representative) conference of the target enterprise shall be submitted;

18.1.8. Asset evaluation report of the target enterprise and its approval form or record form;

18.1.9. Audit report of the target enterprise transferred;

18.1.10 Legal opinion issued by a law firm;

18.1.11 Where the transfer is to be made to the legal representative of the target enterprise, the audit report on the economic responsibility of the legal representative shall be submitted;

18.1.12 Entrust Contract for Property Rights Transaction。

18.2. After all the documents submitted by the transferor or its brokerage institution are ready, the equity exchange shall conduct a formal review of the documents, and issue a Notice of Acceptance of the Application for the Transfer of Property Rights to the transferor or its brokerage institution if the review is passed.。

18.3 The property rights transaction project shall be listed and publicized for not less than 20 working days。Disclosure of property rights transaction information through the website of the property rights Exchange, electronic display screens and designated media。The content of information disclosure is mainly the content of the Application for Transfer of Property Rights;If the project is transferred to the management, the Application Form for the Proposed transfer of State-owned Property Rights by the management shall also be disclosed.。

18.4 Listing Period，The lawyer may accept the entrustment of the intended transferee，Assist the transferee to submit the following documents to the Equity Exchange:Application for Transfer of Property Rights, qualification certificate of the transferee, copy of Business License of Enterprise Legal Person of the institutional legal person, copy of ID card of the natural person, recent balance sheet and profit and loss statement of the institutional legal person, entrustment Contract of Property Rights Transaction, internal resolution and approval of the acquisition, relevant documents or certificates that meet the conditions of transfer，And other documents and materials that should be submitted in accordance with the trading rules。

18.If there is only one intended transferee after the listing period expires, the lawyer shall assist the transferor or intended transferee to sign the Property Rights Transaction Contract with the other party;There are two or more intended transferees, and the method of bidding transfer is adopted, such as auction, bidding, online bidding, review or other bidding procedures。The lawyer shall assist the transferor or intended transferee in organizing or participating in the bidding process。

18.6 The lawyer may assist the entrusting party in the settlement and delivery of the property rights transaction, and the transferee shall pay the property rights transaction price to the property rights exchange。If the final transferee is management, the proceeds shall be derived from Management's own bank account。

18.7 After the transaction price is received, the equity exchange shall review and issue the equity transaction certificate。Both parties shall pay the transaction fee to the property rights exchange and receive the certificate of property rights transaction。

18.8 The lawyer may represent the party to the transaction to prepare the normative documents required by the business registration and complete the business registration on behalf of the lawyer;Issue the business license of the legal person after the change of the industrial and commercial department and the articles of association approved by the industrial and commercial department to the property rights exchange, and assist the transferor to receive the property rights transaction price。

Article 19 Lawyers shall assist property rights subjects or restructured enterprises to complete the specific contents of the implementation of the state-owned property rights transfer plan and complete the relevant preparatory work for transaction listing, mainly including:

19.1. Assist property rights holders or restructured enterprises to complete internal decision-making, property verification, audit, asset evaluation, approval or filing procedures that should be completed according to laws, articles of association and Decree No. 3 before applying for or participating in property rights transactions。

19.(2) Assist the property right holder or the restructuring enterprise to put forward the necessary conditions for the transfer of the transferee's qualification, business reputation, business situation, financial status, management ability, asset scale, etc., provided that the proposed conditions for the transfer shall not have a clear direction or violate fair competition。

19.3 After the transferor and transferee of the property rights transaction have concluded the transaction in accordance with the transaction method determined by the property rights transaction rules, the lawyer may assist the property rights holding unit or the restructuring enterprise to conclude the Property Rights Transaction Contract with the property rights transaction transferee, and put forward suggestions for revising the contents and terms of the contract。The property Rights Transaction Contract shall generally include the following main contents:

19.3.1. Name and domicile of the transferor and transferee parties;

19.3.2. The basic situation of transferring the state-owned property rights of the target enterprise;

19.3.3. The employee resettlement plan involved in the transfer of the target enterprise;

19.3.4. The disposal plan of creditor's rights and debts involved in the transfer of the target enterprise;

19.3.5. Transfer method and payment terms;

19.3.6 Property rights delivery matters;

19.3.7. The relevant tax burden involved in the transfer;

19.3.8. Contract dispute resolution methods;

19.3.9. Liability of each party for breach of contract;

19.3.Conditions for modification and termination of the contract;

19.3.11 Other terms deemed necessary by the transferee parties。

19.If the transferor no longer holds the controlling position due to the transfer of state-owned property rights of the enterprise, when signing the property rights transaction contract, the lawyer can assist the property rights holder or the restructuring enterprise to negotiate with the transferee to put forward the enterprise restructuring plan, including the preferential settlement plan for the employees of the transferred enterprise under the same conditions。

19.5. In case of transfer by agreement, the lawyer may assist the property right holder or restructuring enterprise to initialize the Property Right Transaction Contract with the transferee and review it in accordance with the internal decision-making procedure, and the contract can be formally signed after the written resolution is passed。The transfer of property rights of a wholly state-owned enterprise shall be examined by the general manager's office meeting;The transfer of property rights of a wholly state-owned company shall be examined by the board of directors;If no board of directors has been established, it shall be reviewed by the general manager's office meeting。Where the legitimate rights and interests of employees are involved, the lawyer shall suggest that the restructuring enterprise shall listen to the opinions of the staff and workers (representatives) assembly of the target enterprise, and matters such as staff and workers' resettlement shall be discussed and approved by the staff and workers (representatives) assembly。

19.6 Where the proportion of non-state-owned shares is increased by means of capital increase and share expansion to implement the reform of state-owned enterprises, lawyers may assist the property rights holding unit or the restructuring enterprise in selecting the proposed investor through public means such as the property rights exchange。

Section five policy document formulation and reform counseling

Article 20 Lawyers may, in addition to preparing the restructuring Plan, the Employee resettlement Plan and the State-owned property Rights Transfer Plan for the restructured enterprises，It can also help formulate other normative policy documents according to the actual situation of the restructured enterprises，Such as land disposal program, debt and debt disposal program and entrusted management of assets for resettlement of personnel and other related programs。

Article 21 Lawyers drafting and compiling other normative policy documents for enterprise restructuring should pay attention to the following issues:

21.1 Draft legal documents such as resolutions, announcements, agreements, commitments or guarantees between parties，Preparing an application report for the client to be submitted to the government for approval, approval or filing，Procedures prescribed by laws, regulations and normative policy documents shall be followed，On the basis of fully listening to the opinions of property rights holders, restructuring enterprises or other restructuring parties。

21.At the same time of drafting the articles of association of the company, the new rules and regulations for the restructured enterprise shall meet the needs and requirements of the restructured enterprise to establish the corporate governance structure。

21.The drafting of the Collective Labor Contract and the Labor Contract shall be in accordance with the Labor Law and other laws, regulations, rules and other normative policy documents。

Article 22 Lawyers shall provide guidance for restructuring enterprises，The purpose of the reform counseling is to realize the concept renewal through the publicity of the Company Law and the reform policy of state-owned enterprises，The concept renewal includes four main contents: cultivating shareholding consciousness;Forming corporate governance culture;Establish the concept of market economy;The sense of equality of the controlling shareholder or the representative of the investor。Reform counseling generally includes the following contents:

22.1. Assist restructuring enterprises to organize employees to carefully study national and regional laws, regulations, rules and normative policy documents related to state-owned enterprise reform, unify ideas and form consensus through conference mobilization, publicity and training, discussion and other forms。

22.2. To help employees cultivate shareholding consciousness means to realize the integration of four kinds of consciousness: right consciousness, legal consciousness, financial consciousness and risk consciousness。Corporate governance culture is a harmonious development culture with decentralization and balance as the core。After the system innovation, the traditional state-owned enterprise culture should be replaced by the corporate governance culture of separation of powers and checks, and the culture of internal friction and struggle should be replaced by the culture of harmonious development。

Section 6 Industrial and Commercial Registration

Article 23 Lawyers shall assist the restructured enterprise to complete the preparatory work for the establishment of the new company in strict accordance with the restructuring plan, the Company Law, the Regulations on the Administration of Company Registration and the relevant provisions of the administrative department for industry and Commerce。

Article 24 The company shall be registered by the company registration authority in accordance with the law and obtain the Business License of Enterprise legal Person before obtaining the qualification of enterprise legal person。

Article 25 For the establishment of a limited liability company, the representative appointed by all shareholders or the agent jointly entrusted shall apply to the company registration authority for pre-approval of the name;For the establishment of a joint stock limited company, the representatives designated by all the sponsors or the agents jointly entrusted shall apply to the company registration authority for pre-approval of the name。Where a lawyer assists the establishment of a company in applying for pre-approval of its name, the following documents shall be submitted:

25.An application for pre-approval of the company name signed by all the shareholders of a limited liability company or all the promoters of a joint stock limited company;

25.(2) The certificate of all the shareholders or the sponsors appointed representatives or jointly entrusted agents;

25.Other documents required by the administrative department for industry and commerce。

Article 26 In applying for the establishment of a limited liability company, a lawyer shall assist the establishment enterprise to submit the following documents to the company registration authority:

26.1 Application for establishment registration signed by the legal representative of the company;

26.(2) Certificate of all the shareholders' designated representatives or jointly entrusted agents;

26.3. Articles of association;

26.A capital verification certificate issued by a capital verification institution established according to law, except as otherwise provided by laws and administrative regulations;

26.If the shareholder makes the first contribution as non-monetary property, he shall submit the certificate of the transfer of his property rights at the time of the registration of the establishment of the company;

26.6 The principal qualification certificate of the shareholder or the identity certificate of the natural person;

26.Documents indicating the names and addresses of the directors, supervisors and managers of the company, as well as certificates relating to appointment, election or employment;

26.8. Documents and identity certificates of the company's legal representative;

26.9 Notification of pre-approval of enterprise name;

26.10. Company domicile certificate;

26.11 Other documents required by the administrative department for industry and commerce。

Where laws, administrative regulations or decisions of The State Council require approval of the establishment of a limited liability company, a lawyer may assist the establishment of an enterprise in submitting the relevant approval documents。

Article 27 In applying for the establishment of a joint stock limited company, the board of directors shall apply to the company registration authority for establishment registration。Where a joint stock limited company is established by means of public offering, an application for establishment registration shall be filed with the company registration authority within 30 days after the completion of the founding meeting。A lawyer may assist the establishment of an enterprise to submit the following documents to the company registration authority:

27.1 Application for establishment registration signed by the legal representative of the company;

27.(2) The certificate of the representative appointed by the Board of directors or the jointly entrusted agent;

27.3. Articles of association;

27.A capital verification certificate issued by a lawfully established capital verification institution;

27.(5) Where the initiator makes capital contribution for the first time as non-monetary property, he shall submit the certificate of having gone through the formalities of transferring his property rights at the time of registration of establishment of the company;

27.6 The principal qualification certificate of the initiator or the identity certificate of the natural person;

27.7. Documents indicating the names and addresses of directors, supervisors and managers of the company, as well as certificates relating to appointment, election or employment;

27.8. Documents and identity certificates of the company's legal representative;

27.9 Notification of pre-approval of enterprise name;

27.10. Company domicile certificate;

27.11 Other documents required by the administrative department for industry and commerce。

Article 28 The lawyer may assist the new company in holding the founding meeting of the company, registration and related formalities of change。In accordance with the relevant provisions, the lawyer may assist the new company to go through the relevant procedures of company registration, taxation, land, housing, vehicles and so on。

Chapter Three related corporate governance business

Article 29 Lawyers undertake relevant corporate governance business and participate in the construction of corporate governance systems，It should fully embody the corporate governance concept of "protecting the interests of shareholders as the basic value orientation"，In-depth understanding of corporate cultural background, overall development planning, shareholder needs, management and employee composition, the location of the company and the actual situation of the industry，Adhere to seeking truth from facts, innovation in accordance with the law, and standardized operations，With the professionalism of a lawyer and the care of a common man，Conduct corporate governance business with integrity，Avoid damage。

The 30 main objectives of corporate governance are:

30.1 Guarantee the smooth transition of the restructured enterprises, promote the standardized development of the new company after the restructuring and prevent the emergence of the company deadlock;

30.2. Assist the state-owned shareholders' representatives, management, employees and other relevant personnel of the new company to change the inherent management ideas of "superior and subordinate guidance", "major shareholders' decision-making", "wait, rely on and need", etc., and understand and improve the corporate governance according to the provisions of the Company law and the requirements of the market economy;

30.3. To achieve an effective balance between the rights and interests of controlling and non-controlling shareholders, effectively protect shareholders under the framework of the Company law, achieve greater shareholder value and long-term investment return, and enhance investor confidence;

30.4. Regulate the rights and obligations of shareholders, directors, managers, supervisors, employees, creditors and other parties involved in the company to reduce the company's operating costs;

30.5. Establish an overall framework for risk management, effectively control the company's organization, resources, assets, investment and the operation of the entire company at the level of corporate governance, supervise and maintain necessary incentives for the activities and performance of the management and key employees, and improve the overall operation efficiency of the company。

31 Basic principles that corporate governance operations should adhere to:

31.1. Design corporate governance according to the actual needs of the company, balance the interests of all parties involved in the company under the legal framework, and ensure the stable development of the company;

31.2. Clarify the rights and responsibilities of shareholders, directors, managers and supervisors, treat all shareholders fairly, and strengthen effective communication mechanisms between directors and shareholders;

31.3. Strengthen the accountability of individual directors and the board as a whole，Including improving the structure of the board of directors and decision-making procedures，Ensure the strategic direction of the company and effective supervision of management by the Board of Directors，And ensure that the board is accountable to the company and its shareholders，Make the decisions and operations of the Board of Directors in line with the fundamental interests of all shareholders，Avoid insider control or manipulation by large shareholders;

31.4. Maintain the independence of the Board of directors, design the professional committees under the board of directors according to the actual needs of the enterprise, and clarify their responsibilities。

31.5. Strengthen the supervision and assessment mechanism on the performance and behavior of management and employees, and effectively use salary design to stimulate individual potential and promote the long-term development of enterprises。

Article 32 The setting of ownership structure is closely related to corporate governance, and different ownership structures will lead to different design models of corporate governance。When undertaking the relevant corporate governance business after the restructuring of state-owned enterprises, lawyers should pay attention to the following aspects of equity setting:

32.1. Based on the specific situation of the equity restructuring and the company's development strategy, timely propose the definition of the company's nature and the setting of the equity structure to the relevant parties;

32.2. For the restructured enterprises in which many employees intend to participate in capital increase and share expansion, and employees only tend to obtain equity dividends, in order to avoid consequences such as reduced decision-making efficiency of the shareholders' meeting, lawyers can put forward suggestions on trust shareholding and prepare legal documents on trust shareholding;

32.3 For shareholders who do not participate in enterprise management for various reasons and only receive equity dividends, the lawyer can provide the legal documents of the shareholders' voting rights trust to be signed by the shareholder and other relevant shareholders after understanding their legitimate needs;

32.4 For companies that need to limit changes in management shareholders，A lawyer can suggest linking management rights to equity，When a member of management exits，The shares of the company shall be withdrawn，And in the articles of association and other documents clearly related to the management equity withdrawal content，Such as: withdrawal method, withdrawal conditions, withdrawal time, determination of the transferee, transfer price calculation, etc。

Article 33 Lawyers may assist enterprises to revise and improve the articles of association after restructuring, paying special attention to distinguish which are mandatory provisions in the company law and shall not be changed at will;What are the arbitrary terms, can be freely agreed。The revision and improvement of the articles of association should pay attention to the following aspects:

33.1 Inquire with the administrative department of industry and commerce where the company is located，If the business department requires the submission of a uniform form of the charter，Or there is a fixed format for signing the articles of Association，The lawyer should first obtain the text of the Constitution，Then it is designed and perfected on the basis of it，Avoid format problems caused by the articles of association not accepted by the industrial and commercial departments;

33.2. According to the relevant situation of the company, verify the restrictive provisions and procedural arrangements of the company's nature, business scope, business qualification, business term, investment method, low investment amount and other aspects with the local industry and commerce, taxation and other functional departments, and make articles of association in accordance with policies and regulations。

33.3. Fully disclose to shareholders and other relevant personnel of the company, analyze and explain the contents of the articles of association stipulated by the company law, such as freely agreed matters and special restrictive clauses, and design the articles of association according to the actual needs of all stakeholders of the company。For the purposes of the articles of association of a limited company, the following are listed:

33.3.The legal representative of the company may be the chairman, executive director or manager;

33.3.2 Upon agreement of all shareholders, the dividend may not be divided according to the proportion of capital contribution;The articles of association of the company may stipulate that the voting rights of the shareholders shall not be exercised in proportion to the capital contribution;Matters concerning the transfer of shareholders' equity rights may be freely agreed upon;

33.3.3. The Company invests in other enterprises or provides guarantees for others，It may be decided by the board of directors or the shareholders' meeting;Where there are limits on the total amount of investment or guarantee and the amount of a single investment or guarantee，Shall not exceed the prescribed limit;The company provides guarantee for the shareholders or actual controllers of the company，Subject to a resolution of the shareholders' meeting;The shareholders referred to in the preceding paragraph or those subject to the control of the actual controller referred to in the preceding paragraph，Shall not participate in voting on the matters specified in the preceding paragraph，The vote shall be passed by more than half of the votes held by the other shareholders present at the meeting。

33.3.The appointment or dismissal of the accounting firm undertaking the company's audit business may be decided by the shareholders' meeting or the board of directors。

33.3.The board of supervisors shall have employees' representatives, the proportion of which shall not be less than one third, and shall be democratically elected by the company's employees through the workers' (representatives) conference or other forms。

33.4 According to the actual situation of the restructured enterprise, reasonably arrange the functions and powers of the shareholders' meeting, the board of directors, the manager and the board of supervisors, and implement the "other functions and powers stipulated in the articles of association" after communicating with the relevant parties。

33.5. Pay attention to the internal consistency of the articles of association of the company to avoid conflicts, especially conflicts between individual and overall agreements;Pay attention to the consistency of the articles of association with the internal regulations of the company, such as the rules of procedure, work system and management methods, to avoid practical obstacles。

Article 34 The company's rules of procedure and working system are the operating rules of the company's articles of association，According to the company，The lawyer can assist in designing the rules of procedure of the shareholders' meeting, the rules of procedure of the board of directors, the rules of procedure of the professional committee of the board of directors (such as the compensation committee, the nomination committee, the investment decision-making committee, etc.), the rules of procedure of the board of supervisors, the inspection system of supervisors, and the work system of the manager。The rules of procedure shall not conflict with the articles of Association and shall include the following provisions:

34.1. The meeting authority shall be consistent with the articles of association of the company and may be further refined;

34.2. The meeting is held, including: notice, agenda, voting, etc.;Among them, it should be clear how many qualified members are required to participate in the effective holding of the meeting;The resolution of the meeting shall be valid only if it is adopted by a certain percentage of the members;

34.Attending and entrusting the meeting, and stipulating the procedures for attending the meeting and voting;

34.4. Proposal, consideration, voting, resolution, etc。

Article 35 From the perspective of effectively motivating and promoting the long-term development of the company, the lawyer may put forward suggestions on salary design according to the situation of the enterprise after the restructuring, and assist the company to establish a salary system linked to the company's performance and personal performance。The compensation design can be reflected in the basic salary, annual bonus, and various forms of equity incentive, etc. Depending on different circumstances, the compensation plan includes the decision-making body, the granting personnel, the total number of shares involved, the exercise period, the exercise price, the change of the plan, the operation procedure and other relevant clauses。

Article 36 According to the commissioning of the new company after the restructuring, the lawyer can be engaged in the company's perennial legal counsel or other special legal services, from the review and modification of daily contracts, labor relations norms, business risk prevention and many other aspects of corporate governance。

Article 37 Lawyers may change according to the development of the new company after restructuring，To assist them to continuously improve the governance mechanism，Help them actively participate in external governance markets such as product and service competition market, manager talent market, director market, creditor market, labor market, and control market，Achieve positive interaction between internal governance structure and external governance market，Through market constraints to help companies to continuously improve the level of governance。

Article 38 Lawyers should find the gaps and defects in the company's laws and regulations through business practice, constantly summarize the corporate governance experience theoretically, put forward legislative suggestions, and constantly improve the company's legal and administrative regulations system。

Chapter four legal opinions

Article 39 Legal opinion refers to a written legal document issued by a lawyer to a party with official lawyer's opinions based on the facts and materials he has mastered and correctly applied the law to make analysis and judgment on a specific legal fact, legal act or legal document entrusted or requested by the party。

Legal opinions are generally issued in the name of law firms，Signed by one or two solicitors;Summary or other matters that need to be issued only in the name of the firm，May be issued only by our seal;Time is urgent or there are other special circumstances，It can be signed and issued by our partner's counsel，Add the official seal of the law firm afterwards。

The 40 legal recommendations refer to the written legal documents provided by lawyers to parties containing lawyers' ideas and opinions on the issue, which do not have the effect of legal opinions, and can be issued by referring to the relevant provisions of this chapter。When one of the following occurs，Lawyers can issue legal advice: time is not enough to form a formal legal opinion in time and the parties need a written document from lawyers;The lawyer is unable to determine the relevant facts according to the relevant supporting materials;The party concerned provides legal advice to the lawyer on the handling of the special issue;The parties have other special requirements。

Article 41 Where lawyers issue legal opinions or legal recommendations on the restructuring of non-state-owned enterprises and related corporate governance matters, they may refer to these Guidelines in the absence of other relevant provisions。

Article 42 In undertaking the restructuring of state-owned enterprises and related corporate governance business, lawyers may, at the request of the parties, issue legal opinions on the following matters:

42.1 Overall or special property rights definition;

42.2. Matters related to asset evaluation involved in the reform (the legal opinion should only express opinions from the qualification of the evaluation institution and the procedure of evaluation and filing);

42.3 Reform plan;

42.4. Employee placement plan;

42.5 State property transfer programme;

42.6. Operation and approval process of state-owned enterprise restructuring;

42.7 Corporate governance structure, articles of association, rules of procedure, work system, compensation plan, changes in equity, meeting resolutions and their adjustment and arrangement。

Article 43 Lawyers should beware of business risks when issuing legal opinions，Before issuing a legal opinion，The client may be required to issue the Entrusting Commitment according to the project situation.，Generally, it can include the following contents: the legal service entrustment relationship on which the commitment is based;The deadline for providing materials to the lawyer，The original and photocopy of the materials are consistent;The material provided to counsel is true, accurate and complete;The explanation of the relevant personnel on the relevant matters is true;Do not interfere with the issuance of legal opinions, etc。

Article 44 When undertaking related business, it shall consider whether the lawyers appointed by the firm have the following qualities and professional abilities:

44.Have the knowledge and practical experience to engage in business of a similar nature and complexity through appropriate training and business operations;

44.2. Master the provisions of laws, regulations and normative policy documents related to the legal opinions issued;

44.3. Have a proper understanding of the client's industry and be able to grasp the legal issues unique to the industry;

44.4. Have considerable professional judgment ability and professional accomplishment。

Article 45 When issuing legal opinions, lawyers shall conduct due diligence in accordance with the relevant requirements of Section 1 of Chapter II of these Guidelines to ensure the authenticity, accuracy and completeness of the relevant information on which the legal opinions are based。

46 Lawyers should choose relevant laws, regulations and normative policy documents as the basis for issuing legal opinions。If the reference is to a departmental rule, local regulation, or other document that applies only to a particular subject or purpose, the attorney should state that the use of the legal opinion should be limited to that particular subject or purpose。

Article 47 When a lawyer issues legal advice for a specific user or for a specific purpose, the lawyer should consider stating in the legal opinion that the use of the advice is limited to a specific user or for a specific purpose。

The 48 legal opinions should generally consist of a header, a main text and an ending。

The header includes the title and file number，The title generally takes the form of "Legal opinion of ×× Law Firm on ×× matters"，Numbering may adopt the numbering rules of the Exchange;The conclusion is for the signing of the legal opinion，The number of copies of the legal opinion should be indicated，Affix the official seal of the law firm, and affix the personal seal by the handling lawyer (or print the lawyer's name and signature)，And indicate the date of issue。

The main text is the core part of the legal opinion, and its main content should be determined according to different matters。If necessary, the legal opinion may be annexed to supplement the relevant content of the main text;When necessary, at the request of the client, the lawyer may issue a supplementary statement to the legal opinion, which shall be an effective part of the legal opinion and shall be issued in accordance with the provisions of this Chapter。

The main text of the 49 legal opinions should generally include the introduction and the body。

49.1 Introduction generally includes five parts:

49.1.Part 1 is the representation of the entrusting relationship on which the law firm issues the legal opinion。The entrustment relationship can be based on the fact that the law firm is the perennial legal adviser of the client, the special legal adviser of the entrusted matter or other entrustment relationship, which indicates that the lawyer has the legal identity to issue the legal opinion。

49.1.The second part is the legal basis cited by the lawyer in issuing the legal opinion。When quoting legal basis, lawyers should pay attention to the accuracy of applicable laws and regulations, correctly deal with issues such as the conflict of effectiveness of laws and regulations, and make appropriate explanations when using judicial interpretation or legal theory and normative policy documents as the basis。

49.1.3 The three parts are the evidentiary materials cited by the lawyer in the legal opinion。The evidentiary materials must be relevant to the issuance of legal opinions as follows: documents obtained by lawyers in accordance with the law;Documents provided and proved by the client or other relevant subject to be authentic and legal in origin;A record of the conversation signed and confirmed by the person under investigation;Other materials that can be used as evidence。The lawyer should explain the source of the evidence。

49.1.4 The four parts are the lawyer's declaration matters。The lawyer may determine the declaration matters according to the specific circumstances, but shall not make a disclaimer that violates the accepted standards of practice, ethics and diligence of the lawyer profession。In the process of providing legal opinions, lawyers are limited by conditions or materials, which may affect the comprehensiveness or accuracy of legal opinions, lawyers should make corresponding declarations。

49.1.5 The five parts are the definitions of the legal opinion。When abbreviations, professional terms and other expressions are used in legal opinions, nouns should be interpreted to avoid ambiguity in the relevant content。

49.2 In the body of the legal opinion, the lawyer should express the specific legal issues involved in accordance with the legal act, legal facts or legal instruments to which the legal opinion is issued。The body part generally includes a description of the legal qualifications of the client or the subject of the transaction, a description of the decision-making power of the various matters described in the legal opinion, the decision-making body of the client, the property of the client, the legality analysis of the relevant matters, the overall concluding opinions, and other matters that the lawyer thinks need to be explained。

49.2.1 When the qualification of the principal or the parties to the transaction is explained，It shall examine the matters on which it has been registered with the relevant registration authority，State whether it is an enterprise legal person or other legal entity effectively existing in accordance with the law，Whether it has the subject qualification to deal with the corresponding matters，Such as review: the recent annual inspection of enterprise legal person business license, enterprise state-owned assets property rights registration certificate or state-owned assets property rights registration annual inspection form。

49.2.2 A description of the right to decide on various matters, mainly indicating whether the matter in question meets external (e.g., legal requirements) and internal decision-making (e.g., statutes) procedures。

When issuing legal opinions on the transfer of state-owned property rights，It should be noted that its internal review procedures are different: the transfer of the subject enterprise is a wholly state-owned enterprise，State whether the property rights transfer plan is reviewed by the general manager office of the enterprise，The legality of the deliberative procedures and outcomes of the Conference;Where the object of the transfer is a wholly state-owned company，Indicate whether the title transfer proposal was considered by the board of directors of the company，The legality of the deliberative procedures and outcomes of the Conference;Where the subject matter of the transfer is a limited liability company，Indicate whether the transfer of property rights in the country has been approved by the shareholders' meeting。Where the transfer of state-owned property rights of the enterprise involves the legitimate rights and interests of the employees, state whether the opinions of the staff and workers (representatives) assembly of the enterprise subject to the transfer have been heard, and whether the matters of staff and workers' resettlement have been discussed and adopted by the staff and workers' (representatives) assembly。If the procedures and results of internal review are in line with legal provisions, it means that the transfer of state-owned property rights of the enterprise still needs to be decided or approved by the transferor or the department with the right to approve;If the approving party has approved, it needs to check and explain whether the approval procedures and relevant documents are complete and legal。

49.2.3 The legal analysis of relevant matters is the legal judgment made by lawyers according to relevant legal provisions。

When issuing legal opinions on the state-owned property rights transfer plan，Lawyers should generally comment on each item of the relevant programs that the firm is involved in producing;For the firm did not participate in the formulation of relevant plans，Before issuing a legal opinion，Due diligence should be conducted，To review restructuring plans, property rights transfer plans, employee resettlement plans and related ancillary documents。When giving a legal opinion，Pay special attention to the following points: explain whether the introduction of the basic information in the program and the demonstration of the transfer behavior are consistent with the relevant information verified by the lawyer;Whether the contents of the employee resettlement plan are consistent with those approved by the employee (representative) conference;Whether the solutions for the various expenses owed by the enterprise to the employees and the continuation plans for the relevant social insurance relationship are legal;Whether the disposal plan for claims and debts is legal;Whether the disposal plan of the transfer proceeds is legal;Whether the values in the relevant scheme are consistent with those in the asset evaluation report;Whether the determination of the transfer reserve price is legal;Whether the handling of period profit or loss and post-period matters is lawful;Whether the main content of the announcement of the transfer of property rights is legal or not。

49.2.4. General concluding opinions refer to the general concluding opinions made by lawyers according to the entrusted matters, including three basic forms: unreserved opinions, reserved opinions and negative opinions。For matters that do not comply with the relevant laws, regulations and relevant provisions, or matters that cannot be accurately judged on their legal nature or legality after due diligence, the lawyer shall express reservations and explain the corresponding reasons。

Article 50 Lawyers shall make working papers in a timely, accurate and true manner. The quality of working papers is an important basis for judging whether a lawyer is diligent and responsible, and an important guarantee for lawyers to prevent practice risks。Working papers refer to the work records formed by lawyers when issuing legal opinions and all documents, meeting minutes, conversation records and other materials obtained in the process of undertaking state-owned enterprise restructuring and related corporate governance business。Working papers and legal opinions shall be filed together and kept in accordance with the archives management regulations of the firm。

Article 51 In order to avoid the loss of the original or other unnecessary misunderstandings and responsibilities, the lawyer should not keep the original of the relevant materials, the materials provided by the client or the relevant subject should be verified copies of the original materials (A4 paper photocopied and stamped with the seal of the providing party, or in special cases, signed by the relevant personnel).。A lawyer's working paper shall include, but not be limited to, the following:

51.1. Basic information of the project undertaken by the lawyer, including the name of the entrusting unit, the name of the project, the time or period of service for the project, and workload statistics;

51.2. Records of the work plan and operational procedures for the preparation of legal opinions, minutes of meetings of the lawyers' working group;

51.3. Relevant information about the establishment and history of the client or both parties to the transaction, such as copies of the establishment approval letter, investment agreement, contract, articles of association, business license and other documents (including change documents);

51.4. Summaries or copies of major contracts, agreements, personnel, financial information, and other important documents and meeting minutes;

51.5 Records of communication with the client and relevant personnel, inspection of the information provided by them, investigation and visit records, correspondence, site investigation records, list of documents to consult and other related information and detailed descriptions;

51.6. Copy of the client's written commitment or statement;

51.Explanations of reservations and difficult issues;

51.8 Other relevant important information。

Article 52 A lawyer shall ask his client，Notify the attorney immediately of any changes to the restructuring, transfer or other options，And after the client's written confirmation，The written confirmation or supplementary statement of the legal opinion on the change，Shall be immediately submitted to the decision or authority to approve the department;However, after the transfer of state-owned property rights of the enterprise is approved or decided，If the transfer or transferee parties adjust the proportion of property rights transfer or the state-owned property rights transfer plan of the enterprise has major changes，The legal opinion shall be re-issued and re-submitted for approval in accordance with the prescribed procedures。

Five chapters supplementary provisions

Article 53 Meanings of the following terms in these Guidelines:

53.Restructuring enterprises refer to state-owned enterprises to be restructured or in the process of restructuring;

53.(2) The ownership unit of property rights refers to the investor of a state-owned enterprise or the transferor of state-owned property rights;

53.(3) Other parties to the restructuring refer to creditors of state-owned enterprises, workers' organizations of state-owned enterprises, and transferees of state-owned property rights。

Article 54 These Guidelines are drafted by the Civil Affairs Committee of the All China Lawyers Association and interpreted by the Standing Council of the All China Lawyers Association。

Article 55 These Guidelines were deliberated and adopted by the seventh Standing Council of the sixth National Bar Association and shall come into force as of the date of promulgation。