| Opinions of the General Office of the State Council on Establishing an Accountability System for Business Operations and Investment in Violation of Regulations by State-Owned Enterprises | | 国务院办公厅关于建立国有企业违规经营投资责任追究制度的意见 |
| (No. 63 [2016] of the General Office of the State Council) | | （国办发〔2016〕63号） |
| The people's governments of all provinces, autonomous regions, and municipalities directly under the Central Government; all ministries and commissions of the State Council; and all institutions directly under the State Council: | | 各省、自治区、直辖市人民政府，国务院各部委、各直属机构： |
| Under the Guiding Opinions of the Central Committee of the Communist Party of China and the State Council on Deepening the Reform of State-Owned Enterprises, the Opinions of the General Office of the State Council on Strengthening and Improving the Supervision of the State-Owned Assets of Enterprises and Preventing the Loss of State-Owned Assets (No. 79 [2015], General Office of the State Council), and other requirements, for the purpose of implementing the responsibility for maintaining and increasing the value of state-owned capital, improving the supervision of state-owned assets, and preventing the loss of state-owned assets, with the approval of the State Council, the following opinions on establishing an accountability system for business operations and investment in violation of the regulations by state-owned enterprises are hereby offered. | | 根据《中共中央 国务院关于深化国有企业改革的指导意见》、《国务院办公厅关于加强和改进企业国有资产监督防止国有资产流失的意见》（国办发〔2015〕79号）等要求，为落实国有资本保值增值责任，完善国有资产监管，防止国有资产流失，经国务院同意，现就建立国有企业违规经营投资责任追究制度提出以下意见。 |
| I. General requirements | | 一、总体要求 |
| (1) Guiding thought. By comprehensively implementing the spirit of the 18th National Congress of the Communist Party of China (CPC), and the Third, Fourth and Fifth Plenary Sessions of the 18th CPC Central Committee, according to the overall layout for "economic, political, cultural, social, and ecological progress" and the strategic layout of "Four Comprehensives," firmly establishing and implementing the concept of innovative, coordinated, green, open and shared development, implementing in depth the spirit of a series of important speeches delivered by the General Secretary Xi Jinping, conscientiously implementing the decisions and arrangements of the CPC Central Committee and the State Council, adhering to the reform direction of socialist market economy, according to the requirement of improving the modern enterprise system, with the improvement of the operation quality and economic effectiveness of the state-owned enterprises as the objective, and with the enhancement of the supervision of departments and offices featuring centralized power, funds, resources and assets as the priority, the accountability shall be strictly implemented, the mechanism shall be improved, a business operations and investment responsibility system featuring clear powers and responsibilities and effective restraints shall be established, enterprise governance by law shall be comprehensively advanced, and the legal person governance structure with coordinated operations and effective checks and balance shall be improved, so as to improve the efficiency of state-owned capital, enhance the vigor of state-owned enterprises, prevent the loss of state-owned assets, and realize the maintenance and increase of the value of state-owned assets. | | （一）指导思想。全面贯彻党的十八大和十八届三中、四中、五中全会精神，按照“五位一体”总体布局和“四个全面”战略布局，牢固树立和贯彻落实创新、协调、绿色、开放、共享的发展理念，深入贯彻习近平总书记系列重要讲话精神，认真落实党中央、国务院决策部署，坚持社会主义市场经济改革方向，按照完善现代企业制度的要求，以提高国有企业运行质量和经济效益为目标，以强化对权力集中、资金密集、资源富集、资产聚集部门和岗位的监督为重点，严格问责、完善机制，构建权责清晰、约束有效的经营投资责任体系，全面推进依法治企，健全协调运转、有效制衡的法人治理结构，提高国有资本效率、增强国有企业活力、防止国有资产流失，实现国有资本保值增值。 |
| (2) Basic principles. | | （二）基本原则。 |
| i. Compliance with the laws and regulations, and punishment on any person violating the regulations. The state laws and regulations shall be used as a yardstick, and the internal management regulations shall be strictly implemented. In respect of the relevant business operation and management personnel of the state-owned enterprises who violate regulations, fail to perform or fail to correctly perform their duties in such a way as to cause the loss of state-owned assets or other serious adverse consequences, their liability for business operations and investment in violation of the regulations shall be strictly defined, they shall be strictly held to account, and a lifelong accountability system for major decisions shall be implemented. | | 1.依法合规、违规必究。以国家法律法规为准绳，严格执行企业内部管理规定，对违反规定、未履行或未正确履行职责造成国有资产损失以及其他严重不良后果的国有企业经营管理有关人员，严格界定违规经营投资责任，严肃追究问责，实行重大决策终身责任追究制度。 |
| ii. Organization by level and handling by category. Institutions performing the functions of investors and state-owned enterprises shall, according to the requirement for hierarchical management of state-owned assets and the management powers of officials, respectively organize the accountability work. Any act in violation of the laws and disciplines shall be handled in strict accordance with the disciplines and laws. | | 2.分级组织、分类处理。履行出资人职责的机构和国有企业按照国有资产分级管理要求和干部管理权限，分别组织开展责任追究工作。对违纪违法行为，严格依纪依法处理。 |
| iii. Objectivity, impartiality, and appropriate punishment. On the basis of thorough investigation and determination of liability, both the quantity standards and the differences in nature shall be considered, the degree of the loss of assets and the scope of accountability shall be determined based on the truth, and the relevant liable persons shall be appropriately and impartially handled. | | 3.客观公正、责罚适当。在充分调查核实和责任认定的基础上，既考虑量的标准也考虑质的不同，实事求是地确定资产损失程度和责任追究范围，恰当公正地处理相关责任人。 |
| iv. Combination of punishment and education, and integration of making rectification and developing rules and systems. While the liability for business operations and investment in violation of the regulations is seriously investigated, the summary of cases and warning education shall be strengthened, the rules and systems shall be constantly improved, the loopholes in business operations and management shall be fixed in a timely manner, and a permanent accountability mechanism shall be established, to improve business operations and management of state-owned enterprises. | | 4.惩教结合、纠建并举。在严肃追究违规经营投资责任的同时，加强案例总结和警示教育，不断完善规章制度，及时堵塞经营管理漏洞，建立问责长效机制，提高国有企业经营管理水平。 |
| (3) Main objectives. By the end of 2017, the accountability systems for business operations and investment in violation of the regulations by state-owned enterprises and the liability retracing mechanisms will be formed, the scope, standards, procedures and modes of accountability will be well defined and regulated, and there will be rules to observe in respect of the accountability work. By the end of 2020, the accountability working systems covering the institutions performing the functions of investors at all levels and state-owned enterprises shall be comprehensively established, the regulated and orderly accountability working mechanisms featuring well-defined duties and clear work flow will be formed to hold the relevant liable persons to account in a timely manner, and the state-owned enterprises' awareness of responsibility for business operation and investment and responsibility restraint will be significantly raised or improved. | | （三）主要目标。在2017年年底前，国有企业违规经营投资责任追究制度和责任倒查机制基本形成，责任追究的范围、标准、程序和方式清晰规范，责任追究工作实现有章可循。在2020年年底前，全面建立覆盖各级履行出资人职责的机构及国有企业的责任追究工作体系，形成职责明确、流程清晰、规范有序的责任追究工作机制，对相关责任人及时追究问责，国有企业经营投资责任意识和责任约束显著增强。 |
| II. Scope of accountability | | 二、责任追究范围 |
| Where the relevant business operation and management personnel of the state-owned enterprises violate the state laws, regulations and the internal management provisions of the enterprises, fail to perform or fail to correctly perform their duties and fall within the following circumstances which cause the loss of state-owned assets and other serious adverse consequences, they shall be held to account: | | 国有企业经营管理有关人员违反国家法律法规和企业内部管理规定，未履行或未正确履行职责致使发生下列情形造成国有资产损失以及其他严重不良后果的，应当追究责任： |
| (1) In the aspect of group management and control. The major violations of disciplines and laws by an affiliated subsidiary cause a major loss of assets, impair its sustainable business operation ability, or cause serious adverse consequences; the failure to perform or the failure to correctly perform duties causes a relatively large loss of assets of the group, significantly affecting the production, business operations and financial conditions; and the problems of major hidden risks, defect in internal control, etc. of the group are neglected, or notwithstanding the discovery thereof, no timely report or handling is made or conducted, causing major risks, etc. | | （一）集团管控方面。所属子企业发生重大违纪违法问题，造成重大资产损失，影响其持续经营能力或造成严重不良后果；未履行或未正确履行职责致使集团发生较大资产损失，对生产经营、财务状况产生重大影响；对集团重大风险隐患、内控缺陷等问题失察，或虽发现但没有及时报告、处理，造成重大风险等。 |
| (2) In respect of the management of purchase and sale. The failure to enter into or perform contracts according to the regulations, or the failure to perform or correctly perform duties causes clearly unfair prices of the subject matters of the contracts; transactions are false or "idling" trade is conducted in violation of the regulations; interests are funneled by making use of related transactions; biding is not conducted according to the regulations or the biding results are not carried out; sale on credit, qualifications, guarantee (including mortgage, pledge, etc.) or payment in advance is provided in violation of the regulations, and financing or investment is conducted in disguise by making use of prepayment business, goods transactions, or other means; goods futures, option, and other derivative business is conducted in violation of the regulations; and the receivables are not recovered in a timely manner in accordance with regulations, or no effective preservation measures are adopted, etc. | | （二）购销管理方面。未按照规定订立、履行合同，未履行或未正确履行职责致使合同标的价格明显不公允；交易行为虚假或违规开展“空转”贸易；利用关联交易输送利益；未按照规定进行招标或未执行招标结果；违反规定提供赊销信用、资质、担保（含抵押、质押等）或预付款项，利用业务预付或物资交易等方式变相融资或投资；违规开展商品期货、期权等衍生业务；未按规定对应收款项及时追索或采取有效保全措施等。 |
| (3) In the aspect of project contracting and construction. Failure to investigate and argue about the subject matter of the contract in accordance with the regulations, unauthorized bidding or bidding beyond authorization, or that the bidding price is seriously lower than the cost, causes the loss of the assets of the enterprise; the contract is concluded or altered without permission in violation of the regulations, the contract agreements are not strictly reviewed, and there exists major loophole; project goods fail to be subject to bidding; contract is assigned or subcontracting is conducted in violation of the regulations; the chaotic organization and management of projects cause the failure in project quality and serious project cost overruns; payment is made more than the price or earlier than the schedule in violation of the contract agreements, etc. | | （三）工程承包建设方面。未按规定对合同标的进行调查论证，未经授权或超越授权投标，中标价格严重低于成本，造成企业资产损失；违反规定擅自签订或变更合同，合同约定未经严格审查，存在重大疏漏；工程物资未按规定招标；违反规定转包、分包；工程组织管理混乱，致使工程质量不达标，工程成本严重超支；违反合同约定超计价、超进度付款等。 |
| (4) In the aspect of the transfer of property right, and the equities and assets of listed companies. The transfer is made without going through the decision-making or approval procedures in accordance with the regulations, or beyond the authority; financial auditing and assets appraisal are in violation of the relevant regulations; false information is organized, provided and disclosed, and false financial auditing and assets appraisal results are issued by manipulating the intermediary agencies; the disqualification system fails to be carried out in accordance with the relevant regulations, causing the loss of assets; and the enterprise property right, the equities and assets of listed companies, etc. are transferred at a low price in violation of the relevant provisions and the principle of open and fair transactions. | | （四）转让产权、上市公司股权和资产方面。未按规定履行决策和审批程序或超越授权范围转让；财务审计和资产评估违反相关规定；组织提供和披露虚假信息，操纵中介机构出具虚假财务审计、资产评估鉴证结果；未按相关规定执行回避制度，造成资产损失；违反相关规定和公开公平交易原则，低价转让企业产权、上市公司股权和资产等。 |
| (5) In the aspect of investment in fixed assets. Feasibility research and risk analysis fail to be conducted in accordance with the regulations; the project budget estimate fails to be subject to strict review and seriously deviates from the actual circumstances; arbitrary investment is made without going through the decision-making or approval procedures in accordance with the regulations, causing the loss of assets; no bids are invited for procurement or construction projects in accordance with the regulations, or biding is interfered in or manipulated; notwithstanding the significant change of the external environment, the investment plans fail to be adjusted in accordance with the regulations in a timely manner, and no measures to stop the loss are adopted; project design or construction content are changed without authorization; the chaotic project management causes serious delay of construction, and significant higher cost than the programs of the same type, etc. | | （五）固定资产投资方面。未按规定进行可行性研究或风险分析；项目概算未经严格审查，严重偏离实际；未按规定履行决策和审批程序擅自投资，造成资产损失；购建项目未按规定招标，干预或操纵招标；外部环境发生重大变化，未按规定及时调整投资方案并采取止损措施；擅自变更工程设计、建设内容；项目管理混乱，致使建设严重拖期、成本明显高于同类项目等。 |
| (6) In the aspect of investment and merger and acquisition. No due diligence is conducted in investment or merger and acquisition in accordance with the regulations, or the risks are not analyzed in due diligence, etc, and there exist major loopholes; financial auditing and assets appraisal or valuation are in violation of relevant provisions, or in the process of investment or merger and acquisition, intermediary agencies or relevant entities are inspired or incited to issue false reports; the decision-making or approval procedures are not met in accordance with the regulations, full consideration is not given to major risky factors in decision making, and no risk prevention plans are made; funds are provided in all forms in violation of the regulations to other joint venture partners or cooperating parties, or interests are funneled to the related parties by merger and acquisition at a high price, and other means; the protection of state-owned rights and interests is absent in the investment contract, agreement and the bylaws of the subject matter enterprise, and the management of the subject matter enterprise is out of control; the rights of shareholders are not enforced upon the investment by holding non-controlling shares, and no measures are taken to stop the loss in a timely manner notwithstanding significant changes; price for merger and acquisition is paid in advance in violation of the contract, etc. | | （六）投资并购方面。投资并购未按规定开展尽职调查，或尽职调查未进行风险分析等，存在重大疏漏；财务审计、资产评估或估值违反相关规定，或投资并购过程中授意、指使中介机构或有关单位出具虚假报告；未按规定履行决策和审批程序，决策未充分考虑重大风险因素，未制定风险防范预案；违规以各种形式为其他合资合作方提供垫资，或通过高溢价并购等手段向关联方输送利益；投资合同、协议及标的企业公司章程中国有权益保护条款缺失，对标的企业管理失控；投资参股后未行使股东权利，发生重大变化未及时采取止损措施；违反合同约定提前支付并购价款等。 |
(7) In the aspect of restructuring and reorganization. Decision-making and approval procedures fail to be carried out in accordance with the regulations; assets and capital verification, financial auditing and assets appraisal fail to be organized and conducted in accordance with the regulations; state-owned assets are intentionally transferred and concealed, or false information is provided to intermediary agencies, and intermediary agencies are manipulated to issue false results of assets and capital verification, financial auditing and assets appraisal; state-owned assets are converted to shares or sold at a clearly unfair price or given free of charge to other entities or individuals; state-owned equities are fraudulently obtained or partitioned without authorization in the process of restructuring and reorganization such as the development of mixed ownership economy and the implementation of employee stock option plan; the price for the transfer of state-owned assets fails to be charged in accordance with the regulations; the protection of the state-owned rights and interests is absent from the bylaws of the restructured company, etc.
．．．．．． | | （七）改组改制方面。未按规定履行决策和审批程序；未按规定组织开展清产核资、财务审计和资产评估；故意转移、隐匿国有资产或向中介机构提供虚假信息，操纵中介机构出具虚假清产核资、财务审计与资产评估鉴证结果；将国有资产以明显不公允低价折股、出售或无偿分给其他单位或个人；在发展混合所有制经济、实施员工持股计划等改组改制过程中变相套取、私分国有股权；未按规定收取国有资产转让价款；改制后的公司章程中国有权益保护条款缺失等。
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