|
|
|
|
|
|
|
|
|
|
|
|
|
| Guiding Opinions of the Supreme People's Court on the People's Courts' Provision of Judicial Guarantee for the Acquisitions, Mergers, and Reorganization of Enterprises | | 最高人民法院关于人民法院为企业兼并重组提供司法保障的指导意见 |
| (No. 7 [2014], the Supreme People's Court) | | （法发〔2014〕7号） |
| The High People's Courts of all provinces, autonomous regions and municipalities directly under the Central Government, the Military Court of the People's Liberation Army and the Xinjiang Production and Construction Corps Division of the High People's Court of Xinjiang Uigur Autonomous Region: | | 各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院： |
| Acquisitions, mergers, and reorganizations of enterprises are an important means of readjusting and optimizing the industrial structure, phasing out backward production capacities, disposing of surplus production capacities, and improving the quality and efficiency of economic development. It is also an effective approach to realizing a shift of the mode of economic development and promoting China's comprehensive economic strength. Presently, China's economy is in a period of “gear change” in growth rate and in a period of throes of restructuring, which is also a period of important opportunities for promoting acquisitions, mergers, and reorganizations of enterprises. The 18th National Congress of the Communist Party of China (CPC) and the 3rd Plenary Session of the 18th Central Committee of the CPC planned the various tasks for comprehensive deepening of reform. The State Council's Opinions on Further Optimization of the Market Environment for Acquisitions, Mergers, and Reorganization of Enterprises (No. 14 [2014], the State Council) (“the Opinions”) defines the major objectives, basic principles and relevant measures for promoting acquisitions, mergers, and reorganizations of enterprises. Acquisitions, mergers, and reorganizations of enterprises are an important task for promoting reform of enterprises in a future period of time. The people's courts at all levels shall sufficiently understand the important functions and roles of the work of judicial adjudication in acquisitions, mergers, and reorganizations of enterprises, and promote smooth progression of the work of acquisitions, mergers, and reorganizations of enterprises in accordance with the law. | | 企业兼并重组是调整优化产业结构，淘汰落后产能，化解过剩产能，提高经济发展质量和效益的重要手段，也是转变经济发展方式，提升我国综合经济实力的有效途径。当前，我国经济处于增长速度换档期、结构调整阵痛期，同时也是推进企业兼并重组的重要机遇期。党的十八大和十八届三中全会部署了全面深化改革的各项任务，国务院《关于进一步优化企业兼并重组市场环境的意见》（国发〔2014〕14号，以下简称《意见》）明确了推动企业兼并重组的主要目标、基本原则和相关措施。企业兼并重组是今后一个时期推进企业改革的重要任务。各级人民法院要充分认识司法审判工作在企业兼并重组中的重要职能作用，依法有序推进企业兼并重组工作的顺利进行。 |
| I. Adherence to Focusing on the Central Task and Catering to the General Situation, and Protection of Smooth Progression of the Work of Acquisitions, Mergers, and Reorganizations of Enterprises by Means of the Rule of Law | | 一、坚持围绕中心服务大局，以法治方式保障企业兼并重组工作依法有序推进 |
| 1. The work of judicial adjudication shall be consciously included in the overall work of both the CPC and the state, and the demand for justice in the work of acquisitions, mergers, and reorganizations of enterprises shall be actively responded to: The work of acquisitions, mergers, and reorganizations of enterprises is an important approach of the CPC Central Committee and the State Council for deepening reform of the economic system, realizing a shift of the mode of economic development and readjusting the industrial structure in the new period of time. Along with gradual implementation of the tasks by the central and local government departments at all levels for acquisitions, mergers, and reorganizations of enterprises, it will be inevitable for some disputes to be referred to the people's courts through legal proceedings. The people's courts at all levels shall sufficiently understand that as acquisition, merger or reorganization of enterprises involves complicated contradictions, extensive subjects and serious interests, it is essential to enhance the awareness about the general situation and responsibility, and allow the people's courts to play their functional roles in accordance with the law, and closely in light of the spirit of the 18th National Congress of the CPC and the 3rd Plenary Session of the 18th Central Committee of the CPC and the requirement of the Opinions, to practically guarantee steady promotion of the work of acquisitions, mergers, and reorganizations of enterprises. | | 1.要自觉将司法审判工作置于党和国家全局工作中，积极回应企业兼并重组工作的司法需求。企业兼并重组工作是党中央、国务院在新时期深化经济体制改革、转变经济发展方式、调整优化产业结构的重要举措。随着中央和地方各级政府部门关于企业兼并重组任务的逐步落实，一些纠纷将不可避免地通过诉讼程序进入人民法院。各级人民法院要充分认识到企业兼并重组涉及的矛盾复杂、主体广泛和利益重大，要强化大局意识和责任意识，紧密结合党的十八大、十八届三中全会精神和《意见》要求，依法充分发挥人民法院的职能作用，切实保障企业兼并重组工作的稳步推进。 |
| 2. The relationship between implementation of the policies and guidelines of the CPC and strict enforcement of law shall be correctly handled, to realize organic unity between the legal effect and social effect of acquisitions, mergers, and reorganizations of enterprises. Major strategic planning by the 18th National Congress of the CPC and the 3rd Plenary Session of the 18th Central Committee of the CPC is a scientific guide and program of action of China for comprehensive deepening of reform at a new historical start point. The policies and guidelines of the CPC and laws of the state are both in reflection of the fundamental will of the people, and the two are consistent in essence. To keep improving and developing the system of socialism with Chinese characteristics and promoting modernization of the governance system and the governance capacity of the state have raised higher requirement for correct implementation by the people's courts of the policies and guidelines of the CPC and strict enforcement of law. The people's courts shall, from the high perspective of strengthening national strategies, profoundly understand the great significance of providing judicial protection for realizing a shift of the mode of development and readjusting and optimizing the industrial structure, and shall, by means of strict enforcement of law, try cases impartially and with high efficiency, to realize organic unity between the legal effect and social effect of adjudication of cases of acquisitions, mergers, and reorganizations of enterprises. | | 2.要正确处理贯彻党的方针政策与严格执法的关系，实现企业兼并重组法律效果和社会效果的有机统一。党的十八大和十八届三中全会作出的重大战略部署是我国在新的历史起点上全面深化改革的科学指南和行动纲领。党的方针政策和国家法律都是人民根本意志的反映，二者在本质上是一致的。不断完善和发展中国特色社会主义制度，推进国家治理体系和治理能力现代化，对人民法院正确贯彻党的方针政策与严格执法提出了更高的要求。人民法院要从强化国家战略的高度深刻认识为转变经济发展方式、调整优化产业结构提供司法保障的重大意义，通过严格执行法律，公正高效地审理案件，实现兼并重组案件审理法律效果和社会效果的有机统一。 |
| 3. Great importance shall be attached to the work of acquisitions, mergers, and reorganizations of enterprises, and smooth implementation of policies on acquisitions, mergers, and reorganizations of enterprises shall be guaranteed in accordance with the law: Acquisitions, mergers, and reorganizations of enterprises not only concerns enterprises themselves, but also extensively involves a series of issues including equal protection of the non-public sector of the economy in accordance with the law, prevention of losses of state-owned assets, protection of financial security, reemployment of workers, guarantee of livelihood and social stability. The people's courts shall make study and judgment in advance, and make taxonomic assessment and timely intervention, to protect orderly progression of the work of acquisitions, mergers, and reorganizations of enterprises in accordance with the law. They shall strengthen communication with government departments, and shall, in accordance with the actual need, promote establishment of mechanisms for coordination of the work of acquisitions, mergers, and reorganizations of enterprises, to realize sharing of information and smoothness of procedures. Where they find out any serious or emerging issue in the trial of cases or enforcement, the people's courts shall report it to the competent functional authorities concerned or make judicial proposal. | | 3.要高度重视企业兼并重组工作，依法保障企业兼并重组政策的顺利实施。企业兼并重组不仅关涉企业自身，还广泛涉及依法平等保护非公经济、防止国有资产流失、维护金融安全、职工再就业和生活保障以及社会稳定等一系列问题。人民法院要提前研判、分类评估、适时介入，依法保障企业兼并重组工作有序进行。要加强与政府部门沟通，根据需要推动建立企业兼并重组工作协调机制，实现信息共享、程序通畅。在案件审理执行中发现的重大性、苗头性问题，要及时向有关职能部门反馈或者提出司法建议。 |
| 4. Cases relevant to acquisitions, mergers, and reorganizations of enterprises shall be accepted and tried in a timely manner in accordance with the law, to defuse the various types of disputes in acquisitions, mergers, and reorganizations of enterprises through judicial adjudication: the people's courts shall, in a timely manner in accordance with the law, accept and try cases of determination of effect of contracts, transfer of equities, affirmation of investment equities, private financing, guarantee of financial claims, protection of workers' rights and interests, liquidation of enterprises, reorganization of enterprises, economic crimes, etc. occurring in the process of acquisitions, mergers, and reorganizations of enterprises. Without a statutory reason, they may not refuse to accept a case and may not delay a trial. | | 4.要依法及时受理审理兼并重组相关案件，通过司法审判化解企业兼并重组中的各类纠纷。人民法院要依法及时受理审理企业兼并重组过程中出现的合同效力认定、股权转让、投资权益确认、民间融资、金融债权保障、职工权益维护、企业清算、企业重整、经济犯罪等案件，无法定理由不得拒绝受理，不得拖延审理。 |
| 5. In accordance with the principle of balance of interests, the various types of conflicts of interests shall be appropriately handled in accordance with the law: Acquisitions, mergers, and reorganizations of enterprises extensively concern the vital interests of different entities including enterprises of all sides, investors, creditors and workers involved in acquisitions, mergers, and reorganization, in which wrangling over interests and conflicts of rights are unavoidable. The people's courts shall, through the legal relationship in individual cases, analyze the essence of conflicts of interests, identify the interest entities and claims for interests behind them, and determine the order of precedence of protection of interests in accordance with the law. Under the circumstance that there is no written provision of law, priority shall be given to seeking for common interests in conflicts of individual interests, to realize the maximum interests of all sides as much as possible. In coexistence and conflicts between individual interests and interests of different entities including collective interests, social public interests, local interests and interests of the whole, consideration shall be given to individual interests and local interests while protecting collective interests, social public interests and interests of the whole. Improper interference by local protectionism, industrial protectionism and departmental protectionism in the work of judicial adjudication shall be resolutely overcome. | | 5.要按照利益衡平原则，依法妥善处理各种利益冲突。企业兼并重组广泛涉及参与兼并重组的各方企业、出资人、债权人、企业职工等不同主体的切身利益，在此期间的利益博弈与权利冲突无法回避。人民法院要注意透过个案的法律关系，分析利益冲突实质，识别其背后的利益主体和利益诉求，依法确定利益保护的优先位序。法律法规没有明文规定的情形下，在个体利益冲突中应当优先寻找共同利益，尽可能实现各方的最大利益；在个体利益与集体利益、社会公共利益，地方利益与全局利益等不同主体利益的并存与冲突中，要在保护集体利益、社会公共利益和全局利益的同时兼顾个体利益、地方利益。坚决克服地方保护主义、行业及部门保护主义对司法审判工作的不当干扰。 |
| II. Strengthening of the Conception of Commercial Adjudication, and Maximizing the Decisive Role of the Market in the Distribution of Resources | | 二、强化商事审判理念，充分发挥市场在资源配置中的决定性作用 |
6. Effect of acts of acquisitions, mergers, and reorganizations shall be determined in accordance with the law, to promote lawful and orderly turnover of capital: The effect of the various types of acquisitions, mergers, and reorganizations contracts shall be correctly determined strictly in accordance with the provisions of Article 52 of the Contract Law for effect of contracts. In light of the ways of transaction between the parties and trading practices at the marketplace, effect and enforceability of precontracts, agreements of intent, framework agreements, etc. in acquisition, merger or reorganization shall be accurately determined. The commercial adjudication conception of promoting conducting of transactions and protecting transaction security shall be adhered to. The effect of new types of contracts including agreements on valuation adjustment agreements and share conversion agreements shall be prudently determined. Determination of invalidity of contracts merely on the grounds that there is no provision of law shall be avoided. Autonomy of the will of market players shall be respected. The contract spirit shall be maintained. The relationship between behavior of transaction in acquisitions, mergers, and reorganizations and administrative review and approval by the government shall be appropriately determined. The relationship between external acts of companies and internal autonomy of the will of companies shall be well handled. The legal effect of resolutions on merger or separation of enterprises, issue of new stocks, major changes in assets, etc. involved in acquisition, merger or reorganization shall be reviewed in terms of whether the procedures for calling meetings, methods of voting, contents of resolutions, etc. are in violation of law, administrative regulations or company constitutions or not, strictly in accordance with the provisions of Article 22 of the Company Law. For issues of the method of voting based on cross shareholding, simple merger of companies, etc. for which there is the absence of specific legal provisions, the effect of acts shall be prudently determined in accordance with the facts of the individual cases concerned and the outcome of the acts.
．．．．．． | | 6.依法认定兼并重组行为的效力，促进资本合法有序流转。 要严格依照合同法
．．．．．． |
|
Dear visitor, as a premium member of this database, you will get complete access to all content.Please go premium and get more.
1. To become a premium member, please call 400-810-8266 Ext. 171.
2. Binding to the account with access to this database.
3. Apply for a trial account.
4. To get instant access to a document, you can Pay Amount 【￥600.00】 for your single purchase. | |
您好：您现在要进入的是北大法宝英文库会员专区。
如您是我们英文用户可直接 登录，进入会员专区查询您所需要的信息；如您还不是我们 的英文用户；您可通过网上支付进行单篇购买，支付成功后即可立即查看本篇内容。
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail:info@chinalawinfo.com
|
| | | | | | | | |
Scan QR Code and Read on Mobile
|
|
|
|
|
|
Message: Please kindly comment on the present translation.
|
|
|
|
|
|
|
|
|
Translations are by lawinfochina.com, and we retain exclusive copyright over content
found on our website except for content we publish as authorized by respective copyright
owners or content that is publicly available from government sources.
Due to differences in language, legal systems, and culture, English translations
of Chinese law are for reference purposes only. Please use the official Chinese-language
versions as the final authority. Lawinfochina.com and its staff will not be directly
or indirectly liable for use of materials found on this website.
We welcome your comments and suggestions, which assist us in continuing to improve
the quality of our materials as we dynamically expand content.
|
|
|
|
|
|