Measures for the formulation and management of the articles of association of state-owned enterprises
Chapter I: General Provisions
Article 1 In order to thoroughly implement the Thought on Socialism with Chinese Characteristics in the New Era, uphold and strengthen the overall leadership of the Party, build a modern enterprise system with Chinese characteristics, give full play to the basic role of the articles of association in corporate governance, and standardize the management of the articles of association, in accordance with the Constitution of the Communist Party of China, the Company Law of the People's Republic of China (hereinafter referred to as the "Company Law"), the Law of the People's Republic of China on State-owned Assets of Enterprises (hereinafter referred to as the "Law on State-owned Assets of Enterprises") and other relevant provisions, in accordance with the The General Office of the State Council on further improving the corporate governance structure of state-owned enterprises (Guo Ban Fa [2017] No. 36) and other documents, combined with the actual situation of state-owned enterprises, these measures are formulated.
Article 2 These Measures shall apply to the formulation, amendment, review and approval of the articles of association of wholly state-owned companies, wholly state-owned companies and state-owned holding companies funded by the state and supervised by the institutions performing the duties of investors.
Article in these measures to perform the duties of the investor institutions (hereinafter referred to as the investor institutions) refers to the State-owned assets supervision and administration of the State Council and the local people's Governments in accordance with the provisions of the State Council established State-owned assets supervision and administration institutions, as well as the State Council and local people's Governments as needed to authorize the State-owned enterprises on behalf of the people's Governments at the same level to perform the duties of investors of other departments and agencies.
Article 4 The formulation and management of the articles of association of state-owned enterprises shall adhere to the overall leadership of the Party, adhere to the rule of law, adhere to the principle of equal rights and responsibilities, effectively regulate corporate governance, implement the property rights and operational autonomy of enterprise legal persons, improve the supervision of state-owned enterprises, and ensure the preservation and appreciation of the value of state-owned assets.
Chapter II The main content of the articles of association
Article 5 The articles of association of a state-owned enterprise shall generally include, but are not limited to, the following main contents:
(1) General Provisions;
(2) The purpose, scope and duration of the business;
(3) the investor institution or shareholders, and the shareholders' meeting (including the general meeting of shareholders, the same below);
(4) The company's party organization;
(5) Board of Directors;
(6) Managers;
(7) the board of supervisors (supervisors);
(8) Democratic management of employees and labor and personnel system;
(9) Financial, accounting, auditing and legal counsel systems;
(10) merger, division, dissolution and liquidation;
(11) Supplementary Provisions.
Article 6 The general provisions shall contain the basic information such as the company's name, domicile, legal representative, and registered capital in accordance with the requirements of the Company Law and other laws and regulations. Clarify the type of company (wholly state-owned company, limited liability company, etc.), and clarify that the company shall establish Party organizations in accordance with the provisions of the Constitution of the Communist Party of China, carry out Party work, and provide basic guarantees.
Article 7 The business purpose, scope and term clauses shall contain the basic information such as the company's business purpose, business scope and business period in accordance with the relevant provisions of the Company Law. The business purpose and business scope shall conform to the company's development strategic plan approved by the investor's institution, and the expression of the business scope shall be standardized and uniform, and shall meet the administrative requirements of industrial and commercial registration.
Article 8 The terms and conditions of the investor institution or shareholders and the shareholders' meeting shall be expressed in accordance with the Company Law, the Law on State-owned Assets of Enterprises and other relevant laws and regulations and relevant provisions, specify the method of capital contribution, and clarify the terms of reference of the investor institution or shareholders and the shareholders' meeting.
Article 9 The provisions of the Party organization of the Company shall, in accordance with the Constitution of the Communist Party of China and the Regulations of the Communist Party of China on the Work of Grass-roots Organizations of State-owned Enterprises (for Trial Implementation) and other relevant provisions, specify the responsibilities and powers of the Party committee (Party group) or the Party branch (General Party branch), institutional setup, operation mechanism and other important matters. It is clarified that the research and discussion of the party organization is a pre-procedure for the board of directors and managers to make decisions on major issues.
State-owned enterprises that have established party committees (party groups) of companies shall clearly state that the party committees (party groups) should play a leading role, set the direction, manage the overall situation, ensure implementation, discuss and decide on major matters of the enterprise in accordance with regulations, and clearly adhere to and improve the leadership system of "two-way entry and cross-posting" and relevant requirements. State-owned enterprises that have established a party branch (general party branch) of a company shall make it clear that the party branch (general party branch) of the company shall carry out work around production and operation and play the role of a fighting fortress; the party branch (general party branch) of an enterprise with the right to make decisions on major matters of human resources and property shall make it clear that the party member in charge of the enterprise shall generally serve as the secretary and member, and the party branch (general party branch) shall conduct collective research and check on major matters of the enterprise.
For the party building work of state-owned enterprises with relative holdings, it is necessary to fully listen to the opinions of other shareholders, including institutional investors, in light of the actual conditions of the enterprise's equity structure, operation and management, and write the basic requirements for party building work into the articles of association with reference to the relevant provisions and the content of this article.
Article 10 The terms of the board of directors shall clarify the responsibilities of the board of directors in setting strategies, making decisions and preventing risks, as well as the organizational structure and rules of procedure of the board of directors; specify the rights and obligations granted by the investor institution or the shareholders' meeting to the board of directors; clarify the rights and obligations of the directors and the responsibilities of the chairman of the board of directors; clarify that the general manager, deputy general manager, person in charge of finance, general counsel and secretary of the board of directors shall be appointed by the board of directors; it shall be clear that the board of directors shall report to the investor institution (shareholders' meeting), the audit department shall be responsible to the board of directors, and the legal compliance review of major decisions. Mechanisms such as follow-up and implementation of board resolutions, post-evaluation, and accountability for illegal operation and investment.
Wholly state-owned companies and wholly state-owned companies shall specify that the number of outside directors recommended by the investor institution or relevant shareholders shall exceed half of all members of the board of directors, and the employee representatives of the board of directors shall be elected in accordance with legal procedures.
Article 11 The terms of the managerial level shall clearly define the responsibilities and positioning of the managers in seeking management, grasping implementation, and strengthening management; clearly define the relevant requirements for the establishment of the general manager, deputy general manager, and person in charge of finance, such as the secretary of the board of directors and the general counsel, shall be clearly defined as senior management personnel; specify the responsibilities of the general manager; make it clear that the general manager is responsible to the board of directors, exercise the functions and powers of managing production and operation, organizing and implementing the resolutions of the board of directors in accordance with the law, and report to the board of directors.
Article 12 A state-owned enterprise that has established a board of supervisors shall specify the composition, duties and rules of procedure of the board of supervisors in the articles of the board of supervisors. State-owned enterprises that do not have a board of supervisors but only have supervisors shall clarify the number and responsibilities of supervisors.
Article 13 The relevant provisions of the financial and accounting systems shall conform to the national general enterprise financial system and the national unified accounting system.
Article 14 The main content of the articles of association of the company shall ensure that the boundaries of the rights and responsibilities of the investor institution or the shareholders' meeting, the party committee (party group), the board of directors, the managerial level and other governance entities are clear, the rules of procedure for major matters are scientific and standardized, and the decision-making procedures are smoothly connected.
Article 15 The articles of association of the company may add other contents according to the actual situation of the enterprise. The relevant content must comply with the provisions of laws and administrative regulations.
Chapter III Procedures for Formulating Articles of Association of Wholly State-Owned Companies
Article 16 The articles of association of a wholly state-owned company shall be formulated by the investor institution, or shall be formulated by the board of directors and submitted to the investor institution for approval. The investor institution may authorize the preparatory body for the establishment, reorganization or restructuring of the enterprise and other decision-making bodies to formulate a draft articles of association and submit it to the investor institution for approval.
Article 17 In the event of any of the following circumstances, the articles of association of a wholly state-owned company shall be formulated in accordance with law:
(1) Newly established a wholly state-owned company;
(2) A wholly state-owned company is newly created through merger, division or other reorganization;
(3) The wholly state-owned enterprise is restructured into a wholly state-owned company;
(4) Other circumstances in which the articles of association of the company shall be formulated.
Article 18 The investor institution shall be responsible for amending the articles of association of the wholly state-owned company. The board of directors of a wholly state-owned company may, in accordance with the actual situation of the enterprise, formulate amendments to the articles of association of the company in accordance with laws and administrative regulations, and submit them to the investor institution for approval.
Article 19 In the event of any of the following circumstances, the articles of association of a wholly state-owned company shall be amended in a timely manner:
(1) The matters stipulated in the articles of association of the company are in conflict with the current laws, administrative regulations, rules and normative documents;
(2) The actual situation of the enterprise has changed, which is inconsistent with the record in the articles of association;
(3) The investor institution decides to amend the articles of association;
(4) Other circumstances that should be amended to the articles of association of the company.
Article 20 Where the draft or amendment to the articles of association of a wholly state-owned company is formulated by the preparatory body or the board of directors of the company, it shall be submitted to the investor institution for approval within 5 working days after deliberation and approval, and the following written documents shall be submitted:
(1) A request from a wholly state-owned company on formulating or amending the articles of association;
(2) The resolution of the preparatory body of the wholly state-owned company on the draft articles of association, or the resolution of the board of directors on the amendment of the articles of association;
(3) The draft charter, or the explanation of amendments and amendments to the charter;
(4) A copy of the property right registration certificate (form) and a copy of the business license (except for newly established companies);
(5) If the general counsel of the company signs a legal opinion on the draft articles of association or amendments, and no general counsel is established, the law firm shall issue a legal opinion or the company's legal department shall issue a review opinion;
(6) Other relevant materials required by the investor's institution.
Article 21 After receiving the request materials, the investor institution shall conduct a formal review of the materials. Where the submitted materials are incomplete, a one-time notice shall be given to supplement and correct them within 5 working days.
Article 22 The investor institution shall review the draft or amendment to the articles of association of the company, and inform the submitting unit of the review opinions within 15 working days, and after communication and confirmation of agreement, the investor institution shall complete the approval procedure within 15 working days.
Article 23 Where the investor institution needs to solicit the opinions of other business-related units, or needs to report to the people's government at the same level for approval, it shall adjust the corresponding time limit according to the actual work situation and inform the submitting unit of the relevant situation in advance.
Article 24 After the articles of association of a wholly state-owned company are approved, the investor institution shall be responsible for reviewing and signing them in accordance with the prescribed procedures.
Article 25 After receiving the approval documents of the articles of association, a wholly state-owned company shall go through the industrial and commercial registration formalities within the time prescribed by laws and administrative regulations.
Chapter IV Procedures for Formulating Articles of Association of Wholly State-Owned and Holding Companies
Article 26 When a wholly state-owned company or a state-owned holding company is established, the shareholders shall jointly formulate the articles of association.
Article 27 The shareholders' meeting of a wholly state-owned company or a state-owned holding company shall be responsible for amending the articles of association. The board of directors of a wholly state-owned company or a state-controlled company shall, in accordance with laws, administrative regulations and the actual situation of the company, formulate amendments to the articles of association in a timely manner, and submit them to the shareholders' meeting for deliberation after communicating with the investor institution.
Article 28 In the event of any of the following circumstances, the articles of association of a wholly state-owned company or a state-owned holding company shall be amended in a timely manner:
(1) The matters stipulated in the articles of association of the company are in conflict with existing laws, administrative regulations, rules and normative documents;
(2) The actual situation of the enterprise has changed, which is inconsistent with the record in the articles of association;
(3) The shareholders' meeting decides to amend the articles of association;
(4) Other circumstances that should be amended to the articles of association of the company.
Article 29 The investor institution shall appoint a shareholder representative to attend the shareholders' meeting. Shareholder representatives shall, in accordance with the opinions of the investor institution on the articles of association, express their opinions, vote and sign relevant documents through legal procedures.
Article 30 The investor institution shall, in accordance with the provisions of the Company Law, sign and seal the articles of association of a wholly state-owned company or a state-owned holding company after being deliberated and approved by the shareholders' meeting.
Article 31 After the draft and amendments to the articles of association of a wholly state-owned company or a state-owned holding company are voted and approved by the shareholders' meeting, the company shall go through the industrial and commercial registration formalities within the time prescribed by laws and administrative regulations.
Chapter V: Responsibility and Supervision
Article 32 In the process of formulating the articles of association of a state-owned enterprise, if the investor institution and relevant personnel violate the laws, administrative regulations and the provisions of these Measures, they shall bear the corresponding legal responsibility in accordance with law.
Article 33 The board of directors of a wholly state-owned company, the director of a wholly state-owned company or a state-owned holding company appointed by the investor institution shall, within the scope of their duties, be responsible for the authenticity, completeness, validity and timeliness of the materials submitted to the investor institution in the process of formulating the articles of association of the state-owned enterprise company, and shall bear the corresponding legal responsibility in accordance with law if the loss of state-owned assets or other serious adverse consequences are caused.
Article 34 Where a shareholder representative appointed by the investor institution of a wholly state-owned company or a state-owned holding company violates the provisions of Article 29 and causes the loss of state-owned assets or other serious adverse consequences, it shall bear the corresponding legal responsibility in accordance with law.
Article 35 The investor institution shall supervise and inspect the implementation of the articles of association of a wholly state-owned company, a wholly state-owned company or a state-owned holding company, correct the violation of the articles of association, and investigate the responsibility of the relevant persons responsible for the loss of state-owned assets or other serious adverse consequences caused by the violation of the articles of association.
Chapter VI: Supplementary Provisions
Article 36 The investor institution may, in light of the actual situation, introduce relevant supporting systems to strengthen the formulation and management of the articles of association of the state-owned enterprises in which it invests.
Article 37 State-owned enterprises may, with reference to these Measures, formulate the articles of association of the enterprises in which they invest, and formulate management measures according to the actual situation.
Article 38 The formulation and administration of the articles of association of a state-controlled listed company shall at the same time comply with the relevant provisions of securities regulation.
Article 39 The articles of association of financial, cultural and other state-owned enterprises shall be formulated and administered, and other provisions shall be implemented in accordance with those provisions.
Article 40: These Measures shall come into force on the date of promulgation.
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