Original Source: China Business Law Journal

State-owned properties, broadly speaking, are various forms of property that arise as a result of state-made investments. Corporate mergers and acquisitions (M&A) are generally divided into asset and equity M&A. As asset acquisitions involve such issues as title to the assets, and taxes and levies, in practice corporate M&A, where the subject matter is equity, are more common. In corporate M&A, the issue of the transfer of state-owned properties exists regardless of whether an ordinary joint stock limited company, listed company, or unlisted public company is involved.

Joint stock limited companies. The state-owned properties issue in these companies was most commonly handled by a negotiated transfer, before the implementation of the Interim Administrative Measures for the Transfer of the State-Owned Property Rights of Enterprises (Order No. 3), issued by the State-owned Assets Supervision and Administration Commission (SASAC). This is despite the issuance and implementation, as early as 1991, by the State Council of the Administrative Measures for the Valuation of State-Owned Assets, which required the carrying out of the appropriate valuation procedures for transfers of state-owned properties. The most important contribution of Order No. 3 is further regulating from the perspective of preventing the squandering of state-owned assets, the transfer of state-owned properties, and, it expressly requires, for a transfer of state-owned assets that property rights be demarcated, that assets and capital be verified, that assets be valued and that the outcome of the valuation be filed for the record or submitted for approval. The transfer of the state-owned properties may not be carried out until the floor transaction procedures have been carried out. Accordingly, in practice, where a joint stock limited company that encompasses state-owned equity is to be acquired, the provisions concerning floor transactions need to be carried out, except under the special circumstances where a negotiated transfer of state-owned properties is applicable.

Relevant legislation, such as the Administrative Measures for the Transfer of the State-Owned Assets of Financial Enterprises, is applicable to the acquisition of financial state-owned enterprises (SOEs).

Listed companies. The issue of state-owned equity in acquisitions of listed companies is mainly reflected in:

(1) transfers of shares of the listed companies by state-owned hareholders; and (2) acquisitions of shares of listed companies by state-owned shareholders.

For (1), it is accomplished pursuant to the Interim Administrative Measures for the Transfer of Shares of Listed Companies Held by State-Owned Shareholders (Order No. 19). Order No. 19 addresses such operations as: the reduction of the holding of state-owned shares by way of the secondary market; the negotiated transfer of such shares; the allocation without consideration thereof; and indirect transfer of the same. The authority for the recordal and approval of this type of transfer lies, at present, in the hands of SASAC of the State Council.

For (2), it is handled pursuant to the Notice on Matters Relevant to the Regulation of Asset Restructurings Carried Out by State-Owned Shareholders and Listed Companies. When a state-owned entity wishes to acquire shares of a listed company by negotiation, it is required to engage a financial adviser to issue an opinion, and the authority for the approval of such acquisition lies with the provincial-level SASAC, whereas the transfer of the shares is subject to the approval of the SASAC of the State Council.

Unlisted public companies. Pursuant to the Measures for the Oversight of Unlisted Public Companies, the unlisted companies that are currently covered are mainly New Third Board companies, i.e., joint stock limited companies listed and traded on the National Equities Exchange and Quotations (NEEQ). The transfer of shares of unlisted public companies on the NEEQ can be accomplished either through a negotiated transfer or market maker transfer. For a market maker transfer of a company listed on the NEEQ there is a clear price and the corresponding transaction volume. A client previously asked the author’s firm if a market maker transfer could be compared to the pricing mechanism for the transfer of shares of listed companies where the NEEQ transaction price or average price could serve as the pricing mechanism for the transfer.

After a certain investment company had invested in the equity of an unlisted enterprise, the enterprise listed on the New Third Board and adopted the market maker transfer transaction method, following which it was continually actively traded. The state-owned investment company, proposing to transfer the shares it held in the enterprise on the NEEQ to achieve a divestment, asked the author’s firm if it could carry out the transfer at the NEEQ trading price. This transfer price greatly exceeded the price at which the state-owned investment company had acquired its equity interest in the enterprise.

The author’s firm argued that since New Third Board companies are essentially unlisted companies, the pricing mechanism was not entirely equivalent or comparable to the pricing mechanism and decision-making procedure for the transfer of state-owned shares of listed companies. Instead, the floor transaction or negotiated transfer method should apply. The firm made inquiries with the NEEQ about this. At present, the NEEQ does not have any determined regulations for the transfer of state-owned shares on the New Third Board and, specifically, transfer issues relating to the disposal of state-owned shares remain subject to relevant regulations of the state-owned asset authority.

Recent regulations. On the basis of Order No. 3, the Measures for the Oversight of Transactions Involving the State-Owned Assets of Enterprises of 24 June 2016 further regulate capital increases by state-owned and state-controlled enterprises, and enterprises de facto controlled by the state, and add a provision that the capital increases of such enterprises also require floor transactions. In terms of the transaction method, the method of investing in a minority stake of the equity of state-owned and state-controlled enterprises, and of enterprises de facto controlled by the state, has been changed from the existing method of executing a capital increase agreement to the method requiring a floor transaction.

When an SOE invests in the equity of a non-SOE, i.e., when it participates in the capital increase of a non-SOE, the same will continue to be accomplished by way of an agreement executed between the investor and investee on the basis of an asset valuation. Where the method of divestment is concerned, the regulations applicable to one of the three types of companies mentioned above are to be selected based on the stage at which the investee enterprise finds itself.


国有产权，从广义上讲，是国家出资形成的各种形式的财产。公司并购一般分为资产并购及股权并购，由于资产
并购涉及资产权属及税费问题，故实践中，公司并购的标的以股权居多。总体而言，在公司并购中，在一般有限
公司层面、上市公司层面以及非上市公众公司层面都存在国有产权的转让问题。

有限公司层面。有限公司层面的国有产权问题，在国资委《企业国有产权转让管理暂行办法》（三号令）颁布施行之前，主要以协议转让形式居多。尽管国务院早在1991年即颁布实行《国有资产评估管理办法》，要求对国有产权转让履行相应的评估手续。

国资委三号令的最主要的贡献是从保护国有资产不流失的角度，进一步规范了国有产权的转让，明确要求国有资产转让必须履行产权界定、清产核资、资产评估、评估结果备案或核准；在履行进场交易手续后，才能进行国有产权的转让。所以，在实践中，并购含有国有股权的有限公司，除特殊情况下适用国有产权的协议转让以外，均需履行进场交易的相关规定。

金融国有企业的相关并购，应适用《金融企业国有资产转让管理办法》等相关法规、条例的规定。

上市公司层面。上市公司收购中的国有股权问题，主要体现在国有股东转让上市公司股份，以及国有股东受让上市公司股份两个方面。国有股东转让上市公司国有股份，主要是依据《国有股东转让所持上市公司股份管理暂行办法》（19号文）来进行操作。19号文主要对国有股份的二级市场减持、协议转让、无偿划拨和间接转让等操作进行了明确的规范。值得注意的是，目前国有股东转让上市公司国有股份的备案及审批权均在国务院国有资产监督管理委员会。

国有股东重组上市公司需要依照《关于规范国有股东与上市公司进行资产重组有关事项的通知》进行相应的规范。值得注意的是，国有单位通过协议方式受让上市公司股份，需要聘请财务顾问发表意见，国有股东受让上市公司股份的审批权在省级国资委，而出让股份的审批权在国务院国资委。

非上市公众公司层面。根据《非上市公众公司监督管理办法》的规定，目前受到规范的非上市公司主要是新三板公司，即在全国中小企业股份转让系统公司（股转系统）挂牌交易的股份公司。

目前就非上市公众公司的股份转让而言，在股转系统有协议转让及做市转让两种方式。其中，做市转让在股转系统挂牌的公司，有明确的价格，也有相应的成交量。曾有客户向本所律师询问做市转让是不是可比照上市公司的股份转让定价机制，以股转系统的交易价格或均价作为转让的定价机制。

某国有投资公司投资了一家未上市企业的股权，后该企业在新三板挂牌上市，并采用做市转让交易方式，一直有活跃的交易。该国有投资公司拟在新三板转让其持有的该企业股份以实现投资退出，询问本所律师是否可按新三板交易价格进行转让，该转让价格已远高于国有投资公司入股该企业的价格。

针对该问题，本所律师认为，因新三板公司本质上仍属于非上市公司，其定价机制不能完全等同或比照上市公司国有股份转让的定价机制及决策程序，而应适用进场交易或协议转让方式。针对此问题，本所律师亦向股转系统进行了征询，股转系统目前对国有股份在新三板的转让并无确定的法规规定，具体还应按照国资部门的相关规定处置国有股份的转让问题。

近期规定。2016年6月24日颁布实行的《企业国有资产交易监督管理办法》在国资委三号令的基础上，进一步规范了国有及国有控股企业、国有实际控制企业增加资本的行为，及增加了对该等企业增资亦需要进场交易的规定。在交易方式上，采取少数股权投资方式投资国有及国有控股企业、国有实际控制企业，由原来的签署增资协议方式，转变为需要进场交易方式。

值得注意的是，国有企业在对非国有企业进行股权投资，即对非国有企业增资的时候，目前还是通过协议方式，在进行资产评估的基础上由投资方和被投资方签署协议；而在投资退出途径方面，则需根据被投资企业所处的不同阶段情况，分别选择适用以上三个层面的相关规定。