上市公司資產(chǎn)重組的法律問題

1、本科畢業(yè)論文（設(shè)計）外 文 翻 譯外文出處 Canadian Social Science. 外文作者 Jinlong ZHAO, Gaiqin ZHANG 原文：Legal.Issues on the Asset Restructuring of Listed Companies1. THEORIES ON ASSET RESTRUCTURING OF LISTED COMPANIES1.1 Comparision of asset restructuring with other relevant conceptsAsset restructuring is dependent conce

2、pt that exists during the process of state-owned enterprise reform.After many years of development, there has been rich fruit of studies on asset restructuring, but differentpeople have different point of views about the concept of asset restructuring, the question finally settled in 2008. The appli

3、cation scope of Management on Significant Asset Restructuring of Listed Company,which was formulated by Securities Regulatory Commission on March 24, 2008, came to effect on May 18, 2008. From this administrative legislation, we can definite the concept of asset restructuring, that is,asset restruct

4、uring means enterprise trade asset by the way of buying, selling and other ways outsidedaily business, which lead to the change of main business, asset and income.3 The definition of asset restructuring can help us separate asset restructuring from related concept.1.1.1 Asset restructuring and capit

5、al operationThe practice of capital operation originated in the west world, especially from the developed market economy countries such as USA, UK etc. Nevertheless, the just concept of asset restructuring was born formally in China. What is so-called operation is to achieve capital appreciation by

6、arrangement asset artificially by the way of investment and financing, asset restructuring and property right trades and so on. Therefore, capital operation have larger scope than asset restructuring, asset restructuring is just one of means of capital operation. However, asset restructuring is the

7、most important means of capital operation, so asset restructuring and capital operation often mix.1.1.2 Asset restructuring and corporate restructuringCorporate restructuring is to change structure of enterprise, leading to asset restructuring and finally realizing optimal allocation of resources an

8、d efficiency growth by the way of merger, separation,bankruptcy, acquisition and joint through property right flows among corporations. Essentially,corporate restructuring is strategic restructuring, asset restructuring is tactical restructuring, that is,corporate restructuring is one of economic me

9、ans and process, while asset restructuring is the by-product of this economic means and process, and they are bound to be one-way and necessary relationship.1.2 Types and Means of Asset Restructuring of Listed Company1.2.1 Types of Asset Restructuring of Listed CompanyAccording to the effect of asse

10、t restructuring on corporate scale, it can be divided to tightening,expanding and inner changing restructuring.Tightening restructuring is that corporate sell and spin-off its sub company, production line and core business , that is not in line with long-term business strategy, bad performance and h

11、ave not performance prospect, reduce the scale of corporate and focus attention on core business and advantage product intensively. Expanding restructuring is just the opposite. It is to expand the scale of corporate by the way of Management on Significant Asset Restructuring of Listed Company provi

12、des that this regulationapplies to that enterprise trade asset to a certain degree by the way of buying, selling and other ways outside dailybusiness, which lead to the significant change of main business, asset and income.of merger, acquisition, joint and combining and so on. Inner changing restruc

13、turing is to optimize thestructure of corporate managing and allocate asset reasonably by the way of renting, contracting and trusting and so on in the situation that corporate scale does not change. Expanding and inner changing restructuring are both means of capital operation, which both realize o

14、ptimal allocation of resources and efficiency optimization. If they are used reasonably, the result is the same; therefore the three do not have merits.According to the degree of opening, it is divided to closed and opening restructuring. Closed restructuring usually buys shares and bones that are n

15、ot in circulation, merger and control target enterprise to expand corporate scale.Opening restructuring generally takes the form of buying shares of listed company, purchase and control listed company to realize interest optimization in our country, because of restriction on financial derivatives, m

16、ost asset restructuring belong to closed restructuring.1.2.2 Means of Asset Restructuring of Listed CompanyThe main means of asset restructuring is to peel off bad asset, list partially, swap debt-equity and clear and so on.Peeling off bad asset is to sell part of asset to other enterprise. The asse

17、t can be fixed asset, current asset or all sub and affiliate company. The purpose of peeling off bad asset is to make listed company thin to guarantee core business development of listed company. What is the key is to find suitable buyer, because asset sell to competitors, which no doubt impact on l

18、isted company, therefore, non-related enterprise may be the right buyer.LENOVO improve its market share by the way of peeling of f bad asset. In 2003, LENOVO sells 50% shares of motherboard factory to Memory Company in Shenzhen,which is a joint venture that is set up by cooperating with Gigabyte Mot

19、herboard Company of Taiwan. In 2004, LENOVO sold 50% of LENOVO cyber to its parent company- LENOVO holding. To list partially is that listed company lists its part business or sub company separately, and income belongs to parent company. To list partially do not change the ownership, and parent comp

20、any have absolute right of control. When corporate come into the situation that is non-economic scale, to list partially is an ideal choice in order to make corporate thin. In 2000, Qingdao Huanyu spun off from Qingdao bridge to list in Hong Kong, in 2000 Tongren science and technology spun from Ton

21、grentang, in 2001 Tuopu science and technology spun from Tuopu software.Debt-equity swap is that debt of listed company can be changed to shares, which is also known bones of equity. Most country do not forbid asset restructuring through debt-equity swap, but debt-equity swap may damage the interest

22、 of creditors, therefore it is necessary to introduce appropriate judicial rules to regulate on December 25, 1998. Liquidation of listed company can be divided to voluntary and non-voluntary liquidation. Voluntary liquidation is to liquidate company according to shareholders agreement as the company

23、 is in bad performance in long time. Non-voluntary is usually linked to bankruptcy which is also one of legal procedure during listed company bankruptcy. In capital market of China, asset restructuring can bring extra profit, so it is difficult to understand that liquidation belong to asset restruct

24、uring. Therefore, it is necessary to correct the opinion that high profit brought by liquidation of listed company, which is abnormal phenomenon is the result of unsound of capital market. Liquidation of listed company can control loss of creditors within a certain level. On December 25, 1998, Big E

25、ast Sea Tourism Center Group which is the largest shareholders of Big East Sea Tourism Center Co. ltd sell 96,320,000 original shares on the price of 1.41$ per share to Sanya branch of agricultural bank of China in order to compensate the debt of 1.36 billion.2. PROBLEMS EXISTING IN ASSET RESTRUCTUR

26、ING OF LISTED COMPANY2.1 The legal nature of asset replacementAsset replacement is one of the important ways of asset restructuring of listed companies, but also makes a lot of legal problems. Asset replacement is to sell the entire company asset, to replace the control of shareholders and directors

27、. Then is it a new company after the asset of listed company is replaced, is it a new company, or is the act to operate capital or just a policy? These problems are not regulated clearly in Chinese law. The author believes that asset replacement also belongs to significant behavior of a company; to

28、change the main business after asset replacement actually makes the concept of company re-listed. Therefore it is necessary to regulate asset replacement in the premise of protecting freedom and security of trading between companies. Both corporate and security law do not regulate re-listing issues

29、after asset replacement, but corporate law regulates the conditions on how a company list specifically, as a result, we should conform to security law to judge if the company whose asset is replaced is a listed company, reject the notion that the new company after asset replacement is sure to be a l

30、isted company and make sure to what degree asset replacement belongs to company trading and to what degree asset replacement belongs to listing in disguise. As an important role in financial market, to regulate listed companies can guard against financial risks and maintain financial stability and o

31、rder.2.2 Legal issues on Debt-equity swapDebt-equity swap is also known as bonds of equity, whose essence is bonds of property. Though people do not have consensus about the nature of stock, there is no gap which can not be transcended between claims and equity. To allow listed companies to asset re

32、organization by the way of debt-equity may cause issues as follows:First, it will jeopardize the principle of capital adequacy. Listed companies are co-fund companies,capital is the only material security, and therefore listed companies must maintain capital reality and adequacy. If debt-equity swap

33、 is allowed, it may affect capital adequacy because of reality and achievability of claims. Object fund is to be assessed rigorously, while false claims are difficult to be guarded against in practice.Secondly, companies issue stocks to accumulate fund in order to accomplish a degree of business pla

34、n, if debt-equity swap is allowed, the company may not attain adequate fund, which can affect business plan. Then the purpose of issuing stocks may not come true.Thirdly, after the company is in the process of restructuring, if debt-equity is allowed, creditors who subscribe for new shares can be pa

35、id off previously, which is unfair to other creditors.Fourthly, debt-equity, especially the way that offset by a desire may be taken use of by company directors and major shareholders, which may cause many disadvantages. Though Anglo-American countries do not prohibit the act of debt-equity swap, in

36、 practice they take use of piercing corporate veil and other judicial rules in order to strengthen the protection of the interest of creditors.2.3 The protection of creditorsAccording to agency theory, the relationship between creditors and directors can be regarded as agent and agentee. Though list

37、ed companies have the obligation of continuous information disclosure, creditors can not understand insider information of asset restructuring. In the condition that both parties have asymmetric information, the act that creditors require corporate directors to take upon moral risk is different form

38、 that corporate buy raw material and equipment, produce and sell products, and adjust staff、fund and material. Asset restructuring is a strategic reform of corporate, the information related is more complex, and therefore it is more difficult to guard against moral risks.2.4 Cross-ownershipIn practi

39、ce, there exists how to ascertain the problem that listed companies hold control and equity participation of subsidiary companies, then spin-off to list by control subsidiary companies listed. It was a popular problem that corporate and enterprises are cross-ownership when corporate law was enacted.

40、In 1994, enterprises structure is relatively simple, but with the large numbers of asset restructuring in 1998, cross-ownership is increasing used as means of asset restructuring. We believe that comprehensive cross-ownership prohibition is to totally deny the companies right to invest and it is not

41、 in line with corporate law, however, if there is no limitation on cross-ownership, many problems that exist in China can not be solved such as false-funded, inadequacy-funded and so on. Combined shares ownership because of cross-ownership, registered fund overlap and capacity of paying debt off wea

42、kening may be harmful in the background of current legal culture and economic reform. At the present ,in order to protect the creditors interest and trading security, legislation should both give limitation on cross-ownership between corporate and enterprise and specifically regulates vote rights of

43、 subsidiary companies that hold shares of mother-companies, which is good for making sure the amount of companies asset, protecting creditors interest and determining market objects correctly.Source:Jinlong ZHAO, Gaiqin ZHANG.Legal.Issues on the Asset Restructuring of Listed.Companies.Canadian Socia

44、l Science.2009, Vol. 5 Issue 2, p11-17, 7p.譯文：上市公司資產(chǎn)重組的法律問題1.1.上市公司資產(chǎn)重組的理論1.1 Comparision of asset restructuring with other relevant concepts1.1比較資產(chǎn)重組與其他相關(guān)概念資產(chǎn)重組是依賴的概念，在國有企業(yè)改革過程中存在After many years of development, there has been rich fruit of studies on asset restructuring, but different 。經(jīng)過多年的發(fā)展，出現(xiàn)了

45、對資產(chǎn)重組豐富的研究成果，但不同的人對資產(chǎn)重組概念有不同的觀點，這個問題在2008年終于塵埃落定。關(guān)于重大上市公司的資產(chǎn)重組，由證券監(jiān)督管理委員會2008年3月24日制定， 2008年5月18日生效。從這個管理條例，我們可以明確資產(chǎn)重組概念，是指由購買，銷售和日常業(yè)務(wù)以外的其他方式，導(dǎo)致主營業(yè)務(wù)，資產(chǎn)和收入變化的貿(mào)易方式的企業(yè)資產(chǎn)。對資產(chǎn)重組的定義可以幫助我們區(qū)分不同的與資產(chǎn)重組相關(guān)的概念。1.1.1 Asset restructuring and capital operation1.1.1資產(chǎn)重組和資本運作 The practice of capital operation origina

46、ted in the west world, especially from the developed market資本運作實踐起源于西方世界，特別是從市場經(jīng)濟發(fā)達的國家，如美國、英國等。然而，資產(chǎn)重組的概念在中國正式誕生。所謂的運作安排是指通過人為的投資和融資，資產(chǎn)重組和產(chǎn)權(quán)交易等方式以達到資本增值。因此，資本運作的范圍大于資產(chǎn)重組，資產(chǎn)重組只是資本運作的手段之一。然而，資產(chǎn)重組時資本運作最主要的手段，因此資產(chǎn)重組和資本運作往往組合。1.1.2 Asset restructuring and corporate restructuring1.1.2資產(chǎn)重組和企業(yè)重組 Corporate r

47、estructuring is to change structure of enterprise, leading to asset restructuring and finally企業(yè)重組是改變企業(yè)結(jié)構(gòu)，通過合并，分立，破產(chǎn)，收購，并通過企業(yè)之間的聯(lián)合產(chǎn)權(quán)流動的方式，最終實現(xiàn)效率和資源的優(yōu)化配置。從本質(zhì)上講，企業(yè)重組是戰(zhàn)略性重組，資產(chǎn)重組是戰(zhàn)術(shù)調(diào)整，也就是說，企業(yè)重組是經(jīng)濟手段和過程之一，而資產(chǎn)重組是按這一經(jīng)濟手段和過程的產(chǎn)物，他們注定是一個方式和必要手段的關(guān)系。1.2 Types and Means of Asset Restructuring of Listed Company1.2

48、上市公司資產(chǎn)重組的類型和方式 1.2.1 Types of Asset Restructuring of Listed Company 1.2.1上市公司資產(chǎn)重組類型 According to the effect of asset restructuring on corporate scale, it can be divided to tightening,根據(jù)企業(yè)規(guī)模的資產(chǎn)重組的效果，它可分為緊縮政策，擴大和改變內(nèi)部結(jié)構(gòu)調(diào)整。緊固結(jié)構(gòu)調(diào)整，企業(yè)出售和剝離其下屬企業(yè)，生產(chǎn)線和核心業(yè)務(wù)，這是不符合長期的經(jīng)營策略，表現(xiàn)不佳，并沒有表現(xiàn)機會，降低企業(yè)的規(guī)模和專注于核心關(guān)注企業(yè)和優(yōu)勢產(chǎn)品集中。擴

49、大改組剛好相反。這就是通過不斷的管理對重大上市公司資產(chǎn)重組的企業(yè)規(guī)模的方式規(guī)定，本規(guī)例適用于該企業(yè)的商業(yè)資產(chǎn)，由買，賣等方式，從而導(dǎo)致了主營業(yè)務(wù)，資產(chǎn)和兼并，收購收入，聯(lián)合，結(jié)合等方式一定程度的顯著變化。內(nèi)部轉(zhuǎn)變重組，即通過租賃，承包和信任優(yōu)化企業(yè)治理結(jié)構(gòu)和分配，在這樣的情況下不改變資產(chǎn)的合理方式。Expanding and inner changing擴大和內(nèi)部結(jié)構(gòu)調(diào)整又是不斷變化的資本運作手段，這既實現(xiàn)資源的優(yōu)化配置又實現(xiàn)效率的優(yōu)化。如果他們是合理使用，結(jié)果是一樣的，因此這三個沒有優(yōu)點。根據(jù)開放程度，劃分為封閉的和開放的重組。封閉的重組Closed restructuring usuall

50、y buys shares and bones that are not in circulation, merger and control封閉的重組封閉通常購買在流通的股票，合并和控制目標企業(yè)來擴大企業(yè)規(guī)模。Opening restructuring generally takes the form of buying開放重組通常需要購買上市公司，收購和控制上市公司股份，實現(xiàn)優(yōu)化，因為我們的國家利益對金融衍生工具的限制，大多數(shù)資產(chǎn)重組屬于封閉的資產(chǎn)重組country, because of restriction on financial derivatives, most asset r

51、estructuring belong to closed。1.2.2 Means of Asset Restructuring of Listed Company1.2.2上市公司資產(chǎn)重組方法對資產(chǎn)重組的主要手段是剝離不良資產(chǎn)，列出部分，交換債務(wù)權(quán)益和明確等。Peeling off bad asset is to sell part of asset to other enterprise.剝離不良資產(chǎn)是出售部分資產(chǎn)給其他企業(yè)。資產(chǎn)可以是固定資產(chǎn)，流動資產(chǎn)或所有子公司和附屬公司。The purpose of peeling off bad asset is to make listed co

52、mpany在剝離不良資產(chǎn)的目的是使上市公司精簡，以保證上市公司的核心業(yè)務(wù)的發(fā)展。關(guān)鍵是要找到合適的買家，因為資產(chǎn)出售給競爭對手，這毫無疑問影響任何上市公司，因此，非相關(guān)因企業(yè)可能是合適的買家。聯(lián)想提高了對不良資產(chǎn)剝離方式的市場份額。 In 2003, LENOVO sells 50% shares of motherboard factory to Memory Company in Shenzhen,2003年，聯(lián)想銷售主機板廠50的股份給深圳記憶公司，這是一家合資企業(yè)，是由技嘉主板公司與臺灣合作的公司。在2004年，聯(lián)想銷售聯(lián)想電腦的50至其母公司聯(lián)想控股。要列出部分是該上市公司分別列出了

53、它的部分業(yè)務(wù)或附屬公司，收入屬于母公司。要列出部分不改變所有權(quán)，母公司有絕對控制權(quán)。當企業(yè)進入非經(jīng)濟規(guī)模的情況，列出部分是一個理想的選擇，以使企業(yè)薄弱。2000年，青島環(huán)宇從青島橋梁分拆出來，在香港上市；2000年同仁科技和同仁堂分離；2001年拓普科技和拓普軟件正式分開。債轉(zhuǎn)股是上市公司可以改變的股份的債務(wù)，這也是眾所周知的重大股權(quán)。大多數(shù)國家不禁止通過債轉(zhuǎn)股資產(chǎn)重組，但債轉(zhuǎn)股可能損害債權(quán)人的利益，因此在1998年12月25日有必要引入適當?shù)乃痉ㄒ?guī)則規(guī)范管理。Liquidation of listed company can be divided to voluntary and non-v

54、oluntary liquidation.上市公司清算可以分為自愿和非自愿清算。自愿清算是該公司在很長一段時間表現(xiàn)不好，而根據(jù)股東的協(xié)議清算公司。Non-voluntary is usually linked to bankruptcy which is also one of legal非自愿性清算通常是與破產(chǎn)聯(lián)系到一起的，這也是上市公司破產(chǎn)程序的法律問題。在中國資本市場，資產(chǎn)重組可以帶來額外的利潤，因此很難理解，屬于清算資產(chǎn)重組。然而，必須糾正的是，高利潤的上市公司，清算帶來的意見卻是資本市場不健全的反?，F(xiàn)象。Liquidation of listed company can contro

55、l loss of creditors within a certain level.上市公司清算可以控制債權(quán)人的損失維持在一定的水平。1998年12月25日，大東海旅游中心股份有限公司的最大股大東海旅游中心以每股價格1.41元出售96320000股份至三亞的中國農(nóng)業(yè)銀行分行，以賠償1.36億美元的債務(wù)。2.2.PROBLEMS EXISTING IN ASSET RESTRUCTURING OF上市公司資產(chǎn)重組中存在的問題： 2.1 The legal nature of asset replacement2.1資產(chǎn)置換的法律性質(zhì) Asset replacement is one of the important ways of asset restructuring of listed companies, but also makes資產(chǎn)置換是上市公司資產(chǎn)重組的重要方式之一，也產(chǎn)生了很多的法律問題。資產(chǎn)置換是出