According to the website of the State-owned Assets Supervision and Administration Commission, on July 30, the State-owned Assets Supervision and Administration Commission issued the "Implementation Measures for Investigating the Responsibility of Central Enterprises for Illegal Business Investment (Trial)". The "Measures" have been deliberated and adopted at the office meeting of the director of the State-owned Assets Supervision and Administration Commission of the State Council, and are hereby promulgated and shall come into force as of August 30th, 20 18. The "Measures" point out that those who cause losses of state-owned assets or other serious adverse consequences in business investment should be seriously held accountable according to law.
Full text:
Order of the State-owned Assets Supervision and Administration Commission of the State Council
No.37
The measures for the implementation of accountability for illegal investment of central enterprises (for Trial Implementation) have been deliberated and adopted at the office meeting in sasac director, the State Council, and are hereby promulgated, and shall come into force as of August 30th, 20 18.
Xiao Yaqing, director of the State-owned Assets Supervision and Administration Commission of the State Council.
20 18 July 13
Measures for the implementation of accountability for illegal business investment of central enterprises (for Trial Implementation)
Chapter I General Provisions
Article 1 In order to strengthen and standardize the accountability of central enterprises for illegal investment, further improve the supervision and management system of state-owned assets, implement the responsibility of maintaining and increasing the value of state-owned assets, and effectively prevent the loss of state-owned assets, according to the Company Law of People's Republic of China (PRC), the State-owned Assets Law of People's Republic of China (PRC) Enterprises, the Provisional Regulations on the Supervision and Administration of State-owned Assets of Enterprises and the Opinions of the General Office of the State Council on Establishing the Accountability System for Illegal Investment of State-owned Enterprises.
Article 2 The term "central enterprises" as mentioned in these Measures refers to the state-funded enterprises that the State-owned Assets Supervision and Administration Commission of the State Council (hereinafter referred to as SASAC) performs the investor's duties on behalf of the State Council.
Article 3 The term "accountability for illegal business investment" as mentioned in these Measures refers to the work that the relevant personnel of central enterprise management violate the regulations, fail to perform or perform their duties incorrectly in business investment, resulting in the loss of state-owned assets or other serious adverse consequences, and deal with the relevant responsible persons after investigation and verification.
The provisions of the preceding paragraph include national laws and regulations, state-owned assets supervision rules and regulations and internal management regulations of enterprises. Failure to perform duties as mentioned in the preceding paragraph refers to failure to perform duties within a prescribed time limit or a reasonable time limit, which generally includes inaction, refusal to perform duties and delay in performing duties. ; Incorrect performance of duties refers to improper or incomplete exercise of rights and responsibilities in accordance with regulations and post responsibilities, which generally includes not exercising power according to procedures, exceeding authority and abusing authority.
Article 4 Responsibility investigation shall follow the following principles:
(1) Adhere to accountability according to law and regulations. Taking the national laws and regulations as the criterion, in accordance with the state-owned assets supervision rules and regulations and the internal management regulations of enterprises, the relevant personnel of enterprise operation and management who violate the regulations, fail to perform or perform their duties incorrectly, resulting in the loss of state-owned assets or other serious adverse consequences, shall be seriously investigated for responsibility, and lifelong accountability for major decisions shall be implemented.
(two) adhere to the objective and fair responsibility. Carry out the important requirements of "three distinctions", investigate and verify the facts, nature, losses and impacts caused by violations in combination with the actual situation of enterprises, take into account quantitative standards and qualitative differences, identify the responsibilities of relevant personnel, protect the enthusiasm of relevant personnel and officials in enterprise management, and properly and fairly handle the responsible persons.
(3) Adhere to hierarchical accountability. The State-owned Assets Supervision and Administration Commission (SASAC) and the central enterprises define the accountability responsibility in principle according to the relationship between state-owned capital contribution and the management authority of cadres, organize and carry out accountability work at different levels, and investigate and deal with managers at different levels of enterprises respectively, thus forming an accountability work system with distinct levels and effective connection.
(four) adhere to the combination of punishment education and system construction. While seriously investigating the responsibility of those responsible for illegal business investment, we should strengthen the summary and notification of typical cases, strengthen warning education, play a deterrent role, and promote central enterprises to continuously improve rules and regulations, plug loopholes in business management, improve the level of business management, and realize the preservation and appreciation of state-owned assets.
Article 5 In the process of accountability investigation, the problems and clues about the violation of discipline or duty in the operation and management of enterprises shall be transferred to the corresponding discipline inspection and supervision institutions for investigation; Anyone suspected of committing a crime shall be transferred to the state supervisory organ or judicial organ for investigation.
Chapter II Scope of Responsibility Investigation
Article 6 If the relevant personnel of the central enterprise's operation and management violate the regulations, fail to perform or perform their duties incorrectly, resulting in the situations listed in Articles 7 to 17 of these Measures, resulting in the loss of state-owned assets or other serious adverse consequences, the corresponding responsibilities shall be investigated.
Article 7. Responsibility of group management and control:
(1) Deciding, approving and organizing the implementation of major business investment matters in violation of the prescribed procedures or exceeding the authority, or deciding, approving and organizing the implementation of major business investment matters in violation of the principles and policies of the party and the state, decision-making arrangements and relevant state regulations.
(2) Failure to implement or ineffective implementation of the relevant national regulations on group control has led to significant asset losses and has a significant impact on production, operation and financial status.
(3) Supervision of major risks and internal control defects of the Group. Or failing to report and deal with it in time, resulting in heavy asset losses or other serious adverse consequences.
(4) Its subsidiaries have committed major violations of laws and regulations, resulting in major asset losses, which have a significant impact on the production, operation and financial status of the Group, or other serious adverse consequences.
(five) refusing or delaying the rectification work requirements put forward by the relevant state regulatory agencies on major issues of enterprise investment.
Article 8 Responsibilities of risk management:
(1) Failing to perform the duties of internal control and risk management system construction as required, resulting in the lack of internal control and risk management system and major defects in internal control process.
(2) The internal control and risk management system are not implemented or not implemented effectively, and the major risks of business investment are not analyzed, identified, evaluated, warned, responded and reported in time.
(3) Failing to conduct legal review on enterprise rules and regulations, economic contracts and important decisions.
(D) failure to implement the relevant provisions of the supervision of state-owned assets, excessive debt led to a debt crisis, endangering the sustainable operation of enterprises.
(5) Malicious evasion of financial debts.
(6) concealing, omitting, falsely reporting or delaying the reporting of major risks and risk losses, and instructing the preparation of false financial reports, which are seriously inconsistent with the accounts of the enterprise.
Article 9. Investigation on the responsibility of purchase and sale management:
(1) Failure to conclude and perform a contract as required, failure to perform or incorrect performance of obligations, resulting in the obviously unfair of the target price of the contract.
(2) Failing to perform the contract correctly, or giving up due contractual rights and interests without justifiable reasons.
(three) in violation of the provisions to carry out financing trade business or "idling", "taking orders" and other false trade business.
(four) in violation of the provisions of the use of related transactions to convey benefits.
(five) not according to the provisions of the tender or not to implement the tender results.
(6) Providing credit, qualification, guarantee or credit advance payment in violation of regulations, and financing or investing in disguised form through business advance payment or major transactions.
(7) engaging in derivative business such as commodity futures and options in violation of regulations.
(8) Failing to make timely recourse to the receivables or take effective preservation measures as required.
Article 10 The accountability for contracted construction of projects shall be investigated:
(1) Failing to conduct investigation, demonstration or risk analysis on the subject matter of the contract as required.
(2) Failing to perform the decision-making and examination and approval procedures as required, or inviting tenders without authorization or beyond the authority.
(three) in violation of regulations, there is no reasonable commercial reason to bid below the cost.
(four) did not fulfill the decision-making and approval procedures, signed or changed the contract.
(five) the contract is not strictly examined according to the prescribed procedures, and there are major omissions.
(six) the project and the goods and services related to the project construction are not in accordance with the provisions of the tender or to avoid bidding.
(7) illegal subcontracting, etc.
(eight) in violation of the contract, over pricing, over schedule payment.
Article 11 Accountability system of fund management:
(a) in violation of decision-making and approval procedures or beyond the authority to raise and use funds.
(two) in violation of the provisions of the personal name to retain funds, income and expenditure settlement, opening a bank account.
(3) set up a "small treasury".
(4) Raising funds, issuing stocks or bonds, donating, guaranteeing, entrusting financial management, borrowing funds or opening letters of credit, handling bank bills, etc. Violation of regulations.
(5) falsifying expenditures to obtain funds.
(six) in violation of regulations, excessive and indiscriminate payment of employee salaries and benefits.
(7) Misappropriation, embezzlement, theft, fraud, etc. Due to the lack of financial internal control or failure to follow the financial internal control system.
Article 12 Accountability in the transfer of property rights, stock rights and assets of listed companies;
(1) Failing to perform decision-making and approval procedures as required or transferring beyond the authorized scope.
(two) financial audit and asset evaluation in violation of the relevant provisions.
(3) Concealing assets that should be included in the scope of auditing and evaluation, organizing the provision and disclosure of false information, and instructing or instructing intermediaries to issue false financial auditing, asset evaluation results and legal opinions.
(4) Failing to implement the withdrawal system in accordance with the provisions.
(five) in violation of the relevant provisions and the principle of openness and fair trade, the transfer of enterprise property rights, equity and assets of listed companies at a low price.
(6) Failing to enter the market for trading as required.
Thirteenth fixed assets investment responsibility investigation:
(1) Failing to conduct feasibility study or risk analysis as required.
(two) did not review the project budget according to the provisions, which seriously deviated from the reality.
(three) without performing the decision-making and examination and approval procedures, unauthorized investment.
(four) the procurement of construction projects is not in accordance with the provisions of the tender, intervention, evasion or manipulation of the tender.
(five) major changes have taken place in the external environment and the project itself, and the investment plan has not been adjusted in time and stop-loss measures have been taken.
(six) unauthorized changes in engineering design, construction content and additional investment.
(seven) the project management confusion, resulting in serious delays in construction, the cost is significantly higher than similar projects.
(eight) in violation of the negative list of investment projects.
Article 14 Responsibility investigation for investment mergers and acquisitions:
(1) Failing to conduct due diligence as required, or failing to conduct risk analysis in due diligence, and there are major omissions.
(2) Financial auditing, asset appraisal or valuation are in violation of relevant regulations.
(3) Instructing or instructing intermediaries or relevant units to issue false reports in the process of investment merger and acquisition.
(4) Failing to perform the decision-making and examination and approval procedures as required, failing to fully consider major risk factors in the decision-making, and failing to formulate a risk prevention plan.
(5) In violation of regulations, providing advance funds to other joint venture partners in various forms, or transferring benefits to related parties through high-premium mergers and acquisitions.
(6) There are clauses in the investment contract, agreement, articles of association of the target enterprise and other legal documents that damage the rights and interests of the state, which leads to the out-of-control operation of the target enterprise.
(seven) in violation of the contract, pay the merger price in advance.
(eight) after the investment merger, the target enterprise is not integrated according to the relevant work plan, resulting in out of control.
(9) Failing to exercise the corresponding shareholders' rights after investment, and failing to take stop-loss measures in time in case of major changes.
(ten) in violation of the provisions of the negative list of investment projects.
Article 15. Accountability in restructuring;
(1) Failing to perform the decision-making and approval procedures as required.
(two) failing to organize the implementation of assets verification, financial audit and asset evaluation in accordance with the provisions.
(3) Deliberately transferring or concealing state-owned assets or providing false information to intermediaries, instigating or instructing intermediaries to issue false verification results such as asset verification, financial audit and asset evaluation.
(4) Converting state-owned assets into shares, selling them or distributing them to other units or individuals free of charge at an obviously unfair low price.
(five) in the process of developing mixed ownership economy, implementing employee stock ownership plan, bankruptcy reorganization or liquidation, in violation of regulations, leading to disguised acquisition and private distribution of state-owned assets.
(six) failing to collect the transfer price of state-owned assets in accordance with the provisions.
(7) The articles of association and other legal documents after the restructuring contain provisions that harm the rights and interests of the state.
Article 16 Accountability for overseas investment:
(1) Failing to establish relevant systems for overseas investment management of enterprises as required, resulting in the lack of overseas investment control.
(two) to carry out overseas investment projects listed in the negative list.
(3) Overseas investment projects that engage in non-main business investment or carry out special supervision listed in the negative list in violation of regulations.
(4) Failing to conduct risk assessment and take effective risk prevention and control measures to invest abroad or undertake overseas projects.
(five) unfair business practices in violation of regulations, and vicious competition regardless of cost and price.
(six) in violation of other relevant provisions of this chapter or other overseas investment activities prohibited by the state.
Seventeenth other violations of regulations, failure to perform or improper performance of duties caused by the loss of state-owned assets or other serious adverse consequences of accountability.
Chapter III Determination of Asset Loss
Eighteenth on the basis of investigation and verification, in accordance with the relevant provisions of the central enterprises to identify the amount of asset losses caused by illegal investment and the impact on enterprises, countries and society.
Article 19 Asset losses include direct losses and indirect losses. Direct loss is the amount of loss and its influence that has a direct causal relationship with the behavior of relevant personnel; Indirect losses are caused or caused by the actions of relevant personnel. Except for direct losses, the amount and impact of other losses can be confirmed.
Twentieth central enterprises illegal investment assets loss of less than 5 million yuan is a general asset loss, more than 5 million yuan to 50 million yuan is a major asset loss, more than 50 million yuan is a major asset loss. The loss standards involved in the investigation and punishment of violations of discipline and law shall be implemented in accordance with the relevant laws and regulations of the party and national laws and regulations.
The "above" mentioned in the preceding paragraph includes this number, and the "below" does not include this number.
Article 21 The amount and impact of asset losses can be comprehensively judged and determined according to written documents issued by judicial administrative organs according to law, special audit, evaluation or appraisal reports issued by accounting firms, asset evaluation institutions, law firms, professional technical evaluation institutions and other professional institutions with corresponding qualifications, and internal certification materials of enterprises.
Article 22 If there is evidence that the related illegal business investment has not resulted in actual asset loss, but the asset loss will occur in the foreseeable future, and the amount of the asset loss can be reliably measured, it can be recognized as a contingent loss after the assessment by the intermediary agency and included in the asset loss.
Chapter IV Determination of Responsibility
Twenty-third central enterprise managers in violation of regulations, failed to perform or failed to perform their duties correctly, resulting in the loss of state-owned assets or other serious adverse consequences, should be investigated for their corresponding responsibilities. The responsibility of illegal investment is divided into direct responsibility, supervisor responsibility and leadership responsibility according to post responsibilities.
Twenty-fourth direct responsibility refers to the responsibility that the relevant personnel should bear when they violate the regulations, fail to perform or perform their duties incorrectly within the scope of their duties, which plays a decisive and direct role in causing asset losses or other serious adverse consequences.
The person in charge of the enterprise shall bear direct responsibility in any of the following circumstances:
(a) I or others jointly violate national laws and regulations, state-owned assets supervision rules and regulations and internal management regulations of enterprises.
(2) instigating, instigating, forcing, conniving, or shielding subordinates from violating national laws and regulations, state-owned assets supervision rules and regulations, and internal management regulations of enterprises.
(3) directly deciding, approving and organizing the implementation of major economic matters without following the prescribed procedures or exceeding the authority.
(four) presided over the relevant meeting to discuss or otherwise study major economic issues, without the consent of the majority, directly decided, approved, organized and implemented.
(5) authorizing (entrusting) other * * * members to make improper or wrong decisions according to the matters that should be undertaken as the first responsible person (overall responsibility), the related target responsibilities signed or other important responsibilities that should be performed.
(six) other acts that should bear direct responsibility.
Twenty-fifth supervisor's responsibility refers to the responsibility that the relevant personnel should bear for asset loss or other serious adverse consequences due to violation of regulations or improper performance of duties within the scope of their direct supervisor (in charge).
Twenty-sixth leadership responsibility refers to the responsibility that the main person in charge of the enterprise should bear for the loss of assets or other serious adverse consequences caused by violation of regulations or improper performance of duties within the scope of his duties.
Article 27 If a subsidiary of a central enterprise violates the operation and investment rules, resulting in the occurrence of the situations listed in the second and third paragraphs of this article, the relevant personnel in the operation and management of the superior enterprise shall bear corresponding responsibilities.
The relevant personnel of an enterprise at the next higher level shall bear corresponding responsibilities, including:
(a) the occurrence of major asset losses and have a significant impact on the production, operation and financial situation of the enterprise.
(two) large and significant asset losses have occurred for many times, or other serious adverse consequences have been caused.
In addition to the relevant personnel of the superior enterprise, the relevant personnel of the superior enterprise should also bear corresponding responsibilities, including:
(a) the occurrence of illegal acts, resulting in huge losses of assets, endangering the survival and development of enterprises.
(two) in a certain period of time, a number of subordinate enterprises continuously concentrated major asset losses, or caused other serious adverse consequences.
Article 28 If a central enterprise conceals, omits or falsely reports major asset losses in violation of regulations, it shall identify the leadership responsibility and competent responsibility of the principal responsible person and the person in charge of the enterprise.
Article 29 If a central enterprise fails to organize the accountability work according to the regulations and relevant post responsibilities, the responsibilities of the person in charge of the enterprise and relevant personnel shall be determined according to the leadership responsibility, supervisor responsibility and direct responsibility.
Article 30 If the relevant decision-making bodies of central enterprises make decisions by means of collective decision-making or conduct other illegal investment operations, resulting in asset losses or other serious adverse consequences, they shall bear collective responsibility, and the relevant members shall also bear corresponding responsibilities.
Chapter V Investigation and Handling of Responsibility
Thirty-first ways to deal with the relevant responsible persons include organization, salary deduction, prohibition, disciplinary action, and transfer to the state supervisory organ or judicial organ, which can be used alone or in combination.
(1) Organizing the handling. Including criticism and education, ordering written examination, informed criticism, admonishing, suspension, transfer from work, demotion, transfer from non-leadership positions, ordering resignation, dismissal, etc.
(2) deduct wages. Deduct and recover performance annual salary or term incentive income, terminate or recover other medium and long-term incentive income, and cancel the qualification to participate in medium and long-term incentives.
(3) There are no entry restrictions. He may not be a director, supervisor or senior manager of a state-owned enterprise for five years or even for life.
(4) disciplinary action. It is investigated and dealt with by the corresponding discipline inspection and supervision institutions.
(five) transferred to the state supervisory organs or judicial organs. According to the relevant laws and regulations of the state, it shall be transferred to the state supervisory organ or judicial organ for investigation.
Thirty-second central enterprises have asset losses, after verification and responsibility determination, in addition to the relevant provisions of the transfer of discipline inspection and supervision institutions or judicial organs, should be handled in the following ways:
(1) In case of general asset loss, the person directly responsible and the person in charge shall be criticized and educated, ordered to make a written inspection, informed criticism and admonished. , and can deduct and recover the annual performance salary of less than 50% in the year when the responsibility is determined.
(II) In case of major asset losses, the person directly responsible and the person in charge shall be given informed criticism, reprimand, suspension, transfer from work, demotion and other treatments. At the same time, the salary shall be deducted according to the following standards: 50%- 100% of the annual performance salary in the current year, and 50%- 100% in the first three years of the current year. Terminate other medium-and long-term incentive rights that have not been exercised, turn over all the medium-and long-term incentive income in the current year and the previous year, and may not participate in new medium-and long-term incentives for enterprises within five years.
Informed criticism, admonition, suspension, transfer from work, etc. Responsible leaders should be given, and the salary should be deducted according to the following standards: 30%-70% annual performance salary in the year when the responsibility is recognized, 30%-70% annual term incentive income in the first three years (inclusive) of the year when the responsibility is recognized, the annual performance salary is postponed, other unexercised medium-and long-term incentive rights are terminated, and the company may not participate in new medium-and long-term incentives for three years.
(III) In case of heavy asset losses, the person directly responsible and the person in charge shall be given demotion, transferred to a non-leadership position, ordered to resign, removed from office, forbidden to enter, etc. At the same time, the salary shall be deducted according to the following standards: 65,438+000% of the annual performance salary in the current year, 65,438+000% of the incentive income in the first three years (inclusive) of the current year, and before the current year.
The responsible leaders shall be removed from their posts, demoted, removed from non-leadership posts, ordered to resign, dismissed and forbidden to enter, and their wages shall be deducted according to the following standards: 70%- 100% of the annual performance salary in the year of responsibility identification, 70%- 100% of the incentive income in the first three years (inclusive) of the year of responsibility identification, and the performance salary shall be postponed.
Article 33 If the assets of the subsidiaries of a central enterprise are lost, and the relevant personnel of the central enterprise should be held accountable according to these Measures, the relevant responsible persons shall be given informed criticism, admonishing, suspended, transferred from their posts, demoted, transferred to non-leadership positions, ordered to resign, dismissed, and restricted from entering. At the same time, the salary will be deducted according to the following standards: 30%- 100% of the annual performance salary in the year of responsibility identification, 30%- 100% of the term incentive income in the first three years (inclusive) of the year of responsibility identification, deferred payment of the annual performance salary, termination of other medium-and long-term incentive rights that have not been exercised, and payment of all the medium-and long-term incentive income in the first three years (inclusive) of the year of responsibility identification.
Thirty-fourth of the collective responsibility of the central enterprises related to business decision-making institutions, to give criticism and education, ordered a written inspection, informed criticism and other treatment; If the amount of assets loss is huge and endangers the survival and development of the enterprise, or causes other particularly serious adverse consequences, it shall be reorganized in accordance with the prescribed procedures.
Article 35 The year of responsibility identification refers to the year of responsibility investigation and handling. If the responsible person has no post or less than one year in the accountability year, it shall be executed according to the latest complete post year; If there is no complete employment year, it shall be implemented with reference to the actual employment month before handling (no more than 12 months).
Thirty-sixth for the same incident, the same responsible person's salary deduction and recourse, according to the highest standards, disciplinary action, administrative punishment, accountability and other salary deduction treatment, but not combined.
Article 37 The responsible person who has been admonished shall not be promoted or reused within six months; Those who have been transferred from their jobs or transferred to non-leadership positions shall not be promoted within one year; Those who have been demoted shall not be promoted within two years; Those who are ordered to resign or be removed from office shall not be placed in posts within one year, and shall not hold posts higher than the original post level within two years; At the same time, disciplinary action should be taken in accordance with the provisions on the long impact period.
Thirty-eighth central enterprise management personnel illegal investment did not cause asset losses, but caused other serious adverse consequences, after verification and responsibility identification, the relevant responsible persons shall be dealt with in accordance with these measures.