Operating in accordance with Chapter 19 of the Civil Procedure Law of People's Republic of China (PRC) is the only way to solve the problem of bankruptcy disposal of mining enterprises.
1. Establish a liquidation organization according to law.
According to Article 201 of Chapter 19 of the Civil Procedure Law of People's Republic of China (PRC), the people's court may organize relevant organs and personnel to set up a liquidation organization. "Yes" means that the people's court decides whether it is necessary to set up a liquidation organization according to the actual situation. Because the law stipulates that only the land and resources management department has the right to manage mineral resources, other departments have no right to manage mineral resources, so the people's court must set up a bankruptcy liquidation organization and notify the land and resources management department, which must participate in the bankruptcy liquidation organization according to law.
Chapter 19 of the Civil Procedure Law of People's Republic of China (PRC) stipulates that the scope of application of this law does not include enterprises owned by the whole people, unincorporated enterprises, individual industrial and commercial households, rural contracted households and individual partnerships. The bankruptcy of state-owned mining enterprises shall be governed by the Enterprise Bankruptcy Law of the People's Republic of China (Trial).
Two, land and resources management departments should strive to promote reconciliation.
Enterprise bankruptcy debt repayment involves the survival of employees, social stability, asset disposal, disposal of state-owned land use rights and other aspects, and it is a matter that needs to be treated with caution. The court ruled that the bankruptcy auction of the enterprise was a last resort. Therefore, the laws and regulations related to enterprise bankruptcy auction have the same spirit, that is, on the premise of maintaining market economic order, try to avoid enterprise bankruptcy auction to pay off debts. Therefore, Article 202 of Chapter 19 of the Civil Procedure Law of People's Republic of China (PRC) stipulates that if an enterprise as a legal person reaches a settlement agreement with the creditors' meeting, the people's court will issue an announcement to suspend the bankruptcy and debt repayment procedures after approval by the people's court. The settlement agreement shall have legal effect from the date of announcement. The provisions of Articles 3, 17 and 18 of the Enterprise Bankruptcy Law of the People's Republic of China (Trial) all run through the same spirit. Those who can reconcile should try their best to promote reconciliation, and those who can't really reconcile should declare bankruptcy and pay their debts.
According to the spirit of the above provisions, land and resources management departments should implement the requirements of the central authorities on building a harmonious society, coordinate relevant departments, and strive to promote reconciliation and rectification. If bankruptcy auction is really necessary, we should adhere to the principles of openness, fairness, justice and administration according to law and do a good job in related work.
Three, land and resources management departments should auction mining rights and state-owned land use rights according to the management authority, and go through the transfer procedures.
Since mining rights are the core assets of mining enterprises, auctions should be organized by land and resources management departments. The administrative department of land and resources shall organize the implementation of the auction of mining rights and state-owned land use rights in accordance with the management authority and procedures stipulated in the Notice on Printing and Distributing the Management Measures for Bidding, Auction and Listing of Exploration Rights and Mining Rights (Trial) and the Provisions on Bidding, Auction and Listing of State-owned Land Use Rights, and the administrative department of land and resources of the people's government at or above the county level shall be responsible for organizing the implementation of the auction of mining rights; According to Articles 48 and 58 of the Interim Provisions on the Management of Mining Rights Transfer and Article 10 of the Measures for the Management of the Transfer of Exploration and Mining Rights, the buyer shall go through the registration formalities for the change of mining rights transfer in accordance with the provisions on mining rights transfer. In accordance with the "Provisional Regulations of the People's Republic of China on the Assignment and Transfer of the Right to Use Urban State-owned Land", the registration procedures for the change of the right to use state-owned land shall be handled.
Four, joint auction can solve the contradiction between judicial organs and administrative organs due to the auction authority.
When mining rights and state-owned land use rights are auctioned, the equipment, facilities and buildings closely related to them can be evaluated and auctioned separately, and the auction price can be divided in proportion.
For bankrupt mining enterprises, permanent shafts and production shafts, as well as transportation, power transmission, ventilation, pumping systems, shafts, land and production and living buildings attached to them, are all equipment and facilities that cannot exist independently without mining. Assets belonging to bankrupt enterprises shall be included in the auction category according to the Provisions of People's Courts on Auction and Sale of Property in Civil Execution, which came into effect on June 5438+1 October12005.
However, in order to improve the value of other equipment and facilities and reduce the losses of bankrupt enterprises, Article 36 of the Bankruptcy Law of People's Republic of China (PRC) (Trial) promulgated on February 2, 1986 stipulates that the complete sets of equipment in the bankrupt property shall be sold as a whole; If it can't be sold as a whole, it can be sold separately. Article 18 of the Provisions of the People's Court on Auction and Sale of Property in Civil Execution stipulates that if multiple properties are inseparable in use, or if a separate auction may seriously damage their value, they shall be auctioned together.
According to the spirit of the above provisions, the mining right, the right to use state-owned land and the production equipment closely related to it, such as drilling, water wells and houses, will be auctioned together to determine a buyer, which can improve the value of equipment and facilities, help to resume production, benefit the bankrupt and bidders, and objectively benefit migrant workers.
Therefore, with the consent of the bankruptcy liquidation group, the mining right, the state-owned land use right and the equipment, facilities and ground buildings closely related to the land can be separately evaluated as the auction floor price, and the auction price can be divided according to the proportion of each evaluated auction floor price in the combined auction floor price. This kind of bundled auction can avoid new disputes caused by different buyers such as mining rights, state-owned land use rights, wells, various pipelines and ground buildings.
In order to maintain the state's ownership of resources, link up with the existing laws and regulations, and strictly abide by the rules of market economy activities, if the mining enterprise has been auctioned by the court and the land and resources management department cannot assist in the implementation, it can be handled with reference to the above ideas.
Verb (abbreviation of verb) How to deal with the auction price?
According to the spirit of Article 28 of the Enterprise Bankruptcy Law of the People's Republic of China (Trial) and the provisions of the Supreme People's Court's Reply on whether the state-owned allocated land use right of bankrupt enterprises should be included in the bankrupt property (Fa Shi [2003] No.6), the disposal principle is: the property belongs to the enterprise, the auction price belongs to the enterprise and the auction price belongs to the state. Mining rights and the right to use state-owned land obtained by bidding, auction, listing agreement transfer or self-financing shall be auctioned by the land and resources management department according to law, and the auction price shall belong to the bankrupt enterprise and be included in the bankruptcy debt repayment procedure.
If the right to use the state-owned land of bankrupt mining enterprises is obtained by allocation, and the mortgage formalities have not been handled, according to Article 1 of the Supreme People's Court's Reply on whether the right to use the state-owned land of bankrupt enterprises should be included in the bankruptcy property, the right to use the state-owned land obtained by the bankrupt enterprises by allocation is not bankruptcy property, and when the enterprise goes bankrupt, the relevant people's government can take it back and dispose of it according to law. Reply to the provisions of article 2, the enterprise has no right to dispose of the state-owned land use right obtained by allocation. Article 47 of the Provisional Regulations of the People's Republic of China on Assignment and Transfer of Urban State-owned Land Use Rights stipulates that the municipal and county people's governments may recover the allocated land use rights free of charge according to the needs of urban construction and development and the requirements of urban planning, and may assign them in accordance with the provisions of this Ordinance. When the allocated land use right is recovered free of charge, the municipal and county people's governments shall give appropriate compensation to the above-ground buildings and other attachments according to the actual situation. According to this regulation, the auction price of state-owned allocated land use rights of bankrupt mining enterprises is all used as land transfer fees, which are collected by the state and are not included in the debt repayment procedures of enterprises.
The mining right of bankrupt mining enterprises was obtained free of charge, and the mortgage formalities were not handled. There are no specific regulations. We can refer to the spirit of the Supreme People's Court's "Reply on whether the state-owned allocated land use right of bankrupt enterprises is included in the bankrupt property", and the auction price is all taken as the price of mining rights, which is levied by the state and is not included in the debt settlement procedure of enterprises.
If the right to use the state-owned land of bankrupt mining enterprises is obtained by allocation, and the mortgage formalities have been completed, according to Article 2 of the Reply of the Supreme People's Court on whether the allocation of the right to use the state-owned land by bankrupt enterprises is included in the bankrupt property, "According to Article 50 of the People's Republic of China (PRC) Urban Real Estate Management Law and Article 56 of the People's Republic of China (PRC) Guarantee Law, the mortgagee can pay the land price only if the collateral is discounted or auctioned or sold. Article 50 of People's Republic of China (PRC) City Real Estate Management Law stipulates that the land use right of real estate mortgage is obtained by allocation. After the real estate is auctioned according to law, the mortgagee shall pay the amount equivalent to the payable land transfer fee from the auction price, and the mortgagee has the priority to be compensated. According to Article 56 of the Guarantee Law of People's Republic of China (PRC), the mortgagee has the priority to be compensated after paying the amount equivalent to the payable land use right transfer fee according to law. According to the above provisions, the land use right allocated by the state can be evaluated, and the amount of evaluation is collected by the state as a land transfer fee. The difference between the auction price and the assessed amount belongs to the bankrupt enterprise, which is included in the bankruptcy debt repayment procedure, and is disposed of by the court according to law, and the mortgagee can be compensated in priority according to law.
The mining right of bankrupt mining enterprises is obtained free of charge. If the mortgage formalities have been completed, there are no specific provisions. According to the spirit of "Reply of the Supreme People's Court on whether the state-owned allocated land use right of bankrupt enterprises should be included in the bankrupt property", the results of the evaluation and confirmation of the mining right obtained free of charge are collected by the state as the mining right price, and the difference between the auction price and the mining right price is regarded as the enterprise property. If the detainee enters the bankruptcy and debt repayment procedure, the court will deal with it according to law, and the mortgagee can be given priority in compensation according to law.
Part or all of the mining rights of bankrupt mining enterprises are formed by local government or state investment through exploration. According to Article 39 of the Interim Provisions on the Administration of Mining Rights Transfer (No.309 [2000] of the State-owned Geological Exploration Unit), the proceeds from mining rights transfer formed by state-funded exploration shall be transferred to the State Fund according to the funds actually invested during exploration, and the rest shall be included in the main business income. The auction price can be paid to the government first, and the rest can be included in the bankruptcy liquidation procedure as enterprise property. If the mortgage formalities have been completed, the mortgagee may be given priority in compensation according to law.
The land used by bankrupt mining enterprises is the collective construction land of farmers. According to the provisions of Article 63 of the Land Management Law of the People's Republic of China, the land used by mining enterprises belongs to farmers' collective construction land, which conforms to the overall land use planning. Those who have gone through the registration procedures for farmers' collective construction land can go through the land acquisition procedures first, and then auction, and the auction price will not be included in the bankruptcy and debt repayment procedures. If the above conditions are not met, the attached objects may be removed by the bankrupt enterprise and used according to the purposes determined in the overall land use planning.
Farmers' collective construction land used by bankrupt mining enterprises is invested by farmers' collective economic organizations. According to Article 4 of the Notice of the State Bureau of Land Management on Seriously Implementing the Relevant Documents of the State Council on Strictly Stopping Illegal Occupation and Abuse of Cultivated Land and Developing Real Estate Industry (Guo Tu [Law]No. 182), collective land must be evaluated by the land management department or an entrusted evaluation agency, and the adjustment fee of land resources should be increased. Collective land shares may not be transferred; If it is to be transferred, the collective land must be expropriated as state-owned and the transfer procedures must be handled.
If a bankrupt mining enterprise illegally explores and mines, its mined mineral products shall not participate in the auction; Has been auctioned, corrected in accordance with the provisions of the "People's Republic of China (PRC) mineral resources law" article thirty-ninth.