国有股权转让之审批规范的问题与对策

Problems and Countermeasures of Examination and ApprovalStandard of State-Owned Equity Transfer

国有股权转让是实现国有经济布局和战略性结构调整优化的重要手段,涉及国家利益,具有"公益性目的"。为防止国有资产的流失,确保国有资产的保值、增值,法律对国有股权转让设置严格的程序规范,具有正当性。而行政审批是规范国有股权转让行为,最大限度减少国有资产流失的有效手段。但现行国有股权转让的审批规范存在缺陷和不足,难以更好地发挥作用。因此,应明确政府和"国资监管机构"审批国有股权转让的时限,国家出资企业之子企业的国有股权转让应报同级"国资监管机构"批准的具体情形,并明确未经审批之国有股权转让合同应认定为"有效"但"未生效",合同对双方当事人具有法律约束力,只是合同约定的主权利义务条款不发生履行效力。但"报批义务条款"除外",负有报批义务"的"国有股权转让方"应履行报批义务。

The transfer of state-owned shares is an important means to realize the adjustment and optimization of state-owned economic layout and strategic structure,which involves national interests and has a"public welfare purpose".In order to prevent the loss of state-owned assets and ensure the preservation and appreciation of state-owned assets,the law sets strict procedural norms for the transfer of state-owned shares,which is justified.Administrative examination and approval is an effective means to standardize the transfer of state-owned shares and minimize the loss of state-owned assets.However,the current examination and approval standards for the transfer of state-owned shares have defects and deficiencies,which make it difficult to play a better role.Therefore,it is necessary to clarify the time limit for the government and the"state-owned assets supervision institution"to examine and approve the transfer of state-owned shares,and the specific circumstances that the transfer of state-owned shares of subsidiaries of state-funded enterprises should be reported to the"stateowned assets supervision institution"at the same level for approval.It is also clear that the unapproved stateowned shares transfer contract should be deemed as"valid"but"ineffective",and the contract is legally binding on both parties,except that the main rights and obligations stipulated in the contract do not take effect.Except for the"obligation for approval",the"state-owned equity transferor"who has the obligation for approval shall fulfill the obligation for approval.