Recently, when dealing with relevant legal issues on the spot of the permanent legal advisory unit, I learned that the unit encountered such a matter and could not make up its mind on how to deal with it.
This unit is a wholly state-owned limited liability company, and its shareholder unit is a state-owned holding investment company established by the local State-owned Assets Supervision and Administration Commission. Due to the adjustment of some local administrative matters, a part of the state-owned assets will be transferred to the unit for operation and management by way of direct transfer. However, when the assets and accounts were handed over, a discrepancy was found between the accounts and the facts.
In order to establish an asset ledger, the unit intends to evaluate the transferred assets, and has contacted the asset appraisal agency in the intermediary service directory of the local SASAC. However, I felt uneasy, so I wanted to hear the advice of the consultant lawyer.
According to the Law on State-owned Assets of Enterprises, state-owned enterprises and entities performing the duties of investors should strengthen the protection of state-owned assets, "establish and improve the assessment and accountability system for the preservation and appreciation of state-owned assets, and implement the responsibility for maintaining and increasing the value of state-owned assets". Logically speaking, the basis of value preservation and appreciation is that the original asset value is clear, otherwise it is impossible to determine whether the value of the asset will be maintained and increased in the later stage.
With regard to the determination of the value of the original assets, the second paragraph of Article 48 of the Company Law stipulates that "the non-monetary property used as capital contribution shall be appraised for valuation", but does not stipulate the subject of the appraisal. Section 4 of Chapter 5 of the Law on State-owned Assets of Enterprises provides for asset valuation, but these appraisals mainly involve "merger, division, increase or decrease of registered capital, issuance of bonds, distribution of profits, and dissolution and bankruptcy application", and the appraisal is determined by the institution performing the duties of the investor. The provisions are not clear as to the entity responsible for the valuation of such transferred assets.
In addition, according to the first paragraph of Article 4 of the Interim Measures for the Appraisal and Administration of State-owned Assets of Enterprises, "the approval system and filing system shall be implemented for the appraisal projects of enterprises", for the situation where the value of the transferred assets is unclear, the enterprise shall, in accordance with the provisions of the law on the approval system or the filing system, determine the decision-making body and the implementation entity of the subject to be assessed in accordance with the provisions or authorization of the entity performing the rights of the investor, so as to clarify the responsibilities.
From the logic of the matter itself, when the asset transfer entity transfers the assets, the accounts should be consistent with the facts and the value should be clear, otherwise the starting point of the asset value of the management and operation entity cannot be determined, which will lead to unclear responsibilities. In this sense, the valuation of the transferred assets should be arranged and carried out by the entity performing the duties of the investor, and the appraisal agency entrusted by the state-owned company receiving the assets should be carried out, and its credibility will inevitably be questionable.
Based on the above analysis, Mr. Wang suggested that the consultant should report the relevant situation and the proposed evaluation to the main body performing the duties of the investor, and properly manage the relevant assets before giving clear instructions to avoid asset damage or depreciation.