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Opinions of the General Office of the State Council on Establishing a System of Investigating Investment Responsibility of State-owned Enterprises for Illegal Operations
Category: Discipline Inspection and Supervision Time: 2017-05-11 09:46:29 Browse: 1835 times [Back]

Opinions of the General Office of the State Council on Establishing a System of Investigating Investment Responsibility of State-owned Enterprises for Illegal Operations

2016〕63号) ( State Council issued [ 2016] No. 63)

 

People's governments of provinces, autonomous regions, and municipalities directly under the Central Government, ministries and commissions of the State Council, and agencies directly under the State Council:

国务院关于深化国有企业改革的指导意见》、《国务院办公厅关于加强和改进企业国有资产监督防止国有资产流失的意见》(国办发〔 2015〕79号)等要求,为落实国有资本保值增值责任,完善国有资产监管,防止国有资产流失,经国务院同意,现就建立国有企业违规经营投资责任追究制度提出以下意见。 According to the requirements of the Guiding Opinions of the CPC Central Committee and the State Council on Deepening the Reform of State-owned Enterprises, and the Opinions of the General Office of the State Council on Strengthening and Improving the Supervision of State-owned Assets of Enterprises to Prevent the Loss of State-owned Assets (Guobanfa [ 2015] No. 79) and other requirements, Responsibility for capital preservation and appreciation, perfecting the supervision of state-owned assets, and preventing the loss of state-owned assets. With the consent of the State Council, the following opinions are put forward regarding the establishment of an accountability system for investment violations of state-owned enterprises.

I. General requirements

(1) Guiding ideology. “五位一体”总体布局和“四个全面”战略布局,牢固树立和贯彻落实创新、协调、绿色、开放、共享的发展理念,深入贯彻习近平总书记系列重要讲话精神,认真落实党中央、国务院决策部署,坚持社会主义市场经济改革方向,按照完善现代企业制度的要求,以提高国有企业运行质量和经济效益为目标,以强化对权力集中、资金密集、资源富集、资产聚集部门和岗位的监督为重点,严格问责、完善机制,构建权责清晰、约束有效的经营投资责任体系,全面推进依法治企,健全协调运转、有效制衡的法人治理结构,提高国有资本效率、增强国有企业活力、防止国有资产流失,实现国有资本保值增值。 Fully implement the spirit of the 18th National Congress of the Party and the 3rd, 4th, and 5th Plenary Sessions of the 18th CPC Central Committee, and in accordance with the overall layout of the "Five in One" and the "Four Comprehensive" strategic layout, firmly establish and implement innovation, coordination, green, The concept of open and shared development, thoroughly implementing the spirit of General Secretary Xi Jinping's series of important speeches, conscientiously implementing the decision-making and deployment of the Party Central Committee and the State Council, adhering to the direction of socialist market economy reform, and in accordance with the requirements of improving the modern enterprise system, in order to improve the operating quality and economy of state-owned enterprises Benefit as the goal, focusing on strengthening supervision of departments and positions of centralized power, capital intensive, resource-rich, asset-gathering, strict accountability, improve the mechanism, build a clear responsibility and effective management investment responsibility system, and comprehensively promote compliance with the law Govern enterprises, improve the corporate governance structure of coordinated operation and effective checks and balances, improve the efficiency of state-owned capital, enhance the vitality of state-owned enterprises, prevent the loss of state-owned assets, and maintain and increase the value of state-owned capital.

(2) Basic principles.

1. Compliance with laws and regulations must be investigated. Taking national laws and regulations as the criterion, we strictly implement the internal management regulations of enterprises, and strictly define the responsibility for investment in violation of regulations for state-owned enterprise operations and management personnel who violate the regulations, fail to perform or properly perform their duties, and cause serious losses of state-owned assets. Investigate accountability and implement a lifelong accountability system for major decisions.

2. Hierarchical organization and classification. Institutions and state-owned enterprises that perform the duties of investors shall organize and carry out accountability work in accordance with the requirements for hierarchical management of state-owned assets and cadre management authority. Violations of discipline and law shall be handled strictly according to discipline and law.

3. Be objective, fair, and appropriately punished. On the basis of full investigation and verification and the determination of responsibility, considering both the standard of quantity and the qualitative difference, the factual determination of the degree of asset loss and the scope of liability investigation shall be made to deal with the relevant responsible persons appropriately and fairly.

4. Combining punishment and correction, building together. While seriously investigating investment responsibilities for illegal operations, we will strengthen case summaries and warning education, continuously improve rules and regulations, plug operational management loopholes in a timely manner, establish a long-term accountability mechanism, and improve the management and management level of state-owned enterprises.

(3) The main objectives. 2017年年底前,国有企业违规经营投资责任追究制度和责任倒查机制基本形成,责任追究的范围、标准、程序和方式清晰规范,责任追究工作实现有章可循。 By the end of 2017, the system of investigating responsibility for investing in illegal operations of state-owned enterprises and the mechanism for investigating liabilities have basically been formed. The scope, standards, procedures and methods for accountability are clearly and standardized, and the accountability work has been implemented in accordance with rules. By the end of 2020, a comprehensive accountability work system covering institutions that perform investor responsibilities at all levels and state-owned enterprises will be established, a mechanism for accountability work with clear responsibilities, clear processes, and orderly order will be established, and relevant accountable persons will be held accountable in a timely manner. , State-owned enterprises' operating investment responsibility awareness and liability constraints have been significantly enhanced.

Scope of accountability

Relevant personnel of state-owned enterprise operation and management who violate national laws and regulations and internal management regulations and fail to perform or perform their duties properly and cause the following situations to cause loss of state-owned assets and other serious adverse consequences shall be held accountable:

(I) Group management and control. Subsidiary companies have major violations of discipline and laws, causing significant asset losses, affecting their ability to continue operations or causing serious adverse consequences; failure to perform or fail to perform their duties properly results in major asset losses for the group, which has a significant impact on production operations and financial conditions; Oversight of the Group's major risks, internal control deficiencies and other issues, or if they are found but not reported and dealt with in a timely manner, causing significant risks.

(2) Management of purchase and sales. “空转”贸易;利用关联交易输送利益;未按照规定进行招标或未执行招标结果;违反规定提供赊销信用、资质、担保(含抵押、质押等)或预付款项,利用业务预付或物资交易等方式变相融资或投资;违规开展商品期货、期权等衍生业务;未按规定对应收款项及时追索或采取有效保全措施等。 Failure to enter into and fulfill contracts in accordance with regulations, failure to perform or perform duties properly results in an apparently unfair contract price; false or unlawful conduct of "idling" trade; use of related party transactions to convey benefits; failure to perform bidding in accordance with regulations or the results of bidding ; Provide credit sales, credit, qualifications, guarantees (including mortgages, pledges, etc.) or prepayments in violation of regulations; use business prepayment or material transactions to disguise financing or investment; conduct derivative businesses such as commodity futures and options in violation of regulations; Timely recourse or take effective security measures.

(3) Project construction. Failure to investigate and demonstrate the subject of the contract as required, without authorization or exceeding the authority to bid, the winning bid price is significantly lower than the cost, resulting in loss of corporate assets; violation of the rules to sign or change the contract without authorization, the contract has not been strictly reviewed, and there are major omissions; engineering Materials were not tendered in accordance with regulations; subcontracting or subcontracting was violated; engineering organization management was chaotic, resulting in substandard project quality and severe overruns in project costs; violations of contractual overvaluation and overtime payments.

4. Transfer of property rights, equity and assets of listed companies. Failure to perform decision-making and approval procedures or transfers beyond the scope of authorization; financial audits and asset evaluations violate relevant regulations; organizations provide and disclose false information and manipulate intermediaries to issue false financial audits and asset evaluation verification results; fail to implement the avoidance system in accordance with relevant regulations , Resulting in asset losses; in violation of relevant regulations and the principles of open and fair transactions, the transfer of corporate property rights, listed company equity and assets, etc. at a low price.

(5) Investment in fixed assets. Failure to conduct feasibility studies or risk analysis as required; the project budget has not been rigorously reviewed and seriously deviated from the actual situation; failure to perform decision-making and approval procedures in accordance with regulations has caused unauthorized investment, resulting in asset losses; procurement and construction projects have not been invited for bidding, intervened or manipulated bidding; Significant changes have taken place in the external environment, the investment plan has not been adjusted in a timely manner and stop-loss measures have been taken in accordance with regulations; unauthorized changes in engineering design and construction content; confusion in project management has led to severe delays in construction and significantly higher costs than similar projects.

(6) Investment and M & A. Failure of conducting due diligence in accordance with regulations or risk analysis of due diligence, etc .; major omissions; financial audits, asset evaluations or valuations in violation of relevant regulations, or intentions during investment mergers and acquisitions, directing intermediaries or relevant units to issue false reports ; Failed to implement the decision-making and approval procedures in accordance with regulations, did not fully consider major risk factors, and did not formulate risk prevention plans; provided violations in various forms to provide advance funds to other joint venture partners, or transmitted benefits to related parties through high-premium mergers and other means Investment contracts, agreements, and the articles of association of the target enterprise The lack of protection clauses in China ’s rights and interests, the management of the target company is out of control; shareholders ’rights have not been exercised after the investment has been invested, major changes have not been taken in a timely manner and stop loss measures have not been taken; violations of the contract stipulate that the purchase price is paid in advance. (7) Reorganization. Failure to perform decision-making and approval procedures as required; failure to organize asset clearance, financial audit, and asset evaluation as required; intentional transfer, concealment of state-owned assets, or provision of false information to intermediaries, and manipulation of intermediaries to issue false clearances, financial audits and Asset appraisal and verification results; state-owned assets were discounted, sold, or freely distributed to other units or individuals at a significantly unfair low price; in the process of reorganization and development such as the development of a mixed ownership economy and the implementation of employee stock ownership plans, the state was disguised and privately owned. Equity; failure to collect the transfer price of state-owned assets in accordance with regulations; the lack of provisions for the protection of rights and interests in China in the articles of association of the restructured company.

(8) Fund management. “小金库”;违规集资、发行股票(债券)、捐赠、担保、委托理财、拆借资金或开立信用证、办理银行票据;虚列支出套取资金;违规以个人名义留存资金、收支结算、开立银行账户;违规超发、滥发职工薪酬福利;因财务内控缺失,发生侵占、盗取、欺诈等。 Violate decision-making and approval procedures or go beyond the authority to approve fund expenditures; establish "small treasuries"; illegal fund-raising, issuance of stocks (bonds), donations, guarantees, entrusted wealth management, loan borrowing or opening of letters of credit, and bank bills; Withdraw funds; keep funds, settle income and expenditures, and open bank accounts in the name of individuals in violation of regulations; overissue and overpayment of employees' compensation and benefits in violation of regulations; misappropriation, theft, fraud, etc. due to lack of financial internal control.

(9) Risk management. Lack of internal control and risk management systems, major shortcomings in internal control processes or poor implementation of internal controls; failure to analyze, identify, evaluate, alert and respond to major risks of operating investments in a timely manner; legal review of corporate rules and regulations, economic contracts and important decisions Excessive debts jeopardize the company's continued operations and evade financial debts maliciously; concealment or omission of major risks and risk loss incidents, leading to the preparation of false financial reports, and serious mismatches in corporate accounts.

(10) Other situations where violations of regulations should be investigated for liability.

3. Identification of asset loss

Asset losses incurred by state-owned enterprises in operating investments shall be determined on the basis of investigation and verification, and the amount of losses and their effects shall be determined in accordance with relevant regulations.

(1) Asset losses include direct losses and indirect losses. Direct loss is the amount and impact of loss that has a direct causal relationship with the behavior of the relevant personnel. Indirect losses are caused or caused by the actions of relevant personnel. In addition to direct losses, other loss amounts and effects that can be measured can be confirmed.

(2) Asset losses are classified into general asset losses, major asset losses and major asset losses. Loss standards involving disciplinary violations and criminal behavior investigations shall be implemented in accordance with relevant party regulations and national laws and regulations; where other responsibilities are investigated and handled, institutions that perform the duties of investors and state-owned enterprises shall establish criteria for the classification of asset losses based on actual conditions .

(3) The amount and impact of asset losses may be based on written documents issued by judicial and administrative agencies, and special audit, assessment or verification reports issued by intermediary agencies such as accounting firms, asset appraisal agencies, and law firms with corresponding qualifications; and The internal certification materials of the enterprise shall be comprehensively judged. Although the relevant operating investment has not yet formed a factual loss, the loss that will occur in the foreseeable future after the intermediary agency evaluates can be regarded as a contingent asset loss.

Recognition of operating investment responsibility

Relevant personnel of state-owned enterprise operation and management who violate the regulations during their term of office, fail to perform their duties properly or cause them to lose state-owned assets and other serious adverse consequences shall be investigated for their corresponding responsibilities; those who have been transferred to other positions or retired shall be included in the scope of accountability and implemented A system of accountability for major decisions for life. Operating investment responsibilities are divided into direct responsibilities, supervisor responsibilities, and leadership responsibilities based on job responsibilities.

(1) Direct liability refers to the responsibility that relevant personnel should bear when they violate the regulations, fail to perform or perform their duties incorrectly, and play a decisive and direct role in asset losses or other adverse consequences.

The person in charge of the enterprise shall bear the direct responsibility if he or she or others jointly violates the national laws and regulations and the internal management regulations of the enterprise; instigates, instructs, compels, condones, and shields the subordinates from violating the national laws and regulations and the internal management regulations of the enterprise; Directly determine, approve, and organize the implementation of major economic matters without democratic decision-making, discussions at relevant meetings, or document signing, review and other procedures, and lead to major asset losses or other serious adverse consequences; preside over relevant meeting discussions or file signing In other ways, when most people disagree, directly decide, approve, and organize the implementation of major economic matters, resulting in major asset losses or other serious adverse consequences; they shall be the first responsible person (general responsibility) in accordance with relevant laws and regulations. Responsibilities), related target responsibility matters, or other important duties that should be performed, authorize (entrust) other leading cadres to make decisions and make improper decisions or make mistakes in decision-making that result in major asset losses or other serious adverse consequences; other misconduct, dereliction of duty, and responsibility Act of direct responsibility

(2) Responsibility of the supervisor refers to the responsibility that the relevant person shall bear for the loss of assets or adverse consequences caused by violation of the regulations, failure to perform the duties properly or not within the scope of his or her direct supervisory responsibility.

(3) Leadership responsibility refers to the responsibility of the principal responsible person for the loss of assets or adverse consequences caused by violations of the regulations, failure to perform or incorrect performance of duties within the scope of his work duties.

V. Accountability

(1) According to the degree of asset loss, the nature of the problem, etc., the relevant responsible persons shall be handled by means of organization, deduction of salaries, restrictions on entry, disciplinary action, and transfer to judicial authorities.

1. Organizational processing. This includes criticism education, ordering written inspections, reporting criticisms, admonitions, suspensions, removal from work, demotions, re-election to non-leadership positions, orders to resign, and removals.

2. Deductions. Deduction and recovery of performance annual salary or term incentive income, termination or recovery of long-term incentive income, cancellation of participation in mid- and long-term incentive qualifications, etc.

3. No entry restrictions. Directors, supervisors and senior management personnel of state-owned enterprises shall not be held for five years until their lifetime.

4. Disciplinary action. The corresponding discipline inspection and supervision authorities shall investigate and deal with it according to law and regulations.

5. Transfer to judicial authorities for processing. In accordance with the relevant national laws and regulations, it was transferred to judicial authorities for investigation and punishment according to law.

The above processing methods can be used individually or in combination.

(2) After the assets loss of a state-owned enterprise, after verification, verification, and determination of liability, it shall be handled in the following manners, except that it shall be transferred to the judicial organ for disposal in accordance with relevant regulations:

1. In case of large asset loss, the direct responsible person and the responsible person shall be notified and criticized, exhorted, suspended, relocated, demoted, etc., and the salary shall be deducted in accordance with the following standards: deduction and recovery liability determination Annual 50% —100% performance annual salary, deduction and recourse responsibility recognition 50% —100% of the three years prior to the year (inclusive) of the term incentive income and deferred payment of performance annual salary, termination of outstanding mid- and long-term incentive rights and surrender responsibilities It is not allowed to participate in new mid- and long-term incentives of the enterprise within five years of all the mid-to-long-term incentive benefits of the identified year and the previous year.

30%—70%的绩效年薪、扣减和追索责任认定年度(含)前三年30%—70%的任期激励收入并延期支付绩效年薪,终止尚未行使的中长期激励权益、三年内不得参加企业新的中长期激励。 The leaders and responsible persons shall be notified, criticized, exhorted, suspended, and removed from work. At the same time, the salary shall be reduced in accordance with the following standards: deduction and recourse responsibility recognition annual performance of 30% to 70% of annual salary, deduction and recourse responsibility 30% to 70% of the annual incentive income for the first three years (inclusive) is recognized, and annual performance pay is deferred, the outstanding mid- and long-term incentive rights are terminated, and new mid- and long-term incentives are not allowed for the enterprise within three years.

2. In the event of major asset losses, the direct responsible person and the responsible person shall be demoted, re-appointed to non-leading positions, ordered to resign, removed from office, and restricted from entering, and the salary shall be deducted in accordance with the following criteria: deduction and recourse 100% performance annual salary, deduction and recourse for the year of liability determination 100% of the annual incentive income for the first three years of the liability determination year (inclusive) and deferred payment of performance annual salary, termination of outstanding mid- and long-term incentive rights, and payment of the liability determination year (including ) All the mid-to-long-term incentive income of the previous three years shall not be allowed to participate in the new mid-to-long-term incentives of the enterprise.

70%—100%的绩效年薪、扣减和追索责任认定年度(含)前三年70%—100%的任期激励收入并延期支付绩效年薪,终止尚未行使的中长期激励权益、上缴责任认定年度(含)前三年的全部中长期激励收益、五年内不得参加企业新的中长期激励。 Responsible leaders shall be provided with resignation, demotion, reassignment to non-leadership positions, order resignation, removal from office, and restrictions on entry, etc., and pay reductions shall be made in accordance with the following criteria: deductions and claims for responsibility 70% -100 % Performance annual salary, deduction and recourse responsibility recognition year (inclusive) 70% -100% of the three years prior to the annual incentive income and deferred payment of performance annual salary, termination of outstanding mid- and long-term incentive rights, and payment of liability recognition year (inclusive) All the mid-to-long-term incentive income of the previous three years shall not be allowed to participate in the new mid-to-long-term incentives of the enterprise within five years.

3. If the responsible person no longer receives the annual performance salary of the company in the year of responsibility determination, it shall be calculated based on the total annual performance salary of the year before leaving the company and the sum of the incentive income of the previous three years of office, with reference to the above-mentioned standards for reimbursement of his salary.

4. Remuneration deductions and recourses for the same incident and the same responsible person shall be carried out in accordance with the highest standards of deductions for remuneration such as party discipline, political discipline, and accountability, but not combined.

(3) Those with frequent asset losses, huge amounts, serious consequences, and bad impacts, who fail to take timely measures or ineffective measures leading to the expansion of asset losses, and who conceal or misreport asset losses shall be dealt with seriously. Those who take measures in a timely manner to reduce or recover losses and eliminate adverse effects may be appropriately lightened.

(4) The specific standards for investigating and managing the liability of state-owned enterprises for investment in violation of regulations shall be formulated by the institutions that perform the duties of investors at all levels according to the extent of asset losses and liabilities that shall be assumed.

Organization and implementation of accountability

(1) The following procedures shall be followed in investigating the responsibility for investing in illegal operations of state-owned enterprises:

1. Acceptance. As soon as asset losses are discovered, they shall be reported immediately in accordance with the regulations and relevant procedures. The accepting department shall make preliminary verification on the clues to the asset loss that it has mastered. If it falls within the scope of accountability, it shall promptly initiate the accountability work.

2. Investigation. Receiving departments shall organize and conduct investigations in a timely manner in accordance with their duties and responsibilities, verify asset losses and related business conditions, verify the amount and situation of losses, find out the causes of losses, identify corresponding responsibilities, and propose rectification measures, etc., and may form a joint investigation team upon approval if necessary. Check and issue an asset loss investigation report.

3. Processing. According to the facts of the investigation, it was transferred to the relevant departments in accordance with the provisions of the jurisdiction, and the relevant responsible persons were held accountable in accordance with the management authority and relevant procedures. The relevant responsible person has the right to file an appeal if he disagrees with the decision, but the execution of the original decision shall not be stopped during the appeal. The accountability investigation and the results of the investigation were made public within a certain scope.

4. Rectification. State-owned enterprises that have suffered asset losses should conscientiously summarize their lessons learned, implement rectification measures, plug management loopholes, and establish and improve long-term mechanisms for preventing losses.

(2) In principle, the accountability work shall be organized in accordance with the management authority of the cadres. The general asset loss shall be carried out by the enterprise in accordance with relevant regulations. The superior enterprise or the institution performing the duties of the investor shall, if necessary, organize the investigation directly; In the case of large or significant asset loss standards, accountability should be carried out by the superior enterprise or the institution that performs the duties of the investor; if major asset losses occur repeatedly or cause other serious adverse effects, the amount of asset losses is particularly huge, and it jeopardizes the survival and development of the enterprise, it should Responsibility investigation work shall be carried out by the institution performing the duties of the investor.

(3) Directors who, in violation of regulations, fail to perform their duties properly or cause their state-owned assets to suffer losses, shall, in addition to being liable for compensation in accordance with the law, be dealt with in accordance with the Company Law, the Articles of Association and this Opinion. Directors who are directly responsible for major asset losses should be adjusted or dismissed in a timely manner.

(4) During the investigation of operational investment responsibility, the annual performance salary, term incentive income, and mid- and long-term incentive income that are not paid or honored by the relevant responsible person shall be suspended or paid; for the relevant responsible person that may affect the smooth conduct of the investigation, Depending on the situation, measures such as suspension, relocation, and removal can be taken.

(5) In case of safety production, environmental pollution liability accidents and major instability incidents, it shall be handled separately in accordance with relevant state regulations.

Work requirements

(1) Institutions performing investor responsibilities at all levels must clarify the responsibilities that the person in charge of the funded enterprise must perform in operating investment activities, guide them to establish a sense of responsibility and risk, operate in accordance with the law, act with integrity, adhere to professional ethics, and perform their duties. , Standardize operational investment decisions, and maintain the safety of state-owned assets. State-owned enterprises should improve the company's articles of association in accordance with the provisions of the Company Law, establish and improve supporting systems for major decision-making evaluations, record of performance of decision-making matters, and determination of decision-making faults, refine the list of various business investment responsibilities, define job responsibilities and performance procedures, and continuously improve operations. Standardized and scientific level of investment responsibility management. Institutions and state-owned enterprises that perform the duties of investors shall, in the employment contracts of external directors and professional managers, clarify the principles and requirements for investigating the liabilities for illegal operation.

(2) Institutions and state-owned enterprises that perform investor responsibilities at all levels shall establish and improve the accountability system for investing in violations of operations in accordance with the requirements of this opinion, and refine the principles, scope, basis, starting mechanism, procedures, methods, and standards for investing in accountability for operations. And responsibilities to ensure that the investigation of investment responsibilities for illegal operations is rule-based, standardized and orderly. The system of investigating the responsibility of state-owned enterprises for investment in violation of regulations shall be reported to the institution performing the duties of the investor for the record.

(3) State-owned enterprises should give full play to the supervisory role of the party organization, auditing, finance, law, human resources, inspections, discipline inspection and supervision departments, and form a joint implementation, coordinated, standardized and orderly accountability work mechanism, important situations and issues. Report in a timely manner to the institution performing the duties of the investor. Institutions that perform the duties of investors shall strengthen their cooperation with the board of supervisors, inspection teams, auditing agencies, disciplinary inspection and supervision organs, and judicial organs to jointly investigate the responsibility for investing in illegal operations of state-owned enterprises. For major illegal and disciplinary violations of state-owned enterprises, such as investing in violations of laws and disciplines, if they are found but not found or perfunctory, not concealed, not investigated and dealt with properly, the company and the relevant personnel of the institution performing the duties of the investor shall be held strictly responsible for the dereliction of duty.

(IV) Institutions and state-owned enterprises that perform investor responsibilities at all levels must do a good job of propaganda and interpretation of related systems for investigating the responsibility of investing in illegal operations of state-owned enterprises, consolidating social consensus, and creating a good atmosphere for in-depth accountability; In the investigation and processing, we shall summarize and report in an appropriate scope, explore the public investigation and processing of the situation, accept social supervision, and give full play to the role of warning and education.

This opinion is applicable to investigating the responsibility of state-owned and state-holding enterprises for illegal operation and investment. The investigation of state-owned enterprises' financial and cultural responsibility for investing in violation of regulations shall be carried out in accordance with other provisions of the Central Government.

 


                           Office of the State Council


August 2, 2016