Regulations of Shanghai Municipality on Supervision and Management of Rural Collective Assets
Regulations of Shanghai Municipality on Supervision and Management of Rural Collective Assets
(Adopted at the 41st Session of the Standing Committee of the 14th Shanghai Municipal People’s Congress on November 23, 2017)
Contents
Chapter I General Provisions
Chapter II Ownership Confirmation
Chapter III Organization
Chapter IV Operation and Management
Chapter V Direction and Supervision
Chapter VI Legal Responsibility
Chapter VII Supplementary Provision
Chapter I General Provisions
Article 1 With a view to strengthening and standardizing the supervision and management of rural collective assets, safeguarding the legitimate rights and interests of the rural collective economic organizations and their members, supporting and promoting the sustainable development of rural collective economy, these Regulations are formulated according to the General Principles of Civil Law of the People's Republic of China, the Property Law of the People's Republic of China and other laws and administrative regulations, and in the light of the actual circumstances of this Municipality.
Article 2 These Regulations apply to the activities of management and supervision of rural collective assets in the administrative area of this Municipality.
The rural collective assets in these Regulations mean the assets collectively owned by the total members of the rural collective economic organizations in villages and towns, villages and groups.
The rural collective economic organization in these Regulations means the organization of cooperative business, democratic management and service to members that is established by members of villages, towns, villages and groups on the basis of collective ownership of means of production.
Article 3 The rural collective economic organizations should accept the leadership of the Communist Party of China at the grassroots level, improve the organization rules and regulations, establish and improve the democratic management mechanism, manage the rural collective assets according to law, and develop the rural collective economy.
Article 4 The people's governments at all levels in this Municipality shall establish a collective economic development support mechanism based on the actual development of the corresponding administrative area, with perfect financial guidance and diversified inputs, increase financial input to rural public services and support the development of rural collective economy.
The municipal and district agriculture authorities and township people’s governments shall, according to the division of duties, be responsible for guiding, coordinating and supervising the management of rural collective assets in their administrative areas. The municipal, district and township administrations of rural operation and management shall discharge the duties of daily guidance, supervision and management as stipulated in these Regulations.
The municipal and district departments of development and reform, finance, civil affairs, public security, industry and commerce, quality supervision, tax, planning and land resources, housing and urban and rural construction management, human resources and social security, and water supply shall, according to the division of duties, jointly do well in the guidance for the rural collective asset management.
The sub-district offices where the rural collective assets exist shall discharge the duties of the township people's governments under these Regulations.
Article 5 The rural collective economic organization shall separate the affairs and accounts from those of the township people's government and the villagers' committee.
The rural collective economic organization may, according to the provisions of laws, regulations and articles of association, use their income in a certain proportion for public affairs and public welfare undertakings in the corresponding area.
Article 6 The rural collective assets shall be protected by law, and no unit or individual may encroach on or damage them.
Any unit or individual shall not force the rural collective economic organization to make a donation or apportion. In respect to the construction of rural public facilities and public service projects carried out by the financial input, the rural collective economic organization shall not be compelled to arrange supporting funds.
Article 7 The municipal and district people's congresses, their standing committees and the township people's congress shall strengthen the supervision and inspection of the implementation of the relevant laws and regulations on the rural collective assets.
Chapter II Ownership Confirmation
Article 8 The following assets are included in the management of rural collective assets in accordance with the legal provisions:
1. the resource assets such as the collective land of the members;
2. the members’ collectively owned operating assets such as buildings, facilities, equipment, and intangible assets for business and investment rights and interests formed by collective investment;
3. the members’ collectively owned non-operating assets such as buildings, facilities and equipment for public services such as education, science and technology, culture, health and sports;
4. assets formed by government appropriations, taxes and fees deductions, and donations and financial aids accepted; and
5. other assets belonging to the collective ownership of the members according to law.
The operating assets prescribed in the preceding Paragraph shall be quantified in the form of share to the members of the collective economic organization. Except as otherwise prescribed by the State and this Municipality, other assets shall not be quantified in the form of share or distributed in the form of money.
Article 9 Persons who have participated in the collective production and lived in townships, villages and groups since the establishment of the rural advanced agricultural production cooperatives, upon confirmation by the rural collective economic organization's democratic process, shall become members of the collective economic organization. The confirmation of members shall synthesize such factors as the relationship of household registration, rural land contract and contributions to the accumulation of rural collective assets.
The member of a rural collective economic organization shall according to law have the rights to know, vote, have benefit and supervise in terms of the rural collective assets and their operation and management. If a person has no relationship of production and life with a rural collective economic organization due to work and life reasons, the person shall not have the right to vote, except that the articles of association of the rural collective economic organization prescribed otherwise.
Article 10 A rural collective economic organization shall set up the roster of members, record the basic information of the members’ names and shares, and file them with the rural operation and management authorities in a timely manner.
The share of the members of the rural collective economic organization shall be recorded as the unit of the household. Generally, the total share of the household shall not be adjusted along with the increase or decrease in the household population, except as otherwise stipulated in the articles of association of the rural collective economic organization.
Article 11 The rural collective assets share can be transferred or granted between members of the collective economic organization, and also can be redeemed by the collective economic organization, but it can not be transferred or granted to persons other than members of the collective economic organization.
The share of rural collective assets can be inherited according to law. If a person other than a member of a rural collective economic organization obtains the share through inheritance, the person shall not have the right to vote, except as otherwise prescribed in the articles of association of the rural collective economic organization.
If the share of rural collective assets held by means of share quantification or transfer, donation and inheritance, the total share held shall not exceed the upper limit prescribed in the articles of association of the rural collective economic organization.
Chapter III Organization
Article 12 The township collective economic organization can be registered as the rural economic union, and the village and group rural collective economic organization as the rural economic cooperative. The rural economic union and the rural economic cooperative (hereinafter referred to as the economic cooperatives) are registered and issued certificates by the district agricultural authorities. The registration certificate shall include the name, the unified social credit code, the person in charge, the residence and such other matters of the rural collective economic organization,
A rural collective economic organization that has been registered as a limited liability company or a community joint stock cooperative can be transformed into an economic cooperative if conditions are met.
A rural collective economic organization shall have the qualification of a legal person according to the provisions of the General Principles of Civil Law of the People's Republic of China and other laws and administrative regulations.
Article 13 The organization of economic cooperative is composed of the members' meetings, the board of directors and the board of supervisors, and the one - person - one - vote system is put into practice.
Members of the council of economic cooperatives and members of the board of supervisors shall be publicized before they take office. The member of the council and the member of the board of supervisors shall not be acted concurrently.
Article 14 An economic cooperative shall formulate articles of association and file them with the district agricultural authorities. The articles of association can specify the following:
1. the name, domicile and person in charge;
2. the scope of operation;
3. the scope of duties and rules of procedure of the members' meeting, members' representatives' meeting, the council and the board of supervisors;
4. the composition of members’ representatives and the way of election and removal;
5. the composition of the board of directors and the board of supervisors, and the way of the election and removal of the directors, head of directors, supervisors and head of supervisors;
6. the scope of major matters, general matters and main managers;
7. the conditions and procedures of the turnover of the share and quota of the members;
8. the method of income distribution;
9. the conditions of merger, separation and dissolution due to other reasons;
10. the method of liquidation; and
11. other matters required by the meeting of the members or the members' representatives.
The district agricultural authorities shall, under the guidance of the municipal agricultural authorities, formulate the demonstration articles of association in the light of the actual conditions in the district.
Article 15 The meeting of members is the authority of an economic cooperative and can make a decision on the following:
1. the formulation and revision of the articles of Association;
2. the election and removal of members of the council and the board of supervisors;
3. the deliberation of the report on the work of the board of directors and the board of supervisors;
4. the implementation plan for merge, separation and dissolution due to other reasons;
5. the development plan, the mode of operation, important rules and regulations, and major investment projects of rural collective assets;
6. the schemes for annual budget for financial revenue and expenditure, final accounts and income distribution;
7. the increase or decrease in members; and
8. other matters stipulated in the laws, regulations and articles of association.
An economic cooperative with more members can set up meetings of member representatives of member households or members’ representatives, and perform duties of members’ meeting under the provisions of the articles of association.
Article 16 The meeting of members or members' representatives shall be held at least once a year, convened by the council and presided over by the head of directors. As proposed by more than 1/10 members or by the board of directors or the board of supervisors, a meeting of members or members' representatives shall be held.
The meeting of members may be held with participants of above 1/2 of all members and the meeting of members' representatives with participants of above 2/3 of all representatives.
The resolutions adopted by the meeting of members and the meeting of members' representatives on the important matters prescribed by the articles of association shall be passed by more than 4/5 of the attendance. Resolutions on general matters shall be passed by more than 2/3 of the attendance.
Article17 The council is the governing body of an economic cooperative, which performs the following duties under the provisions of the articles of association:
1. convening a meeting of members or members' representatives;
2. executing the resolution of the meeting of members or members' representatives;
3. formulating and implementing the rules and regulations of the management of rural collective assets;
4. drafting plans for the annual budget of financial revenue and expenditure, final accounts and income distribution;
5. being responsible for the operation and daily management of rural collective assets;
6. making report to the meeting of members or members' representatives; and
7. other duties as prescribed in the laws, regulations and articles of association.
The term of office of a director is prescribed in the articles of association, but the term of office shall not exceed five years.
Article 18 The board of supervisors is the supervisory authority of an economic cooperative, and performs the following duties under the provisions of the articles of association:
1. checking the finance of the economic cooperative;
2. supervising the behavior of directors and chief executives performing their duties, and put up a proposal for dismissal of directors and chief executives who violate laws, regulations, statutes and resolutions of the meeting of members or members' representatives
3. correcting the behavior of the directors and chief executives who harm the interests of the economic cooperative;
4. proposing the convention of the meeting of members or members' representatives, and convening a meeting on its own when the council does not convene a meeting;
5. proposing proposals to the meeting of members or members' representatives; and
6. other duties as prescribed in the laws, regulations and articles of association.
The term of office of a supervisor is prescribed in the articles of association, but the term of office shall not exceed five years.
Chapter IV Operation and Management
Article 19 The rural collective economic organization shall establish and improve the system of operation and management, responsibility assessment and risk control of rural collective assets
The rural collective economic organization can operate directly on the operating assets, and can also operate by means of contracting, leasing, entrusting, joint venture and cooperation.
The director and chief manager of a rural collective economic organization shall not, in violation of the provisions of laws, regulations and articles of association, or without consent of a meeting of members, provide guarantees for others with rural collective assets.
The operation and use of resource assets such as rural land shall abide by the provisions of the relevant laws and regulations, and shall not change their uses without authorization.
Article 20 The rural collective economic organization shall regularly carry out the asset check and verification work, with focus on checking operating assets, resource assets non contracted by households, cash, creditor's rights and liabilities. The verification results shall be presented publicly to the members and confirmed by the meeting of members or members' representatives.
Article 21 The transfer of rural collective assets shall be in compliance with the provisions of the State and this Municipality on the open transaction of property rights. The renting of rural collective assets shall be encouraged to choose the best lessee in an open and fair manner on the rural collective asset leasing platform.
Article 22 The rural collective economic organization can only open a basic deposit account, and can open special deposit accounts in accordance with the relevant provisions. The relevant information of the accounts shall be put on record to the township operation and management authorities.
The rural collective economic organization shall establish and improve financial and accounting systems such as budget and final accounts, expenditure approval, fund management, bill management, financial disclosure, bad debt cancellation and internal control.
The original vouchers obtained by the rural collective economic organization in economic exchanges with other units or individuals shall be true and legal. The financial files and economic contracts and other data of the rural collective economic organization and the enterprises established by the organization shall be preserved in accordance with the relevant provisions.
Article 23 The rural collective economic organization shall have the necessary accountants or entrust qualified professional agencies to undertake financial accounting, financial archival storage and statistics.
The agency appointed by the twon/township people's government to provide accounting agency services shall not charge the rural collective economic organization.
Article 24 The rural collective economic organization shall regularly publicized the following information to their members.
1. the operation of rural collective assets;
2. the operation of assets of the enterprises set up by the rural collective economic organization;
3. the audit of the work remuneration and economic responsibility of the managers of the rural collective economic organization and its enterprises;
4. the check and verification results of rural collective assets; and
5. other information that shall be publicized as prescribed by the State and this Municipality.
Article 25 The operating income of rural collective assets is owned by all the members of the collective economic organization.
The net income of the rural collective economic organization in the year shall be allocated under the provisions of these Regulations and the articles of association after making up for the losses and extracting the provident fund and public welfare funds. The extraction ratio of the provident fund and public welfare fund is fifteen percent of net income of the year. The rural collective economic organization shall be encouraged to prescribe a higher proportion of extraction in the articles of association. The provident fund and public welfare fund, if reaching the accumulative amount stipulated in the articles of association, may no longer be extracted.
The provident fund is mainly used to develop production, increase capital and make up for losses. Public welfare funds are mainly used to support public affairs and public welfare undertakings in the region.
The rural collective economic organization shall, under the guidance and supervision of the rural operation and management authorities, formulate the annual income distribution plan according to the economic conditions and the actual development of the collective economic organization. The annual income distribution plan shall conform to the relevant provisions of the State and this Municipality, and be reported to the rural operation and management authorities, and submitted to the members' meeting or the meeting of members' representative for deliberation and decision.
Article 26 A rural collective economic organization that needs to adjust the rural collective ownership of assets or disposal of rural collective assets due to merger, division, dissolution or other reasons shall, under the guidance and supervision of the district agricultural authorities, draw up specific implementation plans; with withdrawal of the establishment of a group, village or township, the rural collective economic organization shall make liquidation of the collective assets, capital verification, property rights clearance and make a disposition plan in advance.
The implementation plan and the disposal plan prescribed in the preceding Paragraph shall be submitted to the meeting of members or members' representatives to deliberate the decision. When adjusting the ownership and disposal of rural collective assets, the land compensation fees that are included in the scope of the management of operating collective assets shall be quantified according to the provisions of the State and this Municipality, and no harm shall be done to the legitimate rights and interests of the rural collective economic organizations and their members.
Article 27 In the reform of rural collective property right system, the related taxes and fees arising from the name change of the rural collective assets owners, verification and alteration of property right and so on shall be reduced according to the relevant provisions of the State.
Article 28 With one of the following situations, the rural collective economic organization shall entrust a legally qualified asset appraisal agency to evaluate the rural collective assets.
1. to invest rural collective assets in price;
2. to transfer rural collective assets to the limits prescribed in the articles of Association;
3. to have the ownership of rural collective assets adjusted or rural collective assets disposed of due to the withdrawal of the establishment of a villagers' group, village or township or the dissolution of a rural collective economic organization ; or
4. other situations that need to be evaluated as prescribed by laws and regulations.
The results of the assessment of rural collective assets shall be publicized to members of the collective economic organization.
Article 29 The rural collective economic organization shall entrust third party professional agencies or establish an internal audit body to conduct annual audit of the economic activities of the collective economic organization.
The results and rectification of the audit shall be publicized to the members of the collective economic organization.
Article 30 Members of the rural collective economic organization shall have the right to know of the operation and management of the collective economic organization, and the latter shall promptly reply and explain; if more than ten households or twenty people make joint inquiry or involving important issues, records shall be made.
Chapter V Direction and Supervision
Article 31 The municipal, district and township rural operation and management authorities undertake the daily guidance and supervision of the management of rural collective assets, including the following matters:
1. the rural collective assets, liabilities, gains and losses and the distribution of income ;
2. the scope, procedures and results of the assessment of rural collective assets;
3. the signing and performance of contracts, such as contracting, leasing and transfer of rural collective assets ;
4. the extraction and use of provident fund and public welfare fund;
5. the governance structure and rules of procedure of the rural collective economic organization;
6. the merge, split and dissolution due to other reasons of a rural collective economic organization; and
7. other matters prescribed in laws and regulations.
The rural operation and management authorities may, in the supervision and inspection, conduct on-site inspection, inquire and inspect the rural collective economic organization or the contractor, lessee, units and individuals entrusted with the management of rural collective assets of the relevant situation, and have access to and make copy of the relevant files, contracts, invoices, account books and other relevant information.
Article 32 The rural operation and management authorities shall carry out the inspection of the internal audit conducted by the rural collective economic organization, and according to the need of supervision and management, appoint a person or entrust a third party professional agency to audit assets, financial revenue and expenditure of the rural collective economic organization.
The auditing organs of the municipal and district people's governments shall conduct the guidance of the audit business in accordance with the law within the scope of their duties.
Article 33 In the supervision and inspection, the rural operation and management authorities, if finding that the rural collective economic organization has risks of law and regulation breaking or omissions in management, shall issue a risk warning or rectification notice and make follow-up inspection.
If there are significant business risks or other asset management problems, not timely rectified, the rural operation and management authorities can interview the main persons responsible for the collective economic organization and other relevant units, request them to fulfill the rural collective asset management responsibility, and take effective measures to eliminate the risks of asset operation.
Article 34 The rural operation and management authorities shall disclose the results of supervision and inspection on the collective economic organizations to the members of the rural collective economic organizations, and notify the relevant departments.
The rural operation and management authorities shall establish archives for the supervision and management of rural collective assets, record the supervision and inspection and the relevant departments' administrative penalties given to the rural collective economic organizations.
Article 35 If any members and interested parties of the rural collective economic organization have objections to the membership and share, they can apply for verification to the rural collective economic organization. After receiving the application, the rural collective economic organization shall make investigation, verification and timely response; the problem, if found, shall be corrected.
The rural operation and management authorities can help to make investigation and verification upon the request of the members and interested parties of the rural collective economic organization, and urge the rural collective economic organization to make a reply.
Article 36 Any unit or individual, finding illegal activities such as the loss of rural collective assets, can lodge complaints and report to the relevant administrative department and rural operation and management authorities.
The relevant administrative department and rural operation and management authorities shall handle the complaints and report within fifteen days of receipt, and make verification and reply in respect to what belongs to their duties; and shall, within five days, make written notice and refer to the unit with power to process what does not belong to their duties, and inform the complaint reporter.
Chapter VI Legal Liability
Article 37 For violation of the provisions of these Regulations, where the laws and administrative regulations have the provisions for punishment, such provisions shall apply.
Article 38 The directors, supervisors and main managerial personnel of the rural collective economic organization who have one of the following behaviors, causing losses of rural collective assets shall assume the liability of compensation according to law; if a crime is constituted, the criminal responsibility shall be investigated according to law.
1. accepting bribes or obtaining other illegal income and improper interests;
2. encroaching and misappropriating rural collective assets;
3. providing guarantee for others by means of rural collective assets in violation of laws, regulations and articles of association, or share-converting, transferring and renting rural collective assets at a low price;
4. failing to provide truthfull relevant information to an asset appraisal agency or accounting agency, or issuing false asset appraisal reports and audit reports in collusion with an asset appraisal agency and accounting agency.
5. making a decision on the important matters of the collective economic organization in violation of the decision-making procedures stipulated in the laws, regulations and articles of association; or
6. other behaviors that violate laws, regulations and articles of association.
Article 39 If any director, supervisor or chief manager of the rural collective economic organization violates the provisions of these Regulations with serious circumstances, the municipal and district agricultural authorities and the township people's government can put forward suggestions on suspending their duties or dismissal to the rural collective economic organization.
Article 40 The member and interested party of the rural collective economic organization believing that the rural collective economic organization infringed upon their legitimate rights and interests, or the rural collective economic organization believing that other units or individuals infringed upon its legitimate rights and interests may bring a civil suit in a people's court according to law.
The rural collective economic organization and related personnel aggrieved by the administrative act of the municipal and district agricultural authorities may apply for administrative reconsideration according to law or bring administrative proceedings to the people's court.
Article 41 The officials of the people's governments at all levels and their related departments having one of the following cases in violation of the provisions of these Regulations shall be given administrative sanctions according to law. If a crime is constituted, they shall be investigated for criminal responsibility according to law :
1. encroaching or damaging rural collective assets, forcing the rural collective economic organization to make donation or apportion;
2. forcing the rural collective economic organization to arrange supporting funds for the construction of rural public facilities and public service projects carried out by the financial input;
3. failing to make timely disposition of complaints or reports submitted by the rural collective economic organization, resulting in adverse effects; or
4. other acts of abuse of power, dereliction of duty or malpractice for favoritism in the supervision and management of rural collective assets.
Chapter VII Supplementary Provisions
Article 42 These Regulations shall be effective as of April 1, 2018.