Measures for the transfer of rights and interests of toll roads
Ministry of Transport of the People’s Republic of China, National Development and Reform Commission,
Decree No.11, 2008 of People’s Republic of China (PRC) Ministry of Finance
The Measures for the Transfer of Rights and Interests of Toll Roads were adopted at the 7th ministerial meeting on June 15th, 2007, and are hereby promulgated and shall come into force as of October 1st, 2008.
Minister of Transport Li Shenglin
Zhang Ping, Director of the National Development and Reform Commission
Minister of Finance Xie Xuren
August 20th, 2008
Measures for the transfer of rights and interests of toll roads
Chapter I General Principles
the first In order to regulate the transfer of rights and interests of toll roads, safeguard the legitimate rights and interests of the transferor, transferee and users, and promote the development of highway undertakings, these measures are formulated in accordance with the Highway Law of People’s Republic of China (PRC) (hereinafter referred to as the Highway Law) and the Regulations on the Administration of Toll Roads (hereinafter referred to as the Toll Regulations).
the second The transfer of the rights and interests of toll roads within the territory of People’s Republic of China (PRC) shall abide by these measures.
Article The meanings of the following terms in these Measures are:
(1) Toll roads refer to roads (including bridges and tunnels) that are approved to collect vehicle tolls according to the provisions of the Highway Law and the Toll Regulations. Toll roads include government repayment roads and operating roads.
The government loan repayment highway refers to the toll road built by the transportation department of the local people’s government at or above the county level with loans or paid funds from enterprises and individuals.
Operating highway refers to the toll road invested and built by domestic and foreign economic organizations in accordance with the law or the toll road with the right to repay the loan from the government in accordance with the law.
(two) the rights and interests of toll roads refer to the right to charge, the right to operate advertising and the right to operate service facilities.
(3) The term "transfer of rights and interests of toll roads" refers to the trading activities in which the transferor transfers the legally acquired rights and interests of toll roads to the transferee for compensation after the toll roads are completed and opened to traffic.
The transferor refers to the domestic and foreign economic organizations that transfer the legally obtained rights and interests of toll roads to the transferee for compensation according to law, including legal person organizations that specialize in the construction and management of government repayment roads for non-profit purposes and domestic and foreign economic organizations that invest in the construction and operation of operating roads.
The transferee refers to the domestic and foreign economic organizations that have obtained the rights and interests of toll roads from the transferor in accordance with the law.
Article 4 The state allows the transfer of the rights and interests of toll roads according to law, and strictly controls the transfer of the rights and interests of toll roads.
On the basis of comprehensive consideration of the necessity, rationality and social endurance of the transfer, the state strictly restricts the transfer of government repayment roads into operational roads.
The transfer of rights and interests of toll roads shall comply with the provisions of relevant laws, regulations and rules, and shall follow the principles of openness, fairness, impartiality and good faith.
Article 5 The State Council transportation authorities are in charge of the transfer of the rights and interests of national toll roads. The development and reform department of the State Council and the competent financial department are responsible for the management of the transfer of rights and interests of toll roads according to their respective responsibilities.
Chapter II Conditions for Transfer of Rights and Interests of Toll Roads
Article 6 The highway that transfers the toll right shall conform to the technical grade and scale stipulated in Article 18 of the Toll Regulations.
Article 7 Under any of the following circumstances, the toll right in the rights and interests of toll roads shall not be transferred:
(1) Two-lane independent bridges and tunnels with a length of less than 1,000 meters;
(2) Secondary roads;
(3) The charging time has exceeded 2/3 of the approved charging period.
Article 8 The right to charge, the right to operate advertising and the right to operate service facilities of the same toll road project may be transferred together or separately.
Article 9 Transfer the rights and interests of toll roads, shall not have the following acts:
(1) dividing a legally approved toll road project into several sections to transfer the toll right;
(2) Bundling and transferring the rights and interests of toll roads with those of non-toll roads;
(3) The transferee has not completely inherited the responsibilities and obligations originally undertaken by the transferor to the government and the public;
(four) the rights and interests of the government’s repayment of loans are transferred to the enterprise legal person free of charge.
Article 10 The transfer of the rights and interests of toll roads that have not been paid off by international financial organizations or foreign governments shall be approved by the original examination and approval department for the use of foreign loans before applying for transfer examination and approval in accordance with relevant state regulations.
The transferee of the transfer of the rights and interests of toll roads shall, in accordance with the relevant provisions of the state on investment management, report the application report of investment projects to the competent investment department with corresponding management authority for approval before applying for transfer approval. When applying for approval, the contract for the transfer of rights and interests of toll roads shall be submitted at the same time.
Article 11 The transfer of highway toll right shall obtain the consent of the following interested parties:
(1) Creditors of the highway;
(2) The pledgee of the highway toll right;
(3) All investors of the highway;
(4) The person whose consent is required for transfer and retransfer as stipulated in the highway investment and construction contract and the contract for transferring the highway toll right.
Article 12 The transferee of highway toll right shall meet the following conditions:
(a) the financial situation is good, and the owner’s equity of the enterprise is not less than 35% of the actual cost of the transferee project;
(2) It has a good business reputation, and there are no major violations of laws and regulations in economic activities;
(3) Other conditions stipulated by laws and regulations.
When transferring the right to operate highway advertising and service facilities separately, the conditions that the transferee should meet shall be implemented in accordance with local laws and regulations of the provincial people’s government.
Article 13 To transfer the government’s right to charge for road repayment, you can apply to the provincial people’s government to extend the charging period, but the extension period shall not exceed 5 years, and the total accumulated charging period shall not exceed 20 years. The sum of the cumulative charging periods of the central and western provinces, autonomous regions and municipalities directly under the Central Government determined by the state for repayment of highways shall not exceed 25 years at the longest.
The transfer of the right to charge for operating roads shall not extend the charging period, and the total accumulated charging period shall not exceed 25 years. The sum of the cumulative toll collection periods of operating highways in central and western provinces, autonomous regions and municipalities directly under the Central Government determined by the state shall not exceed 30 years at the longest.
It is not allowed to raise the vehicle toll standard on the grounds of transferring the highway toll right.
Chapter III Procedures for Transfer of Rights and Interests of Toll Roads
Article 14 To transfer the right of highway toll collection, before going through the examination and approval of transfer, the transferor may first apply to the examination and approval authority for the transfer project.
To apply for the transfer of the project, the following materials need to be submitted:
(a) the general situation of the highway to which the toll right has been transferred, including the construction period of the highway, the technical level and scale, the source and amount of investment, the toll collection time, and the revenue and expenditure of the toll road in the last three years;
(2) The reason and purpose of the transfer;
(three) the investment of the income from the transfer of government loan repayment roads;
(four) the written opinions of the interested parties agreed to the transfer as stipulated in Article 11 of these Measures;
(five) the transfer of the rights and interests of toll roads that have not been paid off by international financial organizations or foreign governments, and the written consent of the original examination and approval department for the use of foreign loans;
(six) the provincial people’s government approved the collection of vehicle tolls;
(7) The accounting report of the previous year audited by an auditing organ or a qualified accounting firm;
(eight) the transfer of highway toll right for the first time, provide the final financial statements and completion audit report of the toll road;
(nine) the transfer of operating highway toll rights, provide the articles of association;
(ten) to transfer the right of highway toll collection again, and provide the original transfer agreement;
(eleven) other documents that the examination and approval authority deems necessary.
Article 15 After receiving the application for transfer of the project, the examination and approval authority shall conduct a preliminary examination on whether the charging right applied for transfer meets the transfer conditions, and issue a review opinion on the transfer of the project.
The review opinions of the transfer project can be used as the basis for the transferor to prove that the proposed highway toll right meets the transfer conditions when making preparatory work for the transfer.
The review opinions on the transfer project are valid for one year from the date of issuance.
Article 16 To transfer the toll right of the following toll roads, the transferor shall entrust a qualified asset appraisal institution to evaluate the value of the toll right:
(a) the government owing on the loan highway;
(2) Operating highways with financial capital investment;
(three) the use of state-owned capital investment roads.
The appraisal report issued by the asset appraisal institution is the basis for determining the lowest transaction price for the transfer of the toll right of the toll road specified in the preceding paragraph.
The transferor’s asset appraisal report issued by the asset appraisal institution shall be submitted to the relevant departments for approval or filing in accordance with the relevant state provisions on asset appraisal.
Article 17 Where the transferor evaluates the value of the charging right in accordance with the provisions of Article 16, it shall entrust an asset appraisal institution that meets the following conditions:
(1) Having the asset appraisal qualification as stipulated by laws and administrative regulations;
(2) The personnel of the appraisal institution have professional knowledge and experience suitable for the evaluation of the value of highway toll right;
(3) The appraisal institutions and personnel have not committed any violation in the past three years, and have no bad record of violation.
Article 18 When transferring the rights and interests of toll roads, the valuation method should adopt the present value method of income, and the income period involved should be agreed by the transferor and the asset appraisal institution within the approved charging period.
Article 19 The transfer of the rights and interests of the government’s repayment of highway tolls and the rights and interests of operating highway tolls with financial capital investment shall be conducted by public bidding, and the transferee shall be selected fairly, justly and openly.
Article 20 The bidding activities for the transfer of the rights and interests of toll roads shall strictly implement the relevant provisions such as the Bidding Law of People’s Republic of China (PRC).
The transportation department of the provincial people’s government is responsible for the supervision and management of the whole process of bidding for the transfer of rights and interests of toll roads. The development and reform department and the competent financial department of the provincial people’s government shall be responsible for the supervision of bidding activities according to their respective responsibilities.
Article 21 Where the rights and interests of toll roads are transferred by tender, the transferor shall issue a tender announcement through newspapers, information networks or other media designated by the state. The announcement period shall not be less than 20 days.
Article 22 Where the rights and interests of government repayment roads are transferred and the rights and interests of operating roads with financial capital investment and state-owned capital investment are used for bidding, a reserve price bidding shall be implemented. Among them, the reserve price of the transfer of the right to charge shall not be lower than the evaluation price of the value of the right to charge approved or confirmed by the relevant departments.
Article 23 The transferor shall prepare the tender documents according to law. The tender documents shall include the following contents:
(a) the basic situation of the project subject to tender, including the project construction period, opening time, technical level and scale, investment sources and investment amount, income and expenditure in recent years, etc.;
(two) the transferee shall have the conditions and relevant qualifications and credit requirements. When transferring the rights and interests of government repayment roads and operating roads with financial capital investment, the transferee shall be required to promise that the established highway management enterprises will not provide external guarantees, including providing any form of guarantee for the transferee’s debts and will not bear the transferee’s debts;
(3) The rights and obligations of the transferee;
(4) The payment form, term (no longer than 6 months after the contract comes into effect) and guarantee requirements of the transfer money;
(5) Requirements for highway maintenance, greening and soil and water conservation during the operation period;
(six) the procedures for dissolution and liquidation after the end of the operation, and the standards for highways and highway ancillary facilities and service facilities when the rights and interests of highways are transferred;
(seven) the conditions for the bankruptcy, termination and dissolution of the transfer agreement of the transferee or the highway operation enterprise established by it;
(eight) the conditions for the government to terminate the agreement on the transfer of rights and interests of toll roads;
(nine) the requirements for the preparation of bidding documents and their delivery methods, places and deadlines;
(ten) the place of bid opening and the time arrangement of bid opening and bid evaluation;
(eleven) evaluation criteria, evaluation methods, evaluation procedures, and factors to determine the waste target;
(twelve) the main terms of the signed transfer contract;
(thirteen) the employee placement plan;
(14) A scheme for handling creditor’s rights and debts;
(fifteen) other issues that need to be explained.
Article 24 After the transferee is determined, the transferor and the transferee shall conclude a contract for the transfer of rights and interests of toll roads according to law.
The transfer contract shall include the following clauses:
(1) Names and domiciles of the transferor and transferee;
(2) The name and business content of the project;
(3) Business scope and transfer period;
(four) the transfer price and the time (not more than 6 months after the contract comes into effect) and method of payment;
(5) Matters related to asset delivery;
(6) The employee placement plan involved by the transferor;
(seven) the rights and obligations of the transferor;
(eight) the rights and obligations of the transferee;
(nine) highway maintenance and service quality assurance measures (including the establishment of maintenance deposit, etc.);
(10) Responsibility for business risks;
(eleven) highway maintenance responsibility;
(twelve) the way and time of highway handover;
(thirteen) the way to solve the dispute;
(fourteen) the parties’ liability for breach of contract;
(15) Conditions for the alteration and dissolution of the contract;
(sixteen) the ownership and transfer of highway toll right after the expiration of the transfer contract;
(17) Other terms deemed necessary by both parties.
Article 25 The contract for the transfer of highway toll rights and interests shall take effect from the date of approval of the transfer of highway toll rights.
Article 26 The transfer of the toll right of national highways (including national trunk lines and national expressway network projects, the same below) shall be approved by the competent department of transportation of the State Council. The transfer of other highway toll rights other than the national highway shall be approved by the provincial transportation department and reported to the provincial people’s government for approval.
The merger and transfer of highway advertising management right, service facility management right and highway toll right shall be approved by the examination and approval authority with the authority to examine and approve highway toll right.
The examination and approval of the separate transfer of the right to operate highway advertising and service facilities shall be carried out in accordance with local regulations and the rules of the provincial people’s government.
Article 27 To apply for the transfer of highway toll right, the transferor shall submit the application documents to the examination and approval authority, which shall include:
(1) Where an application for project establishment has been filed, the examination opinions on project establishment transfer shall be submitted; If an application for project establishment has not been submitted, relevant materials specified in Article 14 shall be submitted;
(two) the relevant materials and asset appraisal report approval or filing documents for the valuation of the charging right in accordance with the provisions in the early stage of the transfer;
(three) the bidding situation in the early stage of the transfer and the determination of the transferee;
(4) A copy of the transferee’s accounting report for the previous year and the transferee’s legal person business license issued by the auditing department or accounting firm;
(five) the relevant procedures and written consent in accordance with the provisions of article tenth;
(six) the specific investment of the transfer income;
(seven) the management of highway toll rights and interests;
(eight) the transfer contract of highway toll rights signed by the transferor and the transferee;
(nine) other documents that the examination and approval authority deems necessary.
Article 28 The examination and approval authority shall, in accordance with the requirements of the Administrative Licensing Law and relevant regulations, handle the examination and approval of the transfer of highway toll right.
When examining the application for the transfer of rights and interests of toll roads, the examination and approval authorities shall comprehensively consider the factors that safeguard national interests and social public interests.
If it agrees to transfer the right of highway toll collection, the examination and approval authority shall issue an approval document for the transfer of highway toll collection right.
Article 29 If the people’s government at the provincial level approves the transfer of highway toll right, the transferor shall, within 30 days from the date of approval, report the examination opinions of the provincial transportation authorities, the approval documents of the provincial people’s government and the transfer contract to the the State Council transportation authorities for the record.
Article 30 The State Council transportation authorities shall, within 30 days from the date of approval of the transfer of highway toll right, send a copy of the approval document to the competent department of development and reform of the State Council and the competent department of finance.
Article 31 The transferor shall be responsible for the authenticity and legality of the application materials submitted.
Chapter IV Management of the Use of Transfer Income
Article 32 The income from the transfer of the government’s rights and interests in repaying loans on highways shall be used for highway construction except for repayment of highway construction loans and paid fund-raising. No unit may use the income from the transfer of the rights and interests of the government’s repayment of loans for projects other than highway construction.
The part of the income obtained from the transfer of the rights and interests of operating highways with financial capital investment corresponding to the share of financial capital investment is mainly used for highway construction except for repayment of highway construction loans.
Article 33 The income from the transfer of all the rights and interests of operating roads invested by social funds shall be determined by the investors themselves.
The relevant state departments should encourage investors to continue to invest this part of their income in highway construction projects.
Article 34 The income obtained from the transfer of the rights and interests of government repayment roads and the rights and interests of operating roads with financial capital investment shall be included in the budget management. The transferor shall, within 3 working days after obtaining the above-mentioned transfer income, turn it over to the finance according to the prescribed budget levels. The implementation of non tax revenue collection management system reform, in accordance with the relevant provisions of the reform. The competent financial department shall incorporate the transfer income into the fiscal revenue and expenditure budget of the current year, and the funds shall be allocated in accordance with the relevant provisions of the fiscal treasury management system.
Chapter V Follow-up Management and Recovery of Rights and Interests Transfer of Toll Roads
Article 35 The transferee has the rights and interests of highway toll collection within the transfer period according to law, and the ownership of the highway and highway ancillary facilities transferred with the rights and interests of toll roads is still owned by the state.
Article 36 Upon the expiration of the transfer period stipulated in the toll road rights transfer contract, the roads, highway ancillary facilities and service facilities that transfer the toll road rights should be in good technical condition, recovered by the state free of charge, and managed by the transportation authorities.
If the transfer period of the rights and interests of the toll road is not full, and the state recovers the transferred rights and interests of the toll road in advance due to social and public interests, the competent transportation department that receives the rights and interests of the toll road shall compensate the transferee according to law. The maximum compensation is calculated and determined according to the proportion of the original transfer price and the period of early recovery to the original approved transfer period.
Article 37 After the transfer of the rights and interests of the toll road, the responsibilities of the road administration shall still be exercised by the agencies and personnel of the transportation departments of the local people’s governments at or above the county level or the highway management agencies.
Article 38 After the transferee obtains the rights and interests of the toll road in accordance with the law, the legally established highway management enterprise shall, in accordance with the standards and specifications stipulated by the state, do a good job in highway maintenance management, greening and soil and water conservation within the scope of highway land use, and carry out daily inspection, testing and maintenance of the toll road and facilities along it to ensure that the toll road is in a good technical state.
Highway management enterprises shall, according to the requirements of the competent department of transportation, provide regular inspection reports on highway technical conditions.
Article 39 Highway management enterprises shall accept the industry management of the transportation departments of the State Council and the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government, implement network charging as required, and abide by other unified requirements of the road network, and provide statistical data and relevant business conditions in a timely manner.
Article 40 After the transfer of the rights and interests of toll roads, the competent transportation departments of provinces, autonomous regions and municipalities directly under the Central Government shall supervise and inspect the toll management and maintenance of the toll roads.
Six months before the expiration of the transfer period stipulated in the contract for the transfer of the rights and interests of toll roads, the competent transportation departments of the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government shall identify and accept the toll roads that have transferred their rights and interests. After identification and acceptance, if the highway meets the technical grade and standard approved at the time of transfer of the rights and interests of toll roads, the highway management enterprise may, in accordance with the relevant provisions of the state, go through the formalities of highway transfer to the competent transportation department at the expiration of the transfer period; Do not meet the technical level and standards approved when transferring the rights and interests of toll roads, highway management enterprises shall carry out maintenance within the time limit determined by the competent department of transportation, and only after meeting the requirements can they go through the formalities of highway handover in accordance with the regulations. If the transfer period fails to meet the requirements, the competent transportation department shall take back the right of highway toll collection, go through the formalities of highway handover, and designate other units to carry out maintenance, and the maintenance costs shall be borne by the original highway operation enterprises.
Chapter VI Legal Liability
Article 41 In violation of the provisions of these measures, unauthorized approval of the transfer of rights and interests of toll roads shall be investigated and dealt with in accordance with the provisions of Article 47 of the Toll Regulations.
Article 42 In violation of the provisions of article ninth of these measures, the competent department of transportation of the State Council or the provincial competent department of transportation shall be ordered to make corrections according to their functions and powers; The responsible person in charge and other directly responsible personnel shall be given administrative sanctions according to law; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 43 In violation of the provisions of these measures, the transferor shall select the transferee through bidding without bidding, or the procedures and contents of bidding do not conform to the provisions of these measures, and shall be investigated and dealt with in accordance with the relevant provisions of the Bidding Law of People’s Republic of China (PRC).
Article 44 In violation of the provisions of these measures, social intermediary institutions resort to deceit when auditing or evaluating the toll road rights transfer project, or the accounting report and evaluation report issued by them are seriously untrue, and according to the seriousness of the case, the relevant institutions shall punish them in accordance with the provisions of relevant national laws and regulations.
Article 45 In violation of the provisions of these measures, one of the following acts shall be investigated and dealt with in accordance with the provisions of Article 52 of the Regulations on Charges:
(1) The transferor fails to pay the full amount of the income corresponding to the share of financial capital investment in the income from the transfer of the rights and interests of the government’s loan repayment highway and the income from the transfer of the rights and interests of the operating highway with financial capital investment;
(II) The transportation department and the financial department will not use the income corresponding to the share of financial capital investment in the income from the transfer of the rights and interests of the government’s loan repayment highway and the rights and interests of the operating highway with financial capital investment for repayment of loans or paid fund-raising and for highway construction, and will use the transfer income for other purposes.
Article 46 In violation of the provisions of these measures, the transferee fails to fulfill the obligations of soil and water conservation within the scope of highway maintenance, greening and highway land use, and shall be investigated and dealt with in accordance with the provisions of Articles 54 and 55 of the Charge Regulations.
Article 47 In violation of the provisions of these measures, the examination and approval authority and its staff in any of the following circumstances shall be investigated and dealt with in accordance with the provisions of Articles 72 and 74 of the People’s Republic of China (PRC) Administrative Licensing Law:
(a) the examination and approval opinions are not issued within the time limit prescribed in these Measures;
(two) the application for the transfer of rights and interests of toll roads that do not meet the statutory conditions and procedures is approved, or the application is approved beyond the statutory authority;
(three) in the process of acceptance and examination, the transferor was not informed of all the contents that must be supplemented at one time.
Article 48 In the process of examining and approving the transfer of the rights and interests of toll roads, the staff of the examination and approval authorities ask for or accept other people’s property or seek other benefits, and shall be investigated and dealt with in accordance with the provisions of Article 73 of the Administrative Licensing Law of People’s Republic of China (PRC).
Chapter VII Supplementary Provisions
Article 49 The time limit stipulated in these Measures shall be calculated in working days, excluding legal holidays.
Article 50 These Measures shall come into force as of October 1, 2008. On October 9, 1996, the Ministry of Communications issued the Measures for the Administration of Paid Transfer of Highway Management Rights by Decree No.9 of the Ministry of Communications, which shall be abolished at the same time.