股权收购与资产收购：主体客体、Liability risk、税收差异与政府审批

股权收购是指并购公司直接或间接购买目标公司部分或全部股权，Subscription for new shares issued，使目标公司成为收购者的转投资事业。资产收购则是指收购者依据自身需求购买目标公司部分或全部资产，Belongs to general asset buying and selling behavior。两者虽同属公司收购范畴，但在多个维度上存在显著差异。

one、主体和客体不同

股权收购的主体是收购公司和目标公司的股东，The object is the equity of the target company。资产收购的主体是收购公司和目标公司，The object is the asset of the target company。

two、负债风险差异

股权收购完成后，收购公司成为目标公司控股股东，仅在出资范围内承担责任，目标公司的原有债务仍由目标公司承担。但目标公司的原有债务对今后股东的收益有着巨大影响，Therefore, before the equity acquisition，The acquiring company must investigate clearly the debt situation of the target company。对于目标公司的或有债务，在收购时往往难以预料，Therefore, equity acquisitions involve certain liability risks。

在资产收购中，The creditor's rights and debt status of assets are generally relatively clear，除了一些法定责任如环境保护、Outside of employee placement，There is basically no problem of contingent liabilities。收购公司只要关注资产本身的债权债务情况，就基本可以控制收购风险。

three、tax differences

在股权收购中，The taxpayers are the acquiring company and target company shareholders，与目标公司无关。In addition to contract stamp duty，According to the provisions of the "Notice on Certain Income Tax Issues in Enterprise Equity Investment Business"，Target company shareholders may pay income tax on gains from equity transfers。Asset acquisition in progress，The taxpayers are the acquiring company and the target company itself。Depending on the target asset，Taxpayers need to pay different types of taxes，Mainly VAT、business tax、income tax、Deed tax and stamp duty, etc.。

Four、政府审批差异

股权收购的审批要求

股权收购因目标企业性质的不同，The degree of leniency and severity of government regulation varies greatly.。

• For those that do not involve state-owned equity、Equity acquisition of listed companies，The only examination and approval departments are the departments responsible for foreign trade and economic cooperation and their local authorized departments.，The main points for approval are whether the foreign investment complies with my country’s policy on the utilization of foreign investment.、Can I enjoy or continue to enjoy the relevant preferential treatment for foreign-invested enterprises?。
• For those involving state-owned equity，The approval department also includes the department responsible for state-owned equity management and its local authorized departments，The key point for approval is whether the equity transfer price is fair、Whether state-owned assets are lost。
• For those involving the equity of listed companies，The approval authorities also include the China Securities Regulatory Commission，The key point for approval is whether the listed company still meets the listing conditions.、Whether it harms the interests of other shareholders、Whether to fulfill information disclosure obligations, etc.。

资产收购的审批要求

For asset acquisition，因目标企业性质的不同，政府监管的宽严程度也有一定区别。

• For target enterprises that are foreign-invested enterprises，There are no clear laws and regulations in my country that stipulate that the transfer of assets of foreign-invested enterprises requires the approval of the approval authority.。但因为外商投资企业设立时，Project proposals and feasibility study reports need to be reviewed and approved，而项目建议书和可行性研究报告中对经营规模和范围都有明确说明。If the assets of a foreign-invested enterprise are transferred，其经营范围或内容有所改变是否需要审批？《关于外商投资企业境内投资的暂行规定》第13条明确规定，“Foreign-invested enterprises change their original business scale or content with their fixed asset investment.，Before investing, you should apply to the original approval authority and obtain the consent of the original approval authority."。Because the "Interim Provisions" only apply to the investment situation of foreign-invested enterprises，It cannot be directly applied to the transfer of assets of foreign-invested enterprises.，Therefore, it can be considered that based on the existing regulations，The transfer of assets of foreign-invested enterprises does not require approval。
• If the transferred assets are machinery and equipment that have enjoyed preferential tax exemptions and exemptions for imported equipment and are still under customs supervision，根据《对外商投资企业进出口货物监管和征免税办法》的规定，必须首先得到海关的许可并且补缴关税后才能转让。
• For target enterprises that are state-owned enterprises，Asset purchase prices should generally be audited and approved by the government。
• For major asset changes of listed companies，It should also be followed in accordance with the "Concerning Major Purchases of Listed Companies"、sell、Notice on Certain Issues in Replacement of Assets" shall be submitted to the China Securities Regulatory Commission for approval.。

It is worth noting that，my country still does not have a unified "Anti-Monopoly Law" to regulate corporate acquisitions.。Article 9 of the Interim Provisions on the Use of Foreign Capital for the Reorganization of State-owned Enterprises, which was implemented not long ago, stipulates in principle that the economic and trade department of the State Council has the right to “take measures that may lead to market monopoly.”、hindering fair competition，Organize hearings before review”。but，Because the "Interim Provisions on the Use of Foreign Capital to Reorganize State-owned Enterprises" only applies to the acquisition of state-owned enterprises by foreign capital.，Acquisitions of other companies，The government has no clear legal basis for antitrust review。

five、第三方权益影响差异

股权收购中，Those who have the greatest impact are other shareholders of the target company。According to the Company Law，对于股权转让必须有过半数的股东同意并且其他股东有优先受让权。also，According to the provisions of my country’s Joint Venture Law，“A joint venture party transfers all or part of its equity to a third party，Subject to the consent of the other parties to the joint venture.”，Therefore, equity acquisition may be subject to other shareholders of the target company.。

Asset acquisition in progress，The person with the greatest influence is the person who has some right to the asset，such as guarantor、mortgagee、Trademark owner、Patentee、Leaseholder。For the transfer of these properties，Must obtain the consent of the relevant rights holders or must perform obligations to the relevant rights holders。

also，In equity acquisitions and asset acquisitions，This may be because the acquisition counterparty (the target company’s shareholders or the creditors of the target company) believes that the transfer price is significantly lower than the fair price.，According to the right of rescission stipulated in the Contract Law，Claim that the transfer contract is invalid，causing the acquisition to fail。therefore，Creditor approval is very important for company acquisitions。

收购方式的选择依据

资产收购实际上是收购资产，Equity acquisition is the acquisition of equity。要资产收购还是股权收购，主要根据双方的需求来定。That is to say，看买方想买什么：Is it an asset or something other than an asset (such as a person、业务体系等）；It also depends on what the seller wants to sell.：Do you simply want to sell assets (such as streamlining some non-main business) or do you want to sell the entire company?。如需进一步了解相关内容，欢迎随时咨询52代办网。