正文：Decree of the State Council [2001] No.301 The Decision of the State Council Regarding the Revision of Rules for the Implementation of the Law of the People''s Republic of China on Foreign-capital Enterprises is now promulgated, and shall enter
正文：Decree of the State Council [2001] No.301
The Decision of the State Council Regarding the Revision of Rules for the Implementation of the Law of the People''s Republic of China on Foreign-capital Enterprises is now promulgated, and shall enter into force as of the date of promulgation.
Premier of the State Council: Zhu Rongji
April 12, 2001
Decision of the State Council Regarding the Revision of Rules for the Implementation of the Law of the People''s Republic of China on Foreign-capital Enterprises
In order to meet the needs of our country''s new situation opening to the outside world and further improve the investment environment of foreign businessman, in accordance with the Decision of the Standing Committee of the National People''s Congress on Revising the Law of the People''s Republic of China on Foreign-capital Enterprises, the Rules for the Implementation of the Law of the People''s Republic of China on Foreign-capital Enterprises is revised as follows:
I. The Article 3 is revised as follows: "A foreign-capital enterprise to be established must benefit the development of China''s national economy and be capable of gaining remarkable economic results. The state encourages foreign-capital enterprises to use advanced technology and equipment, engage in the development of new products, realize the upgrading of products and the replacement of old products with new ones, economize energy and raw materials, and it is also encouraged to establish foreign-capital enterprises which are export oriented."
II. The Article s 4 and 5 are amalgamated and revised as follows: "Trades in which the establishment of foreign-capital enterprises is forbidden or restricted shall be determined and established according to the provisions regarding state guidance for foreign investment orientation and guiding catalogue of industries for foreign investment."
III. "The selling proportion of the products in China and overseas markets" in theArticle 10 is deleted.
IV. "And the selling proportion in China and overseas markets" in theArticle 15 is deleted.
V. TheArticle 22 is revised as follows: "In its operating period, no foreign-capital enterprise may reduce their registered capital. If however, it is really needed to make such reduction due to some changes such as those in the total amount of investment or production scale, it may be reduced upon the approval by the examining and approving authority."
VI. The paragraph 1 ofArticle 27 is revised as follows: "Machinery and equipment to be contributed by the foreign investor as investment must be those needed for the production of the foreign-capital enterprise."
VII. The paragraph 1 ofArticle 28 is revised as follows: "The industry property rights and proprietary technology to be contributed as investment by the foreign investor must be owned by the foreign investor."
VIII. TheArticle 43 is deleted.
IX. TheArticle 45 is revised as follows: "Any foreign-capital enterprise may sell its products in Chinese market. The state encourages all foreign-capital enterprises to export their products."
X. The paragraph 2 ofArticle 46 is revised as follows: "A foreign-capital enterprise may sell their products in China either by themselves or by entrusting any commercial organization with the sale of their products."
XI. The paragraphs 2 and 3 ofArticle 48 are deleted.
XII. "The tariff and industrial and commercial consolidated taxes on the following goods and materials imported by a foreign-capital enterprise shall be exempted." in theArticle 52 is revised as follows: "Taxes on the following goods and materials imported by a foreign-capital enterprise shall be exempted or reduced in accordance with Chinese tax law."
XIII. TheArticle 53 is revised as follows: "The export commodities produced by the foreign-capital enterprises may enjoy tax reduction, exemption or refund according to the relevant provisions of Chinese tax law, except those whose export is restricted by China."
XIV. TheArticle 56 is deleted.
XV. TheArticle 84 is revised as follows: "All contracts between a foreign-capital enterprise and other company, enterprise or economic organization and individual shall be governed by the Contract Law of the People''s Republic of China."
XVI. TheArticle 87 is deleted.
In addition, the states of someArticle s and paragraphs are revised and the order of the clauses is adjusted correspondingly.
The Decision shall enter into force as of the date of promulgation and the Rules for the Implementation of the Law of the People''s Republic of China on Foreign-capital Enterprises is made corresponding modification according to this decision to announce again.
Attachment:
Rules for the Implementation of the Law of the People''s Republic of China on Foreign-capital Enterprises
(Approved on October 28, 1990 by the State Council ;Issued on December 12, 1990 by the Ministry of Foreign Economic Relations and Trade ;Revised according to the Decision of the State Council Regarding the Revision of Rules for the Implementation of the Law of the People''s Republic of China on Foreign-capital enterprises on April 12, 2001 )
Chapter I General Provisions
Article 1 These Rules are formulated according to the Law of the People''s Republic of China on Foreign-capital enterprises.
Article 2 Foreign-capital enterprises shall be subject to and under the protection of Chinese Law.
Foreign-capital enterprises engaging in business in the People''s Republic of China must abide by Chinese laws and regulations and must not harm the social and public interests of China.
Article 3 A foreign-capital enterprise to be established must benefit the development of China''s national economy and be capable of gaining remarkable economic results. The state encourages foreign-capital enterprises to use advanced technology and equipment, engage in the development of new products, realize the upgrading of products and the replacement of old products with new ones, economize energy and raw materials, and it is also encouraged to establish foreign-capital enterprises which are export oriented.
Article 4 Trades in which the establishment of foreign-capital enterprises is forbidden or restricted shall be determined and established according to the provisions regarding state guidance for foreign investment orientation and guiding catalogue of industries for foreign investment.
Article 5 No application for the establishment of a foreign-capital enterprise shall be approved if the proposed enterprise is under any of the following circumstances:
(1) injuring China''s sovereignty or social and public interests;
(2) endangering China''s national security;
(3) in violation of Chinese laws and regulations;
(4) not in keeping with the requirements of China''s national economic development;
(5) may result in environmental pollution.
Article 6 A foreign-capital enterprise shall, within the approved scope of business, have its autonomy in operation and management, and be free from any interference.
Chapter II Establishment Procedures
Article 7 The application for the establishment of a foreign-capital enterprise shall be subject to the examination and approval by the Ministry of Foreign Trade and Economic Cooperation of the People''s Republic of China (hereinafter referred to as the MFTEC), which shall issue a certificate of approval to those approved.
If any applications for the establishment of a foreign-capital enterprise is under any one of the following circumstances, the State Council shall authorize the people''s government of the relevant province, autonomous region, municipality directly under the Central Government, city directly under State planning or special economic zone to conduct the examination and approval and issue a certificate of approval to those approved:
(1) the total amount of investment is within the limits of power for the examination and approval of investment stipulated by the State Council;
(2) the enterprise shall not need any raw materials to be allocated by the state, and not influence unfavorably the national comprehensive balance of energy resources, communications and transportation and export quotas for foreign trade.
The people''s government of the relevant province, autonomous region, municipality directly under the Central Government, municipality separately listed on the State plan or special economic zone that has, within the authorization by the State Council, approved any application for the establishment of a foreign-capital enterprise shall, within 15 days since the approval has been issued, report to the MFTEC for record (hereinafter the Ministry of Foreign Trade and Economic Cooperation and the people''s government of the relevant province, autonomous region, municipality directly under the Central Government, municipality separately listed on the State plan and special economic zone shall be, in general, referred to as the examining and approving authority).
Article 8 With regard to any foreign-capital enterprise that applies for establishment, if its products shall involve export license, export quota, import license or the import of which is restricted by the state, a prior consent shall be obtained from the competent authority of foreign economic relations and trade in accordance with the relevant administrative power.
Article 9 Before submitting any application for the establishment of a foreign-capital enterprise, the foreign investor shall submit to the local people''s government at or above the county level at the place where the foreign-capital enterprise is to be established a report regarding matters such as the purpose of the enterprise, its scope and scale of business, products, technology and equipment, land area to be needed and related requirements, conditions and quantities of water, electricity, coal, coal gas or other energy resources required, and requirements to public facilities.
The relevant local people''s government at or above the county level shall, within 30 days from the date of receiving the report submitted by the foreign investor, give him a reply in writing.
Article 10 Any foreign investor who wishes to establish a foreign-capital enterprise shall submit an application to the examining and approving authority through the relevant local people''s government at or above the county level at the place where the foreign-capital enterprise is to be established, together with the following documents:
(1) a written application for the establishment of the foreign-capital enterprise;
(2) a feasibility study report;
(3) theArticle s of association of the foreign-capital enterprise;
(4) a list of legal representative (candidates for the future board of directors) of the foreign-capital enterprise;
(5) the legal documentation and credit certificate of the foreign investor;
(6) the written reply given by the relevant local people''s government at or above the county level at the place where the foreign-capital enterprise is to be established;
(7) an inventory of goods and materials that shall be imported;
(8) other documents as may be required.
Documents of (1) and (3) of the preceding paragraph must be prepared in Chinese, while those of (2), (4) and (5) of the same paragraph may be written in a foreign language but the corresponding Chinese translations should be attached.
If two or more foreign investors jointly apply for the establishment of a foreign-capital enterprise, they shall submit a copy of the contract between them two to the examining and approving authority for record.
Article 11 The examining and approving authority shall, within 90 days from the date of receiving all the documents required for the application for the establishment of a foreign-capital enterprise, make a decision on whether to approve or disapprove the application. When finding that the documents mentioned above are not complete or that some of them are inappropriate, the examining and approving authority may demand supplementation and corrections to be made within a prescribed time limit.
Article 12 The foreign investor shall, within 30 days from the date of receiving the approval certificate issued by the examining and approving authority, apply for registration with and obtain business license from the administrative department for industry and commerce. The date of issue of the business license of the foreign-capital enterprise shall be the date of its establishment.
If the foreign investor fails to apply to the administrative department for industry and commerce for registration within 30 days from the date of receiving the approval certificate for the establishment of the foreign-capital enterprise, the approval certificate shall become invalid automatically.
The foreign-capital enterprise shall, within 30 days from the date of establishment, conduct taxation registration with the tax authorities.
Article 13 Any foreign investor may appoint a Chinese service agency for foreign-capital enterprises or any other economic organization to handle the affairs stipulated inArticle 8, in the first paragraph ofArticle 9 andArticle 10 of these Rules, provided that a contract of entrustment shall be concluded between them.
Article 14 A written application for the establishment of a foreign-capital enterprise shall contain:
(1) the name, domicile, place of registration of the foreign investor, and the name, nationality and position of its legal representative;
(2) the name and domicile of the foreign-capital enterprise that is to be established;
(3) the scope of business, products and production scale;
(4) the total amount of investment, registered capital, source of funds, form of investment and duration of the foreign-capital enterprise;
(5) the form of organization, internal departments and legal representative of the foreign-capital enterprise;
(6) the primary production equipment to be used and the degrees of depreciation thereof, production technology and the level thereof, as well as the sources of all of them;
(7) sales orientation and territories, as well as sales channels and methods, of the products;
(8) arrangements for the revenues and expenditures of foreign exchange;
(9) relevant establishments of the internal departments and sizes of the personnel thereof, arrangements for matters such as the recruitment, training, salaries and wages, welfare, insurance and labor protection of and for workers and staff members;
(10) the degrees of possible environmental pollution and measures for solving this problem;
(11) the site of the enterprise and the area thereof;
(12) funds, energy, raw materials to be needed in capital construction and in production and operations, and the solutions thereof;
(13) schedule of the project;
(14) duration of the foreign-capital enterprise that is to be established.
Article 15 TheArticle s of association of a foreign-capital enterprise shall contain:
(1) the name and domicile;
(2) the aim and scope of business;
(3) the total amount of investment, registered capital, and the time limit of capital subscription;
(4) the form of organization;
(5) the establishments of the internal departments and their functions and powers and rules of procedures, duties and power limits of the legal representative and of other persons such as the general manager, chief engineer and chief accountant;
(6) the principles and system of financial affairs, accounting and auditing;
(7) labor management;
(8) the operating period, termination and liquidation of the enterprise;
(9) procedures for amending theArticle s of association.
Article 16 TheArticle s of association of a foreign-capital enterprise shall become effective upon the approval by the examining and approving authority. The same procedure shall apply whenever any amendment thereto is made.
Article 17 Any division or merger of foreign-capital enterprises or any of their significant changes in capital resulting from any other causes shall be subject to the approval by the examining and approving authority, and for which changes, the relevant enterprises shall engage a Chinese certified public accountant to make verification and render a capital verification report; upon approval by the examining and approving authority, the enterprises shall go through the procedures for the change of registration with the administrative department for industry and commerce.
Chapter III Form of Organization and Registered Capital
Article 18 The form of organization of a foreign-capital enterprise shall be a limited liability company. Other liability forms may be adopted by approval.
In case of a limited liability company, the foreign investor shall be liable for the enterprise to the extent of what he has contributed for the capital.
In case of any other liability form, the foreign investor shall be liable for the enterprise according to Chinese laws and regulations.
Article 19 The total amount of investment of a foreign-capital enterprise refers to the total amount of funds required for opening the foreign-capital enterprise, i.e. the sum total of the funds invested in capital construction in accordance with the production scale and the circulating funds for production.
Article 20 The registered capital of a foreign-capital enterprise refers to the total amount of capital registered with the administrative department for industry and commerce for the purpose of establishing the foreign-capital enterprise, i.e. the total amount of investment that the foreign investor undertakes to contribute.
The amount of registered capital of a foreign-capital enterprise must be in keeping with the enterprise''s operation scale, and the ratio between the registered capital and the total amount of investment shall conform to the relevant Chinese provisions.
Article 21 In its operating period, no foreign-capital enterprise may reduce their registered capital. If however, it is really needed to make such reduction due to some changes such as those in the total amount of investment or production scale, it may be reduced upon the approval by the examining and approving authority.
Article 22 Any increase or assignment of the registered capital of a foreign-capital enterprise shall be subject to the approval by the examining and approving authority, and then the enterprise shall go through the procedures for change of registration with the administrative department for industry and commerce.
Article 23 Where any foreign-capital enterprise intends to mortgage or assign its assets or right and interests to a third party, the case shall be submitted to the examining and approving authority for approval, and then to the administrative department for industry and commerce for record.
Article 24 The legal representative of a foreign-capital enterprise is the person-in-charge who, in accordance with the enterprise''sArticle s of association, executes his/her functions and powers on behalf of the enterprise.
If the legal representative is unable to execute his/her functions and powers, he/she shall entrust in writing an agent with the execution of his/her functions and powers.
Chapter IV Form of Investments and Time Limit for Contributing Investments
Article 25 The foreign investors may make their investments with convertible foreign currencies, or with machinery and equipment, with industry property rights and proprietary technology by appraising the values of them.
Upon the approval by the examining and approving authority, the foreign investors may also make their investments with their profits in Renminbi from any other enterprises established in China with their investments.
Article 26 Machinery and equipment to be contributed by the foreign investor as investment must be those needed for the production of the foreign-capital enterprise.
The appraised value of the machinery and equipment may not be higher than the normal price of machinery and equipment of the same kind in international market at that time.
An inventory must be made for all the machinery and equipment to be contributed as investment, it shall include the name, type, quantity and appraised value of the machinery and equipment, and shall be submitted to the examining and approving authority together with the application for the establishment of the foreign-capital enterprise as an attachment to the application.
Article 27 The industry property rights and proprietary technology to be contributed as investment by the foreign investor must be owned by the foreign investor.
Such industrial property rights and proprietary technology must be appraised in accordance with the relevant international rules, and the value amount of them may not exceed 20% of the registered capital of the foreign-capital enterprise.
Detailed information must be prepared for the industrial property rights and proprietary technology appraised to be contributed as investment, including the copy of certificate of the title, validity of the title, and their technical performance, practical value, and the basis and standard on and according to which the value has been appraised, and it shall be submitted to the examining and approving authority together with the application for the establishment of the foreign-capital enterprise as an attachment to the application.
Article 28 Upon arrival at any port of China of the machinery and equipment contributed as investment, the foreign-capital enterprise shall apply for inspection to China''s commodity inspection authority, which shall render an inspection report.
Where the machinery and equipment contributed as investment are inconsistent with those listed in the inventory submitted by the foreign investor to the examining and approving authority in type, quality or quantity, the examining and approving authority may demand corrections by the foreign investor within a prescribed time limit.
Article 29 After the industrial property rights and proprietary technology appraised have been put to use, the examining and approving authority shall have the power to inspect them, and demand corrections by the foreign investor, within a prescribed time limit, if they are inconsistence with the industrial property rights and proprietary technology prescribed in the information submitted by the foreign investor.
Article 30 The time limit for the foreign investor to make his investment contributions must be clearly indicated in both the application for the establishment of the foreign-capital enterprise and the enterprise''sArticle s of association. The foreign investor may contribute the investment in installments, provided that the last installment shall be made within three years from the date of issue of the business license. The first installment may not be less than 15% of the total amount to be contributed by the foreign investor, and shall be made within 90 days from the date of issue of the business license of the foreign-capital enterprise.
If the foreign investor fails to make the first installment within the time limit prescribed in the preceding paragraph, the approval certificate for the foreign-capital enterprise shall become invalid automatically, and the foreign-capital enterprise shall go through the procedures for cancellation of registration and hand in the business license for cancellation with the administrative department for industry and commerce or, if the foreign-capital enterprise fails to go through the procedures for cancellation of registration and fails to hand in the business license for cancellation, the administrative department for industry and commerce shall revoke the business license and make an announcement to the public.
Article 31 The installments other than the first one shall be made by the foreign investor within each prescribed time limit.
If an installment has not been made 30 days after the time limit, the second paragraph of theArticle 30 shall apply.
If the foreign investor has any reasonable ground for the extension of time for making an installment, he should get the approval by the examining and approving authority and the extension of time shall be submitted to the administrative department for industry and commerce for record.
Article 32 For each installment made by the foreign investor, the foreign-capital enterprise shall engage a Chinese certified public accountant to make verification and render a capital verification report, which shall be submitted to the examining and approving authority and the administrative department for industry and commerce for record.
Chapter V Use of Land and the Land Use Fee
Article 33 The local people''s government at or above the county level at the place where the foreign-capital enterprise is to be established shall make arrangements for the land to be used by the foreign-capital enterprise after examination and verification in the light of the local conditions.
Article 34 The foreign-capital enterprise shall, within 30 days from the date of issue of its business license, go through the procedures for use of land with and obtain land certificate from the department of land administration of the people''s government at or above the county level at the place where the foreign-capital enterprise is to be established, by presenting the approval certificate and business license.
Article 35 The land certificate shall be a legal certificate by which the foreign-capital enterprise may use a certain piece of land. In its operating period, no foreign-capital enterprise may assign its right to use land without authorization.
Article 36 For obtaining land certificate, the foreign-capital enterprise must pay land use fee to the department of land administration at the place where the enterprise is to be established.
Article 37 For using developed land, the foreign-capital enterprise must pay land development fee.
The land development fee mentioned in the preceding paragraph includes the expenses for requisition of the land, and expenses for demolition and resettlement allowances, as well as expenses for the construction of infrastructure needed by the foreign-capital enterprise. The land development fee may be calculated and collected by the land development enterprise once for all or in yearly installments.
Article 38 Where a piece of land not yet developed is to be used, the foreign-capital enterprise may either develop the land by itself or entrust a relevant Chinese enterprise to develop the land. The people''s government at or above the county level at the place where the foreign-capital enterprise is to be established shall make overall arrangements for the construction of infrastructure.
Article 39 The standards for calculating and collecting the land use fee and land development fee paid by foreign-capital enterprises shall abide by the relevant provisions of China.
Article 40 The term for land use by the foreign-capital enterprise shall be the same as the approved operating period of this enterprise.
Article 41 In addition to the presentChapter , a foreign-capital enterprise may obtain the right to use land in accordance with other regulations in China.
Chapter VI Purchasing and Marketing
Article 42 Any foreign-capital enterprise may make decisions by itself on the purchase, for its own use, of machinery and equipment, raw materials, fuels, parts and components, auxiliary equipment, primary parts, means of transportation, office appliance (hereinafter referred to as goods and materials in general).
When purchasing goods and materials in China, any foreign-capital enterprise shall enjoy the same treatment as that enjoyed by Chinese enterprises under the same conditions.
Article 43 Any foreign-capital enterprise may sell its products in Chinese market. The state encourages all foreign-capital enterprises to export their products.
Article 44 Any foreign-capital enterprise may export their products either by themselves or by entrusting a Chinese foreign trade company or a company outside China with the sale of their products.
A foreign-capital enterprise may sell their products in China either by themselves or by entrusting any commercial organization with the sale of their products.
Article 45 Where any machinery and equipment contributed by a foreign investor as his investment is subject to import license according to the Chinese provisions, the relevant foreign-capital enterprise shall, by presenting the relevant approved inventory of equipment and goods and materials to be imported, apply for import license to the license issuing authority either directly or through an agency.
The foreign-capital enterprise shall prepare their annual import plans for goods and materials that are to be imported for their own use and necessary to their production within the approved scope of business, and apply for the import license to the license issuing authority every six months, if the import of goods and materials is subject to import license according to the Chinese provisions.
The foreign-capital enterprise shall prepare their annual export plans for products that are to be exported, and apply for the export license to the license issuing authority every six months, if the export of products is subject to export license according to the Chinese provisions.
Article 46 The price of goods and materials and any technical service imported by the foreign-capital enterprise shall not be higher than the normal price for goods and materials and technical services of the same kind in international market at that time. The price for the export products of a foreign-capital enterprise shall be determined by the enterprise itself in the light of the relevant prices in international market at that time, provided that they shall not be lower than reasonable export prices. If any enterprise evades taxes by importing products at a high price or exporting products at a low price, the legal responsibility of the relevant enterprise shall be investigated according to tax law by the tax authority.
Article 47 Any foreign-capital enterprise shall provide statistical data and submit statistical statements to the departments concerned in accordance with the provisions of the Statistics Law of the People''s Republic of China and the relevant provisions of China concerning the statistical system for the utilization of foreign capital.
Chapter VII Taxation
Article 48 Any foreign-capital enterprise shall pay taxes in accordance with Chinese laws and regulations.
Article 49 Workers and staff members of a foreign-capital enterprise shall pay individual income tax in accordance with Chinese laws and regulations.
Article 50 Taxes on the following goods and materials imported by a foreign-capital enterprise shall be exempted or reduced in accordance with Chinese tax law:
(1) machinery and equipment, parts and components, materials for construction, and materials needed for installing and fixing the machinery, which are contributed as investment by the foreign investor;
(2) machinery and equipment, parts and components, means of transportation for production, and production management equipment, which are imported, for their own use in production, by the foreign-capital enterprise with funds within its total amount of investment;
(3) raw materials, auxiliary materials, primary parts, parts and components and packing materials imported by the foreign-capital enterprise for producing export products.
Where any goods and materials imported as mentioned in the preceding paragraph are, upon approval, resold in the territory of China or used for producing products to be sold in China, the relevant foreign-capital enterprise shall, in accordance with Chinese tax law, pay the taxes that were exempted or reduced.
Article 51 The export commodities produced by the foreign-capital enterprises may enjoy tax reduction, exemption or refund according to the relevant provisions of Chinese tax law, except those whose export i
