The regulations for the implementation of the law on foreign investment clearly stipulate the working mechanism of foreign investment complaints

category:Finance
 The regulations for the implementation of the law on foreign investment clearly stipulate the working mechanism of foreign investment complaints


2. Send the comments by letter to: Legislative Second Bureau of the Ministry of justice, No. 6, Chaoyang Men South Street, Chaoyang District, Beijing (postcode: 100020), and please indicate the words Regulations for the implementation of the foreign investment law on the envelope.

3. Email the comments to: [email protected]

Ministry of Justice

November 1, 2019

Relevant contributions:

Regulations for the implementation of the law of the peoples Republic of China on foreign investment (Draft for comments)

Notes on the regulations for the implementation of the law of the peoples Republic of China on foreign investment (Draft for comments)

general provisions

Article 1 These Regulations are formulated to ensure the effective implementation of the law of the peoples Republic of China on foreign investment (hereinafter referred to as the law on foreign investment).

Article 2 the State shall improve relevant policies and measures, continue to increase opening up, optimize the environment for foreign investment, and encourage and actively promote foreign investors to invest in China according to law.

Article 3 foreign investors may invest in China alone or jointly with other investors, including Chinese natural persons, according to law.

Article 4 the term investing in new projects in China as mentioned in Item 3, paragraph 2, Article 2 of the foreign investment law means that foreign investors invest in the construction of specific projects in China, but do not set up enterprises with foreign investment, and do not acquire shares, equity, property shares or other similar rights and interests of enterprises in China.

Article 5 the registration of enterprises with foreign investment shall be handled by the market supervision and Administration Department of the State Council or the market supervision and Administration Department of the local peoples government authorized by it.

According to the need of further opening up, the State shall adjust the negative list of foreign investment access in due time. The provisions of the preceding paragraph shall apply to the procedures for adjusting the negative list of foreign investment access.

Article 8 The competent department of Commerce, the competent department of investment and other relevant departments under the State Council shall, in accordance with the division of their duties, closely cooperate and cooperate with each other to jointly promote, protect and manage foreign investment.

The local peoples governments at or above the county level shall strengthen the organizational leadership over the promotion, protection and management of foreign investment, support and urge the relevant departments to carry out the promotion, protection and management of foreign investment in accordance with laws, regulations and the division of responsibilities, and coordinate and solve major problems in the promotion, protection and management of foreign investment in a timely manner.

Chapter II investment promotion

Article 9 the government and its relevant departments shall formulate or implement policies and measures to support the development of enterprises in terms of governments capital arrangement, land supply, tax deduction, qualification license, project application, title assessment, human resources, etc., treat all kinds of enterprises including foreign-funded enterprises equally according to law, and shall not formulate or implement discriminatory policies and measures.

Policies and measures to support the development of enterprises shall be made public in accordance with the law. If the implementation of policies and measures involves matters that need to be applied for by enterprises, the government and its relevant departments shall publicize the procedures and conditions of the application and review them fairly and fairly.

Article 10 when drafting laws, regulations, rules and normative documents related to foreign investment, the government and its relevant departments shall, according to the actual situation, solicit opinions in written form, hold symposiums and argumentation meetings, and listen to the opinions of foreign-invested enterprises and foreign chambers of Commerce; when they are relatively concentrated or involve major rights and obligations of foreign-invested enterprises, they shall When feedback on the adoption of opinions is given in an appropriate way.

Article 11 peoples governments at all levels shall, in accordance with the principle of government leadership and multi participation, establish and improve the service system for foreign investment and improve the service level for foreign investment.

Article 12 The term special economic areas as mentioned in Article 13 of the law on foreign investment refers to the special areas established with the approval of the state for the purpose of promoting foreign investment and expanding the opening-up policy and measures.

If the pilot policies and measures for foreign investment implemented by the state in some areas are proved to be mature through tests, they shall be popularized in other areas or nationwide according to the actual situation.

Article 13 The State shall, in accordance with the needs of national economic and social development, formulate a catalogue of industries to encourage foreign investment, and encourage and guide foreign investors and enterprises with foreign investment to invest in specific industries, fields and regions. The catalogue of industries to encourage foreign investment shall be formulated by the competent investment department of the State Council, together with the competent commerce department of the State Council and other relevant departments, as well as the relevant local peoples governments, and shall be issued for implementation after being submitted to and approved by the State Council.

Foreign investors and enterprises with foreign investment who invest in the specific industries, fields and regions specified in the preceding paragraph may, in accordance with laws, administrative regulations or the provisions of the State Council, enjoy preferential treatment in the fields of finance, taxation, finance, land use, etc.

Article 14 If a foreign investor expands its investment in China with the proceeds of its investment in China, it shall enjoy the corresponding preferential treatment according to law.

Enterprises with foreign investment may put forward proposals for the establishment of compulsory national standards to the administrative department for standardization under the State Council, put forward opinions and suggestions in the process of standard drafting, technical examination and standard implementation, and may undertake relevant work in accordance with regulations.

Article 16 except that the technical requirements of the disclosure standards for foreign-invested enterprises are higher than those of the compulsory standards, the relevant government departments shall not apply the technical requirements higher than the compulsory standards to foreign-invested enterprises, and shall not force or disguise the application of the recommendation standards or group standards to foreign-invested enterprises.

Article 17 No unit or individual may, by any means, obstruct or restrict the free access of enterprises with foreign investment to the government procurement market of their own region or industry.

The government procurement supervision and administration department, the purchaser or the procurement agency shall, in accordance with the relevant laws and administrative regulations on government procurement, guarantee the participation of foreign-funded enterprises in government procurement activities through fair competition, and shall not limit the forms and groups of suppliers ownership in terms of the publication of government procurement information, the determination of supplier conditions, qualification examination and evaluation standards Under unreasonable conditions such as organizational form, equity structure or investors country, foreign-funded enterprises shall be treated differently or discriminatively.

Article 18 the government procurement supervision and administration department shall provide guidance and services for the participation of domestic and foreign-funded enterprises in government procurement on an equal basis.

For the financing of enterprises with foreign investment in accordance with the provisions of the preceding paragraph, the relevant competent departments and financial institutions shall go through the relevant formalities for them in accordance with the conditions and procedures consistent with domestic investment.

Enterprises with foreign investment may borrow foreign debts in accordance with the relevant regulations of the state.

Article 20 the local peoples governments at or above the county level may, in accordance with the actual conditions of their respective regions and the needs of promoting foreign investment, formulate targeted policies and measures for promoting and facilitating foreign investment within the scope of their statutory authority.

Article 21 The competent department of Commerce and investment under the State Council shall, together with other relevant departments under the State Council, formulate comprehensive guidelines for foreign investment. The relevant competent departments of the State Council may, according to actual needs, formulate guidelines for foreign investment in their respective industries and fields. The relevant departments of the local peoples governments at or above the county level shall, in accordance with the actual needs and the division of responsibilities determined by the governments at the corresponding levels, formulate corresponding guidelines for foreign investment.

The guidelines for foreign investment shall include laws and regulations, policies and measures, data and information, business guidance, investment environment analysis, etc. concerning foreign investment.

The guidelines for foreign investment shall be published on the website of the government departments and updated in a timely manner.

Chapter III Investment Protection

Article 22 The State shall not levy on the investment of foreign investors. Under special circumstances, the specific circumstances of levying or expropriating the investment of foreign investors for the sake of public interests shall be clearly prescribed by law, and the investment of foreign investors shall not be expropriated or expropriated on the basis of other than law. Where the investment of a foreign investor is expropriated or expropriated in accordance with the provisions of the law, fair and reasonable compensation shall be given in a timely manner.

Article 23 the foreign investors investment, profits, capital gains, assets disposal income, intellectual property licensing fees, compensation or compensation, liquidation income, etc. in China may be freely remitted in or out of RMB or foreign exchange in accordance with the law, and no single or individual may illegally restrict the currency, amount, frequency of inward or outward remittance, etc.

Wages and other legitimate incomes of foreign employees of enterprises with foreign investment may be remitted freely according to law after paying taxes in accordance with Chinese tax laws and administrative regulations.

Article 24 The State shall establish a punitive compensation system for infringement of intellectual property rights, promote the establishment of a mechanism for rapid and coordinated protection of intellectual property rights, improve the diversified settlement mechanism of intellectual property disputes and the assistance mechanism for safeguarding intellectual property rights, and strengthen the protection of intellectual property rights for foreign investors and enterprises with foreign investment.

The intellectual property rights of foreign investors and enterprises with foreign investment shall be protected equally according to law in the formulation of standards; where the patents of foreign investors and enterprises with foreign investment are involved, the relevant administrative provisions of national standards concerning patents shall be followed.

Article 25 the administrative organ and its staff members shall not force or disguise the transfer of technology by foreign investors or enterprises with foreign investment by means of registration, approval or filing of investment projects, administrative licensing, supervision and inspection, administrative punishment, administrative coercion and other acts of performing administrative duties.

The administrative organ shall establish and improve the internal management system, take effective measures to protect the trade secrets of foreign investors and foreign-funded enterprises that are known in the course of performing their duties; if it is necessary to publicly perform its duties according to law, it shall not contain the contents of the trade secrets; if it is necessary to share the information with other administrative organs, it shall, unless otherwise provided by laws and administrative regulations, include The trade secrets of shall be handled accordingly to prevent disclosure.

If a foreign investor or enterprise with foreign investment believes that the normative document formulated by the Department of the State Council, the local peoples government or its departments on which the administrative act is based is illegal, it may, when bringing a lawsuit against the administrative act according to law, simultaneously request the examination of the normative document.

Article 28 the policy commitments mentioned in Article 25 of the foreign investment law refers to the commitments made by the local peoples governments at all levels and their relevant departments on preferential measures and convenient conditions for foreign investors and foreign-funded enterprises to invest in their own regions.

Local peoples governments at all levels and their relevant departments shall not make policy commitments to foreign investors and foreign-funded enterprises beyond their statutory authority. The policy commitment shall be in written form, and the content shall conform to the provisions of laws and regulations and relevant national policies.

Article 29 the local peoples governments at all levels and their relevant departments shall fulfill the policy commitments made to foreign investors and foreign-funded enterprises in accordance with the law and various contracts concluded in accordance with the law. The policy commitments and contract agreements shall not be changed, the administrative divisions shall not be adjusted, the government shall not be replaced, the institutions or functions shall not be adjusted, and the relevant responsible persons shall not be replaced except for the national interests and social public interests Etc. for breach of contract.

Article 30 the competent department of commerce under the State Council shall, in conjunction with the relevant departments under the State Council, establish a complaint mechanism for foreign-invested enterprises (hereinafter referred to as the complaint mechanism), promptly deal with the issues of great influence and other major and complex issues reflected by foreign-invested enterprises or their investors in the whole country, coordinate and improve the policies and measures for foreign investment, and affect the foreign-invested enterprises in the whole country To guide and supervise the complaint work.

The local peoples governments at or above the county level shall, according to the actual needs, organize the relevant departments to establish a complaint mechanism, deal with the problems reported by the enterprises with foreign investment or their investors in the region in a timely manner, and coordinate and improve the policies and measures for foreign investment formulated by the region. The local peoples government at or above the county level shall determine the leading department or institution of the complaint mechanism.

Article 31 the complaint working mechanism shall, in accordance with the principles of high efficiency, convenience and unimpeded flow, improve the working rules and complaint channels, and formulate complaint guidelines. The composition, leading unit, main responsibilities, working rules, complaint channels and complaint guidelines of the complaint mechanism shall be publicized to the public.

If the complaint mechanism coordinates the settlement of violations of the legitimate rights and interests of foreign-funded enterprises or the administrative organs and their staff members as reflected by their investors, it may ask the relevant administrative organs and their staff members for information, and the relevant administrative organs and their staff members shall cooperate.

Article 32 The complaint mechanism shall analyze and summarize the typical and universal problems reflected by the foreign-invested enterprises or their investors, and timely put forward suggestions to the peoples government at the corresponding level to strengthen the protection of foreign investment and improve the environment for foreign investment.

Article 33 except as otherwise provided by laws and regulations, foreign-invested enterprises shall have the right to decide on their own to participate in or withdraw from social organizations such as chambers of Commerce and associations, and no unit or individual may interfere.

The chamber of Commerce and the association shall, in accordance with the provisions of laws, regulations and the articles of association, strengthen the self-discipline of the industry, timely reflect the demands of the industry, and provide members with services in information consultation, publicity and training, market development, economic and trade exchanges, rights and interests protection, dispute settlement, etc.

Chapter IV Investment Management

Article 34 Where the negative list of foreign investment admittance stipulates the areas of restricted investment, foreign investors shall meet the restrictive requirements in terms of share ratio, senior management personnel, etc. stipulated in the negative list.

The negative list of foreign investment access makes restrictive provisions on the shareholding ratio of foreign investors in relevant fields. If foreign investors invest in this field by establishing a partnership, the proportion of voting rights of foreign investors stipulated in the partnership agreement shall comply with the restrictive provisions on the shareholding ratio in the negative list.

Article 35 Where a wholly-owned enterprise established outside China by a natural person, legal person or other organization of China invests in China, it may not be subject to the restrictions on the Special Administrative Measures for the admission of foreign investment as stipulated in the negative list of the admission of foreign investment after being examined and approved by the relevant competent department of the State Council and submitted to the State Council for approval.

The legal persons or other organizations mentioned in the preceding paragraph do not include enterprises with foreign investment.

Article 36 Where foreign investment needs to go through the examination and approval of investment projects and put on record, the relevant provisions of the State Council and the competent investment department of the State Council shall apply.

Article 37 Where a foreign investor invests in an industry or field that needs to be licensed in accordance with the law, the relevant competent department in charge of the implementation of the license shall, except as otherwise provided by laws and administrative regulations, examine and verify the license application of the foreign investor in accordance with the conditions and procedures consistent with the domestic investment, and may not add or apply more stringent license conditions to the foreign investor Add audit links, audit materials and other additional requirements.

The competent departments concerned shall optimize the examination and approval services and improve the examination and approval efficiency in various ways. The licensing matters that meet the relevant conditions and requirements may be handled by means of notification and commitment in accordance with the relevant provisions.

Article 38 when going through the registration of foreign-invested enterprises in accordance with the law, the market supervision and administration department shall check whether they meet the restrictive requirements in terms of share ratio and senior management personnel as stipulated in the negative list of foreign investment access; if the relevant competent departments have checked when going through the relevant procedures in accordance with the law, the market supervision and administration department shall no longer repeat the examination.

Article 39 a foreign investor or an enterprise with foreign investment shall submit its investment information to the competent department of commerce through the enterprise registration system and the enterprise credit information publicity system.

The competent department of commerce under the State Council shall, together with the market supervision and administration department under the State Council, do a good job in the connection and connection of relevant business systems, clarify the specific process of foreign investment information reporting, and strengthen the guidance of investment information reporting.

Article 40 the content, scope and frequency of foreign investment information reports shall be determined by the competent commerce department of the State Council, together with the market supervision and Administration Department of the State Council and other relevant departments in accordance with the principle of reducing the burden of foreign investors and enterprises with foreign investment as much as possible. In determining the content, scope and frequency of foreign investment information reports, the opinions of foreign investors, foreign-invested enterprises and other relevant parties shall be fully listened to.

Except as otherwise provided by laws and administrative regulations, the foreign investment information obtained by the relevant departments in the course of performing their duties shall be shared with the competent commercial departments in a timely manner.

The competent department of Commerce shall establish and improve the system for the preservation and management of foreign investment information.

Chapter V supplementary provisions

Article 42 before the implementation of the foreign investment law, foreign-funded enterprises (hereinafter referred to as existing foreign-funded enterprises) established in accordance with the law of the peoples Republic of China on Chinese foreign equity joint ventures, the law of the peoples Republic of China on foreign funded enterprises and the law of the peoples Republic of China on Chinese foreign cooperative enterprises shall have their organizational forms and organizations in accordance with the company law of the peoples Republic of Chinau300a If the compulsory provisions of the law of the peoples Republic of China on partnership enterprises and other laws are inconsistent, the State encourages them to go through the formalities of change according to law within five years after the implementation of the law on foreign investment.

If an existing foreign-invested enterprise that falls under the circumstances specified in the preceding paragraph fails to go through the formalities of change in accordance with the law within five years after the implementation of the foreign investment law, it shall go through the formalities of change in accordance with the law within six months from January 1, 2025; if it fails to go through the formalities of change in accordance with the law within the time limit, the enterprise registration authority shall not go through other registration matters of the enterprise, and may publicize the relevant circumstances in the enterprise information publicity system.

The specific measures for the existing enterprises with foreign investment to go through the formalities for the change of organizational form and organization shall be formulated by the market supervision and Administration Department of the State Council in conjunction with the relevant departments of the State Council. The market supervision and administration department under the State Council shall formulate and publish guidelines for handling affairs to the public, and specify the specific procedures for handling the change procedures.

Article 43 after the implementation of the law on foreign investment, the existing methods of income distribution and surplus property distribution agreed upon in the contract by the parties to a joint venture or cooperation with foreign investment may continue to be handled in accordance with the agreement during the term of the joint venture or cooperation.

Article 44 investors from the Hong Kong Special Administrative Region and the Macao Special Administrative Region shall invest in the mainland with reference to the foreign investment law and these regulations, except as otherwise provided by laws, administrative regulations or the State Council.

The provisions of the law of the peoples Republic of China on the protection of investment by Taiwan compatriots and the detailed rules for the implementation of the law of the peoples Republic of China on the protection of investment by Taiwan compatriots (hereinafter referred to as the law of the peoples Republic of China on the protection of Taiwan compatriots and the detailed rules for its implementation) shall apply to the investment of Taiwan investors in the mainland. Matters not provided for in the law of the peoples Republic of China on the protection of investment by Taiwan compatriots and the detailed rules.

Overseas Chinese investing in China shall be governed by the foreign investment law and these regulations.

Notes on the regulations for the implementation of the law of the peoples Republic of China on foreign investment (Draft for comments)

The foreign investment law of the peoples Republic of China (hereinafter referred to as the foreign investment law) will come into force on January 1, 2020. In order to implement the decision-making and deployment of the Party Central Committee and the State Council and ensure the effective implementation of the foreign investment law, the Ministry of justice, together with the Ministry of Commerce, the development and Reform Commission and other departments, has studied and drafted the regulations for the implementation of the foreign investment law of the peoples Republic of China (Draft for comments) (hereinafter referred to as the draft for comments). The relevant issues are as follows:

I. general idea of legislation

These Regulations are the supporting administrative laws and regulations of the foreign investment law. The draft for comments should firmly grasp this legislative position, adapt to the actual needs of promoting the formation of a new pattern of comprehensive opening up, strictly implement the legislative principles and purposes of the foreign investment law, clarify and refine the relevant provisions of the law, enhance the operability of the system, and ensure that the foreign investment law has Effective implementation will provide more powerful system guarantee and support for further expanding opening up, actively promoting foreign investment, protecting the legitimate rights and interests of foreign investment, and standardizing foreign investment management.

II. Main contents of the draft

There are 5 chapters and 45 articles in the draft, mainly including the following provisions:

(1) basic issues of foreign investment. While stipulating that the state should improve relevant policies and measures, continue to strengthen opening up, optimize the environment for foreign investment, encourage and actively promote foreign investors to invest in China in accordance with the law, the draft also provides specific implications for foreign investors to invest in China together with Chinese natural persons in accordance with the law, and foreign investors to invest in new projects in China The procedures for the establishment and adjustment of the administrative organ for the registration of foreign-funded enterprises and the negative list of foreign investment access, as well as the relevant departments of the State Council have worked closely and cooperatively to do a good job in the promotion, protection and management of foreign investment. The local peoples governments at or above the county level have made clear provisions on the organization and leadership of the promotion, protection and management of foreign investment. (Chapter I)

2. Investment promotion. In order to actively promote foreign investment, the draft further clarifies and refines the following matters, including: the equal application of policies of the state to support the development of enterprises by foreign-invested enterprises; the drafting of laws, regulations, rules and normative documents related to foreign investment to listen to the opinions of foreign-invested enterprises and foreign chambers of Commerce; the establishment and improvement of foreign investment service system; Encourage and guide foreign investors and foreign-funded enterprises to invest in specific industries, fields and regions, encourage foreign investors to expand investment in China with their investment income in China; foreign-funded enterprises shall participate in standard setting work equally according to law, apply mandatory standards equally, participate in government procurement activities equally; formulate foreign investment guidelines, etc. (Chapter II)

(3) investment protection. In order to strengthen the protection of foreign investment, the draft has made the following provisions: first, the specific circumstances of expropriation or expropriation of foreign investors investment for the sake of public interest should be clearly stipulated by law, and expropriation or expropriation shall not be carried out on the basis of laws. Second, the state has established a punitive compensation system for intellectual property infringement, promoted the establishment of a rapid collaborative protection mechanism for intellectual property rights, improved a diversified settlement mechanism for intellectual property disputes and an assistance mechanism for intellectual property rights protection, and strengthened the protection of intellectual property rights for foreign investors and foreign-invested enterprises. At the same time, it has further refined the prohibition of the use of administrative means to force foreign investors and foreign investors Relevant provisions on technology transfer of investment enterprises and strict protection of trade secrets of foreign-funded enterprises known by administrative organs and their staff during the performance of their duties. Third, the formulation of normative documents involving foreign investment shall be subject to legitimacy review and fair competition review; local peoples governments at all levels and their relevant departments shall not change their policy commitments and contract agreements, or break the contract on the grounds of administrative division adjustment, government change, organization or function adjustment, and replacement of relevant responsible persons, etc., except for national interests and social public interests. Fourth, the establishment of foreign investment complaint mechanism, its responsibilities and operation are clearly defined. (Chapter III)

(4) investment management. In order to regulate the administration of foreign investment, the first draft stipulates that if a wholly-owned enterprise established outside China by a natural person, legal person or other organization of China invests in China, it may not be subject to the restrictions on the Special Administrative Measures for access stipulated in the negative list of foreign investment access. Second, if it is stipulated that foreign investment needs to go through the examination and approval and filing of investment projects, it shall be carried out in accordance with the relevant provisions of the State Council and the competent investment department of the State Council. Third, the review mechanism of the restricted investment areas in the negative list of foreign investors is clarified, and the market supervision and administration department is required to review whether the foreign investment meets the restrictive requirements in terms of share ratio and senior management personnel specified in the negative list when going through the registration; if the relevant main administration Department has reviewed the relevant procedures in accordance with the law, the review will not be repeated. Fourth, from the perspective of standardizing the submission of foreign investment information and reducing the burden of foreign investors and foreign-invested enterprises as much as possible, the foreign investment information reporting system has been further refined. (Chapter IV)

(5) arrangements for the transition period of the existing organizational forms of foreign-funded enterprises. In order to ensure the effective implementation of foreign investment law and maintain the continuity and stability of foreign investment policies and management, and to facilitate the adjustment of organizational form of existing foreign-invested enterprises established in accordance with the three foreign investment laws before the implementation of foreign investment law as much as possible, the draft clearly stipulates that the organizational form and organization of existing foreign-invested enterprises, as well as the corporate law, partnership law and other laws If the mandatory provisions are inconsistent, the State encourages the enterprise to go through the change procedures in accordance with the law within 5 years after the implementation of the foreign investment law; if the enterprise fails to go through the change procedures in accordance with the law within the above period, it shall go through the change procedures in accordance with the law within 6 months from January 1, 2025. If the enterprise fails to go through the change procedures within the time limit, the enterprise registration authority shall not go through other registration items of the enterprise, and may disclose the relevant situations in the enterprise information The existing income distribution methods and residual property distribution methods agreed upon in the contract by the parties to the joint venture and cooperation of foreign-funded enterprises can continue to be handled in accordance with the agreement during the term of the joint venture and cooperation. (Articles 42 and 43)

(6) the application of laws on investment in Hong Kong, Macao and Taiwan. In practice, investment in Hong Kong, Macao and Taiwan is managed in principle with reference to foreign investment. In order to maintain the continuity and stability of the investment management policies of Hong Kong, Macao and Taiwan, the draft for comments clearly stipulates that: the investment in the mainland by investors from Hong Kong and Macao special administrative regions shall be implemented by reference to the foreign investment law and these regulations, unless otherwise stipulated by laws, administrative regulations or the State Council; the Taiwan compatriots protection law and its implementation rules shall apply to the investment in the mainland by investors from Taiwan The provisions of the State Council and these Regulations shall be implemented with reference to the foreign investment law and these regulations. (Article 44)

Source: responsible editor of the Ministry of justice of the peoples Republic of China: Liu Songgou nbj9949