第4章 外资企业法.doc

幻灯片1Chapter 5 FIEs law 1 Chinas Fundamental Policy for Encouraging Foreign Investment 2 Law of PRC on Chinese Foreign Equity Joint Ventures（中外合资企业） 3 Law of PRC on Chinese Foreign Contract Joint Venture （企业；风险；冒险）4 Law of PRC on Chinese on Foreign Capital Enterprises 幻灯片2Section 1 Chinas Fundamental Policy for Encouraging Foreign Investment 1. Sources of FIEs law Sources of major FIEs law Issuer 发行人Time No. of clauses General EFIR State Council国务院 1986 22 TCIPL SCNPC人大常委会 1994 15 FIELM State Council 1996 51 PGDFI State Council 2002 17 SFEJV SFEJVL NPC全国人代会 1979, 1990, 2001 16 SFEJVL Rules State Council 1983, 1986, 1987, 2001 105 SFEJV Capital SAIC 1987 8 SFCJVSFCJVL NPC 1988, 2000 27 SFCJVL Rules State Council 1995 58 WFOE WFOEL NPC 1986,2000 24 WFOEL Rules State Council 1990, 2001 84 FICLS FICLS Opinions MOFTEC 2001 6 FICLS Provisions MOFTEC 1995 28 幻灯片3In view of鉴于，考虑到the continued reform and opening up改革开放and steady development of the national economy, and in order to adapt to the process of Chinas entry into the WTO, to make the three laws more in conformity（一致；符合；相似）with Chinas reform and opening up, and to establish a socialist market economy社会主义市场经济legal system within the framework框架.结构of international practices and rules国际惯例和规则, after examination and approval by the NPC Standing Committee常务委员会in 2000.Such as ( 1). Articles about the balance of foreign exchange account外汇账户.(2). Article about localization of supplies. (3) Requirement on export achievement . (4) Articles on recordation记载,记录 of enterprises production plans. etc.幻灯片42.More sectors openedIt includes many arrears欠款,尾数,未完成的工作 such as banking , insurance , commercial retailing and wholesale批发,foreign trade , tourism, telecommunication, transportation, accounting, auditing and legal service.幻灯片53.Categories类别of investment projects3. 1 Encouraged foreign investment projects l Projects for new agricultural technology, overall agricultural development or energy, transportation and key raw materials industries; l (2) Projects for high and new technology, advanced and appropriate technology, and new equipment and materials that can improve product performance or enhance enterprises technological and economic benefits or for which domestic国内的 production capability is insufficient; l (3) Projects meeting market demand and upgrading products, opening up new markets or enhancing the international competitiveness竞争力 of products; 幻灯片6(4) Projects for new technology or equipment that can save energy and raw materials, comprehensively utilize resources and renewable resources, and prevent and control environmental pollution; (5) Projects making full use of the advantages of the human and other resources of the central and western regions, and conform符合,遵照 with the States industrial policies; (6) Other sectors specified in laws and administrative regulations. 幻灯片73. 2 Restricted限制 foreign investment projects (1) projects with backward technology; (2) projects that do not help to save resources or improve the ecology and environment; (3) projects for engaging in the prospecting and mining of specific types of mineral deposits subject to protective mining measures stipulated by the State; (4) projects for industries which the State is gradually liberalizing; (5) Other sectors specified in laws and administrative regulations. 幻灯片83. 3 Prohibited禁止 foreign investment projects (1) projects jeopardizing 危害State security or harming the public interest; (2) projects causing pollution damage to the environment, destroying natural resources or harming peoples health; (3) projects occupying large tracts of arable land and not beneficial for the protection and development of land resources; (4) projects jeopardizing the security and effectiveness of military installations;(5) projects using techniques or technologies that are unique to China to make products; (6) other sectors stipulated 规定in laws and administrative regulations. 幻灯片94.Foreign investment vehicles Major foreign investment vehicles EJV CJV WFOE FICLS Legal person Non-legal person Legal person Non-legal person Status LLC CLS Non-legal person Minimal registered capital 25% minimal foreign capital 100% foreign capital Profit distribution 利润分配By equity share By agreement Early recovery of investment Supreme authority BOD Shareholders meeting Tough requirements & onerous approval严格的要求繁琐的审批 幻灯片105.Government guarantees担保(1)Appropriate compensation补偿,报酬for nationalization and requisition征用,申请v/n(2)Repatriation guarantee(3)Non discrimination歧视,区别 treatment(4)Stabilization guarantee幻灯片11Section 2. Law of PRC on Chinese Foreign Equity Joint Ventures1.Definition and legal characteristicsWith a view to expanding international economic co-operation and technical exchange, the Peoples Republic of China permits foreign companies, enterprises, other economic organizations or individuals (hereafter referred to as foreign joint venturers)to joint with Chinese companies, enterprise or other economic organizations (hereafter referred to as Chinese joint ventures) in establishing joint ventures in the Peoples Republic of China in accordance with the principle of equality and mutual benefit and subject to approval by the Chinese Government.幻灯片12 A joint venture shall take the form of a limited liability company. The proportion of the investment contributed by the foreign joint venturer(s) shall generally not be less than 25% of the registered capital 注册资本of a joint venture.The parties to the venture shall share the profits, risks and losses in proportion to their respective各自的 contributions to the registered capital. No assignment of the registered capital of a joint venturer shall be made without the consent of the other parties to the venture.幻灯片132.Establishment and registrationThe joint venture agreement, contract and articles of association signed by the parties to the venture shall be submitted to the competent authorities of foreign economic relations and trade (hereafter referred to as approval authorities), and the approval authorities shall, within three months, decide whether to approve or disapprove them. After approval, the joint venture shall register with the state competent authorities of administration for industry and commerce to obtain a license to do business and start operations.幻灯片14 The contract period of a joint venture may be decided differently according to its particular line of business and circumstance. The joint ventures of some trades should decided the contract period; and other may or may not decide the contract period. A joint venture that has set a contract period should, if the parties to the joint venture agree to extend the contract period, apply to the approval authorities six months ahead of the expiration of the contract period. The latter should make the decision of approval or disapproval within one month as of the date of application.幻灯片153.Sources of investmentUnder Article 5 of Law of PRC on Chinese Foreign Equity Joint Ventures, Each party to a joint venture may make its investment in cash, in kind or in industrial property rights, etc. The technology and the equipment that serve as a foreign joint venturers investment must be advanced technology and equipment that actually suit our countrys needs. If the foreign joint venturer causes losses by deception欺骗through the intentional use of backward落后的technology and equipment, it shall pay compensation for the losses. The investment of a Chinese joint venturer may include the right to the use of a site provided for the joint venture during the period of its operation. If the right to the use of the site does not constitute 组成,建立a part of a Chinese joint venturers investment, the joint venture shall pay the Chinese Government a fee for its use. The various investments referred to above shall be specified in the joint venture contract and articles of association, and the value of each (excluding that of the site) shall be jointly assessed by the parties to the venture.幻灯片16The Joint venture may purchase the materials such as raw materials原材料, fuels, etc. as needed within the approved scope of business either on the domestic or international market according to the principle of fairness and reasonableness.A joint venture is encouraged to market its products outside China. Export products may be distributed to foreign markets through the joint venture directly or through associated agencies, and they may also be distributed through Chinas foreign trade agencies. Products of the joint venture may also be distributed in the Chinese market. Whenever necessary, a joint venture may establish branches outside China.幻灯片17l 4.Administrative managementl Under Article 6 of Law of PRC on Chinese Foreign Equity Joint Ventures, A joint venture shall have a board of directors, which shall have its size and composition stipulated in the contract and the articles of association after consultation between the parties to the venture, and the directors shall be appointed and replaced by the parties to the venture. The Chairman and the vice-chairman are determined by the parties to the venture or elected by the board of directors. Either party of the Chinese-foreign joint venturers may be the chairman and the other shall assume the office of vice-chairman. In handling major problems, the board of directors shall reach a decision through consultation by the parties to the venture, in accordance with the principle of equality and mutual benefit. 幻灯片18The board of directors is empowered授权,允许, pursuant to依照 the provisions of the articles of association of the joint venture, to discuss and decide all major problems of the venture: expansion programmes, proposals for production and operating activities, the budget for revenues税收,收益 and expenditures支出,花费, distribution of profits, plans concerning manpower劳动力 and pay scales, the termination结束,终止of business and the appointment任命or employment of the president, the vice-president(s), the chief engineer, the treasurer and the auditors, as well as their powers and terms of employment, etc. The offices of president and vice-president(s) (or factory manager and deputy manager(s) shall be assumed by the respective parties to the venture. Contracts shall be entered into in accordance with the law to prescribe the recruitment, dismissal, remuneration, welfare, labor protection, labor insurance, etc.幻灯片195、 Distribution分配of EJV profitAfter payment, pursuant to the provisions of the tax laws of the Peoples Republic of China, of the joint venture income tax on the gross profit毛利earned by the joint venture and after deduction from the gross profit of a reserve fund, a bonus and welfare fund for staff and workers, and a venture expansion fund, as provided in the articles of association of the joint venture, the net profit shall be distributed to the parties to the joint venture in proportion to their respective contributions to the registered capital.A joint venture may enjoy the preferential优先的,优惠的treatment优待 of reduction of or exemption免除,免税 from tax pursuant to relevant state taxation laws or administrative decrees法令 法规. A foreign joint venturer that reinvests in China its share of the net profit may apply for refund of a part of the income taxes already paid.幻灯片20A joint venture shall, with its business licence, open a foreign exchange account at the banks or other financial organizations approved by the state foreign exchange control administrative organs to handle foreign exchange business. The pertinent foreign exchange transactions of a joint venture shall be conducted in accordance with the regulations on foreign exchange control of the Peoples Republic of China. In its operating activities a joint venture may directly raise funds from foreign banks. All insurances of joint ventures shall be procured at the insurance companies within the territory of the Peoples Republic of China. 幻灯片21The net profit净利润that a foreign joint venturer receives after fulfilling its obligations 履行义务under the laws and the agreement and the contract, the funds it receives at the time of the joint ventures scheduled expiration or early termination, and its other funds may be remitted abroad in accordance with the foreign exchange regulations and in the currency specified in the joint venture contract. A foreign joint venturer shall be encouraged to deposit in the Bank of China foreign exchange that it is entitled to remit abroad.幻灯片226、EJV dispute settlement纠纷解决Disputes arising between the parties to a joint venture that the board of directors cannot settle through consultation may be settled through mediation or arbitration by a Chinese arbitration agency or through arbitration by another arbitration agency agreed upon by the parties to the venture. Where no arbitration clauses have been included in the joint venture contract or no written arbitration agreement have been reached after a dispute arises, any party may bring a suit with the peoples court.幻灯片237、EJV termination结束，终止In case of heavy losses, failure of a party to fulfil the obligations prescribed by the contract and the articles of association, force majeure不可抗力,etc,the contract may be terminated through consultation and agreement by the parties to the venture, subject to approval by the approval authorities and to registration with the state competent authorities of administration for industry and commerce. In cases of losses caused by a breach of contract, the financial responsibility shall be borne by the party that has violated the contract.幻灯片24Section 3. Law of PRC on Chinese Foreign Contract Joint Ventures1.Definition and legal characteristicsThis Law is formulated to expand economic cooperation and technological exchange with foreign countries and to promote the joint establishment, on the principles of equality and mutual benefit, by foreign enterprises and other economic organizations or individuals (hereinafter以下referred to as the foreign party) and Chinese enterprises or other economic organizations (hereinafter referred to as the Chinese party) of Chinese-Foreign Contractual Joint Ventures ( hereinafter referred to as contractual joint ventures ) within the territory of the Peoples Republic of China.幻灯片25In establishing a contractual joint venture, the Chinese and foreign parties shall, in accordance with the provisions of this Law, prescribe in their contractual joint venture contract such matters as the investment or conditions for cooperation, the distribution of earnings or products, the sharing of risks and losses, the manners of operation and management and the ownership of the property at the time of the termination of the contractual joint venture. A contractual joint venture which meets the conditions for being considered a legal person under Chinese law shall acquire the status of a Chinese legal person in accordance with law.幻灯片26The State shall, according to law, protect the lawful rights and interests of the contractual joint ventures and of the Chinese and foreign parties. A contractual joint venture shall abide by Chinese laws and regulations and may not injure the public interests of China. The relevant State authority shall exercise supervision over the contractual joint ventures according to law.The State shall encourage the establishment of productive contractual joint ventures that are export-oriented or technologically advanced.幻灯片272.Establishment of China Joint VenturesFor the purpose of applying for the establishment of a contractual joint venture, such documents文档 as the agreement, the contract and the articles of association signed by the Chinese and foreign parties shall be submitted for examination and approval to the department in charge of foreign economic relations and trade under the State Council or to the department or Local government authorized by the State Council (hereinafter referred to as the examination and approval authority审查批准机关) . The examination and approval authority shall, within 45 days from the date of receiving the application, decide whether or not to grant approval.幻灯片28When the application for the establishment of a contractual joint venture is approved, the parties shall, within 30 days from the date of receiving the certificate of approval, apply to the administrative department for industry and commerce for registration in order to obtain a business license营业许可证. The date of issue of the business license of contractual joint venture shall be the date of its establishment. A contractual joint venture shall, within 30 days of its establishment, carry out tax registration with the tax authorities.幻灯片29If the Chinese and foreign parties, during the period of operation of their contractual joint venture, agree through consultation to make major modifications修改to the contractual joint venture contract, they shall report to the examination and approval authority for approval; if the modifications include items involving statutory法定的industry and commerce registration or tax registration, they shall register the modifications with the administrative department for industry and commerce and with the tax authorities.幻灯片303.Administrative managementA contractual joint venture shall conduct its operational and managerial activities in accordance with the approved contract and articles of association for the contractual joint venture. The right of a contractual joint venture to make its own operational and managerial