关于境内居民个人境外投资登记及外资并购外汇登记有关.doc

Circular on Issues Relevant to Registration Regarding Offshore Investments of Individual Domestic Residents and Foreign Exchange Registration in Respect of Mergers and Acquisitions by Foreign Investors关于境内居民个人境外投资登记及外资并购外汇登记有关问题的通知 CLP Reference: 3820/05.04.21PRC Reference: 汇发 2005 29 号Promulgated: 21 April 2005Effective: 21 April 2005(Issued by the State Administration of Foreign Exchange on, and effective as of, April 21 2005.)(国家外汇总局于二零零五年四月二十一日发布，自下发之日起施行。)Hui Fa 2005 No.29汇发 2005 29号Branches and offices of the State Administration of Foreign Exchange of each province, autonomous region and municipality directly under the central government and the Shenzhen, Dalian, Qingdao, Xiamen and Ningbo municipal branches of the State Administration of Foreign Exchange:国家外汇管理局各省、自治区、直辖市分局、外汇管理部，深圳、大连、青岛、厦门、宁波市分局：We hereby notify you on matters relevant to registration regarding offshore investments of individual domestic residents and foreign exchange registration in respect of mergers and acquisitions by foreign investors as follows in order to maintain the international balance of payments and ensure lawful and orderly cross border capital flows:为维护国际收支平衡，保証跨境资本合规有序流动，现将境内居民个人境外投资登记及外资并购外汇登记有关事宜通知如下：1. If an individual domestic resident injects domestic assets or equity into an offshore enterprise resulting in his or her direct or indirect holding of shares or stock in such enterprise and if the most recent affiliated merger or acquisition by a foreign investor in respect of an acquired domestic enterprise (or enterprise established for the purpose of making an acquisition) occurred prior to January 24 2005 and the procedures for a foreign-invested enterprise approval certificate were duly carried out prior to such date, the domestic resident shall belatedly carry out foreign exchange registration in respect of offshore investments with the foreign exchange authority of the place where the acquired enterprise is located using the form attached hereto.一、 境内居民个人将境内资产、股权注入境外企业并直接或间接持有境外企业股份、股票的，如境内被并购企业(或为并购而设立的企业)2005年1月24日之前发生的最近一期关联外资并购交易已于该日期之前办妥外商投资企业批准証书，境内居民个人应按照附件格式到被并购企业所在地外汇局补办境外投资外汇登记。Without registration by the foreign exchange authority, an individual domestic resident may not carry out foreign exchange transactions relating to offshore investments or other capital account items.未经外汇局登记，境内居民个人不得办理境外投资及其他资本项目外汇业务。2. After carrying out belated foreign exchange registration in respect of offshore investments, if the offshore enterprise in which the individual domestic resident directly or indirectly holds equity increases or decreases its capital, effects an equity transfer, merges, is divided, makes an equity investment in a third party, provides security to a third party involving assets in China or is involved in another such material change, the individual domestic resident with the largest direct or indirect equity holding in the offshore enterprise shall carry out, within 30 days of the date on which the material change occurred, amendment of foreign exchange registration or record filing procedures with the foreign exchange authority of the place where the offshore investment was registered.二、 在补办境外投资外汇登记后，境内居民个人直接或间接持有股权的境外企业如发生增资、减资、股权转让、合并、分立、对外股权投资、涉及境内资产的对外担保等重大事项，直接或间接拥有该境外企业最大股权的境内居民个人，应于重大事项发生之日起30日内，向境外投资登记地外汇局办理外汇登记变更或备案手续。3. If an individual domestic resident has duly carried out foreign exchange registration in respect of offshore investments regarding an offshore enterprise in which he or she has a shareholding, all branches and offices may carry out registration of foreign capital and foreign exchange for the acquisition of a domestic enterprise effected before January 24 2005 by the offshore enterprise.三、 境内居民个人对其持股的境外企业已办妥境外投资外汇登记的，各分局、外汇管理部可以为该境外企业发生于2005年1月24日之前的并购境内企业交易办理外资外汇登记。4. The phrase foreign exchange registration in respect of a foreign-invested enterprise established through a merger or acquisition by a foreign investor in Item Three of the State Administration of Foreign Exchange, Circular on Issues Relevant to Improving the Foreign Exchange Administration Regarding Mergers and Acquisitions by Foreign Investors (ref. Hui Fa 2005 No.11) and the phrase foreign exchange registration in respect of mergers and acquisitions by foreign investors in Items One and Three hereof cover the following circumstances:四、 国家外汇管理局关于完善外资并购外汇管理有关问题的通知(汇发【2005】11号)第三条所称“外资并购设立的外商投资企业外汇登记”及本通知第一条、第三条所称“外资并购外汇登记”包括以下情形：(1) where a foreign investor purchases by agreement the equity of a Chinese party in a Chinese-invested enterprise in China, converting the domestically-invested enterprise into a foreign-invested enterprise, the foreign-invested enterprise shall carry out foreign exchange registration, and the foreign investor shall carry out the procedures for registration of foreign capital and foreign exchange in respect of foreign exchange received in connection with an equity transfer;(一) 外国投资者协议购买境内中资企业中方股权，将内资企业变更为外商投资企业，该外商投资企业应当办理外汇登记，外国投资者应当办理转股收汇外资外汇登记；(2) where a foreign investor purchases by agreement the equity of a Chinese party in a foreign-invested enterprise in China, the original foreign-invested enterprise shall carry out the procedures for the amendment of foreign exchange registration, and the foreign investor shall carry out the procedures for registration of foreign capital and foreign exchange in respect of foreign exchange received in connection with an equity transfer;(二) 外国投资者协议购买境内外商投资企业中方股权，原外商投资企业办理外汇登记变更，外国投资者办理转股收汇外资外汇登记；(3) where a foreign investor contributes to the capital increase of a domestic enterprise, the domestic enterprise shall carry out the procedures for the foreign exchange registration of a foreign-invested enterprise or for the amendment of foreign exchange registration;(三) 外国投资者向境内企业增资，境内企业办理外商投资企业外汇登记或外汇登记变更；(4) where a foreign investor establishes a foreign-invested enterprise in China and purchases by agreement through such foreign-invested enterprise the assets of a domestic enterprise and operates such assets, or a foreign investor purchases by agreement the assets of a domestic enterprise and uses such assets to invest in and establish a foreign-invested enterprise to operate such assets, the newly established foreign-invested enterprise shall carry out foreign exchange registration; and(四) 外国投资者境内设立外商投资企业，并通过该企业协议购买境内企业资产且运营该资产，或外国投资者协议购买境内企业资产，并以该资产投资设立外商投资企业运营该资产，新设外商投资企业办理外汇登记；(5) where a foreign investor establishes a new foreign-invested enterprise in China and, by agreement, obtains control through such foreign-invested enterprise of a domestic enterprise or the right to the returns derived from, or a franchise of, a certain asset, the newly established foreign-invested enterprise shall carry out foreign exchange registration.(五) 外国投资者境内新设外商投资企业，并通过该企业协议控制境内其他企业或某项资产的收益权、特许经营权，新设外商投资企业办理外汇登记。5. When carrying out foreign exchange registration procedures, a newly established foreign-invested enterprise shall submit a registration application to the foreign exchange authority of the place where it is located. The enterprise shall specify in detail on its application the party ultimately in control of the foreign investor and the track record of its core businesses. If the party ultimately controlling the foreign investor or the track record of its core businesses is unclear, the enterprise shall state on its application: No individual domestic resident or domestic organization directly or indirectly holds shares in the foreign investor of the company. If any false or misleading statement is given in order to fraudulently obtain foreign exchange registration, the company and its legal representative are willing to bear the legal consequences arising therefrom.五、 新设外商投资企业在办理外汇登记时，应向所在地外汇局提交登记申请书，企业应在申请书中详细说明外国投资者的最终控制人和主要经营业绩。外国投资者最终控制人和主要经营业绩不明的，企业应在申请书中注明：“本公司外国投资者没有直接或间接地被境内居民个人或境内机构持股，如存在虚假、误导性陈述骗取外汇登记的行为，本公司及其法定代表人愿意承担由此而导致的法律后果。”6. If an individual domestic resident or a domestic organization directly or indirectly holds shares in an offshore enterprise but fails to carry out foreign exchange registration in respect of offshore investments in accordance with provisions, all foreign exchange branches and offices may not carry out registration of foreign capital and foreign exchange for the domestic enterprise acquired by the offshore enterprise. If a foreign-invested enterprise uses such means as giving false or misleading statements, etc. in order to fraudulently obtain registration of foreign capital and foreign exchange, once discovered, its liability for evasion of foreign exchange control in respect of the outward remittances of profits and other capital account amounts effected from the date of its registration shall be pursued.六、 境内居民个人直接或间接持有以及境内机构直接持有境外企业股份，但未按规定办理境外投资外汇登记，各分局、外汇管理部不得为该境外企业并购的境内企业办理外资外汇登记。以虚假、误导性陈述等手段骗取外资外汇登记的外商投资企业，一经发现，追究其自登记之日起所汇出利润和其他资本项目款项的逃汇责任。7. Domestic enterprises are forbidden from paying profits, or paying monies derived from liquidation, equity transfers, reductions in capital, etc. to an offshore enterprise in which an organization in China or an individual domestic resident directly or indirectly holds shares and for which foreign exchange registration in respect of offshore investments, amendment of registration or record filing has not been completely carried out. Violations shall be treated as evasions of foreign exchange control.七、 禁止境内企业向由境