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关于外国企业在中华人民共和国境内从事建设工程设计活动的管理暂行规定 Administration of Foreign Enterprises Engaging in Construction Work Design Activities in the People's Republic of China Tentative Provisions

2006-05-12 21:42   我要纠错 | 打印 | 收藏 | | |

建市[2004]78号

(Promulgated by the Ministry of Construction on 10 May 2004 and effective 30 days after the date of promulgation.)

颁布日期:20040510  实施日期:20040610  颁布单位:建设部

  Article 1 : These Provisions are formulated in accordance with the PRC, Construction Law, the Administration of Construction Survey and Design Regulations, the Administration of the Quality of Construction Works Regulations, the Invitation and Submission of Bids for Survey and Design of Construction Projects Procedures, and other laws, regulations and rules, in order to standardize the administration of foreign enterprises engaging in construction work design activities in the People's Republic of China.

  Article 2 For the purpose of these Provisions, a “foreign enterprise” shall mean an enterprise that is established outside the People's Republic of China and that engages in construction work design activities.

  Article 3 A foreign enterprise that provides construction work design services such as preparation of preliminary design (fundamental design) and construction drawing design (detailed design) documents for construction work in the People's Republic of China in the form of cross-border product delivery shall comply with these Provisions.

  These Provisions shall not apply to the provision of conceptual designs prepared prior to preliminary designs (fundamental designs) for construction work.

  Article 4 Where a foreign enterprise intends to engage in construction work design in the People's Republic of China, it must select at least one Chinese design enterprise with construction work design qualification granted by the administrative authority in charge of construction (Chinese Design Enterprise) to engage in Sino-foreign cooperative design (Cooperative Design), and shall undertake design business within the scope specified in the qualification permit of the selected Chinese Design Enterprise.

  Article 5 The construction design contract for a Cooperative Design project shall be executed with the developer in the name of the Chinese Design Enterprise as a party to the Cooperative Design, or in the joint name of the Chinese and foreign design enterprises. Such contract shall provide in detail the rights and obligations of all parties, and shall be written in Chinese language.

  Article 6 The developer shall be responsible for conducting a preliminary qualification examination on whether the foreign enterprise as a party to the Cooperative Design possesses design ability. Only a foreign enterprise that fulfils the criteria of the preliminary qualification examination may participate in the Cooperative Design.

  Article 7 When conducting preliminary qualification examination of foreign enterprises, the developer may request the foreign enterprise to provide the following valid documentary proofs for its ability to satisfy the needs of the construction project, which shall be prepared in the official language of the home jurisdiction of the foreign enterprise and submitted with Chinese language translation:

  1. enterprise registration certificate issued by the competent authority of the home jurisdiction;

  2. proof of creditworthiness and enterprise insurance policy issued by the financial authority of the home jurisdiction;

  3. certification for the track record for project design of the enterprise issued by the competent authority, or the relevant professional association or notary agency, of the home jurisdiction;

  4. certification for the design permit issued by the competent authority or professional association of the home jurisdiction;

  5. certificate for ISO9000 quality standard certification issued by the international organization;

  6. résumés, identity certificate, certification for the highest academic qualification, and certification for practice registration of all technical personnel participating in the design of the Chinese project;

  7. the letter of intent for Cooperative Design with the Chinese Design Enterprise; and

  8. other relevant documents.

  Article 8 To engage in Cooperative Design with a selected Chinese Design Enterprise, a foreign enterprise must enter into a Cooperative Design agreement pursuant to the relevant laws and regulations of China, which shall provide their respective rights and obligations. The Cooperative Design agreement shall include a Chinese language version.

  Such Cooperative Design agreement shall include the following particulars:

  1. enterprise names and place of registration of the parties to the Cooperative Design, as well as the names, nationality, identity certificate numbers, domiciles and contact details of the enterprise legal representatives;

  2. description, address and scale of the construction project;

  3. scope, term and mode of the Cooperative Design, as well as the required details, depth, quality and schedule of the design work;

  4. division of design tasks, rights and obligations between the parties to the Cooperative Design;

  5. fee structure and distribution of the Cooperative Design, and tax liability;

  6. liability for breach of agreement, and methods for resolving disputes arising from the agreement;

  7. conditions precedent to the effectiveness of the agreement, and date and venue of the agreement; and

  8. other matters stipulated by the parties.

  Article 9 The construction design contract (copy), Cooperative Design agreement (copy) and documents (photocopies) specified in Article 7 hereof shall be submitted to the administrative authority in charge of construction of the province where the project is located for record filing.

  Article 10 To undertake construction work design in China, a foreign enterprise must comply with the compulsory construction work standards and design document preparation requirements issued by the Chinese government.

  In the absence of such compulsory construction work standards, Article 5 of the Supervision of the Implementation of Compulsory Construction Work Standards Provisions (Ministry of Construction Decree No. 81) shall apply.

  Article 11 : Sino-foreign Cooperative Design documents required to be submitted to the relevant authorities of the Chinese government for examination according to the PRC, Construction Law and the PRC, Urban Planning Law shall meet the following requirements:

  1. to be submitted in Chinese language;

  2. to comply with the provisions on preparation of construction work design documents of China;

  3. to be prepared using the statutory measuring units of China;

  4. the front cover of the preliminary design (fundamental design) documents shall indicate the description of the project and enterprise names of the parties to the Cooperative Design, and the first page shall indicate the enterprise names of the parties to the Cooperative Design, and the names of their respective legal representatives, key responsible technical persons and project managers, and their seals;

  5. the endorsements entered into construction drawing design documents shall include the enterprise names of the parties to the Cooperative Design, and shall be signed by the relevant designers, with other matters to be handled according to the provisions on issuance of construction design documents of China;

  6. preliminary design (fundamental design) documents and construction drawing design (detailed design) documents shall, as required by provisions, be examined and verified and affirmed by, and affixed with the signatures and seals of, registered Chinese architects and/or engineers, and further inscribed with the seal of the Chinese Design Enterprise before they may become effective design documents;

  In respect of a discipline where practice registration system is absent, design documents shall be examined and verified, affirmed and signed by the responsible technical persons in such discipline of the Chinese Design Enterprise, and subsequently inscribed with the seal of the Chinese Design Enterprise, before they may become effective design documents.

  Article 12 In relation to its construction work design undertaking in China, a foreign design enterprise shall charge design fees with reference to the charging standards for design of China, and shall pay tax to the Chinese government pursuant to the relevant laws of China.

  Where the Chinese Design Enterprise is required to examine and verify the design documents provided by the foreign enterprise according to the national standards and sign a confirmation opinion, the parties shall determine upon consultation the fees for examination and verification, and confirmation, in line with the international practices or pursuant to the work actually performed.

  Article 13 These Provisions shall, mutatis mutandis, apply to design entities from the Hong Kong and Macao Special Administrative Regions and the Taiwan region that engage in construction work design activities in mainland China.

  Article 14 Foreign enterprises that violate these Provisions shall be subject to penalty by the relevant authorities of the Chinese government according to the relevant laws, regulations and rules, with such unfavourable records to be published in relevant media, and notified to the government and professional association of its home jurisdiction.

  Article 15 A foreign enterprise shall not be permitted to engage in design work for any confidential projects, salvation projects or projects other than those open to foreigners as committed by the Chinese government.

  Article 16 These Provisions shall be implemented 30 days after the date of promulgation.

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