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技术引进和设备进口贸易工作管理暂行办法 Administration of Trade in Importation of Technology and Equipment Tentative Procedures

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[1996]外经贸技发第201号
(Promulgated by the Ministry of Foreign Trade and Economic Co-operation on, and effective as of, 22 March 1996.)
颁布日期:19960322  实施日期:19960322  颁布单位:对外贸易经济合作部

  PART ONE GENERAL PROVISIONS

  Article 1 These Procedures are formulated in order to meet the needs of developing the socialist market economy, to promote the healthy development of technology and equipment imports, to maintain order in the technology and equipment import business, to regulate the technology and equipment import business, to improve the administration of technology and equipment import contracts and to establish an information system in respect of technology and equipment imports.

  PART TWO SCOPE OF APPLICATION

  Article 2 These Procedures shall apply to the obtaining of technology and/or equipment by legal persons (including Sino-foreign equity and co-operative joint ventures and wholly foreign-owned enterprises), natural persons and other organizations in the PRC from legal persons, natural persons and other organizations outside the PRC by means of trade or co-operation, including:

  1. licensing or assignment of patents;

  2. licensing or assignment of proprietary technology;

  3. import of computer software;

  4. licensing or assignment of trademarks involving the matters mentioned in Items (1) and (2) above;

  5. technical consultancy;

  6. technical services;

  7. co-operative designing, co-operative research, co-operative development;

  8. co-operative production;

  9. import of complete sets of equipment and production lines;

  10. import of key equipment;

  11. others.

  Article 3 The import of technology and/or equipment contributed as capital at the time of establishment of a Sino-foreign equity or co-operative joint venture or a wholly foreign-owned enterprise shall be handled in accordance with the PRC, Sino-foreign Equity Joint Venture Law and the Implementing Regulations issued thereunder.

  PART THREE AUTHORITIES FOR ADMINISTRATION OF TRADE IN CONNECTION WITH THE IMPORT OF TECHNOLOGY AND EQUIPMENT

  Article 4 The authorities for administration of trade in connection with the import of technology and equipment shall be the Ministry of Foreign Trade and Economic Co-operation of the PRC and the department, commission or bureau of foreign trade and economic co-operation of each province, autonomous region, centrally-governed municipality and special economic zone authorized by the said ministry (“Foreign Trade Administration Authorities”)。

  Article 5 The Ministry of Foreign Trade and Economic Co-operation shall be responsible for the administration of foreign trade in connection with any technology and/or equipment import projects approved by the functional departments of the State Council and enterprises with independent development plans authorized by the State Council. The Ministry of Foreign Trade and Economic Co-operation authorizes the department, commission or bureau of foreign trade and economic co-operation of each province, autonomous region, centrally-governed municipality and special economic zone to be responsible for the administration of foreign trade in connection with any technology and/or equipment import projects approved by the functional departments of the People's Governments of the provinces, autonomous regions, centrally-governed municipalities and special economic zones.

  Article 6 The Foreign Trade Administration Authorities shall participate in preparatory work such as the determination of technology import projects in accordance with the limits of their authority.

  PART FOUR ADMINISTRATION OF THE UNDERTAKING OF, OR ACTING AS AGENT FOR, TECHNOLOGY AND/OR EQUIPMENT IMPORT PROJECTS

  Article 7 A system shall be implemented under which the undertaking of, or acting as agent for, the handling of foreign-related commercial matters in connection with technology and/or equipment import projects is validated through registration.

  Article 8 Legal persons or organizations with the right to engage in foreign trade (“Foreign Trade Units”) may undertake on their own, or freely appoint other Foreign Trade Units as agents for, the handling of foreign-related commercial matters in connection with their technology and/or equipment import projects.

  Legal persons or organizations without the right to engage in foreign trade may freely appoint Foreign Trade Units as agents for foreign-related commercial matters in connection with their technology and/or equipment import projects.

  The two parties shall enter into a formal agency agreement in accordance with the Foreign Trade Agency System Tentative Provisions promulgated by the Ministry of Foreign Trade and Economic Co-operation of the PRC on 29 August 1991.

  Article 9 After Foreign Trade Units undertake, or accept appointment as agents for, the handling of foreign-related commercial matters in connection with technology and/or equipment import projects, they shall register with the Foreign Trade Administration Authorities.

  Article 10 To register the undertaking of or acting as agent for a technology and/or equipment import project, the following conditions must be met:

  1. the applicant has the right to engage in foreign trade; and

  2. the application procedures for registration of the undertaking of or acting as agent for the technology and/or equipment import project have been completed (including the Registration Form for the Undertaking of or Acting As Agent for a Technology and/or Equipment Import Project and a photocopy of the agency agreement duly entered into by the parties)。

  Article 11 The Foreign Trade Administration Authorities shall decide whether or not to grant registration within 15 working days after receipt of a complete set of application documents.

  Article 12 After the registration procedures have been found to be in order, the Foreign Trade Administration Authorities shall issue the Registration Form for the Undertaking of or Acting As Agent for a Technology and/or Equipment Import Project after having added thereto the special seal for validation through registration and having given it a serial number.

  Registration Forms for the Undertaking of or Acting As Agent for a Technology and/or Equipment Import Project shall be centrally printed by the Ministry of Foreign Trade and Economic Co-operation.

  Article 13 After having obtained registration, Foreign Trade Units shall carry out the foreign-related commercial matters in connection with the project and, together with the project unit, carry out the respective procedures for the administration of technology and/or equipment imports in accordance with State regulations.

  Article 14 After registration of the undertaking of or acting as agent for a technology and/or equipment import project, if the relationship between the parties truly needs to be modified or rescinded, registration procedures shall be carried out anew with the Foreign Trade Administration Authorities or the registration with the Foreign Trade Administration Authorities shall be canceled.

  PART FIVE ADMINISTRATION OF TECHNOLOGY AND/OR EQUIPMENT IMPORT CONTRACTS

  Article 15 A system shall be implemented under which technology and/or equipment import contracts become effective upon registration, except where current laws and regulations of the State contain other, special provisions.

  Article 16 Technology and/or equipment import contracts which have been executed may not:

  1. violate relevant laws of the PRC;

  2. violate relevant provisions of the PRC, Administration of Technology Import Contract Regulations or the Implementing Rules issued thereunder; or

  3. violate international obligations undertaken by the PRC.

  Article 17 Foreign Trade Units shall apply to the Foreign Trade Administration Authorities for registration of a technology and/or equipment import contract within 30 days after the due execution thereof.

  Article 18 The following documents shall be produced when registering a technology and/or equipment import contract:

  1. a photocopy of the legal document showing that the work unit has the right to engage in foreign trade;

  2. a photocopy of the Registration Form for the Undertaking of or Acting as Agent for a Technology and/or Equipment Import Project; and

  3. a completed Application Form for Registration of a Technology and/or Equipment Import Contract.

  Article 19 Foreign Trade Administration Authorities shall decide whether or not to grant registration and entry into effect of a technology and/or equipment import contract within 30 working days of receiving a complete set of application documents for the registration of such contract.

  Article 20 After Foreign Trade Administration Authorities have verified a technology and/or equipment import contract and confirmed that it complies with regulations, they shall issue a Certificate of Registration and Entry Into Effect of a Technology and/or Equipment Import Contract centrally printed and numbered by the Ministry of Foreign Trade and Economic Co-operation.

  Article 21 Relevant State authorities shall carry out relevant procedures on the strength of the Certificates of Registration and Entry Into Effect of a Technology and/or Equipment Import Contract of the Foreign Trade Units.

  Article 22 Any change in a technology and/or equipment import contract that has been registered and become effective must be declared to the Foreign Trade Administration Authorities, which shall issue a Certificate of Amendment of a Technology and/or Equipment Import Contract upon verification of such declaration.

  Article 23 On the basis of the registrations of the undertaking of or acting as agent for technology and/or equipment import projects and the registrations of contracts, the Ministry of Foreign Trade and Economic Co-operation will publish a list of Foreign Trade Units with excellent business achievements, from which enterprises can make a selection.

  PART SIX ADMINISTRATION OF INFORMATION CONCERNING THE IMPORT OF TECHNOLOGY AND EQUIPMENT

  Article 24 Foreign Trade Administration Authorities shall, in accordance with the limits of their authority, collect, classify, store and analyze information concerning the import of technology and equipment by means of their administration of such imports and other appropriate methods.

  Article 25 The Ministry of Foreign Trade and Economic Co-operation shall be responsible for consolidating, classifying, analyzing and storing information concerning the import of technology and equipment throughout the country, and for exchanging and jointly publishing information on the import of technology and equipment with the State's overall economic management authorities. The Ministry of Foreign Trade and Economic Co-operation shall also be responsible for providing information concerning the import of technology and equipment for purposes of State policy-making.

  Article 26 Foreign Trade Units must report details of and information on technology and equipment imports to the Foreign Trade Administration Authorities in accordance with the above provisions, so as to provide a reliable basis for State decisions on overall policy.

  PART SEVEN LIABILITY AND PUNISHMENT

  Article 27 Any Foreign Trade Unit that fails to adhere to administration procedures concerning the import of technology and/or equipment in accordance with these Procedures will be subjected to the following punishments by the Foreign Trade Administration Authorities, depending on the seriousness of the case:

  1. circulation of a public notice of criticism;

  2. suspension of its qualifications to undertake or act as agent for technology and/or equipment import projects in certain fields and industries;

  3. suspension of its qualifications to undertake or act as agent for any technology and/or equipment import projects.

  The above-mentioned punishments may be imposed concurrently.

  Article 28 If a Foreign Trade Unit practices fraud in the registration of its undertaking of, or acting as agent for, a technology and/or equipment import project or when registering a technology and/or equipment import contract, the Foreign Trade Administration Authorities will impose the following punishments:

  1. cancellation of its qualifications to undertake or act as agent for technology and/or equipment import projects;

  2. cancellation of the registration of its technology and/or equipment import contract(s), and declaration of such contract(s) as being void.

  If the circumstances are so serious as to constitute a criminal offense, its criminal liability shall be pursued according to law.

  Article 29 A Foreign Trade Unit which is dissatisfied with a decision to impose administrative punishment may apply for reconsideration to the Administrative Reconsideration Office of the Ministry of Foreign Trade and Economic Co-operation in accordance with the relevant procedures set forth in the PRC, Administrative Review Regulations.

  Article 30 If working personnel of Foreign Trade Administration Authorities commit any violation of the law or breach of administrative discipline in the course of implementation of the system for administration of technology and equipment import contracts, their legal liability will be pursued according to law, or they will be subjected to administrative sanctions, in accordance with relevant laws and administrative regulations of the State.

  PART EIGHT SUPPLEMENTARY

  Article 31 Where technology and/or equipment import projects have been included in the State's technology import plan and are controlled accordingly, and the arrangement of funding sources or funding channels for such projects is the responsibility of the State Planning Commission, the State Economic and Trade Commission or any of the authorities in charge of industries, the foreign-related business activities in connection with such projects shall be handled in accordance with the principles and procedures set forth in the Administration of Undertaking or Acting as Agents for State Technology or Equipment Import Projects Procedures (document (1995) Wai Jing Mao Ji Fa No. 135)。

  Article 32 The Ministry of Foreign Trade and Economic Co-operation shall be responsible for the interpretation of these Procedures.

  Article 33 These Procedures shall be effective as of the date of promulgation.

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