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上海市外商投资企业审批条例 Shanghai Municipality, Examination and Approval of Foreign Investment Enterprises Regulations

2006-05-15 22:24   我要纠错 | 打印 | 收藏 | | |

(Promulgated on 4 September 1996, and effective as of 1 October 1996.)
颁布日期:19960904  实施日期:19961001  颁布单位:上海市人大常委会

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in accordance with laws and regulations such as the PRC, Sino-foreign Equity Joint Ventures Law, the PRC, Sino-foreign Co-operative Joint Ventures Law and the PRC, Wholly Foreign-owned Enterprises Law etc. and in the light of the actual circumstances of Shanghai Municipality, in order to widen the scope of opening to the outside world, to broaden foreign economic and technical cooperation and to facilitate the establishment of foreign investment enterprises in Shanghai Municipality by Chinese and foreign investors.

  Article 2 For the purposes of these Regulations, the term “foreign investment enterprises” shall mean Sino-foreign equity joint venture enterprises, Sino-foreign co-operative joint venture enterprises and wholly foreign-owned enterprises.

  These Regulations shall apply to the establishment of foreign investment enterprises in Shanghai Municipality and to any amendment of their contracts and articles of association after establishment.

  Article 3 Foreign investors are encouraged to establish the following foreign investment enterprises in Shanghai Municipality:

  1. those that use advanced technology or equipment, or scientific management methods;

  2. those that can enhance product grades and expand the international market;

  3. those able to advance the modernization of Shanghai Municipality.

  Applications will not be approved if establishment of the foreign investment enterprise would:

  1. jeopardize State security or harm the public interest;

  2. pollute the environment or be detrimental to human health; or

  3. violate laws and regulations.

  Article 4 The Shanghai Municipal People's Government (the “Municipal People's Government”) shall formulate and publish a Shanghai guide for the direction of foreign investment and a Shanghai catalogue for guiding foreign investment in industry in accordance with the Directing of Foreign Investment Tentative Provisions and the Foreign Investment Industrial Guidance Catalogue promulgated by the State and in the light of the actual circumstances of Shanghai Municipality.

  Chinese and foreign investors shall choose investment projects on the basis of the guide for the direction of foreign investment and the catalogue for guiding foreign investment in industry published by Shanghai Municipality.

  Article 5 The Shanghai Municipal Foreign Investment Commission (the “Municipal Foreign Investment Commission”) shall be in charge of the examination and approval of foreign investment enterprises in Shanghai Municipality.

  The Municipal Foreign Investment Commission, the Pudong New Area Administrative Committee, the Waigaoqiao Bonded Zone Administrative Committee, the district and county People's Governments and other relevant department of the Municipal People's Government (collectively, the “Examination and Approval Authority”) shall be responsible for the examination and approval of foreign investment enterprises to be established in Shanghai Municipality, in accordance with the limits of authority prescribed by the State and Shanghai Municipality.

  Projects which laws and regulations require to be examined and approved by relevant departments of the State Council shall be submitted to the higher authorities after preliminary examination by the Municipal Foreign Investment Commission in conjunction with the Shanghai Municipal Planning Commission or Shanghai Municipal Economic Commission.

  PART TWO ESTABLISHMENT OF FOREIGN INVESTMENT ENTERPRISES

  Section 1: Sino-foreign Equity Joint Ventures

  Article 6 After a Chinese investor and a foreign investor have determined an intent to establish an equity joint venture, they shall carry out a preliminary feasibility study for the proposed joint venture project. The Chinese investor shall draw up the written project proposal and its annexes, submit them to the Examination and Approval Authority for examination and approval and send copies to the relevant authorities.

  The relevant authorities shall submit preliminary examination notes to the Examination and Approval Authority within 10 days of receiving the written project proposal and its annexes.

  Article 7 The Examination and Approval Authority shall decide whether or not to grant approval within 20 days of receiving the written project proposal and its annexes and send copies of its decision made upon examination to the relevant authorities.

  When Examination and Approval Authorities other than the Municipal Foreign Investment Commission send copies of their decision made upon examination to the relevant authorities, they shall also send a copy to the Municipal Foreign Investment Commission.

  Article 8 If approved, the written project proposal shall form a basis for drawing up the feasibility study. In this respect, the project proposal shall be valid for one year. If it is necessary to extend the term of validity for special reasons, the Chinese investor shall submit an application to the original Examination and Approval Authority 30 days prior to the expiration of the term. If approved, the term of validity may be extended provided that the extension does not exceed half a year.

  Article 9 Upon approval of the written project proposal, the Chinese and foreign investors shall carry out procedures for advance examination and approval of the name of the joint venture enterprise with the administration for industry and commerce.

  Article 10 Upon approval of the written project proposal, the Chinese and foreign investors shall determine, item by item, matters such as arrangements for the funding, site, technology, equipment, raw materials, foreign exchange receipts and expenditures and infrastructure facilities for the project and analyze and appraise market sales, planned site selection, environmental protection, labour protection and economic benefits etc. On this basis, they shall jointly draw up the feasibility study, conclude a joint venture contract and articles of association, and submit the same to the Examination and Approval Authority for examination and approval.

  Fixed assets, current assets, intangible assets and other assets to be invested at a fixed value by the Chinese or foreign investor shall be subject to asset appraisal in accordance with relevant State regulations.

  Where laws and regulations require that relevant contents of the feasibility study, the contract and the articles of association undergo prior examination by the relevant authorities, the consent of the relevant authorities must be obtained.

  Article 11 The Examination and Approval Authority shall decide whether or not to grant approval within 30 days of receiving the feasibility study, the contract, the articles of association and their annexes.

  Article 12 Upon approval of the feasibility study, the contract and the articles of association, the Chinese investor shall obtain an approval certificate from the Examination and Approval Authority on the strength of the relevant documents.

  The Examination and Approval Authority shall issue the approval certificate within three days of of receiving relevant documents.

  Section 2: Sino-foreign Co-operative Joint Ventures

  Article 13 The submission of documents for, and examination and approval of, Sino-foreign co-operative joint ventures to be established by Chinese and foreign investors shall be handled in the light of the provisions of Articles 6 to 12 hereof.

  Section 3: Wholly Foreign-owned Enterprises

  Article 14 The submission of documents for, and examination and approval of, wholly foreign-owned enterprises to be established by foreign investors shall be handled in the light of the provisions of Articles 6 to 12 hereof.

  To establish a wholly foreign-owned enterprise, a foreign investor shall, in accordance with relevant State regulations, entrust matters such as the filing of applications and submission of documents for approval etc. to a consulting agency that has the appropriate qualifications.

  PART THREE AMENDMENT OF THE CONTRACTS FOR AND ARTICLES OF ASSOCIATION OF FOREIGN INVESTMENT ENTERPRISES

  Section 1: Sino-foreign Equity Joint Ventures

  Article 15 The assignment by a joint venture party of all or a portion of its capital contribution to another joint venture party shall, upon unanimous approval and adoption of a resolution at a meeting of the board of directors of the enterprise, be submitted to the original Examination and Approval Authority for approval.

  The assignment by a joint venture party of all or a portion of its capital contribution to an investor that is not a party to the joint venture shall be subject to the written consent of the other joint venture party or parties and shall, upon unanimous approval and adoption of a resolution at a meeting of the board of directors of the enterprise, be submitted to the original Examination and Approval Authority for approval.

  Upon approval of an application to assign a capital contribution, the joint venture parties shall promptly amend the contract for and articles of association of the enterprise and submit them to the original Examination and Approval Authority for approval.

  Article 16 Any increase in the registered capital of an equity joint venture shall, upon unanimous approval and adoption of a resolution at a meeting of the board of directors of the enterprise, be submitted to the original Examination and Approval Authority for approval.

  If the increased registered capital for which application is made is beyond the limit of examination and approval authority of the original Examination and Approval Authority, the original Examination and Approval Authority shall forward the application to the Examination and Approval Authority at a higher level for examination and approval.

  An equity joint venture may not normally reduce its registered capital during its term of operation. If there are truly legitimate grounds for reducing the registered capital, the matter shall be submitted to the original Examination and Approval Authority for approval, in accordance with relevant State regulations.

  Article 17 Modification of the scope of business of an equity joint venture may, provided that the registered capital subscribed by each joint venture party has been paid in on schedule, be submitted to the original Examination and Approval Authority for approval.

  If the modified scope of business for which application is made is beyond the limit of examination and approval authority of the original Examination and Approval Authority, the original Examination and Approval Authority shall forward the application to the Examination and Approval Authority at a higher level for examination and approval.

  Article 18 Any extension of the joint venture term jointly requested by all the joint venture parties shall be submitted to the original Examination and Approval Authority for examination and approval six months prior to the expiration of the joint venture term.

  If all the joint venture parties jointly request early termination of the contract, the matter shall, upon unanimous approval and adoption of a resolution at a meeting of the board of directors of the enterprise, be submitted to the original Examination and Approval Authority for approval.

  If certain of the joint venture parties request early termination of the contract in accordance with State regulations or as agreed in the contract, the matter shall be submitted to the original Examination and Approval Authority for approval.

  After a joint venture is dissolved upon approval, liquidation shall be carried out as specified in laws and regulations.

  Article 19 If, when a joint venture changes joint venture parties, it also needs to modify its registered capital and/or scope of business and/or term of operation, application shall first be made to change the joint venture party, and then, upon the approval of the original Examination and Approval Authority, application shall be made to modify other items.

  Article 20 The modification of contents of the contract for and articles of association of a joint venture other than those specified in Articles 15 to 19 hereof shall be handled as specified in laws and regulations.

  Article 21 The Examination and Approval Authority shall decide whether or not to grant approval within 30 days of receiving a written application for a modification specified in Articles 15 to 20 hereof and its annexes.

  Section 2: Sino-foreign Co-operative Joint Ventures

  Article 22 Amendment of the contracts for and articles of association of Sino-foreign co-operative joint ventures shall be handled in the light of the provisions of Articles 15 to 21 hereof.

  Section 3: Wholly Foreign-owned Enterprises

  Article 23 Amendment of the articles of association of wholly foreign-owned enterprises shall be handled in the light of the provisions of Articles 15 to 21 hereof.

  PART FOUR LEGAL LIABILITY

  Article 24 If, in the course of applying to establish a foreign investment enterprise, to amend the contract for or articles of association of the enterprise or to terminate the contract early, the Chinese investor and/or the foreign investor conceals the true situation or resorts to deception, the Examination and Approval Authority may refuse to accept the application, deny approval or revoke the approval certificate. If the concealment or deception results in consequences, the matter shall be dealt with by the relevant authorities according to law.

  Article 25 If, in the course of examination and verification or examination and approval, the Examination and Approval Authority or a relevant authority violates laws, regulations or these Regulations, it shall bear legal liability therefor.

  Article 26 If a member of the working personnel of the Examination and Approval Authority or a relevant authority is derelict in his duties, practices graft, or solicits or accepts bribes in the course of examination and verification or examination and approval, administrative punishment shall be imposed. If such dereliction, graft or solicitation or acceptance of bribes constitutes a criminal offense, criminal liability shall be pursued according to law.

  Article 27 If a Chinese investor and/or a foreign investor or a foreign investment enterprise is dissatisfied with a decision in respect of verification or approval made by the Examination and Approval Authority upon examination or with a specific administrative act of a relevant authority, the investor or the enterprise may apply for administrative review or initiate administrative procedure in accordance with the Administrative Review Regulations and the PRC, Administrative Procedure Law.

  PART FIVE SUPPLEMENTARY

  Article 28 Chinese and foreign investors that wish to establish enterprises in Shanghai Municipality using other forms of investment shall carry out procedures for examination and approval in accordance with relevant State regulations and the relevant provisions hereof.

  Article 29 Chinese and foreign investors shall carry out registration procedures with, and obtain a business license from, the administration for industry and commerce within 30 days of obtaining the approval certificate of the foreign investment enterprise. The date of issuance of the business license shall be the date of establishment of the enterprise.

  Foreign investment enterprises shall carry out relevant procedures with the tax authorities, Customs, exchange control authorities, etc. within 30 days from the date of issuance of the business license.

  Article 30 The establishment of enterprises in Shanghai Municipality by companies, enterprises, other economic organizations or individuals from the regions of Hongkong, Macao and Taiwan or by Chinese citizens who have settled abroad shall be handled with reference to these Regulations.

  Article 31 The Municipal Foreign Investment Commission shall formulate detailed implementing rules in accordance with these Regulations, which shall be implemented upon submission to and approval by the Municipal People's Government.

  The Municipal Foreign Investment Commission shall be responsible for the interpretation of questions relating to the specific implementation of these Regulations.

  Article 32 These Regulations shall be effective as of 1 October 1996. The Shanghai Municipality, Application for and Examination and Approval of Sino-foreign Equity Joint Ventures, Sino-foreign Co-operative Joint Ventures and Wholly Foreign-owned Enterprises Provisions adopted at the 22nd Meeting of the Standing Committee of the 8th Shanghai Municipal People's Congress on 20 June 1986 shall be repealed at the same time.

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