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外商投资租赁业管理办法 Administration of Foreign Investment in the Leasing Industry Procedures

2006-05-12 19:20   我要纠错 | 打印 | 收藏 | | |

商务部令2005年第5号

(Promulgated by the Ministry of Commerce on 3 February 2005 and effective as of 5 March 2005.)

颁布日期:20050203  实施日期:20050305  颁布单位:商务部

  Article 1 These Procedures have been formulated in accordance with the PRC, Contract Law, the PRC, Company Law, the PRC, Wholly Foreign-owned Enterprise Law, the PRC, Sino-foreign Equity Joint Venture Law, the PRC, Sino-foreign Cooperative Joint Venture Law and other relevant laws and regulations in order to promote the healthy development of foreign investment in the leasing industry, regulate the business activities of foreign investment in the leasing industry and safeguard against business risks.

  Article 2 These Procedures apply to the establishment of foreign-invested enterprises by foreign companies, enterprises and other economic organizations (Foreign Investors) in the form of Sino-foreign equity joint venture, Sino-foreign cooperative joint venture and wholly foreign ownership in the People‘s Republic of China to engage in leasing business or finance leasing business, and their operation of business activities.

  Article 3 Foreign investment in the leasing industry may take the form of limited liability company or company limited by shares.

  Foreign-invested enterprises that engage in leasing business are foreign-invested leasing companies. Foreign-invested enterprises that engage in finance leasing business are foreign-invested finance leasing companies.

  Article 4 Foreign-invested leasing companies and foreign-invested finance leasing companies shall comply with the relevant laws, regulations and rules of the People‘s Republic of China. Their legitimate business activities and lawful rights and interests shall be protected by the Chinese law.

  The Ministry of Commerce shall be the competent industry authority and the examination and approval administrative authority for foreign investment in the leasing industry.

  Article 5 For the purposes of these Procedures, the term “leasing business” shall mean the business whereby the lessor delivers the leased property to the lessee for use and benefits, and collects rent from the lessee therefor.

  For the purposes of these Procedures, the term “finance leasing business” shall mean the business whereby the lessor purchases the leased property from a vendor based on the selection of leased property and vendor by the lessee, provides such property to the lessee for use, and collects rent from the lessee.

  Foreign-invested finance leasing companies may carry out finance leasing business by means of direct leasing, sub-leasing, leasing back, leveraged leasing, entrusted leasing, joint leasing, etc.

  Article 6 For the purposes of these Procedures, the term “leased property” shall include:

  1. various types of movable property such as production equipment, communications equipment, medical equipment, scientific research equipment, inspection and testing equipment, engineering machinery and equipment, and office equipment;

  2. means of transportation such as airplanes, motor vehicles and vessels; and

  3. intangible assets such as software and technologies accompanying the movable property and means of transportation specified in Items (1) and (2) of this Article, provided that the value of such intangible assets does not exceed half of the value of the leased property.

  Article 7 The total assets of the foreign investor of foreign-invested leasing companies and foreign-invested finance leasing companies shall not be less than US$5 million.

  Article 8 Foreign-invested leasing companies shall satisfy the following conditions:

  1. the registered capital complies with the relevant provisions of the Company Law;

  2. compliance with the relevant provisions on the registered capital and total amount of investment of foreign-invested enterprises; and

  3. in the case of a foreign-invested leasing company in the form of limited liability company, the term of operation shall not exceed 30 years in general.

  Article 9 Foreign-invested finance leasing companies shall satisfy the following conditions:

  1. the registered capital shall not be less than US$ 10 million;

  2. in the case of a foreign-invested finance leasing company in the form of limited liability company, the term of operation shall not exceed 30 years in general; and

  3. have the appropriate professionals, and the senior management personnel have the corresponding professional qualification and not less than three years‘ experience in the business.

  Article 10 To establish a foreign-invested leasing company or a foreign-invested finance leasing company, the following materials shall be submitted to the examination and approval authority:

  1. an application form;

  2. the feasibility study report signed by each investor;

  3. the contract and the articles of association (in the case of a wholly foreign-owned enterprise, only the articles of association shall be submitted);

  4. the bank certificate of creditworthiness, registration certificate (photocopy) and the identity document (photocopy) of the legal representative, of each investor;

  5. the audit report for the most recent year of each investor audited by an accounting firm;

  6. the list of members of the board of directors, and the instruments of appointment of directors of each investor;

  7. proof of qualifications of the senior management personnel; and

  8. the notice of preliminary approval of enterprise name issued by the administration for industry and commerce.

  To apply for the establishment of a company limited by shares, the applicant shall also submit other materials as required by the relevant provisions.

  Article 11 Establishment of foreign-invested leasing companies and foreign-invested finance leasing companies shall be handled according to the following procedure:

  1. To establish a foreign-invested leasing company in the form of a limited liability company, the investor shall submit all materials specified in Article 10 hereof to the department in charge of commerce at the provincial level at the place where the enterprise is to be established. The department in charge of commerce at the provincial level shall decide whether or not to approve the application within 45 working days of the date of receipt of all application materials. If it approves the application, it shall issue an Approval Certificate for Foreign-invested Enterprises. If it does not grant approval, it shall state the reasons therefor in writing. The department in charge of commerce at the provincial level shall submit the approval document to the Ministry of Commerce within seven working days of approving the establishment of the foreign-invested leasing company for record filing. The establishment of foreign-invested leasing companies in the form of company limited by shares shall be handled according to the relevant provisions.

  2. To establish a foreign-invested finance leasing company, the investor shall submit all materials specified in Article 10 hereof to the department in charge of commerce at the provincial level at the place where the enterprise is to be established. The department in charge of commerce at the provincial level shall, after preliminary examination of the application materials submitted, submit the application materials together with a preliminary examination opinion to the Ministry of Commerce within 15 working days of the date of receipt of all application materials. The Ministry of Commerce shall decide whether or not to approve the application within 45 working days of the date of receipt of all application materials. If it approves the application, it shall issue an Approval Certificate for Foreign-invested Enterprises. If it does not grant approval, it shall state the reasons therefor in writing.

  3. If an existing foreign-invested enterprise applies to engage in leasing business, it shall satisfy the conditions specified herein and change its scope of business accordingly in accordance with the law and pursuant to the procedure stipulated in Item (1) of this Article.

  Article 12 Foreign-invested leasing companies and foreign-invested finance leasing companies shall complete registration procedures with the administration for industry and commerce within 30 working days of the date of receipt of the Approval Certificate for Foreign-invested Enterprises.

  Article 13 Foreign-invested leasing companies may conduct the following businesses:

  1. leasing business;

  2. purchase of leased property in and outside China;

  3. realization of residual value, and maintenance of leased property; and

  4. other businesses approved by the examination and approval authority.

  Article 14 Foreign-invested finance leasing company may conduct the following businesses:

  1. finance leasing business;

  2. leasing business;

  3. purchase of leased property in and outside China;

  4. realization of residual value, and maintenance of leased property;

  5. lease transaction consultancy and security services; and

  6. other businesses approved by the examination and approval authority.

  Article 15 If the leased property to be imported by a foreign-invested finance leasing company on the basis of the selection of the lessee is subject to special policy administration such as quota or licensing, the lessee or the finance leasing company shall carry out application procedures in accordance with the relevant provisions.

  Import of leased property by foreign-invested leasing companies shall be handled according to the current provisions on import of equipment by foreign-invested enterprises.

  Article 16 The risk assets of a foreign-invested finance leasing company shall not, in general, exceed ten times of its total net assets, in order to safeguard against risks and ensure safe business operation. Risk assets shall be determined on the basis of the total assets of the enterprise less cash, bank deposits, government bonds and entrusted lease assets.

  Article 17 Foreign-invested finance leasing companies shall, before March 31 each year, submit to the Ministry of Commerce a business operation report for the previous year and a financial report for the previous year audited by an accounting firm.

  Article 18 The Leasing Business Committee of China Association of Enterprises with Foreign Investment is the industry organization responsible for administering self-regulation by foreign-invested leasing industry. Foreign-invested leasing companies and foreign-invested finance leasing companies are encouraged to join the said committee.

  Article 19 If a foreign-invested leasing company or a foreign-invested finance leasing company violates laws, regulations and rules of China, it shall be handled in accordance with the relevant provisions.

  Article 20 The establishment of foreign-invested leasing companies and foreign-invested finance leasing companies in the mainland by companies, enterprises and other economic organizations from the Hong Kong Special Administrative Region, the Macao Special Administrative Region and the Taiwan region shall be handled with reference to these Procedures.

  Article 21 For the purposes of these Procedures, a “department in charge of commerce” at the provincial level shall mean the department in charge of commerce of provinces, autonomous regions, municipalities directly under the central government, municipalities with independent development plans and the Xinjiang Production and Construction Corps.

  Article 22 The Ministry of Commerce shall be responsible for the interpretation of these Procedures.

  Article 23 These Procedures shall be implemented as of 5 March 2005. Order No. 3 of 2001 of the former Ministry of Foreign Trade and Economic Cooperation, Administration of the Examination and Approval of Foreign-funded Leasing Companies Tentative Procedures, shall be repealed simultaneously.

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