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中外合作经营企业外国合作者先行回收投资审批办法 Examination and Approval of Advance Recovery of Investment by Foreign Party to Sino-foreign Cooperative Joint Ventures Procedures

2006-05-12 17:18   我要纠错 | 打印 | 收藏 | | |

(Promulgated by the Ministry of Finance on 9 June 2005 and effective as of 1 September 2005.)

颁布日期:20050609  实施日期:20050901  颁布单位:财政部

  Article 1 These Procedures have been formulated in accordance with the relevant provisions of the PRC, Sino-foreign Cooperative Joint Venture Law, the PRC, Administrative Licensing Law and the PRC, Sino-foreign Cooperative Joint Venture Law Implementing Rules in order to standardize the examination and approval of advance recovery of investment by foreign parties to Sino-foreign cooperative joint ventures (hereafter, “advance recovery of investment”)。

  Article 2 These Procedures apply to matters relating to advance recovery of investment by foreign parties to Sino-foreign cooperative joint ventures established in the People‘s Republic of China.

  Article 3 For the purposes of the Procedures, the term “advance recovery of investment” means the act of the foreign party to a Sino-foreign cooperative joint venture (hereafter, “cooperative joint venture”) of recovery of its investment in advance during the cooperation term by receiving funds from depreciation of fixed assets and amortization of intangible assets as well as other methods in accordance with the provisions of laws and the stipulations in the contract.

  Article 4 To apply for advance recovery of investment, a cooperative joint venture shall meet the following conditions:

  (1) the Chinese and foreign parties have agreed in the contract of the cooperative joint venture that, upon expiration of the cooperation term, all fixed assets of the enterprise following the liquidation of the enterprise shall belong to the Chinese party without compensation;

  (2) the cooperative joint venture has issued a letter of undertaking to undertake that the repayment of its debts shall have priority over the advance recovery of investment;

  (3) the foreign party of the advance recovery of investment has issued a letter of undertaking to undertake that it shall assume joint and several liability for the debts of the cooperative joint venture to the extent of its advance recovery of investment;

  (4) the cooperative joint venture has made capital contribution in full according to law and the stipulations of the contract; and

  (5) the cooperative joint venture is in good operating and financial status and its losses have been offset.

  Article 5 The examination and approval authority for advance recovery of investment shall be the finance authority of the province, autonomous region, municipality directly under the central government or municipality with independent development plans (hereafter, the “finance authority”) in which the enterprise is located.

  Article 6 If a cooperative joint venture applies for advance recovery of investment, it shall submit the following materials to the finance authority:

  (1) the application letter of the cooperative joint venture stating specifically the total amount, term and form of advance recovery of investment;

  (2) the approval certificate for foreign-invested enterprises, the industry and commerce business licence (original and copy) and their photocopies;

  (3) photocopies of the contract and the articles of association of the cooperative joint venture;

  (4) the capital verification report of the cooperative joint venture issued by a certified public accountant in China; and

  (5) the resolution of the board of directors or the joint management authority of the cooperative joint venture on the proposal of advance recovery of investment for the current period, the financial and accounting reports audited according to law of the cooperative joint venture for the period in which the proposed recovery of investment is to be carried out, a statement of the maturing debts of the cooperative joint venture, the letters of undertaking for debts issued by the cooperative joint venture and the foreign party, etc.

  Article 7 The finance authority shall examine the materials submitted by the applying cooperative joint venture and, if the materials are incomplete or not in statutory format, notify the applicant either on the spot or within five days of all the materials and contents to be supplemented or corrected in one time. If no such notification is made within the time limit, the application shall be deemed accepted as at the date of receipt of the materials.

  Article 8 If the submitted materials are complete and in statutory format, or if the applying cooperative joint venture has submitted all the supplementary and corrected materials as required, the application shall be accepted.

  Whether the finance authority accepts or does not accept the application, it shall issue a written receipt affixed with its special seal and dated to the applying cooperative joint venture.

  Article 9 The finance authority shall render an examination and approval decision within 20 days of acceptance of the application of the cooperative joint venture. If it is unable to render such decision within 20 days, the time period may be appropriately extended for not more than 10 days subject to the approval of the responsible person of the finance authority, and the applying cooperative joint venture shall be notified of the reason for such extension.

  Upon approval of the application, the finance authority shall copy its approval reply and the letters of undertaking submitted by the cooperative joint venture and the foreign party to the commerce authority and the foreign exchange authority at the same level.

  Article 10 If the application of the cooperative joint venture satisfies statutory requirements and standards, the finance authority shall issue a written decision to approve advance recovery of investment in accordance with the law.

  If the finance authority issues a written decision on refusal to grant administrative licence, it shall state the reasons therefor and notify the applying cooperative joint venture of its right to apply for administrative review or to institute administrative proceedings in accordance with the law.

  Article 11 If the finance authority and its personnel fail to perform their duties in accordance with the law, they shall bear the legal liability according to Articles 72, 73 and 74 of the PRC, Administrative Licensing Law and other relevant provisions of laws and regulations.

  Article 12 If a cooperative joint venture conceals the relevant information or provides false materials in the application for advance recovery of investment, the finance authority shall not accept or approve the application and shall issue a warning.

  Article 13 If a cooperative joint venture obtains approval for advance recovery of investment by fraud, bribery or other improper means, the finance authority shall revoke its examination and approval decision and impose administrative penalty in accordance with the law.

  Article 14 If an applying cooperative joint venture objects to the finance authority‘s decision on rejection (of application), denial of administrative licence or (imposition of) administrative penalty, it may apply for administrative review or institute administrative proceedings in accordance with the law.

  Article 15 Advance recovery of investment in relation to cooperative joint ventures established by companies, enterprises and other economic organizations or individuals of the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan region, or by Chinese citizens residing abroad shall be handled with reference to these Procedures.

  Article 16 These Procedures shall be implemented as of 1 September 2005.

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