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国家外汇管理局关于境内居民个人境外投资登记及外资并购外汇登记有关问题的通知 Issues Relevant to Registration of Overseas Investment by Individual Residents in China and Foreign Exchange Registration for Merger and Acquisition with Foreign Investment Circular

2006-05-12 19:07   我要纠错 | 打印 | 收藏 | | |

汇发[2005]29号(Issued by the State Administration of Foreign Exchange on 4 April 2005.)

颁布日期:20050408  实施日期:20050408  颁布单位:国家外汇管理局

  To State Administration and Foreign Exchange (SAFE) Branch Offices and Foreign Exchange Control Departments in all provinces, autonomous regions and municipalities directly under the central government, and SAFE Branch Offices at Shenzhen, Dalian, Qingdao, Xiamen and Ningbo:

  In order to maintain the balance of payment and to ensure the lawful and orderly flow of cross-border capital, we hereby issue the following Circular on issues concerning the registration of overseas investment by individual residents in China and foreign exchange registration for merger and acquisition with foreign investment:

  1. In the case of any individual resident in China that injects his domestic assets or equities in an overseas enterprise and directly or indirectly holds equities or shares of such overseas enterprise, if the latest affiliated transaction of merger and acquisition with foreign investment of the domestic enterprise subject to merger and acquisition (or an enterprise set up for such purpose) was conducted before 24 January 2005, and the domestic enterprise subject to merger and acquisition has obtained the approval document for the establishment of a foreign-invested enterprise before such date, the individual resident shall, as per the form in the appendix, undergo foreign exchange registration for overseas investment with SAFE bureau where the enterprise subject to merger and acquisition is located.

  Individual residents that have not completed registration with SAFE bureau shall not be allowed to make overseas investment or undertake foreign exchange business in capital items.

  2. After completion of foreign exchange registration for overseas investment, upon the occurrence of any major event in relation to the overseas enterprise in which a individual resident in China directly or indirectly holds equities, such as an increase or reduction in capital, transfer of equities, merger, division, external equity investment, or external guarantee involving domestic assets, the individual resident that directly or indirectly holds the largest equities in such foreign enterprise shall, within 30 days of the occurrence of any such major event, complete foreign exchange registration alteration or record filing formalities with the SAFE bureau where he has completed the overseas investment registration.

  3. Where a individual resident in China has completed foreign exchange registration for overseas investment of the foreign enterprise in which he holds shares, the SAFE branch offices or foreign exchange control departments may handle foreign exchange registration for overseas investment of such foreign enterprise in respect of its transaction of merger and acquisition of a domestic enterprise before 24 January 2005.

  4. “Foreign exchange registration for foreign-invested enterprise established by way of merger and acquisition with foreign investment” referred to in Item 3 of the State Administration of Foreign Exchange, Issues Relevant to Improving Foreign Exchange Control on Merger and Acquisition with Foreign Investment Circular (Hui Fa [2005] No. 11) and “foreign exchange registration for merger and acquisition with foreign investment” referred to in Articles 1 and 3 hereof shall include the following circumstances:

  (1) Where a foreign investor agrees to purchase the equities of a Chinese party in a Chinese-funded enterprise and transforms such Chinese-funded enterprise into a foreign-invested enterprise, the foreign-invested enterprise shall undergo foreign exchange registration, and the foreign investor shall undergo foreign exchange registration for overseas investment in which foreign exchange funds are received for the transfer of equities;

  (2) Where a foreign investor agrees to purchase the equities of a Chinese party in a foreign-invested enterprise, the original foreign-invested enterprise shall undergo formalities for change of foreign exchange registration, and the foreign investor shall undergo foreign exchange registration for overseas investment in which foreign exchange funds are received for the transfer of equities;

  (3) Where a foreign investor invests in a domestic enterprise by way of capital increase, the domestic enterprise shall undergo formalities for foreign exchange registration or alteration thereof for the foreign-invested enterprise;

  (4) Where a foreign investor establishes a foreign-invested enterprise in China, and agrees to purchase and operate the assets of a domestic enterprise through such foreign-invested enterprise, or the foreign investor agrees to purchase the assets of a domestic enterprise and invests in establishing a foreign-invested enterprise by such assets for the operation thereof, the newly-established foreign-invested enterprise shall undergo formalities for foreign exchange registration;

  (5) Where a foreign investor newly establishes a foreign-invested enterprise in China, and agrees to control another enterprise in China or holds any right to the revenue or franchise operation of a particular asset through such foreign-invested enterprise, the newly-established foreign-invested enterprise shall undergo formalities for foreign exchange registration.

  5. In completing formalities for foreign exchange registration, a newly established foreign-invested enterprise shall submit a registration application form to the local SAFE bureau, stating in detail the ultimate controlling party and the principal business performance of the foreign investor. Where the ultimate controlling party and the principal business performance of the foreign investor are unknown, the foreign-invested enterprise shall indicate in the application form that “the shares of the foreign investor of our company are not directly or indirectly held by any individual resident in China or domestic institution. If any false or misleading representation is made to obtain foreign exchange registration, our company and its legal representative are willing to assume any and all legal consequences resulting therefrom.”

  6. Where a individual resident in China directly or indirectly holds any shares in an foreign enterprise or a domestic institution directly holds any shares in an foreign enterprise, and he/it fails to undergo foreign exchange registration for overseas investment as stipulated, the SAFE branch offices and foreign exchange control departments may not handle foreign exchange registration for overseas investment of the domestic enterprise merged or acquired by such foreign enterprise. Where a foreign-invested enterprise illegally obtains foreign exchange registration by means of false or misleading representations, if the case is detected, the liability for foreign exchange evasion of such foreign-invested enterprise will be pursued for all dividend payments and money of other capital items remitted outwards from the date of its registration.

  7. Domestic enterprises are forbidden to pay dividends or funds for liquidation, share transfer or capital reduction to a foreign enterprise directly or indirectly held by domestic institutions or individual residents in China, which has failed to undergo foreign exchange registration, alteration or record filing for overseas investment. Any violation shall be handled as an act of foreign exchange evasion.

  8. Except for overseas listed enterprises, special-purpose companies may not retain foreign exchange proceeds. Foreign exchange income directly received by an individual resident in China or indirectly received through a special-purpose company shall, within 30 days of receipt, be fully transferred to China for foreign exchange settlement. Any violation shall be handled as an act of foreign exchange evasion. A “special-purpose company” shall mean a foreign enterprise directly or indirectly controlled by a individual resident in China set up for the purpose of fund raising outside China for the domestic enterprise actually controlled by such individual resident in China.

  9. This Circular shall be effective as of the date of issue.

  Appendix: Registration Form for Overseas Investment by Individual Residents in China

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