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关于外商投资举办投资性公司的规定 Establishment of Companies with an Investment Nature by Foreign Investors Provisions

2006-05-12 20:32   我要纠错 | 打印 | 收藏 | | |

商务部令2004年第22号

(Promulgated by the Ministry of Commerce on 23 November 2004 and effective 30 days after the date of promulgation.)

颁布日期:20041117  实施日期:20041217  颁布单位:商务部

  Article 1 In order to promote investment in China by foreign investors and attract foreign advanced technology and management expertise, foreign investors are permitted to establish companies with an investment nature in China in accordance with the relevant laws and regulations of China on foreign investment and these Provisions.

  Article 2 For the purposes of these Provisions, the term “company with an investment nature” shall refer to a company established in China by a foreign investor either in the form of a wholly foreign-owned company or a joint venture in conjunction with a Chinese investor engaged in direct investments. The company shall take the form of a limited liability company.

  Article 3 The application for the establishment of a company with an investment nature shall satisfy the following conditions:

  1. (a) the foreign investor shall have good credit standing, financial capability necessary for the establishment of a company with an investment nature, a total asset value of no less than US$400 million in the year prior to the application, and the investor shall also have established foreign-invested enterprise(s) in China with a capital contribution of more than US$10 million of the registered capital actually paid in; or

  (b) the foreign investor shall have good credit standing, the financial capability required for the establishment of a company with an investment nature; have already established 10 or more foreign-invested enterprises, with a capital contribution of more than US$30 million of the registered capital actually paid in;

  2. where a company with an investment nature is established in the form of a joint venture, the Chinese investor shall have good credit standing and the financial capability necessary for the establishment of a company with an investment nature and the investor's total asset value shall be no less than Rmb 100 million in the year prior to the application; and

  3. the registered capital of a company with an investment nature shall not be less than US$30 million.

  A foreign investor applying to establish a company with an investment nature shall be a foreign company, enterprise or economic organization. If there are two or more foreign investors, at least one of them shall be a foreign investor that holds a majority equity interest and complies with Item (1) of Paragraph One of this Article.

  Article 4 A foreign investor that satisfies the conditions specified in Item (1) of Paragraph One of Article 3 hereof may invest in and establish a company with an investment nature in the name of its wholly-owned subsidiary.

  Article 5 A foreign investor that satisfies the conditions specified in Item (1) of Paragraph One of Article 3 hereof applying to establish a company with an investment nature must provide the examination and approval authority with a letter of guarantee on the payment of registered capital by the company with an investment nature it established at the time it invests in China and on the technology transfer belonging to the said foreign investor or its affiliated company (companies)。

  Where a parent company invests in and establishes a company with an investment nature in the name of its wholly-owned subsidiary, it must provide the examination and approval authority with a letter of guarantee on the payment of registered capital of the company with an investment nature it established by its subsidiary in accordance with the conditions approved by the examination and approval authority, and on the payment of registered capital by the company with an investment nature at the time it invests in China and the technology transfer belonging to the parent company and its subsidiary.

  Article 6 When applying to establish a company with an investment nature, an investor shall submit the following documents to the Ministry of Commerce for examination and approval after such documents have been examined and consented to by the department in charge of commerce of the province, autonomous region, municipality directly under the central government or municipality with an independent development plan where such company with an investment nature is to be established:

  1. the application report, contract and articles of association signed by all investment parties that establish a company with an investment nature in the form of a joint venture;

  the application form for foreign-invested enterprises, feasibility study report and articles of association signed by the foreign investor that establishes a company with an investment nature in the form of a wholly foreign-owned company;

  2. the supporting documents on the creditworthiness of the investment parties as well as (photocopies of) the supporting documents of registration and legal representatives;

  3. (photocopies of) the approval certificate(s), business licence(s) and the capital contribution verification report(s) issued by a Chinese certified accountant of the enterprise(s) invested by the foreign investor;

  4. balance sheets, audited in accordance with the law, of the investment parties for the past three years;

  5. a letter of guarantee to be submitted in accordance with Article 5 hereof; and

  6. other documents required by the Ministry of Commerce.

  The afore-mentioned documents shall be originals except where indicated as copies.

  Where a document is not signed by a legal representative, a power of attorney from such legal representative shall be provided.

  Where an agency established in accordance with the law is appointed to handle application procedures, a power of attorney signed by a legal representative of the investor shall be provided.

  Article 7 A foreign investor shall contribute capital to the registered capital of a company with an investment nature in a freely convertible currency or with Renminbi profits gained in China or with lawful income in Renminbi derived from activities such as equity transfer and liquidation. The Chinese investor may contribute capital in Renminbi. Where a foreign investor contributes capital to the registered capital of a company with an investment nature with its lawful income in Renminbi, it shall submit the relevant supporting documents and tax receipts. The capital contribution shall be fully paid in within two years of the date of issue of the business licence.

  Article 8 At least US$30 million of the registered capital of companies with an investment nature shall be used as capital contributions to the foreign-invested enterprises invested in and newly established by them, or as contributions to the capital that have not been fully paid in or increases in capital of foreign-invested enterprises already invested in and established by their parent companies or affiliated companies (and for which procedures for the assignment of equity have been completed according to law), or be used as investment in the establishment of organizations such as research and development centres, or be used to purchase the equity of shareholders of domestic companies in China (excluding the equity formed as a result of the capital contribution already paid in full by the parent company or affiliated companies of the company with an investment nature)。

  Article 9 Where the registered capital of a company with an investment nature is not less than US$30 million, the amount of loans it takes out may not exceed four times the amount of registered capital already paid in. Where the registered capital of a company with an investment nature is not less than US$100 million, the amount of loans it takes out may not exceed six times the amount of registered capital already paid in. If, due to business requirements, a company with an investment nature intends to have its amount of loans exceed the amount prescribed above, it shall obtain the approval of the Ministry of Commerce.

  Article 10 After a company with an investment nature has been approved to be established by the Ministry of Commerce, it may engage in the following businesses according to the actual needs of business activities in which it engages in China:

  1. investment in sectors in which foreign investment is permitted by the State;

  2. appointed in writing (subject to a unanimous resolution of the board of directors) by its investee enterprise to provide the following services to such enterprise:

  (1) assisting or acting as agent for its investee enterprise in the purchase of machinery, equipment and office equipment for the own use of such enterprise and in the purchase of raw materials, spare parts and components required for production from inside and outside China, and in the sale of products inside and outside China produced by such enterprise, as well as providing after-sale services;

  (2) balancing foreign exchange among its investee enterprises with the consent and under the supervision of the administration of foreign exchange;

  (3) providing services such as technical support, employee training and internal personnel management of enterprise in the course of production, sales and marketing of products to its investee enterprises; and

  (4) assisting its investee enterprises in raising loans and providing guarantees.

  3. setting up scientific research and development centre or department in China to engage in research and development of new products and high and new technology, assign its achievements of research and development and provide corresponding technical services;

  4. providing its investors with consultancy services, and providing its affiliated company (companies) with such consultancy services as market information and investment policies related to their investment; and

  5. undertaking service outsourcing business of its parent company and affiliated company (companies)。

  Article 11 Where a company with an investment nature engages in the import and export of goods or technology, it shall comply with the provisions of the Record Filing and Registration of Foreign Trade Operators Procedures of the Ministry of Commerce;

  Where a company with an investment nature engages in commission agency, wholesale, retail and franchising activities, it shall comply with the relevant provisions of the Administration of Foreign Investment in Commercial Sectors Procedures of the Ministry of Commerce, and shall change the corresponding scope of business in accordance with the law.

  Article 12 For the purposes of these Provisions, the phrase “investee enterprise of a company with an investment nature” shall refer to an enterprise that satisfies the following conditions:

  1. an enterprise invested by a company with an investment nature directly or in conjunction with other foreign and/or Chinese investor(s), and the ratio of the investment of the foreign investor alone or in conjunction with the investment of other foreign investor(s) in the company with an investment nature is more than 25% of the registered capital of such enterprise;

  2. an established enterprise in China whose equity interests, owned by the investor(s) in a company with an investment nature or by its affiliated company (companies), other foreign investor(s) and investors in China, are partly or entirely acquired by the company with an investment nature, and the investment of the foreign investor alone, or the joint amount of investment of the foreign investor(s) and that of other foreign investor(s) in the company with an investment nature accounts for more than 25% of the registered capital of such enterprise; or

  3. the amount of investment of a company with an investment nature is not less than 10% of the registered capital of the enterprise invested in and established by it.

  Article 13 Subject to the approval by the China Banking Regulatory Commission, a company with an investment nature may provide financial support to enterprises invested in and established by it.

  Article 14 Companies with an investment nature may act as sponsors in sponsoring and establishing foreign-funded companies limited by shares or to hold unlisted non-floating legal person shares of foreign-funded companies limited by shares. Companies with an investment nature may also hold unlisted non-floating legal person shares of other domestic companies limited by shares in accordance with the relevant State provisions. Companies with an investment nature shall be deemed to be foreign sponsors or shareholders of companies limited by shares.

  Article 15 If, after a company with an investment nature is established, it has operated in accordance with the law and has no record of violations of the law, and the registered capital has been paid in on schedule in accordance with the articles of association, and the amount of registered capital actually paid in by the investors is not less than US$30 million and has been used for the purposes specified in Article 8 hereof, it may, subject to the examination and consent of the department in charge of commerce of the province, autonomous region, municipality directly under the central government or city with independent development plans where it is located, engage in the following businesses according to the actual needs of business activities in which it engages in China after it has applied to the Ministry of Commerce and the application has been approved:

  1. appointed in writing (subject to a unanimous resolution of the board of directors) by its investee enterprise to engage in the following businesses:

  (1) act as a distributor on the domestic and foreign markets for the products produced by its investee enterprise; and

  (2) provide transportation, warehousing and other such comprehensive services to its investee enterprise.

  2. export domestic merchandise according to the relevant State provisions by acting as an agent or distributor, or by establishing an export procurement organization (including internal organization), and may handle refund for exports according to the relevant provisions;

  3. purchase the products of its investee enterprise and, after effecting system integration, sell such products domestically and abroad. If the products of its investee enterprise are not able to completely satisfy the requirements of system integration, it shall be permitted to procure ancillary system integration products domestically and abroad, provided that the value of such procured products does not exceed 50% of the value of all the products required to effect system integration;

  4. provide relevant technical training to the domestic distributors and agents for the products of its investee enterprise and to the domestic companies and enterprises with which it, its parent company or its affiliated company has entered into technology transfer agreements;

  5. in order to carry out market development for the products of an investee enterprise before such enterprise comes on stream or before a new product of an investee enterprise enters into production, companies with an investment nature are permitted to import from their parent companies, for trial sale in China, products of their parent companies that are related to the products to be produced by the investee enterprise;

  6. provide commercial leasing services of machinery and office equipment to its investee enterprise or establish commercial lease financing company according to law;

  7. provide after-sale services for the products produced by its parent company;

  8. participate in overseas project contracting of Chinese enterprises that have the right to engage in foreign project contracting; and

  9. sell (excluding retail) in China the products of its parent companies imported by it.

  Article 16 A company with an investment nature that imports products according to Items (3) and (5) of Article 15 shall complete formalities according to the relevant State provisions. The aggregate value of the afore-mentioned imports each year may not exceed the amount of registered capital that the company has already paid in.

  Article 17 Where a company with an investment nature applies to engage in the businesses specified in Article 15 hereof, it shall submit the following documents to the Ministry of Commerce:

  1. an application signed by the legal representative of the company with an investment nature;

  2. the resolution of the board of directors of the company with an investment nature;

  3. the amended articles of association of the company with an investment nature;

  4. (photocopies of) the approval certificate, (photocopies of) the business licence and the capital contribution verification report issued by a Chinese certified accountant of the company with an investment nature;

  5. the capital contribution verification report of the investee enterprise issued by a Chinese certified accountant; and

  6. other documents required by the Ministry of Commerce.

  Article 18 The term of a company with an investment nature shall be determined according to the nature of the project to be established by the company with an investment nature and on the basis of the relevant State regulations on the term of operation of foreign-invested enterprises.

  Article 19 The establishment of an enterprise by a company with an investment nature shall be submitted and approved individually in accordance with the limits of authority and procedures for the examination and approval of foreign-invested enterprises.

  Article 20 Where a company with an investment nature invests in and establishes an enterprise in which the ratio of the investment of the foreign investor alone or in conjunction with that of other foreign investor(s) is not less than 25% of the registered capital of such enterprise, such enterprise shall enjoy preferential treatment as a foreign-invested enterprise, and a foreign-invested enterprise approval certificate and business licence shall be issued. Where the ratio of capital contribution is less than 25%, examination and approval and registration shall be carried out according to the existing examination and approval and registration procedures for establishment of foreign-invested enterprises, unless stipulated otherwise by laws or administrative regulations.

  Article 21 The establishment of any branch by a company with an investment nature shall be submitted to the Ministry of Commerce for examination and approval. To apply for the establishment of a branch, a company with an investment nature must satisfy the following conditions:

  1. the registered capital of the company with an investment nature has been paid on schedule in accordance with the provisions of the contract and articles of association and the amount of capital contribution already paid in is not less than US$30 million, or the company with an investment nature has already invested in and established or owns 10 or more foreign-invested enterprises; and

  2. the region in which the branch is to be established is a region in which the company with an investment nature has concentrated its investment or its product sales.

  Article 22 Companies with an investment nature that are qualified may apply to be recognized as the regional headquarters of a multinational corporation (Regional Headquarters) and handle the amendment procedures according to law.

  1. A company with an investment nature that applies to be recognized as a Regional Headquarters shall satisfy the following conditions:

  (1) the registered capital already paid in shall not be less than US$100 million; or, the registered capital already paid in shall not be less than US$50 million, the total asset value of its investee enterprise in the year prior to the application shall not be less than Rmb 3 billion, and the total amount of profit shall not be less than Rmb 100 million (calculated according to the relevant provisions on consolidated statements);

  (2) satisfy the provisions stipulated in Article 8 hereof; and

  (3) have already established research and development organization according to the relevant provisions.

  2. A company with an investment nature that is recognized as a Regional Headquarters may engage in the following businesses according to the actual needs of business activities in which it engages in China:

  (1) the businesses specified in Articles 10 and 15 hereof;

  (2) import and sell (excluding retail) in China products of the multinational corporation and the affiliated companies in which it holds a controlling share;

  (3) import raw and auxiliary materials, and spare parts and components required for providing maintenance services for products of its investee enterprise and the multinational corporation;

  (4) undertake service outsourcing business of domestic and foreign enterprises;

  (5) engage in logistics and distribution services according to the relevant provisions;

  (6) upon the approval of the China Banking Regulatory Commission, establish finance companies to provide relevant financial services to the company with an investment nature and its investee enterprise;

  (7) upon the approval of the Ministry of Commerce, engage in overseas project contracting businesses and overseas investment, and establish lease financing company and provide the relevant services;

  (8) entrust other domestic enterprises with the production and/or processing of its products or the products of its parent company, and the sale of such products inside and outside China; and

  (9) other businesses upon approval.

  3. Application procedure:

  (1) the company with an investment nature shall submit an application to the department in charge of commerce of the province, autonomous region, municipality directly under the central government or municipality with an independent development plans where it is located, and shall submit the same to the Ministry of Commerce after preliminary verification;

  (2) the Ministry of Commerce shall render an official reply within 30 days of the date of receipt of all application documents. If the company is recognized as a Regional Headquarters, it shall be issued a foreign-invested enterprise approval certificate (with the notation of “Regional Headquarters”); and

  (3) the company with an investment nature shall handle the amendment registration procedures with the administration for industry and commerce within 30 days on the strength of the approval certificate.

  4. Application documents:

  (1) an application signed by the legal representative of the company with an investment nature;

  (2) the resolution of the board of directors or the shareholders' meeting of the company with an investment nature and the multinational corporation;

  (3) the amended articles of association/contract of the company with an investment nature;

  (4) (photocopies of) the approval certificate, (photocopies of) the business licence and the capital contribution verification report issued by a Chinese certified accountant of the company with an investment nature;

  (5) (photocopies of) the approval certificate, (photocopies of) the business licence of the investee enterprise;

  (6) the capital contribution verification report of the investee enterprise issued by a Chinese certified accountant;

  (7) the major financial statements of the company with an investment nature audited by a Chinese certified accountant; and

  (8) other documents required by the Ministry of Commerce.

  The afore-mentioned documents shall be originals except where indicated as copies.

  The “multinational corporation” referred to in this Article means the parent company of the group of companies to which the foreign investor of the company with an investment nature belongs.

  Article 23 The investment activities of a company with an investment nature in China shall not be restricted to the place of registration of the company.

  Article 24 Companies with an investment nature shall pay taxes in accordance with the relevant laws and regulations of China.

  Article 25 A company with an investment nature shall zealously implement its project investment plans and shall submit details of its investments and operations for each year in accordance with the prescribed contents and format to the Ministry of Commerce for the record within the first three months of the following year. The afore-mentioned materials shall constitute part of the materials that the company with an investment nature is required to submit for joint annual inspections.

  Article 26 A company with an investment nature and the enterprise(s) invested in and established by it are legal persons or entities independent of one another. The business transactions between the company with an investment nature and enterprise(s) shall be treated as business transactions between independent enterprises.

  Article 27 A company with an investment nature and the enterprise(s) invested in and established by it shall abide by the laws, regulations and rules of China, and shall not employ any means to avoid administration and tax payments.

  Article 28 Companies with an investment nature shall not directly engage in production activities.

  Article 29 These Provisions shall apply to investors from Taiwan, Hong Kong and Macao that invest in and establish companies with an investment nature in the mainland.

  Article 30 The Ministry of Commerce shall be responsible for interpretation of these Provisions.

  Article 31 These Provisions shall be implemented 30 days after the date of promulgation.

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