国务院关于修改《中华人民共和国中外合资经营企业法实施条例》的决定 附：修正本 Regulations for the Implementation¹ of the Law of the People's Republic of China on Joint² Ventures Using Chinese and Foreign Investment国务院令第311号

颁布日期：20010722 　实施日期：20010722 　颁布单位：国务院

　　Decision of the State Council on Amending³ the Regulations for the Implementation of the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment

　　Regulations for the Implementation of the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment

　　Chapter 1 General Provisions

　　Chapter 2 Establishment and Registration⁴

　　Chapter 3 Form of Organization and Registered Capital

　　Chapter 4 Ways of Contributing Investment

　　Chapter 5 Board of Directors and Management Office

　　Chapter 6 Acquisition of Technology

　　Chapter 7 Right to the Use of Site and its Fee

　　Chapter 8 Purchasing and Selling

　　Chapter 9 Taxes

　　Chapter 10 Foreign Exchange Control

　　Chapter 11 Financial Affairs and Accounting⁵

　　Chapter 12 Staff and Workers

　　Chapter 13 Trade Union

　　Chapter 14 Duration, Dissolution and Liquidation⁶

　　Chapter 15 Settlement of Disputes

　　Chapter 16 Supplementary⁷ Provisions

　　Order of the State Council of the People's Republic of China (No. 311)

　　The Decision of the State Council on Amending the Regulations for the Implementation of the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment is hereby promulgated⁸, and shall come into force on the day of promulgation⁹.

　　July 22, 2001 Decision of the State Council on Amending the Regulations for the Implementation of the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment

　　In order to meet the needs of the new situation of China's opening to the outside world, and to further improve the investment environment for foreign businessmen, the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment is amended¹⁰ as follows according to the Decision on Amending the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment adopted at the fourth meeting of the Ninth National People's Congress on March 15, 2001:

　　1. Article 3 is amended as: “Joint ventures established within China's territory should be able to promote the development of China's economy and the raising of scientific and technological¹¹ levels for the benefit of socialist¹² modernization¹³.

　　The industries in which the establishment of joint venture is encouraged, permitted, restricted or prohibited shall follow the provisions of the state on guiding the direction of foreign investment and the guiding catalog of foreign-funded industries.”

　　2. Article 4 is deleted.

　　3. Article 6 is deleted.

　　4. Article 8 is amended as: “The establishment of a joint venture in China is subject to the examination and approval of the Ministry¹⁴ of Foreign Economic Relations and Trade of the People's Republic of China (hereinafter referred to as the Ministry of Foreign Economic Relations and Trade). Certificates of approval are to be issued by the Ministry of Foreign Economic Relations and Trade.

　　The State Council shall authorize¹⁵ the people's governments of the provinces, autonomous¹⁶ regions, and municipalities directly under the Central Government or the relevant departments under the State Council with the power to examine and approve the establishment of joint ventures that meet the following conditions:

　　(1) The total amount of investment is within the limit of power to examine and approve authorized¹⁷ by the State Council and the source of capital of the Chinese participants has been ascertained¹⁸;

　　(2) No additional allocations of raw materials by the state will be needed and the national balance in the aspects of fuel, power, transportation and foreign trade export quotas¹⁹ will not be affected²⁰.

　　The joint venture established after being approved according to the preceding paragraph shall be reported to the Ministry of Foreign Trade and Economic Cooperation for record.

　　The Ministry of Foreign Trade and Economic Cooperation, and the people's governments of the provinces, autonomous regions, and municipalities directly under the Central Government or the relevant departments under the State Council authorized by the State Council will hereinafter be referred to as “the examination and approval authority” in general.

　　5. Article 9 is amended as: “ When applying for the establishment of a joint venture, the Chinese and foreign participants shall jointly²¹ submit the following documents to the examination and approval authority:

　　1) Application for the establishment of a joint venture;

　　2) The feasibility study report jointly prepared by the participants;

　　3) Joint venture agreement, contract and articles of association signed by the representatives authorized by the participants;

　　4) List of candidates for chairman, vice-chairman and directors appointed by the participants; and

　　5) Other documents prescribed by the examination and approval authority.

　　The aforesaid documents shall be written in Chinese. Documents (2), (3) and (4) may be written simultaneously²² in a foreign language agreed upon by the participants. Both versions are equally authentic²³.

　　Should anything inappropriate be found in any of the documents submitted, the examination and approval authority shall demand an amendment²⁴ to it within a time limit.”

　　6. Article 11 is amended as: “The applicant²⁵ shall, within one month after receipt of the certificate of approval, register with the administrative²⁶ bureau for industry and commerce (hereinafter referred to as registration and administration office) in accordance with the relevant provisions of the state. The date on which its business license²⁷ is issued shall be regarded as the date of the establishment of a joint venture.”

　　7. Article 12 is deleted.

　　8. “The ratio of products sold within Chinese territory and outside China” in item (7) of the first paragraph of Article 14 is deleted; and item (8) of the first paragraph of Article 14 is deleted.

　　9. Article 22 is amended as: “A joint venture shall not reduce its registered capital during the term of the joint venture. If it is needed to reduce the registered capital because the total amount of investment and the production and business scale, etc, have changed, the approval of the examination and approval authority must be obtained.”

　　10. Article 26 is amended as: “The foreign currency contributed by the foreign participant shall be converted into Renminbi according to the base exchange rate announced by the People's Bank of China on the day of its submission²⁸ or be cross exchanged into a predetermined foreign currency.

　　Should the cash Renminbi contributed by the Chinese participant be converted into foreign currency, it shall be converted according to the base exchange rate announced by the People's Bank of China on the day of the submission of the funds.”

　　11. Article 27 is amended as: “ The machinery²⁹ equipment and other materials contributed as investment by the foreign participant shall be indispensable to the production of the joint venture.

　　The price fixed³⁰ for the machinery and other materials referred to in the preceding paragraph shall not be higher than the current international market price for the similar equipment or materials.”

　　12. Item (1) of Article 28 is deleted.

　　13. “Be examined and approved by the department in charge of Chinese participant” in Article 30 is deleted.

　　14. The second paragraph of Article 34 is deleted.

　　15. “Be examined and agreed to by the department in charge of the joint venture” in the first paragraph of Article 46 is deleted; item (1) of the second paragraph of Article 46 is amended as “Expenses for the use of technology shall be fair and reasonable”.

　　16. Article 53 is amended as: “A joint venture may obtain the right to the use of site not only according to the relevant provisions of the state but also according to the provisions of this Chapter.”

　　17. Article 54 is deleted.

　　18. Article 55 is deleted.

　　19. Article 56 is deleted.

　　20. “However, where conditions are the same it should give first priority to purchase in China” in Article 57 is deleted.

　　21. Article 58 is deleted.

　　22. Article 61 is deleted.

　　23. Article 64 is deleted.

　　24. Article 65 is amended as: “The price of materials purchased in China by joint ventures and the fees paid for water, electricity, gas, heat, goods transportation, service, engineering, consultation³¹ and advertisement etc, shall enjoy the equal treatment with that enjoyed by the other domestic enterprises.”

　　25. Article 66 is deleted.

　　26. Article 68 is amended as: “A joint venture shall provide statistical³² documents and submit statistical forms according to the Statistics Law of the People's Republic of China and to the provisions on the statistics system of utilization³³ of foreign investment of China.”

　　27. “Joint ventures shall be exempt³⁴ from customs duty and industrial and commercial consolidated³⁵ tax for the following imported materials” in Article 71 is amended as: “Taxes of the following imported materials of joint ventures shall be exempted³⁶ or reduced according to the relevant provisions of Chinese tax laws”.

　　28. Article 72 is amended as: “Except those export items restricted by the state, the taxes of products of a joint venture for export will be reduced, exempted or returned according to the relevant provisions of Chinese tax laws.”

　　29. Article 74 is amended as: “With the business license, a joint venture can open foreign exchange deposit accounts and Renminbi deposit accounts with domestic banks. The bank handling the account of the joint venture exercises supervision³⁷ of receipts and expenditures³⁸.”

　　30. Article 75 is deleted.

　　31. “Shall open an account with the Bank of China wherever there is a branch” in Article 77 is deleted.

　　32. Article 78 is amended as: “A joint venture can apply to domestic financial institutions for foreign loans and Renminbi loans according to its business needs, and can also borrow foreign exchange as capital from banks abroad or in Hong Kong or Macao, and shall go through the procedures for registration or record-keeping with the State General Administration of Foreign Exchange Control or one of its branches.”

　　33. “Apply to the Bank of China for permission to remit³⁹ outside China all the remaining foreign exchange” in Article 79 is amended as “purchase foreign exchanges and remit outside China according to the relevant provisions of the state”.

　　34. The second paragraph of Article 86 is amended as: “Joint ventures using a foreign currency in accounting shall work out a report of financial affairs and accounts in Renminbi.”

　　35. Article 89 is amended as: “A joint venture shall submit quarterly and annual fiscal⁴⁰ reports to the participants, the local tax authority, and financial department”.

　　36. “According to the Regulations of the People's Republic of China on Labour Management in Joint Ventures Using Chinese and Foreign Investment” in Article 91 shall be amended as “according to the state provisions related to labor⁴¹ and social security”.

　　37. Article 100 and Article 101 are combined and amended as: “The duration of a joint venture shall be implemented⁴² according to the Interim⁴³ Provisions on the Duration of Joint Ventures Using Chinese and Foreign Investment.”

　　38. The second paragraph of Article 102 is amended as: “In cases described in (2), (3), (4), (5) and (6) of the preceding paragraph, the board of directors shall make an application for dissolution to the examination and approval authority; in the case described in (3), the party performing the contract shall make an application to the examination and approval authority.”

　　39. Article 103 is amended as: “Liquidation shall be conducted upon announcement of the dissolution of a joint venture. The joint venture shall set up a liquidation commission according to the provisions of the Liquidation Measures of Foreign Funded Enterprises, which shall be responsible for the matters of liquidation.”

　　40. The second paragraph of Article 106 is amended as: “At the time when a joint venture is being dissolved, its net assets or remaining property, after the deduction⁴⁴ of the undistributed profit, various funds and liquidation expenses of the joint venture, that exceeds the registered capital is liquidation income, on which income taxes shall be levied⁴⁵ according to law.”

　　41. Article 110 is amended as: “In accordance with the relevant written agreement on arbitration⁴⁶, the participants may carry out arbitration at arbitration agencies in China, or at other arbitration agencies.”

　　42. “Departments in charge of joint ventures are responsible for handling applications and procedures” in Article 114 is amended as: “go through the procedures for going abroad (cross border) according to the relevant provisions of the state”.

　　43. “Paying regular customs duty and industrial and commercial consolidated tax on them” in Article 115 is amended as “paying taxes according to the relevant provisions of Chinese tax laws”.

　　44. Article 116 is amended as: “Joint ventures set up in the special economic zones shall abide⁴⁷ by the laws and administrative regulations otherwise provided, if any.”

　　45. Article 117 is deleted.

　　In addition, the statement of some clauses shall be amended correspondingly, and the order of the articles, clauses and items shall be adjusted correspondingly. This Decision shall come into force on the date of promulgation.。

　　Regulations for the Implementation of the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment shall be amended according to this Decision and be promulgated again.

Regulations for the Implementation of the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment

　　(Promulgated by the State Council on Sep. 20, 1983 Amended by the State Council on Jan.15 1986, Dec.21, 1987 Amended by the State Council according to the Decision of the State Council on Amending the Regulations for the Implementation of the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment on July 22, 2001)

　　Chapter 1 General Provisions

　　Article 1. The Regulations hereunder are formulated⁴⁸ with a view to facilitating the implementation of the Law of the People's Republic of China on Joint Ventures Using Chinese and Foreign Investment (hereinafter referred to as the Law on Chinese-Foreign Joint Ventures).

　　Article 2. Joint ventures using Chinese and foreign investment (hereinafter referred to as joint ventures) established within China's territory in accordance with the Law on Chinese-Foreign Joint Ventures are Chinese legal persons and are subject to the jurisdiction⁴⁹ and protection of Chinese law.

　　Article 3. Joint ventures established within China's territory should be able to promote the development of China's economy and the raising of scientific and technological levels for the benefit of socialist modernization.

　　The industries in which the establishment of joint venture is encouraged, permitted, restricted or prohibited shall follow the provisions of the state on guiding the direction of foreign investment and the guiding catalog of foreign-funded industries.

　　Article 4. Applicants⁵⁰ to establish joint ventures shall not be granted approval if the project involves any of the following conditions:

　　(1) Detriment⁵¹ to China's sovereignty;

　　(2) Violation⁵² of Chinese law;

　　(3) Nonconformity with the requirements of the development of China's national economy;

　　(4) Environmental pollution;

　　(5) Obvious inequity in the agreements, contracts and articles of association signed, impairing⁵³ the rights and interests of one party.

　　Article 5. A joint venture has the right to do business independently within the scope of the provisions of Chinese laws, decrees, and the agreement, contract and articles of association of the joint venture. The departments concerned shall provide support and assistance.

　　Chapter 2 Establishment and Registration

　　Article 6 The establishment of a joint venture in China is subject to the examination and approval of the Ministry of Foreign Economic Relations and Trade of the People's Republic of China (hereinafter referred to as the Ministry of Foreign Economic Relations and Trade). Certificates of approval are to be issued by the Ministry of Foreign Economic Relations and Trade.

　　The State Council shall authorize the people's governments of the provinces, autonomous regions, and municipalities directly under the Central Government or the relevant departments under the State Council with the power to examine and approve the establishment of joint ventures that meet the following conditions:

　　(1) The total amount of investment is within the limit of power to examine and approve authorized by the State Council and the source of capital of the Chinese participants has been ascertained;

　　(2) No additional allocations of raw materials by the state will be needed and the national balance in the aspects of fuel, power, transportation and foreign trade export quotas will not be affected.

　　The joint venture established after being approved according to the preceding paragraph shall be reported to the Ministry of Foreign Trade and Economic Cooperation for record.

　　The Ministry of Foreign Trade and Economic Cooperation, and the people's governments of the provinces, autonomous regions, and municipalities directly under the Central Government or the relevant departments under the State Council authorized by the State Council will hereinafter be referred to as “the examination and approval authority.

　　Article 7. When applying for the establishment of a joint venture, the Chinese and foreign participants in the joint venture shall jointly submit the following documents to the examination and approval authority:

　　1) Application for the establishment of a joint venture;

　　2) The feasibility study report jointly prepared by the participants;

　　3) Joint venture agreement, contract and articles of association signed by the representatives authorized by the participants;

　　4) List of candidates for chairman, vice-chairman and directors appointed by the participants; and

　　5) Other documents stipulated⁵⁴ by the examination and approval authority.

　　The aforesaid documents shall be written in Chinese. Documents (2), (3) and (4) may be written simultaneously in a foreign language agreed upon by the participants. Both versions are equally authentic.

　　Should anything inappropriate be found in any of the documents submitted, the examination and approval authority shall demand an amendment to it within a limited time.

　　Article 8. Upon receipt of the documents stipulated in Article 7 of these Regulations, the examination and approval authority shall, within three months, decide whether to approve or disapprove⁵⁵ them.

　　Article 9. The applicant shall, within one month after receipt of the certificate of approval, register with the administrative bureau for industry and commerce (hereinafter referred to as registration and administration office) in accordance with the relevant provisions of the state. The date on which its business license is issued shall be regarded as the date of the establishment of a joint venture.

　　Article 10. The "joint venture agreement" mentioned in these Regulations refers to a document agreed upon by the parties to the joint venture on some main points and principles governing the establishment of a joint venture.

　　"Joint venture contract" refers to a document agreed upon and concluded by the parties to the joint venture on their rights and obligations.

　　"Article of association" refers to a document agreed upon by the parties to the joint venture indicating the purpose, organizational principles and method of management of a joint venture in compliance⁵⁶ with the principles of the joint venture contract.

　　If the joint venture agreement conflicts with the contract, the contract shall prevail.

　　If the parties to the joint venture agree to sign only a contract and articles of association, the agreement can be omitted.

　　Article 11. The joint venture contract shall include the following main items:

　　(1) The names, the countries of registration, the legal address of parties to the joint venture, and the names, professions and nationalities of the legal representatives thereof;

　　(2) Name of the joint venture, its legal address, purpose and the scope and scale of business;

　　(3) Total amount of investment and registered capital of the joint venture, investment contributed by the parties to the joint venture, each party's investment proportion, forms of investment, the time limit for contributing investment, stipulations concerning incomplete contributions, and assignment of investment;

　　(4) The ratio of profit distribution and losses to be borne by each party;

　　(5) The composition of the board of directors, the distribution of the number of directors, and the responsibilities, powers and means of employment of the general manager, deputy general manager and high-ranking management personnel;

　　(6) The main production equipment and technology to be adopted and their source of supply;

　　(7) The ways and means of purchasing raw materials and selling finished products;

　　(8) Principles governing the handling of finance, accounting and auditing⁵⁷;

　　(9) Stipulations concerning labor management, wages, welfare, and labor insurance;

　　(10) The duration of the joint venture, its dissolution and the procedure for liquidation;

　　(11) The liabilities for breach⁵⁸ of contract;

　　(12) Ways and Procedures for settling disputes between the parties to the joint venture;

　　(13) The language used for the contract and the conditions for putting the contract into force.

　　The annex⁵⁹ to the contract of a joint venture shall be equally authentic with the contract itself.

　　Article 12. The formation of a joint venture contract, its validity, interpretation⁶⁰, execution and the settlement of disputes under it shall be governed by the Chinese law.

　　Article 13. Articles of association shall include the following main items:

　　(1) The name of the joint venture and its legal address;

　　(2) The purpose, business scope and duration of the joint venture;

　　(3) The names, countries of registration and legal addresses of parties to the joint venture, and the names, professions and nationalities of the legal representatives thereof;

　　(4) The total amount of investment, registered capital of the joint venture, each party's investment proportion, stipulations concerning the assignment of investment, the ratio of profit distribution and losses to be borne by parties to the joint venture;

　　(5) The composition of the board of directors, its responsibilities, powers and rules of procedure, the term of office of the directors, and the responsibilities of its chairman and vice-chairman;

　　(6) The setting up of management organizations, rules for handling routine affairs, the responsibilities of the general manager, deputy general manager and other high-ranking management personnel, and the method of their appointment and dismissal;

　　(7) Principles governing finance, accounting and auditing;

　　(8) Dissolution and liquidation;

　　(9) Procedures for amendment of the articles of association.

　　Article 14. The agreement, contract and articles of association shall come into force after being approved by the examination and approval authority. The same applies in the event of amendments⁶¹.

　　Article 15. The examination and approval authority and the registration and administration office are responsible for supervising and inspecting the execution of the joint venture contracts and articles of association.

　　Chapter 3 Form of Organization and Registered Capital

　　Article 16. A joint venture is a limited liability company.

　　Each party to the joint venture is liable to the joint venture within the limit of the capital subscribed⁶² by it.

　　Article 17. The total amount of investment (including loans) of a joint venture refers to the sum of capital construction funds and the circulating funds needed for the joint venture's production scale as stipulated in the contract and the articles of association of the joint venture.

　　Article 18. The registered capital shall generally be presented in total amount of investment registered at the registration and administration office for the establishment of the joint venture. It should be the total amount of investment subscribed by parties to the joint venture.

　　The registered capital shall generally be presented in Renminbi, or may be in a foreign currency agreed upon by the parties to the joint venture.

　　Article 19. A joint venture shall not reduce its registered capital during the term of the joint venture. If it is needed to reduce the registered capital because the total amount of investment and the production and business scale, etc, have changed, the approval from the examination and approval authority must be obtained.

　　Article 20. If one party to the joint venture intends to assign all or part of his investment subscribed to a third party, consent shall be obtained from the other party to the joint venture, and the party shall submit the assignment to the examination and approval authority for approval, and shall go through the registration procedures for changes with the registration and administration office.

　　When one party assigns all or part of his investment to a third party, the other party has pre-emptive right.

　　When one party assigns his investment subscribed to a third party, the conditions given shall not be more favourable⁶³ than those given to the other party to the joint venture.

　　No assignment shall be made effective should there be any violation of the above stipulations.

　　Article 21. Any increase, reduction of the registered capital of a joint venture shall be approved by a meeting of the board of directors and submitted to the examination and approval authority for approval. Registration procedures for changes shall be dealt with at the registration and administration office.

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