商务部令[2004]年第8号

（Promulgated¹ by the Ministry² of Commerce on 16 April 2004 and effective as of 1 June 2004.）

颁布日期：20040416 　实施日期：20040601 　颁布单位：商务部

　　Article 1　These Procedures have been formulated³ in accordance with laws and administrative⁴ regulations such as the PRC， Sino-foreign Equity⁵ Joint⁶ Venture Law， the PRC， Sino-foreign Cooperative Joint Venture Law， the PRC， Wholly Foreign-owned Enterprise Law and the Company Law in order to further open up to the outside world and to improve the construction of the market circulation system.

　　Article 2　Foreign companies， enterprises and other economic organizations or individuals （Foreign Investors⁸） that establish foreign-invested commercial enterprises and engage in business activities in China shall comply with these Procedures.

　　Article 3　Foreign-invested commercial enterprises refer to foreign-invested enterprises that engage in the following business activities：

　　1. commission agency services： sale of goods of other parties by way of collection of fees on a contract basis by a sales agent， broker⁹ or auctioneer or other wholesalers of goods， and related auxiliary¹² services；

　　2. wholesale¹¹： sale of goods to retailers¹⁴ and industrial， commercial， institutional and other users， or to other wholesalers， and related auxiliary services；

　　3. retail¹³： sale of goods for individual or group consumption or use from a fixed¹⁵ location or via television， telephone， mail order， internet， automated¹⁶ vending¹⁷ machine， etc.， and related auxiliary services； and

　　4. franchising¹⁸： authorization¹⁹ of the use of its own trademark²⁰， trade name and operation model， etc. to another party for remuneration or franchise²¹ fees through conclusion of contract.

　　Foreign companies， enterprises and other economic organizations or individuals must engage in the business activities specified²² in Items （1）， （2）， （3） and （4） of the preceding paragraph only through foreign-invested enterprises established in China.

　　Article 4　Foreign-invested commercial enterprises shall comply with the laws， administrative regulations and relevant rules of the People‘s Republic of China. Their legitimate²³ business activities and lawful²⁴ rights and interests are protected by the laws of China.

　　Article 5　The State authority in charge of commerce shall regulate foreign investment in commercial sectors²⁵ and the business activities of foreign-invested commercial enterprises according to law.

　　Article 6　Foreign Investors in foreign-invested commercial enterprises shall have good reputation and no acts of violation²⁶ of the laws， administrative regulations and relevant rules of China. Foreign Investors with relatively²⁷ strong economic strength， advanced commercial operation and management experience and marketing²⁸ techniques， and extensive international sales networks are encouraged to establish foreign-invested commercial enterprises.

　　Article 7　A foreign-invested commercial enterprise shall fulfil the following conditions：

　　1. its minimum registered capital fulfils the relevant provisions of the Company Law；

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

　　3. the term of operation of a foreign-invested commercial enterprise shall in general not exceed 30 years； and the term of operation of a foreign-invested commercial enterprise established in central and western China shall in general not exceed 40 years.

　　Article 8　A foreign-invested commercial enterprise that opens stores shall fulfil the following conditions：

　　1. if it applies to open a store at the same time when applying to establish a commercial enterprise， it shall comply with the relevant provisions on urban development and urban commercial development；

　　2. if a foreign-invested commercial enterprise that has been established upon approval applies to open additional stores， it shall fulfil the following conditions in addition to the requirement in Item （1）：

　　（1） it has timely participated in and passed the joint annual inspection²⁹ of foreign-invested enterprises； and

　　（2） the registered capital of the enterprise has been fully³⁰ paid up.

　　Article 9　Upon approval， a foreign-invested commercial enterprise may engage in the following businesses：

　　1. for a foreign-invested commercial enterprise engaged in retail business：

　　（1） retail of merchandise；

　　（2） import of merchandise dealt in by itself；

　　（3） procurement³¹ of domestic products for export； and

　　（4） other related auxiliary businesses.

　　2. for a foreign-invested commercial enterprise engaged in wholesale business：

　　（1） wholesale of merchandise；

　　（2） commission agency services （excluding auction¹⁰）；

　　（3） import and export of merchandise； and

　　（4） other related auxiliary businesses.

　　Foreign-invested commercial enterprises may authorize³² other parties to open stores in the form of a franchise.

　　Foreign-invested commercial enterprises may， upon approval， engage in one or more of the above sales businesses. The types of merchandise it deals in shall be specified in the content of the contract and articles of association regarding the scope of business.

　　Article 10　The establishment and opening of stores of foreign-invested commercial enterprises shall be handled in accordance with the following procedure：

　　1. The project proposal， feasibility study report and the establishment of the foreign-invested commercial enterprise shall be filed and verified and approved in one lot.

　　2. Except as otherwise stipulated³³ in Items （3） and （4） of Paragraph One of this article， investors that propose to establish a foreign-invested commercial enterprise or established foreign-invested commercial enterprises that apply to open stores are required to submit the application documents specified in Articles 12 and 13 respectively to the department in charge of commerce at provincial³⁴ level of the place of registration³⁵ of the foreign-invested commercial enterprise. After preliminary examination of the submitted documents， the department in charge of commerce at provincial level shall submit the application documents to the Ministry of Commerce within one month of the date of receipt of all application documents.

　　The Ministry of Commerce shall render a decision on whether or not to approve the application within three months of the date of receipt of all application documents. If it approves the establishment， it shall issue an Approval Certificate for Foreign-invested Enterprises. If it disapproves³⁶ the establishment， it shall state the reasons therefor.

　　The Ministry of Commerce may authorize departments in charge of commerce at provincial level to examine and approve the aforementioned applications in accordance with these Procedures.

　　3. If a foreign-invested commercial enterprise engaged in retail business that opens a store within the provincial administrative region in which it is located fulfils the following conditions and its scope of business involves neither sale via television， telephone， mail order， internet and automated vending machine nor the merchandise listed in Articles 17 and 18 hereof， the department in charge of commerce at provincial level shall examine and approve the application within its examination and approval authority and submit the same to the Ministry of Commerce for record filing：

　　（1） the business area of a single store shall not exceed 3，000 square metres； the total number of stores shall not exceed three； and the total number of the same type of store opened in China by its Foreign Investor⁷ through established foreign-invested commercial enterprises shall not exceed 30； and

　　（2） the business area of a single store shall not exceed 300 square metres； the total number of stores shall not exceed 30； and the total number of the same type of store opened in China by its Foreign Investor through established foreign-invested commercial enterprises shall not exceed 300.

　　4. If the owner of the trademark or trade name of a Sino-foreign equity or cooperative commercial joint venture is a domestic enterprise or a Chinese natural person； the Chinese investor has a controlling share in the foreign-invested commercial enterprise； and the scope of business of the foreign-invested commercial enterprise does not involve the merchandise listed in Articles 17 and 18 hereof， its applications for establishment and opening of stores shall be examined and approved by the department in charge of commerce at provincial level of the place in which the enterprise is located within its examination and approval authority. If a store is to be opened in another province， the opinion of the department in charge of commerce at provincial level of the place in which the proposed store is to be located shall be sought.

　　Without authorization by the Ministry of Commerce， the department in charge of commerce at provincial level shall not delegate on its own the examination and approval authority specified in Items （3） and （4） of Paragraph One of this article.

　　Article 11　Investors shall handle registration procedures with the administration for industry and commerce on the strength of the Approval Certificate for Foreign-invested Enterprises within one month of receipt thereof.

　　Article 12　When applying to establish a foreign-invested commercial enterprise， the following documents shall be submitted：

　　1. an application；

　　2. a feasibility study report signed by all investors；

　　3. the contract， articles of association （in the case of a wholly foreign-owned commercial enterprise， only the articles of association shall be submitted） and the annexes³⁷ thereto；

　　4. bank proof of creditworthiness， （photocopy³⁸ of） registration certificate and （photocopy of） the legal representative certificate of each investor； if the Foreign Investor is an individual， his identity document shall be provided；

　　5. an audit³⁹ report on each investor for the most recent year audited⁴⁰ by an accounting⁴¹ firm；

　　6. an evaluation⁴² report on the State-owned assets to be invested by the Chinese investor into the Sino-foreign equity or cooperative commercial joint venture；

　　7. a list of merchandise to be imported and/or exported by the proposed foreign-invested commercial enterprise；

　　8. a list of the members of the board of directors of the proposed foreign-invested commercial enterprise and the instruments of appointment of the directors appointed by each investor；

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

　　10. （photocopy of） the supporting documents for the right to use and/or （photocopy of） the premises⁴³ lease agreement for the land to be used for opening the proposed store， but not required for a store with business area of less than 3，000 square metres； and

　　11. documents stating that the requirements of urban development and urban commercial development are complied with， issued by the department in charge of commerce of the local government of the place in which the proposed store is to be located.

　　Documents that are not executed by the legal representative shall be accompanied by a power of attorney issued by the legal representative.

　　Article 13　Where an established foreign-invested commercial enterprise applies to open a store， it shall submit the following documents：

　　1. an application；

　　2. where an amendment⁴⁴ to the contract and/or articles of association is involved， the amended⁴⁵ contract and/or articles of association shall be submitted；

　　3. a feasibility study report on the opening of the store；

　　4. the resolution of the board of directors on the opening of the store；

　　5. the audit report on the enterprise for the most recent year；

　　6. （photocopy of） the capital contribution verification report of the enterprise；

　　7. （photocopy of） the registration certificate and （photocopy of） the legal representative certificate of each investor；

　　8. （photocopy of） the supporting documents for the right to use and/or （photocopy of） the premises lease agreement for the land to be used for opening the proposed store， but not required for a store with business area of less than 3，000 square metres； and

　　9. documents stating that the requirements of urban development and urban commercial development are complied with， issued by the government of the place in which the proposed store is to be located.

　　Documents that are not executed by the legal representative shall be accompanied by a power of attorney issued by the legal representative.

　　Article 14　Legal documents such as trademark and trade name licensing⁴⁶ contract， technology transfer contract， management contract and service contract concluded by a foreign-invested commercial enterprise shall be submitted together as the annexes of the contract （or articles of association in the case of a wholly foreign-owned commercial enterprise）。

　　Article 15　The land to be used by a foreign-invested commercial enterprise for opening stores shall be commercial land obtained through means such as public invitation of bids， auction and listing in accordance with the provisions of the laws and administrative regulations of the State on land administration.

　　Article 16　Where a foreign-invested commercial enterprise deals in merchandise governed by special State provisions or in import or export merchandise subject to quota⁴⁷ or licensing administration， it shall carry out the procedures in accordance with the relevant State provisions.

　　Article 17　Where a foreign-invested commercial enterprise deals in the following merchandise， it shall comply with the following provisions in addition to complying with the provisions hereof：

　　Where a foreign-invested commercial enterprise deals in books， newspapers and periodicals， it shall comply with the Administration of Foreign-invested Books， Newspapers and Periodicals Distribution Enterprises Procedures.

　　Where a foreign-invested commercial enterprise operates gas stations and engages in retail of processed oil， it shall have steady supply channels of processed oil and comply with the local gas station construction plan. Its operating facilities shall comply with the provisions of the current standards and metrological verification rules of the State， and the requirements in respect of fire prevention， environmental protection， etc. Specific implementing⁴⁸ procedures shall be formulated by the Ministry of Commerce separately.

　　Where a foreign-invested commercial enterprise deals in pharmaceutical⁴⁹ products， it shall comply with the administration standards of the State on sale of pharmaceutical products. Specific implementing procedures shall be formulated by the Ministry of Commerce separately.

　　Where a foreign-invested commercial enterprise deals in automobiles⁵¹， it shall operate within the approved scope of business. Specific implementing procedures shall be formulated by the Ministry of Commerce separately.

　　Except as otherwise stipulated in Article 18 hereof and this article， there shall be no geographic⁵²， shareholding⁵³ ratio and investment amount restriction⁵⁴ on commercial enterprises for agricultural by-products and means of agricultural production invested in and established by foreign investors.

　　Foreign-invested commercial enterprises engaged in wholesale business may not deal in pharmaceutical products， agrochemicals and mulching films before 11 December 2004， and may not deal in chemical fertilizers， processed oil and crude oil before 11 February 2006.

　　Foreign-invested commercial enterprises engaged in retail business may not deal in pharmaceutical products， agrochemicals， mulching films and processed oil before 11 December 2004， and may not deal in chemical fertilizers before 11 December 2006.

　　Foreign-invested commercial enterprises engaged in wholesale business may not deal in salt and tobacco. Foreign-invested commercial enterprises engaged in retail business may not deal in tobacco.

　　Article 18　If the aggregate⁵⁵ number of stores opened by the same Foreign Investor in China exceeds 30 and the merchandise it deals in include such merchandise as books， newspapers， magazines， automobiles （this restriction shall be lifted as of 11 December 2006）， pharmaceutical products， agrochemicals， mulching films， chemical fertilizers， processed oil， cereals， vegetable oils， edible⁵⁶ sugars and cotton， and the afore-mentioned merchandise carry different brands and are from different suppliers， the ratio of capital contribution of the Foreign Investor shall not exceed 49%.

　　Article 19　Foreign-invested commercial enterprises that authorize other parties to open stores in the form of a franchise shall， in addition to complying with the provisions hereof， comply with the separate provisions of the State on franchising activities.

　　Article 20　If a foreign-invested commercial enterprise engages in auction business， it shall comply with the relevant laws such as the Auction Law and the Cultural Relics⁵⁷ Law， and shall be examined and approved by the Ministry of Commerce. Specific implementing rules shall be formulated separately.

　　Article 21　Beginning from 11 December 2004， establishment of wholly foreign-owned commercial enterprises shall be permitted.

　　Article 22　The regions in which foreign-invested commercial enterprises engaged in retail business and their stores may be established shall be limited to the capital cities of provinces and autonomous⁵⁸ regions， municipalities directly under the central government， municipalities with independent development plans and special economic zones before 11 December 2004. After 11 December 2004， the geographic limitation shall be lifted.

　　For foreign-invested commercial enterprises engaged in wholesale business， geographic limitation shall be lifted as of the date of the implementation⁵⁹ of these Procedures.

　　Article 23　If a foreign-invested enterprise invests in commercial sectors in China， it shall comply with the Investment Within China by Foreign Investment Enterprises Tentative Provisions， and matters shall be handled by reference to these Procedures.

　　Article 24　If a foreign-invested enterprise other than a foreign-invested commercial enterprise engages in the business activities listed in Article 3 hereof， it shall comply with the provisions hereof， and shall change the corresponding scope of business in accordance with the law.

　　Article 25　Investment in and establishment of commercial enterprises by investors from Hong Kong Special Administrative Region， Macao Special Administrative Region and Taiwan region in other provinces， autonomous regions and municipalities directly under the central government in China shall be handled by reference to these Procedures except for the following provisions：

　　1. Beginning from 1 January 2004， Hong Kong and Macao commercial service providers may establish wholly foreign-owned enterprises in the mainland.

　　2. The geographic regions for Hong Kong and Macao commercial service providers to establish retail enterprises in the mainland shall extend to cities at the prefectural level， and， in Guangdong Province， to cities at the county level.

　　3. Beginning from 1 January 2004， Hong Kong and Macao commercial service providers may apply to establish commercial enterprises engaged in automobile⁵⁰ retail business in the mainland in accordance with the relevant provisions hereof， but its average annual sales volume in the three years prior to the application shall not be less than US$ 100 million； and its asset value in the year prior to the application shall not be less than US$ 10 million. The minimum registered capital for an automobile retail enterprise established in the mainland shall be Rmb 10 million. The minimum registered capital for an automobile retail enterprise established in central and western China shall be Rmb 6 million.

　　4. The Chinese citizens among the permanent residents of Hong Kong and Macao are permitted to establish individually-owned industrial and commercial business to engage in commercial retail business （excluding franchising） in accordance with the relevant laws， regulations and rules of the mainland. The business area shall not exceed 300 square metres.

　　5. For the purposes of these Procedures， Hong Kong and Macao commercial service providers shall satisfy the definition of “service provider” and the requirements of the relevant provisions in the Mainland/Hong Kong Closer Economic Partnership⁶⁰ Arrangement and the Mainland/Macao Closer Economic Partnership Arrangement respectively.

　　Article 26　Foreign-invested commercial enterprises are encouraged to join the relevant industry associations to strengthen self-discipline of enterprises.

　　Article 27

　　The Ministry of Commerce shall be responsible for interpreting these Procedures.

　　Article 28　These Procedures shall be implemented⁶¹ as of 1 June 2004.

　　Article 29　The Pilot Projects for Commercial Enterprises with Foreign Investment Procedures promulgated jointly⁶² by the former State Economic and Trade Commission and Ministry of Foreign Trade and Economic Cooperation shall be repealed⁶³ as of the date of implementation of these Procedures.

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