The Ministry of Foreign Trade and Economic Cooperation, the Ministry of Science and Technology, the State Administration for Industry
and Commerce, the State Administration of Taxation, the State Administration of Foreign Exchange
Decree of the Ministry of Foreign Trade and Economic Cooperation, the Ministry of Science and Technology, the State Administration
for Industry and Commerce, the State Administration of Taxation and the State Administration of Foreign Exchange
No.2
The Provisions Concerning the Administration of Foreign-funded Business-starting Investment Enterprises were adopted at the 11th ministerial
meeting of the Ministry of Foreign Trade and Economic Cooperation. It is hereby promulgated and shall be implemented as of March
1, 2003.
Minister of the Ministry of Foreign Trade and Economic Cooperation Shi Guangsheng
Minister of the Ministry of Science and Technology Xu Guanhua
Director general of the State Administration for Industry and Commerce Wang Zongfu
Director general of the State Administration of Taxation Jin Renqing
Director general of the State Administration of Foreign Exchange Guo Shuqing
January 30, 2003
Provisions Concerning the Administration of Foreign-funded Business-starting Investment Enterprises
Chapter I General Provisions
Article 1
The present Provisions are formulated to encourage foreign-funded companies, enterprises and other economic organizations or individuals
(hereinafter referred to as foreign investors) to come to China to engage in business-starting investments, and to establish and
perfect the mechanism of business-starting investments in China in accordance with the Law of the People’s Republic of China on Chinese-foreign
Contractual Joint Ventures, the Law of the People’s Republic of China on Chinese-foreign Equity Joint Ventures, the Law of the People’s
Republic of China on Foreign-capital Enterprises, the Company Law of the People’s Republic of China and other related laws and regulations.
Article 2
The term “foreign-funded business-starting investment enterprise ” (hereinafter referred to as FBIE” refers to the foreign-funded
investment enterprises established by foreign investors or by foreign investors jointly with companies, enterprises or other economic
organizations established and registered in China in accordance with the Chinese law (hereinafter referred to as Chinese investors).
To establish an FBIE shall be in conformity with the present Provisions. It shall mainly engage in business-starting investments.
Article 3
The term “business-starting investment” means making principal equity investments to high and new tech enterprises that haven’t been
listed in the stock market (hereinafter referred to as invested enterprises), and providing management services to them for the prospective
capital gains.
Article 4
An FBIE is allowed to take the form of the non-legal-person organization or the corporate organization.
As to a non-legal-person organization, the investors shall bear joint liabilities for its debts. The investors may also specify in
the contract of the FBIE that: When the assets of an FBIE are not enough to clear the debts of this enterprise, the indispensable
investors as stated in Article 7 shall bear joint liabilities and the other investors shall bear the liabilities to the company
within the limit of contributions made by each of them.
For a corporate-form FBIE, the investors shall bear the liabilities to the company within the limit of the amount of investment made
by each of them.
Article 5
The FBIEs shall abide by relevant laws and regulations of China, shall be in conformity with the policies of foreign investment industries
and shall not damage the public interests of China. The legitimate businesses and lawful rights and interests of the FBIE within
the borders of China shall be subject to the protection of Chinese law.
Chapter II Establishment and Registration
Article 6
To establish an FBIE, the following requirements shall be met:
(1)
There are more than 2 but less than 50 investors, and at least one shall be an indispensable investor as stated in Article 7 ;
(2)
The investors of a non-legal-person organization shall subscribe to a minimum total contribution in the sum of 10, 000, 000 U.S. $.
The investors of an incorporated FBIE shall subscribe to a minimum total capital in the sum of 5, 000, 000 U.S. $. Except for the
indispensable investors as provided in Article 7 , each of the other investors shall subscribe to a minimum capital contribution
no less than 1, 000, 000 yuan. Foreign investors may contribute their investments in convertible currencies and Chinese investors
may contribute their investments in Renminbi.
(3)
It shall have definite organization form;
(4)
It shall have a definite and legitimate investment direction;
(5)
Except that the operations of such an enterprise are subject to the management of a business-starting investment management company
under authorization, an FBIE shall have at least 3 professional managerial persons who have practical experience in business-starting
investment;
(6)
It shall meet the other requirements as provided in laws and administrative regulations.
Article 7
An indispensable investor shall meet the following requirements:
(1)
Business-starting investment is its main business;
(2)
The accumulative total capital managed by it in the three years before the application is not less than 100, 000, 000 U.S. dollars,
and of which no less than 50, 000, 000 U.S. dollars have been used in business-starting investment If the indispensable investor
is a Chinese investor, the accumulative total capital managed thereby in the three years before the application is submitted is not
less than 100, 000, 000 Yuan, and of which no less than 50, 000, 000 yuan have been used in business-starting investment;
(3)
It shall have at least 3 professional managerial persons who have practical experience in business-starting investment;
(4)
If the affiliated entity of an investor meets the above-mentioned requirements, the investor may apply for the status of an indispensable
investor. The term “affiliated entity” in this paragraph refers to an entity controlled by the investor, or an entity that controls
the investor, or another entity that subject to the control of the same entity that controls the investor. The term “control” in
this paragraph means that the controlling party has a voting power of more than 50 % over the controlled party.
(5)
Neither the above-mentioned indispensable investor nor its affiliated entity shall have any record of being prohibited from engaging
in business-starting investment or business of investment consultancy, or being punished for the reason of cheat, by the judicial
departments and other relevant agencies of the country where it is located;
(6)
An indispensable investor of a non-legal-person enterprise shall subscribe to and actually pay not less than 1 % of the subscribed
contributions and the actual total contributions respectively, and it shall bear joint liabilities for the debts of this enterprise.
An indispensable investor of an incorporated FBIE shall subscribe to and actually pay not less than 30% of the subscribed contributions
and the actual total contributions respectively.
Article 8
The following procedures shall be observed in the establishment of an FBIE:
(1)
The investors shall submit the establishment application and relevant documents to the administrative departments in charge of foreign
trade and economic cooperation at the provincial level of the place where the FBIE is to be established.
(2)
The administrative departments in charge of foreign trade and economic cooperation at the provincial level shall complete the original
examination and report to the Ministry of Foreign Trade and Economic Cooperation (hereinafter referred to as the MOFTEC) within 15
days as of the acceptance of the above-mentioned materials.
(3)
The MOFTEC shall, with the consent of the Ministry of Science & Technologymake a written decision on approval or disapproval within
45 days as of the acceptance of all the above-mentioned materials. And it shall issue a Certificate of Approval for Foreign-invested
Enterprises to the approved enterprises.
(4)
With the approved of establishing an FBIE, the applicant shall file an application for registration at the State Administration of
Industry and Commerce or at local bureaus with its authorization by presenting the Certificate of Approval for Foreign-invested Enterprise
within one month as of the acceptance of the Certificate of Approval for Foreign-invested Enterprise.
Article 9
The following documents shall be submitted to the MOFTEC when applying for the establishment of an FBIE:
(1)
an establishment application signed by the indispensable investors;
(2)
contracts and articles of association of the FBIE signed by all the investors;
(3)
a written declaration made by the indispensable investors (covering: a. the investors meet the requirements as provided in Article
7 ; b. all the materials submitted are genuine; and c. the investors will strictly abide by the present provisions and other relevant
Chinese laws and regulations);
(4)
a letter of legal advice issued by a law firm affirms that the legal indispensable investors exist and the above-mentioned declaration
has got valid authorization and has been signed;
(5)
explanations of the business-starting operations of the foreign investors, explanations of the capital managed by them of the three
years before the application is submitted, explanations of the investment made among the capital managed by them of the three years
before the application is submitted, resumes of its professional managerial persons of business-starting investment;
(6)
the registration certificate of the investors (photocopy) and the certificate of the legal representative (photocopy);
(7)
the notice of pre-approval of the name of the FBIE issued by the name registration organ;
(8)
If the qualifications of the indispensable investors are based on the requirements as provided in paragraph (4) of Article 7 , they
shall submit relevant materials of the affiliated entity that meets the requirements;
(9)
other documents related to the establishment application as required by the examination and approval authority.
Article 10
The FBIEs shall give a clear indication of “Business-starting Investment” in its name. Except for business-starting investment enterprises,
none of the other foreign investment enterprises may use the aforesaid words in their name.
Article 11
In applying for establishing an FBIE, the following documents shall be submitted to the registration organ and shall be responsible
for their authenticity and effectiveness:
(1)
registration application signed by the chairman of the board of directors or by the person-in-charge of the joint management committee;
(2)
contracts, articles of association, the documents and certificate of approval issued by the approving authorities;
(3)
legal license to do business or the certification of the ID of the investor;
(4)
credit certification of the investor;
(5)
appointment documents and the certification of the ID of the legal representative and archival documents of the directors and managers
of this enterprise;
(6)
notice of pre-approval of its name;
(7)
the certification of the address of the enterprise and the certification of its business offices.
In the case of applying for establishing a non-legal-person organization, the applicant shall submit the articles or agreement of
overseas indispensable investors besides the aforesaid materials. Where an enterprise includes investors as provided in Article 7
(4) of the present Provisions, the applicant shall submit the letter of undertaking issued by its affiliated entity, which is to
bear the joint liabilities of investments. All of the aforesaid documents should be written in Chinese. Those written in foreign
languages other than Chinese shall be accompanied by good Chinese translations.
An FBIE should apply to the original registration organ for the modification registration of its modified registration matters.
Article 12
Upon the approval of the registration organ, the incorporated FBIEs shall be issued the business license of legal entity, and the
non-legal-person FBIEs shall be issued a business license.
A business license shall clearly states the total registered capital of the investors and the names of the dispensable investors.
Chapter III Capital Contributions and Relevant Modifications
Article 13
The capital contributions made by the investors of a business-starting enterprise without qualifications of legal entity and the relevant
modifications shall be in conformity with the following:
(1)
The investors may pay the their subscribed capital by installments according to the proceedings of the business-starting investment,
but the longest term shall be no more than 5 years. The amount of capital to be invested at each stage shall be decided by the FBIE
itself according to the contract of the enterprise and the agreement concluded by it and its invested enterprise. In the contract,
the investors shall stipulate liabilities of the investors who do not pay the subscribed capital contributions and relevant measures.
(2)
During the period of the continuous existence of the FBIE, the investors generally shall not reduce their subscribed amount of capital.
Upon approval of the examination and approval organ, an investor may reduce its subscribed amount of capital if the said amount exceeds
50 % of the total provided that it has obtained the consent of the indispensable investors and the business-starting FBIE isn’t in
violation of the requirement of minimum registered capital of 1, 000, 000 U.S. $ (The present provision shall not be applicable to
a case where an investor reduces its invested amount of capital in accordance with item (5) of this Article or the FBIE reduces the
untapped capital when its term of investment expires). In this case, the investors shall stipulate the conditions, procedure and
methods for reducing the subscribed amount of capital in the contract of the FBIE;
(3)
Indispensable investors shall not withdraw from the FBIE during the period of its continuous existence. A necessary withdrawal under
a special circumstance shall be upon the consent of the investor whose investment amount exceeds 50% of the total amount, and the
relevant rights and interests shall be assigned to the new investor who satisfies the conditions as provided in Article 7 . The contract
and the articles of association of this enterprise shall be modified and shall be reported to the check and approving authority for
approval.
The transference of the other investors’ subscribed amount of capital or invested amount of capital shall be done in compliance with
the contract of the FBIE and the assignee shall meet the requirements as provided in Article 6 . All investors shall make relevant
modifications in the contract and the articles of association of the FBIE and report to the examination and approval organ for archival
purposes.
(4)
After an FBIE has been established, the investment application of new investors shall be in conformity with the present Provisions
and the stipulations in the contract, and shall be consented by the indispensable investors. Relevant modifications shall be made
in the contract and the articles of association of the FBIE and shall be reported to the examination and approval organ for archival
purposes.
(5)
Among the incomes of an FBIE arising from selling or disposing of the interests of its invested enterprise by other means, the part
equivalent to its original amount of investment may be directly allocated to all the investors. Such allocation constitutes a reduction
of the invested amount of the investors. An FBIE shall stipulate concrete methods of allocation in its contract, and at least 30
days before it makes such allocation, it shall submit an archival statement on the request of reducing the relevant invested amount
of the investors. In the said statement, it shall prove that the amount of the investments to be made by the investors and the other
capital it has at that time is at least in conformity with the investment obligations that the FBIE shall undertake at that time.
However, such allocation shall not be a plea to the litigation resulted from its violation of any of the investment obligations.
Article 14
When a non-legal-person organization files an application to the registration authority for modifying its registration, the archival
evidential documents issued by the above-mentioned examination and approval organ may replace relevant documents for examination
and approval.
Article 15
Having made investments according to the proceedings of business-starting investments and upon relevant capital verification report,
the investors of the FBIE shall file an application to the original registration organ for handling the archival procedures for their
investments. The registration organ shall fill up the number of its actual amount of capital behind the item of “Capital Amount”
on its Business License.
Where an FBIE makes no investment or fails to make the total investment, it shall be subject to penalties imposed by the registration
organ in accordance with the existing regulations.
Article 16
The investors of an FBIE shall make investments and relevant modifications in accordance with the existing regulations.
Chapter IV Institutional Structure
Article 17
An FBIE in the form of non-legal-person organization shall establish a joint management committee. An FBIE in the form of company
shall establish a board of directors. The investors shall stipulate on how to organize the joint management committee or the board
of directors in the contract and in the articles of association of the FBIE. The joint management committee and the board of directors
shall manage the enterprise on behalf of its investors.
Article 18
The subordinate administrative departments of the joint management committee and the board of directors shall, in accordance with
the power as specified in the contract and the articles of association of the FBIE, take charge of the routine managerial work and
execute the investment decisions made by the joint management committee and the board of directors.
Article 19
The person-in-charge of an administrative department shall satisfy the following conditions:
(1)
shall have full capacity for civil conduct;
(2)
shall have no record of criminal offence;
(3)
shall have no record of bad operations;
(4)
shall be experienced in business-starting investments and have no record of illegal practices.
(5)
shall meet the other requirements of the examination and approval organ.
Article 20
The administrative departments shall regularly report the following to the joint management committee and the board of directors:
(1)
significant investments under authorization;
(2)
metaphase & annual performance reports and financial statements;
(3)
other matters as provided in laws and regulations;
(4)
relevant matters as stipulated in the contract and in the articles of association of the FBIE.
Article 21
The joint management committee and the board of directors may grant the power of routine administration to a business-investment management
enterprise or another FBIE rather than establish administrative departments. The business-investment management enterprise may be
a domestically-funded business-starting investment enterprise or a foreign-funded one or an overseas enterprise. In this case, the
business-starting investment enterprise and the business-starting investment management enterprise shall conclude a managerial contract,
stipulating respective rights and interests. Such a contract shall not come into effect until it has been agreed by all the investors
and has been approved by the examination and approval organ.
Article 22
The investors of an FBIE may, by reference to the international practices, stipulate interior system for income allocations and incentive
mechanism in the business-starting investment contract.
Chapter V Business-Starting Investment Management Enterprise
Article 23
An entrusted business-starting investment management enterprise shall meet the following conditions:
(1)
To accept the entrustment of the FBIEs and to manage the investments made by them shall be its main business;
(2)
It shall have at least 3 professional managerial persons who have at least three years of practical experience in business-starting
investment;
(3)
Its registered capital or its total investments shall not be less than 1, 000, 000 yuan or equivalent foreign exchange;
(4)
It shall have a perfect interior control system.
Article 24
A business-starting investment management enterprise is allowed to take the form of the corporate organization or the partnership
organization.
Article 25
A business-starting investment management enterprise may be entrusted to manage different FBIEs.
Article 26
A business-starting investment management enterprise shall report the matters as listed in Article 20 to the joint management committee
and the board of directors of the entrusting party.
Article 27
The establishment of a foreign-funded business-starting investment management enterprise shall be in conformity with the conditions
as provided in Article 23 and shall be reported to the examination and approval organ for approval via the administrative departments
of foreign trade and economic cooperation at the provincial level where the company to be established is located. The examination
and approval organ shall make a written decision on whether to approve or not within 45 days as of the acceptance of the complete
set of the above-mentioned documents. It shall issue a Certificate of Approval for Foreign-invested Enterprises to the approved enterprises,
which shall file an application to the registration organ by holding the Certificate within a month as of their acceptance of the
Certificate.
Article 28
The following documents shall be submitted to the examination and approval organ in applying for the establishment of a foreign-invested
business-starting investment management company:
(1)
establishment application;
(2)
contract and articles of association of foreign-funded business-starting investment management company;
(3)
the investors’ registration certificate (photocopy) and the certificate of the legal representative (photocopy);
(4)
relevant documents required by the examination and approval organ;
Article 29
A foreign-invested business-starting investment management enterprise shall give a clear indication of “INVESTMENT MANAGEMENT” in
its name. Except for the foreign-invested business-starting investment management enterprises any other foreign-funded enterprises
shall not do so.
Article 30
An overseas business-starting investment management enterprise, which has acquired the approval of engaging in business-starting investment
management under the authorization of FBIEs, shall file an application to the registration organ to handle the business registration
procedures within 30 days as of the approval day of the management contract.
An applicant shall submit the following documents to the business registration organ and shall be responsible for their authenticity
and effectiveness:
(1)
an application for registration signed by the chairman of the board of directors of the overseas business-starting investment management
enterprise, or by a competent person;
(2)
a management contract and the approval documents of the examination and approval organ;
(3)
articles of association or partnership agreement of the overseas business-starting investment management enterprise;
(4)
the overseas business-starting investment management enterprise’ legal license to do business;
(5)
the credit certification of the overseas business-starting investment management enterprise;
(6)
the power of attorney, resume and the certification of the identification of the person-in-charge of the Chinese project appointed
by the overseas business-starting investment management enterprise;
(7)
the certification of its business offices in China; All of the aforesaid documents should be written in Chinese, those written in
foreign languages other than Chinese shall be accompanied by good Chinese translations
Chapter VI Business Management
Article 31
An FBIE may engage in the following businesses:
(1)
It may make equity investments with all of its own capital through establishing new enterprises, or investing into an established
enterprise, or accepting the stock equities transferred by the investors of an established enterprise, or through other means as
permitted in the laws and regulations of the state;
(2)
It may offer business-starting investment consultancy services;
(3)
It may offer management consultancy to the invested enterprises;
(4)
It may engage in other businesses as approved by the examination and approval organ. The capital of an FBIE may be largely used to
make equity investments into its invested enterprise.
Article 32
A business-starting enterprise shall not engage in the following activities:
(1)
It shall not make investments into the areas in which foreign investments are prohibited by the state;
(2)
It shall not make direct or indirect investments into the listed securities and bonds of an enterprise, but after the invested enterprise
is listed, the shares held by the FBIE shall be an exception.
(3)
It shall not make direct or indirect investments into real property not for its own use;
(4)
It shall not make investments by way of loans;
(5)
It shall not make investments by embezzling the capital not in its ownership;
(6)
It shall not provide a loan or guaranty to others, but the bonds with a term of more than 1 year issued by its invested enterprise
and the investments in the nature of bonds that may be converted into equity investments to the invested enterprise shall be excluded
(this paragraph doesn’t concern whether the invested enterprise is enpost_titled to issue such bonds or not);
(7)
It shall not engage in other activities as prohibited in the law and regulations and the contract of the FBIE.
Article 33
The investors shall stipulate a term for foreign investments in the contract of the FBIE.
Article 34
The incomes of an FBIE shall be generated largely from selling the stock equities it holds in the invested enterprise or from disposing
of the stock equities by other means. When an FBIE sell the stock equities it holds in the invested enterprise or dispose of the
stock equities by other means, it may, in accordance with the law, choose one of the following available methods of withdrawing:
(1)
It may transfer part of or all of the stock equities it holds to other investors;
(2)
It may sign an agreement of stock equity counter-purchase with the invested enterprise, which may counter-purchase the stock equities
held by the business-starting investment enterprise under certain circumstances;
(3)
Where the invested enterprise satisfies the conditions of listing as provided by laws and administrative regulations, it may apply
for listing in the securities markets of home and abroad. In accordance with the law, the FBIE may transfer the shares it holds in
the invested enterprise through the securities markets;
(4)
The other methods that are allowed by the laws and administrative regulations of China. The concrete regulatory measures concerning
the invested enterprise’ counter-purchase of the stock equities held by the FBIE shall be separately formulated by the examination
organ jointly with the registration organ.
Article 35
An FBIE shall make tax declaration in accordance with the tax laws of the state. As to a non-legal-person organization, in accordance
with the law, it may request all the investing parties to file returns for enterprise income taxes on their own, or file an application
by itself, after the application has been approved, it shall, in accordance with the law, calculate and pay the enterprise income
tax in a consolidated way.
The concrete regulatory measures concerning the levy of enterprise income tax upon the non-legal-person FBIEs shall be promulgated
separately by the State Administration of Taxation.
Article 36
Where the profit or other income obtained by a foreign investor from an FBIE is to be remitted abroad, it shall be paid from the foreign
currency account of the FBIE, or shall be remitted through an entrusted bank with the foreign currencies purchased from the bank.
Such payment or remittance shall be made on the basis of the allocation decision made by the joint management committee or the board
of directors, the audit report issued by an accountant office, the certification of inflow of foreign investments and the report
on the verification of capital, the certification of tax payment and the tax return (where an enterprise enjoys tax concession, it
shall present the evidential documents of tax concession issued by the tax authorities).
In accordance with the law, a foreign investor may request to purchase foreign currencies to remit the investments withdrawn from
the FBIE. As to an FBIE in the form of company, the opening and access of foreign currency account, changes of capital and other
matters involving the incomes and expenses of foreign currencies shall be handled pursuant to the existing regulations concerning
the administration of foreign exchange. But relevant regulations on the non-legal-person FBIEs shall be formulated separately by
the State Administration of Foreign Exchange.
Article 37
The investors shall stipulate the business term of the FBIE i
Circular of the State Administration of Taxation on Strengthening the Works Relating to Withholding and Payment of the Individual
Income Tax from Interests of Enterprises Bond
GuoShuiHan [2003] No.612
June 6, 2003
Local tax bureaus of the provinces, autonomous regions and municipalities directly under the Central Government and municipalities
separately listed on the state plan:
In order to further strengthening the management of the levy and collection of the individual income tax from interests of enterprises
bonds, and safeguard the timely entry of full tax into the state treasury, the issues on the management of levy of the income tax
from interests of enterprises bonds are notified as follows through research and investigation:
I.
The individual income tax from interests of enterprise bonds shall be uniformly withheld and paid by the conversion institutions when
converting and paying the interests to the holders of bonds, which shall be directly entered into the state treasury. The conversion
and paying institutions shall do well in the works relating to the withholding and payment of the individual income tax according
to the relevant provisions of the individual income tax law.
II.
Various levels of tax administration shall strengthen the management on the work of the conversion and paying institutions relating
to withholding and payment of the individual income tax.
III.
The Circular shall be implemented as of the date of the delivery.
The Ministry of Foreign Trade and Economic Cooperation, the General Administration of Customs
Order of the Ministry of Foreign Trade and Economic Cooperation and the General Administration of Customs
No.23
The “Rules for the Implementation of the Administration of Import Quotas for Machinery and Electronic Products”, which were, in accordance
with the “Foreign Trade Law of the People’s Republic of China”, the “Regulations of the People’s Republic of China on the Administration
of Import and Export of Goods” and the “Measures on the Administration of Import of Machinery and Electronic Products”, discussed
and adopted at the 10th minister’s working meeting of the Ministry of Foreign Trade and Economic Cooperation in 2001, and which have
been consented by the General Administration of Customs with whom these Detailed Rules were negotiated, are hereby promulgated, and
shall come into force on January 1, 2002. The “Import Quota Attestations” issued by the Ministry of Foreign Trade and Economic Cooperation
before January 1, 2002 shall continue to be valid within the validity period, and shall be invalidated after the expiry as the validity
period shall not be extended.
Minister of the Ministry of Foreign Trade and Economic Cooperation: Shi Guangsheng
December 20, 2001
Rules for the Implementation of the Administration of Import Quotas for Machinery and Electronic Products
Article 1
These Detailed Rules are enacted in accordance with the “Regulations of the People’s Republic of China on the Administration of Import
and Export of Goods” and the “Measures on the Administration of Import of Machinery and Electronic Products” in order to regulate
the administration of the import quotas for machinery and electronic products.
Article 2
These Detailed Rules shall be applicable to the import by importing entities of machinery and electronic products under quotas inside
the customs territory of the People’s Republic of China.
Article 3
The Ministry of Foreign Trade and Economic Cooperation of the People’s Republic of China (hereinafter referred to as “the MOFTEC”)
shall be responsible for enacting, adjusting and promulgating jointly with the General Administration of Customs the catalogue of
import quotas for machinery and electronic products, as well as working out the annual plans on national import quotas for machinery
and electronic products and organizing the implementation.
Article 4
The MOFTEC shall, through electronic network system or by other means, carry out exchanges, checks and feedbacks of data with the
customs and other relevant administrative departments, and shall be responsible for inspecting and supervising the implementation
of the import quotas for the machinery and electronic products all over the country.
The institution in charge of foreign trade and economic cooperation of each province, autonomous region, municipality directly under
the Central Government, municipality separately listed on the State plan, coastal city open to the world and special economic zone,
as well as the office for the import and export of machinery and electronic products of each relevant department under the State
Council (hereinafter respectively referred to as “the local institution in charge of foreign trade and economic cooperation” and
“the departmental office of machinery and electronic products”), shall be responsible for inspecting and supervising the implementation
of the import quotas for the machinery and electronic products in its own area or department, and shall report the situation to the
MOFTEC.
Article 5
The MOFTEC shall, before July 31 of each year, promulgate the total quantity of the import quotas of the next year for the machinery
and electronic products all over the country.
The MOFTEC may, on the basis of its needs, adjust the total quantity of the annual quotas for machinery and electronic products, and
shall promulgate such adjustment 21 days before its enforcement.
Article 6
The qualifications and conditions for applying for import quotas for machinery and electronic products are as follows:
(1)
The entity applying for import shall have no such acts in violation of laws or regulations within the latest three years as evasion
of exchange, arbitrage of exchange, fraudulently obtaining tax refund for exports, smuggling, etc.;
(2)
The entity applying for import shall be enpost_titled to operate the products under the quotas in application;
(3)
The entity applying for import shall have the actual effective performance of importing and selling the products under the quotas
in application for a consecutive period of three years;
(4)
The entity applying for import shall have the capabilities of manufacture, sale, maintenance, provision of services and supply of
fittings, which are suitable for the quantity of the quotas in application;
(5)
The entity applying for import shall be in a good financial status;
(6)
Newly increased entities applying for import do not have to fulfill the conditions provided for in Item (3) of this Article;
(7)
An applicant who applies for import quotas for its own use does not have to fulfill the qualifications and conditions provided for
in Items (2), (3), (4) and (5) of this Article, provided that it shall submit a justifiable reason for application and appropriate
quantity of quotas in application.
Article 7
The time for applying for and distributing the import quotas is as follows:
(1)
The entity applying for import shall, during the period from August 1 to August 31 of each year, submit to the MOFTEC the application
for import quotas of the next year for machinery and electronic products, which shall not be accepted after the expiry;
(2)
The MOFTEC shall, before October 31 of each year, distribute the quotas, and issue the “Attestations on Import Quotas for Machinery
and Electronic Products” to the entities applying for import who have obtained the quotas.
Article 8
The time for re-distributing the import quotas is as follows:
(1)
The importing entities holding quotas shall, no later than September 1 of each year, return the quota licenses which cannot be used
up in the present year to the MOFTEC;
(2)
The MOFTEC shall, within 10 working days as of September 1 of each year, re-distribute the quotas stated in the returned quota licenses.
Article 9
The principles for distributing the import quotas are as follows:
(1)
To guarantee the needs in scientific research, education, culture, hygiene and other commonweal careers if the goods are imported
for the importer’s own use;
(2)
To give priority to considering the applications of the importing entities with strong capability of manufacture, sale and provision
of services;
(3)
To consider the actual effective performance of the entities applying for import in respect of the import of products under the quotas
in the latest three years;
(4)
To consider distributing a certain proportion of the total quantity of annual quotas to the newly increased entities applying for
import;
(5)
To properly increase the quantity of quotas of the next year upon request if the quotas of the last year have been used up; or
To deduct the quantity of quotas of the next year if the quotas of the last year have not been used up and the remaining quotas are
not returned within the provided time limit;
(6)
Some certain import quotas shall be distributed in a method of bidding, and the specific measures for administration shall be enacted
and promulgated by the MOFTEC.
Article 10
The procedures for applying for the “Attestation on Import Quotas for Machinery and Electronic Products” are as follows: An entity
applying for import shall, when importing machinery and electronic products subject to quota administration, truthfully fill out
the “Application Form for Import of Machinery and Electronic Products” in duplicate, and provide the application report and other
relevant documents, as well as go through the verification formalities in the relevant local institution in charge of foreign trade
and economic cooperation and the departmental office of machinery and electronic products. If no office of machinery and electronic
products is established in the department, the entity applying for import shall go through the verification formalities in the institution
in charge of foreign trade and economic cooperation located in the place of its industrial and commercial registration or legal person
registration.
Upon verification by the relevant local institution in charge of foreign trade and economic cooperation and the departmental office
of machinery and electronic products, an entity applying for import shall, within the provided time limit for applying for quotas,
apply for and obtain the “Attestation on Import Quotas for Machinery and Electronic Products” from the MOFTEC with the relevant documents
and the “Application Form for Import of Machinery and Electronic Products”.
Article 11
The importing entity shall apply for and obtain the “Import Quota License” with the “Attestation on Import Quotas for Machinery and
Electronic Products” issued by the MOFTEC. The validity period for the application and obtaining shall be the year when the “Attestation
on Import Quotas for Machinery and Electronic Products” is issued. Where the “Import Quota License” is not applied for or obtained
within the validity period, the “Attestation on Import Quotas for Machinery and Electronic Products” shall be invalidated.
Article 12
The “Attestation on Import Quotas for Machinery and Electronic Products” shall be in quintuplicate with five sheets. The first sheet
(blue, with anti-counterfeiting shading) shall be the document for applying for and obtaining the “Import Quota License”; the second
sheet (green, with white shading) shall be the document for order of goods; the third sheet (red, with anti-counterfeiting shading)
shall be the document kept in the customs for record; the fourth sheet (red, with white shading) shall be the banking document for
the purchase of and payment in foreign exchange; and the fifth sheet (black, with white shading) shall be kept in the quota administration
organ for file.
Article 13
Where, after obtaining the “Attestation on Import Quotas for Machinery and Electronic Products”, the importing entity needs to modify
any content in such items in the “Attestation on Import Quotas for Machinery and Electronic Products” as the importing entity, mode
of trade, uses of products, name, quantity or amount of products (with the range of change exceeding 10%) and performance of equipment,
etc. within the validity period due to a particular reason, it shall go through the formalities of modifying or changing the attestation
in the original organ which issued the attestation with the original “Attestation on Import Quotas for Machinery and Electronic Products”;
the original organ which issued the attestation shall take back the old attestation, and shall print the characters of “(change of
certificates)” in the remark column of the newly issued attestation. Where the amount of actually used exchange does not exceed 10
% of the planned amount, the “Attestation on Import Quotas for Machinery and Electronic Products” does not need to be modified, and
the importing entity shall not, when applying for and obtaining the “Import Quotas License” with the “Attestation on Import Quotas
for Machinery and Electronic Products”, modify any content in such items in the “Attestation on Import Quotas for Machinery and Electronic
Products” as the importing entity, mode of trade, uses of products, name, quantity or amount of products (with the range of change
exceeding 10%) and performance of equipment, etc..
Article 14
Where the “Attestation on Import Quotas for Machinery and Electronic Products” is lost, the importing entity shall immediately report
the loss to the original import quota administration organ, the original license administration organ and the customs at the port
of declaration. If no bad consequence occurs, the importing entity may apply to the MOFTEC for re-issuance.
Article 15
For any entity who concludes contracts with foreign parties before applying for the “Attestation on Import Quotas for Machinery and
Electronic Products” and the “Import Quotas License” in accordance with the provisions in these Detailed Rules, the MOFTEC shall
not re-issue the import quota attestation, and the customs and other administrative department shall deal with the matter in accordance
with the relevant laws and administrative regulations.
Article 16
These Detailed Rules shall also be applicable in any of the following circumstances:
(1)
The imported parts of the products under quotas constitute the feature of a whole machine;
(2)
The products under quotas are imported in processing trade for manufacturing products of domestic sale or for the importer’s own use;
(3)
The products under quotas are imported by enterprises with foreign investment for manufacturing products of domestic sale or for their
own use;
(4)
The products under quotas are imported in such modes of trade as leasing trade, compensation trade, etc.;
(5)
The products under quotas are imported in such manners as gratis aid, donation or present in economic exchanges, etc.;
(6)
The products under quotas, which are purchased outside the territory by Chinese institutions abroad or Chinese enterprises carrying
out construction projects outside the territory, need to be moved back to China for their own use;
(7)
Other circumstances separately provided for in laws and administrative regulations.
Article 17
These Detailed Rules shall not be applicable in any of the following circumstances:
(1)
The products imported in processing trade are re-exported;
(2)
The products under quotas are imported into China’s bonded zones or export processing zones for re-export;
(3)
The products under quotas are temporarily imported under the supervision and administration of the customs;
(4)
The products under quotas are imported by enterprises with foreign investment for investment or for their own use;
(5)
Other circumstances separately provided for in laws and administrative regulations.
Article 18
The power to interpret the present Detailed Rules shall remain with the MOFTEC. In case of any previous relevant provision inconsistent
with these Detailed Rules, these Detailed Rules shall prevail.
Article 19
These Detailed Rules shall enter into force on January 1, 2002.
The Ministry of Foreign Trade and Economic Cooperation, the General Administration of Customs
2001-12-20
The Ministry of Foreign Trade and Economic Cooperation
Order of the Ministry of Foreign Trade and Economic Cooperation
No.9
The Interim Rules on Placing Cases on File for Investigation for Taking Safeguard Measures has been adopted at the executive meeting
of the Ministry on February 10, 2002 and is hereby promulgated for implementation as of March 13, 2002.
Shi Guangsheng, Minister of the MOFTEC
February 10, 2002
Interim Rules on Placing Cases on File for Investigation for Taking Safeguard Measures
Chapter I General Provisions
Article 1
The present Rules have been formulated on the basis of the Regulation of the People’s Republic of China for standardizing the procedures
of applying for and placing cases on files for investigation for taking safeguard measures.
Article 2
The Ministry of Foreign Trade and Economic Cooperation (hereinafter referred to as the MOFTEC) designates the Fair Import and Export
Trade Bureau to implement the present Rules.
Article 3
The MOFTEC may, upon the application of the applicant, decide to place a case on file or decide to place a case on file upon its own
initiative for investigation for taking safeguard measures.
Chapter II Application
Article 4
The natural persons, legal persons or other organizations (hereinafter referred to as the applicant) that are connected with the domestic
industry may apply to the MOFTEC for investigation for taking safeguard measures.
Article 5
An application for investigation for taking safeguard measures shall be made in written form. The application shall clearly state
the will of formally applying to the MOFTEC for placing a case on file for investigation for taking safeguard measures, and shall
be sealed or signed by the applicant or any person legally authorized thereby.
Article 6
An application shall include the following contents:
1.
An account of the information about the applicant;
2.
An account of the imported products, similar domestic products or directly competing products applied for investigation;
3.
Information about the known country (region) of export, the exporter, producer and importer of the imported product that have already
been applied for investigation;
4.
An account of the domestic industry;
5.
An account of the increase in quantity of the imported product that is applied for investigation;
6.
An account of the damages suffered;
7.
An account of the causal relationship between the increase of import and the damages suffered;
8.
Pleadings;
9.
Other issues that the applicant believes necessary to make an account of.
Article 7
With regard to the information about the applicant, the applicant shall provide the following materials:
The name, legal representative, address, telephone number, zip code, fax number, person-to-contact, etc. of the applicant.
Where the applicant has entrusted an agent, such information as the name and identification of the agent shall be stated and a letter
of authorization shall be submitted.
Article 8
With regard to the imported product, similar domestic product or directly competing product, the applicant shall provide the following
evidential materials:
1.
A detailed account of the name, type, specifications, purposes of use, market situation, etc. of the imported product that is applied
for investigation and the docket number of the import tariff policy of the People’s Republic of China;
2.
The name, type, specifications, purpose of use, market situation, etc. of the similar domestic products or directly competing products;
3.
A comparison of the differences and similarities between the imported product that is applied for investigation and the similar domestic
products or directly competing products, including the physical features, chemical features, production techniques, purpose of use,
and substitutability, etc.
4.
Other evidential materials that the MOFTEC believes of necessity to be submitted.
Article 9
The applicant shall provide the names of the country (region) of export, the country (region) of origin of the imported product that
is applied for investigation, the name, address and contact information of the known exporters, producers and importers of the imported
products that have already been applied for investigation.
Article 10
With regard to the information about the domestic industry, the applicant shall provide the following evidential materials:
1.
The names, addresses and contact information of the known domestic producers and relevant societies and chambers of commerce;
2.
The annual total amount of domestic production of the similar or directly competing products produced by all the producers within
the whole country within the 5 years prior to the filing of the application;
3.
The annual amount of production of the similar or directly competing products produced by the applicant each year and the shares in
the total domestic amount within the 5 years prior to the filing of the applicant;
4.
Other evidential materials that the MOFTEC believes of necessity to be provided.
Article 11
With regard to the increase of amount of the imported product that is applied for investigation, the applicant shall provide the following
evidential materials:
1.
The amount and value of the product imported each year within at least 5 years prior to the filing of application, which shall be
illustrated by flow curve charts;
2.
The absolute amount of export of all countries (regions) of export of the imported product that is applied for investigation within
at least 5 years prior to the filing of the application and the percentage of the export amount of all countries (regions) within
the total import of the imported product that is applied for investigation;
3.
The shares of the imported product that is applied for investigation and the similar domestic products or directly competing products
within their respective domestic consumptions in terms of amount and value within at least 5 years prior to the filing of the application;
4.
An analysis of reasons of the increase of import, including such considerations as but not limited to the rate of import tariff levied
on the product with the recent 5 years, materials about the deductions or preferential treatment that may have been enjoyed by the
import product that is applied for investigation, and the export prices of the imported product that is applied for investigation,
etc;
5.
Other evidential materials that the MOFTEC believes of necessity to be provided.
Article 12
Where an application is filed on the ground that the increase of import has caused serious damages to the domestic industry, the applicant
shall provide the following evidential materials:
1.
All the relevant objective or quantifiable elements or indicators that affect the situation of the domestic market. Particularly,
they are: the rate and amount of the increase of import calculated on the basis of the absolute value and relative value of the imported
product that is applied for investigation, the shares of the increased import in the domestic market, and the changes in sales, production
amount, production rate, use rate of the equipments, profits and losses as well as employment;
2.
Evidential materials concerning the effects of the prices of the imported product that is applied for investigation upon the prices
of the similar domestic products or directly competing products;
3.
Other evidential materials that the MOFTEC believes of necessity to be provided.
Article 13
Where an application is filed on the ground that the increase of import is in the threat of causing serious damages to the domestic
industry, the applicant shall provide the following evidential materials:
1.
The export capacity, repertory of the country of export of the imported product that is applied for investigation and evidential materials
about the possibility that the import may continue to increase;
2.
The trend of changes of obvious approaching of the elements or indicators as mentioned in Article 12 (1) of the present Rules.
Article 14
When the applicant claims that the imported product applied for investigation affect the domestic industry and provides evidential
materials, he shall make separate decisions about the production of the similar domestic products or directly competing products;
where it is impossible to make separate decisions about the similar domestic products or directly competing products, he shall decide
according to the production of the narrowest product group or scope that includes the similar domestic products or directly competing
products.
Article 15
With regard to the causal relationship between the increase of import and the damages, the applicant shall analyze the above-mentioned
materials, stating the causal relationship between the increase of import and the damages to the domestic industry.
When proving the causal relationship between the increase of import and the damages to the domestic industry, any of the known elements
other than the increase in import that concurrently cause damages to the industry shall be analyzed, including but not limited to
the deduction of demand or the changes in consumption modes, the restrictive trade practices of the foreign and domestic producers
and the competition between them, the development of technology and the export performance and productivity of the domestic industry.
If the applicant believes any of the above-mentioned element is inapplicable, he shall make an account thereof.
Article 16
The applicant shall specify his pleadings for taking safeguard measures in the application; he may specify the form of safeguard measures
to be adopted, the concrete content, time limit and reasons thereof.
Article 17
Where the applicant pleads for taking interim safeguard measures at the same time, he shall provide evidences that prove the increase
in import has caused serious damages to or is threatening to cause serious damages to the domestic industry, and any delay in taking
such measures will lead to irremediable damages, and shall specify the rate of the tariffs to be increased.
Article 18
The applicant shall, when providing the evidential materials as mentioned in this chapter, specify the sources of the evidences.
Article 19
If an application involves any confidential materials, the applicant shall apply for keeping secret. With regard to the confidential
materials, the applicant shall provide a non-confidential summary which may help the interested parties of the case involved to have
a reasonable knowledge of the confidential materials. If the applicant fails to provide a non-confidential summary, he shall state
the reasons.
Article 20
The application for investigation for taking safeguard measures and the relevant evidential materials shall be submitted in print
hand of simplified Chinese characters. Where there are uniform technical jargons, such standardized language shall be used.
If the evidential materials provided by the applicant are in any foreign language, the applicant shall provide the foreign-language
full text of the said materials, and provide Chinese translation to the relevant parts.
Article 21
The application and the attached evidential materials shall include a confidential version (where the applicant pleads for keeping
secret) and a public version. Apart from a set of the original confidential version and 6 duplicates thereof, a set of the original
public version and 6 duplicates thereof, the applicant shall provide duplicates according to the number of the countries (regions)
of export of the imported product that is applied for investigation. If there are too many countries (regions) of export of the imported
product that is applied for investigation, the number of duplicates may be appropriately reduced, but no less than 5 duplicates.
Article 22
The applicant shall provide the electronic data version of the application and the evidential materials according to the computer
programs required by the Fair Import and Export Trade Bureau.
Article 23
The applicant shall submit the application and the evidential materials to the Fair Import and Export Trade Bureau by way of post
or direct service.
Article 24
The official application and the evidential materials submitted by the applicant shall be signed to acknowledgment of receipt by the
Fair Import and Export Trade Bureau. The day of signing shall be the day when the Fair Import and Export Trade Bureau receives the
application and relevant evidential materials.
Article 25
Before placing a case on file and making a public announcement, the MOFTEC shall keep the materials submitted by the applicant as
secret.
Chapter III Placing a Case on File
Article 26
The Fair Import and Export Trade Bureau may investigate the issues of the application and the evidential materials including the qualifications
of the applicant, the imported product that is applied for investigation by way of questionnaires and on-spot verifications, etc.
Article 27
The MOFTEC shall, as a general rule, decide whether to place the case on file within 60 days after receiving the written application
for taking safeguard measures. Where the circumstances are especially complicated, the time period for examination may be appropriately
extended.
Article 28
The Fair Import and Export Bureau may, within the time period as prescribed in Article 27 of the present Rules, request the applicant
to make readjustments or supplements to the application for investigation for taking safeguard measures. Where the applicant refuses
to make readjustments or supplements or fails to make the readjustments or supplements as requested, the application of the applicant
may be rejected and the applicant shall be informed.
Article 29
Where the MOFTEC decides to place a case on file, it shall inform the applicant of the decision not to place the case on file together
with the reasons thereof.
Article 30
Where the MOFTEC decides to place the case on file, it shall make a public announcement.
The public announcement shall clearly specify the following contents:
1.
The name and specifications of the imported product that is applied for investigation;
2.
The country (region) of the imported product that is applied for investigation;
3.
A summary account of the materials on which the place of the case on file is based;
4.
The date when the investigation for taking safeguard measures is initiated;
5.
The time limit of investigation for taking safeguard measures;
6.
The time limit for the interested parties to make comments;
7.
The contact information of the investigation organs.
Article 31
The MOFTEC shall inform the Committee for Safeguard Measures of the WTO within 7 working days after deciding to place the case on
file for investigations.
Article 32
The day when the case is place on file for investigation for taking safeguard measures shall be the day when the decision to place
the case on file is publicized.
Chapter IV Placing Cases on File by the MOFTEC on Its Own Initiatives
Article 33
Where the MOFTEC does not receive any written application for taking safeguard measures but has sufficient evidences to believe that
the increase in amount of the imported product causes serious damages to threatens to cause serious damages to the domestic industry,
it may decide to place the case on file on its own initiatives, and make investigations for taking safeguard measures.
Article 34
Where the MOFTEC places a case on file on its own initiative and makes investigations for taking safeguard measures, the evidential
materials that it obtains shall conform to the relevant provisions as mentioned in chapter II of the present Rules.
Chapter V Supplementary Provisions
Article 35
The power to interpret the present Rules shall remain with the MOFTEC.
Article 36
The present Rules shall enter into force as of March 13, 2002.
The Ministry of Foreign Trade and Economic Cooperation
2002-02-10
Announcement of the General Administration of Customs on Amending Article 2 of the Measures of the Customs of the People’s Republic
of China for Supervision over Goods Transferred Between Customs
[2002] No.7
April 17, 2002
Pursuant to the Measures of the Customs of the People’s Republic of China for Supervision over Goods Transferred Between Customs (hereinafter
referred to as the Supervision Measures), imports and exports transferred between customs should bear the seal of the customs. After
the nationwide introduction of the fast customs clearance system for transfer between customs, goods transferred between customs
by various means and transit goods shall all bear the customs seal in going through relevant transfer procedures. Taking into consideration
the strict time requirement for the departure of shipping vehicles and the low transport risk of goods transference or transit by
inland feeder vessels or by train, all customs bureaus have provided facilitation and streamlined procedures to various degrees.
In order to ensure a uniformed law enforcement and to improve the efficiency of customs clearance by streamlining all the procedures
that can be streamlined without adversely affecting the supervision efficiency, it has been decided after careful study that the
seal requirement on cargo transfer or transit in container between customs by inland feeder vessels or by train shall be relaxed.
Article 2 of the Supervision Measures is amended as follows:
I.
The customs seal is not required under the condition that the commercial seal remains intact for containerized cargo transfer or transit
by inland feeder vessels or by train.
II.
In order to ensure efficient supervision, the customs shall handle cargo transfer between customs with no customs seal requirement
according to the following instructions:
1.
The number of the commercial seal shall be entered into the transfer declaration from under the item of “customs locking number.”
2.
The entry customs and the shipment customs shall, based on the manifest and the bill of railway freight, decide upon a certain proportion
and sample the cargo accordingly to see whether the commercial seals remain intact. The destination customs and the departure customs
shall check the commercial seal with the computerized transfer declaration and the manifest or the bill of railway freight, and then
handle relevant customs procedures accordingly.
3.
The Supervision Measures remains valid except for conditions specified hereinabove.
III.
For cargos transferred between customs that have been unsealed for checking or reshipped in other containers, the customs seal is
required, according to relevant stipulations, for going through relevant procedures for customs transfer.
The Announcement will enter into force as of April 25, 2002.
The State Administration of Foreign Exchange, the China Insurance Regulatory Commission
Circular of the State Administration of Foreign Exchange (SAFE) and the China Insurance Regulatory Commission (CIRC) on Distributing
the Provisional Rules on Foreign Exchange Administration of Insurance Business
HuiFa [2002] No.95
September 24, 2002
SAFE branches in all provinces, autonomous regions, and municipalities directly under the Central Government, exchange administration
offices, and SAFE branches in the cities of Shenzhen, Dalian, Qingdao, Xiamen, and Ningbo, branches of the CIRC, all insurance companies
and designated foreign exchange banks:
The SAFE and the CIRC have jointly formulated the Provisional Rules on Foreign Exchange Administration of Insurance Business (hereinafter
referred to as the Rules) with a view to promoting the development of Chinese insurance market, and normalizing the foreign exchange
receipts and payments of the insurance industry. The Rules shall be officially implemented as from November 1, 2002.
The Rules is hereby distributed to you. SAFE branches are requested to transmit it to the sub-branches, designated foreign exchange
banks (foreign-funded banks included) under their jurisdiction; CIRC branches are requested to transmit it to the insurance companies
and relevant institutions under their jurisdiction; and insurance companies and designated Chinese-funded foreign exchange banks
are requested to transmit it to their branches and sub-branches for implementation.
Attachment: Provisional Rules on Foreign Exchange Administration of Insurance Business Attachment:Provisional Rules on Foreign Exchange Administration of Insurance Business
Chapter I General Provisions
Article 1
Pursuant to the Insurance Law of the People’s Republic of China (the PRC), Regulations on the Exchange System of the PRC, and Regulations
of the PRC on Foreign-funded Insurance Companies, this Rules is enacted with a view to regulating foreign exchange insurance activities
within the territory of the PRC, and perfecting foreign exchange administration of the insurance business.
Article 2
Foreign exchange insurance stated in this Rules refers to commercial insurance whereby the payment of insurance premium, indemnity
or the payment of insurance benefits shall be priced and settled in foreign exchange as agreed upon in the insurance contract. Foreign
exchange insurance includes foreign exchange property insurance, foreign exchange life and health insurance, and foreign exchange
reinsurance.
Article 3
Foreign exchange insurance operations within the territory of the PRC, foreign exchange receipts and payments, sale and purchase of
foreign exchange, opening and use of foreign exchange account under the item of insurance shall be governed by this Rules.
Article 4
When conducting foreign exchange insurance business, insurance companies and their branches and sub-branches (hereinafter referred
to as insurers) shall use foreign exchange in collecting the insurance premium from the applicants and indemnifying or paying the
insurance benefits to the insured (or beneficiaries), and settling insurance contracts.
Article 5
The SAFE and its branches and sub-branches (hereinafter referred to as SAFE offices) are responsible for examining and approving the
qualifications of insurers for foreign exchange business, supervising foreign exchange receipts and payments, sale and purchase of
foreign exchange, and foreign exchange account under the item of insurance in accordance with this Rules.
The CIRC and its branches (hereinafter referred to as CIRC offices) are responsible for supervising the operations of foreign exchange
insurance by insurers in accordance with the Insurance Law of the PRC and other relevant regulations.
Article 6
Foreign exchange insurance activities within the territory of the PRC shall abide by relevant laws and rules of China, as well as
relevant regulations of the CIRC offices and the SAFE offices.
Chapter II Entry into and Termination of Foreign Exchange Business of Insurers
Article 7
For handling foreign exchange insurance business, an insurer shall apply to the SAFE office concerned for approval and acquire the
Foreign Exchange Business License.
The insurer shall carry on business activities within the approved scope, and shall not do foreign exchange business without approval
or beyond the scope approved.
The Foreign Exchange Business License is the legal certificate for the insurer to handle foreign exchange business according to law,
which is printed exclusively by the SAFE. The term of validity of the Foreign Exchange Business License is 3 years.
Article 8
With the approval of the SAFE office concerned, the insurer may handle part or all of the following foreign exchange business:
(1)
Foreign exchange property insurance;
(2)
Foreign exchange life and health insurance;
(3)
Foreign exchange reinsurance;
(4)
Foreign exchange maritime guarantee;
(5)
Foreign exchange investment;
(6)
Investigation of creditworthiness, consulting; and
(7)
Other foreign exchange business approved by the SAFE.
Foreign exchange property insurance, foreign exchange life and health insurance and foreign exchange reinsurance handled by the insurer
shall be confined within the insurance products approved by the CIRC office concerned; foreign exchange investment shall be handled
by the insurer through the investment channels approved by the financial supervision and control department of the State Council.
Article 9
An insurance company that meets the following requirements may apply for the foreign exchange business:
(1)
Having been approved by a CIRC office to handle insurance business;
(2)
Having the required amount of paid-up capital or operating funds in foreign exchange;
An insurance company with corporate capacity that possesses paid-up capital of more than RMB500 million (RMB500 million included)
shall have paid-up capital of at least US$5 million or the equivalent in other foreign currency; that possesses paid-up capital of
less than RMB500 million shall have paid-up capital of at least US$2 million or the equivalent in other foreign currency.
The branch of foreign insurance company that possesses operating funds of more than RMB500 million (RMB500 million included) shall
have paid-up operating funds of at least US$5 million or the equivalent in other foreign currency; that possesses operating funds
of less than RMB500 million shall have paid-up operating funds of at least US$2 million or the equivalent in other foreign currency.
(3)
Having perfect systems for internal control and financial management;
(4)
Having managers for foreign exchange business whose qualifications have been endorsed by the SAFE office concerned;
(5)
Having abided by laws and regulations of the State and relevant foreign exchange regulations, and having no major malfeasance; and
(6)
Other requirements set by the SAFE.
Article 10
An insurance company shall apply to the SAFE office in its locality for foreign exchange business with documents and materials listed
below; the local SAFE office shall, after preliminary examination, submit the application that is deemed qualified level-by-level
to the SAFE for approval. The SAFE will issue a Foreign Exchange Business License to the qualified insurance company:
(1)
A written application and feasibility study for foreign exchange business;
(2)
A photocopy each of the original and the duplicate of the Insurance Business License issued by the CIRC office concerned;
(3)
Articles of association approved by the CIRC office concerned (in case of a branch of foreign insurance company, the articles of association
of its head office shall be presented instead);
(4)
Verification report on foreign exchange capital or operating funds issued by an accounting firm (the original);
(5)
Names and curricula vitae of the managers for foreign exchange business and their certificates of occupational competence issued by
the SAFE office concerned;
(6)
The systems for internal control and financial management relevant to the application for foreign exchange business; and
(7)
Other documents and materials required by the SAFE.
An insurance company that has acquired the Foreign Exchange Business License issued by the SAFE may authorize its branches and sub-branches
to apply to the SAFE offices in their localities for foreign exchange business.
Article 11
A branch or sub-branch of an insurance company shall apply to the SAFE office in its locality for foreign exchange business by presenting
documents and materials listed below; the local SAFE office shall, after preliminary examination, submit the application that is
deemed qualified to its superior SAFE branch for approval, and the latter shall issue the Foreign Exchange Business License to the
applicant. The branch that has made the approval shall report to the SAFE for record the name of the approved applicant within 1
month after the approval is granted:
(1)
The authorization by its head office to handle foreign exchange business;
(2)
A written application for foreign exchange business (including the information on business needs, personnel disposition, business
place and other facilities relevant to the business);
(3)
A photocopy each of the original and the duplicate of the Insurance Business License and Foreign Exchange Business License of its
head office;
(4)
Names and curricula vitae of the managers for foreign exchange business and their certificates of occupational competence issued by
the SAFE office concerned;
(5)
The systems for internal control and financial management relevant to the application for foreign exchange business; and
(6)
Other documents and materials required by the SAFE office concerned.
Article 12
The insurer may apply to the SAFE office concerned for expanding the scope of its foreign exchange business in light of its business
development in accordance with the procedure stipulated in article 10 or article 11 of this Rules by presenting the documents and
materials listed below:
(1)
A written application and feasibility study for expanding the scope of foreign exchange business;
(2)
A report on foreign exchange business operations and financial conditions during the valid period of the Foreign Exchange Business
License;
(3)
A photocopy each of the original and the duplicate of the Foreign Exchange Business License;
(4)
Names and curricula vitae of the managers for the new foreign exchange business and their certificates of occupational competence
issued by the SAFE office concerned;
(5)
The systems for internal control and financial management relevant to the application for foreign exchange business; and
(6)
Other documents and materials required by the SAFE office concerned.
Article 13
If the insurer wants to continue its foreign exchange business after its Foreign Exchange Business License expires, it shall apply
to the SAFE office concerned 3 months before the expiry date in accordance with the procedure stipulated in article 10 or article
11 of this Rules by presenting the documents and materials listed below:
(1)
A written application for continuation of foreign exchange business;
(2)
A report on foreign exchange business operations and financial conditions during the last 3 years;
(3)
The auditing report on paid-up capital or operating funds in foreign exchange issued by an accounting firm (the original);
(4)
A photocopy each of the original and the duplicate of the expiring Foreign Exchange Business License; and
(5)
Other documents and materials required by the SAFE office concerned.
A branch or sub-branch of an insurance company may replace the auditing report stated in item (3) with the written authorization of
its head office for its continuation of foreign exchange business.
Article 14
For terminating foreign exchange business, the insurer shall apply with the documents and materials listed below to the SAFE office
concerned in accordance with the procedure stipulated in article 10 or article 11 of this Rules:
(1)
A written application for terminating its foreign exchange business;
(2)
A detailed explanation of the termination (including the cause of termination, and measures and steps for liquidation of its claims
and liabilities after the termination);
(3)
A photocopy each of the original and the duplicate of the valid Foreign Exchange Business License;
(4)
Balance sheets in renminbi and foreign currency or other financial statements for the last 3 years audited by an accounting firm;
(5)
Document signed by its board of directors or its superior office approving the termination of its foreign exchange business; and
(6)
Other documents and materials required by the SAFE office concerned.
Article 15
If an insurer has any of the following circumstances, the SAFE office concerned shall terminate its foreign exchange business, cancel
or withdraw its Foreign Exchange Business License:
(1)
Being dissolved due to split, merger or the emergence of the causes for dissolution prescribed in its articles of association;
(2)
The Insurance Business License having been withdrawn and cancelled by the CIRC office concerned;
(3)
Having been declared bankrupt by the People’s Court according to law; and
(4)
Other conditions prescribed by laws and regulations of the State.
Article 16
Within 3 months from the date of receipt of the insurer’s full set of application documents and materials for the launch, or expansion
of foreign exchange business or for the renewal of approval thereto related, the SAFE office concerned shall make a decision on approving
or rejecting the application, and inform the applicant in written form.
The approved insurer shall ask for the Foreign Exchange Business License from the SAFE or its branch concerned within 1 month from
the date of receipt of the approval document. If the insurer failed to ask for the said license in time, the approval document shall
cease to be valid automatically.
The insurer whose application for foreign exchange business has been turned down shall not apply again within 1 year from the date
being rejected.
The insurer who has been approved to terminate its foreign exchange business by the SAFE office concerned shall hand back its Foreign
Exchange Business License to the issuing office within 1 month from the date receiving the approval document.
Chapter III Administration on Foreign Exchange Business of Insurers
Article 17
An insurance company shall adequately allocate in due time various reserve funds for foreign exchange insurance in accordance with
the Insurance Law of the PRC and other regulations of the CIRC, and abide by the solvency supervisory indicators and asset investment
indicators prescribed by the CIRC.
Article 18
An insurance company shall confine its investment of foreign exchange to the modes of fund use set by the State Council, and apply
to the SAFE for the special foreign exchange account for investment.
Article 19
An insurance company shall abide by relevant regulations of the State on external guarantee when conducting foreign exchange maritime
guarantee.
Article 20
The insurer approved to conduct foreign exchange business may open the foreign exchange operating accounts in domestic banks, and
shall report the accounts to the local SAFE office for record within 10 working days after the opening.
For opening overseas foreign exchange accounts to meet the needs of foreign exchange business, the insurance company shall obtain
the approval from the SAFE office that has issued the Foreign Exchange Business License. A branch or sub-branch of an insurance company
shall not open overseas foreign exchange accounts.
Article 21
The limit for the use of foreign exchange operating account is as follows:
(1)
Receipt and payment of insurance premium in foreign exchange;
(2)
Receipt and payment of indemnity or insurance benefits in foreign exchange;
(3)
Receipt and payment of premium and handling charges of foreign exchange reinsurance;
(4)
Receipt and payment of indemnity or insurance benefits under the item of foreign exchange reinsurance; and
(5)
Other foreign exchange receipt and payment under current account and approved capital account.
Article 22
The domestic transfer of foreign exchange between the accounts of an insurance company and its branches, and that between different
accounts of an insurer, may be made directly through the banks, provided that it tallies with the stated receipt-and-payment scope
of such accounts.
Article 23
The conversion of capital or operating funds in foreign exchange into renminbi by an insurance company, or vice versa, shall be approved
by the SAFE.
If an insurance company’s paid-up capital in foreign exchange falls below the required amount due to operating losses, the company
may purchase foreign exchange with its paid-up capital in renminbi to make up the deficiency on a fiscal year basis with the approval
of the SAFE. If its branch’s operating funds in foreign exchange falls below the required amount due to operating losses, the deficiency
shall be made up by its head office on a fiscal year basis with the approval of the SAFE.
If an insurer has terminated its foreign exchange business and liquidated the claims and liabilities related to the business according
to law, the remaining foreign exchange shall be sold to a designated foreign exchange bank.
Article 24
An insurance company shall, after making up operating losses and allocating accumulated fund, sell the remaining foreign exchange
net profit to a designated foreign exchange bank within 4 months from the end of a fiscal year, or within 10 working days from the
date when its board of directors approves the distribution of profit, and have it recorded by the SAFE within 5 working days after
the sale.
Profits distributed to the foreign investors of a foreign-funded insurance company in accordance with the resolution of its board
of directors and the approval of the CIRC may, with the approval of the local SAFE office, be remitted abroad. Their renminbi proceeds
from the distribution may, with approval of the local SAFE office, be converted to foreign exchange for outward remittance.
Article 25
Financial management of an insurer for foreign exchange business shall abide by relevant regulations of the State. A perfect system
of internal control over foreign exchange business, foreign exchange fund management and foreign exchange financial management, and
separate foreign exchange ledgers shall be established.
An insurance company shall report to the SAFE and the CIRC a consolidated balance sheet in foreign currency and other financial statements
within 4 months from the end of every fiscal year.
Article 26
The insurer shall conduct balance of payment (BOP) statistical reporting according to relevant regulations.
Article 27
A SAFE office may conduct, by itself, or by designating an accounting firm or audit firm, on-spot or off-spot inspection on the foreign
exchange business of an insurer, an insurance agent or an insurance broker. The inspected insurer, insurance agent or insurance broker
shall accept and support such inspection.
Article 28
The insurer shall provide relevant information and materials authentically, completely, and in time as required by the CIRC office
and the SAFE office concerned.
Chapter IV Administration on Foreign Exchange Receipt and Payment of Insurance Agents and Brokers
Article 29
An insurance agent or insurance broker authorized by a CIRC office to conduct insurance intermediary business may engage in the intermediary
business of foreign exchange insurance.
Article 30
An insurance agent shall price and settle in renminbi its commission and other proceeds acquired from the factorage business under
foreign exchange insurance within the territory of the PRC; and shall not collect insurance premium in foreign exchange without the
approval of the SAFE office concerned.
Article 31
An insurance broker may pay the insurance premium, indemnity or insurance benefits under foreign exchange insurance on behalf of its
clients, but shall not purchase foreign exchange on behalf of its clients to make the aforesaid payment.
An insurance broker shall sell its foreign exchange profit from the brokerage business under foreign exchange insurance to a designated
foreign exchange bank within 3 months from the end of a fiscal year, or within 10 working days after its board of directors’ approval
for the current year’s profit distribution, and have it recorded by the local SAFE office within 5 working days after the sale.
Article 32
With the approval of the SAFE office in its locality, an insurance broker may open a special foreign exchange account, whose scope
of receipt and payment shall be:
(1)
Transit receipt of insurance premium from an applicant, insurer, or an overseas insurance company;
(2)
Transit receipt of indemnity from an insurer or an overseas insurance company;
(3)
Transit payment of insurance premium to an insurer or an overseas insurance company;
(4)
Transit payment of indemnity to the insured or beneficiary, an insurer, or an overseas insurance company; and
(5)
Sale of brokerage commission in foreign exchange to a designated foreign exchange bank.
Chapter V Administration on Sale, Purchase and Payment of Foreign Exchange under Insurance Activities
Article 33
For property insurance satisfying one of the following requirements, the receipt of insurance premium, payment of indemnity or insurance
benefits, and settlement of insurance contracts may be made in foreign exchange:
(1)
The insurable object moves between inside and outside of the territory of the PRC;
(2)
The insurable object exists or has been realized outside the territory of the PRC;
(3)
The insurable object exists or has been realized inside the territory of the PRC through international leasing, international syndicate
loan, or other kinds of international finance; and
(4)
Both the applicant and the beneficiary are overseas legal persons or natural persons.
Article 34
For life and health insurance satisfying one of the following requirements, the receipt of premium, payment of indemnity or insurance
benefits, and settlement of insurance contracts may be made in foreign exchange:
(1)
The applicant is an overseas legal person or a foreign establishment in China, and the beneficiary is an overseas natural person;
(2)
A domestic resident individual’s overseas casualties insurance and medical insurance.
Article 35
Foreign exchange property insurance and foreign exchange life and health insurance satisfying the requirements stipulated in article
33 and 34 may be re-insured in foreign exchange within the territory of the PRC.
For other insurance that fails to satisfy the requirements stipulated in article 33 , article 34 , and paragraph 1 of this article,
the receipt of premium, payment of indemnity or insurance benefits, and settlement of insurance contracts shall be made in renminbi
within the territory of the PRC.
Article 36
An applicant shall pay foreign exchange premium to the insurer under the item of foreign exchange insurance from his or her foreign
exchange account or with foreign exchange purchased from a designated foreign exchange bank by presenting related insurance contracts,
advice of payment from the insurer. If the applicant is an overseas legal person, natural person, or a foreign establishment in China,
purchase of foreign exchange for the payment of insurance premium is prohibited.
The insurer shall pay indemnity or insurance benefits to the insured (or the beneficiary) under foreign exchange insurance from its
foreign exchange account by presenting the insurance contracts and form of computation of claim.
Article 37
If the beneficiary is a legal person or other economic organization, the indemnity or insurance benefits under foreign exchange insurance
may either be deposited in its foreign exchange account under current account, or be sold to a bank, but shall be sold to a bank
if the beneficiary has no foreign exchange account under current account or the amount overshoots the balance ceiling of its foreign
exchange account under current account.
If the beneficiary is a natural person, the indemnity or insurance benefits under foreign exchange insurance may be held in cash,
deposited with a financial institution handling the business of foreign exchange deposit, or sold to a bank.
Article 38
Under the item of reinsurance the insurer ceding a foreign exchange insurance shall pay the premium for the reinsurance from its foreign
exchange account by presenting the contract of reinsurance and the list of payment.
The insurer ceding an insurance contract that is settled in renminbi within the territory of the PRC may apply to the SAFE for approval
to purchase foreign exchange and pay the premium for the reinsurance.
The insurer shall repatriate in time to its domestic foreign exchange account the shared-back indemnity or insurance benefits and
related commissions under foreign exchange reinsurance.
Article 39
Under the item of reinsurance the insurer assuming a foreign exchange insurance shall repatriate in time to its domestic foreign exchange
account the premium for reinsurance.
The insurer shall make payment of indemnity and related charges for assumed foreign exchange reinsurance from its foreign exchange
account by presenting the contract of reinsurance and list of payment.
Article 40
The insurer shall make payment in foreign exchange of the premium, indemnity or insurance benefits, and related fees involving insurance
pool and coinsurance from its foreign exchange account by presenting the articles of association of the insurance pool, the agreement
of coinsurance, and the advice of payment.
Article 41
The insurer shall make payment for the cancellation of a contract of foreign exchange insurance from its foreign exchange account
by presenting the insurance contract and agreement on cancellation.
Article 42
Purchase of and payment in foreign exchange for foreign exchange insurance conducted through a domestic insurance broker shall be
made according to the rules below:
(1)
The applicant shall make payment of the premium to an insurance broker from his foreign exchange account or with foreign exchange
purchased from a designated foreign exchange bank by presenting related insurance contracts, authorization of insurance broker and
advice of payment. The insurance broker shall make payment of the premium to the insurer from its foreign exchange account by presenting
related insurance contracts, authorization of insurance broker and advice of payment.
Payment of indemnity or insurance benefits by the insurer via an insurance broker to the insured or the beneficiary shall be made
through their foreign exchange accounts by presenting related insurance contracts, form of computation of claim, and authorization
of insurance broker.
(2)
Payment of reinsurance premium by the insurer that has ceded a foreign exchange reinsurance to an insurance broker and payment of
the reinsurance premium by the insurance broker to the insurer that has assumed the foreign exchange reinsurance shall be made from
the foreign exchange account of the broker by presenting related contracts of reinsurance, authorization of insurance broker and
list of payment.
Payment of shared-back indemnity or insurance benefits and related commissions by the insurer that has assumed the foreign exchange
reinsurance to the insurer that has ceded the reinsurance via an insurance broker shall be made from their foreign exchange accounts
by presenting related contracts of reinsurance, list of payment, and authorization of insurance broker.
(3)
Payment for cancellation of foreign exchange insurance by the insurer to the applicant via an insurance broker shall be made from
the foreign exchange account of the broker by presenting related contract of insurance, agreement on cancellation of the foreign
exchange insurance, and authorization of insurance broker.
Article 43
When going through the procedure of the receipt and payment of, or sale and purchase of foreign exchange for the premium, indemnity
or insurance benefits related to foreign exchange insurance, the designated foreign exchange bank shall strictly examine corresponding
valid documents and commercial vouchers, and keep them for 5 years for future check.
Chapter VI Legal Responsibilities
Article 44
If the insurer operates foreign exchange business without approval, the SAFE office concerned shall order it to terminate such operations
and return collected premiums, confiscate the illegal income that has been gained and additionally impose a fine above RMB 100,000
but below RMB500,000. If the offense constitutes a crime, criminal responsibility shall be investigated according to law.
Where the insurer that operates foreign exchange business exceeds its approved scope of business without authorization, or continues
to operate that part of foreign exchange business that has been terminated or suspended by the SAFE office concerned, the SAFE office
concerned shall order it to rectify the case and return the collected premiums, confiscate the illegal income that has been gained,
and additionally impose a fine above RMB 100,000 but below RMB500,000. Where the circumstances are serious, or rectification is not
carried out within the time limit, the SAFE office concerned shall suspend or revoke its foreign exchange business license. If the
offense constitutes a crime, criminal responsibility shall be investigated according to law.
Article 45
Where the insurer violates the provisions of this Rules by collecting premium, paying indemnity or insurance benefits, and settling
insurance contracts in foreign exchange without authorization for insurance contracts that do not meet the requirements in this Rules,
the SAFE office concerned shall order its rectification, confisca
Circular of the State Administration of Taxation on Issues Relating to the Tax Treatment of Enterprises with Foreign Investment which
Foreign Investor’s Capital Contribution Lower than 25%
GuoShuiHan [2003] No. 422
April 18, 2003
State tax bureaus and local tax bureaus of provinces, autonomous regions and municipalities directly under the Central Government,
municipalities separately listed on the State plan:
For facilitating localities to accurately understand, carry out and implement the Circular of the MOFTEC, the State Administration
of Taxation, the State Administration for Commerce and Industry, and the State Administration of Foreign Investment on Issues Relating
to Strengthening the administration over the Examination and Approval, Registration, Foreign Exchanges and Taxes of Enterprises with
Foreign Investment (WaiJingMaoFa [2002] No.575), here is to clarify the issues relating to the tax treatment of the newly-established
enterprises with foreign investment with actual capital contributions by foreign investors lower than 25% (hereinafter referred to
as enterprises that foreign investment lower than 25%):
I.
Issues on applicable tax system. The applicable tax system to enterprises that foreign investment lower than 25% shall be the same
as that to domestic enterprises without enjoying the preferential tax treatment granted to enterprises with foreign investment, unless
otherwise provided for by the State Council.
II.
Issues on tax registration. Enterprises that foreign investment lower than 25% shall be treated as domestic enterprises when handling
with tax registration, unless otherwise provided for by the State Council.
Please abide by and implement the present Circular.
Order of the Director of the State Intellectual Property Office
No.30
In order to regulate management and supervision of the patent agency industry, the Measures for Management of Patent Agencies are
formulated and hereby promulgated. The Measures shall come into force on July 15, 2003.
The Measures on Approving the Establishment of Patent Agencies (for Interim Implementation) promulgated by No.23 Order of the State
Intellectual Property Office will be abolished at the same time.
Director of the State Intellectual Property Office Wang Jingchuan
June 6, 2003
Measures for Management of Patent Agencies
Chapter I General Provisions
Article 1
In order to perfect the system of patent agencies, maintain the normal order of patent agency industry and guarantee the practice
of by the patent agencies and patent agents by force of law, the Measures are formulated according to the Patent Law, the Regulations
on Patent Agencies and the relevant provisions of the State Council.
Article 2
The State Intellectual Property Office and the intellectual property offices of the provinces, autonomous regions and municipalities
directly under the Central Government shall manage and supervise patent agencies and patent agents according to the Patent Law, the
Regulations on Patent Agencies and the Measures.
All China Association of Patent Agents shall organize and guide patent agencies and patent agents to perform the Patent Law, the Regulations
on Patent Agencies and the Measures by example, regulate professional conducts, strictly adopt professional self regulation, and
increasingly improve professional service level.
Chapter II Establishment, Modification, Close-up and Revocation of Patent Agencies and their office
Article 3
the organization form of patent agencies shall be a partnership patent agency or a limited liability patent agency. A partnership
patent agency shall be jointly invested and initiated by at least 2 persons, and a limited liability patent agency shall be jointly
invested and initiated by at least 5 persons.
Partners of the partnership patent agency shall bear unlimited joint liability for the debts of the patent agency; partners of the
limited liability patent agency shall bear the liability for the debts of the patent agency with all its assets.
Article 4
The establishment of a patent agency shall meet the following conditions:
(1)
having the agency name in compliance with Article 7 of the measures;
(2)
having a partnership agreement or Articles of association;
(3)
having partners or shareholders stipulated by Articles 5 and 6 of the measures;
(4)
having necessary funds, which shall be no less than RMB50,000 if a partnership patent agency is to be established, or which shall
be no less than RMB100,000 if a limited liability patent agency is to be established;
(5)
to have fixed offices and necessary working facilities;
Where a law firm applies to run the patent agency services, there shall be at least 3 full-time lawyers in this law firm, each of
whom has the patent agent qualification.
Article 5
Partners or shareholders of a patent agency shall meet the following conditions:
(1)
having the patent agent qualification;
(2)
having over 2 years experiences on the practice of patent agencies
(3)
engaging in the full-time the patent agency services;
(4)
being under the age of 65 when applying for establishing a patent agency;
(5)
having good behavior.
Article 6
a person who has one of following circumstance shall not be the partner or shareholder of a patent agency:
(1)
having no complete capacity of civil disposition
(2)
working in state organs or enterprises and institutions and not formally go through formalities of resignation, dismissal or retirement;
(3)
less than 2 years as a partner or shareholder of the other patent agency
(4)
less than 3 years circulated a notice of criticism stipulated by Article 5 of Rules on Disciplinary of Patent Agencies or reprimanded
by certificate reclamation of the patent agent.
(5)
punished by criminal penalty (except for committing crimes by negligence)
Article 7
A patent agency shall only have and use one name.
The name of a patent agency shall be composed of the name of the city, font size and “Patent Agency Firm”, “Patent agency Co., Ltd.”
and “Intellectual property Agency Firm”, “Intellectual property Agency Co., Ltd.”. Its font size shall not be, throughout the country,
identical with or similar to another patent agency’s font size that is being or has been used.
Where a law firm runs the patent agency services, it may use the name of this law firm.
Article 8
Whoever applies to establish a patent agency shall submit the following application materials:
(1)
application form for the establishment of the patent agency;
(2)
partnership agreement or articles of association of the patent agency;
(3)
asset evaluation certificate;
(4)
duplicates of the patent agent qualification certificates and ID cards;
(5)
resumes and certification on the personnel file and duplicates of the retirement certification;
(6)
certification of offices and working facilities;
(7)
other evidentiary material.
A law firm that applies to run the patent agency services shall submit the following application materials:
(1)
the application form for running the patent agency services;
(2)
a letter issued by the competent administrative organ of justice on approving the applicant to run the patent agency services;
(3)
partnership agreement or the articles of association of the law firm;
(4)
duplicate of the practice permit of the law firm and attestation of funds;
(5)
duplicates of lawyer licenses of the patent agents, duplicates of the patent agent qualification certificates and duplicates of the
ID cards;
(6)
certification of offices and working facilities;
(7)
other evidentiary materials.
The above-mentioned evidentiary materials shall be those issued within 6 months before applying for establishment of a patent agency
or undertaking of patent agency practice revocation.
Article 9
The procedures for approving the establishment of a patent agency are as follows:
(1)
whoever applies to establish a patent agency shall apply to the intellectual property office of the province, autonomous region or
municipality directly under the Central Government at his locality. The intellectual property office of the province, autonomous
region or municipality directly under the Central Government shall, after examination, submit the application to the State Intellectual
Property Office for approval within 30 days upon receipt of the application if the application has met the conditions provided for
in the Measures; or shall notify the applicant in written form within 30 days upon receipt of the application if the application
fails to meet the conditions provided for in the Measures.
(2)
The State Intellectual Property Office shall, within 30 days upon receipt of the submitted documents, make a decision on approving
the application which meets the conditions provided for in the Measures, notify the intellectual property office of the province,
autonomous region or municipality directly under the Central Government who submitted the application and issue the registration
certificate of patent agency and the agency code; or shall, within 30 days as of the receipt of the submitted documents, notify the
intellectual property office of the province, autonomous region or municipality directly under the Central Government to re-examine
the application which does not meet the conditions provided for in the Measures.
A law firm that applies to run the patent agency services shall be approved with reference to the above-mentioned provisions
Article 10
In case of modifying registration matters on name, address, articles of association, and partner or shareholder, the patent agency
concerned shall apply to the State Intellectual Property Office and submit the application to the intellectual property office of
the province, autonomous region or municipality directly under the Central Government at his locality. The modification shall come
into force upon approval of the State Intellectual Property Office.
Article 11
In case of winding up or revocation, the patent agency concerned shall after properly handling with various matters not settled apply
to the intellectual property office of provinces, autonomous regions or municipalities directly under the Central Government at his
locality. If agreed upon review, registration certificate of patent agency and the mark brand shall be submitted to the intellectual
property office of the province, autonomous region or municipality directly under the Central Government at his locality. The State
Intellectual Property Office shall handle with the formalities of winding-up or revocation.
Article 12
In case of establishing office in the province, the patent agency concerned shall apply to the intellectual property office of provinces,
autonomous regions or municipalities directly under the Central Government at his locality. If approved, it shall be filed by the
intellectual property office of provinces, autonomous regions or municipalities directly under the Central Government to the State
Intellectual Property Office.
In case of cross province establishment of office, the patent agency concerned shall after obtaining consent of the intellectual property
office of provinces, autonomous regions or municipalities directly under the Central Government at his locality apply to the intellectual
property office of provinces, autonomous regions or municipalities directly under the Central Government at his office locality.
If approved, it shall be filed by the intellectual property office of provinces, autonomous regions or municipalities directly under
the Central Government at his office locality to the State Intellectual Property Office.
Article 13
A patent agency applying to establish an office shall be compliance with following conditions:
(1)
the time of establishment more than two years;
(2)
having over 10 patent agents;
(3)
having gone through the annul examination of the previous year.
Article 14
A patent agency shall be compliance with following conditions:
(1)
having over 2 full-time patent agents assigned or engaged by the patent agency;
(2)
having fixed offices and necessary funds;
(3)
The name of the office shall be composed of the full name of the patent agency, the name of the city at the office locality and “Office”.
Article 15
The intellectual property office of provinces, autonomous regions or municipalities directly under the Central Government can additionally
stipulate other conditions and procedures for patent agencies establishing offices in their administrative areas and submit the relevant
provisions to the State Intellectual Property Office.
Article 16
The offices of the patent agencies shall be not handle with the patent agency services with the their solitary name, and their personal
matters, finance and service shall be unified managed by their patent agency. The patent agencies shall bear the civil liability
to the service activities of their offices.
In case of cross province establishment of offices, their offices shall accept the instruction and supervision of the intellectual
property offices of provinces, autonomous regions or municipalities directly under the Central Government at their locality.
Article 17
In case of winding up or revocation, the office concerned shall after properly handling with various matters not settled apply to
the intellectual property office of provinces, autonomous regions or municipalities directly under the Central Government at their
locality. If approved, it shall be filed by this intellectual property office to the State Intellectual Property Office, and shall
submit with a copy to the intellectual property offices of provinces, autonomous regions or municipalities directly under the Central
Government at their locality.
In case of winding up or revocation, the office shall terminate at the same time.
Chapter III The Professional Practice of the Patent Agents
Article 18
The professional practice of the patent agents shall accept the engagement and appointment of the approval established patent agency
to establish and have professional practice certificates.
Article 19
When engaging patent agents, the patent agency shall reach an engagement agreement with the patent agents in the principle of free
will and mutual consent through consultation, and both parties to the engagement agreement shall abide by the engagement agreement.
Article 20
The issuance for the professional practice certificates of patent agents shall be compliance with following conditions:
(1)
having the patent agent qualification;
(2)
being able to full-time engage the patent agency services;
(3)
the person who have no experiences of the patent agency or patent inspection continually practiced over a year and participated in
training before formal work;
(4)
engaged by the patent agencies;
(5)
being under the age of 70 when issuing the certificate;
(6)
having good behavior.
Article 21
A person who has one of following circumstance shall not be issued the professional practice certificate of the patent agent:
(1)
having no complete capacity of civil disposition
(2)
prior to application working for other patent agency, not formally be dismissed by the patent agency and not go through revocation
formalities on the professional practice certificate of the patent agent;
(3)
less than 1 year after collecting the professional practice certificate of the patent agent, transforming to other patent agency
(4)
less than 3 years reprimanded by the certificate reclamation of patent agent stipulated by Article 5 of Rules on Disciplinary of
Patent Agencies;
(5)
punished by criminal penalty (except for committing crimes by negligence)
Article 22
Whoever applies for issuing a patent agency shall submit the following materials:
(1)
application form for the professional practice certificates of the patent agents;
(2)
duplicates of the patent agent qualification certificates and ID cards
(3)
certification on the personnel file or duplicates of the retirement certification
(4)
employment agreement issued by the patent agencies;
(5)
prior to application working for other patent agency, shall submit dismissal certification of the patent agency
(6)
in case of applying for issuing the professional practice certificates of the patent agents for the first time, shall submit the practice
certification and certification for participating in training before formal work issued by the probation patent agency.
Article 23
The State Intellectual Property Office authorize All China Association of Patent Agents to take charge of the specific matters relating
to issuance, modification and revocation of the professional practice certificates of the patent agents.
Article 24
Upon reviewing, All China Association of Patent Agents hold that the issuance and application of the professional practice certificates
of the patent agents are compliance with the conditions stipulated by the measures, they shall issue the professional practice certificates
of the patent agents within 15 days upon receipt of the application; otherwise, All China Association of Patent Agent shall notify
the applicant with written form within 15 days upon receipt of the application.
Article 25
If the patent agencies want to dismiss the patent agents, they shall notify the patent agents30 days in advance; If the patent agents
want to dismiss, they shall notify the relevant patent agencies 30 days in advance.
If the patent agencies want to discharge the employment relationship with the patent agents, they shall withdraw the professional
practice certificates of the patent agents and issue dismissal certification, and handle with revocation formalities of the professional
practice certificates of the patent agents within 10 days upon issuing the dismissal certification to All China Association of Patent
Agents.
Article 26
In case of close-up or revocation, the patent agencies shall withdraw all the professional practice certificates of their patent agents
and handle with revocation formalities of the professional practice certificates of the patent agents within 10 days upon obtaining
the review and approval of the intellectual property offices of the provinces, autonomous regions and municipalities directly under
the Central Government.
Article 27
All China Association of Patent Agents shall keep filing with The State Intellectual Property Office and submit the relevant materials
within 5 days upon issuing, modifying or repealing the professional practice certificates of the patent agents, and send with a copy
to the intellectual property offices of the provinces, autonomous regions and municipalities directly under the Central Government
at the locality of the patent agencies.
Article 28
The person who holds no the professional practice certificate of the patent agent shall not engage the patent agency services for
seeking for economic benefits in the name of the patent agent.
Article 29
In case of undertaking the patent services, the patent agents shall accept the authorization in the name of the relevant patent agencies,
sign the written authorization contract with the authorizer, uniformly charge expenses and take into account according to the facts.
The patent agents shall not accept the authorization without permission, handle with the patent agency services and charge expenses.
Chapter IV The Annul Examination of the Patent Agencies and the Patent Agents
Article 30
The State Intellectual Property Office is responsible for the organization and instruction on the annul examination of the patent
agencies and the patent agents and authorizes the intellectual property offices of the provinces, autonomous regions, municipalities
directly under the Central Government and the National Defense Patent Agency to implement the annul examination.
All the lawyer firms upon approval to establish the patent agencies and run the patent agency services shall participate in the annul
examination. The offices of the patent agencies shall participate in the annul examination together with the patent agencies and
submit the relevant materials with a copy to the intellectual property offices of the provinces, autonomous regions and municipalities
directly under the Central Government at the locality of the offices.
All China Association of the Patent Agents shall coordinate and participate in the annul examination of the patent agencies and the
patent agents.
Article 31
The annul examination of the patent agencies and the patent agents shall carry out once a year, from September 1 to October 31.
Article 32
The content on annul examination of the patent agencies and the patent agents shall include:
(1)
whether the patent agencies are or not compliance with the conditions for establishment stipulated by the measures;
(2)
whether the partners or shareholders of the patent agencies are or not compliance with the conditions stipulated by the measures;
(3)
whether the patent agents who work in the patent agencies hold the professional practice certificates of the patent agents and participate
in the professional training according to the requirements;
(4)
whether the patent agencies and the patent agents have the violation of laws and disciplines stated by Articles 6, 7 and 8 in Rules
on Disciplinary of Patent Agencies (tentative);
(5)
the quantity of the patent agency services since the patent agencies completed the last annul examination;
(6)
the condition on the finance of the patent agencies;
(7)
other content shall be examined each year.
Article 33
The patent agencies shall submit the following materials for the annul examination:
(1)
the registration forms on the annul examination of the patent agencies and the patent agents;
(2)
the working reports of the patent agencies;
(3)
a copy of registration certificate of the patent agencies;
(4)
the professional practice certificates of the patent agents
(5)
the financial statements;
(6)
other required documents.
The working reports of the patent agencies shall fully reflect various contents stipulated by Article 32 of the measures.
Article 34
In case of any no compliance with the provisions of the measures upon annul examination, the intellectual property offices of the
provinces, autonomous regions and municipalities directly under the Central Government shall order the patent agencies and the patent
agencies to correct in the specified time; in case of no correction, it will be deemed as failing to meet annul examination.
In case of violation of laws and disciplines of Articles 6, 7 and 8 in Rules on Disciplinary of Patent Agencies (tentative) by the
patent agencies and the patent agents upon annual examination, the case may be submitted for punishment by the Punishment Commission
of Patent Agencies of the provinces, autonomous regions and municipalities directly under the Central Government.
Article 35
In case of qualification upon annul examination, the intellectual property offices of the provinces, autonomous regions and municipalities
directly under the Central Government shall seal the stamp for qualification of the annual examination of the year; otherwise, the
stamp will be sealed for disqualification of the annual examination.
In case of failing to participate in the annul examination or disqualification of the annual examination, the patent agencies shall
not handle with any new patent agency services at the State Intellectual Property Office and the intellectual property offices before
reaching the qualification of annual examination the next time.
Article 36
The intellectual property offices of the provinces, autonomous regions and municipalities directly under the Central Government shall
submit the summary of annual examination and the registration form of the annul examination to the State Intellectual Property Office
for filing within 10 days upon completing the annul examination of the patent agencies and agents, and submit the results of annual
examination of the professional practice certificates of the patent agents for filling by All China Association of Patent Agents.
The State Intellectual Property Office will publish to the public the results of the annual examination of the patent agencies and
the patent agents.
Article 37
The workers of the State Intellectual Property Office, the intellectual property offices of the provinces, autonomous regions and
municipalities directly under the Central Government and All China Association of Patent Agents keep secret the content that has
not be published in the annual examination on patent agencies.
Chapter V Supplementary Provisions
Article 38
The interpretation of the Measures will be vested with the State Intellectual Property Office.
Article 39
These Measures shall come into force as of July 15, 2003.
The State Administration for Industry and Commerce
Official Reply of the State Administration for Industry and Commerce on the Relevant Issues Concerning the Establishment of Joint
Ventures by and Between Enterprises with Foreign Investment and Other Enterprises
GongShangWaiQiZi [2002] No.6
January 14, 2002
The Industrial and Commercial Bureau of Guangdong Province:
The Request for Instruction on the Relevant Issues concerning the Establishment of Joint Ventures by and between Enterprises with
foreign investment and Other Enterprises by the Industrial and Commercial Bureau of Shantou City in your province (ShanGongShang
[2001] No. 106) has been received. After discussion, we hereby give the reply as follows:
In accordance with Article 3 of Some Provisions on the Registration and Administration of Enterprises with foreign investment Becoming
Company Shareholders or Promoters (GongShangQiZi [1995] No. 260), an enterprise with foreign investment may, in its own name, invest
its assets in a limited liability company or a company limited by shares, and the said “assets” shall not be limited to its “profits”
only.
The State Administration for Industry and Commerce
2002-01-14
