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the People’s Bank of China
Order of the People’s Bank of China
No. 3
In accordance with the Administrative Licensing Law of the People’s Republic of China, the Law of the People’s Republic of China on
the People’s Bank of China and other relevant laws and regulations, the Measures for the Implementation of the Administrative Licensing
by the People’s Bank of China, which were formulated by the People’s Bank of China and adopted at the executive meeting of presidents,
are hereby promulgated and shall come into force as of November 1, 2004.
Zhou Xiaochuan,President of the People’s Bank of China
September 13, 2004
Measures for the Implementation of the Administrative Licensing by the People’s Bank of China
Chapter I General Provisions
Article 1
With the view of regulating the acts of the People’s Bank of China (hereinafter referred to as the PBC) and its branch institutions
in implementing administrative licensing and protecting the lawful rights and interests of the citizens, legal persons and other
organizations, the present Measures are formulated pursuant to the Administrative License Law of the People’s Republic of China and
the Law of the People’s Republic of China on the People’s Bank of China.
Article 2
The term “administrative licensing” as mentioned in the present Measures refers to that the PBC and its branch institutions, according
to the applications filed by the citizens, legal persons or other organizations, allow these citizens, legal persons and other organizations
to engage in special activities after having examined their applications pursuant to law.
Article 3
The present Measures shall be applicable to the implementation of administrative licensing by the PBC and its branch institutions.
The present Measures are inapplicable to the examination and approval of the personnel, finance and foreign affairs of the public
institutions directly subject to the management the People’s Bank of China.
Article 4
The PBC and its branch institutions shall follow the principle of openness, fairness, impartiality, facilitating the people and high
efficiency in the implementation of administrative licensing.
Article 5
The PBC and its branch institutions shall accord with the statutory functions, scope, conditions and procedures in the implementation
of administrative licensing.
The implementation of administrative licensing by the PBC and its branch institutions shall be based on the laws, administrative regulations
and decisions of the State Council.
Within the scope of administrative licensing items as provided in the laws, regulations or decisions of the State Council, the PBC
may formulate specific rules on the implementation of administrative licensing. But these rules shall not create any new administrative
licensing item, nor may they insert any additional condition in violation of the laws, administrative regulations and decisions of
the State Council.
Article 6
The rules formulated by the PBC on the implementation of administrative licensing shall be promulgated. If any rule is not promulgated,
it shall not become the basis for the implementation of administrative licensing.
The conditions, procedure, time limit and results of the implementation of administrative licensing by the PBC and its branch institutions
shall be publicized except that they involve any state secret, commercial secret or personal privacy.
The applicants, who meet the statutory conditions or standard, shall have equal right to obtain administrative license according to
law. None of them may be discriminated by the PBC and its branch institutions.
Article 7
The citizens, juridical persons or other organizations shall be enpost_titled to make a statement and argument for the administrative licensing
implemented by the PBC and its branch institutions and to apply for administrative reconsideration or institute an administrative
lawsuit pursuant to the law.
If the legitimate rights and interests of a citizen, juridical person or any other organization are impaired due to the implementation
of administrative licensing by the PBC or any of its branch institutions, he (it) shall be enpost_titled to claim for compensation in
accordance with the law.
Article 8
The administrative licensing lawfully granted by the PBC and its branch institutions to the citizens, legal persons or other organizations
is protected by law. The PBC and its branch institutions shall not change an effective administrative licensing without permission.
Where any law, administrative regulation or rule, on which the permission of administrative licensing is based, is amended or abolished
or the objective circumstances that the administrative licensing is pursuant to changes greatly, the PBC and its branch institutions
may modify or revoke the effective administrative licensing according to law for the sake of public interests and shall accordingly
compensate the loss of property of a citizen, juridical person or any other institution.
Article 9
The functional departments of the PBC and its branch institutions shall be responsible for handling the administrative licensing within
the purview of their operation powers.
The departments of legal affairs of the PBC and its branch institutions shall be responsible for the hearing and supervision of administrative
licensing.
Article 10
The PBC and its branch institutions shall establish a sound supervision and inspection system for the implementation of administrative
licensing.
The PBC and its branch institutions shall conduct effective supervision over the administrative licensing activities of the licensed
persons.
Article 11
When implementing administrative licensing, the PBC or any of its branch institutions shall not bring forward any improper requirements
such as requiring an applicant to purchase designated commodity, accepting paid service and etc.
When handling an administrative licensing item, any of the functionaries of the PBC and its branch institutions shall not extort or
accept the property of any other person and not seek other private interests.
Chapter II Implementation Organs of Administrative Licensing
Article 12
The PBC shall implement the administrative licensing pursuant to law within the statutory limits of its functions and powers.
The branch institutions of the PBC shall implement the administrative licensing in accordance with the law within the scope of powers
authorized by the PBC.
Article 13
The PBC may, within the statutory limits of its functions and powers, authorize other administrative organs to implement administrative
licensing according to laws, administrative regulations and rules.
The branch institutions of the PBC shall not authorize any other administrative organ to implement the administrative licensing.
Where the PBC authorizes other administrative organs to implement administrative licensing, it shall declare the authorized administrative
organs and the items under administrative licensing, supervise the implementation of administrative licensing of the administrative
organs and bear the legal liability therefore.
An authorized administrative organ shall implement the administrative licensing on behalf of the PBC within the limits of authorized
functions and powers. It shall not entrust any other organization or individual to implement the administrative licensing.
Chapter III Procedures for the Implementation of Administrative Licensing
Section 1 Application and Acceptance
Article 14
Where a citizen, juridical person or any other organization engages in special activities and has obtained the administrative licensing
of the PBC or its branch institution, he (it) shall file an application thereto.
When applying for administrative licensing, the applicant shall submit the application materials to the General Office of the PBC
or offices of the branch institutions of the PBC that shall transfer them to the bank’s (branch institution’s) functional department
undertaking the administrative licensing items on the same day when it receives them. Where an applicant directly submits the application
materials to the bank’s (branch institution’s) functional department undertaking the administrative licensing items, it shall make
up the formalities for handling the documents with the General Office or offices as it handles the administrative licensing matters.
Where the functional department receives any application materials beyond its scope of administrative licensing items, it shall transfer
them to the General Office or offices on the same day when it receives them and the General Office or offices shall transfer them
to the competent functional department on the same day when it receives them.
An applicant may entrust an agent to file an administrative licensing application unless the applicant is required to file an administrative
licensing application to the office of the PBC or of its branch institutions according to law.
Where an applicant entrusts an agent to file an application, he (it) shall provide the identification certificates and power of attorneys
of the consigners and the agent.
An administrative licensing application may be submitted by means of letter, telegraph, telex, fax, electronic data interchange or
email.
Article 15
The functional departments undertaking the administrative licensing items of the PBC and its branch institutions shall be responsible
for accepting the administrative licensing applications.
As respect to applications of administrative licensing items that are subject to the examination of an inferior institution of the
People’s Bank before it is reported to a superior institution for making a decision, the inferior department with the examination
function shall accept the applications.
Where the administrative licensing items shall be handled by several functional departments, the General Office or offices shall decide
to let one of them accept the applications uniformly.
Article 16
The functional departments undertaking the administrative licensing items of the PBC and its branch institutions shall, in its office,
display the licensing items, the basis, conditions, quantity, procedures, time limit, contents of the complete set of materials that
shall be submitted, and the model text of the application form. If possible, it may publish them on the internet or newspapers and
periodicals.
Where the functional department is requested by an applicant to account for or to explain the publicized items, it shall do so by
offering him (it) exact and credible information.
Where the format text of an application form is required, PBC and its branch institutions shall provide the applicants with the format
text of an administrative licensing application. The format text of an application form shall not contain any content that has no
direct relationship with the licensing items applied for.
Article 17
Where a citizen, juridical person or any other organization applies to the PBC or its branch institutions for administrative licensing,
it shall submit pertinent materials and true information about his (its) situation according to the facts and shall be liable for
the authenticity of the substantial content of the application materials.
Article 18
The PBC or its branch institutions shall handle the administrative licensing applications put forward by applicants differently according
to the following circumstances:
(1)
Where the item applied for has no use for administrative licensing in accordance with the law, it shall inform the applicant of the
rejection immediately;
(2)
Where the item applied for does not fall within the limits of functions and powers of the PBC, it shall make a decision of rejection
immediately and inform the applicant to file an application to the competent administrative organ;
(3)
Where the item applied for falls within the limits of functions and powers of the PBC but isn’t subject to the acceptance of institutions
at this level, it shall immediately make an explanation to the applicant and inform him (it) to file an application to the competent
administrative organ;
(4)
Where the errors in the application materials can be corrected on the spot, the applicant shall be permitted to correct them on the
spot;
(5)
Where the application materials are incomplete or inconsistent with the statutory form, it shall inform the applicant the whole contents
that need to be supplemented or corrected on the spot or once within 5 days. Where it fails to do so within the time limit, the day
when the application materials are received shall be considered as the acceptance day;
(6)
Where the item applied for falls within the limits of functions and powers of the PBC and the application materials are complete and
in consistency with the statutory form, or the applicant has supplemented and corrected all the items as required, the application
for administrative license shall be accepted.
Where the PBC or its branch institution accepts, rejects, dismisses the application or requests the application to make correction
and supplement of application materials as mentioned in the preceding paragraph, it shall issue a written notice bearing the seal
of this bank or the seal for the exclusive use of administrative licensing, and a clear indication of the date.
Section 2 Examination and Decision
Article 19
The functional department undertaking administrative licensing items of the PBC or of its branch institutions shall examine the application
materials submitted by an applicant.
Where the application materials are complete and accord with the statutory form, and if it is able to confirm on the spot according
to relevant provisions that the items applied for shall be approved, the functional department undertaking the administrative licensing
items shall make a written administrative licensing decision on the spot, and make and issue an administrative license pursuant to
relevant provisions
Where it is necessary to verify the substantial content of the application materials in pursuance to the statutory conditions and
procedures, the functional department undertaking the administrative licensing items shall assign 2 or more personnel to do so.
Article 20
Where the administrative licensing items shall be subject to the examination of an inferior institution of the PBC before it is reported
and submitted to the superior institution, the inferior institution shall submit its preliminary examination opinions and the complete
set of application materials directly to the superior institution.
When examining the administrative licensing items, the superior shall not demand the applicant to provide any application material
repeatedly.
Article 21
Where the functional department responsible for undertaking the administrative licensing items of the PBC or its branch institutions,
when examining an administrative license application, finds that any party has important direct interests to the matters under the
administrative license, it shall inform the interested party.
The applicant or the interested party shall be enpost_titled to make a statement or argument and shall submit his (its) statement or argument
opinions within 3 days from the date when they are informed of the circumstance. If the statement or argument is made orally, the
functional department undertaking the administrative licensing items shall make well transcripts and have them signed by the person
who makes the statement or argument for confirmation.
The PBC or its branch institutions shall hear the opinions of the applicant or the interested party.
Article 22
After the functional department responsible for undertaking administrative licensing items of the PBC or its branch institutions has
completed the examination over an administrative licensing application, it shall handle it respectively pursuant to the following
circumstances:
(1)
Where the application meets the statutory conditions or standards and is decided to grant an administrative license, it shall make
a decision of approval of the administrative license;
(2)
Where the application doesn’t meet the statutory conditions or standards, and it is decided not to grant an administrative license,
it shall make a decision of disapproval of administrative licensing. In the decision it shall make an explanation of the disapproval
of the administrative license and shall inform the applicant of the right to apply for administrative reconsideration or to lodge
an administrative lawsuit according to law.
Article 23
The functional department responsible for undertaking the administrative licensing items of the PBC or of its branch institutions
shall submit the decision of approval or disapproval of the administrative license to the president (director) or the executive deputy
president of this bank for examination and approval unless the administrative licensing is approved and a certificate thereof is
made and issued on the spot.
The decision of approval or disapproval of the administrative license shall bear the seal of this bank and a clear indication of the
date after being approved by the president (director) or the executive deputy president of this bank.
Article 24
Where the PBC or its branch institution makes a decision of approval of administrative licensing and it is necessary to issue an administrative
license according to laws, administrative regulations and rules of the PBC, it shall issue the applicant an administrative license
bearing the seal of the bank.
Article 25
The decision of approval of the administrative licensing made by the PBC or its branch institutions shall be publicized and the general
public shall be enpost_titled to consult them.
Article 26
Where the application scope of the administrative licensing lawfully implemented by the PBC and its branch institutions is subject
to no geographical limits, the administrative license obtained by the applicant shall be effective nationwide.
Article 27
With respect to the administrative licensing subject to quantitative restriction, where 2 or more applicants of it meet the statutory
conditions and standards, the PBC or its branch institutions shall decide to approve the administrative licensing according to the
sequence of accepting the applications for the administrative licensing. However, if it is otherwise prescribed in the laws and regulations,
the latter shall prevail.
When granting a special qualification to the juridical persons or other organizations, the PBC and its branch institutions shall make
decisions of administrative licensing according to the evaluation result in aspects of the structure of professionals of the applicants,
technical conditions, business performance and management level. However, if it is otherwise prescribed in the laws and regulations,
the latter shall prevail.
Section 3 Time Limit and Service
Article 28
Except that a decision of administrative licensing can be made on the spot, the PBC or its branch institutions shall make a decision
of administrative licensing within 20 days from the day when it accepts the administrative licensing application. If it is unable
to make a decision within 20 days, it may be extended for 10 days upon approval of the president (director) or deputy president (director)
of the bank, and the reasons for extension shall be informed to the applicant. However, if it is otherwise prescribed in laws or
administrative regulations, the latter shall prevail.
Article 29
Where an administrative licensing shall be subject to the examination of an inferior institution of the PBC before it is submitted
to its superior institution for decision, the inferior institution shall complete the examination within 20 days after it accepts
the application, and shall submit the preliminary examination opinions and application materials to the superior institution.
The superior institution shall decide whether or not to approval the administrative licensing within 20 days after it receives the
application materials and the preliminary examination opinions submitted by the inferior institution.
However, if it is otherwise prescribed in laws or administrative regulations, the latter shall prevail.
Article 30
Where the PBC or its branch institution makes a decision of administrative licensing and it is necessary for them to hold a hearing
pursuant to law, the time for hearing shall not be included in the time limit as provided in this Section; and it shall inform the
applicant of the hearing time in written form.
Article 31
The PBC or its branch institutions shall serve the notice of acceptance, rejection, dismissal or demand to make supplements or corrections
to the application materials to the party concerned within 5 days after it receives the application materials, except that the notice
shall be made in time.
Article 32
Where the PBC or its branch institution decides to approve the administrative licensing, it shall, serve a written decision of approval
of the administrative licensing or an administrative license to the applicant within 10 days after it makes a decision.
Where the PBC or its branch institution decides to disapprove an administrative license, it shall serve a written decision of disapproval
of the administrative license to the applicant within 10 days after it makes a decision.
The PBC or its branch institution shall, under relevant provisions of the Civil Procedural Law, determine the way of serving the administrative
license or decision as mentioned in the preceding Paragraphs.
Section 4 Hearing
Article 33
For matters that are subject to hearing as prescribed in any law, regulation or rule of the PBC on the implementation of administrative
licensing, other administrative licensing matters of great importance to the public interests that the PBC or its branch institution
considers it necessary to hold a hearing, the PBC or its branch institution shall announce them to the general public and hold a
hearing of witnesses.
Article 34
Where an administrative license directly relates to the important interests between the applicant and others the functional department
undertaking the administrative licensing items shall inform the applicant and the interested party of the right to request a hearing
of witnesses before the PBC or its branch institution makes a decision of administrative licensing. Where the applicant or the interested
party files an application for hearing of witnesses within 5 days after he (it) is informed of the aforesaid right, the PBC or its
branch institutions shall organize a hearing within 20 days.
The applicant or the interested party shall not pay the expenses of organizing the hearing by the PBC or its branch institutions.
Article 35
The hearing shall be organized by following the procedures below:
(1)
The functional department responsible for undertaking administrative licensing items of the PBC or its branch institutions shall,
not later than 7 days before the hearing is held, inform the applicant and the interested party of the date and place of hearing,
or make an announcement if necessary.
(2)
The hearing shall be held openly.
(3)
The hearing shall be presided by a person working in the legal affairs department of the PBC or its branch institutions or by a person
working in a department other than the one undertaking the administrative licensing items as designated by the president (director)
or deputy president (deputy director) of the bank;
Where the applicant or the interested party believes that the presiding hearer is of direct interests to the administrative licensing
item, he (it) shall be enpost_titled to apply for the withdrawal of the presiding hearer. Whether the presiding hearer should withdraw
or not shall be decided by the president (director) or executive deputy president (deputy director) of this bank.
(4)
In the course of hearing, the functional department undertaking the administrative licensing items shall provide the proofs or reasons
for making the examination opinions. The applicant and the interested party may advance proofs and make arguments and cross-examination.
(5)
The presiding hearer shall designate a special person to put down things about the hearing in writing. The notes shall include the
hearing date, place, attendees, matters and opinions of the parties concerned.
The notes of hearing shall be confirmed and bear the signature or seal of the parties concerned. If any party concerned refuses to
do so, the circumstance shall be noted down and be testified by other attendees with their signatures or seals.
(6)
After the end of the hearing, the presiding hearer shall hand the hearing notes and the proofs obtained in the hearing to the functional
department undertaking the administrative licensing items which shall make a decision of approval or disapproval of administrative
licensing according to the hearing notes and handle the administrative license application in accordance with Articles 22 and 23
of the present Measures.
Section 5 Modification and Extension
Article 36
Where a licensee requests for modifying the administrative licensing items, he shall file an application to the PBC or any of its
branch institution that has made decision on the administrative licensing. If it meets the statutory conditions and standards, the
PBC or its branch institutions shall go through the modification procedures in accordance with law.
Article 37
Where a licensee needs to extend the period of validity of the administrative license, he shall file an application with the PBC or
its branch institution that has made decision on the administrative licensing 30 days prior to the expiry of the period of validity
of this administrative license. However, if it is otherwise prescribed in any law, regulation or rule, the latter shall prevail.
The PBC or its branch institutions shall, in light of the application filed by a licensee, decide whether or not to approve the extension
prior to the expiry of the period of validity of this administrative license; if it fails to make a decision within the time limit,
it shall be deemed that the extension has been approved.
Chapter IV Costs of Administrative Licensing
Article 38
When implementing the administrative licensing and conducting supervision and inspection on the licensing items, the PBC and its branch
institutions shall not charge any expense for that. However, if it is otherwise prescribed in any law or administrative regulation,
the latter shall prevail.
When offering a format text of the application form of administrative licensing, the PBC and its branch institutions shall not charge
anything for that.
Article 39
Where the PBC and its branch institutions charge fees in accordance with the laws and administrative regulations in the implementation
of administrative licensing, they shall do so pursuant to the announced statutory items and standards. They shall uniformly combine
the fees collected into an account and turn them over to the state treasury entirely. No one may retain, misappropriate, privately
divide or privately divide in a disguised form the aforesaid fees.
Chapter V Supervision and Inspection
Article 40
The functional department undertaking the administrative licensing items of the PBC or its branch institutions shall record the administrative
licensing items basis, examination opinions, handling results and time limits handled by it and shall send a copy to its legal affairs
department each quarter.
Article 41
The person in charge of the functional department undertaking the administrative licensing items of the PBC or its branch institutions
shall irregularly inspect the administrative licensing matters handled by the department at least twice a year.
The legal affairs department of the PBC or its branch institutions shall supervise and inspect the administrative licensing matters
handled by this bank. If it finds any problem in the inspection, it shall demand the undertaking department to make corrections in
time and shall report it to the president (director) or executive deputy president (deputy director) of this bank.
Article 42
The legal affairs department of a branch institution of the PBC shall make annual analysis of the information on the implementation
of administrative licensing within its jurisdictional area and shall submit a report to the superior legal affairs department. The
report shall cover the administrative licensing categories, quantity, results (including approval or disapproval of administrative
licensing), records, supervision and inspection, existing problems proposals and etc..
Article 43
The functional department undertaking the administrative licensing items of the inferior institution of the PBC shall report and submit
the information on the implementation of administrative licensing to the like functional department of the superior institution for
archival purposes.
The superior institution shall conduct supervision and inspection over the implementation of administrative licensing by the inferior
institutions and shall rectify the illegal actions thereof.
Article 44
The PBC and its branch institutions shall establish a sound system to supervise the licensees’ activities under administrative licensing,
and shall perform its supervisory responsibilities by verifying and reflecting the relevant materials that display the information
on licensees’ activities under administrative licensing.
When the PBC or anyone of its branch institution conducts supervision and inspection over a licensee’s activities under administrative
licensing according to law, it may consult or demand the licensee to report and submit relevant materials pursuant to the law. The
licensee shall faithfully offer pertinent information and materials.
The functional department undertaking the administrative licensing items of the PBC or its branch institutions shall note down the
information on the supervision and inspection and the handling result and shall transfer the notes to the archival department with
the signatures of the supervisors or inspectors.
The general public shall be enpost_titled to consult the supervisory and inspecting notes as mentioned in the preceding paragraph.
Article 45
When conducting supervision or inspection, the PBC or its branch institutions shall not hamper normal business activities of the licensee.
Article 46
Where a licensee conducts an activity in violation of the matters under administrative licensing in a area outside the jurisdiction
of the branch institution of the PBC that has made the approval decision of administrative licensing, the branch institution of the
PBC located in the area where the illegal activity is conducted shall send a copy of the illegal facts and punishments to the branch
institution of the PBC that has made the decision of approval of administrative licensing in accordance with the law.
Article 47
Where any individual or organization discovers any activity in violation of the matters under administrative licensing, it shall be
enpost_titled to inform the PBC or its branch institutions which shall verify and deal with such activity in time.
Article 48
The PBC or its branch institutions may, in light of its functions and powers or the request of the interested party, cancel decisions
of administrative licensing made by this bank or its inferior institutions:
(1)
The functionary of the PBC or anyone of its branch institution makes a decision of administrative licensing by abusing their authorities
or neglecting thei
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the State Council
Order of the State Council of the People’s Republic of China
No.417
The Regulation on the Administration of Toll Roads, which was adopted at the 61st executive meeting of the State Council on August
18, 2004, is hereby promulgated, and shall go into effect as of November 1, 2004.
Premier of the State Council Wen Jiabao
September 13, 2004
Regulation on the Administration of Toll Roads
Chapter I General Provisions
Article 1
In order to strengthen the administration on toll roads, to regulate the toll collection acts on toll roads, to maintain the lawful
rights and interests of the business operators and users of toll roads, and to promote the development of highway industry, the present
Regulation is formulated in accordance with the Highway Law of the People’s Republic of China (hereinafter referred to as the Highway
Law)
Article 2
The “toll roads” as mentioned in the present Regulation, shall refer to the roads (including bridges and tunnels), which comply with
the Highway Law and the provisions of the present Regulation, and in which vehicle tolls are collected according to law upon approval.
Article 3
The people’s governments at all levels shall take positive measures to support and promote the development of highway industry. The
highway development shall focus on non-toll roads, and properly develop toll roads.
Article 4
No vehicle tolls may be charged on the road that is constructed through government investment or donation of social organizations
or individuals.
Article 5
No entity or individual may establish any booth or checkpoint on roads to collect vehicle tolls in violation of the Highway Law and
the provisions of the present Regulation.
Article 6
Any entity or individual shall have the right to refuse to pay vehicle tolls charged by any one who illegally sets up toll booth or
checkpoint on highways.
For the acts as illegally establishing tollbooths or checkpoints on highways, illegally collecting or using vehicle tolls, illegally
transferring the rights and interests in toll roads or illegally extending the time limit for toll collection, etc., any entity or
individual shall be enpost_titled to report to the departments of traffic, price or finance, etc. The department receiving such report
shall investigate into and handle it timely according to the division of functions. If it does not have the right to investigate
into and handle it, it shall transfer it immediately to the department that has such right. The department accepting the case shall
investigate into and handle it within 10 days from receipt of such report or the materials transferred.
Article 7
Upon approval, the business operator of any toll road shall have the right to collect vehicle tolls on vehicles passing through the
toll road according to law.
Vehicle tolls shall be exempted for the vehicles of troops and armed police troops, the police wagons with uniform marks which are
used for handling traffic accident, executing ordinary patrolling tasks or dealing with emergencies on toll roads under the jurisdiction
of a public security organ, and the vehicles used for execution of emergency rescue and relief tasks with the approval by the competent
communications department of the State Council and the people’s government of the province, autonomous region, and municipality directly
under the Central Government.
Vehicle tolls shall be exempted for combine harvesters and transportation combine harvesters (including rice transplanter) operating
across regions. No combine harvester may pass through freeways.
Article 8
No entity or individual may illegally interfere in the business management of any toll road in any form, or seize or embezzle vehicle
tolls collected by any business operator of any toll road according to law.
Chapter II Construction of Toll Roads and Setup of Toll Booths
Article 9
The construction of any toll road shall conform to the highway development plan of the state and the province, autonomous region,
and municipality directly under the Central Government, and be in accordance with the technical level and scale of the toll road
as prescribed by the present Regulation.
Article 10
The vehicle tolls for the road constructed by the competent communications department of the people’s government at or above the county
level through making use of loans or raising funds with compensation from enterprises or individuals (hereinafter referred to as
the roads whose loans are repaid by the government), road constructed with the investment of economic organizations both home and
abroad or whose toll rights on the road, with the loans of which being repaid by the government, are assigned in accordance with
the Highway Law (hereinafter referred to as the for-profit roads) may not be collected until it has been approved according to law.
Article 11
The principle of separating governmental functions from institution management shall be observed for the construction and management
of highways whose loans are repaid by the government, and a special non-profit corporate body shall be established according to law.
The competent communications department of any people’s government of the province, autonomous region, and municipality directly under
the Central Government may centralize the administration, grant and repayment of loans in respect to the roads within its own administrative
region whose loans are repaid by the government.
The for-profit road construction projects shall be announced to the general public, and the investors shall be chosen by way of bid
invitation or tendering.
The for-profit road shall be constructed, operated and managed by a legal person of road enterprise established according to law.
Article 12
The setup of tollbooths on toll roads shall be subject to the examination and approval of the people’s governments of the provinces,
autonomous regions, and municipalities directly under the Central Government in accordance with the following provisions:
1.
No tollbooth may be established on the main lane of any highway and other closed toll roads apart from at the entry and exit ends,
unless it is really necessary to set up tollbooths between provinces, autonomous regions, and municipalities directly under the Central
Government. And
2.
The space between two neighboring tollbooths shall be no less than 50 kilometers in the same main road of a non-closed toll road.
Article 13
Tolls shall be collected through computer network on highways and other closed toll roads, so as to reduce tollbooths and improve
traffic efficiency. The concrete measures for toll collection through computer network shall be formulated by the competent communications
department of the State Council together with the relevant departments of the State Council.
Article 14
The time limit for toll collection of any toll road shall be subject to the examination and approval of the people’s governments of
provinces, autonomous regions, and municipalities directly under the Central Government according to the following standards:
1.
The time limit for toll collection of the road whose loans are repaid by the government shall be determined in accordance with the
principle of loans being repaid by the tolls collected and funds raised with compensation being repaid by the tolls collected. The
maximum time limit may not exceed 15 years. The maximum time limit for toll collection of the road whose loans are repaid by the
governments of the provinces, autonomous regions, and municipalities directly under the Central Government in the middle and western
areas as determined by the state may not exceed 20 years. And
2.
The time limit for toll collection of for-profit roads shall be determined in light of the principle of redemption of investment with
reasonable returns. The maximum time limit may not exceed 25 years. The maximum time limit may not exceed 30 years for toll collection
of for-profit roads of the provinces, autonomous regions, and municipalities directly under the Central Government in the middle
and western areas as determined by the state.
Article 15
Hearings shall be conducted for charging standards of vehicle tolls in accordance with the price laws and administrative regulations,
and the examination and approval shall be conducted according to the following procedures:
1.
The charging standards for roads whose loans are repaid by the government, after being checked by the competent communications department
of the people’s government of the province, autonomous region, and municipality directly under the Central Government together with
the competent price department and finance department of the corresponding level, shall be subject to the examination and approval
of the corresponding people’s government; And
2.
The charging standard for for-profit roads, after being checked by the competent communications department of the people’s government
of the province, autonomous region, and municipality directly under the Central Government together with the competent price department
of the corresponding level, shall be subject to the examination and approval of the corresponding people’s government.
Article 16
The charging standard for vehicle tolls shall be computed and determined in light of the technical level of the road, total investment,
local price indexes, time limit for repayment of loans or funds raised with compensation, time limit for redemption of investment,
volume of traffic and other factors. For vehicles that transport fresh and life farm products in the green passages prescribed by
the state, the charging standard for vehicle tolls may be lowered properly or exempted.
In case of constructing facilities having no relation with the management of toll roads, or constructing facilities and service facilities
for managing toll roads exceeding the standards, the expenses may not be regarded as the factor for determination of the charging
standard.
If it is necessary to adjust the charging standard for vehicle tolls, it shall be handled according to the procedures as prescribed
in Article 15 of the present Regulation.
Article 17
As to the tollbooths of any toll road, the time limit for toll collection, charging standard for vehicle tolls or the adjustment plan
of charging standard, which are examined and approved according to the procedures as prescribed by the present Regulation, the department
in charge of examination and approval shall submit the relevant documents for archival purposes to the competent communications department
and price department of the State Council within 10 days from the date of examination and approval. If the roads are those whose
loans are repaid by the government, the relevant documents shall also be filed with the finance department of the State Council within
10 days from the date of examination and approval.
Article 18
The following technical level and scale shall be complied with for the construction of toll roads:
1.
For freeways, the consecutive mileage shall be more than 30 kilometers, excluding the freeways from the urban district to its airport.
2.
For arterial roads, the consecutive mileage shall be more than 50 kilometers. And
3.
For independent two-lane bridges or tunnels, the length shall be more than 800 meters; for independent four-lane bridges or tunnels,
the length shall be more than 500 meters.
No tolls shall be charged on roads whose technical level is two or less. But vehicle tolls may be collected upon approval according
to law on the secondary road whose consecutive mileage is more than 60 kilometers, and which is constructed by the provinces, autonomous
regions, and municipalities directly under the Central Government in the middle and western areas as determined by the state.
Chapter III Transfer of Rights and Interests in Toll Roads
Article 19
In case any rights and interests in any toll road are transferred according to the provisions of the present Regulation, it shall
be announced to the general public. The transfer shall be made in the way of bid invitation or tendering, and the business operators
shall be chosen fairly, justly and openly, and a transfer agreement shall be concluded in accordance with law.
Article 20
The rights and interests in a toll road shall include toll collection rights, advertisement operation rights, and service facilities
operation rights.
The legal rights and interests of investors shall be protected in accordance with law in the event of transferring the rights and
interests in any toll road.
Article 21
In case of transferring the toll collection rights of the rights and interests in the road whose loans are repaid by the government,
the transferor may apply for an extension of the time limit for toll collection, but the extension period shall not exceed five years.
The time limit for toll collection shall not be extended for transfer of toll collection rights of the rights and interests in for-profit
roads.
Article 22
Under any of the following circumstances, the toll collection rights of the rights and interests in a toll road may not be transferred:
1.
The independent two-lane bridge and tunnel whose length is less than 1,000 meters;
2.
Secondary roads; or
3.
The time for toll collection has exceeded two thirds of the approved time limit for toll collection.
Article 23
The income from transfer of rights and interests in the roads whose loans are repaid by the government shall be turned in to the treasury,
and shall be used for road construction apart from being used for repayment of loans and funds raised with compensation.
Article 24
The concrete measures for the transfer of the rights and interests in a toll road shall be formulated by the competent communications
department of the State Council together with the development and reform department and finance department of the State Council.
Chapter IV Management of Toll Roads
Article 25
A toll road shall be checked before acceptance in accordance with the relevant state provisions after the completion of its construction.
No vehicle tolls may be collected until the road is qualified upon acceptance inspection.
No tolls may be collected during the construction of a toll road.
Article 26
The business operator of a toll road shall make routine inspection and maintenance on the toll road and the facilities along it according
to the standard and criterions as prescribed by the state, so as to ensure that the toll road be in a good technical state, and provide
high quality services for vehicles and personnel passing through it.
For the maintenance of a toll road, the construction and completion thereof shall be strictly in compliance with the time limit for
the maintenance. No one may postpone the maintenance construction by exceeding the time limit, nor may the construction affect the
safe passage of vehicles.
Article 27
The business operator of a toll road shall set up a bulletin board on an eye-catching place of a toll booth, specifying the name of
the toll booth, department of examination and approval, toll collection entity, charging standard, fixed number of year for starting
and ending toll collection, and telephone number for supervision, and other contents, etc., so as to accept public supervision.
Article 28
The business operator of a toll road shall set up traffic signs and markings according to the standards as prescribed by the state
and in light of the traffic status, facilities along the roads, and etc.
The traffic signs and markings shall be clear, accurate and easy to identify. The important passage information shall be indicated
repeatedly.
Article 29
The set up of a toll plaza shall comply with the requirements for safe driving of vehicles; the number of toll plazas shall comply
with the requirements for rushing through of vehicles, and shall not result in traffic jam.
Article 30
The staffing of toll attendants of any tollbooth shall be in keeping with the number of toll plazas and the traffic flow rate, no
toll attendant may be increased at will.
The business operator of a toll road shall strengthen vocational training and education of professional ethics on toll attendants
of the tollbooth, the toll collectors shall be polite and provide services up to the standard.
Article 31
In case of road damage, construction or occurrence of a traffic accident and other circumstances that may influence the normal and
safe driving of vehicles, the business operator of a toll road shall set up safety prevention facilities on the scene, and give indication
on speed limit or warnings on the entry and exit of the toll road, or give a public notice by making use of the variable information
board along the toll road and other facilities. If it results in a traffic jam, the business operator shall report to the relevant
department and assist in diverting the flow of traffic.
In case of a serious damage of any road, or bad weather conditions or major traffic accident and other circumstances that seriously
affect the safe passage of vehicles, the public security organs shall take such traffic control measures as restricting the driving
speed and closing the road according to law and in light of the circumstances. The business operator of a toll road shall actively
cooperate with the public security organs and timely announce the relevant traffic control information to the vehicles passing through
the road.
Article 32
The business operator of any toll road shall issue toll notes to the users of the toll road when collecting vehicle tolls. The toll
notes of the roads whose loans are repaid by the government shall be made and printed uniformly by (or under the supervision of)
the finance department of the people’s government of the province, autonomous region, and municipality directly under the Central
Government. The toll notes of for-profit roads shall be made and printed uniformly by (or under the supervision of) the taxation
department of the people’s government of the province, autonomous region, and municipality directly under the Central Government.
Article 33
The business operator of any toll road shall have the right to refuse the driving through of any vehicle that refuses to pay, escapes
the payment, or pays vehicle tolls less than it should pay according to law, and requires it to replenish the vehicle tolls that
should be paid.
No one may purposely block toll plazas, rush out of the tollbooth by force, assault and batter management personnel of any toll road,
destroy toll facilities or undertake other activities that disturb the order of toll road management for the purpose of refusing
to pay, escaping the payment of, or paying less vehicle tolls than he should pay.
In case of occurrence of the aforesaid acts disturbing the business management order of any toll road, the business operators of the
toll road shall report to the public security organs timely, and the public security organs shall handle it in accordance with law.
Article 34
No vehicle driving on any toll road may be overloaded.
Once finding that any vehicle is overloaded, the business operator of the toll road shall report to the public security organ immediately,
and the public security organ shall handle it in accordance with law.
Article 35
No business operator of any toll road may have the following acts:
1.
Raising the charging standard of vehicle tolls without authorization;
2.
Collecting additional fees or collecting as agent any other fees besides the charging standard for vehicle tolls;
3.
Collecting by force or by other improper means vehicle tolls in a certain period per vehicle; or
4.
Not issuing toll note, or issuing toll note that is not made and printed by (or under the supervision of) the finance department and
taxation department of the people’s government of the province, autonomous region, and municipality directly under the Central Government
or issuing invalid overdue toll notes.
If there is any of the preceding acts, the vehicle driving through a toll road shall have the right to refuse the payment of vehicle
tolls.
Article 36
The income from vehicle tolls collected by the operators of any road whose loans are repaid by the government shall be deposited into
the special financial account in full, and the income management shall be strictly separated from expense management.
The vehicle tolls of the road whose loans are repaid by the government shall be used in full for repayment of loans and funds raised
with compensation except that the necessary overhead and maintenance fees shall be outlaid from the budget of vehicle tolls approved
by the finance department, and shall not be diverted for other purpose.
Article 37
In case the time limit for toll collection of any toll road expires, the toll collection shall be terminated.
In case the loans and the funds raised with compensation have been paid off before the end of the time limit for toll collection of
the road whose loans are repaid by the government, the toll collection shall be terminated.
In case toll collection is terminated in any toll road in accordance with the provisions of the preceding two paragraphs, the relevant
people’s government of the province, autonomous region, and municipality directly under the Central Government shall give a notice
to the general public, specifying the date for termination of toll collection, and accept social supervision.
Article 38
The competent communications department of the people’s government of any province, autonomous region, or municipality directly under
the Central Government shall make appraisal and acceptance check on any toll road six months before the termination of toll collection
of the toll road. If, after appraisal and acceptance check, the road has complied with the technical level and standard verified
at the time of obtaining the rights and interests in the road, the business operator of the toll road may go through formalities
for transfer of the road with the competent communications department in accordance with the relevant state provisions. If it does
not comply with the technical level and standard assessed at the time of obtaining the rights and interests in the toll road, the
business operator of the toll road shall make maintenance within the time limit as determined by the competent communications department,
and the formalities for transfer of the road cannot be handled as required until the requirements have been met.
Article 39
After toll collection is terminated in a toll road, the business operator of the toll road shall dismantle the toll facilities within
15 days from the date of termination of toll collection.
Article 40
No entity or individual may force any vehicle to drive through any toll road by means of closing or blocking non-toll roads or setting
up blocks on non-toll roads to collect tolls.
Article 41
The business operator of a toll road shall provide the statistical materials and the relevant conditions in time according to the
requirements of the competent communications department of the State Council and that of the people’s government of the province,
autonomous region, and municipality directly under the Central Government.
Article 42
The maintenance and virescence of a toll road, and the water and soil conservation and road affairs management within the land use
scope of the road, shall be implemented in accordance with the relevant provisions of the Highway Law.
Article 43
The competent communications department of the State Council and those of the people’s governments of the provinces, autonomous regions,
and municipalities directly under the Central Government shall conduct supervision over and inspection on toll roads, urge the business
operators of toll roads to fulfill duty of maintenance, virescence of toll roads and water and soil conservation within the land
use scope of the roads.
Article 44
The auditing organs shall strengthen audit supervision over toll roads in accordance with law, and make investigation into and deal
with illegal acts according to law.
Article 45
When conducting supervision over and inspection on the toll road according to law, no administrative law enforcement organ may charge
any fees from the business operator of any toll road.
Article 46
The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall announce
to the public such information as the name of toll roads and tollbooths within their administrative districts, toll collection entities,
charging standard, and time limit for toll collection, etc. to accept social supervision.
Chapter V Legal Liabilities
Article 47
If anyone approves without authorization the construction of any toll road, tollbooth, time limit for toll collection, charging standards
for vehicle tolls, or transfer of rights and interests in any toll road in violation of the provisions of the present Regulation,
the people’s government of the province, autonomous region, and municipality directly under the Central Government shall order it/him
to make corrections, and impose such administrative punishments as recording a special demerit or even dismissing the responsible
person in charge and other directly liable personnel. If a crime is constituted, he shall be prosecuted for the criminal liabilities
according to law.
Article 48
If any local people’s government or the relevant department and any of their staff members illegally interferes with the business
management of any toll road in violation of the present Regulation, or seizes or embezzles vehicle tolls collected by the business
operator of the toll road, the upper level people’s government or the relevant department shall order it/him to stop the illegal
interference, return the vehicle tolls it/he has seized or embezzled, and give the responsible person in charge and other directly
liable personnel such administrative punishments as recording a special demerit or even dismissing him according to law. If a crime
is constituted, he shall be prosecuted for the criminal liabilities according to law.
Article 49
If any one sets up any tollbooth or checkpoint to collect vehicle tolls without authorization or fails to terminate the toll collection
that he/it should terminate in violation of the present Regulation, the competent communications department of the State Council
or that of the people’s government of the province, autonomous region, and municipality directly under the Central Government shall
ex officio order him/it to make corrections, and force him/it to dismantle the toll facilities. The illegal gains shall be confiscated
if any, and a fine of two times up to five times the illegal gains shall be imposed upon him/it. If there are illegal gains, a fine
of RMB 10,000 Yuan up to 50,000 Yuan shall be imposed. And if the responsible person in charge and other directly liable personnel
are state functionaries, they shall be given such administrative punishments as recording a special demerit or even dismissed.
Article 50
If any one violates the provisions of the present Regulation under any of the following circumstances, the competent communications
department of the State Council or that of the people’s government of the province, autonomous region, and municipality directly
under the Central Government shall ex officio order it/him to make corrections, and impose a fine of RMB 50,000 Yuan up to 200, 000
Yuan in light of the circumstances:
1.
The setup of any tollbooth does not comply with the standards or the position of the tollbooth is altered without authorization;
2.
Failing to make routine inspection and maintenance on any toll road and the facilities along it according to the standards and criterions
prescribed by the state;
3.
Failing to set up traffic signs and markings properly in accordance with the relevant state provisions;
4.
The setup of crossings does not comply with the requirements for safe driving of vehicles or the number of crossings does not comply
with the requirements for the rapid passing through of vehicles;
5.
Failing to set up safety and prevention facilities as required or to give indication or public notice when meeting such circumstances
as road damage, construction or occurrence of traffic accidents and other circumstances that may influence the normal and safe driving
of vehicles, or failing to divert the flow of traffic in time in case of a traffic jam; or
6.
Failing to announce timely the information on restricted speed or closing of toll roads that should be announced.
Article 51
If any business operator of any toll road fails to issue notes in violation of the present Regulation when collecting tolls, or issues
notes that are not made and printed by (or under the supervision of) the finance or taxation department of the people’s government
of the province, autonomous region, and municipality directly under the Central Government, or issues invalid overdue notes, the
department of finance or taxation shall order him/it to make corrections, and impose a fine of RMB 100,000 Yuan up to 500,000 Yuan
in light of the circumstances. If the responsible person in charge and other directly liable personnel are state functionaries, they
shall be given the administrative punishment of recording a special demerit or even dismissed. If a crime is constituted, they shall
be prosecuted for the criminal liabilities.
Article 52
If any manager of the road whose loans are repaid by the government fails to deposit the vehicle tolls in full in the special financial
account or fails to turn in the income gained from transfer of rights and interests in roads whose loans are repaid by the government
in full to the state treasury in violation of the present Regulation, the department of finance shall order the operator to deposit
or turn in and to supplement the amount due. The responsible person in charge and other directly liable personnel shall be given
the administrative punishment of recording a special demerit or even dismissed according to law.
In case the department of finance fails to have the vehicle tolls of the road whose loans are repaid by the government or the income
gained from transfer of the rights and interests in the road whose loans are repaid by the government used for repayment of loans
or funds raised with compensation, or diverts for other purposes the vehicle tolls or income from the transfer of rights and interests
in the road whose loans are repaid by the government, the people’s government of corresponding level shall order it/him to repay
the loan and the funds raised with compensation, or order it/him to return the diverted vehicle tolls and the income gained from
transfer of the rights and interests of the road whose loans are repaid by the government. And the responsible person in charge and
other directly liable personnel shall be given the administrative punishment of recording a special demerit or even dismissed. If
a crime is constituted, it/he shall be prosecuted for the criminal liabilities according to law.
Article 53
If, after the termination of toll collection of any toll road, the business operator of the toll road fails to dismantle toll facilities
in time in violation of the present Regulation, the competent communications department of the people’s government of the province,
autonomous region, and municipality directly under the Central G
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The Ministry of Finance, The State Administration of Taxation
Notice of the Ministry of Finance and the State Administration of Taxation on the Printing and Distribution of the Provision on Several
Issues concerning Extending Value-added Tax Credit Scope in Northeast Region
Cai Shui [2004] No. 156
Departments (bureau) of finance and State Administration of Taxation of Liaoning province, Jilin province and Heilongjiang province
and Dalian city:
In accordance with the spirit of Several Opinions on Carrying out the Strategy of Revitalizing Traditional Industrial Bases in Northeast
Region issued by the Central Committee of the Communist Party of China and the State Council (Zhong Fa [2003] No. 11), and with the
approval by the State Council, the Ministry of Finance and the State Administration of Taxation formulate the Provision on Several
Issues concerning Extending Value-added Tax (hereafter referred to as VAT) Credit Scope in Northeast Region (hereafter referred to
as the Provision), we hereby print and distribute it to you, please abide by it.
In case that normal VAT-payers, engaged in manufacturing of military and hi-tech products, which are beyond the scope listed in the
Provision on the industries of equipment-manufacturing, petrochemistry, metallurgy, ship-building, automobile-manufacturing, agro-product
processing, intends to claim the tax credit prescribed in the Provision, concrete conditions applicable to military and hi-tech products
shall be forwarded by the Provincial finance and taxation authorities, then they shall be submitted to the Ministry of Finance and
the State Administration of Taxation to be examined and to be formulated separately.
Selecting several industries in Northeast region to extend VAT credit scope as a trial is an important measure of the Central Government
to revitalize Northeast traditional industrial bases, it also can accumulate experience for the future VAT reform to be conducted
nationwide. Departments in the concerned region shall enhance the management and coordinate the implementation seriously; the Ministry
of Finance and the State Administration of Taxation shall be informed of the possible problems emerging from the implementation process.
Annex: the Provision on Several Issues concerning Extending Value-added Tax Credit Scope in Northeast Region
The Ministry of Finance
The State Administration of Taxation
September 14, 2004 Annex:The Provision on Several Issues concerning Extending Value-added Tax Credit Scope in Northeast Region
I.
This Provision is formulated in accordance with the Several Opinions on Carrying out the Strategy of Revitalizing Traditional Industrial
Bases in Northeast and other Regions (Zhong Fa [2003] No.11) issued by the Central Committee of the Communist Party of China and
the State Council.
II.
This Provision is applicable to the normal VAT payers (hereafter referred to as the Tax-payers) mainly engaged in the industries of
equipment manufacturing, petrochemistry, metallurgy, ship-building, automobile manufacturing and agro-product processing.
The aforesaid “mainly” refers to that the Tax-payers’ sales amount in the industries of equipment manufacturing, petrochemistry, metallurgy,
ship-building, automobile manufacturing and agro-product processing shall exceed 50% (including 50%) of their whole sales amount.
Please refer to the annex for the concrete scope of industries where this Provision is applicable.
III.
The VAT credit shall be applied according to the Provisions in Article V when the Taxpayers’ liability of input tax arises as follows:
1.
Purchasing fixed assets (including the reception of donation and investment in kind, the same hereinafter);
2.
Goods purchasing and taxable labors used for self-making fixed assets (including alteration and extension and installing, the same
hereinafter);
3.
The fixed assets obtained in the way of financial leasing, where the leaser has paid the VAT in accordance with Notice of the State
Administration of Taxation on Levying Circulation Tax upon the Financial Leasing Business (Guo Shui Han [2000] No. 514); or
4.
The transport charges paid for the fixed assets.
The input tax mentioned in this Article refers to such one as arises as of July 1, 2004 and obtains such tax deduction warrants as
the special VAT invoice, the transport invoice and the special payment book of customs import VAT issued after July 1, 2004 (included).
IV.
The fixed assets mentioned in this Provision refer to the ones prescribed in the Article 19 of the Rules for the Implementation of
the Provisional Regulations of the People’s Republic of China on VAT. The outsourcing and self-made fixed assets shall be beyond
the credit scope in this Provision.
V.
The tax-payer’s input tax amount granted credit in accordance with the aforesaid Article III shall not exceed the increased VAT amount
in the year concerned; where there is no increased VAT amount or inadequate increased VAT amount to be credited against in the year
concerned, such input tax as has not been credited remains to the next year; where the tax-payer fails to pay the VAT, the tax owed
shall first be deducted.
The increased VAT amount mentioned in this article refers to exceeded part of the payable VAT in the year concerned against the one
in the year of 2003.
The method, characterized by periodical calculation of the increased VAT, monthly crediting and year-end clearance, shall be adopted
in the process of operation in order to guarantee the balance of the crediting in the year concerned.
VI.
Where the present enterprises undergo merging, dividing, restructuring, reorganizing, extending, moving, changing of business, absorbing
new blood, changing of leading (or affiliation) relations and changing of their names, the increased VAT amount shall be calculated
on the basis of the payable VAT of the enterprises concerned in the year of 2003.
VII.
The input tax amount shall not be credited in accordance with the Provisions in Article V, when these situations below arise during
the tax-payer purchases the fixed assets:
1.
The fixed assets are exclusively used in non-taxable projects (the projects under construction mentioned in this Provision are not
included, the same hereinafter);
2.
The fixed assets are exclusively used in tax-exempt projects;
3.
The fixed assets are exclusively used in collective welfare or individual consumption;
4.
The fixed assets are the excisable automobiles or motor-bicycles; or
5.
The fixed assets are offered for use to such institutions as is beyond the scope prescribed in this Provision.
Where the aforesaid situations occur to such fixed assets as has already been credited or entered into the input tax to be credited,
the tax-payer shall calculate the uncreditable input tax in accordance with the formula below:
Uncreditable input tax=Net worth of the fixed assets Applicable tax rate
With regard to the uncreditable input tax, the excess of the input tax to be credited may first be deduced, if there is no excess,
it shall be transferred from the input tax of the current period.
VIII.
The tax-payer’s activities listed below shall be regarded as selling of goods:
1.
exclusively using the self-made or consigned processing fixed assets in non-taxable projects;
2.
exclusively using the self-made or consigned processing fixed assets in tax-exempt projects;
3.
offering the self-made, consigned processing or purchased fixed assets to other institutions or self-employed individuals as investment;
4.
allocating the self-made, consigned processing or purchased fixed assets to shareholders or investors;
5.
exclusively using the self-made or consigned processing fixed assets in collective welfare or individual consumption; or
6.
gratuitously donating the self-made, consigned processing or purchased fixed assets to others.
Where these acts of the tax-payer exist but fails to be realized, the net worth of selling fixed assets shall be regarded as sales
amount.
IX.
Where the tax-payer sells his/her used fixed assets, his/her gained sales income shall be taxed in accordance with the applicable
tax rate, and the input tax of the fixed assets shall be credited in accordance with the methods listed below:
1.
Where the input tax of the fixed assets concerned is entered into the fixed assets input tax to be credited, the output tax of the
fixed assets shall be increased while the excess of the fixed assets input tax shall be decreased in the size and be transferred
into the input tax for being credited; where the excess of the fixed assets input tax to be credited is less than the fixed assets
output tax, it may be wholly transferred into the input tax of the current period for being credited.
2.
Where the fixed assets concerned fails to be credited or to be entered into input tax to be credited, the creditable input tax shall
be calculated in accordance with the formula listed below:
Creditable input tax of used fixed assets=Net worth of fixed assets Applicable tax rate
The creditable input tax of used fixed assets may directly be entered into the VAT input tax of the current period.
X.
The tax reimbursement in purchasing home equipment within the total amount of investment does not any more apply to the enterprises
with foreign investment incorporated into the scope prescribed in this Provision.
XI.
The Ministry of Finance and the State Administration of Taxation are responsible for the interpretation of this Provision.
XII.
This Provision shall enter into force as of July 1, 2004. The concrete implementation measures of this Provision and the transitional
measures for the year of 2004 shall be formulated and enacted separately.
Annex:
The Concrete Scope of Industries Applicable to the Extension of VAT Credit
I.
The equipment-manufacturing industry: including the industries of general-purpose equipment manufacturing, special-purpose equipment
manufacturing, electric machinery and apparatus manufacturing, instrument and meter and cultural office supplies manufacturing, communication
equipment manufacturing, computer and other electronic equipment manufacturing, aerospace vehicle manufacturing, railway transportation
equipment manufacturing and trafficking equipment and other transport and communication facilities manufacturing.
II.
The petrochemical industry: including the industries of petrol-processing, coking and nuclear fuel processing, chemical materials
and chemical product manufacturing, chemical fiber manufacturing, pharmaceutical manufacturing, rubber product manufacturing and
plastic product manufacturing. The coke-processing industry is not included.
III.
The metallurgical industry: including the industries of the smelting and calendering of ferrous metal, the smelting and calendering
of nonferrous metal. The electrolytic aluminum manufacturing enterprises and the steel manufacturing enterprises having an annual
output of less than 2 million tons of plain steel, or less than 500 thousand tons of special steel, or less than 100 thousand tons
of ferroalloy are included.
IV.
The ship-building industry: including the industry of ship and floating equipment manufacturing.
V.
The automobile-manufacturing industry: including the industry of automobile manufacturing.
VI.
The agro-product processing industry: including the industries of agro-product and non-staple foodstuff processing, foodstuff manufacturing,
beverage manufacturing, textile manufacturing, costume, shoes and caps manufacturing, leather, fur and feather (velvet) and their
products manufacturing, lump processing and timber-, bamboo-, vine, palm and grass products manufacturing, furniture manufacturing,
paper-making and paper product manufacturing, handicraft articles manufacturing, etc.
For the detail description of the aforesaid industries, please refer to the National Economic Industrial Classification (GB/T4754D2002)
under the National Standards of the People’s Republic of China.
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The Ministry of Finance, The State Administration of Taxation
2004-09-14
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the State Development and Reform Commission
Decree of the State Development and Reform Commission of the People’s Republic of China
No. 19
The Interim Measures for Examining and Approving Enterprises’ Investment Projects that have been formulated in accordance with the
Administrative Licensing Law of the People’s Republic of China and the Decision of the State Council on the Reform of Investment
System for the purpose of standardizing the examination and approval by the government of enterprises’ investment projects, are hereby
promulgated and come into force.
Ma Kai, Director of the State Development and Reform Commission
September 15, 2004
Interim Measures for Examination on and Approval of Enterprises’ Investment Projects
Chapter I General Provisions
Article 1
These Measures are formulated in accordance with the Administrative Licensing Law of the People’s Republic of China and the Decision
of the State Council on the Reform of Investment System for the purpose of meeting the requirement of improving the socialist market
economy system and further promoting the reform of the administration system of enterprises’ investment projects.
Article 2
The state shall formulate and issue a Catalogue of Investment Projects Approved by the Government (hereinafter referred to the “Catalogue”),
which shall specify the scope of the investment projects that shall be subject to examination and approval and define the authority
limits for different project approving organs, and are subject to timely adjustments according to the economic situation and the
need of macro control.
The “project approving organs” as referred to in the preceding paragraph means the administrative organs with authority to examine
and approve enterprises’ investment projects as prescribed in the Catalogue, of which, the “administrative department for investment
of the State Council” refers to the State Development and Reform Commission, the “administrative departments for investment of local
governments” refers to the local governments’ development and reform commissions (planning commissions) and economy and trade commissions
(economic commissions) with the functions of investment administration as appointed by the local governments.
Article 3
In the case of the project subject to examination and approval to be invested and constructed by enterprises, the enterprise shall,
in accordance with the relevant provisions of the state, prepare a project application report and submit it to the project approving
organ, which shall conduct examination and approval according to law and strengthen the relevant supervision and administration.
Article 4
All investment projects constructed by all kinds of enterprises in China shall be implemented in accordance with these Measures except
foreign investment projects and overseas investment projects, of which the measures for examination and approval shall be separately
formulated.
Chapter II Contents and Preparation of Project Application Reports
Article 5
The applicant entity shall submit to the project approving organ a project application report in quintuplicate. The project application
report shall be prepared by an organ with the corresponding engineering consultancy qualification and, in the case of a project subject
to the examination and approval by the administrative department for investment of the State Council, the project application report
shall be prepared by an organ with engineering consultancy qualification of grade A.
Article 6
A project application report shall mainly contain the following contents:
(1)
the instance of the applicant entity;
(2)
the instance of the project to be constructed;
(3)
the land to be used and the relevant planning;
(4)
an analysis of utilization of resources and consumption of energy;
(5)
an analysis of the impact on ecological environment; and
(6)
an analysis of economic and social effects.
Article 7
The State Development and Reform Commission shall, in light of the actual need, prepare and issue model project application reports
for major industries and give guidance to the enterprises in their project applications.
Article 8
When submitting the application report to the project approving organ, the project applicant entity shall submit the following documents
together according to the relevant laws and regulations of the state:
(1)
opinions on city planning as given by the administrative department of city planning;
(2)
preliminary opinions on land use of the project as given by the administrative department of land and resources;
(3)
opinions of examination and approval on the environmental impact assessment documents as given by the administrative department of
environmental protection; and
(4)
other documents that shall be submitted in accordance with the relevant laws or regulations.
Article 9
The applicant entity shall be responsible for the authenticity of all submitted documents.
Chapter III Procedures of Examination and Approval
Article 10
In the case of a project subject to examination and approval by the administrative department for investment of the local government
to be invested and constructed by enterprises, the applicant entity shall submit the project application report to the local approving
organ according to the relevant provisions of the local government.
In the case of a project to be constructed by an entity subordinated to the relevant industry department in charge under the State
Council and subject to examination and approval by such department, the entity may submit the project application report directly
to such department together with the opinions of the administrative department for investment of the government at the provincial
level of the place where the project is to be located.
In the case of a project to be constructed by an enterprise group specifically designated in the state plan or by an enterprise directly
under the administration of the Central Government and subject to examination of approval by the administrative department for investment
of the State Council, the group or the enterprise may submit the project application report directly to such department together
with the opinions of the administrative department for investment of the government at the provincial level of the place where the
project is to be located; in the case of a project to be constructed by any other enterprises and subject to the examination of approval
by the administrative department for investment of the State Council, the enterprise shall submit the project application report
to the administrative department for investment of the government at the provincial level of the place where the project is to be
located, which shall present opinions after making preliminary examination and then submit such opinions and the project application
report to the administrative department for investment of the State Council (the submission shall be made by the development and
reform commission in conjunction with the economy and trade commission or economic commission having the functions of investment
administration provided for by the government at the provincial level.)
In the case of a project subject to the examination and approval by the State Council, the enterprise shall submit the project application
report to the administrative department for investment of the State Council, which shall give opinions after making examination and
then submit such opinions and the project application report to the State Council.
Article 11
In case the approving organ considers the application materials uncompleted or, not in accordance with relevant requirements, the
approving organ shall, within five working days after receiving the project application report, notify the applicant entity to make
clarification, supply relevant instances and documents or make adjustment to relevant contents.
After the applicant entity has submitted the complete materials properly, the approving organ shall duly accept the application and
issue a notice of acceptance to the applicant entity.
Article 12
If necessary, the approving organ shall, within four working days after accepting the application, consign a qualified consultancy
agency to make relevant assessment.
The consultancy agency consigned shall present an assessment report within the time limit specified by the approving organ and shall
be responsible for the assessment result. When making assessment, the consultancy agency may demand the applicant entity to give
explanations on the relevant issues.
Article 13
Where conducting examination and approval, the approving organ shall seek opinions from such authorities, if it finds that the functions
of any other authorities are involved in its examination. Such authorities shall provide to the approving organ written opinions
within seven working days after receiving the letter of request for opinions (together with the project application report); it shall
be considered as approval if no such opinions have been returned within the time limit.
Article 14
In the case of a project that may have a serious impact on the public interests, when making its examination, the approving organ
shall ask for opinions from the public in an appropriate manner. For especially important projects, the specialist appraisal system
shall be adopted.
Article 15
The approving organ shall, within 20 working days after receiving the project application report, make a decision on whether or not
to approve the application, and publicize it to public or submit its opinions to the approving organ at a higher level. Where it
is difficult due to any special reason to make a decision within such time limit, the period may be extended for ten working days
with the approval of the person in charge of the approving organ and promptly notify the applicant entity the reasons for the extension
stated.
The period specified in the preceding paragraph does not include time required for the assessment by a consultancy agency, asking
for opinions from the public or appraisal by the specialists.
Article 16
In the case of an approved project, the approving organ shall issue to the applicant entity an approval letter with copies thereof
sent to the relevant departments and the approving organ at a lower level; for a disapproved project, the approving organ shall issue
to the applicant entity a disapproval letter with the reasons for disapproval stated, with copies thereof sent to the relevant departments
and the approving organ at a lower level. In the case of a project approved by the State Council, the approval letter shall be issued
by the administrative department for investment of the State Council.
Article 17
Any applicant entity disagreeing with the decision of the approving organ may apply for an administrative review or initiate administrative
proceedings in accordance with law.
Chapter IV Standards for Examination and Validity of Approval
Article 18
The project approving organ conducts examinations on the investment projects mainly with regard to the following standards:
(1)
compliance with the laws and regulations of the state;
(2)
compliance with the national economic and social development planning, planning of the industry, industrial policy, standards for
admittance into the industry and the overall land use planning;
(3)
compliance with the macro control policies of the state;
(4)
rationality of regional distribution;
(5)
the major products of the project not constituting a monopoly in the domestic market;
(6)
no adverse effect on the country’s economic security;
(7)
rational exploitation and effective utilization of resources;
(8)
effective protection of ecological environment and natural and cultural heritage; and
(9)
no serious adverse effect on the public interests, especially those in the place where the project is to be located.
Article 19
According to the project approval document, the applicant entity shall go through the procedures for the use of land, utilization
of resources, city planning, safe production, import of equipment and confirmation of tax exemption and reduction, etc.
Article 20
The validity term of the approval document shall be two years, starting from the date of issue. In case the construction of any project
has failed to start within the validity term of the approval document for the project, the enterprise concerned shall, 30 days prior
to the expiry of the validity term, apply to the original project approving organ for extension. The original project approving organ
shall make a decision on whether or not to permit the extension before the expiry of the validity term. An approval document shall
automatically become invalid upon the expiry of the validity term thereof, if the construction of the project has failed to start
within the validity term and no application for extension has been made to the original project approving organ.
Article 21
In case the content of the approval document for any project needs to be adjusted, the enterprise concerned shall promptly submit
a written report to the original project approving organ, which shall, in light of the specific circumstances, issue a confirmation
letter or demand the enterprise to go through the approval procedures anew.
Article 22
None of the authorities for land and resources, environmental protection, city planning, quality supervision, securities regulation,
foreign exchange administration, supervision and control of safe production, administration of water resources and customs may handle
relevant procedures, and no financial institution may grant any loan, for any project that is subject to the examination and approval
by the project approving organ but not applied, or for which the application submitted has not been approved.
Chapter V Legal Responsibility
Article 23
Project approving organs and their staff shall strictly abide by the relevant provisions, laws, regulations and these Measures, may
not add or reduce under disguised form any matters to be examined, and may not put off the examination and approval.
Article 24
Any staff of the approving organs who abuses his authority, neglect his duties, engages in malpractice for personal benefits, extorts
or takes bribes in the work of examination of approval of the investment projects shall be subject to an administrative sanction
or, if a crime is constituted, his criminal responsibility shall be investigated according to law.
Article 25
Any consultancy and assessment agency and its staff who acts contrary to the professional ethics and causes gross losses and baneful
effects in the work of assessment shall be subject to corresponding responsibility.
Article 26
In case any applicant entity has obtained an approval letter by unjust means, such as partitioning the project and providing false
materials, the project approving organ shall cancel the approval letter according to law.
Article 27
The project approving organs shall strengthen the supervision and management of enterprises’ investment projects in conjunction with
the authorities for city planning, land and resources, environmental protection, banking supervision and administration and safe
production. Where it comes to notice that the construction of any project subject to examination and approval has started without
submitting a report for such examination and approval or without an approval letter or without abiding by the requirements by the
approval letter, the approving organ shall promptly give an order to stop the construction, and the person liable shall subject to
the legal and administrative responsibilities.
Chapter VI Supplementary Provisions
Article 28
The administrative departments for investment of the governments at the provincial level and the relevant trade departments in charge
under the State Council with the examination and approval authority may formulate their respective implementing measures in accordance
with the spirit of and requirements of the Administrative Licensing Law of the People’s Republic of China, the Decision of the State
Council on the Reform of the Investment System and these Measures.
Article 29
Projects falling into the scope of the Catalogue of Investment Projects Subject to Approval of the Government and to be constructed
by any institution or social organization other than an enterprise shall be subject to examination and approval in accordance with
these Measures.
Article 30
The power to interpret the present Measures shall remain with the State Development and Reform Commission.
Article 31
These Measures shall come into force as of the date of promulgation. Where there is any discrepancy between any provisions concerning
the examination and approval of enterprises’ investment projects as made before and these Measures, the latter shall prevail.
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