IMPLEMENTATION RULES FOR THE PROVISIONAL REGULATIONS OF BEIJING MUNICIPALITY CONCERNING NEW TECHNOLOGY INDUSTRY DEVELOPMENT ZONE
NOTICE CONCERNING THE ORGANIC ESTABLISHMENT OF THE STATE COUNCIL
RULES FOR THE IMPLEMENTATION OF THE REGULATIONS ON ADMINISTRATION OF TECHNOLOGY-INTRODUCTION CONTRACTS
| Category | OBLIGATORY RIGHT | Organ of Promulgation | The State Council | Status of Effect | In Force |
| Date of Promulgation | 1988-01-20 | Effective Date | 1988-01-20 |
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Rules for the Implementation of the Regulations of the People’s Republic of China on Administration of Technology-introduction Contracts |
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(Approved by the State Council on December 30, 1987, promulgated by the
Ministry of Foreign Economic Relations and Trade on January 20, 1988)
Article 1 These Rules are formulated in accordance with the provisions of
Article 12 of the Regulations of the People’s Republic of China on
Administration of Technology-Introduction Contracts (hereinafter referred to as
the “Regulations”).
Article 2 Regardless of the country or region of the supplier, or of the
source of funds and modes of payment of the recipient, the recipient and the
supplier as specified in Article 2 of the Regulations shall apply for
examination and approval to the examining and approving authorities in
accordance with the Regulations and these Rules when they are to conclude any
of the technology-introduction contracts listed below:
1. Contracts for assignment or licensing of industrial property rights.
Contracts for assignment or licensing of industrial property rights refer to
those for assignment or licensing of rights relating to invention patents, new
utility model patents, exterior design patents as well as trademarks, excluding
those merely for assignment of rights of trademarks.
2. Contracts for licensing of proprietary technology. Contracts for
licensing of proprietary technology reler to those for supply or impartment of
technical know-how which is not yet publicized nor under legal protection as
industrial property, for manufacturing a product or applying a technology as
well as for product designs, technological processes, formulae, quality control
and management, etc.
3. Contracts for technical services. Contracts for technical services refer
to those for offering services or consultancy to the recipient by the supplier
with its technology for achieving a specific goal, including contracts for
feasibility study or engineering design undertaken by the supplier upon the
entrustment of the recipient or by the recipient in cooperation with the
supplier, contracts for providing technical services by foreign geological
exploration or engineering teams that are employed and contracts for providing
services or consultancy by the supplier upon the entrustment of the recipient
for technical transformation of an enterprise, improvement of production
technology or product design and quality control as well as enterprise
management (excluding contracts for employing foreigners in China’s
enterprises).
4. Contracts for co-production and co-design which involve any one of such
items as assignment or licensing of industrial property rights, licensing of
know-how or technical services.
5. Contracts for importing complete set of equipment, production line or
key equipment which involve any one of such items as assignment or licensing of industrial property rights, licensing of know-how
or technical services.
6. Other technology-introduction contracts which, according to the
examining and approving authorities, must go through the procedure for
examination and approval.
Article 3 When companies, enterprises, institutions or individuals with no
rights to engage in foreign technology-introduction business are to introduce
technology from abroad, they shall, with letters of commission, entrust those
companies and enterprises with such rights to conclude technology-introduction
contracts.
Article 4 Technology-introduction contracts concluded by Chinese-foreign
equity joint ventures, Chinese-foreign contractual joint ventures and foreign
capital enterprises (hereinafter referred to as enterprises with foreign
investment) established in the territory of the People’s Republic of China for
acquiring technology from suppliers shall comply with the procedures of
examination and approval as stipulated in these Rules.
If foreign investors in enterprises with foreign investment use industrial
property rights or technical know-how as equity shares, the case shall be dealt
with in accordance with the relevant laws and regulations of the State for
enterprises with foreign investment.
Article 5 The examining and approving authorities for examining and
approving technology-introduction contracts are the Ministry of Foreign
Economic Relations and Trade (hereinafter referred to as MOFERT) and its
authorized departments, commissions, bureaux of foreign economic relations and
trade and other administrative organs of provinces, autonomous regions,
municipalities directly under the Central Government, coastal open cities,
special economic zones and cities under separate planning (hereinafter referred
to as the “authorized examining and approving authorities”).
Article 6 Technology-introduction contracts shall be examined and approved
at different levels in accordance with the following stipulations:
1. Technology-introduction contracts for projects with feasibility study
reports approved by the ministries/commissions of and agencies directly under
the State Council shall be examined and approved by MOFERT.
2. Technology-introduction contracts for projects with feasibility study
reports approved by people’s governments or their authorized competent organs
of provinces, autonomous rigions, municipalities directly under the Central
Government, coastal open cities, special economic zones and cities under
separate planning shall be examined and approved by the authorized examining
and approving authorities at the same level; if the technology-introduction
contracts are concluded by other transregional companies with parties abroad
through entrustment, they may be examined and approved by the authorized
examining and approving authorities of the locality where the conclusion takes
place with the consent of the authorized examining and approving authorities of the locality where the entruster is located. After
approval, the authorized
examining and approving authorities of the locality where the contract is
concluded shall send a copy of the Approval Certificate to the authorized
examining and approving authorities of the locality where the entruster is
located for the record. Neverthless, technology-introduction contracts
concluded with parties abroad by companies located in Beijing pursuant to
transregional entrustment (excluding those companies directly under Beijing
municipality) shall be examined and approved by MOFERT.
3. Technology-introduction contracts concluded by enterprises with foreign
investment for acquiring technology from suppliers shall be examined and
approved by MOFERT if the enterprises concerned were established with the
approval of ministries/commissions of and angencies directly under the State
Council; or shall be examined and approved by the relevant authorized examing
and approving authorities if the enterprises concerned were otherwise
established.
Article 7 A technology-introduction contract shall specify the following
items:
1. name of the contract;
2. contents, scope and requirements of the target technology to be
introduced;
3. criteria, timelimits and measures for quality rectification of the
introduced technology and liabilities for risks;
4. obligation to preserve the secrets of the introduced technology,
ownership and sharing of the improved technology;
5. price or remuneration in total, prices of separate items and modes of
payment;
6. calculations for compensation in case of violation of the contract;
7. settlement of disputes; and
8. definitions of terms and phrases.
Annex and data relating to implementation of the contract may constitute an
integral part of the technology-introduction contract in accordance with the
agreement of the contracting parties.
Article 8 With respect to techmology-introduction contracts involving
assignment or licensing of patent or trademark rights obtained in China,
relevant patent numbers or patent application numbers, trademark registration
numbers together with trademark design shall be expressly specified. Contracts
for assignment of patent rights shall be recorded with the Patent Office in
accordance with provisions of the Patent Law of the People’s Republic of China,
and those for licensing of the trademarks shall be recorded with the Trademark
Office in accordance with the provisions of the Trademark Law of the People’s
Republic of China.
Article 9 The supplier shall ensure that the technology or data documents
provided are complete, accurate, effective and capable of attaining the
technology target specified in the contract. The time for the delivery of
technology documents shall correspond with the progress of the engineering
programme of the recipient.
Article 10 If the recipient requires the supplier to provide raw
materials, spare parts or equipment for the introduced technology, the prices
shall not be higher than those of the like products on international market.
Article 11 The supplier shall ensure that it is the lawful owner of the
technology provided or that it has the right to assign or license the
technology. If the recipient, in producing or selling products with the
assigned or licensed technology, is accused of infringement by a third party,
the supplier shall respond to the lawsuit. If the infringement charged by the
third party is proved, all economic losses the recipient may suffer shall be
compensated for by the supplier.
Article 12 Within the term of validity of the contract, the ownership of
the improved technology including the right to apply for patents belongs to the
party that has made the improvements. Where the recipient provides the
supplier with an improved technology, the terms shall be the same as those when
the supplier provides the recipient with an improved technology.
Article 13 The recipient shall undertake the obligation to preserve the
secrets of the proprietary technology and relevant data provided or imparted by
the supplier in accordance with the scope and duration as agreed in the
contract. The duration for preserving secrets shall not generally exceed the
term of validity of the contract. If special circumstances require that the
duration exceed the term of contract, it shall be expressly specified in the
contract, and reasons shall be stated when applying for examination and
approval.
Within the duration in which the recipient undertakes the obligation to
preserve secrets, if the technology is made public owing to reasons for which
the recipient is not responsible, the obligation undertaken in this regard by
the recipient shall immediately terminate. If it is specified in the contract
that the supplier shall also supply its developed and improved technology to
the recipient within the term of validity of the contract, the recipient may
continue to undertake the obligation of secret-preservation after expiration of the contract. In that case, the new duration shall
begin from the date when
the supplier provides the technology but shall not exceed the duration
originally specified in the contract.
Article 14 No provisions of restrictions on exportation of products
manufactured by the recipient with the introduced technology may be included in
the contract without the approval of the examining and approving authorities,
however, either of the following cases shall be excepted:
1. in countries and regions where exclusive license contracts have been
concluded by the supplier;
2. in countries and regions where sole agent contracts have been concluded
by the supplier.
Article 15 No provisions of prohibiting the continued use of the
introduced technology by the recipient after the expiration of the contract
shall be included in the contract without the approval of the examining and
approving authorities. Where the duration of the patent relating to the
introduced technology has not expired at the expiry of the contract, the
relevant stipulations of the Patent Law of the People’s Republic of China shall
govern.
Article 16 The supplier shall pay taxes in accordance with the provisions
of the tax laws of the People’s Republic of China.
Article 17 The recipient of a technology-introduction contract or the
company or enterprise acting as its agent to conclude the contract shall, in
accordance with the provisions of Article 6 of these Rules, submit to the
examining and approving authorities, within 30 days from the date of
conclusion, the following official documents:
1. a written application for approval of the contract. The contents of the
application shall include the name of the contract, the country of the supplier
and the name of the firm, the contents and scope of the target technology to
be introduced, the organ that has approved the feasibility study report of the
project and its approval number, etc.;
2. copies of the contract (with a Chinese translation attached, if it is in
a foreign language);
3. copies for each of the documents certifying the legal status of the
contracting parties;
4. the approved feasibility study report and statement on funds available.
To facilitate the examination and approval, the recipient or the company or
enterprise acting as its agent may solicit opinions or request for a
pre-examination from the examining and approving authorities as to the main
contents or certain clauses of the contract either before or during
negotiations.
Article 18 In case the technology-introduction contracts and other
documents submitted to the examining and approving authorities in accordance
with the provisions of Article 17 of these Rules fall under any one of the
following cases, the examining and approving authorities shall require the
parties concerned to make due amendments within a prescribed time limit, and
the approval shall be denied in case of failure to make amendments:
1. where they contravene the current laws and regulations of the State and
impair social and public interests;
2. where they impair national sovereignty;
3. where the contents of the contract are inconsistent with the approved
feasibility study report of the project;
4. where the basic clauses and contents of the contract are imperfect;
5. where the contract contains no explicit and rational stipulations
concerning the responsibilities about and solutions to possible disputes over
property rights arising from the assigned or licensed technology or other
disputes that may occur in the course of implementation of the contract;
6. where the contract contains no rational stipulations on the technical
level and economic benefits to be attained by the assigned or licensed
technology, including the quality warranty for the products manufactured with
tbe said technology;
7. where the price or modes of payment for the introduced technology are
unreasonable;
8. where the stipulations on rights. responsibilities and obligations of
the contracting parties are not sufficiently clear, reciprocal or rational;
9. where the contract contains preferential tax commitment without the
consent of the state tax authorities.
Article 19 The examining and approving authorities shall decide to approve
or disapprove the contract within 60 days from the date when the application
is received. If the examining and approving authorities require amendments in
accordance with the provisions of Article 18, the duration needed for
examination and approval shall be counted from the date when the amended
contract or an instrument of amendment is received.
If the examing and approving authorities make no response at the expiry of
the specified period, the contract shall be deemed to have been approved.
Article 20 The contract shall come into force as of the date of approval
and the examining and approving authorities shall issue a unified Approval
Certificate for a Technology-Introduction Contract printed and serial-numbered
by MOFERT.
Article 21 If the term of validity of a technology-introduction contract
exceeds the period of 10 years as stipulated in Article 8 or includes the
restrictive provisions as listed in Article 9 of the Regulations, the recipient
shall submit an application with detailed explanations to the examining and
approving authorities when going through the procedure for examination and
approval in accordance with the stipulations of these Rules.
Article 22 Any modifications of the clauses relating to the target
technology content, price, duration and secret-preserving time limit of an
approved technology-introduction contract shall be made by consultations
between the contracting parties upon a written consent of the examining and
approving authonties. If the modifications are inconsistent with the approved
content of the target technology or require an amount of foreign exchange
exceeding the approved amount, the procedure for reexamination and reapproval
shall be gone through in accordance with the provisions of Article 4 and
Article 11 of the Regulations and Article 6 of these Rules.
Article 23 The relevant authorized examining and approving authorities
shall submit a copy of the Approval Certificate for a Technology-Introduction
Contract and other relevant data to MOFERT for the record within 10 days from
the date of the approval of a technology-introduction contract.
Article 24 In the course of the implementation of a contract, the Approval
Certificate for a Technology-Introduction Contract or its copy must be
presented to the organs concerned in accordance with the relevant stipulations
while handling such matters as bank guarantee, letter of credit, payment,
foreign exchange settlement, Customs declaration and tax payment, etc. Banks,
Customs or tax authorities are enpost_titled to refuse to handle such matters if no
Approval Certificate or its copy is presented.
Article 25 The authority to interpret and revise these Rules resides in
MOFERT.
Article 26 These Rules shall enter into force as of the date of
promulgation. The Measures for Examination and Approval of
Technology-Introduction Contracts promulgated on September 18, 1985 by MOFERT
shall be abrogated as of the same date.?
PROVISIONS OF THE MINISTRY OF FOREIGN ECONOMIC RELATIONS AND TRADE, THE STATE ADMINISTRATION FOR INDUSTRY AND COMMERCE CONCERNING THE INVESTMENTS MADE BY THE VARIOUS PARTIES OF CHINESE-FOREIGN EQUITY JOINT VENTURES
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19871230the State Council
The Ministry of Foreign Economic Relations and Trade, the State Administration for Industry and Commerce Provisions of the Ministry of Foreign Economic Relations and Trade, the State Administration for Industry and Commerce Concerning January 1,1988 (Approved by the State Council on December 30, 1987, Promulgated by the Ministry of Foreign Economic Relations and Trade and the State Article 1 These Provisions are formulated in accordance with the Law of the People’s Republic of China on Chinese-Foreign Equity Joint Ventures Article 2 The investments contributed by the various parties to a joint venture in accordance with the stipulations of the contract of the said In cases where physical goods, industrial property rights and proprietary technology are used as investments at the evaluated price, Article 3 No party to a joint venture may use the loans, rented equipment or other assets it has obtained in the name of the joint venture, Article 4 The various parties to a joint venture shall set the time limit in their joint venture contract for paying up their respective investment If the joint venture contract stipulates that investment contributions shall be paid up in one lump, the various parties to the said If the joint venture contract stipulates that investments shall be paid by installments, the first installment paid by the various Article 5 In the event that the various parties to a joint venture fail to make the full payment of their respective investment contributions Article 6 After the various parties to a joint venture have paid the first installment of their respective investment contributions, if they Article 7 The failure of one of the parties to a joint venture to make the payment, or the full payment, of its investment contribution on time If the defaulting party mentioned in the preceding paragraph has paid part of its prescribed investment contribution, this part of In the event that the observant party (parties) fails (fail) to make an application to the original examining and approving authorities, Article 8 With respect to any joint venture which obtained its business licence before the date these Provisions become effective, if the various In the event that the various parties or any one of the parties still fail(s) to make the full payment of the respective investment Article 9 With respect to any joint venture which obtained its business licence before the date these Provisions become effective, if the various In the event that a joint venture mentioned in the preceding paragraph fails to establish itself or to start its operations after Article 10 The investment payment made by the various parties to a Chinese-foreign contractual joint venture shall be handled with reference Article 11 These Provisions shall enter into force as of March 1, 1988. |
The Ministry of Foreign Economic Relations and Trade, the State Administration for Industry and Commerce
1988-01-01
RULES GOVERNING THE APPROVAL OF CLINICAL TRIAL OF FOREIGN DRUG(S)
REGULATIONS OF THE PEOPLE’S REPUBLIC OF CHINA ON ADMINISTRATION OF THE REGISTRATION OF ENTERPRISES AS LEGAL PERSONS
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The State Council Regulations of the People’s Republic of China on Administration of the Registration of Enterprises As Legal Persons Decree [1988] No.1 of the State Council June 3, 1988 Chapter I General Provisions Article 1 In accordance with relevant provisions of the General Principles of the Civil Law of the People’s Republic of China, the present Regulations Article 2 Any of the following enterprises which are qualified as legal persons shall register as such in accordance with the relevant provisions (1) enterprises owned by the whole people; (2) enterprises under collective ownership; (3) jointly operated enterprises; (4) Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures and foreign-capital enterprises established within (5) privately operated enterprises; (6) other enterprises required by the law to register as legal persons. Article 3 Those enterprises applying for registration as legal persons shall be given Business Licenses for Enterprises as Legal Persons and Those enterprises, which are required by law to register as legal persons but which have not gone through the procedures of examination Chapter II Registration Authorities Article 4 The authorities in charge of the registration of enterprises as legal persons (hereinafter referred to as the registration authorities) Article 5 The registration of national corporations, enterprise groups and corporations handling import-export business set up with the approval The registration of son (or branch) companies of national corporations, enterprises, enterprise groups or companies handling import-export The registration of other enterprises shall be examined and approved by the administrative departments for industry and commerce of Article 6 Registration authorities at various levels shall institute a file of the registration of enterprises as legal persons and a system Registration authorities shall offer, in a planned manner and according to the needs of society, the service of providing the public Chapter III Conditions for Registration and Entities to Apply for Registration Article 7 Entities applying for registration as enterprises as legal persons must satisfy the following conditions, i.e. having: (1) name, organization and articles of association; (2) fixed sites for business operations and essential facilities; (3) funds and employees in conformity with State regulations and in line with their scale of production, operation or service; (4) ability to bear civil liabilities independently; (5) a scope of business in conformity with the provisions of the relevant laws, regulations and policies of the State. Article 8 The application of an enterprise for registration as a legal person shall be filed by the person responsible for establishing the The registration as a legal person of a jointly operated enterprise which bears civil labilities independently shall be applied for Chapter IV Items of Registration Article 9 The major items to be registered for an enterprise as a legal person are: name, residence, site for business operation, legal representative, Article 10 An enterprise as a legal person shall use only one name. The name to be used by the enterprise as a legal person in its application Those who apply for establishing Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures or foreign-capital Article 11 The legal representative of an enterprise as a legal person, which has been registered after examination and approval by a registration Article 12 The registered capital of an enterprise as a legal person represents the total value of the property the State entrusts to it for When an enterprise as a legal person registers for starting operations, the discrepancy between the sum of capital it applies for Article 13 The scope of business of an enterprise as a legal person shall be in harmony, with its capital, sites, equipment, employees and technical Chapter V Registration for Starting Operations Article 14 An enterprise as a legal person shall apply to a registration authority for registration for starting operations within 30 days after Article 15 An enterprise as a legal person shall submit the following papers when applying for registration for starting operations: (1) an application for registration signed by the person responsible for its establishment; (2) the document of approval issued by the department in charge or the authority for examination and approval; (3) its articles of association; (4) a certificate of its creditworthiness, a certificate of the verification of its capital or a guarantee for its capital; (5) a certificate of the identity of the principal responsible person of the enterprise; (6) a certificate of the right to use the residence and site for operation; (7) other relevant papers and certificates. Article 16 When the application filed by an entity for starting operations as an enterprise as a legal person has been examined and approved The registration authority may, after a check-up, issue duplicates of the Business License, if the enterprise as a legal person needs Chapter VI Changes in Registration Article 17 An enterprise as a legal person shall apply for making changes in its registration whenever it changes its name, residence, site, Article 18 An enterprise as a legal person shall apply to the registration authority for making changes in its registration within 30 days after Article 19 An enterprise as a legal person shall apply to the registration authority for making changes in its registration, or for registration Chapter VII Cancellation of Registration Article 20 An enterprise as a legal person shall go through the procedures for cancelling its registration with the registration authority when Article 21 Whenever an enterprise as a legal person is to cancel its registration, it must submit an application signed by its legal representative, Article 22 An enterprise as a legal person, which fails to start operations 6 months after receiving its Business License for Enterprise as a Chapter VIII Announcement, Annual Check-up and Control of Certificates Article 23 The registration authority shall issue registration announcements whenever an enterprise as a legal person starts operations, changes Article 24 A system for conducting annual check-up shall be instituted to administer the registration of enterprises as legal persons. An enterprise Article 25 The Business License for Enterprises as a Legal Person issued by the registration authority is the certificate of an enterprise as An enterprise as a legal person, which has lost its Business License for Enterprise as a Legal Person or duplicates of the License, The Business License for Enterprise as a Legal Person and its duplicates may not be forged, altered, leased, lent, sold or reproduced Article 26 An enterprise as a legal person shall pay registration and annual check-up fees according to the rules when it registers for starting Chapter IX Control of the Registration of Business Operations by Institutions and Scientific and Technological Public Organizations Article 27 When institutions or scientific and technological public organizations establish enterprises qualified as legal persons in line with Article 28 Institutions, which are run like enterprises in accordance with relevant regulations of the State and which no longer receive operating Chapter X Supervision and Control Article 29 The registration authorities shall exercise the following functions of supervision and control over enterprises as legal persons according (1) supervising the registration for starting operations, the application for making changes and the cancellation of registration by enterprises (2) supervising the conduct of business operations by enterprises as legal persons in line with the items of registrations, articles of (3) supervising the compliance of enterprises as legal persons and their legal representatives with laws, regulations and policies of (4) stopping, investigating or dealing with illegal business operations of enterprise as legal persons; protecting their legitimate rights Article 30 The registration authority may, in light of the circumstance, penalize an enterprise as legal person by warning, fine, confiscation (1) concealing the true situation and resorting to deception in the course of registration or starting operations before the approval (2) altering major items in the registration without permission or engaging in business operations beyond the scope of business as approved (3) failing to cancel registration according to the rules or failing to submit the check-up report or receive the annual check-up; (4) forging, altering, leasing, lending, transferring, selling or reproducing the Business License for Enterprise as a Legal Person or (5) withdrawing or transferring capital, concealing assets or dodging liabilities; (6) engaging in illegal business operations. While penalizing an enterprise as a legal person in line with the above provisions, the registration authority shall investigate its Article 31 The registration authority shall ascertain the facts and act according to law when dealing with the illegal activities of an enterprise Article 32 When an enterprise as a legal person disagrees with the penalty meted out but by the registration authority, it may appeal within Article 33 When an enterprise as a legal person has its business license revoked, the registration authority shall take over its official seal Article 34 Any functionary of the department in charge, the authority for examination and approval or of the registration authority, who has Chapter XI Supplementary Provisions Article 35 When an enterprise as a legal person establishes a branch which is incapable of bearing civil liability independently, the registration In accordance with relevant State regulations, administrative institutions depending on State funding or scientific and technological The specific control of the registration involved shall be enforced with reference to the provisions of the present Regulations. Article 36 For new enterprises to be established with the approval of relevant departments of the State Council or planning departments at various Article 37 Enterprises qualified as legal persons, whose registration was approved by the registration authorities before the present Regulations Article 38 The State Administration for Industry and Commerce shall be responsible for interpreting the present Regulations; and the rules for Article 39 The present Regulations shall enter into force as of July 1, 1988. The Measures on Administration of the Registration of Chinese-foreign |
The State Council
1988-06-03
CONSTITUTION ACT, 1982 – page 22
