|
The Standing Committee of the National People’s Congress
Order of President of the People’s Republic of China
No.50
Adopted at the 14th Meeting of the Standing Committee of the Eighth National People’s Congress on June 30, 1995, promulgated by Order
No.50 of the President of the People’s Republic of China on June 30, 1995, and effective as of October 1, 1995
President of the People’s Republic of China: Jiang Zemin
June 30, 1995
Guarantee Law of the People’s Republic of China
Chapter I General Provisions
Article 1
This Law is formulated for the purpose of promoting the capital flow and commodity circulation, safeguarding the realization of obligatory
right, and developing the socialist market economy.
Article 2
In such economic activities as loans, sales, goods freight and hire of processing work, etc., where the creditor needs to safeguard
the realization of his obligatory right by the way of guarantee, a guarantee may be established in accordance with the provisions
of this Law.
The modes of guarantee provided for in this Law shall be guaranty, mortgage, pledge, lien and deposit.
Article 3
In activities of guarantee, the principle of equality, voluntariness, fairness and good faith shall be complied with.
Article 4
When a third party offers the creditor a guarantee on behalf of the debtor, he may require the debtor to offer a counterguarantee.
The provisions on guarantee of this Law shall be applicable to counter-guarantee.
Article 5
A guarantee contract shall be an accessory contract to the master contract. Where the master contract is invalid, the guarantee contract
shall also be invalid. Where an agreement is otherwise reached in the guarantee contract, that agreement shall prevail.
Where a guarantee contract is affirmed to be invalid, the debtor, surety or creditor is in fault, they shall respectively bear the
relevant civil liability according to their own faults.
Chapter II Guaranty
Section 1 Guaranty and Guarantor
Article 6
In this Law, guaranty means that the guarantor and the creditor agree that, when the debtor fails to perform his debt, the guarantor
will perform the debt or bear the liability in accordance with the agreement.
Article 7
A guarantor may be a legal person, other organization or a citizen who has ability to discharge of debts on behalf of others.
Article 8
The state administrative departments shall not be a guarantor, unless they, with the approval of the State Council, transfer loans
for the purpose of using the loans of foreign governments or international organizations.
Article 9
Such institutions and social organizations as schools, kindergartens and hospitals, etc., which are established for the purpose of
public interest shall not be a guarantor.
Article 10
A branch or functional department of an enterprise as legal person shall not be a guarantor.
If a branch of an enterprise as legal person has been delegated in writing by the legal person, it may offer the guaranty within the
delegation extent.
Article 11
No organization or individual may oblige enterprises or financial institutions such as a bank to offer guaranty for others; enterprises
and financial institutions such as a bank shall have the right to refuse to offer guaranty for others when they are obliged to.
Article 12
Where there are two or more guarantors for the same debt, the guarantors shall, according to their own guaranty shares agreed in the
guaranty contract, bear the guaranty liability. In case of no agreement on the guaranty shares, the guarantors shall bear the joint
liability. Thus the creditor may demand any of the guarantors to bear the entire guaranty liability, and any of the guarantors shall
bear the obligation to guarantee the entire realization of the obligatory right. The guarantor who has borne the guaranty liability
shall be enpost_titled to claim repayment from the debtor, or to demand other guarantors bearing the joint liability to satisfy him their
shares that they shall bear.
Section 2 Guaranty Contract and Guaranty Mode
Article 13
The guarantor and creditor shall enter into a guaranty contract in written form.
Article 14
The guarantor and creditor may enter into a guaranty contract respectively as for a single master contract, and may also, within the
maximum obligatory right amount as for a loan contract occurred continuously during a certain period or a commodity trade contract,
enter into a guaranty contract.
Article 15
A guaranty contract shall contain the following contents:
1.
the categories and amount of a master obligatory right guaranteed;
2.
the time limitation to perform the debt by the debtor;
3.
the guaranty mode;
4.
the scope guaranteed by the guaranty;
5.
the time period of guaranty; and
6.
other items which the two parties consider necessary to agree.
If a guaranty contract has the contents prescribed in the proceeding paragraph incomplete, it may be supplemented.
Article 16
The guaranty mode contains:
1.
the general guaranty; and
2.
the joint liability guaranty.
Article 17
That the parties in a guaranty contract agree that, when the debtor cannot perform the debt, the guaranty liability is to be borne
by the guarantor, is the general guaranty.
The guarantor of a general guaranty may, without trial or arbitration on the disputes of a master contract, and before the debt cannot
be performed yet with compulsory enforcement on the debtors’ property according to the law, refuse to bear the guaranty liability
for the creditor.
When there is any one of the following circumstances, the guarantor shall not exercise the right prescribed in the proceeding paragraph:
1.
the address of the debtor has changed, so that it becomes a major difficulty for the creditor to demand him to perform the debt;
2.
the people’s court accepting a debtor’s bankruptcy case, orders suspension of execution procedure; or
3.
the guarantor abandons the right described in the proceeding paragraph in written form.
Article 18
That the parties in a guaranty contract agree that the guarantor and debtor bear the joint liability on a debt, is the joint liability
guaranty.
If the debtor of a joint liability guaranty cannot perform the debt at the date of expiration of the debt performance time limitation
prescribed in the master contract, the creditor may demand the debtor to perform the debt, and may also demand the guarantor to bear
the guaranty liability within the extent of guaranty.
Article 19
If no agreement or the agreement is not clear on the guaranty mode by the parties, the guaranty liability shall be borne according
to the joint liability guaranty.
Article 20
The guarantor of a general guaranty and joint liability guaranty shall be enpost_titled to have the counterplead right of the debtor. If
the debtor abandons his counterplead right, the guarantor shall still be enpost_titled to have right to counterplead.
The counterplead right means that the right of, when the creditor exercises his obligatory right, the debtor according to legal reasons
executing the petition right against the creditor.
Section 3 Guaranty Liability
Article 21
The guaranteed scope of a guaranty concludes the master obligatory right and its interest, contractual fine, damage compensation and
expense of credit realization. If there is an agreement otherwise in the guaranty contract, it shall be complied with.
If no agreement or the agreement is not clear on the guaranteed scope of a guaranty by the parties, the guarantor shall bear the liability
to the entire debt.
Article 22
During the time period of guaranty, where the creditor assigns the master obligatory right to a third party according to the law,
the guarantor continues to bear the guaranty liability within the original guaranteed scope of the guaranty. If there is an agreement
otherwise in the guaranty contract, it shall be complied with.
Article 23
During the time period of guaranty, if the creditor wants to permit the debtor to assign the debt, he shall get the written consent
from the guarantor, the guarantor bears no guaranty liability on the debt assigned without his consent.
Article 24
If the creditor and debtor agree to change the master contract, they shall get the written consent from the guarantor, without this
written consent, the guarantor bears no longer guaranty liability. If there is an agreement otherwise in the guaranty contract, it
shall be complied with.
Article 25
If no agreement on guaranty period between the guarantor and creditor of a general guaranty, the guaranty period shall be 6 months
from the date of expiration of the master debt performance time limitation.
During the guaranty period agreed in the contract or described in the proceeding paragraph, if the creditor has not filed a case against
the debtor or applied for the arbitration, the guarantor shall be exempted from the guaranty liability; if the creditor has filed
a case or applied for the arbitration, the guaranty period shall be applied to the provisions on the discontinuance of limitation
of action.
Article 26
If no agreement on a guaranty period between the guarantor and creditor of a joint liability guaranty, the creditor shall be enpost_titled
to have the right within 6 months from the date of expiration of the master debt performance time limitation to demand the guarantor
to bear the guaranty liability.
During the guaranty period agreed in the contract or described in the proceeding paragraph, if the creditor has not demanded the guarantor
to bear guaranty liability, the guarantor shall be exempted from the guaranty liability.
Article 27
The guarantor shall make a guaranty on a credit occurred continuously according to the provisions of Article 14 in this law, if no
agreement on guaranty time period, the guarantor may at all times inform the creditor in written form to terminate the guaranty contract,
however the guarantor shall, as for the credit occurred before having informed the creditor, bear guaranty liability.
Article 28
Where there are both a guaranty and a guarantee of real right on a same obligatory right, the guarantor shall bear the guaranty liability
on the obligatory right except the guarantee of real right.
If the creditor abandons the guarantee of real right, the guarantor shall, within the scope of right abandoned by the creditor, be
exempted from the guaranty liability.
Article 29
Where a branch of an enterprise as a legal person enters into a guaranty contract with the creditor without written delegation from
the enterprise as legal person or exceeding the extent of delegation, this contract shall be invalid or the part exceeding the extent
of delegation shall be invalid; if the creditor and the enterprise as legal person has default, they shall bear the relevant civil
liability according to their fault respectively; if the creditor has no default, the civil liability shall be borne by the enterprise
as legal person.
Article 30
If there is any one of the following circumstances, the guarantor shall not bear the civil liability:
1.
the parties of the master contract collude to defraud the guarantor to offer a guaranty; or
2.
the creditor of the master contract take means of fraud or coercion to force the guarantor to offer a guaranty against his true intention.
Article 31
After the guarantor has borne the guaranty liability, he shall be enpost_titled to claim repayment from the debtor.
Article 32
After the people’s court accepts a debtor’s bankruptcy case, if the creditor does not declare his obligatory rights, the guarantor
may take part in the bankrupted property distribution, exercise the right to claim repayment in advance.
Chapter III Mortgage
Section 1 Mortgage and Gage
Article 33
The mortgage prescribed in this Law, means a guarantee that a debtor or a third party does not transfer the possession of the property
listed in Article 34 in this Law, make the said property as obligatory right. When the debtor does not perform the debt, the creditor
shall be enpost_titled to have right to keep the said property to offset the debt or have priority in satisfying his claim out of proceeds
from the auction, sale of the said property pursuant to the provisions of this Law.
The debtor or third party prescribed in the proceeding paragraph shall be the mortgagor, the creditor shall be the mortgagee, the
property offered to guarantee shall be the gage.
Article 34
The following properties may be mortgaged:
1.
the house and other land fixtures owned by the mortgagor;
2.
the machine, transportation means and other property owned by the mortgagor;
3.
the state-owned right to the use of land, house and other land fixtures which the mortgagor is enpost_titled to dispose of pursuant to
the law;
4.
the state-owned machine, transportation means and other property which the mortgagor is enpost_titled to dispose of pursuant to the law;
5.
the right to the use of land on the unreclaimed land such as unreclaimed mountains, unreclaimed valleys, unclaimed hills or unreclaimed
beaches which is contracted for management by the mortgagor in accordance with law and is agreed to mortgage by the contractee; or
6.
other property which may be mortgaged in accordance with the law.
The mortgagor may mortgage the properties listed in the proceeding paragraph all together.
Article 35
The obligatory right guaranteed by the mortgagor shall not exceed the value of the gage.
After the property is mortgaged, the surplus part that the said property is more than the obligatory right guaranteed, may be mortgaged
once more, but shall not exceed the surplus part.
Article 36
If the house upon the state-owned land obtained according to the law is to be mortgaged, the right to the use of the state-owned land
within the scope the house occupies shall be mortgaged at the same time.
If the right to the use of state-owned land obtained by way of transfer according to the law, when mortgaged the house upon the said
state-owned land shall be mortgaged at the same time.
The right to the use of land of enterprises of a township (town) or village shall not be mortgaged separately. If the buildings of
enterprises of township (town) or village such as a plant is to be mortgaged, the right to the use of the land within the scope it
occupies shall be mortgaged at the same time.
Article 37
the following properties shall not be mortgaged:
1.
the ownership of land;
2.
the ownership of the lands owned by collectives such as cultivated land, house sites, private plots of cropland and hilly land shall
not be mortgaged, except that prescribed in item 5 of Article 34 , paragraph 3 of Article 36 of this Law;
3.
the facilities for education, the facilities for public health and medicine and other facilities for social benefit of the institutions
or social units for purpose of public interest such as schools, kindergartens or hospitals;
4.
the properties whose ownership or right to use is uncertain or in dispute;
5.
the properties sealed up, distrained or regulated; or
6.
other properties which shall not be mortgaged pursuant to law.
Section 2 Mortgage Contract and Gage Registration
Article 38
The mortgagor and the mortgagee shall enter into a mortgage contract in written form.
Article 39
A mortgage contract shall contain the following contents:
1.
the categories and amount of master obligatory right guaranteed;
2.
the time limitation to perform the debt by the debtor;
3.
the name, quantity, quality, situation, address, ownership or right to the use of the gage;
4.
the extent guaranteed by the mortgage; and
5.
other items the parties consider necessary to agree.
If a mortgage contract has the contents prescribed in the proceeding paragraph incomplete, it may be supplemented.
Article 40
When entering into a mortgage contract, the mortgagor and the mortgagee shall not agree that, when the mortgagee is not satisfied
at date of expiration of the time limitation for the debt performance, the ownership of the gage is to be transferred to the creditor.
Article 41
Where the parties take the properties prescribed in Article 42 of this Law to mortgage, he shall go through the gage registration,
the mortgage contract shall be effective as the date of registration.
Article 42
The departments handling the gage registration are as follows:
1.
in case that the right to the use of land without fixtures upon the land is to be mortgaged, it shall be the land administration departments
which upon verification issue certificates for the right to the use of land;
2.
in case that the city real estates or the building of the township (town) or village enterprises such as a plant is to be mortgaged,
it shall be the departments prescribed by the local people’s governments at and above the county level;
3.
in case that the woods are to be mortgaged, it shall be the forestry administration departments at and above the county level;
4.
in case that aircraft, vessels or vehicles are to be mortgaged, it shall be the registration departments for transportation means;
or
5.
in case that the equipment or other movables of a enterprise are to be mortgaged, it shall be the administrations of industry and
commerce where the properties are located.
Article 43
Where the party takes other properties to mortgage, he may go through the gage registration on a voluntary basis, the mortgage contract
shall be effective as the date of registration.
The party who has not handled the gage registration shall not be opposed to a third party. If the party goes through the gage registration,
the registration department is to be the notary department of the area where the mortgagor is located.
Article 44
When the gage registration is to be handled, the following documents or their copies shall be produced to the registration department:
1.
the master contract and the mortgage contract; and
2.
the certificate of ownership of or right to the use of the gage.
Article 45
The information registered by the registration department shall be allowed to inquire and read, copy by hand and copy.
Section 3 Effect of Mortgage
Article 46
Within the guaranteed scope of a mortgage shall be the master obligatory and its interest, contractual fine, damage compensation and
expense of realization of mortgage. If there is an agreement otherwise in the mortgage contract, it shall be complied with.
Article 47
At the date of expiration of the debt performance period, if the debtor has not performed the debt so that the gage has been distrained
by the people’s court, from the date of distraining the mortgagee shall be enpost_titled to collect the natural fruits separated from
the gage and the legal fruits that the mortgagee may collect on the gage. If the mortgagee has not informed the fact of the distraining
of the gage to the obligatory person who shall satisfy the claim out of proceeds for the legal fruits, the effect of mortgage shall
not extend to the said fruits.
The fruits of the proceeding paragraph shall eliminate in advance the expense of collecting the fruits.
Article 48
If the mortgagor wants to mortgage a property that has been leased, he shall notify the leased in writing, and the original lease
contract continues to be effective.
Article 49
During the period of mortgage, if the mortgagor assigns the gage registered, he shall inform the mortgagee and also notify the assignee
of the situation that the grant has been mortgaged; if the mortgagor does not inform the mortgagee or notify the assignee, the assigning
behavior shall be invalid.
If the value amount of the gage assigned is obviously lower than its value, the mortgagee may demand the mortgagor to offer the equivalent
guarantee; if the mortgagor does not offer, the gage shall not be assigned.
The value amount from assigning the gage by the mortgagor shall satisfy in advance the mortgagee for the claim out of the proceeds
on the obligatory right guaranteed or be deposited to the third party he agreed with the mortgagee. The part exceeding the amount
of the obligatory right, shall be owned by the mortgagor, while the short part shall be satisfied by the debtor.
Article 50
The mortgage right shall not be separated from the obligatory right so that it is assigned solely or as a guarantee of other obligatory
rights.
Article 51
If the behavior of the mortgagor causes the value of the gage to decrease, the mortgagee shall be enpost_titled to have right to demand
the mortgagor to stop his behavior. When the value of the gage decreases, the mortgagee shall be enpost_titled to have right to demand
the mortgagor to restore the value of the gage, or offer a guarantee equivalent to the value decreased.
If the mortgagor has no fault for the decrease of the value of the gage the mortgagee shall demand the mortgagee to be offered only
within the extent of compensation for the damage obtained by the mortgagor. The part of the gage of which the value does not decrease,
shall still be the guarantee of the obligatory right.
Article 52
The mortgage shall exist simultaneously with the obligatory right it guarantees, where the obligatory right is extinct, the mortgage
shall be extinct as well.
Section 4 Realization of Mortgage
Article 53
At the date of expiration of the debt performance period if the mortgagee has not been satisfied with the claim out of proceeds, he
may make an agreement with the mortgagor to keep the said property to offset the gage or satisfies his claim out of proceeds from
the auction, sale of the said gage; if failing to make an agreement, the mortgagor may file a case to the People’s Court.
After the gage is set off, auctioned or sold, the part of the value amount exceeding the amount of the obligatory right shall be owned
by the mortgagor, the short part shall be satisfied by the debtor.
Article 54
If there are two or more creditors who have a mortgage on the same property, the value amount obtained from the auction, sale of the
gage shall be satisfied pursuant to the following provisions:
1.
where the mortgage contract is effective through registration, it shall be satisfied in the registration sequence of the gage; if
equal in sequence, then it shall be satisfied according to the proportion of the obligatory right; or
2.
where the mortgage contract is effective as the date of signing, and the said gage has been registered, it shall be satisfied according
to the item 1 of this Article; if the gage has not registered, it shall be satisfied in the sequence of the effective date of the
contracts, and if equal in sequence, it shall be satisfied according to the proportion of the obligatory right. The registered gage
has priority to the unregistered gage.
Article 55
After the signing of the city real estates mortgage contract, the houses built lately upon the land shall not belong to the gage.
When the said mortgaged real estates is needed to be auctioned, the lately built houses upon the land may be auctioned together with
the gage, but as for the amount from the auction of the lately built houses, the mortgagee shall not be enpost_titled to have priority
in satisfying the claim out of proceeds.
Where the right to the use of land of the unreclaimed land contracted for management according to this Law is to be mortgaged, or
the right to the use of the land within the extent occupied by the buildings of the township (town) or village enterprises such as
a plant is to be mortgaged, after the realization of mortgage, the collective ownership and purpose of the land shall not be changed
without the legal procedure is gone through.
Article 56
The value amount obtained from the auction of the right to the use of the stated-owned land appropriated, after paying the amount
equivalent to the transfer fee of the right to the use of land which shall be paid, the mortgagee shall be enpost_titled to have right
in priority for the claim out of proceeds.
Article 57
The third party who offers guarantee of a mortgage on behalf of the debtor, after the realization of the mortgage by the mortgagee,
shall be enpost_titled to have right to claim repayment from the debtor.
Article 58
The mortgage right extinguishes with the extinction of the gage. The compensation for the extinction shall be as the mortgaged property.
Section 5 Mortgage of the Maximum Amount
Article 59
The mortgage of the maximum amount prescribed in this Law, means that the mortgagor and the mortgagee agree, within the extent of
maximum amount of the obligatory right, to take the gage as the guarantee of the obligatory right occurred continuously during a
certain period.
Article 60
A loan contract may be attached with a mortgage contract of maximum amount.
The contract signed by the creditor and debtor on a certain item commodity with which the trade occurs continuously during a certain
period, may be attached with a mortgage contract of maximum amount.
Article 61
The obligatory right of the master contract with the mortgage of maximum amount shall not be assigned.
Article 62
The mortgage of maximum amount shall, besides that it is applied to the provisions of this section, be applied to other provisions
of this Chapter.
Chapter IV Pledge
Section 1 Pledge of Movables
Article 63
The pledge of movables described in this Law, means that the debtor or the party delivers his movables to the creditor for possession,
and takes the said movables as the guarantee of the obligatory right. When the debtor does not perform the debt, the creditor shall
be enpost_titled to have right to keep the said movables to offset or have priority in satisfying in the claim out of proceeds from the
value amount of the auction or sale of the said movables.
The debtor or the third party prescribed in the proceeding paragraph shall be a pledgor, the creditor shall be a pledgee, the movables
delivered shall be the pledgings.
Article 64
The pledgor and the pledgee shall enter into a pledge contract in writing.
A pledge contract shall be effective as the date of remitting the pledgings to the pledgee.
Article 65
A pledge contract shall contain the following contents:
1.
the categories and amount of the master obligation right guaranteed;
2.
the time period to perform the debt by the debtor;
3.
the name, quantity, quality and situation of the pledgings;
4.
the extent guaranteed by the pledge;
5.
the time to deliver the pledgings; and
6.
other items which the parties consider necessary to agree.
If a pledge contract has the contents incompletely prescribed in the proceeding paragraph, it may be supplemented.
Article 66
The pledgor and the pledgee shall not agree that, when the pledgee is not satisfied at date of expiration of the time limitation for
the debt performance, the ownership of the pledgings is to be transferred to the pledgee.
Article 67
The guaranteed scope of a pledge shall conclude the master obligatory right and its interest, contractual fine, damage compensation,
expense for keeping the pledgings and expense for realization of pledge. If there is an agreement otherwise in the pledge contract,
it shall be complied with.
Article 68
The pledgee shall be enpost_titled to have right to collect the fruits produced by the pledgings. If there is an agreement otherwise in
the pledge contract, it shall be complied with.
The fruits of the proceeding paragraph shall eliminate in advance the expense of collecting the fruits.
Article 69
The pledgee shall bear the obligation to keep the pledgings properly. If he does not keep the pledgings properly so that the pledgings
are extinct or damaged, the pledgee shall bear the civil liability.
If the pledgee cannot keep the pledgings properly which probably cause the extinction or damage of the pledgings, the pledgor may
demand the pledgee to have the pledgings to be deposited, or demand to satisfy the obligatory right before the date of expiration
in order that the pledgings can be returned.
Article 70
If there is a probability of damage of or obvious deduction of the value of the pledgings that is enough to hurt the rights of the
pledgee, the pledgee may demand the pledgor to offer the relevant guarantee. If the pledgor does not offer the guarantee, the pledgee
may auction or sell the pledgings, and make an agreement with the pledgor that the value amount obtained from the auction or sale
is used to satisfy the obligatory right guaranteed before the date of expiration or to be deposited to the third party whom he agrees
with the pledgor.
Article 71
At the date of expiration of the debt performance time limitation if the debtor has performed the debt, or the pledgor has satisfied
the obligatory right guaranteed before the date of expiration, the pledgee shall return the pledgings.
At the date of expiration of the debt performance time limitation if the pledgee has not been satisfied, he may make an agreement
with the pledgor to keep the pledgings to offset, or to auction, sell the pledgings.
After the pledgings are kept to offset or auctioned, sold, the part that the value amount exceeds the amount of the obligatory right
shall be owned by the pledgor, the short part shall be satisfied by the debtor.
Article 72
The third party who offers the guarantee of a pledge on behalf of the debtor shall, after the realization of the pledge by the pledgee,
be enpost_titled to have right to claim repayment from the debtor.
Article 73
The right of the pledge extinguishes with the extinction of the pledgings. The compensation for the extinction shall be as the pledged
property.
Article 74
The pledge shall be existed simultaneously with the obligatory right it guarantees, where the obligatory right is extinct, the pledge
is extinct as well.
Section 2 Pledge of Rights
Article 75
The following rights may be pledged:
1.
a bill of exchange, check, promissory note, bond, deposit receipt, bill of lading or warehouse receipt;
2.
the share or share paper which may be assigned according to the law;
3.
the property right of the exclusive right to use trademark, patent right, copyright which may be assigned according to the law; or
4.
other rights which may be pledged
| Category |
PORT ADMINISTRATION |
Organ of Promulgation |
The State Council |
Status of Effect |
In force |
| Date of Promulgation |
1995-03-21 |
Effective Date |
1995-03-21 |
|
|
|
Measures for the Inspection of Ships of International Voyage Entering or Leaving the Ports of the People’s Republic of China |
(Promulgated in Decree No.173 by the State Council of the People’s Repulic
of China on March 21, 1995)
Article 1 These Measures are formulated with a view to strengthening the
administration of ships of international voyage entering or leaving the ports
of the People’s Republic of China, facilitating the entry or exit of the ships
and improving the efficency and functions of ports.
Article 2 The ships of international voyage (hereinafter referred to as
ships) entering or leaving the ports of the People’s Republic of China and
crew members, passengers, cargo and other articles carried thereon shall be
subject to inspection under these Measures by the organs stipulated in Article
3 of these Measures. But if otherwise provided for by laws or by the State
Council, special provisions shall apply.
Article 3 The harbour superintendencies of the People’s Republic of China
(hereinafter referred to as the harbour superintendencies), the customs
offices of the People’s Republic of China (hereinafter referred to as the
customs offices), the border inspection offices of the People’s Republic of
China (hereinafter referred to as the border inspection offices), the
quarantine offices of the People’s Republic of China (hereinafter referred to
as the quarantine offices) and the animal and plant inspection offices of the
People’s Republic of China (hereinafter referred to as the animal and plant
offices) shall be the organs responsible for inspection of ships of
international voyage entering or leaving the ports of the People’s Republic of
China (hereinafter joinly referred to as the inspection organs).
Article 4 The inspection organs shall exercise inspection and shall
handle illegal acts in accordance with the provisions of the relevant laws and
administrative regulations.
The harbour superintendencies shall be responsible for convening the joint
meeting attended by other inspection organs to study and resolve the problems
relating to inspection of entry or exit ships.
Article 5 Where a ship is intended to enter or leave the port of the
People’s Republic of China, the shipper or his agent shall go through the
entry or exit formalities in accordance with the relevant provisions of these
Measures. The inspection organs will not embark on the ship to perform
inspection except in cases of the situations provided in the second paragraph
of Article 10 and Article 11 of these Measures or in other special situations.
The shipper or his agent shall accurately complete report forms and shall
truthfully submit relevant proof, certificates and information in accordance
with the provisions by the inspection organs when going through the entry or
exit formilities.
Article 6 The shipper or his agent shall, seven days before the scheduled
arrival of his ship at a port (or if the voyage is less than seven days, at
the time of departure from the previous port), complete an “Application Form
for Port Entry of Ships of International Voyage” and apply for examination and
approval with the harbour superintendencies at the port of arrival.
Where a ship is intended to enter the waterway of the Yangtze River, the
shipper or his agent shall, seven days before its scheduled passage through
the Port of Shanghai (or if the voyage is less than severn days, at the time
of departure from the previous port), complete an “Application Form for Port
Entry of Ships of International Voyage” and apply for examination and approval
with the harbour superintendencies at the port of arrival.
Article 7 The shipper or his agent shall, 24 hours before the scheduled
arrival of his ship (or if the voyage is less than 24 hours, at the time of
departure from the previous port), report with the inspection organs on the
time of arrival, place of berth, arrangement of berth or changing berth and
information on crew members and passengers.
Article 8 The shipper or its agent failing to complete the entry
formalities before the arrival of his ship, shall complete the formalities
with the inspection organs within 24 hours as of arrival of ship.
If the time period of berth of a ship is less than 24 hours, the shipper
or his agent may, with approval of the inspection organs, go through the exit
formalities at the same time when going through the entry formalities.
Article 9 The shipper or his agent having completed the entry formilities
before the arrival of his ship, may embark or disembark passengers, load or
unload cargo or other articles on arrival.
Where a shipper or his agent fails to complete the entry formalites before
the arrival of his ship, no person, other than pilots and inspectors from the
inspection organs who exercise inspection of entry formalities, shall be
allowed to embark on or disembark from the ship, no cargo or other articles
shall be loaded or unloaded on arrival; if the previous port of call is in the
People’s Republic of China, passengers are allowed to embark on or disembark
from the ship, and cargo or other articles to be loaded or unloaded on
arrival, but all entry formalities shall be completed without delay.
Article 10 The quarantine offices shall exercise telecommunicated
quarantine inspection of ships. For ships with sanitary certificates, the
shippers or their agents may apply to the quarantine offices for
telecommunicated quarantine inspection.
Ships from pestilence areas, or ships carrying any quarantinable epidemic
victim or suspect or corpse of anyone who dies due to an unidentified cause
other than accidential harm, or ships without sanitary certificates or with
lapsed sanitary certificates or in unqualified sanitary conditions, shall
be subject to quarantine inspection at archorage by the quarantine offices.
Article 11 The animal and plant inspection offices may, at archorage,
exercise quarantine inspection of ships from animal and plant epidemic areas,
animals and plants and their products, and other quarantine projects carried
thereon.
Article 12 A shipper or his agent shall, within four hours before
departure of his ship from port (or if the time period of berth is less than
four hours, at the time of his arrival), complete all necessary exit
formalities with the inspection organs. The competent inspection organ shall
endorse a “Liaison Form of Exit Formalities of Ships” and the shipper or his
agent shall submit the Liaison Form and other proof, certificates and
information as required to apply to the harbour superintendencies for an Exit
Permit.
Article 13 After taking out the Exit Permit, if situations change or the
ship fails to leave the port within 24 hours, the shipper or his agent shall
submit a report with the harbour superintendency which will, in consultation
with other inspection organs, determine whether or not the exit formalities
are to be completed anew.
Article 14 For a ship with fixed number of crew members that navigates a
fixed route for one or more than one voyage within 24 hours, the shipper or
his agent may file a written application with the harbour superintendencies
for completing the regular entry or exit formalities. The harbour
superintendency which receives the application shall, in consultation with
other inspection organs and upon examination and approval of them together,
issue a Regular Exit Permit with a period of validity not less than seven days
and shall exempt the ship from the entry formalities within this period of
validity.
Article 15 The inspection organs and their personnel must enforce the law
impartially and fulfil duties scrupulously to carry out inspection in time and
accept applications for entry or exit of ships promptly.
Article 16 The meanings of the following terms used in this Measures:
“Ships of international voyage” mean ships with foreign nationality which
enter or leave the ports of the People’s Republic of China, or ships with
nationality of the People’s Republic of China which navigate international
routes.
“Ports” mean ports for entry or exit of ships of international voyage
under approval of the State.
A “shipper” menas an owner or an operator of ships.
Article 17 This Measures shall enter into effect as of the date of
promulgation. With approval of the State Council, the General Rules Concerning
Joint Inspection of Entry or Exit Ships promulgated by the Ministry of
Communications, the Ministry of Foreign Economic Relations and Trade, the
Ministry of Public Security and the Ministry of Public Health on October 24,
1961 shall be superseded simultaneously.
| Category |
LABOUR ADMINISTRATION |
Organ of Promulgation |
The State Council |
Status of Effect |
In Force |
| Date of Promulgation |
1995-03-25 |
Effective Date |
1995-05-01 |
|
|
|
Decision of the State Council on Revising the “Provisions of the State Council on Working Hours of Workers and Staff” (Appendix:
the First Revision) |
Appendix: PROVISIONS OF THE STATE COUNCIL ON WORKING HOURS OF WORKERS AND
(Adopted by the Eighth Plenary Meeting of the State Council on February
17, 1995, promulgated by Decree No.174 of the State Council of the People’s
Republic of China on March 25, 1995 and effective as of May 1, 1995)
The State Council has decided to amend the “Provisions of the State
Council on Working Hours of Workers and Staff” as follows:
1. Article 3 shall be amended as: “Workers and staff shall work 8 hours a
day and 40 hours a week.”
2. Article 5 shall be amended as: “When the standard working hour system
of 8 hours a day and 40 hours a week is inapplicable due to the special
working situation or production nature, other rules may be adopted on working
hours and holidays according to the relevant provisions of the State.”
3. Article 7 shall be amended as: “All state organs and institutional
organizations shall institute a unified working hour system under which
Saturday and Sunday shall be arranged as weekly holidays.
Enterprises and institutional organizations that cannot institute the
unified working hours prescribed in the preceding paragraph may make flexible
arrangements for weekly holidays in the light of their actual conditions.”
4. Article 9 shall be amended as: “These Provisions shall enter into
effect on May 1, 1995. In cases when it is difficult for enterprises and
institutional organizations to implement these Provisions as of the said date,
they may be given an appropriate period of deferment, but at latest on January
1, 1996 for such institutional organizations, or on May 1, 1997 for such
enterprises, the implementation of these Provisions shall commence.”
The “Provisions of the State Council on Working Hours of Workers and
Staff” shall be republished after being correspondingly amended according to
this Decision. Prior to the implementation of this Decision, the “Provisions
of the State Council on Working Hours of Workers and Staff” promulgated by the
State Council on February 3, 1994, and enforced as of March 1, 1994, shall
still hold effective.
Appendix: PROVISIONS OF THE STATE COUNCIL ON WORKING HOURS OF WORKERS AND
STAFF
(promulgated by Decree No.146 of the State Council of the People’s
Republic of China on February 3, 1994, and revised in accordance with the
“Decision of the State Council on Revising the Provisions of the State Council
on Working Hours of Workers and Staff” promulgated on March 25, 1995)
Article 1 These Provisions are formulated pursuant to the provisions of
the Constitution of the People’s Republic of China for the purposes of
rational disposition of working hours and holidays of workers and staff,
maintaining their right to rest, mobilizing their working initiative,
improving the development of socialist modernization construction.
Article 2 These Provisions shall be applicable to workers and staff
engaged in all state organs, social organizations, enterprises, institutional
organizations and other organizations within the territory of the People’s
Republic of China.
Article 3 Workers and staff shall work 8 hours a day and 40 hours a week.
Article 4 Workers and staff who are under special working conditions or
have special situation and need the working hours to be shortened reasonably
shall implement the relevant provisions of the State.
Article 5 When the standard working hour system of 8 hours a day and 40
hours a week is inapplicable due to the special working situation or
production nature, other rules may be adopted on working hours and holidays
according to the relevant provisions of the State.
Article 6 No unit or individual shall extend the working hours of their
workers and staff without authorization. When the working hours are necessary
to extend for the purpose of special case or emergent assignment, it shall be
implemented according to the relevant provisions of the State.
Article 7 All state organs and institutional organizations shall
institute a unified working hour system under which Saturday and Sunday shall
be arranged as weekly holidays.
Enterprises and institutional organizations that cannot institute the
unified working hours prescribed in the preceding paragraph may make flexible
arrangements for weekly holidays in the light of their actual conditions.
Article 8 The Ministry of Labour and the Ministry of Personnel shall be
responsible for the interpretation of these Provisions. The implementation
measures shall be formulated by the Ministry of Labour and the Ministry of
Personnel.
Article 9 These Provisions shall enter into effect on May 1, 1995. In
cases when it is difficult for enterprises and institutional organizations to
implement these Provisions as of the said date, they may be given an
appropriate period of deferment, but at latest on January 1, 1996 for such
institutional organizations, or on May 1, 1997 for such enterprises, the
implementation of these Provisions shall commence.
| Category |
SECURITIES |
Organ of Promulgation |
The State Council |
Status of Effect |
In Force |
| Date of Promulgation |
1995-12-25 |
Effective Date |
1995-12-25 |
|
|
|
Regulations of the State Council on Foreign Capital Stocks Listed in China by Joint-stock Companies |
(Adopted at the 37th Executive Meeting of the State Council on
November 2, 1995, promulgated by Decree No.189 of the State Council
of the People’s Republic of China on December 25, 1995)
Article 1 In order to standardize the issue and transactions
of foreign capital stocks listed in China by joint-stock companies
and protect the lawful rights and interests of investors, these
Regulation are formulated in accordance with the relevant
provisions of the Company Law of the People’s Republic of China
(hereinafter referred to as the Company Law).
Article 2 With the approval of the Securities Commission of
the State Council, joint-stock companies (hereinafter referred to
as “companies” or “company”) may issue foreign capital stocks
to be listed in China. If the face value of the foreign capital
stocks to be listed in China totals more than 30 million US dollars,
the Securities Commission of the State Council shall report to the
State Council for approval.
The above-mentioned issuing foreign capital stocks to be listed
in China means issuing foreign capital stocks to be listed in China
either for establishing a company by way of solicitation or for
increasing capital of a company.
The total value of the foreign capital stocks listed in China
authorized by the Securities Commission of the State Council shall
be controlled within the maximum amount prescribed by the state.
Article 3 Foreign capital stocks issued by companies to
be listed in China shall be in the form of nominative stocks,
denominated in renminbi, subscribed in and marketed by foreign
currency, and listed and exchanged on stock exchanges in China.
If companies that issue foreign capital stocks to be listed
in China issue stocks to investors within China (hereinafter
referred to as “internal stocks”), the internal stocks shall be
in form of nominative stocks.
Article 4 Investors in foreign capital stocks listed in
China shall be limited to:
(1) natural persons, legal persons and other organizations
from foreign countries;
(2) natural persons, legal persons or other organizations
from the Chinese regions of Hong Kong, Macau and Taiwan;
(3) Chinese citizens living abroad; and
(4) other investors in foreign capital stocks prescribed by
the Securities Commission of the State Council;
Investors in foreign capital stocks listed in China shall
produce valid instruments as testimony to their identity
and qualification as investors when they subscribe for or market
foreign capital stocks.
Article 5 Stockholders who hold the same category of foreign
capital stocks listed in China or internal stocks shall enjoy equal
rights and interests and perform equal duties according to the
Company Law.
Companies may make specific stipulations in the company
constitution concerning stockholders’ rights and duties.
Article 6 The constitution of a company shall be binding
upon the company’s stockholders, directors, supervisors, managers
and other high-ranking management personnel.
Directors, supervisors, managers and other high-ranking
management personnel shall be honest, diligent, and loyal to the
company.
Other high-ranking management personnel mentioned in the
first and second paragraphs of the present Article include
persons in charge of the company’s financial affairs, the
secretary of the board of directors and other persons prescribed
as such by the company constitution.
Article 7 The Securities Commission of the State Council and
the Chinese Securities Superintendency Administrative Committee
(hereinafter abbreviated as CSSAC), which is an affiliated
establishment of the former, shall exercise administration and
supervision over the issue, exchange and relevant business of
foreign capital stocks listed in China according to laws and
regulations.
Article 8 Establishment of a company by way of solicitation
and application for issuing foreign capital stocks to be listed
in China shall satisfy the following requirements:
(1) Use of the solicited capital shall conform with state
industrial policies;
(2) State regulations on the establishment of investment
items in fixed assets shall be complied with.
(3) State regulations on exploitation of foreign capital
shall be complied with;
(4) The sponsor shall subscribe for a total of not less than
35 percent of the total volume of capital stock to be issued by
the company;
(5) The total capital invested by the sponsor shall be not
less than 150 million renminbi yuan;
(6) The shares to be issued to society shall account for over
25 percent of the total shares, or over 15 percent of the total
shares if the company intends to issue over 400 million renminbi
yuan as a total;
(7) An enterprise that has been reorganized to establish a
company or the state-owned enterprise as the main sponsor of the
company shall have no history of serious offenses over the last
three years;
(8) An enterprise that has been reorganized to establish a
company or the state-owned enterprise as the main sponsor of the
company shall have had a favorable balance over the last three
years; and
(9) Other requirements prescribed by the Securities
Commission of the State Council.
Article 9 A company that intends to add capital and applies
for issue of foreign capital stocks to be listed in China shall
satisfy the following requirements in addition to those
stipulated in Items 1, 2 and 3 of Article 8 of the present
Regulations:
(1) The company shall have solicited sufficient shares at
last issue; the use of the obtained capital shall have conformed
with the use determined at the time of solicitation and the use
of the capital shall have resulted in good economic benefits;
(2) The general net assets of the company shall be not less
than 150 million renminbi yuan;
(3) The company shall not have committed any serious offenses
in the time between the last issue of stocks to the filing of the
current application for issue of stocks;
(4) The company shall have maintained a favorable balance
over the last three years (An original enterprise which was
reorganized to establish a company or the state-owned company as
the main sponsor of the company may be taken into calculation); and
(5) Other requirements prescribed by the Securities
Commission of the State Council.
A company established by way of solicitation shall in addition
comply with stipulations of Item 6 of Article 8 of the present
Regulations when the company adds capital for the first time and
applies for the issuing of foreign capital stocks to be listed in
China.
Article 10 Whoever applies for issuing of foreign capital
stocks to be listed in China shall go through the following
procedures:
(1) The sponsoring person or company shall file an
application with the people’s government of province,
autonomous region or municipality directly under the central
government, or relevant departments of the State
Council in charge of enterprises, which may then recommend it
to the Securities Commission of the State Council;
(2) The Securities Commission of the State Council shall
consult with relevant departments of the State Council in the
selection of companies that should be enpost_titled to issue foreign
capital stocks listed in China;
(3) The selected company shall submit the instruments listed
in Articles 11 and 12 of the present Regulations to the CSSAC for
examination; and
(4) A company considered by the CSSAC to meet requirements
shall then be reported for approval to the Securities Commission
of the State Council or to the State Council according to the
stipulations of the first paragraph of Article 12 of the present
Regulations. Only with approval can the company begin to issue
foreign capital stocks to be listed in China.
Article 11 For establishment of a company by way of
solicitation and application for the issue of foreign capital
stocks listed in China, the following instruments shall be
submitted to the CSSAC:
(1) a written application;
(2) the name of the sponsor, volume of shares to be
subscribed for by the sponsor, category of the capital invested
and certificate of verification of the capital;
(3) a resolution made in a meeting of sponsors in favor of
public issue of foreign capital stocks listed in China;
(4) an instrument of approval of the departments authorized
by the State Council or of the people’s governments to establish
the company;
(5) a recommendation made by the people’s governments of the
province, autonomous regions or municipality directly under the
central government or by relevant departments of the State Council
in charge of enterprises;
(6) a Notice of Advance Examination and Approval of the
Enterprise Name issued by a company registration department;
(7) a draft of the constitution of the company;
(8) details for raising capital by floating stocks;
(9) a feasibility report on use of capital; an approval
instrument made out by relevant authorities concerning the
establishment of investment items in fixed assets if capital
raised is to be invested in fixed assets subject to necessary
approval from relevant authorities;
(10) a report on the financial affairs of the original
enterprise or the state-owned enterprise as the main sponsor over
the last three years that has already been audited by a
registered accountant and the office to which the accountant is
attached; and an audit report signed and sealed by at least two
registered accountants and the office to which the accountants
are affiliated;
(11) an assets assessment report signed and sealed by at
least two professional assessors and the office to which the
assessors are attached; and an instrument of confirmation and an
instrument of approval regarding the state-owned post_title of stocks
made out by the management authorities of state assets in the
event state-owned assets are involved;
(12) a document of legal opinions signed and sealed by at
least two lawyers and the office to which the two lawyers are
affiliated;
(13) a sale contracting plan and agreement governing the
issue of stocks; and
(14) other instruments required by the CSSAC.
Article 12 A company that intends to add capital and apply
for the issue of foreign capital stocks listed in China shall
submit the following instruments to the CSSAC:
(1) a written application;
(2) a resolution of a stockholders’ meeting in favor of
public issue of foreign capital stocks listed in China;
(3) an instrument of approval in favor of adding capital and
issuing new stocks made out by departments authorized by the
State Council or people’s governments of the province, autonomous
region or municipality directly under the central government;
(4) an instrument of recommendation of the people’s
government of the province, autonomous region or municipality
directly under the central government or relevant departments of
the State Council in charge of enterprises;
(5) a business license of the company issued by a company
registration organ;
(6) a draft of the constitution of the company;
(7) details for raising capital by floating shares;
(8) a feasibility report on use of capital; and an approval
instrument made out by the relevant authorities concerning the
establishment of investment items in fixed assets if the capital
raised is to be invested in fixed assets subject to necessary
approval from relevant authorities;
(9) a report on the financial affairs of the company of over
the last three years which has been audited by a registered
accountant and the office to which the accountant is affiliated;
and an audit report signed and sealed by at least two registered
accountants and the office to which the accountants are
affiliated;
(10) a document of legal opinions signed and sealed by at
least two lawyers and the office to which the lawyers are
affiliated;
(11) a sales contracting plan and an agreement governing the
issue of stocks; and
(12) other instruments required by the CSSAC.
Article 13 The interval between a company’s issue of foreign
capital stocks listed in China and the issue of internal stocks
may be less than 12 months.
Article 14 Companies shall employ registered accountants who
meet state standards; accountants and their affiliated offices
shall audit and review a company’s financial reports.
Article 15 Companies shall conduct business accounting and
formulate financial reports according to corresponding state
regulations.
Companies that make adjustments to a financial report
released to investors in foreign capital stocks listed in
China so as to adapt to accounting rules of other countries or
regions shall give an explanation for any corresponding
differences in the report.
Article 16 Companies that issue foreign capital stocks
listed in China shall release information to the public
according to law and shall formulate concrete provisions in
their constitutions with regard to where and how to release
the information.
Article 17 Documents of information released by companies
that issue foreign capital stocks listed in China shall be
written in Chinese. If it is necessary to supply a version in a
foreign language, the version shall be in a commonly used foreign
language. If differences in interpretations occur between the
Chinese version and the foreign-language version, the Chinese
version shall be taken as the standard.
Article 18 Companies that issue foreign capital stocks
listed in China shall commission a securities exchange
agency in China established with the approval of the People’s
Bank of China according to law and with the consent of the CSSAC
to serve as the main contracted seller or one of the main
contracted sellers.
Article 19 Companies that issue foreign capital stocks
listed in China shall open a foreign exchange account with
a bank within China which is qualified to handle foreign exchange
business. To open a foreign exchange account, companies shall go
through the state procedures governing the control of foreign
exchange.
The main contracted seller of foreign capital stocks listed
in China shall, within the time allotted in the sale
contract, transfer the money raised to the foreign exchange
account of the company issuing foreign stocks listed in
China.
Article 20 Commissions for the marketing of foreign capital
stocks shall be managed by a securities exchange agency
established with the approval of the People’s Bank of China
according to law and the consent of the CSSAC.
Article 21 Stockholders of foreign capital stocks listed
in China may entrust an agent with the exercise of stockholder’s
rights. When exercising the stockholder’s rights, the agent shall
produce valid instruments proving his qualifications as an agent.
Article 22 Owners of rights and interests in foreign capital
stocks listed in China may register their stocks under the name
of the persons of nominal ownership of stocks.
Owners of rights and interests in foreign capital stocks
listed in China shall release information about changes in
ownership.
Article 23 The exchange, management, settlement of exchange
transactions, clearance of accounts, transfer of ownership, and
registration relating to business of foreign capital stocks
listed in China shall conform with the law, administrative
regulations and corresponding rules of the Securities Commission
of the State Council.
Article 24 Subject to approval of the Securities Commission
of the State Council, foreign capital stocks listed in China or
their derivatives may be circulated or transferred out of China.
The above-mentioned “derivatives” refer to vouchers for the
subscription rights and for rights of stocks deposition out of
China.
Article 25 Companies’ payments of dividends and/or other
items to stockholders of foreign capital stocks listed in
China shall be priced and declared in renminbi but made in
foreign currency. The management of foreign currency capital
raised by companies and the obtainment of foreign exchanges for
payment of dividends shall comply with the relevant procedures of
the state governing control of foreign exchanges.
If it is stipulated in the company constitution that foreign
currencies be exchanged and payment of dividends to stockholders
be made by a company entrusted therewith, it shall be so done in
accordance with the constitution.
Article 26 Dividends of foreign capital stocks listed
in China and/or other profits may be remitted abroad subject
to taxation according to law.
Article 27 The Securities Commission of the State Council
may, according to the present Regulations, formulate detailed
rules and regulations for the implementation thereof.
Article 28 The present Regulations shall come into effect as
of the date of promulgation. Both the Procedures of Shanghai
Municipality Governing the Control of Special Stocks in Renminbi,
which was promulgated by the People’s Bank of China and the
People’s Government of Shanghai Municipality on November 22,
1991, and the Interim Procedures of Shenzhen Municipality
Governing the Control of Special Stocks in Renminbi, which was
promulgated by the people’s government of Shenzhen Municipality
on December 5, 1991 are henceforth annulled.
| Category |
INAELLECTUAL PROPERTY RIGHT |
Organ of Promulgation |
The State Council |
Status of Effect |
In Force |
| Date of Promulgation |
1995-07-05 |
Effective Date |
1995-10-01 |
|
|
|
Regulations of the People’s Republic of China on the Customs Protection of Intellectual Property Rights |
Chapter I General Principles
Chapter II Record
Chapter III Applications
Chapter IV Investigation and Handling of Cases
Chapter V Legal Responsibility
Chapter VI Supplementary Provisions
(Promulgated by Decree No.179 issued by the State Council of the People’s
Republic of China on July 5, 1995, and effective as of October 1, 1995)
Chapter I General Principles
Article 1 These Regulations are formulated in accordance with relevant
laws of the People’s Republic of China, in order to enforce Customs protection
of intellectual property rights, promote with foreign countries economic,
trade, technological and cultural exchanges and safeguard social and public
interests.
Article 2 These Regulations are applicable to intellectual property
rights, including copyrights, patents and rights to the exclusive use of
trademarks, which are related to the imported and exported goods and protected
by the laws and administrative regulations of the People’s Republic of China.
Article 3 The import or export of the goods which infringe on
intellectual property rights protected by the laws and administrative
regulations of the People’s Republic of China (hereinafter referred to as
infringing goods) is forbidden.
Article 4 The Customs Office of the People’s Republic of China shall
enforce the protection of intellectual property rights related to imported or
exported goods, and shall exercise relevant powers stipulated by the Customs
Law of the People’s Republic of China.
Article 5 Consignees of imported goods or consignors of exported goods
and their registered agents (hereinafter jointly referred to as consignees or
consignors) shall honestly declare the state of intellectual property rights
related to imported or exported goods and shall submit relevant documents to
Customs for verification.
Article 6 Intellectual property rights owners and their registered agents
(hereinafter jointly referred to as intellectual property owners) requesting
Customs to enforce protection of intellectual property related to imported or
exported goods, shall report said intellectual property rights to Customs for
the record, and when necessary shall file an application with said office for
the institution of protective measures.
Article 7 When enforcing the protection of intellectual property rights,
Customs shall protect all trade secrets of the parties concerned.
Chapter II Record
Article 8 Intellectual property rights owners shall submit written
applications to the General Customs Administration when applying to the
Customs Office for the protection of intellectual property rights.
The application shall include:
(1) the post_title or name, registration place or nationality, domicile, legal
representative and principal place of business of the owner of intellectual
property rights;
(2) registration number, content and period of validity of the registered
trademark, or the number, content and period of validity of the patent, or
content of the copyright;
(3) name and place of production of the goods related to intellectual
property rights;
(4) persons authorized or licensed to use intellectual property rights;
(5) status of principal importing or exporting Customs Office, importer or
exporter, principal features, and normal prices of the goods related to
intellectual property rights;
(6) status of the manufacturer, importer or exporter, principal importing
or exporting Customs Office, principal features and prices of known infringing
goods;
(7) other information the General Customs Administration considers
relevant.
The following documents must be enclosed when submitting applications:
(1) copy of approved identification card, or transcript of registration
certificate of intellectual property owner, or copy attested by appropriate
registration departments;
(2) copy of the registration certificate of the registered trademark, copy
of the announcement of assignment of registered trademark approved by the
Trademark Bureau, or the trademark licensing contract entered in the records
of the Trademark Bureau; or copy of the original certificate, transcript of
patent assignment contract registered with and publicly announced by the
Patent Office, and copy of the licensing contract for exploitation of patent;
or certificate of proof of copyright or other evidence;
(3) miscellaneous documents the General Customs Administration requires.
Article 9 The General Customs Administration shall, within 30 days upon
receipt of application documents, notify applicants if the application will be
entered in the record. If entered into the record, the General Customs
Administration shall provide a certificate of record of Customs protection of
intellectual property rights; the Administration shall explain reasons for the
failure to enter applications.
Article 10 The record of Customs protection of intellectual property
rights shall take effect on the day said record is approved by the General
Customs Administration. The period of validity shall be 7 years.
Subject to the validity of intellectual property rights, the owner of said
intellectual property rights may apply to the General Customs Administration
for the renewal of record within 6 months prior to the expiration of the
period of validity of the record of Customs protection of intellectual
property rights. The period of validity for each renewal of record shall be 7
years.
The record of Customs protection of intellectual property rights shall be
invalid if no application for renewal has been filed prior to the expiration
of the period of validity of the record of Customs protection of intellectual
property, or expiration of the legal protection period of the right to the
exclusive use of trademarks, patents or copyrights.
Article 11 If the status of recorded intellectual property rights is
altered, the owner of said intellectual property rights shall complete all
General Customs Administration formalities required for altering or cancelling
the record within 10 days after the day the intellectual property agency
approves the alteration.
Chapter III Applications
Article 12 Intellectual property rights owners who have been entered into
the record of the General Customs Administration may submit an application
requesting that the Customs Office located in site of importation or
exportation adopt protective measures for intellectual property rights if they
suspect infringements of goods entering or exiting the country.
Article 13 Interested parties shall submit a written application
requesting that Customs institute protective measures for intellectual
property rights.
The application shall include:
(1) name and Customs record number of the intellectual property rights
applicant requests Customs to protect;
(2) name, domicile, legal representative and principal place of business
of the alleged infringer;
(3) information on name and estimated volume of suspected infringing goods;
(4) location of the probable entry or exit port, time, conveyance and
consignees or consignor of the suspected infringing goods;
(5) related proof of infringement;
(6) measures applicant requests Customs to institute;
(7) miscellaneous information requested by Customs.
Article 14 Applicants requesting that Customs seize suspected infringing
goods should submit a bail bond equal to the CIF price of imported goods or
the FOB price of exported goods.
Article 15 Intellectual property rights owners requesting that Customs
institute protective measures for intellectual property rights not as yet
entered into the records of the General Customs Administration shall complete
all formalities of the record of intellectual property rights in accordance
with the provisions of Article 8 of these Regulations when applying for same.
Article 16 Customs shall refuse to accept applications requesting that
Custums institute protective measures for intellectual property rights which
fail to conform with relevant provisions in this Chapter.
Chapter IV Investigation and Handling of Cases
Article 17 When acting on the application of intellectual property rights
owners to detain suspected infringing goods, Customs must file a Customs
Detention Receipt, serve same on the consignee or consignor of the goods, and
notify the applicant in writing.
Consignees or consignors claiming that imported or exported goods do not
infringe on the intellectual property rights of the applicant shall, within
7 days of being served the Customs Detention Receipt, file a written objection
explaining related circumstances. Should the consignee or consignor fail to
file an objection within the prescribed 7 day period, Customs may, depending
on the outcome of an investigation, treat and deal with proven infringing
goods accordingly. Customs shall immediately notify the applicant in writing
of any objection filed by the consignee or consignor.
The applicant shall have the right to apply to the appropriate
intellectual property rights protection agency requesting that said agency
deal with the infringement dispute, or otherwise take action concerning the
dispute in the people’s court within 15 days from the date the written
notification from Customs was served in accordance with the first paragraph in
this Article.
Article 18 Customs shall have the authority to detain imported or
exported goods suspected of infringing on intellectual property rights entered
in Customs records. Customs must serve the consignee or consignor with a
Customs Detention Receipt and immediately notify the intellectual property
rights owner in writing when goods are detained. If the intellectual property
rights owner submits a written application for intellectual property
protection within 3 days following the written notification of the detention
of goods, the matter shall be handled in accordance with provisions in Article
17 of these Regulations.
Article 19 Consignees or consignors maintaining that detained goods do
not in fact infringe on the intellectual property rights of the applicant may
apply for clearance of the goods after relinquishing a bail bond equal to two
times the CIF price of the imported goods, or two times the FOB price of
exported goods.
Article 20 When detaining suspected infringing goods under the procedures
described in Articles 17 and 18 of these Regulations, Customs must conduct an
investigation within 15 days following the actual detention of the goods
unless any parties involved have submitted the infringement dispute to the
appropriate intellectual property rights agency for handling, or has
instituted action concerning the dispute in the people’s court.
When suspecting any form of criminal activity in relation to intellectual
property rights infringements, Customs shall alert the appropriate agency for
further investigation.
Article 21 The intellectual property rights owner should afford all
necessary assistance to Customs officials conducting an investigation of the
suspected infringing goods in detention, and all other relevant matters.
Article 22 The Customs may release the suspected infringing goods in
detention under any of the following circumstances:
(1) if an investigation by Customs or an appropriate intellectual property
rights agency has eliminated any suspicion of infringement;
(2) if the people’s court, by judgment or order, has eliminated any
suspicion of infringement;
(3) if parties involved in the dispute failed to initiate action in the
people’s court prior to the specified deadline, or if the people’s court
refuses to hear the case, or if the people’s court fails to issue an order to
adopt property preservation measures;
(4) if the intellectual property rights owner fails to file a reply within
the specified period of time, or if the said owner relinquishes Customs
protection of intellectual property rights.
Article 23 Suspected infringing goods in detention later found by
Customs, or by an appropriate intellectual property rights agency, or by the
people’s court to be infringing goods shall be confiscated by Customs.
Article 24 Customs shall handle confiscated goods in accordance with the
following provisions in the light of differing circumstances:
(1) goods infringing copyrights shall be destroyed;
(2) goods infringing rights to exclusive use of a trademark shall be
destroyed if the infringing trademark cannot be removed from the goods; in
cases when the trademark can be removed and the goods are still useable, the
goods shall, after the trademark has been properly destroyed, be used for
public service, or sold at public auction for the personal use of persons
other than the infringer;
(3) infringing goods other than those prescribed in the two preceding
paragraphs shall be dealt with in accordance with relevant regulations of the
State Council.
Article 25 Once decisions by Customs, a relevant intellectual property
rights agency, or a judgment or order of the people’s court take effect, any
bail bond posted to Customs by concerned parties shall be returned after
subtraction of the following fees:
(1) warehousing, storage, disposal and other relevant fees applying to said
goods;
(2) compensation paid to interested parties for goods detained due to an
unjust application filed by the applicant for Customs protection.
Article 26 Civil disputes between intellectual property rights owners and
consignees or consignors of the goods shall be resolved by litigation,
arbitration or other lawful means selected at the discretion of the parties
involved. Customs bears no responsibility for civil cases.
Article 27 Customs shall be free from any responsibility and the
intellectual property rights owner shall bear full responsibility if Customs,
due to inaccurate information provided by the said intellectual property
rights owner, fails to locate the infringing goods, or fails to commence
applications for protection of intellectual property rights in a timely manner
or takes improper measures to protect the intellectual property after
accepting the record of intellectual property rights protection and the
application for adopting measures to protect intelletual property rights.
Chapter V Legal Responsibility
Article 28 In cases when a consignee or consignor was aware or should
otherwise have been aware that their goods infringed on the intellectual
property rights of another party, Customs may fine said consignee or consignor
an amount not more than the CIF price for imported goods or the FOB price for
exported goods.
Article 29 If a consignee or consignor fails to honestly declare the
status of intellectual property rights related to imported or exported goods,
or fails to submit relevant verification certificates, Customs may fine the
consignee or consignor an amount not more than the CIF price for imported
goods or the FOB price for exported goods.
Article 30 Any interested party disagreeing with the punishment decision
of Customs may, within 30 days from the date of receiving the punishment
notice, or within 30 days from the date of the announcement of the punishment
decision when the Customs is unable to serve the punishment notice on parties
concerned, apply for reconsideration from the Customs rendering the punishment
decision, or to a higher level Customs department; the Customs department
concerned shall render a reconsideration decision within 90 days after
receiving the reconsideration application. Parties who disagree with the
reconsideration decision may institute action in the local people’s court
within 30 days after receiving the reconsideration decision.
Concerned parties may file suit directly in the people’s court within 30
days after receiving the punishment notice, or the announcement of the
punishment.
Article 31 If the importation or exportation of infringing goods
constitutes a criminal act, the offender shall be investigated for criminal
responsibility in accordance with the law.
Article 32 Customs officials or staff responsible for enforcing
intellectual property rights protection who are found to have abused their
power, willfully created undue difficulties, neglected their duties, or
otherwise engaged in any malpractice to benefit an interested party, with
related circumstances deemed serious enough to constitute a crime, shall be
investigated for criminal responsibility in accordance with the law; Customs
officials or staff engaged in acts which do not constitute a crime shall be
given administrative sanctions in accordance with the law.
Chapter VI Supplementary Provisions
Article 33 Goods entering or exiting the country as luggage and other
articles carried or posted by any individual which exceed the amount required
for personal use, or an otherwise reasonable amount, and which infringe on the
intellectual property rights of an owner under the protection of the laws and
administrative regulations of the People’s Republic of China, shall be treated
as infringing goods and shall be handled in accordance with relevant
provisions in these Regulations.
Article 34 Customs may charge recording fees and other necessary fees
related to detaining or otherwise handling infringing goods in the course of
carrying out intellectual property rights protection. Specific procedures for
charging related fees shall be formulated by the General Customs
Administration in association with the finance department and the commodity
price department of the State Council.
Article 35 The General Customs Administration shall formulate specific
procedures for applications for recording Customs protection for intellectual
property rights, and for enforcing intellectual property rights protection, as
well as all related forms and documents required.
Article 36 These Regulations shall go into effect as of October 1, 1995.
|
The Ministry of Foreign Trade and Economic Cooperation
Provisions of the People’s Republic of China on Administration of International Freight Forwarders
Decree No.5 of the Ministry of Foreign Trade and Economic Cooperation
June 29, 1995
Chapter I General Provisions
Article 1
These provisions are formulated to govern behaviors of international freight forwarders to safeguard the lawful rights and benefits
of consignors and consignees of exports and imports, and international freight forwarders and to promote the development of foreign
trade.
Article 2
The international freight forwarders referred to in the provisions mean those trades entrusted by consignors and consignees of exports
and imports conduct international freight forward and related businesses for their clients and collect enumerations for their services
in their own names or in the name of their consignors.
Article 3
International freight forwarders must obtain the status of a legal body as an enterprise of the People’s Republic of China according
to law.
Article 4
The Competent Departments of foreign trade and economic cooperation under the State Council are responsible for supervision and management
of international freight forwarders throughout the country.
The competent departments of trade and economic relations with other countries of people’s governments of various provinces, autonomous
regions and municipalities directly under the Central Government as well as special economic zones (hereinafter referred to as local
competent departments of trade and economic relations with other countries) are responsible for supervision and management of international
freight forwarders in their administrative areas in accordance with the provisions and with in the scope of power authorized by the
competent departments of foreign trade and economic cooperation under the State Council.
Article 5
The supervision and management of international freight forwarders should abide by the following principles:
1.
To meet the demands of development of foreign trade and promote the rational distribution of international freight forwarding agencies.
2.
To protect fair competition and promote the improvement of services of international freight forwarders.
Article 6
Enterprises engaged in international freight forwarding should observe the laws and administrative rules and regulations of the People’s
Republic of China and be subject to the supervision and management carried out by related competent institutions of their trade in
keeping with relevant laws and administrative rules and regulations.
Chapter II Conditions for the Establishment
Article 7
According to the characteristics of the trade the establishment of an international freight forwarder must acquire the following conditions:
1.
It has competent professional to engage in international freight forwarding.
2.
It has a fixed site for business and necessary facilities.
3.
It has stable sources of and markets for exports and imports.
Article 8
The minimum amount of registered capital of an international freight forwarder must meet the following demands:
1.
The minimum amount of registered capital of an international freight forwarder by sea should be 5 million yuan.
2.
The minimum amount of registered capital of an international freight forwarder by air should 3 million yuan.
3.
The minimum amount of registered capital of an international freight forwarder by land or and international express deliverer should
be 2 million yuan.
For an enterprise engaged in two or more than two items of businesses mentioned above its minimum amount of registered capital should
be that of the item with the highest amount of registered capital.
In sitting up a branch an international freight forwarder should add a registered capital of 500,000 yuan.
Chapter III Procedures of Examination and Approval
Article 9
To apply for the establishment of an international freight forwarding agency the applicant should submit an application to the competent
department of trade and economic relations with other countries of the locality when the agency is to be set up and, with opinions
put forward by the department, should forward the applications to the competent department of foreign trade and economic cooperation
under the State Council for approval and ratification.
Enterprises directly subordinate to the departments of the State Council in Beijing which apply to establish international freight
forwarding agencies in Beijing may file applications to the competent department of foreign trade and economic cooperation under
the State Council, and the latter is responsible for examination and approval.
Article 10
To apply for the establishment of an international freight forwarding agency. The following documents should be submitted.
1.
application.
2.
draft Constitution of the enterprise.
3.
the names, posts and identification paper of leading members and chief staff members.
4.
certificates of credit standing and conditions of operational facilities.
5.
other documents as stipulated by the competent departments of foreign trade and economic s/cooperation under the State Council.
Article 11
The local competent department of trade and economic relations with other countries should put forward its opinions within 45 days
farm the day it receives the application and other documents and then forwards them to the competent department of foreign trade
and economic cooperation under the State Council.
The competent department of foreign trade and economic cooperation under the State Council should decide on approval or disapproval
within 45 days from the day it receives the application for the establishment of an international freight forwarding agency and other
documents, and should issue a certificate of ratification to the approved international freight forwarding agency.
Article 12
With the certificate of ratification issued by the competent department of trade and economic corporation with other countries the
he international freight forwarding agency should go through the procedures of enterprise and taxation registration according to
relevant stipulations of laws, administrative rules and regulations.
Article 13
The competent department of trade and economic cooperation under the State Council should cancel the certificate of ratification if
the applicant does not open business without proper reasons within 180 days from the day it receives the certificate of ratification.
Article 14
The certificate of ratification is valid for 3 years.
When the certificate of ratification expires and the agency wants to continue its business the international freight forwarding agency
should apply to the competent department of foreign trade and economic cooperation under the State Council for another certificate
of ratification 30 days before the expire.
If the international freight forwarding agency does not apply for another certificate of ratification according to stipulations in
the previous clause, it will automatically lose its qualification to engage in international freight forwarder.
Article 15
When the international freight forwarding agency terminates its business it should report to the local competent department of trade
and economic relations with other countries or to the competent department of foreign trade and economic cooperation under the State
Council according to the procedures of application for its establishment as stipulated in Article 9 and hand in its ratification
certificate for cancellation.
Article 16
To apply for setting up a branch the international freight forwarding agency should go through the necessary procedures stipulated
in the provisions.
Chapter IV Business Scope
Article 17
An international freight forwarding agency may accept a commission to operate part or all of the following business:
1.
to book ship’s holds and warehouses.
2.
supervision of freight loading and unloading and assembling and dismantling of containers.
3.
multi-forms of international through transportation.
4.
international express delivery excluding private letters.
5.
to make customs declaration, undergo customs quarantine and inspection and to insure,
6.
to prepare related bills and certificates, pay transport charges, settle accounts and pay miscellaneous fees.
7.
other businesses of international forwarder.
An international freight forwarding agency should conduct its business within the ratified scope. To engage in above-mentioned businesses
an international freight forwarding agency should register with relevant competent departments as required by related laws and administrative
rules and regulations.
International freight forwarding agencies can be mutually entrusted to conduct business stipulated in this articles.
Article 18
International freight forwarding agencies should pursue and operational policy of safety, high speed, accuracy, economy and convenience
in serving consignors and consignees of exports and imports.
Article 19
An international freight forwarding agency must set the standards of charges to be collected according to relevant state stipulations
and publicize them at the business site.
Article 20
An international freight forwarding agency must use invoices checked and approved by taxation departments in its business,
Article 21
An international freight forwarding agency should hand in a report on its business performance of the previous year to the competent
department of trade and economic relations with other countries of its locality before the end of March every year.
Article 22
An international freight forwarding agency is not allowed to do the following things:
1.
to conduct its business through using unfair competition method.
2.
to lend, lease or transfer to others its certificate of ratification and other papers concerning international freight forwarder.
Chapter V Penalty Provisions
Article 23
When and international freight forwarding agency violates the stipulations of Articles 19 and 21 of the provisions, the competent
department of foreign trade and economic operation under the State Council should serve if a warning and order it to amend with a
time limit. If not, the department should cancel its certificate of ratification.
Article 24
When an international freight forwarding agency violates the 2nd stipulation of Article 17 and stipulations of Articles 20 and 22,
the competent department of foreign trade and economic cooperation under the State Council should serve it a warning and order it
to suspend business for rectification up to canceling its certificate of ratification. Related competent departments of industrial
and commercial administration, customs and taxation should give punishments according to relevant laws and administrative rules and
regulations.
Article 25
To engage in international freight forwarder as prescribed in Article 17 without authorization in violation of the stipulations of
the provisions the competent departments of foreign trade and economic cooperation under the State Council should be these illegal
business activities and the administration institutions of industry and commerce should give punishments according to laws, and administrative
rules and regulations.
Article 26
If violations of the provisions constitute a crime the violator should be given criminal sanctions according to law.
Chapter VI Supplementary Provisions
Article 27
International freight forwarders may set up an association of international freight forwarders which can give guidance and provide
services to its members according to its charter.
Article 28
The provisions shall enter into force as of the date of promulgation.
|
|
