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(Adopted at the 19th Meeting of the Standing Committee of the Ninth National People’s Congress on December 28, 2000
and promulgated by Order No. 42 of the President of the People’s Republic of China on December 28, 2000)
Contents
Chapter I General Provisions
Chapter II Request Made to the People’s Republic of China for Extradition
Section 1 Conditions for Extradition
Section 2 Submission of the Request for Extradition
Section 3 Examination of the Request for Extradition
Section 4 Compulsory Measures for Extradition
Section 5 Execution of Extradition
Section 6 Postponed and Temporary Extradition
Section 7 Transit for Extradition
Chapter III Request Made to Foreign States for Extradition
Chapter IV Supplementary Provisions
Chapter I
General Provisions
Article 1 This Law is enacted for the purpose of ensuring normal extradition, strengthening international cooperation in punishing
crimes, protecting the lawful rights and interests of individuals and organizations, safeguarding national interests and maintaining
public order.
Article 2 This Law is applicable to extradition conducted between the People’s Republic of China and foreign states.
Article 3 The People’s Republic of China cooperates with foreign states in extradition on the basis of equality and reciprocity.
No cooperation in extradition may impair the sovereignty, security or public interests of the People’s Republic of China.
Article 4 The People’s Republic of China and foreign states shall communicate with each other through diplomatic channels for
extradition. The Ministry of Foreign Affairs of the People’s Republic of China is designated as the communicating authority for extradition.
Where in an extradition treaty there are special provisions to govern the communicating authority, the provisions there shall prevail.
Article 5 In handling cases of extradition, compulsory measures including detention, arrest and residential surveillance may, depending
on the circumstances, be taken against the person sought.
Article 6 The terms used in this Law are defined as follows:
(1) “the person sought” refers to the person for whom a request for grant of extradition is made by a requesting state;
(2) “the person extradited” refers to the person extradited from the requested state to the requesting state;
(3) “extradition treaty” refers to a treaty on extradition, which is concluded between the People’s Republic of China and a foreign
state or to which both the People’s Republic of China and a foreign state are parties, or any other treaty which contains provisions
in respect of extradition.
Chapter II
Request Made to the People’s Republic of China for Extradition
Section 1
Conditions for Extradition
Article 7 Request for extradition made by a foreign state to the People’s Republic of China may be granted only when it meets
the following conditions:
(1) the conduct indicated in the request for extradition constitutes an offence according to the laws of both the People’s Republic
of China and the Requesting State; and
(2) where the request for extradition is made for the purpose of instituting criminal proceedings, the offence indicated in the request
for extradition is, under the laws of both the People’s Republic of China and the Requesting State, punishable by a fixed term of
imprisonment for one year or more or by any other heavier criminal penalty; where the request for extradition is made for the purpose
of executing a criminal penalty, the period of sentence that remains to be served by the person sought is at least six months at
the time when the request is made.
If the request for extradition concerns miscellaneous offences which conform to the provisions of Subparagraph (1) of the preceding
paragraph, as long as one of the offences conforms to the provisions of Subparagraph (2) of the preceding paragraph, extradition
may be granted for all of those offences.
Article 8 The request for extradition made by a foreign state to the People’s Republic of China shall be rejected if:
(1) the person sought is a national of the People’s Republic of China under the laws of the People’s Republic of China;
(2) at the time the request is received, the judicial organ of the People’s Republic of China has rendered an effective judgement
or terminated the criminal proceedings in respect of the offence indicated in the request for extradition;
(3) the request for extradition is made for a political offence, or the People’s Republic of China has granted asylum to the person
sought;
(4) the person sought is one against whom penal proceedings instituted or punishment may be executed for reasons of that person’s
race, religion, nationality, sex, political opinion or personal status, or that person may, for any of those reasons, be subjected
to unfair treatment in judicial proceedings;
(5) the offence indicated in the request for extradition is a purely military offence under the laws of the People’s Republic of
China or the laws of the Requesting State;
(6) the person sought is, under the laws of the People’s Republic of China or the laws of the Requesting State, immune from criminal
responsibility because, at the time the request is received, the limitation period for prosecuting the offence expires or the person
is pardoned, or for other reasons;
(7) the person sought has been or will probably be subjected to torture or other cruel, inhuman or humiliating treatment or punishment
in the Requesting State;
(8) the request for extradition is made by the Requesting State on the basis of a judgement rendered by default, unless the Requesting
State undertakes that the person sought has the opportunity to have the case retried under conditions of his presence.
Article 9 The request for extradition made by a foreign state to the People’s Republic of China may be rejected if:
(1) the People’s Republic of China has criminal jurisprudence over the offence indicated in the request and criminal proceedings
are being instituted against the person or preparations are being made for such proceedings; or
(2) extradition is incompatible with humanitarian considerations in view of the age, health or other conditions of the person sought.
Section 2
Submission of the Request for Extradition
Article 10 The request for extradition made by the Requesting State shall be submitted to the Ministry of Foreign Affairs of
the People’s Republic of China.
Article 11 The Requesting State shall present a letter of request for extradition which shall specify:
(1) the name of the requesting authority;
(2) the name, sex, age, nationality, category and number of identification documents, occupation, characteristics of appearance,
domicile and residence of the person sought and other information that may help to identify and search for the person;
(3) facts of the offence, including the time, place, conduct and outcome of the offence; and
(4) legal provisions on adjudgement, measurement of penalty and prescription for prosecution.
Article 12 A letter of request for extradition submitted by the Requesting State shall be accompanied by:
(1) where extradition is requested for the purpose of instituting criminal proceedings, a copy of the warrant of arrest or other
document with the same effect; where extradition is requested for the purpose of executing criminal punishment, a copy of legally
effective written judgment or verdict, and where part of punishment has already been executed, a statement to such an effect; and
(2) the necessary evidence of the offence or evidentiary material.
The Requesting State shall provide the photographs and fingerprints of the person sought and other material in its control which
may help to identify that person.
Article 13 The letter of request for extradition and other relevant documents submitted by the Requesting State in accordance
with the provisions of this Section shall be officially signed or sealed by the competent authority of the Requesting State and be
accompanied by translations in Chinese or other languages agreed to by the Ministry of Foreign Affairs of the People’s Republic of
China.
Article 14 The Requesting State shall make the following assurances when requesting extradition:
(1) no criminal responsibility shall be investigated against the person in respect of the offences committed before his surrender
except for which extradition is granted, nor shall that person be re-extradited to a third state, unless consented by the People’s
Republic of China, or unless that person has not left the Requesting State within 30 days from the date the proceedings in respect
of the offence for which extradition is requested are terminated, or the person completes his sentence or is released before the
sentence expires, or after leaving the country the person has returned of his own free will; and
(2) where after submitting the request for extradition, the Requesting State withdraws or waives it, or it is a mistake for the Requesting
State to submit such a request, the Requesting State shall bear the responsibility for the harm thus done to the person.
Article 15 Where there is no extradition treaty to go by, the Requesting State shall make a reciprocity assurance.
Section 3
Examination of the Request for Extradition
Article 16 Upon receiving the request for extradition from the Requesting State, the Ministry of Foreign Affairs shall examine
whether the letter of request for extradition and the accompanying documents and material conform to the provisions of Section 2
in Chapter II of this Law and the provisions of extradition treaties.
The Higher People’s Court designated by the Supreme People’s Court shall examine whether the request for extradition made by the
Requesting State conforms to the provisions of this Law and of extradition treaties regarding conditions for extradition and render
a decision on it. The decision made by the Higher People’s Court is subject to review by the Supreme People’s Court.
Article 17 Where two or more states request extradition of the same person for the same or different conducts, the order of
priority of the request for extradition shall be determined upon considering the factors such as the time when those requests for
extradition are received by the People’s Republic of China and the fact whether there are extradition treaties between the People’s
Republic of China and the Requesting States to go by.
Article 18 Where the Ministry of Foreign Affairs, after examination, believes that the request for extradition submitted by
the Requesting State does not conform to the provisions of Section 2 in Chapter II of this Law or the provisions of extradition treaties,
it may ask the Requesting State to furnish supplementary material within 30 days. The time limit may be extended for 15 days at the
request of the Requesting State.
If the Requesting State fails to provide supplementary material within the time limit mentioned above, the Ministry of Foreign Affairs
shall terminate the extradition case. The Requesting State may make a fresh request for extradition of the person for the same offence.
Article 19 Where the Ministry of Foreign Affairs, after examination, believes that the request for extradition submitted by
the Requesting State conforms to the provisions of Section 2 in Chapter II of this Law and the provisions of extradition treaties,
it shall transmit the letter of request for extradition and the accompanying documents and material to the Supreme People’s Court
and the Supreme People’s Procuratorate.
Article 20 Where the person sought is detained for extradition before a foreign state makes a formal request for extradition,
the Supreme People’s Court shall, without delay, transmit the letter of request for extradition and the accompanying documents and
material it has received to the Higher People’s Court concerned for examination.
Where the said person is not detained for extradition before a foreign state makes a formal request for extradition, the Supreme
People’s Court shall, after receiving the letter of request for extradition and the accompanying documents and material, notify the
Ministry of Public Security to search for the person. Once finding the person, the public security organ shall, in light of the circumstances,
subject that person to detention or residential surveillance for extradition and the Ministry of Public Security shall notify the
Supreme People’s Court of the fact. Upon receiving the notification of the Ministry of Public Security, the Supreme People’s Court
shall, without delay, transmit the letter of request for extradition and the accompanying documents and material to the Higher People’s
Court concerned for examination.
Where, after searching, the public security organ is certain that the person sought is not in the territory of the People’s Republic
of China or it cannot find the person, the Ministry of Public Security shall, without delay, notify the Supreme People’s Court of
the fact. The latter shall, immediately after receiving the notification of the Ministry of Public Security, notify the Ministry
of Foreign Affairs of the results of the search, and the Ministry of Foreign Affairs shall notify the Requesting State of the same.
Article 21 Where the Supreme People’s Procuratorate, after examination, believes that the offence indicated in the request
for extradition or other offences committed by the person sought are subject to prosecution by a Chinese Judicial organ, although
criminal proceedings have not yet been instituted, it shall, within one month from the date the letter of request for extradition
and the accompanying documents and material are received, notify the Supreme People’s Court the Ministry of Foreign Affairs respectively
of its opinions to institute criminal proceedings.
Article 22 The Higher People’s Court shall, in accordance with the relevant provisions of this Law and of extradition treaties
regarding conditions for extradition, examine the request for extradition made by the Requesting State, which shall be conducted
by a collegial panel composed of three judges.
Article 23 When examining an extradition case, the Higher People’s Court shall hear the pleadings of the person sought and
the opinions of the Chinese lawyers entrusted by the person. The Higher People’s Court shall, within 10 days from the date it receives
the letter of request for extradition transmitted by the Supreme People’s Court, serve a copy of the letter to the person. The person
shall submit his opinions within 30 days from the date he receives the copy.
Article 24 After examination, the Higher Peoples’ Court shall:
(1) where the request for extradition made by the Requesting State is regarded as being in conformity with the provisions of this
Law and of extradition treaties, render a decision that the request meets the conditions for extradition. Where the person whose
extradition requested falls under the category for postponed extradition according to Article 42 of this Law, it shall be so specified
in the decision; or
(2) where the request for extradition made by the Requesting State is regarded not as being in conformity with the provisions
of this Law and of extradition treaties, render a decision that no extradition shall be granted.
Upon request by the Requesting State, the Higher People’s Court may, on condition that other proceedings being conducted in the territory
of the People’s Republic of China are not hindered and the lawful rights and interests of any third party in the territory of the
People’s Republic of China are not impaired, decided to transfer the property related to the case, while rendering the decision that
the request meets he conditions for extradition.
Article 25 After making the decision that the request meets the conditions for extradition or the decision that no extradition
shall be granted, the Higher People’s Court shall have it read to the person sought and, within seven days from the date it makes
the decision, submit the decision and the relevant material to the Supreme People’s Court for review.
Where the person sought refuses to accept the decision made by the Higher People’s Court that the request meets the conditions for
extradition, he and the Chinese lawyers entrusted by him may, within 10 days from the date the People’s Court has the decision read
to the person, submit their opinions to the Supreme People’s Court.
Article 26 The Supreme People’s Court shall review the decision made by the Higher People’s Court and shall do the following
respectively:
(1) where it believes that the decision made by the Higher People’s Court conforms to the provisions of this Law and of extradition
treaties, it shall approve it; and
(2) where it believes that the decision made by the Higher People’s Court does not conform to the provisions of this Law and of extradition
treaties, it may quash it and send the case back to the People’s Court which has originally reviewed it for fresh review, or modify
the decision directly.
Article 27 In the course of examination, the People’s Court may, when necessary, request through the Ministry of Foreign Affairs
that the Requesting State provide supplementary material within 30 days.
Article 28 After making the decision of approval or modification, the Supreme People’s Court shall, within seven days from
the date it makes the decision, transmit the letter of decision to the Ministry of Foreign Affairs and, at the same time, serve it
on the person sought.
After approving the decision or making the decision that no extradition shall be granted, the Supreme People’s Court shall immediately
notify the public security organ to terminate the compulsory measures against the person sought.
Article 29 After receiving the decision made by the Supreme People’s Court that no extradition shall be granted, the Ministry
of Foreign Affairs shall, without delay, notify the Requesting State of the same.
Upon receiving the decision made by the Supreme People’s Court that the request meets the conditions for extradition, the Ministry
of Foreign Affairs shall submit the decision to the State Council for which to decide whether to grant extradition.
Where the State Council decides not to grant extradition, the Ministry of Foreign Affairs shall, without delay, notify the Requesting
State of the same. The People’s Court shall immediately notify the public security organ to terminate the compulsory measures against
the person sought.
Section 4
Compulsory Measures for Extradition
Article 30 Where before making a formal request for extradition, a foreign state applies, under urgent circumstances, for keeping
in custody the person sought, the public security organ may detain the said person for extradition upon request by the foreign
state.
The request mentioned in the preceding paragraph shall be submitted through diplomatic channels or to the Ministry of Public Security
in written form and shall contain the following:
(1) the contents provided for in Articles 11 and 14 of this Law;
(2) statement of availability of the material provided for in Subparagraph (1), Article 12 of this Law; and
(3) statement that a formal request for extradition is to be made soon.
If the request is submitted through diplomatic channels, the Ministry of Foreign Affairs shall, without delay, transmit it to the
Ministry of Public Security. If the request is submitted to the Ministry of Public Security, the Ministry of Public Security shall
impart to the Ministry of Foreign Affairs information about the request.
Article 31 When the public security organ, in accordance with the provisions of Article 30 of this Law, takes measures to detain
the person for extradition, as requested, if the request is submitted to the Ministry of Pubic Security, the Ministry of Public Security
shall, without delay, notify the Requesting State of the fact; if the request is submitted through diplomatic channels, the Ministry
of Public Security shall notify the Ministry of Foreign Affairs of the fact an the latter shall, without delay, notify the Requesting
State of the same. When doing the notification through the above-mentioned channels, the time limit for submitting a formal request
for extradition shall be informed at the same time if the person has been detained for extradition as requested.
If, within 30 days after the public security organ takes the measure of detention for extradition, the Ministry of Foreign Affairs
receives no formal request for extradition from the foreign state, the public security organ shall terminate the detention for extradition.
At the request of the foreign state, the time limit may be extended for 15 days.
Where the detention for extradition is terminated in accordance with the provisions in the second paragraph of this Article, the
Requesting State may make a formal request for extradition of that person for the same offence afterwards.
Article 32 After receiving the letter of request for extradition and the accompanying documents and material, the Higher People’s
Court shall, without delay, make a decision to arrest the person for extradition, where normal extradition may be impeded if such
a measure is not taken. Where the measure of arrest for extradition is not taken against the person sought, a decision for residential
surveillance shall be made without delay.
Article 33 Detention for extradition, arrest for extradition and residential surveillance for extradition shall be executed by the
public security organs.
Article 34 The organ that takes a compulsory measure for extradition shall, within 24 hours after measure is taken, interrogate
the person against whom the compulsory measure for extradition is taken.
The person against whom a compulsory measure for extradition is taken may, beginning from the date the compulsory measure is taken,
employ Chinese lawyers for legal assistance. When executing the compulsory measure for extradition, the public security organ shall
inform that person of the above-mentioned right his is enpost_titled to.
Article 35 Where the person sought, who should otherwise be arrested for extradition, is seriously ill or is a woman who is
pregnant or is breast-feeding her own baby, residential surveillance may be taken against him or her.
Article 36 After making the decision to grant the extradition, the State Council shall, without delay, notify the Supreme People’s
Court of the decision. If the person sought is not arrested for extradition, the People’s Court shall immediately make a decision
to arrest that person for extradition.
Article 37 If the foreign state withdraws or waives the request for extradition, the compulsory measure taken against the person
sought shall be terminated immediately.
Section 5
Execution of Extradition
Article 38 Extradition shall be executed by the public security organs. Where the State Council decides to grant extradition,
the Ministry of Foreign Affairs shall, without delay, notify the Ministry of Public Security of the decision, and notify the Requesting
State to consult with the Ministry of Public Security for arrangements with regard to the time, place, manners for surrender of the
person sought and other matters related to execution of the extradition.
Article 39 Where extradition is to be executed in accordance with the provisions of Article 38 of this Law, the public security
organ shall, in accordance with the decision of the People’s Court, transfer the property related to the case to the Requesting State.
When extradition cannot be executed for reasons of death or escape of the person sought or for other reasons, the property mentioned
above may, all the same, be transferred to the Requesting State.
Article 40 Where, within 15 days from the date agreed on for surrender, the Requesting State does not take over the person
sought, it shall be regarded as waiving the request for extradition of its own accord. The public security organ shall immediately
release the person, and the Ministry of Foreign Affairs may refuse to accept any fresh request by the Requesting State for extradition
of the person for the same offence.
Where, for reasons beyond its control, the Requesting State fails to take over the person sought within the above-mentioned time
limit, it may request an extension of the time limit for not more than 30 days, or seek to negotiate for fresh arrangements for surrender
in accordance with the provisions of Article 38 of this Law.
Article 41 Where the person under extradition escapes back to the People’s Republic of China before criminal proceedings are
terminated or his sentence is served in the Requesting State, that person may be re-extradited upon a fresh request for extradition
made the Requesting State in respect of the same offence and the Requesting State need not submit the documents and material provided
for in Section 2 of this Chapter.
Section 6
Postponed and Temporary Extradition
Article 42 Where the judicial organ of the People’s Republic of China is, for other reasons, conducting criminal proceedings
or executing criminal punishment against the person sought, the State Council may decide to postpone the extradition while approving
it.
Article 43 If postponed extradition may seriously impede the criminal proceedings in the Requesting State, the person sought
may be extradited temporarily upon the request of the Requesting State on condition that the criminal proceedings being conducted
in the territory of the People’s Republic of China are not hindered and the Requesting State undertakes to send back that person
unconditionally and immediately after concluding the relevant proceedings.
The decision on temporary extradition shall be made by the State Council after obtaining consent of the Supreme People’s Court or
the Supreme People’s Procuratorate, as the case may be.
Section 7
Transit for Extradition
Article 44 Where extradition between foreign states involves transit through the territory of the People’s Republic of China,
the foreign states shall, in accordance with the relevant provisions of Article 4 and Section 2 of this Chapter of this Law, make
a request for such transit.
The preceding paragraph is not applicable where air transport is used for transit and no landing in the territory of the People’s
Republic of China is scheduled. In the event of an unscheduled landing, a request for transit shall be submitted in accordance with
the provisions of the preceding paragraph.
Article 45 The Ministry of Foreign Affairs shall, in accordance with the relevant provisions of this Law, examine the request
for transit made by a foreign state, and make a decision on whether to permit it or not.
The decision to permit transit or to refuse transit shall be notified to the Requesting State by the Ministry of Foreign Affairs
through the same channels as the ones through which the request is received.
After making the decision to permit transit, the Ministry of Foreign Affairs shall, without delay, notify the Ministry of Public
Security of the same. The Ministry of Public Security shall decide on such matters as the time, place and manners for the transit.
Article 46 The public security organ in the place of transit shall supervise or assist in the execution of transit for extradition.
The public security organ may provide a temporary place for custody upon the request of the Requesting State.
Chapter III
Request Made to Foreign States for Extradition
Article 47 When requesting a foreign state to grant extradition or transit for extradition, the adjudicative organ, procuratorate
organ, public security organ, state security organ or prison administration organ responsible for handling the case concerned in
a province, autonomous region and municipality directly under the Central Government shall submit its written opinions accompanied
by relevant documents and material with certified correct translation respectively to the Supreme People’s Court, the Supreme People’s
Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice. After the Supreme People’s
Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice
have, respectively in conjunction with the Ministry of Foreign Affairs, reviewed the opinions and approved to make the request, the
request shall be submitted to the foreign state through the Ministry of Foreign Affairs.
Article 48 Under urgent circumstances, before a formal request for extradition is made, the request to take compulsory measures
against the person concerned may be submitted to the foreign state through diplomatic channels or other channels consented by the
Requested State.
Article 49 The instruments, documents and material required for request for extradition, for transit for extradition, or for
taking compulsory measures shall be submitted in accordance with the provisions of extradition treaties, or where there are no such
treaties or no such provisions in such treaties to go by, the provisions of Sections 2, 4 and 7 of this Chapter may be applied mutatis
mutandis, or where the Requested State raises specific requirements, those requirements may be complied with on condition that the
basic principles contained in the laws of the People’s Republic of China are not violated.
Article 50 Where the Requested State grants extradition with strings attached, the Ministry of Foreign Affairs may, on behalf
of the Government of the People’s Republic of China, make assurance on con
| Category |
FOREIGN ECONOMIC RELATIONS AND TECHNOLOGICAL COOPERATION |
Organ of Promulgation |
The State Council |
Status of Effect |
In Force |
| Date of Promulgation |
1980-10-30 |
Effective Date |
1980-10-30 |
|
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Interim Provisions of the State Council of the People’s Republic of |
China on the Administration of Resident Representative Offices of Foreign
Enterprises
(Promulgated by the State Council on October 30, 1980)
Article 1 These Provisions are formulated with a view to facilitating
the development of international economicand trade contacts and the
administration of resident Representative offices in China of foreign
companies, enterprises and other economic organizations (hereinafter referred
to as “foreign enterprises”).
Article 2 Any foreign enterprise desiring to establish a resident
representative office in China shall file an application for permission and,
after securing approval, go through the registration procedure. No residence
representative office to be established is allowed to start business
activities as such before approval and registration.
Article 3 When applying for permission to establish a resident
representative office in China, a foreign enterprise shall submit the
following certificates and papers:
a) An application form signed by the chairman of the board of directors or
the general manager of the enterprise. The application form shall include such
details as the name of the resident representative office to be established,
the name(s) of the responsible staff member(s), the scope of activity,duration
and site of the office;
b) The legal document sanctioning the operation of that enterprise issued
by the authorities of the country or the region in which that enterprise
operates;
c) The capital creditability document(s) issued by the financial
institution(s) having business contacts with that enterprise; and
d) The credentials and resumes of the staff members of the resident
representative office appointed by that enterprise.
A banking or insurance institution which desires to open a resident
representative office shall, apart from submitting the certificates and papers
as specified in Paragraphs a, b and d, submit at the same time an annual
report showing the assets and liabilities and losses and profits of teh head
office of that institution, its articles of association and the composition
of its board of directors.
Article 4 Foreign enterprises wishing to establish residence
representative offices shall, according to their respective lines of business,
apply to one of the following departments for approval:
a) A trading or manufacturing enterprise or a shipping agency shall apply
to the Ministry of Foreign Trade of the People’s Republic of China;
b) A financial or insurance institution shall apply to the People’s Bank
of China;
c) A maritimke shipping enterprise or a maritime shipping agency shall
apply to the Ministry of Communications of the People’s Republic of China;
d) An air transport enterprise shall apply to the General Administration
of Civil Aviation of China;
e) Enterprises outside these lines of business shall, according to the
nature of their operations, apply to the competent commissions, ministries or
bureaus under the Government of the People’s Republic of China.
Article 5 When granted approval to establish a resident office, a foreign
enterprise shall, within 30 days as of the date of approval, approach the
State Administration for Industry and Commerce of the People’s Republic of
china, on the strength of the approval document, for going through the
registration procedure. The enterprise shall fill in a registration form, pay
registration fee and receive a registration certificate. the original approval
document shall be recalled in case of failure to register at the expiry of
the specified period.
Article 6 After the approval for the establishment of a resident
representative office is granted in accordance with the stipulations in
Article 4, the staff members of that office and their families shall, on the
strength of the approval document, go through the necessary formalities with
the local public security organ to obtain residence permits.
Article 7 When a resident representative office is to change its name,
responsible member(s), scope of operation, duration or address, it shall
apply to the original approving department and, after securing approval,
approach the State Administration for Industry and Commerce, on the strength
of the approval document, for going through the procedure for effecting
changes in registration and pay the fees. It shall also go through the
procedures with the local public security organ for changes of residence
permits.
Article 8 A residence representative resident office shall, on the
strength of the registration certificates and in accordance with the relevant
stipulations of the Bank of China, open an account at the Bank of China or at
any bank designated by the Bank of China.
Article 9 A resident representative office and its staff members shall,
in accordance with the stipulations of China’s tax laws, go through the tax
registration procedure with the local tax office and pay taxes accordingly.
Article 10 A resident representative office and its staff members shall
declare to China’s Customs the imported office articles, articles for daily
use and means of transport and pay customs duties and the consolidated
industrial and commercial taxes as stipulated.
Imported vehicles and ships shall be registered with the local public
security organ for obtaining the licence plates and permits. Dues shall be
paid to the local tax office for the use of the vehicles and ships.
Unauthorized transferor sale of the above-mentioned imported goods is not
permitted. Where the need to effect a transfer or sale arises, an application
shall be submitted to the Customs for approval before such transfer or sale
can be effected. Such imported goods can be sold only to designated shops.
Article 11 A resident representative office shall entrust local service
units for foreigners or other service units designated by the Chinese
Government with such matters as renting a house or engaging the service of
Chinese personnel.
Article 12 The Government of the People’s Republic of China shall
undertake to protect, in accordance with the law, the legitimate rights and
interests of resident representative offices and their staff members and give
them facilities in their normal business activities.
Article 13 Resident offices are not allowed to install radio stations on
Chinese territory. They shall apply to the local telecommunications bureaus
for the renting of such commercial communications lines or communications
equipment as may be necessary for their business operations.
Article 14 The staff members of a resident representative office and
their families shall abide by Chinese laws, decrees and relevant regulations
in all their activities in China and in entering and leaving China.
Article 15 In case a resident representative office and its members
violate these Provisions or engage in other activities in contravention of
Chinese laws, the Chinese authorities have the power to look into the cases
and deal with them in accordance with the law.
Article 16 A resident representative office, when the duration of
its operation expires, or if it decides
to end its business activities before the due date, shall notify in writing
the original
approving department 30 days in advance of the termination of its operation.
After clearing up nits debts, paying its taxes and winding up other related
matters, the resident office shall go through the formalities with the
original registration certificate-issuing department fo cancelling the
registration and turn in the certificate.
The foreign enterprise which the said resident representative office
represented, shall continue to be held responsible for any matter that the
said residence representative office may leave unfinished at the time of its
termination.
Article 17 Those resident representative offices that have already been
established with approval shall, within 30 days of the promulgation of these
Provisions, go through the procedure of registration with the State
Administration for Industry and Commerce of the People’s Republic of China on
the strength of their documents of approval.
Article 18 Any other matter that may not be covered in these Provisions
shall be handled in accordance with the relevant Chinese laws, decrees and
regulations.
Article 19 Matters relating to resident representatives to be institued
by foreign enterprises shall be dealt with by applying mutandis these
Provisions applicable to the establishment of resident representative offices.
Article 20 These Provisions shall enter into effect as of the date of
promulgation.
| Category |
CULTURE |
Organ of Promulgation |
The State Council |
Status of Effect |
In Force |
| Date of Promulgation |
1981-10-13 |
Effective Date |
1981-10-13 |
|
|
|
Measures for Control Over Imported Films |
(Approved by the State Council on October 13, 1981 and promulgated by
the Ministry of Culture and the General Administration of Customs)
Article 1 These Measures are formulated for tighter control over imported
films in accordance with the spirit of the Circular Concerning Checking the
Excessive Showing of Films for Restricted Information Only, which was issued
by the State Council of the People’s Republic of China and the Central
Military Commission of the People’s Republic of China on April 14, 1980.
Article 2 The business of importing and releasing films or copies for
preview (including 35-mm, 16-mm and extra-8-mm films, films on video-tapes and
films on videodiscs, which are hereinafter generally referred to as “films”)
from foreign countries and the regions of Hong Kong and Macao shall be
exclusively handled and controlled by the China National Films Release and
Projection Corporation (hereinafter referred to as “the China Films
Corporation”).
With respect to the import of a film, the Customs shall, on the strength
of the Customs Declaration Form for Imported Goods duly completed and
presented by the China Films Corporation, effect inspection and grant
clearance, With respect to films to be released nationwide for commercial
purposes, formalities to pay Customs duties shall be fulfilled at the time of
the import thereof. Films to be imported for non-commercial purposes shall be
exempted from Customs duties, If, upon approval, films imported for
non-commercial purposes are to be released nationwide after the import
thereof, the China Films Corporation shall, in accordance with the relevant
regulations, fulfil the formalities with the Beijing Customs for retroactive
payment of Customs duties.
Article 3 With respect to data films imported by the China Cinematheque
(including films selected and purchased from each other by, or exchanged
between, or given to each other as presents by the China Cinematheque and
foreign cinematheques and films purchased through other channels as data), if
they are imported for non-commercial purposes, the Customs shall, on the
strength of the Customs Declaration Form for Imported Goods duly completed and
presented by the China Cinematheque, effect inspection and grant clearance
without levying duties.
If, upon approval, imported data films need to be released nationwide, the
China Films Corporation shall, in accordance with the relevant regulations,
fulfil the formalities with the Beijing Customs for retroactive payment of
Customs duties.
Article 4 With respect to specialized documentaries and science and
educational films imported by units of science and technology, industry,
agriculture, education, public health, journalism, foreign trade and foreign
affairs to meet the needs in their business or professional work, if the
importing units are affiliated to departments under the State Council, the
import shall be subject to the examination and approval of the respective
ministries or commissions (or bureaus) under the State Council. If the
importing units are local ones, the import shall be subject to the examination
and approval of the people’s governments of the provinces, autonomous regions
or municipalities directly under the Central Government. At the time of the
import of these films, the Customs shall, on the strength of the documents of
approval issued by the ministries or commissions (or bureaus) concerned under
the State Council or by the people’s governments of the provinces, autonomous
regions or municipalities directly under the Central Government and of the
Customs Declaration Forms for Imported Goods duly completed and presented in
triplicate by the applying units, effect inspection and grant clearance
without levying duties and shall dispatch one copy of the said Forms affixed
with the Customs official seal to the Cinema Administrative Bureau of the
Ministry of Culture for the record.
Article 5 With respect to feature films presented to mainland
institutions, organizations, schools and other units by foreign organizations
or individuals or by those in the regions of Hong Kong and Macao or in Taiwan
Province, if the recipient units are affiliated to departments under the State
Council, the acceptance shall be subject to the examination and approval of
the Cinema Administrative Bureau of the Ministry of Culture. If the recipient
units are local ones, the acceptance shall be subject to the examination and
approval of the cultural bureaus (or cinema bureaus) of the provinces,
autonomous regions or municipalities directly under the Central Government and
shall be reported in writing to the Cinema Administrative Bureau of the
Ministry of Culture for the record.
At the time of the import of these films, the Customs shall, on the
strength of the Customs Declaration Forms for Imported Goods duly completed
and presented by the recipient units and of the relevant documents of
approval, effect inspection and grant clearance without levying duties.
The recipient units shall hand the said films over to the China
Cinematheque for unified custody. If the films have to be used to meet the
special business or professional needs, the recipient units may, on the
strength of the documents of approval issued by the higher competent
authorities, pick them up for the reference of the personnel concerned but may
not lend them out, or show them for entertainment purposes or show them to the
public. Upon completion of the reference, the films shall be sent back to the
custody of the China Cinematheque.
If upon approval, imported feature films are to be released nationwide,
the China Films Corporation shall fulfil the formalities with the Customs for
retroactive payment of Customs duties.
Article 6 With respect to science and educational films that are sent by
post by foreiners, overseas Chinese and compatriots in Hong Kong, Macao and
Taiwan Province or carried in person by them when they enter China’s mainland
to be given to individuals in China as presents for use as reference
materials, the Customs shall permit their import and shall, on the strength of
the Customs Declaration Forms for Imported Goods duly completed and presented
by the individuals that are to accept the films and of the letters of
certification issued by the units where the said individuals belong, effect
inspection and grant clearance without levying duties. With respect to feature
films given to individuals in China as presents, the Customs shall in general
not permit their import and shall send them back. Under special circumstances,
the Ministry of Culture and the General Administration of Customs shall study
and dispose of them.
With respect to films that are carried in person by personnel of foreign
embassies (or consulates) in China, resident personnel in China sent by
foreign industrial and commercial enterprises (including resident foreign
correspondents) and foreign experts (including experts in culture and
education, economy, and science and technoloyg) who have been recruited to
work in China (or that are sent to them by post from abroad), the Customs
shall handle them in accordance with the existing relevant provisions. These
films shall, after their import, be placed under the strict control of the
departments concerned and shall be shown only by the aforesaid foreigners
among themselves. Chinese units or individuals are not permitted to borrow
these films for projection.
Article 7 Business activities with respect to the joint production of
films by China and foreign countries and the joint production of films by
China’s mainland and the regions of Hong Kong and Macao or by the mainland and
Taiwan Province shall all be subject to the administration of the China Films
Joint Production Corporation, with the exception of the business activities of
the three Hong Kong films companies of the Great Wall, the Phoenix and the
Sunlin when they come back to shoot films on the mainland, where the Office of
Hong Kong & Macao Affairs under the State Council shall directly approach the
regions and units concerned for matters in this respect. With respect to the
import of the films jointly produced, the China Films Joint Production
Corporation shall fulfil the formalities of import Customs declaration with
the Customs. If, among these films, there are some that are to be released
nationwide, the China Films Corporation shall, in accordance with the relevant
regulations, fulfil the formalities with the Beijing Customs for retroactive
payment of Customs duties.
Article 8 Films that are imported in violation of the relevant provisions
or smuggled in shall be dealt with by the Customs in accordance with the
relevant provisions. Those among the confiscated flims that are worth keeping
because of their value for reference may be passed on to the Cinema
Administrative Bureau under the Ministry of Culture, which shall hand them
over to the China Cinematheque for preservation.
Article 9 These Measures shall go into effect as of the date of
promulgation.
| Category |
TAXATION |
Organ of Promulgation |
The State Council |
Status of Effect |
Invalidated |
| Date of Promulgation |
1982-02-21 |
Effective Date |
1982-01-01 |
Date of Invalidation
|
1991-07-01 |
|
Rules for the Implementation of the Income Tax Law of the People’s Republic of China for Foreign Enterprises |
(Approved by the State Council on February 17, 1982, promulgated by the
Ministry of Finance on February 21, 1982) (Editor’s Note: These Rules have
been annulled by Rules for the Implementation of the Income Tax Law of the
People’s Republic of China for Enterprises with Foreign Investment and Foreign
Enterprises promulgated on June 30, 1991 and effective as of July 1, 1991)
Article 1 These Rules are formulated in accordance with the provisions
of Article 18 of the Income Tax Law of the People’s Republic of China for
Foreign Enterprises (hereinafter referred to as the Tax Law).
Article 2 “Establishments” mentioned in Article 1 of the Tax Law mean
offices, premises or business agents established by foreign enterprises
within China for production and business operations.
Offices and premises mentioned in the preceding paragraph mainly include
administrative offices, branches, representative offices, factories and places
for the exploitation of natural resources as well as places for contracted
projects of building, installation, assembly, exploration and other such
projects.
Article 3 Foreign enterprises and Chinese enterprises involved in
cooperative production or cooperative operations shall, except as otherwise
provided, pay their income taxes respectively.
Article 4 “Income derived from production and business operations”
mentioned in Article 1 of the Tax Law means income derived from the production
and business operations by foreign enterprises in the fields of industry,
mining, communications, transportation, agriculture, forestry, animal
husbandry, fisheries, poultry farming, commerce, service trades and other
fields of production and business.
“Other income” mentioned in Article 1 of the Tax Law means income from
dividends and interest; income from leasing or sales of property; income from
transfer of patent rights, proprietary technology, trademark rights,
copyrights and other such property; and other non-operating income.
Article 5 “Taxable income for the purpose of the imposition of the
local income tax” mentioned in Article 4 of the Tax Law shall have the same
meaning as “taxable income” mentioned in Article 3 of the Tax Law, i.e. it is
calculated according to the formulas listed in Article 9 of these Rules.
Article 6 “Foreign enterprises with small-scale production and low
profits” mentioned in Paragraph 2 of Article 4 of the Tax Law means foreign
enterprises with an annual income of one million yuan or less.
Article 7 Foreign enterprises with low rate of profit as mentioned in
Article 5 of the Tax Law include foreign enterprises exploiting deep-mine coal
resources with low rate of profit.
Article 8 The tax year for foreign enterprises means each year of the
Gregorian calendar commencing on January 1 and ending on December 31.
A foreign enterprise which has difficulty in determining its tax liability
on the basis of the tax year stipulated in the preceding paragraph may submit
an application to, and upon approval by the local tax authorities, use the
12-month accounting year of the enterprise to determine its tax liability.
Article 9 The taxable income shall be calculated according to the
following formulas:
a. Industry:
1. manufacturing cost for the period = direct materials consumed in
production for the period + direct labor + manufacturing expenses;
2. cost of the products manufactured for the period = manufacturing cost
for the period + inventory of semi-finished products and products in process
at the beginning of the period – inventory of semi-finished and products in
process at the end of the period;
3. cost of products sold = cost of the products manufactured for the
period + inventory of the products at the beginning of the period – inventory
of the products at the end the period;
4. net sales = gross sales – (sales returns + sales discounts and
allowances);
5. profit on sales = net sales – cost of products sold – tax on the sales
– (selling expenses + overhead expenses);
6. taxable income = profit on sales + profit from other operations +
non-operating income – non-operating expenses.
b. Commerce:
1. net sales = gross sales – (sales returns + sales discounts and
allowances);
2. cost of sales = inventory of merchandise at the beginning of the
period + [purchases of merchandise during the period – (purchase returns +
purchase discounts and allowances) + purchase expenses] – inventory of
merchandise at the end of the period;
3. profit on sales = net sales – cost of sales – tax on sales – (selling
expenses + overhead expenses);
4. taxable income = profit on sales + profit from other operation +
non-operating income – non-operating expenses.
c. Service trades:
1. net business income = gross business income – (tax on business income
+ operating expenses + overhead expenses);
2. taxable income = net business income + non-operating income –
non-operating, expenses.
d. Other lines of business: calculation shall be made with reference to
the above formulas.
Article 10 The following items shall not be itemized as costs, expenses
or losses in the calculation the taxable income:
1. expenditures related to the acquisition or construction of machinery,
equipment, building facilities and other fixed assets;
2. expenditures related to the acquisition of intangible assets;
3. interest on equity capital;
4. income tax payments and local income tax payments;
5. fines for illegal business operations and losses caused by the
confiscation of property;
6. penalties for the overdue tax payment of taxes and tax fines;
7. the portion of losses caused by windstorms, floods, fires and other
such disasters which is compensated by insurance proceeds;
8. donations and contributions other than those used in China for public
welfare and relief purposes;
9. royalties paid to the head offices; and
10. other expenses not related to production and business operations.
Article 11 Reasonable overhead expenses paid by a foreign enterprise to
its head office in connection with the production or business operation of
the enterprise and actual expenses paid to its head office incurred as a
result of services directly provided by the head office, may be itemized as
expenses, subject to examination and approval by the tax authorities of the
locality of the enterprise, provided that certificates, invoices and vouchers,
together with a financial report certified by a certified public accountant,
are supplied by the head office.
Where an agreement regarding the allocation of the overhead expenses of
the head office exists between a foreign enterprise and a Chinese enterprise
in a contract for cooperative production or cooperative business operations
payments of such expenses may, subject to examination and approval by the
local tax authorities, be itemized as expenses according to the methods
specified in the contract.
Article 12 A foreign enterprise paying interest on loans shall submit to
the local tax authorities for examination certificates as to the amount of
interest paid, where such loans are consistent with general commercial
practise, a reasonable amount of interest shall be allowed as itemized
expenses.
Article 13 Reasonable entertainment expenses paid by foreign enterprises
that are related to production and business operations shall, when supported
by authentic records or invoices and vouchers, be allowed respectively as
itemized expenses subject to the following limits:
1. where annual net sales are 15 million yuan or less, the entertainment
expenses shall not exceed 3 millesimal; where annual net sales exceed 15
million, the entertainment expenses for that portion exceeded shall not exceed
1 millesimal;
2. where annual gross business income is 5 million yuan or less, the
entertainment expenses shall not exceed 10 millesimal of the gross business
income; where annual gross business income exceeds 5 million yuan, the
expenses for that portion exceeded shall not exceed 3 millesimal.
Article 14 The depreciation of fixed assets which are already used by
foreign enterprises shall be calculated on an annual basis. Fixed assets mean
houses, buildings, machinery, mechanical apparatuses, means of transport and
other equipment related to production or business operations which has a
useful life of one year or more. Articles not in the nature of major equipment
which are used for production or business operations, and which have a unit
value of 500 yuan or less and a relatively short useful life may be itemized
as expenses on the basis of actual consumption.
Article 15 The valuation of fixed assets shall be based on the original
value.
The original value of fixed assets regarded as investment in cooperative
production or cooperative business operations between a foreign enterprise and
a Chinese enterprise shall be the price agreed upon by the parties to the
cooperation.
The original value of the purchased fixed assets shall be the purchase
price plus transportation expenses, installation expenses and other related
expenses incurred prior to the use of the assets.
The original value of self-made and self-built fixed assets shall be the
actual expenses incurred on their manufacture or construction.
Imported fixed assets which are owned and have already been used by a
foreign enterprise shall be revalued according to their condition with
reference to certification provided by the foreign enterprise as to the
original value of the assets and the number of years the assets have been in
use, together with relevant market price information. Where certification
cannot be provided, the enterprise shall carry out the valuation according to
the condition of the assets and submit the valuation to the local tax
authorities for verification.
Article 16 The depreciation of fixed assets shall be calculated
commencing from the month in which they are put to use. The calculation of
depreciation shall cease in the month following the month in which the fixed
assets cease to be used during the year.
For enterprises engaged in exploiting off-shore petroleum resources, all
investments at the stage of development shall, taking the oil (gas) field as a
unit, be aggregated and treated as capital expenditure; the computation of
depreciation shall begin in the month in which the oil (gas) field commences
commercial production.
Article 17 In calculating depreciation of fixed assets, the salvage value
shall be estimated and deducted from the original value; in principle, the
salvage value should be 10% of the original value. In the case of fixed assets
for which it is necessary to retain a lower or no salvage value, the matter
shall be reported to the local tax authorities for approval; if the
depreciation is calculated in accordance with a composite life method, salvage
value may not be retained.
Depreciation of fixed assets shall generally be calculated using the
straight-line method of depreciation.
Article 18 In the calculation of depreciation, useful life of the various
categories of fixed assets shall be as follows:
1. for houses and buildings, the minimum useful life shall be 20 years;
2. for railway rolling stock, boats and ships, machinery and other
production equipment, the minimum useful life shall be 10 years; and
3. for electronic equipment, means of transport other than railway rolling
stock and boats and ships, fixtures, tools, furnishings and other assets’
related to production and business operations, the minimum useful life shall
be 5 years.
Where, for special reasons, a foreign enterprise needs to accelerate
depreciation or change the method of depreciation, an application may be
submitted to the local tax authorities for examination and then transmitted
level by level to the Ministry of Finance for approval. In respect of fixed
assets that are regarded as investments made during and after the development
stage by an enterprise engaged in the exploitation of off-shore oil resources,
depreciation may be calculated on a consolidated composite basis. The
depreciation period shall not be less than 6 years.
For enterprises engaged in exploiting coal resources, the provisions of
the preceding paragraph may be applied.
Article 19 Expenditure on expansion, replacement, reconstruction and
technical innovation which result in an increase in the value and the
extension of the useful life of fixed assets already in use shall be treated
as capital expenditure, and shall not be itemized as expenses.
For the fixed assets remaining in use after having been fully depreciated,
no further depreciation shall be allowed.
Article 20 The balance of the proceeds from the transfer or disposal of
fixed assets at the current prices shall, after deduction of the undepreciated
amount or the salvage value, be entered into the profit and loss account for
the current year.
Article 21 Intangible assets such as patent rights, proprietary
technology, trademark rights, copyrights, rights to use sites and other
special rights transferred to a foreign enterprise shall be amortized on the
basis of reasonable cost commencing from the month they are first put in use.
Intangible assets mentioned in the preceding paragraph regarded as
investments in cooperative production or cooperative business operations
between a foreign enterprise and a Chinese enterprise may be amortized on the
basis of the amount prescribed in the agreement or contracts, commencing from
the month they are first put in use.
Intangible assets mentioned in the preceding two paragraphs for which a
period of use is specified at the time of transfer or investment may be
amortized in accordance with the specified period; the period of amortization
for assets for which no period of use is specified shall not be less than
10 years.
Article 22 Expenses incurred during the period or organization of a
foreign enterprise shall be amortized upon the commencement of production or
operation. The period of amortization shall not be less than 5 years.
Reasonable exploration expenses incurred by a foreign enterprise engaged
in the exploitation of off-shore petroleum resources may be amortized against
income from the oil (or gas) fields that have already commenced commercial
production. The amortization period shall not be less than 1 year.
Article 23 Inventory of merchandise, raw materials, products in process
of production, semi-finished products, finished products and by-products shall
be valued at cost. The enterprises may choose one of the following methods of
calculation: first-in first-out; moving average; or weighted average. Where a
change in the method of calculation is necessary, the matter shall be reported
to the local tax authorities for approval.
Article 24 Where a foreign enterprise cannot authenticate its costs and
expenses and cannot accurately determine its taxable income, the local tax
authorities shall appraise and determine its profit rate with reference to the
prevailing profit levels in the same or similar lines of business, and then
calculate its taxable income on the basis of its net sales or its gross
business income.
The taxable income of a foreign enterprise engaged in contracted projects
for the exploration or development of off-shore petroleum resources shall be
calculated according to the profit rate appraised and determined on the basis
of its gross income derived from the contracted project.
Article 25 For foreign airlines or ocean shipping enterprises engaged in
international transport business, the taxable income shall be 5% of their
gross income derived from transport services for passengers and/or cargoes
loaded in China.
Article 26 A foreign enterprise engaged in cooperative production with a
Chinese enterprise under a product-sharing arrangement shall be deemed to
receive income at the time products are allocated; the amount of income
received shall be computed on the basis of the sales price to the third party
or with reference to the prevailing, market price at the time allocation.
A foreign enterprise engaged in the cooperative exploitation of off-shore
petroleum resources shall be deemed to receive income at the time the crude
oil is divided; the amount of income received shall be computed on the basis
of a price which is adjusted periodically with reference to the international
market price for crude oil of similar quality.
Article 27 “Dividends, interest, rentals, royalties and other income with
a source in China” mentioned in Article 11 of the Tax Law, shall be construed
as follows:
“dividends” means dividends or profits in respect of shares received from
enterprises in China;
“interest” means interest on deposits or loans, interest on all types of
bonds and debentures, interest on amounts advanced, overdue payments and
similar items or interest received from sources within China;
“rentals” means rentals received from the leasing of property to a lessee
in China:
“royalties” means income received from the assignment of patent rights,
proprietary technology, copyrights, trademark rights and other such property
for use in China;
“other income” means income other than the preceding categories of income
which the Ministry of Finance determines to be subject to tax.
Article 28 The amount of tax to be paid on dividends, interest, rentals,
royalties and other income with a source in China as mentioned in the
preceding Article shall, except as otherwise provided, be computed on the
basis of gross income; the unit making the payment shall withhold the tax from
each payment.
Article 29 “International financial organizations” mentioned in Article
11 of the Tax Law means financial institutions under the aegis of the United
Nations such as the International Monetary Fund, the World Bank, the
International Development Association, the International Fund for Agricultural
Development; “preferential interest” mentioned means a rate at least 10% lower
than the average rate on the international financial markets.
Article 30 “China’s state banks” mentioned in Article 11 of the Tax Law
include the people’s Bank of China, the Bank of China, the Agricultural Bank
of China, the People’s Construction Bank of China, the Investment Bank of
China, and international trust and investment corporations that are approved
by the State Council to conduct foreign exchange deposit, loan and credit
business with foreign clients.
Article 31 “Income from interest on deposits”, mentioned in Paragraph 4
of Article 11 of the Tax Law shall not include the interest received by
foreign banks on deposits with China’s state banks at a rate lower than the
rate on the international financial markets. Income received from interest on
deposits at a rate lower than the rate on the international financial markets
shall be exempted from income tax.
Article 32 “Amount of payment” mentioned in Article 11 of the Tax Law
includes payments in cash, payments by remittance, payments through transfer
accounts, as well as payments made in marketable securities or in kind which
are rendered into equivalent amounts of money.
Article 33 Income tax to be paid in advance in quarterly instalments as
stipulated in Article 7 of the Tax Law may be calculated on the basis of the
actual quarterly profit, or on the basis of one quarter of either the current
year’s planned annual profit or the actual income in the preceding year.
Article 34 Income tax on a foreign enterprise which is in operation for
less than one year shall be calculated and paid on the basis of actual income
derived during the period of the operation according to the tax rates
prescribed by the Tax Law.
Article 35 A foreign enterprise which commences operations or ceases
operations shall complete tax registration procedures with the local tax
authorities within 30 days after commencement of operations, or within 30 days
before the termination of the operations, respectively, in accordance with the
provisions of Article 10 of the Tax Law.
Article 36 A foreign enterprise shall, whether realizing profits or
losses in a tax year, file its income tax returns and final accounting
statements with the local tax authorities within the prescribed period and,
except as otherwise stipulated, shall also include an audit statement of
certified public accountants registered in the People’s Republic of China.
Article 37 In case of failure to submit the tax returns within the
prescribed time limit owing to special reasons, the foreign enterprise shall
submit an application to the local tax authorities within the said time limit,
and the time limit for filing tax returns and accordingly that for final
settlement may be appropriately extended upon file latter’s approval.
The final day of the time limit for tax payment and that for filing tax
returns may be postponed to the next business day if it falls on a public
holiday.
Article 38 In principle, foreign enterprises shall use the accrual
method of accounting to calculate their income and expenses. All accounting
records shall be accurate, complete and supported by valid vouchers as the
basis for entries.
Article 39 Accounting vouchers, books, statements and reports adopted by
foreign enterprises shall be kept in the Chinese language, or in both Chinese
and a foreign language.
Accounting vouchers, books, statements and reports shall be retained for
at least 15 years.
Article 40 Forms of sales invoices and business receipts used by a
foreign enterprise shall be submitted to the local tax authorities for
approval prior to use.
Article 41 Officials assigned by the tax authorities to conduct
investigations of the financial, accounting and tax affairs of a foreign
enterprise shall produce identification cards and undertake to maintain
confidentiality.
Article 42 Income earned by a foreign enterprise in foreign currencies
shall, for the purpose of advance quarterly payments of tax, be converted into
Renminbi according to the foreign exchange rate quoted by the State General
Administration of Exchange Control on the day when the receipt for payment of
tax is issued; for the purpose of the additional tax payable or the tax
refundable on final settlement at the year-end, the income in foreign
currencies shall be converted into Renminbi according to the foreign exchange
rate quoted by the State General Administration of Exchange Control on the
last day of the tax year.
Article 43 The Tax authorities may, according to the seriousness of the
case, impose a fine of 5,000 yuan or less on a foreign enterprise which
violates the provisions of Article 8, Paragraph 1 of Article 9, Article 10 or
Article 12 of the Tax Law.
Article 44 The tax authorities may, according to the seriousness of the
case, impose a fine of 5,000 yuan or less on a foreign enterprise which
violates the provisions of Paragraph 2 of Article 39 and Article 4O of these
Rules.
Article 45 The evasion of or refusal to pay tax mentioned in Paragraph
3 of Article 15 of the Tax Law shall be construed as follows:
“Tax evasion” means the illegal actions of a taxpayer who has
intentionally violated the provisions of the Tax Law by such means as
falsifying, altering or destorying account books, receipts or accounting
vouchers; falsely itemizing or overstating costs and expenses; concealing or
understanding taxable income or receipts; or avoiding taxes or fraudulently
recovering taxes already paid.
“Refuse to pay tax” means the illegal actions of a taxpayer who has
violated the provisions of the Tax Law by such means as refusing to file
tax returns or to provide documentation of tax payment, invoices or vouchers;
refusing to agree to investigations by the tax authorities of its financial,
accounting and tax affairs; or refusing to pay tax or fines in accordance
with the law.
Article 46 Notice of disposal of a violation shall be served in those
cases in which the tax authorities impose a fine in accordance with the
provisions of the Tax Law and these Rules.
Article 47 When a foreign enterprise applies for reconsideration of a
case in accordance with the provisions of Article 16 of the Tax Law, the tax
authorities concerned shall decide upon the disposal of the case within 3
months after receipt of the application.
Article 48 Standardized income tax returns and tax payment receipts to
be used by foreign enterprises shall be printed by the General Taxation
Bureau of the Ministry of Finance of the People’s Republic of China.
Article 49 The right to interpret these Rules shall reside with the
Ministry of Finance of the People’s Republic of China.
Article 50 These Rules shall become effective on the same date of
promulgation and effective date of the Income Tax Law of the People’s Republic
of China for Foreign Enterprises.
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