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Contents
Chapter I General Principles.............................................................2
Chapter II Procedures of Registration...........................................................3
Chapter III Supervision and Administration.........................................................7
Chapter IV Legal Liabilities.............................................................9
Chapter V Supplementary Provisions............................................................10
INTERIM MEASURES FOR THE ADMINISTRATION OF ESTABLISHMENT AND MODIFICATION REGISTRATION OF FOREIGN-FUNDED ENTERPRISES
Article 1 In accordance with Law of the People's Republic of China on Chinese-foreign Equity Joint Ventures, Law of the People's Republic of China on Chinese-foreign Cooperative Enterprises, Law of the People's Republic of China on Wholly Foreign - owned Enterprises, Law of the People's Republic of China on Companies and the relevant laws, administrative regulations and the State Council’s decisions, these Measures are formulated to further expand the opening to the outside world and promote the reform of the foreign investment administration system and improve the legitimate, international and convenient business environment.
Article 2 These Measures apply to the establishment and modification of foreign-funded enterprises which are not subject to the special administrative measures for permits stipulated by the State.
Article 3 The competent authority of commerce under the State Council shall be responsible for the overall planning and guidance of the establishment and modification of foreign-funded enterprises throughout the State.
The competent authorities of respective provinces, autonomous regions, municipalities directly under the Central Government, municipalities listed independently in the State plan, Xinjiang Production and Construction Corps and sub-provincial municipalities, and the competent authorities of pilot free trade zones and national economic and technological development zones shall be the authorities in charge of the registrations of the establishment and modification of foreign-funded enterprises and responsible for the administration of the registrations of the establishment and modification of foreign-funded enterprises within their respective areas.
The authorities in charge of the registrations shall implement the registrations via the Integrated Administration Information System for Foreign Investment (hereinafter referred to as the Integrated Administration System).
Article 4 Each foreign-funded enterprise or its investors shall provide the true, accurate and complete information for registration in accordance with these Measures, and fill in the letter of undertaking for declaring the registration without any false record, misleading statement or material omission. Each foreign-funded enterprise or its investors shall appropriately keep the evidence regarding the submitted information of registration.
Article 5 With respect to the establishment of a foreign-funded enterprise subject to the registration as stipulated in these Measures, the representative appointed or the agent jointly
entrusted by all investors of the foreign-funded enterprise (or all sponsors in case of a foreign-funded company limited by shares, hereinafter referred to as all Sponsors) shall after the obtainment of the prior approval of the enterprise’s name and before the issuance of the business license, or the representative appointed or the agent entrusted by the foreign-funded enterprise shall within 30 days after the issuance of the business license, via the Integrated Administration System, fill in and submit online the Declaration Form for the Registration of the Establishment of the Foreign-funded Enterprise (hereinafter referred to as the Establishment Declaration Form) and the relevant documents and conduct the procedures of registration.
Article 6 A foreign-funded enterprise subject to the registration as stipulated in these Measures shall, through the representative appointed or the agent entrusted by it, via the Integrated Administration System, fill in and submit online the Declaration Form for the Registration of the Modification of the Foreign-funded Enterprise (hereinafter referred to as the Modification Declaration Form) and the relevant documents and conduct the procedures of registration when any of the following modifications occurs:
(1) Any modification of the basic information of the Foreign-funded Enterprise, including any modification of the name, registered address, type of enterprise, operation term, investment industry, type of business, scope of business, within or not within the scope of imported equipment entitled to the tax relief as stipulated by the State, registered capital, total investment, composition of organizational structure, legal representative, ultimate actual controller of the foreign-funded enterprise, contact person or contact information;
(2) Any modification of the basic information of the investors of the foreign-funded enterprise, including any modification of their names, nationalities/regions or addresses (the places of registration or registered addresses), the types and numbers of their certificates, the amounts of the capital subscribed for by them, the means of contributing the capital, time limits for their contribution to the capital, the source of fund or the type of investor;
(3) Any modification of equity (shares) or cooperative interest;
(4) Merger, separation or termination;
(5) Pledge or assignment of property or interest of the wholly foreign - owned enterprise;
(6) Advance recovery of investment by the foreign cooperator of the Chinese-foreign cooperative enterprise;
(7) Operation and management of the Chinese-foreign cooperative enterprise by entrustment.
Among the aforesaid modifications, with respect to any modification regarding merger, separation, decrease of capital or any other item which shall be announced in accordance with the relevant laws and regulations, the information for legally handling the procedures of such announcement shall be explained when conducting the registration of such modification.
Any of the aforesaid modifications subject to the resolution of the supreme power organ of the foreign-funded enterprise shall be deemed to have taken place when the supreme power organ adopts the resolution; should there be any conditions precedent required by the laws and regulations for the effectiveness of any modification of the foreign-funded enterprise, such modification shall be deemed to have taken place when such conditions have been satisfied.
A listed foreign-funded company or a company listed in the National Small and Medium Enterprise Share Transfer System may conduct the registration of modification of the basic information of its investors or its shares only when the change in the shareholding percentage of its foreign investors accumulatively exceeds 5% and the controlling or relative controlling status changes.
Article 7 When conducting the procedures for establishment or modification of the foreign-funded enterprise, the foreign-funded enterprise or its investors shall, via the Integrated Administration System, submit the following documents:
(1) the materials regarding the prior approval for the name of the foreign-funded enterprise, or the business license of the foreign-funded enterprise;
(2) the Letter of Undertaking for Declaring the Registration of Establishment of the Foreign-funded Enterprise signed by all investors (or all Sponsors) of the foreign-funded enterprise or their authorized representative, or the Letter of Undertaking for Declaring the Registration of Modification of the Foreign-funded Enterprise signed by the legal representative of the foreign-funded enterprise or his/her authorized representative;
(3) the proof for all investors (or all Sponsors) or for the appointment of the representative or the joint entrustment of the agent by the foreign-funded enterprise, including the power of attorney and proof of identity of the appointee;
(4) the proof for the investors or legal representative of the foreign-funded enterprise appointing other person to sign the relevant documents, including the power of attorney and proof of identity of the appointee (not applicable if not appointing other person to sign the relevant documents);
(5) the proof for the qualification or identity of natural person of the investors (not applicable if the modification is irrelative to the basic information of the investors);
(6) the proof for identity of natural person of the legal representative (not applicable if the modification is irrelative to the modification of legal representative).
If any of the aforesaid documents is originally made in a foreign language, the Chinese translation shall be submitted together, and the foreign-funded enterprise or its investors shall ensure that the contents of the Chinese translation shall be consistent with the contents of the original in the foreign language.
Article 8 If the investors of the foreign-funded enterprise have submitted the registration information prior to the issuance of its business license and there is any change in its actual investment, the modification registration of such change shall be conducted with the authority of registration within 30 days after the issuance of its business license.
Article 9 If there is any change to the foreign-funded enterprise which has been established upon the approval and the changed foreign-funded enterprise is not subject to the special administrative measures for permits stipulated by the State, the registration procedures shall be conducted, and its Certificate of Approval for the Foreign-funded Enterprise shall become invalid upon the completion of the registration.
Article 10 If any change to the foreign-funded enterprise under the registration administration is subject to the special administrative measures for permits stipulated by the State, the procedures of approval shall be conducted in accordance with the laws and regulations regarding the foreign investment.
Article 11 After the foreign-funded enterprise or its investors has submitted online the Establishment Declaration Form or the Modification Declaration Form and the relevant documents, the authority of registration shall examine the pro forma completeness and accuracy of the submitted information and identify whether the declared item falls within the scope of the registration. If falling within the scope of the registration as specified in these Measures, the authority of registration shall complete the registration within 3 business days. If not falling within the scope of the registration, the authority of registration shall, within 3 business days, online notify the foreign-funded enterprise or its investors of handling in accordance with the relevant regulations and the competent authority of handling in accordance with the law.
If finding that the information submitted by the foreign-funded enterprise or its investors is pro forma incomplete or inaccurate or it’s necessary to further explain its scope of business, the authority of registration shall one-time online notify it or them of online submitting the additional information within 15 business days. The time for submitting the additional information shall not be counted in the time limit of the authority of registration for registration. If the foreign-funded enterprise or its investors fails to submit all additional information within 15 business days, the authority of registration shall online notify the foreign-funded enterprise or its investors that the registration is not completed. The foreign-funded enterprise or its investors may submit a separate application for registration of the same establishment or modification, and such separate application shall be submitted within 5 business days if such establishment or modification has already been implemented.
The authority of registration shall publish the result of registration via the Integrated Administration System, and the foreign-funded enterprise or its investors may inquire the result of registration in the Integrated Administration System.
Article 12 After the completion of registration, the foreign-funded enterprise or its investors may receive the Registration Return Receipt of Establishment of the Foreign-funded Enterprise or the Registration Return Receipt of Modification of the Foreign-funded Enterprise (each hereinafter referred to as the “Registration Return Receipt”) from the authority of registration by producing the prior approval materials (copies) or the business license (copy) of the foreign-funded enterprise.
Article 13 The Registration Return Receipt issued by the authority of registration shall contain the following contents:
(1) the foreign-funded enterprise or its investors has submitted the materials for registration of establishment or modification which conform to the pro forma requirements;
(2) the items regarding the establishment or modification registered;the items regarding the establishment or modification fall within the scope of registration;
(3) within or not within the scope of imported equipment entitled to the tax relief as stipulated by the State.
Article 14 The competent authorities of commerce shall supervise and inspect the compliance and implementation of these Measures by the foreign-funded enterprises and their investors.
The competent authorities of commerce may implement their supervision and inspection by such methods as conducting the random inspection, making the inspection upon the report on an offense, making the inspection upon the proposal and information forwarded and reflected by the relevant department or judicial authority, and making the ex officio inspection on its own initiative.
The competent authorities of commerce shall closely work and cooperate, and strengthen the share of information with the relevant administrative authorities such as the authorities of the public security, State-owned assets, customs, taxation, industry and commerce, securities and foreign exchange. The competent authorities of commerce shall timely inform the relevant authority of any offense of any foreign-funded enterprise or its investors discovered by them during their supervision and inspection but not falling within their duties.
Article 15 The competent authorities of commerce shall supervise and inspect the foreign-funded enterprises and their investors through the supervision and inspection on the inspection objects randomly selected according to the registration numbers of the foreign-funded enterprises implemented by the randomly selected inspection personnel of such authorities pursuant to the fair and standard requirements. The results of such random inspection shall be published by the competent authorities of commerce via the foreign investment information publishing platform of the Ministry of Commerce.
Article 16 Any citizen, legal person or other organization may report to the competent authorities of commerce on any discovered offense of these Measures by any foreign-funded enterprise or its investors. The competent authorities of commerce shall implement necessary investigation after receiving the report if the report is submitted in writing, the .person being reported against is definite, and the relevant facts and evidence are provided.
Article 17 Other relevant departments or judicial authorities may submit proposal to the competent authorities of commerce for supervision and inspection when discovering any offense of these Measures by any foreign-funded enterprise or its investors during their performance of duties, and the competent authorities of commerce shall timely inspect upon receipt of such proposal.
Article 18 The competent authorities of commerce may make the ex officio inspection on its own initiative of any foreign-funded enterprise or its investors failing to register in accordance with these Measures, or having conducted false registration, or not cooperating with the supervision or inspection, or declining to perform any administrative penalty decision record of the competent authorities of commerce.
Article 19 The contents of supervision and inspection made by the competent authorities of commerce on the foreign-funded enterprises and their investors shall include:
(1) whether they have conducted the registration procedures in accordance with these Measures;
(2) whether the registration information submitted by the foreign-funded enterprises or their investors is true, accurate and complete;
(3) whether they engage in any investment or business activity in any prohibited investment area as listed in the special administrative measures for permits stipulated by the State;
(4) whether they engage in any investment or business activity without being permitted in any restricted investment area as listed in the special administrative measures for permits stipulated by the State;
(5) whether there is any circumstance triggering the national security scrutiny;
(6) whether there is any forgery, alteration, lease, lending or assignment of the Registration Return Receipt ;
(7) whether they perform the administrative penalty decisions made by the competent authorities of commerce.
Article 20 When making inspection, the competent authorities of commerce may check the relevant materials or require the persons being inspected to provide the relevant materials and the persons being inspected shall provide truthfully.
Article 21 The competent authorities of commerce shall neither impede the normal production and operation activities of the persons being inspected when making inspection, nor accept any property or service provided by the persons being inspected, nor pursue any other illegal interest.
Article 22 The competent authorities of commerce and other competent authorities shall record in the foreign investment credit filing system of the Ministry of Commerce the information reflecting the credit of the foreign-funded enterprises or their investors acquired by them during their supervision and inspection. Further, with respect to any failure to register in accordance withthese Measures, any false registration, any forgery, alteration, lease, lending and assignment of the Registration Return Receipt , any failure to cooperate with the supervision or inspection, or declining to perform any administrative penalty decision made by the competent authorities of commerce, the competent authorities of commerce shall publish the relevant credit information via the foreign investment information publishing platform of the Ministry of Commerce.
The Ministry of Commerce and the relevant ministries share the credit information of the foreign-funded enterprises and their investors.
The credit information published or shared by the competent authorities of commerce under the foregoing two paragraphs shall not include any personal privacy or trade secret of any foreign-funded enterprise or its investors or national secret.
Article 23Any foreign-funded enterprise and its investors may inquire the credit information regarding itself/themselves in the foreign investment credit filing system of the Ministry of Commerce, and if thinking the relevant recorded information is not complete or is erroneous, may produce the relevant proof and apply to the competent authority of commerce for amendment. The amendment will be made if it is true after verification.
With respect to the records of dishonesty as a result of an offence of these Measures, where the foreign-funded enterprise or its investors does not conduct any act violating these Measures within 3 years after having rectified the offence and performed the relevant obligations, the competent authority of commerce shall remove such records of dishonesty.
Article 24 The competent authority of commerce shall ordered any foreign-funded enterprise or its investors violating these Measures, failing to perform the obligations for registration or having any material omission when registering, to rectify within the specified time limit; and a fine amounting to less than 30,000 Yuan shall be imposed on if the foreign-funded enterprise or its investors fails to rectify within the specified time limit or the violation is gross.
Any foreign-funded enterprise or its investors violating these Measures, evading fulfillment of the obligations for registration, concealing any fact, providing misleading or false information, or forging, altering, leasing, lending or assigning the Registration Return Receipt shall be ordered to rectify within the specified time limit and imposed on a fine amounting to less than 30,000 Yuan by the competent authority of commerce. With respect to the offence of any other law or regulation, the corresponding legal liabilities shall be investigated by the relevant authorities.
Article 25 Any foreign-funded enterprise or its investors engaging in any investment or business activity without being permitted in any restricted investment area as listed in the special administrative measures for permits stipulated by the State shall be ordered to rectify within the specified time limit and imposed on a fine amounting to less than 30,000 Yuan by the competent authority of commerce. With respect to the offence of any other law or regulation, the corresponding legal liabilities shall be investigated by the relevant authorities.
Article 26 Any foreign-funded enterprise or its investors engaging in any investment or business activity in any prohibited investment area as listed in the special administrative measures for permits stipulated by the State shall be ordered to rectify within the specified time limit and imposed on a fine amounting to less than 30,000 Yuan by the competent authority of commerce. With respect to the offence of any other law or regulation, the corresponding legal liabilities shall be investigated by the relevant authorities.
Article 27 Any foreign-funded enterprise or its investors evading, declining or otherwise preventing the competent authority of commerce from supervising or inspecting shall be ordered to rectify and may be imposed on a fine amounting to less than 10,000 Yuan by the competentauthority of commerce.
Article 28 Any relevant official abusing authority, neglecting duties, playing favoritism, committing irregularities or soliciting or accepting bribes shall be given the administrative sanction, and if constituting a criminal offence, shall assume the criminal liabilities under the law.
Article 29 With respect to the establishment and modification of the foreign-funded enterprises which have been accepted by the competent authorities of commerce prior to the implementation of these Measures, but have not been approved and fall within the scope of registration, the approval procedures shall terminate and the foreign-funded enterprises or their investors shall conduct the registration procedures in accordance with these Measures.
Article 30 The foreign investment subject to the antitrust scrutiny shall be handled in accordance with the relevant regulations.
Article 31 The foreign investment subject to the national security scrutiny shall be handled in accordance with the relevant regulations. If the registration authority considers that any foreign investment may be subject to the antitrust scrutiny when handling the registration procedures or supervising or inspecting, but the investors of the foreign-funded enterprise do not apply to the Ministry of Commerce for the national security scrutiny, the registration authority shall timely inform the investors of applying to the Ministry of Commerce for the national security scrutiny, suspend handling the relevant procedures, and simultaneously report such information to the Ministry of Commerce.
Article 32 The foreign-funded investment enterprises (including investment companies and venture investment enterprises) shall be treated as the foreign investors and subject to these Measures.
Article 33 The investments made by the investors from Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan Region which are not subject to the special administrative measures for permits stipulated by the State shall be conducted by referring to these Measures.
Article 34 With respect to the service provider from Hong Kong investing in the Mainland only in the service trade areas open to Hong Kong as listed the Service Trade Agreement under the Closer Economic Partnership Arrangement between Mainland and Hong Kong and the service provider from Macao investing in the Mainland only in the service trade areas open to Macao as listed the Service Trade Agreement under the Closer Economic Partnership Arrangement between Mainland and Macao, the registration for establishment and modification of the companies invested by them shall be handled in accordance with Measures for the Administration of Registration of Investment by Service Providers from Hong Kong and Macao in the Mainland (Provisional).
Article 35 These Measures shall prevail if there is any discrepancy between these Measures and the regulations and relevant documents promulgated by the Ministry of Commerce prior to these Measures coming into force.
Article 36 The competent authorities of pilot free trade zones and national economic and technological development zones shall supervise and inspect the compliance with these Measures by the foreign-funded enterprises in such zones and their investors in accordance with Chapters III and IV of these Measures.
Article 37 These Measures shall come into force on the date of their promulgation. The Measures for the Administration of Registration of Foreign Investment in Pilot Free Trade Zones (Provisional) (Announcement No. 12 [2015], the Ministry of Commerce) shall be abrogated simultaneously.
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