Note: This article is just for research and education, not the suggestions for your investments, even though we think these articles are very important for you to do business in China. On the other hand, some of the laws might be 
modified, or outdated, so you do need to consult the related specialists for suggestions.
1.What are the basic laws and regulations encouraging overseas investment?
In order to create a congenial investment environment and to encourage overseas firms to invest in China, China has gradually set up a relatively complete legal system. In 1979 the National People‘s Congress issued The Law of the People‘s Republic of China on Chinese-Foreign Equity Joint Ventures. In the following 20-odd years, the Chinese government has promulgated and issued a series of laws and statutes concerning the establishment, operation, termination and liquidation of foreign-invested enterprises.
The main laws and regulations include the three basic laws ― The Law of the People‘s Republic of China on Chinese-Foreign Equity Joint Ventures, The Law of the People‘s Republic of China on Chinese-Foreign Contractual Joint Ventures, and The Law of the People‘s Republic of China on Wholly Foreign-Owned Enterprises; detailed rules for the implementation of the three basic laws; The Company Law of the People‘s Republic of China; The Income Tax Law of the People‘s Republic of China for Enterprises with Foreign Investment and Foreign Enterprises; Interim Provisions for Guiding Foreign Investment; Industrial Catalogue for Foreign Investment; Interim Provisions Concerning the Investment within China of Foreign-invested Enterprises, Provisions Regarding the Merger and Separation of Foreign-invested Enterprises, and Liquidation Measures for Enterprises with Foreign Investment. These provide legal bases from which to guarantee the independent operation rights of foreign-funded enterprises and to protect the legitimate rights and interest of both domestic and overseas investors.
Currently, the Chinese government is reexamining its existing laws and statutes in accordance with the framework of the WTO. It has abolished certain obsolete laws and regulations, and will gradually revise the laws and regulations that are incompatible with the rules of the WTO. For instance, in 2000 China revised The Law of the People‘s Republic of China on Chinese-Foreign Contractual Joint Ventures and The Law of the People‘s Republic of China on Wholly Foreign-Owned Enterprises, and discarded certain restrictions regarding the balance of foreign exchange account and localization of supplies. In 2001 The Law of the People‘s Republic of China on Chinese-Foreign Equity Joint Ventures was also revised.
2.What are the formalities for overseas investment to establish enterprises in China? What departments are involved? 
In accordance with the existing laws of China, the establishment of enterprises with foreign investment is subject to project-by-project examination, approval and registration by the government. In general, the following steps should be followed for the establishment of Chinese-foreign equity joint ventures and Chinese-foreign contractual joint ventures:
l). Submit the project proposal to the relevant department (planning department or technological renovation administration) and get approval before investors can proceed with various jobs centered round the feasibility study of the project.
2). Submit the feasibility study report to the planning department or technological renovation administration and get approval before investors can sign legal documents, such as the contract and articles of corporation of the enterprise.
3). Submit the contract and articles of corporation of the enterprise to the examination and ratification department, who shall issue the Approval Certificate for Enterprises with Foreign Investment after approval by the Ministry of Foreign Trade and Economic Cooperation.
4). With the Approval Certificate issued by the examination and ratification authorities, the investors can go through registration procedures with the administration of industry and commerce.
The procedures for the establishment of enterprises with foreign investment are quite simple. After the initial project application is approved in writing by the examination and ratification authorities, the investors may submit a formal application, with articles of corporation and other required documents. On receipt of the Approval Certificate, they can proceed with the registration formalities by presenting the Approval Certificate.
In accordance with China‘s existing laws, the state adopts a classification administrative system for foreign investment. The provinces, municipalities, autonomous regions and cities listed as independent units in state plans have the authority to examine and approve investment of less than US $30 million in areas encouraged and permitted by the state. When an investment exceeds this amount, the project application and feasibility study report shall be examined and approved by the State Development Planning Commission or the State Economic and Trade Commission, while the contract and articles of corporation shall be examined and approved by the Ministry of Foreign Trade and Economic Cooperation.
Many provinces, autonomous regions and municipalities directly under the central government have established foreign investment service centers, which offer foreign investors with a one-stop service, ranging from legal consultation to procurement of project approval. With the improvement of China‘s social services system, intermediary service agents, including consultation companies, lawyers, and accountants, are all expected to provide investors with efficient and qualified services.
3. What items are encouraged for foreign investment by China, and what are prohibited?
To direct foreign investment to go along with the development scenario of Chinese industries, and to avoid blind investment, the Chinese government promulgated in June 1995 the Interim Provisions for Guiding Foreign Investment and the Industrial Catalogue for Foreign Investment. The industrial projects in the catalogue are divided into four categories ― the encouraged, permitted, restricted, and prohibited. In late 1997, the Chinese government revised the above-mentioned catalogue in line with the development of the national economy. The revised catalogue reflects expansion in the investment scope encouraged by the state and highlights priority industries. It embodies the principles of compliance with structural readjustment, of being conducive to the introduction of advanced technology, and encouragement of foreign investment in China‘s central and western areas.
The items in the catalogue encouraged for foreign investment mainly include: new agriculture technologies, comprehensive development of agriculture, energy resources, communications, important raw materials, new and high technologies, export-oriented and foreign-currency-earning projects, comprehensive utilization and regeneration of resources, prevention of environmental pollution, and those that give play to the advantages of China‘s mid-west areas. Meanwhile, foreign investment is directed to the technological upgrading of traditional industries and old industrial bases and to the continued development of labor-intensive projects that comply with the state‘s industrial policies.
Foreign investment is prohibited in projects that endanger the state security and bring damages to public interest; that cause pollution of the environment and damage natural resources and public health; that use large farmland and are unfavorable to the protection and development of land resources; and that endanger the security and normal function of military facilities.
The state will continue to make appropriate revisions to the Industrial Catalogue for Foreign Investment and to the Interim Provisions for Guiding Foreign Investment in accordance with the development need of the national economy and China‘s commitment on the entry of the WTO.
4. What are the preferential policies offered to enterprises with foreign investment?
The Chinese government levies low tax on enterprises with foreign investment, and preferential tax policies are offered to the sectors and regions where investment is encouraged by the state.
1). Income Tax
a. Rate of income tax: The income tax on enterprises with foreign investment is levied at the rate of 33 percent. The income tax on enterprises with foreign investment located in special economic zones, state new- and hi-tech industrial zones, or economic and technological development zones is levied at the rate of 15 percent. The income tax on production enterprises with foreign investment located in coastal economic open zones, special economic zones, or in the old urban district of cities where economic and technological development zones are located is levied at the rate of 24 percent. And the income tax on enterprises with foreign investment that are engaged in projects such as energy, communications, port and dock is levied at the reduced rate of 15 percent.
b. Tax reduction and exemption: The production enterprises with foreign investment that have an operation period exceeding 10 years shall, from the year they begin to make profit, be exempt from income tax for the first two years and allowed a 50 percent reduction for the following three years. Enterprises with foreign investment engaged in agriculture, forestry and animal husbandry, and enterprises with foreign investment established in remote and underdeveloped areas may, upon approval by the State Bureau of Taxation, be allowed a 15 to 30 percent reduction on the income tax for a period of another 10 years following the expiration of the period of tax exemption and reduction as provided for above. The income tax on enterprises with foreign investment located in mid-west China that are engaged in projects encouraged by the government shall be levied at a reduced rate of 15 percent for a period of another three years following the expiration of the Five-Year period of tax exemption and reduction. The enterprises with foreign investment that adopt advanced technology shall be exempt from income tax for the first two years and allowed a 50 percent reduction for the following six years. In addition to the two-year tax exemption and three-year tax reduction treatment, foreign-invested enterprises producing for export shall be allowed a reduced income tax rate of 50 percent as long as their annual export accounts for 70 percent or more of their sales volume. The foreign investor of an enterprise with foreign investment which reinvests its share of profit obtained from the enterprise in a project with an operation period of no less than 5 years shall, upon approval by the State Bureau of Taxation of an application filed by the investor, be refunded 40 percent of the income tax already paid on the reinvested amount.
2). Circulation-stage Tax:
Since January 1st, 1994, the Chinese government has levied unified value-added tax, consumption tax and business tax on enterprises with foreign investment and domestic enterprises. Technology transfer and technological development by foreign enterprises and enterprises with foreign investment are exempted from value-added tax, as a measure to expand domestic demand and to encourage technological renovation in foreign-invested enterprises. For foreign-invested enterprises engaged in projects in the encouraged or restricted-B categories, the value-added tax on China-made equipment purchased by the enterprises within their total amount of investment shall be fully refunded if the equipment is listed under the catalogue offered with income tariff exemption.
3). Import-stage Value-added Tax
a. Tariff rate: Since 1992 the Chinese government has reduced nine times the tariff rate for imported commodities. The present average tariff rate is 12 percent.
b. Tax exemption for imported equipment: Equipment imported for foreign-invested or domestic-invested projects that are encouraged and supported by the state shall enjoy tariff and import-stage value-added tax exemption.
5. What are the favorable policies for further encouraging foreign investment in high technology industries?
To encourage foreign-invested enterprises to introduce advanced foreign technologies and equipment, to promote industrial restructuring and technological upgrading, and to maintain sustained, rapid and healthy development of the national economy, the Chinese government has stipulated in recent years a series of favorable policies to invite foreign investment in high technology industries. These policies are mainly as follows:
1). Self-use equipment and supporting technologies, parts and spares imported for technological upgrading within their previously approved scope of production and operation by foreign-invested enterprises under the encouraged or restricted-B categories, foreign-invested research and development centers, foreign-invested enterprises producing for export and technologically advanced foreign-invested enterprises shall be exempted from the import tariff and import-stage value-added tax, if the equipment and supporting technologies, parts and spares cannot be produced domestically or the features and functionality of domestic products cannot meet requirements.
2). Self-use equipment and supporting technology, parts, spares and other accessories as clarified in the contract, imported by enterprises with foreign investment for the production of the products listed under the Catalogue of the State High and New Technology Products, shall be exempted, in accordance with relevant regulations, from the import tariff and import-stage value-added tax.
3). Advanced technologies listed under the Catalog of the State High and New Technology Products introduced by enterprises with foreign investment, and their outbound payment made on the software in accordance with the contract shall be exempted from tariff and import-stage value-added tax.
4). Self-use equipment and supporting technologies, parts and spares imported by foreign-invested research and development centers within the total amount of their investment shall be exempted, in accordance with relevant regulations, from the import tariff and import-stage value-added tax, if the imports cannot be produced domestically or the features and functionality of domestic products cannot meet requirements.
5). In cases where the tax refund rate on products listed under the Catalogue of the State High and New Technology Export Commodities is not up to the tax rate, a tax refund can be proceeded in accordance with the tax rate and existing regulations concerning tax refunding on exports, after the above-mentioned products are exported and upon approval by the State Bureau of Taxation.
6). If enterprises with foreign investment under the encouraged or the restricted-B categories purchase within the total amount of their investment China-made equipment that is listed under imports for import duty exemption, the enterprises can obtain a full refund of domestic equipment value-added tax on the equipment they have purchased. When enterprises with foreign investment purchase China-made equipment for the purpose of technological upgrading in conformity with the state industrial policy or for producing high-technology products, the cost of the equipment can offset the business income tax of these enterprises.
7). The incomes of foreign-invested enterprises and research and development centers and foreign enterprises and individuals obtained from technology transfer and development and related technological consultation and services shall be exempted from business tax.
8). If the expenditure on technology development of enterprises with foreign investment increases by 10 percent or more over that of the previous year, the taxable income of the enterprises for the current year can, with the approval of the taxation authorities, be set off by 50 percent of the actual amount of the spending on technology development.
9). In accordance with the articles concerning donations in the Income Tax Law of the People‘s Republic of China for Enterprises with Foreign Investment and Foreign Enterprises, the foreign-invested and foreign enterprises who provide financial aid to non-affiliated scientific and research institutes or schools of higher learning for their research and development projects can deduct the entire amount of the aid from their taxable income.
6. What are the specific policies that encourage the development of software and integrated circuit industries? (2)
5). Accreditation System for Software Enterprises
a. Accreditation standards for software enterprises shall be formulated by the Ministry of Information Industry, the Ministry of Education, the Ministry of Science and Technology, the State Bureau of Taxation and other related departments.
b. Annual assessment system shall be carried out among software enterprises. Enterprises that fail to pass annual assessment will be deprived of their identities as software enterprises and can no longer enjoy related preferential policies.
c. The Ministry of Information Industry and the State Bureau of Quality and Technical Supervision shall be responsible for the formulation of national standards of software products.
6). Protection of Intellectual Property Rights
a. The registration of software copyrights is encouraged and key protection is given to registered software in accordance with the state laws.
b. No unit is allowed to use unauthorized software products in its computer system.
c. Crackdown on software smuggling and pirating shall be strengthened, and making, production and selling of pirated software shall be punished severely.
Integrated Circuits (IC) Industry
1). Foreign and domestic enterprises are encouraged to establish jointly invested or wholly foreign-invested IC production enterprises. For average tax payers selling IC products (including monocrystalline silicon chips) made by themselves, before 2010 value-added tax will be collected in line with the tax rate of 17 percent, as set by law. Practically, except for the part of 6 percent, other part of the tax will be reimbursed immediately after collection for the enterprises to use in research and development of new integrated circuits and reproduction expansion.
2). Preferential tax policies that encourage foreign investment in energy and communications industries will be adopted for IC manufacturers whose amount of investment exceeds 8 billion yuan or whose IC wire width is less than 0.25 µ m.
3). Self-use raw material and consumption goods for production imported by manufacturers whose amount of investment exceeds 8 billion yuan or whose IC wire width is less than 0.25 µ m shall be exempted from tariffs and import-stage value-added tax. The Customs shall provide clearance convenience for such enterprises.
4). Enterprises whose amount of investment exceeds 8 billion yuan or whose IC wire width is less than 0.25 µ m are permitted to deposit their after-tax profit intended for reinvestment within the territory of the People‘s Republic of China in a special account in the form of foreign currencies. These deposits are subject to the supervision of the foreign exchange administration department.
5). The minimum depreciation period for production equipment of IC manufacturers is three years.
6). IC technology and complete sets of production equipment imported by IC manufacturers and special IC equipment and apparatus imported as separate items shall be exempted, in accordance with relevant regulations, from import tariffs and import-stage value-added tax.
7). Chips of integrated circuits designed by domestic IC designing enterprises can be manufactured abroad if they cannot be manufactured domestically. After the processing contract (including specifications and amounts) is approved by the department in charge, tariffs shall be levied according to the interim preferential tax rate for their import.
8). The examination and ratification department in charge of IC projects is responsible for recognizing IC enterprises after soliciting opinions from the taxation department at the same level.
9). IC designs are regarded as software products and enjoy the protection of laws concerning intellectual property rights. The state encourages the evaluation and registration of IC designs.
10). IC designing is regarded as software industry and enjoys policies concerning software industry.
7. What are the regulations regarding foreign investment in the establishment of research and development centers? What preferential policies are offered? (1)
To encourage foreign investment to establish R&D centers in China, the Ministry of Foreign Trade and Economic Cooperation issued the Circular Concerning Issues Related to Foreign Investment in the Establishment of Research and Development Centers in 2000. It includes the form and business scope of a foreign-invested R&D center, conditions for establishment, the procedure and relevant preferential policies.
1). Form and Business Scope of a Foreign-invested R&D Center
a. A foreign-invested R&D center may take the form of a Sino-foreign equity or cooperative joint venture or wholly foreign-owned enterprise established according to law by foreign investors (including investment companies established with foreign investment), or an independent department or branch within a foreign-invested enterprise.
b. An R&D center is to serve as an institution engaged in the R&D and experimental development (including intermediate experiments that serve R&D activities) in natural sciences and related scientific and technological fields. The contents of R&D may be basic research, product application research, high-tech research and research for social benefits. The R&D projects shall not include those listed under the prohibited category in the Industrial Catalogue for Foreign Investment, nor can the center conduct any trade of technological results that are not generated by the R&D center itself or manufacturing activities other than intermediate experiments. An R&D center may transfer its own R&D results and commission R&D projects to, or undertake cooperative projects with domestic scientific research academies and institutes. A training center cannot be classified as an R&D center.
2). Conditions for the Establishment of a Foreign-invested R&D Center
a. There are clear-defined R&D fields and specific R&D projects, a permanent location, instruments and equipment needed in scientific research and other conditions necessary for scientific research. The total investment of the R&D center devoted to research and development shall not be lower than US$2 million.
b. An R&D center shall be staffed with full-time managerial and R&D personnel, of whom those possessing the bachelor‘s degree or above and directly engaged in R&D activities, as a percentage of the total staff, shall not be lower than 80 percent.
3). Procedures for the Establishment of a Foreign-invested R&D Center
a. An R&D center established by foreign investors in the form of an equity joint venture, a cooperative joint venture or a wholly foreign-owned enterprise is subject to the examination and approval of the examination and ratification authorities at the provincial level.
b. An R&D center established under a foreign-invested enterprise (including an investment company)
(1) To establish an R&D branch or an independent R&D department, the examination and approval shall be conducted by the examination and ratification authorities for the foreign-invested enterprise within its power; however, should the enterprise be a restricted category A enterprise below the ceiling, the examination and approval shall, without exception, be conducted by the examination and ratification authorities at the provincial level.
(2) If an existing foreign-invested enterprise whose scope of business includes "research" or "development" establishes an independent R&D department, it should submit relevant documents on the independent R&D department to the previous examination and ratification authorities. If the enterprise‘s scope of business does not include the above-mentioned operations, its contract and articles of corporation shall be revised and submitted to the previous examination and ratification authorities for approval.
4). The application submitted to the examination and ratification authorities shall include the following:
a. The direction, field, major task and implementation plan of R&D;
8. What are the favorable policies for foreign investors to central and western China?
In order to coordinate economic development in different areas, the Chinese government is encouraging foreign investment in central and western China. Key measures being taken are as follows.
1). The state has approved and issued the Catalogue of Advantageous Sectors for Foreign investment in Central and Western Regions. Projects included in this catalogue enjoy the same policy as offered to projects of encouraged category in the Industrial Catalogue for Foreign Investment, and favorable tax policy applies to the import of necessary equipment, parts, spares and technology used in such projects.
2). There will be fewer restrictions in investment fields, and on the conditions for establishment of foreign-invested enterprises in central and western China, as well as on the proportion of shares owned by the foreign contingent of the foreign-invested enterprises in these areas.
3). Encouraged Projects in central and western China shall pay income tax at the reduced rate of 15 percent for three years on expiry of the current favorable tax period.
4). If foreign-invested enterprises reinvest in central and western China with foreign capital accounting for 25 percent or more of the project, the new project will enjoy policies offered to enterprises with foreign investment.
5). Trial projects approved by the central government should, in principle, be carried out simultaneously in eastern, central and western China. On approval from the state government, provincial and autonomous regional capitals and municipalities may open the fields of commerce, foreign trade and banking to foreign investment on a trial basis. Foreign-funded banks in western China may embark on RMB business gradually. Foreign investors may invest in telecommunications and tourism insurance in accordance with relevant regulations, and set up Sino-foreign joint venture accounting firms, engineering design companies, railway and highway freight transport and public utility companies, and other fields open to foreign investment.
6). Provinces, municipalities and autonomous regions in central and western China may select a built-up development area in the provincial or regional capital and apply for the status of a national economic and technological development zone.
7). Enterprises with foreign investment engaged in energy and transportation infrastructure will pay income tax at the reduced rate of 15 percent with approval from the State Bureau of Taxation.
8). In the interests of protecting the ecological environment, income from special products reverting cultivated land to forestry and grassland is exempt from special agricultural product tax for a period of ten years.
9). There are also preferential policies for land use and mineral resource exploration, promoting forest farming and grass planting on barren mountain slopes and fields, and the reverting of cultivated land to forest and grassland. Those who revert cultivated land to forest and grassland enjoy land use rights, as well as rights of ownership of forest or grassland. Economic entities and individuals may apply to utilize barren mountain slopes and fields according to legal procedures, plant trees and grass, and practice ecological environmental protection. Alternatively, they can be granted the land use rights directly from the state, in which case the land utilization fee will be either exempted or reduced. Land use rights will remain unchanged for a period of 50 years. On expiration of this period, application may be made for renewal of these rights. The granted rights of land use may be inherited, or transferred on payment of a transfer fee. The government supports activities involving mineral resource exploration, evaluation, rational utilization and protection.
10). Foreign investment is encouraged in agriculture, water conservancy, transportation, energy, ecological and environmental protection, tourism, mining, municipal engineering and other infrastructure projects in western China. The establishment of foreign-invested research and development centers are also encouraged, and will be given support in terms of funding for accessory projects and pertinent policies.
11). Trials in western China to utilize foreign capital through BOT and TOT methods are encouraged. The state supports enterprises in the encouraged and permitted categories in the west to attract foreign investment through assignment of operation right, offering equity interests and enterprise merger and reorganization.
9. What major achievements has China made in attracting foreign investment during the Ninth Five-Year Plan period (1996-2000)?
Attracting direct foreign investment is an essential component of the cardinal state policy of opening up and reform. China has made globally recognized achievements in attracting foreign investment since its reform and opening up. Since 1993 China has remained No. l destination for foreign investment among developing countries for seven years running. During the Eighth (1991-1995) and Ninth Five-Year Plan periods, the work of attracting foreign investment entered a new state, which featured high speed, large scale, and improved industrial structure and utilization of the investment.
Direct foreign investment has played a positive role in promoting China‘s economic development and opening up and reform. The contributions of foreign investment are as follows:
1). Bringing about rapid and sound development of the national economy. From 1996 to 2000, China cumulatively approved 104,621 foreign-invested enterprises, with a total foreign commitment of US$279.984 billion, of which US$213.480 billion was utilized, accounting for 28.75 percent, 41.41 percent and 61.28 percent of their respective total for the past 20 years since China‘s reform and opening up. The realized input of foreign investors accounted for 12.72 percent of China‘s total investment in fixed assets for the same period. The increased value of foreign-invested enterprises (this statistic started in 1998) reached 1,336.9 billion yuan (1998-2000), accounting for 20.87 percent of China‘s industrial increased value of the same period. The taxes derived from foreign-invested enterprises (exclusive of tariffs and land-use fees) amounted to 683.6 billion yuan, accounting for 12.54 percent of China‘s total industrial and commercial tax income, making these enterprises the fastest growing tax source since 1992. Foreign-invested enterprises have maintained as a whole a favorable foreign exchange balance, contributing to the improvement of balance of payment and stable increase of China‘s foreign exchange reserve. Currently, about 180,000 foreign-invested enterprises are in operation, employing around 20 million people, equivalent to 10 percent of China‘s non-agriculture labor force. Foreign-invested enterprises have become a key component, an increase point and a driving force of China‘s national economy.
2). Propelling emancipation of the mind, renovation of modes of thinking, reform in China‘s economic system and formation of China‘s market economy system. The inflow of foreign investment has brought in with it brand new business concepts and advanced managerial methods, and has helped break the traditional economic mold and injected vitality to the old economic system.
3). Introducing into China advanced and applicable technologies and managerial know-how, and accelerating the readjustment of economic structure and optimization of industrial structure. The advanced technologies, skills, equipment and products imported by foreign-invested enterprises have advanced the technological innovation of Chinese industries, and speeded up the readjustment of China‘s industrial structure and product patterns. The absorbed foreign investment has helped upgrade the products and improve the technology and production technique of Chinese industries, including machinery, electronics, communications, automobile, chemistry, light industry, textile, building materials, medicine and foodstuff. On the strength of foreign investment, some sectors have forged a number of new- and hi-tech industries in a short period, narrowing the gap between China and advanced countries in terms of product and technology. In the sectors concentrated with foreign investment, the foreign-invested enterprises excel their domestic counterparts in all key performance indexes.
4). Accelerating the integration of Chinese economy into the world economy, and promoting the establishment and development of an open economy. Foreign investment has helped sharpen the edge of China‘s import and export products in international competition, broaden the trade channels and speed up the growth of import and export trade. Since 1996 the export volume of foreign- invested enterprises has continued to account for above 40 percent of China‘s total export value. For the period from 1996 to 2000 the import and export value of foreign-invested enterprises stood at US$858.634 billion, making up nearly 50 percent of China‘s total foreign trade. The continuous import and export increase of foreign-invested enterprises has much bearing on the improvement of China‘s trade environment and balance between China‘s import and export.
5). Promoting China‘s bilateral and multilateral trade relations.
10. What impact may China‘s accession to the WTO have on foreign investment in China?
After joining the WTO, China will adapt its laws and regulations to conform to the WTO‘s fundamental rules, improve and develop China‘s socialist market economy, and create suitable conditions for fair competition between domestic and foreign enterprises. The Chinese government has committed itself to continuing opening its commodities market to the outside world, while simultaneously pushing forward the opening of its service industries. Technological innovation and the Western Development strategy provide a solid foundation for further improvement of foreign-invested industries and regional industrial structures. The policy series issued by the state government in 1999 to encourage foreign investment and increase export will also bring obvious results in foreign capital utilization. China‘s WTO access will provide more market opportunities and greater stability for foreign investment in China and a larger scope of economic and trade cooperation, as well as exerting a positive influence on future exploration and absorption of foreign capital.
11. What measures will the Chinese government take to expand the scale and enhance the level of foreign investment introduction in the Tenth Five-Year Plan (2001-2005)?
In its Tenth Five-Year Plan period, China will enter a new stage of reform and opening. On gaining WTO access, China will have still more opportunity to introduce foreign capital, technology and managerial experience, upgrade and optimize its industrial structure, and expand export. Meanwhile, China will face the severe challenge of fierce international competition. The Chinese government will continue to adopt measures to absorb foreign capital, in still larger amounts and for even better utilization, and continue to promote readjustment of its industrial structure and balance in regional economic development. The state will further regulate government administration and enterprise operation in line with international practice, and improve and optimize investment environment. The Chinese government will take the following steps to expand the scale and enhance the level of foreign investment introduction.
1). Foreign capital introduction will be closely linked with Western Development. In implementing the Western Development strategy, there will be more opportunity for foreign investment within infrastructure construction, environmental protection and technological development. The government will coordinate and encourage foreign-invested companies in China to re-invest in central and western regions. State level economic and technological development zones will fulfill a demonstration role in promoting successful working exchanges between the east and west. The state will push forward projects for piping gas and transmitting electricity from the west to the east, and meanwhile propel foreign investment input in accessory infrastructure facility construction. Various methods will be adopted to help people in western China be more open to new ideas and concepts and improve their investment environment.
2). Transnational companies will be encouraged to invest in high-tech industry and infrastructure. Effective measures will be adopted to encourage transnational companies to invest in the construction of R&D centers and regional headquarters. Foreign-invested enterprises will be encouraged to carry out technological innovation, improve their technological level and capacity for independent exploration, and train scientific and technological talent. Efforts will be also made to explore the utilization of risk investment, set up a Sino-foreign risk investment fund, promote the utilization of foreign capital in high technology, and advance China‘s industrial restructuring.
3). In accordance with China‘s commitment upon the entry of the WTO, China will push forward, step by step, the opening of banking, insurance, telecommunications, domestic and foreign trade and tourism to the outside world.
4). In the interests of keeping pace with the trend of global investment, China will explore the involvement of foreign investment through acquisition and merger in the reorganization and transformation of state-owned enterprises. International experience in acquisition and merger applied to state-owned enterprises will be studied for the formulation of rules and regulations regarding foreign purchase and merger of state-owned enterprises. The experience of foreign companies in participating in the transformation of state-owned enterprises by setting up joint ventures and introducing technology will be utilized to enhance modes of cooperation between state-owned enterprises and foreign businesses, particularly large transnational companies.
5). Existing economic rules and regulations will be re-examined, revised, improved and made more transparent. China will study carefully WTO regulations and take active moves to meet changes brought about by China‘s WTO membership on its legal system, management system, import and export administration and foreign exchange balance. Laws, regulations and policies on foreign investment will be re-examined in accordance with WTO requirements; the foreign investment approval and administration process will be upgraded in order to simplify the approval procedure and raise working efficiency. A new foreign investment industry policy will be formulated as soon as possible.
12. What are the changes in the new versions of the Law of the People‘s Republic of China on Chinese-Foreign Equity Joint Ventures, Law on Chinese-Foreign Contractual Joint Ventures, and Law on Wh
The Law of the People‘s Republic of China on Chinese-Foreign Equity Joint Ventures was adopted and promulgated by the second session of the Fifth NPC on July 1,1979. It was revised by the third session of the Seventh NPC in April 1990. The Law of the People‘s Republic of China on Chinese-Foreign Contractual Joint Ventures was adopted and promulgated by the first session of the Seventh NPC on April 13,1988. The Law of the People‘s Republic of China on Wholly Foreign-Owned Enterprises was adopted and promulgated by the fourth session of the Sixth NPC on April 12,1986. The three laws have played a significant role in implementing the opening policy, attracting foreign investment, and expanding economic cooperation and technology exchanges with foreign countries since they were issued.
In view of the continued reform and opening up and steady development of the national economy, and in order to adapt to the process of China‘s entry into the WTO, to make the three laws more in conformity with China‘s reform and opening up, and to establish a socialist market economy legal system within the framework of international practices and rules, after examination and approval by the NPC Standing Committee in 2000, the following revisions were made to the Law of the People‘s Republic of China on Chinese-Foreign Contractual Joint Ventures and the Law of the People‘s Republic of China on Wholly Foreign-Owned Enterprises:
1). Articles about the balance of foreign exchange account
a. Article 20 of the Law of the People‘s Republic of China on Chinese-Foreign Contractual Joint Ventures was deleted, which says: "A contractual joint venture shall keep balance between its foreign exchange income and expenses. It may apply to the relevant authorities for assistance in accordance with the state provisions if it has difficulty in balancing its foreign exchange account."
b. Section 3, Article 18 of the Law of the People‘s Republic of China on Wholly Foreign-Owned Enterprises was deleted, which says: "Wholly foreign-owned enterprises shall reach by themselves the balance of foreign exchange receipts and disbursements. In case that the relevant authority in charge approved the sale in China of the products of the enterprises which results in an imbalance of foreign exchange receipts and disbursements of such enterprises, the authority that has approved of the sale shall be responsible for resolving such imbalance."
2). Article about "localization of supplies"
Article 15 of the Law of the People‘s Republic of China on Wholly Foreign-Owned Enterprises is changed to: "Supplies, such as raw materials and fuel, required by wholly foreign-owned enterprise within the approved scope of operation may be purchased, according to the principal of fairness and justice, on the domestic or the international market." The previous stipulation, "may be purchased in China to the extent possible," is deleted.
3). Requirement on export achievement
Section 1, Article 3 of the Law of the People‘s Republic of China on Wholly Foreign-Owned Enterprises is changed to: "The establishment of wholly foreign-owned enterprises must be beneficial to the development of the Chinese national economy. The state encourages the establishment of export-oriented and technologically advanced wholly foreign-owned enterprises." The stipulation on the establishment of wholly foreign-owned enterprises which must "use advanced technology and equipment and export all or a greater portion of their products" is deleted.
4). Articles on recordation of enterprises‘ production plans
Section 1, Article 11 of the Law of the People‘s Republic of China on Wholly Foreign-Owned Enterprises is deleted, which says: "A wholly foreign-owned enterprise shall report their production and operation plans to the department in charge for record."
The Law of the People‘s Republic of China on Chinese-Foreign Equity Joint Ventures was revised in March 2001. Changes are made to eight places. In one revision, the original stipulation said, "In its purchase of required raw and semi-processed materials, fuels, auxiliary equipment, etc., an equity joint venture shall give first priority to Chinese sources, but may also acquire them directly from the international market with its own foreign exchange funds." The new stipulation says, "Supplies, such as raw materials and fuel, required by an equity joint venture within the approved scope of operation may be purchased, according to the principal of fairness and justice, on the domestic or the international market."
13. What are the regulations concerning labor management of foreign-invested enterprises? (1)
In order to guarantee the legitimate rights and interests of foreign-invested enterprises and their employees, the Chinese government has formulated the Regulations of the Labor Management in Foreign-Invested Enterprises, making stipulations concerning employee recruitment and training, vacation and leave, and salaries, etc.
1). Protecting the Legitimate Rights and Interests of Foreign-invested Enterprises
According to relevant state laws and administrative regulations, these enterprises can make autonomous decisions regarding the timing, conditions, methods and size of employment. These enterprises can recruit their employees from employment service centers recognized by local labor authorities where the enterprises are located, or, with the approval of local labor authorities, may recruit employees directly or from other regions.
These enterprises shall recruit Chinese employees within the territory of China. In case where employment of foreign nationals or residents from Taiwan, Hong Kong and Macao is necessary, approval from the local labor administration shall be obtained, and formalities, including an employment certificate, shall be completed in accordance with the relevant state regulations.
The enterprises should establish the labor contract in a written form with individual employees. The enterprises may terminate the labor contract if an employee does not meet the job qualifications during the probation period, or fails to execute the labor contract, or severely violates labor disciplines or other bylaws of the enterprises, or receives sentences for imprisonment or labor education.
2). Protecting the Legitimate Rights and Interests of the Employees of Foreign-invested Enterprises
These enterprises must participate in social insurance scenarios for pension, unemployment, health care, work-related injuries, and maternal leave in accordance with relevant state regulations. They must pay the full amount of social insurance premiums to social insurance agencies in time. The accounting of expenses on social insurance shall follow relevant state regulations. Individual employees are required to pay pension premium accordingly.
These enterprises should establish the Employment and Pension Manuals to record their employees‘ length of employment, salary, and premium and insurance payment on pension, unemployment, work-related injuries, and health care.
These enterprises should set up a professional training scenario for their employees. Employees cannot start on a technical job, or a job requiring special skills unless properly trained and holding a certificate.
The trade union (or employees‘ representatives in the absence of the former) may establish a collective contract with the enterprise through consultation and negotiation on such matters as work remuneration, work hours, vacations, workplace safety and hygiene, and insurance and welfare on behalf of the employees. The contents of labor contracts and collective contracts shall not contradict the state‘s laws and regulations. The enterprise shall pay a one-time subsistence allowance to an employee whose labor contract is terminated, and provide medical subsidies in addition to the one-time allowance in certain special circumstances.
In the following conditions, an enterprise cannot terminate the labor contract of an employee: (a) the employee is confirmed of loss or partial loss of working ability due to an occupational disease or work-related injury; (b) the employee‘s specified treatment period has not expired; or (c) a female employee is in pregnancy, maternal leave or breast-feeding period. In case the employee intends to terminate the contract due to an occupational disease or work-related injury, the enterprise shall pay the social insurance agency an employment rearrangement fee for work-related disabilities according to local regulations.
14. What are the specific regulations concerning the investment within China of foreign-invested enterprises? Will they continue to enjoy the preferential treatment given to foreign-invested enter (1)
According to the Interim Provisions Concerning the Investment within China of Foreign-invested Enterprises jointly issued by the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce, investment within China of foreign-invested enterprises refers to Sino-foreign equity joint ventures, Sino-foreign contractual joint ventures and wholly foreign-owned enterprises which are established within China according to law in the form of a limited liability company, as well as the establishment of enterprises in their own name, or purchase of equity shares from other enterprises (hereinafter referred to as "invested companies") within China by foreign-invested joint stock companies limited.
1). Conditions for a foreign-invested enterprise to make investment in China
a. Its registered capital has been paid off;
b. It has started to make profits;
c. It has been conducting business operations according to law and has no track record of illegal business operations.
d. The cumulative amount of investment within China made by a foreign-invested enterprise shall not exceed 50 percent of its net assets; in the wake of investment, the amount of the capital increase from the profits of the invested company is not included here.
e. For investment within China, foreign-invested enterprises should, for reference, consult the Interim Provisions for Guiding Foreign Investment and the Industrial Catalogue for Foreign Investment. Foreign-invested enterprises shall not make investments in the fields in which foreign investment is prohibited.
2). Examination and Approval Procedures
a. To establish a company in the encouraged or permitted categories, a foreign-invested enterprise shall file an application with the company registration authorities in the locality where the invested company is to be located. The company registration authorities shall, in accordance with the relevant stipulations of the Company Law and the Rules for the Administration of Company Registration of the People‘s Republic of China, decide whether to grant registration or not. Should registration be granted, a Business License of the Enterprise Legal Person is issued, and the note of "investment by foreign-invested enterprise" is added in the column of enterprise classification [hereinafter abbreviated as (annotated) Business License].
b. To establish a company in the restricted category, a foreign-invested enterprise shall file an application with the authorities for foreign trade and economic cooperation at the provincial level in the locality where the invested company is to be located. Upon receipt of the above-mentioned application, the examination and ratification department at the provincial level shall, in line with the invested company‘s scope of business operations, consult the opinion of the regulatory authorities at the same level or at the national level.
If the examination and ratification department at the provincial level gives permit to a foreign-invested enterprise, the enterprise shall, upon presentation of the permit, file an application for registration with the company registration department in the locality where the invested company is to be located.
The company registration department shall, in accordance with the relevant stipulations of the Rules for the Administration of Company Registration, decide whether to grant registration or not. Should registration be granted, a (annotated) Business License will be issued.
c. In cases where a foreign-invested enterprise purchases equity shares from the invested company whose scope of business falls into the encouraged or permitted categories, the invested company shall file an application for registration alteration with the previous registration department.
In cases where the invested company‘s scope of business involves fields in the restricted category, the foreign-invested company shall go through the procedures specified in Item b. The invested company shall, upon presentation of the permit by the examination and ratification department at the provincial level, file an application with the previous company registration department for registration alteration.
15. What are the rules for foreign businesspeople to invest in investment companies? (1)
To encourage transnational companies to invest in China and attract advanced foreign technology and management experience, the Ministry of Foreign Trade and Economic Cooperation promulgated in April 1995 Provincial Regulations Concerning Establishment of Foreign-funded Investment Companies (hereafter referred to as the Provisional Regulations), permitting foreign investors to establish investment companies in China. In August 1999, the Ministry of Foreign Trade and Economic Cooperation made amendments to the Provisional Regulations in order to expand the functions of such investment companies.
1). Conditions for Establishing Investment Companies
a. An applicant foreign investor should have sound credit and economic strength required for the establishment of an investment company. Its total assets in the year prior to the application should be no less than US$400 million. In addition, the foreign investor should have already established a foreign-funded enterprise within the territory of China, have paid in a minimum of US$10 million in registered capital, and receive approval for a minimum of three of its investment project proposals.
Or, the applicant foreign investor, with sound credit and economic strength required for the establishment of an investment company, has already established a minimum of 10 foreign-funded enterprises engaged in manufacturing or infrastructure construction within the territory of China and has paid in a minimum of US$30 million in registered capital.
b. For a joint venture investment company, the Chinese investor should have sound credit and economic strength required for the establishment of an investment company. Its total assets should be no less than 100 million yuan.
c. The registered capital of an investment company should be no less than US$30 million.
2). Regulations on Registered Capital
The foreign investor should make its investment in convertible currency for registered capital. The Chinese investor can use Renminbi yuan. The investors should pay off the registered capital within two years beginning from the issuance date of the business license.
3). Business Scope
An investment company can embark on the following operations, entirely or partially, upon approval:
a. Make investment in industry, agriculture, infrastructure and energy encouraged and permitted by the state for foreign investment;
b. Assist or act as an agent of its invested enterprises to purchase domestically or internationally machines and office equipment for use by the invested enterprises, and raw materials, components and parts needed in the production activities of the invested enterprises;
c. Sell, as agents or distributors, domestically or internationally, products produced by the invested enterprises, and provide after-sale services;
d. Purchase and export commodities from within Chinese territory that are not subject to export quotas or the export permits;
e. Provide comprehensive services, such as transportation and storage, for the invested enterprises, and assist them in recruiting personnel, providing technical training, market development and consultation;
f. Set up research and development centers or offices in China to develop new products and high and new technologies, transfer its research and development achievements, and provide related technological services;
g. Balance foreign exchange among its invested enterprises under the permit and supervision of the foreign exchange administration;
h. Assist its invested enterprises in finding loans and provide guarantee, and the amount of loans to an investment company should not exceed four times the registered capital the company has paid in;
i. Provide consultation for its investors; and
j. Provide financial support to its invested enterprises with the approval of the People‘s Bank of China.
16. What are the rules for foreign shipping companies to set up their solely owned companies in China?
To regulate investment and operation of foreign shipping companies in China and protect the legitimate rights and interests of investors, the Chinese Ministry of Communications and the Ministry of Foreign Trade and Economic Cooperation have promulgated the Provisional Regulations on the Examination and Approval of Wholly Foreign-funded Shipping Companies, permitting foreign shipping companies to set up wholly owned shipping companies in China. Major stipulations are as follows:
1). An applicant for the establishment of a wholly owned shipping company must meet the following requirements:
a. It should have experience of no less than 15 years in shipping business;
b. It should have had a permanent representative office approved by the Ministry of Communications for no less than three years in the port city where the solely owned shipping company is to be located;
c. Its regular passenger or cargo ship should call no less than once a month at a harbor in the city where the solely owned shipping company is to be located (those who operate shipping routes in the forms of joint consignment, shipping space swap and joint operation and who have obtained operation permits for such routes are deemed to have met the relevant requirements);
Foreign shipping businesses that are engaged in tramp transport should have a stable source of shipment in China.
d. Its operations in China are free for two successive years from any violation of the Chinese laws, administrative statutes and relevant regulations.
2). To apply for the establishment of a wholly owned shipping company, the applicant should submit the following documents:
a. Application;
b. Feasibility study report;
c. Articles of corporation;
d. Legal documents and credit status documents of the applicant;
e. A letter of entrustment from the legal representative of the wholly owned shipping company and the name list and resume of the members of the Board of Directors;
f. Sample of the bill of lading;
g. Xeroxed copy of the permit for operating shipping routes and documents approving the permanent representative office; and
h. Other documents requested by the Ministry of Foreign Trade and Economic Cooperation and the Ministry of Communications.
3). Rules and Procedures for Examination and Approval
a. The application by a foreign shipping business for the establishment of a wholly owned shipping company in China must be examined and approved in accordance with the shipping agreement between the Chinese government and the government of the foreign shipping business and pertinent legal documents.
b. The Ministry of Foreign Trade and Economic Cooperation and the Ministry of Communications are authorized to examine and approve foreign shipping companies‘ applications for the establishment of wholly owned shipping companies in China.
c. Applicants should submit required documents to the responsible department of foreign trade and economic cooperation in the host province, autonomous regions and municipalities directly under the central government, which will conduct a preliminary examination of the submitted documents and then forward the applications that have passed the preliminary examination to the Ministry of Foreign Trade and Economic Cooperation for further examination and approval, with a copy to the Ministry of Communications.
d. The Ministry of Foreign Trade and Economic Cooperation will examine the forwarded documents and consult with the Ministry of Communications. After reaching a consensus, the Ministry of Foreign Trade and Economic Cooperation will issue a permit, by means of which the applicant receives the Approval Certificate for Enterprises with Foreign Investment.
e. After the application is approved, the applicant should register with and get a business license from the administration of industry and commerce within the stipulated period of time and obtain an operation permit from the Ministry of Communications for a wholly foreign-funded shipping company prior to commencing its operations.
4). Business Scope and Registered Capital
The approved wholly foreign-funded shipping company or its branch is allowed to conduct the following business activities for its parent company: cargo solicitation, signing the bill of lading, freight clearance, and signing service contracts.
The registered capital of a wholly foreign-funded shipping company should be no less than US$1 million.
5). A wholly foreign-funded shipping company is allowed to establish branches in other port cities, as long as the following requirements are met:
a. The registered capital of the wholly foreign-funded shipping company has been paid off and the company has been in operation for a full year;
b. The parent company has liners (including joint consignment, shipping space swap and joint operation) that call the port city where the branch is to be located;
c. The parent company has had a permanent representative office approved by the Ministry of Communications for no less than a year in the port city where the branch is to be located;
d. The operations in China of the wholly foreign-funded shipping company and the parent company are free for one year from any violation of the Chinese laws, administrative statutes and relevant regulations; and
e. The wholly foreign-funded shipping company should add US$120,000 to its registered capital for each branch it establishes.
17. What are the conditions for establishing Chinese-foreign equity and contractual joint venture medical institutions within Chinese territory?
To meet the needs of the reform and opening-up, and to promote healthy development of Chinese medical and public health undertakings, the Ministry of Health and the Ministry of Foreign Trade and Economic Cooperation have promulgated Provisional Measures for the Administration of Chinese-Foreign Equity and Contractual Joint Venture Medical Institutions, in accordance with laws and regulations concerning foreign investment and the Administrative Regulations of Medical Institutions. The Measures permit foreign medical institutions, companies, enterprises and other economic organizations to cooperate with Chinese medical institutions, companies, enterprises and other economic organizations to set up medical institutions in form of equity and contractual joint ventures.
Conditions for the establishment of Chinese-foreign equity and contractual joint venture medical institutions:
1). The establishment and development of Chinese-foreign equity and contractual joint venture medical institutions must be in conformity with the regional public health planning and medical institution establishment planning of the area concerned, and must follow the Basic Standards for Medical Institutions, stipulated by the Ministry of Health.
2). The Chinese and foreign parties applying for the establishment of Chinese-foreign equity and contractual joint venture medical institutions should be legal persons or entities capable of independently assuming civil liabilities. The said Chinese and foreign parties should have direct or indirect experience in the investment and management of medical and health undertakings and should meet one of the following requirements:
a. The capacity to provide world-advanced medical institution management experience, and management and service models;
b. The capacity to provide world-advanced medical technologies and equipment; and
c. The capacity to supplement and improve the medical services, capabilities, technologies, funding and facilities of a given area.
3). The Chinese-foreign equity and contractual joint venture medical institution to be established must meet the following requirements:
a. It must be an independent legal person;
b. The total investment should be no less than 20 million yuan;
c. The Chinese party involved should hold an equity share of no less than 30 percent in the Chinese-foreign equity and contractual joint venture medical institution;
d. The period of the joint venture or cooperation should not exceed 20 years; and
e. Other conditions set by the health administrations at and above the provincial level.
4). The Chinese party involved that makes its investment in the form of state assets (including evaluation-based contribution or using the state assets as conditions for cooperation) must obtain approval from the relevant departments and must, in accordance with the regulations concerning the state assets assessment management, have the state assets to be invested evaluated by an evaluation agency recognized by the state assets management authorities. The result of an evaluation confirmed by the state assets management authorities at the provincial level or higher may be used as the basis of the pricing of the state assets to be invested.
18. What are the rules for establishing foreign-funded commercial enterprises in China? (1)(1)
To expand the opening-up drive, to promote the reform and development of Chinese commercial enterprises and construction of the domestic market, and to facilitate the experiments with the utilization of foreign investment in the commercial sector, the State Economic and Trade Commission and the Ministry of Foreign Trade and Economic Cooperation have worked out and promulgated Experimental Measures for Foreign-funded Commercial Enterprises. Currently, the Measures only permit foreign companies and enterprises to set up with Chinese companies and enterprises Chinese-foreign equity and contractual joint venture commercial enterprises in China. Wholly foreign-invested commercial enterprises are not allowed yet. Major stipulations are as follows:
1). The equity and contractual joint venture commercial enterprises to be established must comply with the commercial development plan of the locale city and should have the capacity to introduce world-advanced marketing techniques and management experience, advance local commercial modernization, propel exportation of domestic products and produce good economic and social results.
2). As stipulated by the State Council, the areas where equity and contractual joint venture commercial enterprises may be established are limited temporarily to provincial capital cities, capitals of autonomous regions, municipalities directly tender the jurisdiction of the central government, cities listed as independent units in the state plan, and special economic zones (hereafter referred to as pilot areas).
3). Investors in commercial joint ventures should meet the following requirements:
a. Foreign joint ventures or main foreign joint ventures (hereafter referred to as foreign joint ventures) should have comparatively high economic strength, advanced management experience and marketing techniques in commercial operations, broad international distribution channels, sound credit and good performance. In addition, they should help promote Chinese exports through the establishment of their joint ventures.
Foreign joint ventures applying foe‘ the establishment of joint ventures operating retail business should record all average annual sales volume of US$2.0 billion or more in the three years prior to the year of the application and should have assets of no less than US$200 million in the year prior to the year of the application.
Foreign joint ventures applying for the establishment of joint ventures operating wholesale business should record an average annual wholesale volume of US$2.5 billion or more in the three years prior to the year of the application and should have assets of no less than US$300 million in the year prior to the year of the application.
b. Chinese joint ventures or main Chinese joint ventures (hereafter referred to as Chinese joint ventures) should be distribution enterprises with comparatively high economic strength and operation capacities. The amount of their assets in the year prior to the application should be more than 50 million yuan (30 million yuan for central and western regions). For Chinese joint ventures who are commercial enterprises, the average annual sales volume in the three years prior to the application should be no less than 300 million yuan (200 million yuan for central and western regions). For foreign trade enterprises, the average annual self-operated export and import volume should be no less than US$50 million (exports should amount to no less than US$30 million).
4). Equity and contractual joint venture commercial enterprises should meet the following requirements:
a. Compliance with the relevant Chinese laws, statutes and regulations;
b. Compliance with the commercial development plan of the locale city;
c. The registered capital of the joint ventures engaged in retail business should be no less than 50 million yuan, and for central and western regions, no less than 30 million yuan. The registered capital of the joint ventures engaged in wholesale business should be no less than 80 million yuan, and for central and western regions, no less than 60 million yuan.
18. What are the rules for establishing foreign-funded commercial enterprises in China? (2)
5). Business Scope
Retail
a. Retail operations (including commissioned and postal retail);
b. Organization of domestic products for export;
c. Self-initiated commodity export and import; and
d. Pertinent supporting services.
Wholesale
Wholesale of domestic products, domestic wholesale of self-initiated imports and organization of domestic products for export.
Equity and contractual joint venture commercial enterprises that are engaged in retail business can handle wholesale upon approval, but cannot conduct agent business for import and export.
6). Examination and Approval Procedures
a. The Chinese joint venture should submit the feasibility study report (in place of project proposal) and relevant documents to the economic and trade commission of the locale pilot area, which will handle the report in cooperation with the responsible domestic trade department and forward it to the State Economic and Trade Commission in accordance with stipulated procedures. On receipt, the State Economic and Trade Commission will examine the report and decide whether to approve it or not after consultation with the Ministry of Foreign Trade and Economic Cooperation.
b. After the feasibility study report (in place of project proposal) is approved, the foreign trade and economy department of the locale pilot area will submit, in accordance with stipulated procedures, the contract and articles of corporation of the applicant joint venture to the Ministry of Foreign Trade and Economic Cooperation for approval.
c. The approved joint venture should go through registration formalities with the State Administration for Industry and Commerce within a month of the issuance of the Approval Certificate.
d. For existent equity and contractual joint venture commercial enterprises that apply for concurrent wholesale business, opening of branches, or change of partners, the Ministry of Foreign Trade and Economic Cooperation will examine such applications and decide whether to approve or not after consultation with the State Economic and Trade Commission. Other alterations should be examined and sanctioned by the previous examination and ratification authorities, in accordance with existent laws and regulations concerning foreign investment.
7). Others
a. State-owned commercial enterprises in equity and contractual joint venture commercial projects shall put their physical and non-physical assets to scientific and just assessment by an evaluation agency recognized by the state assets management authorities in accordance with Administrative Measures on the Evaluation of State-owned Assets. The result of an evaluation confirmed by the state assets management authorities at the provincial level or higher may be used as the basis for the pricing of the state assets to be invested.
b. The equity and contractual joint venture commercial enterprises that deal in commodities subject to special state regulations, or in import and export commodities subject to quotas or permit requirements should go through examination and approval procedures in accordance with relevant regulations.
c. The total value of import commodities of an equity or a contractual joint venture commercial enterprise cannot exceed 30 percent of its current year sales value.
19. What are the regulations concerning taxes for enterprises with foreign investment and foreign enterprises engaged in consultation business?
In recent years more and more foreign accounting offices, auditing companies, law firms and consulting companies (hereinafter referred to as consultation enterprises) have come to China to conduct taxation, accounting, auditing, law and consulting businesses (hereinafter referred to as consultation business or services). Some overseas consultation enterprises have set up in China enterprises with foreign investment that are engaged in consultation business, and some have set up representative offices in China. In some cases, overseas consultation enterprises participate in consultation business in China by sending personnel directly to China to do the business, or cooperating with consultation enterprises with foreign investment or representative offices in China. To standardize taxation management, the State Bureau of Taxation issued on May 12, 2000 the Circular concerning Taxes for Enterprises with Foreign Investment and Foreign Enterprises Engaged in Consultation Business (Guo Shui Fa [2000] No.82), which regulates the taxation on incomes obtained by foreign-invested enterprises, representative offices and overseas consulting businesses from consulting activities in China.
1). Taxation on incomes obtained from consulting activities by enterprises with foreign investment and representative offices in China
All the income from consultation business based on individual contracts between enterprises with foreign investment, or representative offices, with their customers (including those signed by a representative office on behalf of its head office, but actually fulfilled by the representative office) shall be entered as the income of the said enterprises or representative offices, and shall be reported for business and income taxes at the place where the said enterprises and representative offices are located.
2). Taxation on incomes obtained from consultation services provided to customers on individual basis by overseas consultative enterprises
All the income obtained by an overseas consultative business from consultation services that take place in China and based on individual contracts with its customers shall be reported and levied with business and income taxes in China. When the services provided take place both inside and outside China, the income shall be segmented into a domestic and an international part according to the places where the services occur, and the domestic part of income shall be reported in China for taxation. Generally, when the customer of the said consultative business is within the territory of China, the domestic part of the income should be no less than 60 percent of the total.
If all the consultation services take place outside of China, no taxes on the income will be levied in China.
3). Taxation on incomes from consultation business jointly conducted by overseas consultation companies and enterprises with foreign investment or representative offices in China
When an overseas consultation company signs a contract and conducts consulting business jointly with a domestic foreign-invested enterprise or representative office in China, the income so obtained should be segmented in accordance with the individual involvement of each party or stipulations of the contract. The foreign-invested enterprise or the representative office shall report its share of the income for business and income taxes. In cases where the customer of the joint consultation conducted by the overseas consultation enterprise and the domestic foreign-invested enterprise, or the representative office, resides within the Chinese territory, the share of income taken by the domestic foreign-invested enterprise and the representative office shall not be lower than 60 percent of the total income.
In cases where the overseas enterprise sends personnel to China to participate in the said consultation business, its income share shall again be segmented according to places of occurrence into a domestic part, which should be no less than 50 percent of its total share and should be reported for business and income taxes in China.
20. Are foreign businesses allowed to invest in cinemas? What are the relevant regulations?
In the interests of opening up and reform, attracting foreign capital, importing advanced technology and equipment, and invigorating China‘s film industry, the State Administration of Radio, Film and Television, the Ministry of Foreign Trade and Economic Cooperation, and the Ministry of Culture promulgated in October 2000 the Interim Provisions on Foreign Investment in Cinemas. This was executed in line with relevant laws and regulations, including the Law of the People‘s Republic of China on Chinese-Foreign Equity Joint Ventures, the Law of the People‘s Republic of China on Chinese-Foreign Contractual Joint Ventures, and the Film Administration Regulations. According to the Interim Provisions, foreign companies, enterprises and other economic organizations or individuals (the foreign partner) are permitted to establish with Chinese companies and enterprises (the Chinese partner) Chinese-foreign equity joint ventures and Chinese-foreign contractual joint ventures in China to engage in the construction and renovation of cinemas and in film projection business. For the time being, wholly foreign-owned cinemas are not permitted in China.
1). Foreign-invested cinemas are subject to the following requirements:
a. They must conform to the planning and overall arrangement of the local cultural facilities;
b. Their registered capital must be no less than 10 million yuan;
c. They must have fixed business (projection) premises;
d. No Chinese-foreign equity or contractual joint venture cinemas shall be named after a foreign film and television (media) business or cinema;
e. The proportion of the Chinese investment in the registered capital of an equity joint venture cinema should be no less than 51 percent. For a contractual Sino-foreign joint venture cinema, the Chinese partner should have the leading operation right.
f. The duration of the Chinese-foreign equity or contractual joint ventures shall be no longer than 30 years;
g. They must conform to the relevant laws and regulations of China.
2). The following procedures shall be followed for the establishment of foreign-invested cinemas:
a. The Chinese party of the joint venture should file an application with the provincial-level foreign trade and economic cooperation department of the locality where the joint venture is to be located and submit the following documents:
(1). Project application;
(2). Legal status and credit status documents of the Chinese partner and documents on the land-use rights of the joint venture cinema;
(3). Legal status document, credit status document provided by a bank and financial status document provided by an accounting firm of the foreign partner;
(4). Notice of approval of the name of the foreign-invested cinema issued by the administrative department for industry and commerce;
(5). Feasibility study report, contract and articles of corporation;
(6). Other documents as required by relevant laws, regulations and the examination and ratification authorities.
b. The locale provincial-level authorities of foreign trade and economic cooperation shall, after soliciting the opinions of the provincial-level film administration, submit its approval to the Ministry of Foreign Trade and Economic Cooperation.
c. After soliciting the opinions of the State Administration of Radio, Film and Television and the Ministry of Culture, the Ministry of Foreign Trade and Economic Cooperation shall carry out an examination in line with the relevant laws and regulations concerning foreign investment, and, upon approval, shall issue an Approval Certificate for Enterprises with Foreign Investment confirming the eligibility of the relevant venture.
d. The approved foreign-invested cinema shall, within one month from the date of receipt of the Approval Certificate for Enterprises with Foreign Investment issued by the Ministry of Foreign Trade and Economic Cooperation, undergo registration formalities with the state administrative department for industry and commerce.
e. When construction or renovation of a foreign-invested cinema has been completed and passed acceptance check by relevant departments, the foreign-invested cinema shall, with its Approval Certificate for Enterprises with Foreign Investment, and its business license, apply with the film administration department of the locale provincial government for a film projection business permit before commencing film projection business.
3). Other stipulations
a. Foreign-invested cinemas shall comply with relevant laws and regulations of China, operate according to the Film Administration Regulations, and be subject to the supervision and administration of the relevant departments of the Chinese government. A permit for public film projection is prerequisite for all films screened. The cinemas are not allowed to show pirated or smuggled films, nor to show videos, VCDs and DVDs for profit.
b. State-owned assets contributed in the form of investment by the Chinese partner in the joint venture shall be assessed according to the relevant regulations of the state-owned assets assessment administration, and reported to the state-owned assets management authorities at or above the provincial level for confirmation.
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