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Announcement No.12 [2015] of the Ministry of Commerce on the Measures for Administration of the Filling of Foreign-Invested Enterprises in the Pilot Free Trade Zones (Trial )
2017-12-07

Announcement No.12 [2015] of the Ministry of Commerce on the Measures for Administration of the Filling of Foreign-Invested Enterprises in the Pilot Free Trade Zones (Trial )

 

[Issuance Unit] Ministry of Commerce of the Peoples Republic of China

[Issuance No.] No.12 [2015]

[Issuance Date] April 8th, 2015

 

For the purposes of further opening up to the outside world, boosting the reform of the foreign investment management system and creating an internationalized, legalized and market-oriented business environment in the Pilot Free Trade Zones (hereinafter referred to as FTZ), authorized by the Standing Committee of the National Peoples Congress, the State Council decided to implement the management mode of pre-establishment national treatment (PENT) with a negative list in the FTZ. In order to meet the requirements of the new foreign investment management model and regulate the filling work for foreign-invested enterprises, we hereby issue and print the Measures for Administration of the Filling for Foreign-Invested Enterprises in Pilot Free Trade Zones (Trial), which shall be implemented 30 days after the date of issuance.

Ministry of Commerce of the Peoples Republic of China

April 8th, 2015


Measures for Administration of the Filling of Foreign-Invested Enterprises in the Pilot Free Trade Zones (Trial)

 

Article 1 For the purposes of further opening up to the outside world, boosting the reform of the foreign investment management system, and creating an internationalized, legalized and market-oriented business environment in the China (Guangdong) Pilot Free Trade Zone, China (Tianjin) Pilot Free Trade Zone, China (Fujian) Pilot Free Trade Zone and China (Shanghai) Pilot Free Trade Zone (hereinafter referred to as FTZ), these Measures are formulated in accordance with the Decision of the NPC Standing Committee on Authorizing the State Council to Temporarily Adjust the Administrative Approval under relevant Laws in the China (Shanghai) Pilot Free Trade Zone, the Decision of the NPC Standing Committee on Authorizing the State Council to Temporarily Adjust the Administrative Approval under relevant Laws in the China (Guangdong) Pilot Free Trade Zone, China (Tianjin) Pilot Free Trade Zone, China (Fujian) Pilot Free Trade Zone and China (Shanghai) Pilot Free Trade Zone, and other relevant laws, administrative regulations and decisions of the State Council.

Article 2 These Measures are applicable to the establishment and modification (hereinafter referred to as Investment Implementation), and the filling of the contracts and articles of association of foreign-invested enterprises other than those set out in the Special Administrative Measures for the Access of Foreign Investment in the FTZ (Negative List). Where the laws, administrative regulations and decisions of the State of Council have other provisions, such provisions shall prevail.

The date of Investment Implementation for foreign-invested enterprises shall be the same date their business licenses are issued. In the event that the foreign-invested enterprise makes modification to any registration items, which results in the issuance of a new business license, the date of Investment Implementation shall be the same date the new business license is issued. In the event that the foreign-invested enterprise makes modification to any registration items, which does not result in the issuance of a new business license, the date of Investment Implementation shall be the same date the modification occurs.

Article 3 The Administrative Authority of the FTZ (hereinafter referred to as Filling Authority ) shall be responsible for the administration of the filling of foreign-invested enterprises to the extent of its authority.

The Filling Authority shall conduct filling for foreign-invested enterprises (including Foreign/Hong Kong, Macao and Taiwan-Invested Enterprises) through the foreign investment filling system of the Ministry of Commerce of the Peoples Republic of China (hereinafter referred to as Filling System).

Article 4 If an investor intends to establish a foreign-invested enterprise in the FTZ, which is within the scope of filling as prescribed in these Measures, it shall, with the pre-approval of the enterprise name, log in the one-off acceptance platform for foreign investment in the FTZ (hereinafter referred to as Acceptance Platform) to complete and submit the Declaration Form for the Filling of the Establishment of Foreign-Invested Enterprises (hereinafter referred to as the Declaration Form for Establishment) online before the date of Investment Implementation or within 30 days after the date of Investment Implementation.

Article 5 If a foreign-invested enterprise which is within the scope of filing as prescribed in these Measures undergoes any of the following modifications, it shall complete and submit the Declaration Form for the Filing of the Modification of Foreign-Invested Enterprises (hereinafter referred to as Declaration Form for Modification) online before the date of Investment Implementation or within 30 days after the date of Investment Implementation.

1 A modification of the total amount of investment;
  2 A modification of the registered capital;
  (3 A modification or transfer of equity and cooperation interests;
  (4 Equity pledge;
  (5 Merger or division;
  (6 A modification of the business scope;
  (7 A modification of the operation period;
  (8 Early termination;
  (9A modification of the contribution mode or time limit;
  (10In case of Sino-Foreign joint cooperative enterprise, early divestment by the foreign party;
  11A modification of the enterprise name; and
  (12A modification of the registered address.

If it is required by relevant laws and regulations to make announcement for modification, announcement procedures shall be gone through according to relevant laws.

Article 6 If a foreign-invested enterprise under filling administration has any modification that requires further examination and approval by relevant departments, it shall go through the examination and approval procedures in accordance with relevant administrative regulations on foreign-invested enterprises.

Article 7 If a foreign-invested enterprise established in the FTZ or moving in to the FTZ before the implementation of these Measures undergoes any modification, which is within the scope of filing as prescribed in these Measures, it shall go through modification filing procedures and hand in the Approval Certificate for Foreign-Invested Enterprises (Foreign/ Hongkong, Maocao and Taiwan-Invested Enterprise) to the Filing Authority for cancellation.

Article 8 When submitting the Declaration Form for Establishment or Declaration Form for Modification, the foreign investor or foreign-invested enterprise shall commit that the declared information is true, complete and effective and that the declared investment project is in compliance with relevant laws and regulations. 

Article 9 After the foreign investor or foreign-invested enterprise submits the Declaration Form for Establishment or Declaration Form for Modification online, the Filing Authority shall check to see whether the declared item falls within the scope of filing as prescribed in these Measures. If the declared item falls within the scope of filing as prescribed in these Measures, the filing Authority shall complete the filing within three days after the foreign investor or foreign-invested enterprise submits the form, and send a notice to the investor or foreign-invested enterprise advising that the filing procedure is completed. If the declared item does not fall within the scope of filing as prescribed in these Measures, the Filing Authority shall send a notice to the foreign investor or foreign-invested enterprise advising them to go through examination and approval procedures in accordance with relevant regulations.

Article 10 The Filing Authority shall timely release the filing result on the filing system and share it with the Acceptance Platform.

Article 11 After receiving a notice from the Filing Authority that the filing procedure is completed, the foreign investor or the foreign invested enterprise can request a Foreign/Hong Kong, Macao and Taiwan-Invested Enterprise Filing Certificate of the China Pilot Free Trade Zone (hereinafter referred to as Filing Certificate) from the Filing Authority. Meanwhile, it shall submit the following materials.

(1) The photocopies of Notice of the Pre-approval of the Enterprise Name;

(2) The original Declaration Form for Establishment sealed and signed by the foreign investor or its authorized representative, or the original Declaration Form for Modification sealed and signed by the foreign-invested enterprise or its authorized representative;

(3) The photocopies of certificates on the legal status of the foreign investor and the actual controller of the foreign-invested enterprises, or the photocopies of their identity certificates.

Article 12 The foreign-invested enterprise established in the FTZ shall log in the filing system before June 30th every year to complete the Annual Report on the Operation Status of Foreign-Invested Enterprises.

Article 13 The Filing Authority shall supervise and inspect the undertakings of the foreign investor and foreign-invested enterprise established in the FTZ in accordance with relevant laws and regulations on foreign investment.

The Filing Authority shall carry out the supervision and inspection in such ways as spot checks, inspection according to tip-offs, inspection according to the proposal or information from relevant departments or judicial authorities, ex officio initiated inspection and so on.

Article 14 The supervision and inspection made by the Filing Authority shall include the following contents: 1) whether the foreign investor or foreign-invested enterprise have gone through the filing procedures in accordance with these Measures; 2) whether the filing information provided by the the foreign-invested enterprise is consistent with its actual operation activities; 3) whether the foreign investor or foreign-invested enterprise complete the annual report in accordance with these Measures; 4) whether there is any circumstance that violates the foreign investment laws and regulations.

Article 15 In the event of any behaviors found in the foreign investor or foreign-invested enterprise in violation of the foreign investment laws and regulations in the course of supervision and inspection, the Filing Authority shall send a written notice to the foreign investor or foreign-invested enterprise requiring it to give a full explanation, and conduct investigation according to law. If an illegal act is confirmed after the investigation, the Filing Authority shall order the foreign investor or foreign-invested enterprise to make rectification within a specified time limit. If the circumstances are serious, the Filing Authority shall cancel the filing and ask relevant departments to impose punishment on the foreign investor or foreign-invested enterprise according to law.

 Article 16 The information provided by the foreign investor and foreign-invested enterprise in the course of filing, registration and conducting investment activities, and acquired by the Filing Authority and other competent departments in the course of supervision and inspection, which reflects the credit status of the foreign investor and foreign-invested enterprise, shall be recorded in the credit archives system of the Ministry of Commerce for foreign investment (including Foreign/Hongkong, Maocao and Taiwan-invested Enterprises).

The Ministry of Commerce shares the credit information of the foreign investor and foreign-invested enterprise with relevant departments. If the filing information is not true or the Annual Report on the Operation Status of Foreign-invested Enterprise is not completed in accordance with these Measures, the filing authority shall record such information in the credit archives system of the Ministry of Commerce for foreign investment and make it public in an appropriate manner.

The credit information made public or shared shall not contain any commercial secrets or personal privacy of the foreign investor and foreign-invested enterprise.

Article 17 Where the foreign investment in the FTZ involves national security review or antitrust review, it shall be handled in accordance with relevant regulations. 

Article 18 The foreign-invested investment companies and venture capital enterprises that make investment in the FTZ are deemed as foreign investors and shall be subject to these Measures.

If the foreign-invested enterprise established in the FTZ intends to merge with another foreign-invested enterprise or to make reinvestment in the territory of China, or the foreign investor within the FTZ intends to make strategic investment in the listed company or to make investment with the number of the equity that it holds in the company in the territory of China, the foreign-invested enterprise or the foreign investor shall proceed in accordance with relevant regulations.

Article 19 These measures are applicable to the administration of the filling of enterprises invested in the FTZ by the investors from Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan region in the fields other than those set out in the Special Administrative Measures for the Access of Foreign Investment in the FTZ (Negative List).

Article 20 These measures shall be implemented 30 days after the date of issuance.

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