Decree of the Ministry of Commerce No. 3 of 2014 "Measures for the Administration of Overseas Investment"

 

[Issued by] Ministry of Commerce of the People's Republic of China

[Release number] Ministry of Commerce Order No. 3 of 2014

【 Release Date 】2014-09-06

【欧洲杯买球】2014-10-06

The Measures for the Administration of Overseas Investment, which were deliberated and adopted at the 27th Ministerial Meeting of the Ministry of Commerce on August 19, 2014, are hereby promulgated and will come into force on October 6, 2014。

 

Minister Gao Hucheng

September 6, 2014

Measures for the administration of overseas investment

Chapter I General provisions

第一条In order to promote and standardize overseas investment and improve the facilitation level of overseas investment, these Measures are formulated in accordance with the Decision of The State Council on the Reform of the Investment System, the Decision of The State Council on the Establishment of Administrative Licenses for items for administrative examination and approval that really need to be retained and relevant laws and regulations。

第二条The term "overseas investment" as mentioned in these Measures refers to the act of an enterprise lawfully established within the territory of the People's Republic of China (hereinafter referred to as an enterprise) owning a non-financial enterprise overseas or acquiring the ownership, control, operation and management rights and other rights and interests of an existing non-financial enterprise through new establishment, merger and acquisition or other means。

第三条Enterprises investing overseas shall make their own decisions and be responsible for their profits and losses in accordance with the law。

第四条An enterprise may not make overseas investment under the following circumstances:

(1) endangering the national sovereignty, security and public interests of the People's Republic of China, or violating the laws and regulations of the People's Republic of China;

(2) damage to the relations between the People's Republic of China and relevant countries (regions);

(3) violating an international treaty or agreement concluded or acceded to by the People's Republic of China;

(4) The export of products and technologies prohibited by the People's Republic of China。

第五条The Ministry of Commerce and the competent commercial departments of each province, autonomous region, municipality directly under the Central Government, planned city and Xinjiang Production and Construction Corps (hereinafter referred to as the provincial competent commercial departments) shall be responsible for the administration and supervision of overseas investment。

Chapter II Filing and approval

第六条The Ministry of Commerce and the provincial competent department of commerce shall, in accordance with the different circumstances of enterprises' overseas investment, respectively implement the administration of filing and approval。

An enterprise's overseas investment involving sensitive countries and regions and sensitive industries shall be subject to approval management。

The overseas investment of an enterprise under other circumstances shall be subject to archival management。

第七条The countries that exercise approved administration refer to the countries that have not established diplomatic relations with the People's Republic of China and are subject to United Nations sanctions。When necessary, the Ministry of Commerce may separately publish a list of other countries and regions that exercise approved administration。

The industries subject to the administration of approval refer to the industries involving the export of products and technologies restricted by the People's Republic of China and the industries affecting the interests of one country (region) or above。

第八条The Ministry of Commerce and the provincial commercial authorities shall handle the filing and approval in accordance with the law, improve the efficiency of work, and provide quality services。

The Ministry of Commerce and the provincial competent commerce departments manage the overseas investment of enterprises through the "Overseas Investment Management System" (hereinafter referred to as the "management system"), and issue the "Enterprise Overseas Investment Certificate" (hereinafter referred to as the "Certificate") to the enterprises that have obtained the record or approval (hereinafter referred to as the "Certificate").。The Certificate shall be printed and stamped by the Ministry of Commerce and the provincial competent department of Commerce respectively, and shall implement unified coding management。

The "Certificate" is a certificate for an enterprise to obtain the record or approval of overseas investment, and is issued according to the final destination of overseas investment。

第九条For overseas investments that fall under the status of filing, the central enterprises shall report to the Ministry of Commerce for filing;Local enterprises shall report to the local provincial Commerce Department for the record。

Central enterprises and local enterprises through the "management system" according to the requirements to fill in and print the "Overseas investment record Form" (hereinafter referred to as the "record Form", the style is shown in Annex 2), after stamping the seal, together with the copy of the enterprise business license to the Ministry of Commerce or the provincial Commerce Department for the record。

If the "Filing Form" is filled in truthfully, completely, and in accordance with the legal form, and the enterprise declares in the "Filing Form" that its overseas investment does not fall into the circumstances listed in Article 4 of these Measures, the Ministry of Commerce or the provincial commercial authority shall record and issue the "Certificate" within 3 working days from the date of receiving the "Filing Form".。If the enterprise does not truthfully and completely fill in the "Record Form", the Ministry of Commerce or the provincial commercial authority will not record。

第十条For the approved overseas investment, the central enterprise shall apply to the Ministry of Commerce, and the local enterprise shall apply to the Ministry of Commerce through the local provincial competent department of commerce。

Enterprises applying for overseas investment approval shall submit the following materials:

(1) The application form, which mainly includes the information of the investor, the name of the overseas enterprise, the equity structure, the amount of investment, the scope of business, the term of business, the source of investment funds, the specific content of investment, etc.;

(2) "Overseas Investment Application Form" (see Annex 3 for the style), the enterprise shall fill in and print through the "management system" as required, and affix the seal;

(3) Contracts or agreements related to overseas investment;

(4) Materials approved by relevant departments for export of products or technologies restricted from export by the People's Republic of China in connection with overseas investment;

(5) A copy of the business license of the enterprise。

第十一条Approval of overseas investment shall seek the opinions of our embassy (consulate) in foreign countries (business Office)。Where central enterprises are involved, the Ministry of Commerce shall solicit opinions;Where local enterprises are involved, the competent department of commerce at the provincial level shall solicit opinions。When soliciting opinions, the Ministry of Commerce and the provincial department of commerce shall provide relevant information such as the basic situation of investment matters。The diplomatic missions (consulates) stationed abroad (business office) shall reply within 7 working days from the date of receiving the request for comment。

第十二条The Ministry of Commerce shall, within 20 working days after accepting the application for approval of the central enterprise (including the time for soliciting the opinions of embassies (consular offices) abroad), make a decision on whether to approve or not。If the application materials are not complete or do not conform to the statutory form, the Ministry of Commerce shall inform the applicant enterprise of all the contents that need to be corrected within 3 working days。If the applicant fails to notify the applicant within the time limit, the application shall be accepted from the date of receipt of the application materials。If the central enterprise submits all the supplementary and corrected application materials in accordance with the requirements of the Ministry of Commerce, the Ministry of Commerce shall accept the application。

The provincial competent Commerce Department shall, after accepting the application for approval of local enterprises, conduct a preliminary review of whether the application involves the circumstances listed in Article 4 of these Measures, and submit the preliminary review opinions and all application materials to the Ministry of Commerce within 15 working days (including the time for soliciting the opinions of embassies (consulates) stationed abroad (business office)。If the application materials are not complete or do not meet the legal form, the provincial competent department of commerce shall inform the applicant enterprise of all the contents that need to be corrected within 3 working days。If the applicant fails to notify the applicant within the time limit, the application shall be accepted from the date of receipt of the application materials。Local enterprises in accordance with the requirements of the provincial competent department of commerce to submit all the correction of the application materials, the provincial competent department of commerce shall accept the application。After the Ministry of Commerce receives the preliminary review opinions of the provincial commercial authorities, it shall make a decision on whether to approve it within 15 working days。

第十三条For the approved overseas investment, the Ministry of Commerce shall issue a written approval decision and issue a Certificate;If the application is not approved due to the circumstances listed in Article 4 of these measures, the applicant shall be notified in writing and explain the reasons, and inform it that it has the right to apply for administrative reconsideration or bring an administrative lawsuit according to law。If an enterprise provides false materials to apply for approval, the Ministry of Commerce shall not approve it。

第十四条Where two or more enterprises jointly carry out overseas investment, the relative major shareholder shall handle the record or apply for approval after seeking the written consent of other investors。If the shareholding ratio of the parties is equal, one party shall handle the record or apply for approval after consultation。If the investor does not belong to the same administrative region, the Ministry of Commerce or the provincial commercial authority responsible for the filing or approval shall inform the other investor's local commercial authority of the filing or approval results。

第十五条After the overseas investment of the enterprise has been filed or approved, if the overseas investment matters specified in the original Certificate are changed, the enterprise shall, in accordance with the procedures of this chapter, go through the change formalities with the Ministry of Commerce or the provincial competent Commerce Department of the original filing or approval。

第十六条Within 2 years from the date of receipt of the Certificate, if the enterprise does not invest overseas, the Certificate will automatically become invalid。If it is necessary to carry out overseas investment again, it shall handle the record or apply for approval in accordance with the procedures of this chapter。

第十七条When an enterprise terminates an overseas investment that has been filed or approved, it shall, after going through formalities such as cancellation in accordance with the laws of the investment destination, report to the Ministry of Commerce or the provincial competent department of Commerce that originally filed or approved it。The original record or approval of the Ministry of Commerce or the provincial department of commerce issued a cancellation confirmation letter according to the report。

Termination means that the original registered or approved overseas enterprise no longer exists or the enterprise no longer owns any equity or other rights and interests of the original registered or approved overseas enterprise。

第十八条The Certificate may not be forged, altered, rented, lent or transferred in any other form。The changed, invalid or cancelled Certificate shall be returned to the Ministry of Commerce or the provincial competent department of Commerce for the original record or approval。

Chapter Three: Norms and services

第十九条Enterprises should objectively assess their own conditions and capabilities, thoroughly study the investment environment of investment destinations, actively and prudently carry out overseas investment, and pay attention to preventing risks。Where domestic and foreign laws, regulations and rules have requirements for qualifications, enterprises shall obtain relevant certification documents。

第二十条An enterprise shall require its overseas investment enterprise to abide by the laws and regulations of the investment destination, respect local customs and habits, fulfill social responsibilities, do a good job in environmental protection, labor protection, corporate culture construction, and promote integration with the local area。

第二十一条The naming of the overseas enterprise invested by the enterprise shall comply with domestic and foreign laws, regulations and policies。An enterprise that has not been approved in accordance with the relevant provisions of the State shall not use the words "China" or "Zhonghua" in the name of its overseas enterprise。

Article 22Enterprises shall implement personnel and property safety precautions, establish an emergency early warning mechanism and emergency plans。When an emergency occurs overseas, the enterprise shall deal with it in a timely and proper manner under the guidance of the diplomatic missions (consulates) stationed abroad and the relevant domestic competent authorities。

Enterprises shall do a good job in the selection and examination of expatriates, pre-departure safety, discipline education and emergency training, strengthen the management of expatriates, and apply for local legal residence and work permits in accordance with law。

Article 23The enterprise shall require the Chinese person in charge of the overseas enterprise it has invested in to register with the overseas embassy (Business Office) in a timely manner in person or by means of letters, faxes, e-mails, etc。

第二十四条The enterprise shall report the overseas investment business situation, statistical data, and difficulties and problems related to overseas investment to the Ministry of Commerce or the provincial competent department of Commerce for the original record or approval, and ensure that the information and data submitted are true and accurate。

Article 25When an overseas enterprise makes overseas reinvestment, it shall report to the competent department of commerce after completing overseas legal procedures。Involving a central enterprise,Central enterprises fill in the relevant information through the "management system",Print the Reinvestment Report Form of Overseas Chinese Enterprises (hereinafter referred to as the Reinvestment Report Form),The style is shown in Annex 4) and shall be submitted to the Ministry of Commerce after affixing the seal;Involving local enterprises,Local enterprises fill in relevant information through the "management system",Print the Reinvestment Report Form, affix the seal and submit it to the provincial commercial authority。

第二十六条The Ministry of Commerce is responsible for inspecting and guiding the administration of overseas investment by the provincial competent commercial departments。The competent department of commerce at the provincial level shall report to the Ministry of Commerce every six months the situation of overseas investment within its administrative area。

第二十七条Mofcom, together with other relevant departments, shall provide services such as rights protection, investment promotion and risk early warning for enterprises investing overseas。

The Ministry of Commerce issued the Guidelines for Foreign Investment Cooperation by countries (regions) and national Industry Guidelines and other documents,Help enterprises understand the investment environment of investment destinations;We will strengthen the guidance and regulation of enterprises' overseas investment,Promulgation of environmental protection and other guidelines together with relevant departments,To urge enterprises to operate overseas lawfully and in compliance with regulations;Establish an information service system for overseas investment and cooperation,Provide data statistics, investment opportunities, investment obstacles, risk warning and other information for enterprises to carry out overseas investment。

Chapter IV Legal liability

第二十八条Enterprises to provide false materials and other improper means to handle the record and obtain the "certificate", the Ministry of Commerce or the provincial department of commerce to cancel the overseas investment record of the enterprise, give a warning, and publish the punishment decision according to law。

第二十九条If the enterprise provides false materials to apply for approval, the Ministry of Commerce shall give a warning and announce the punishment decision according to law。The enterprise shall not apply for the approval again within one year。

If an enterprise obtains the overseas investment approval by cheating, bribery or other improper means, the Ministry of Commerce shall revoke the overseas investment approval of the enterprise, give it a warning, and publish the punishment decision according to law。The enterprise shall not apply for the approval again within three years;If the case constitutes a crime, criminal responsibility shall be investigated according to law。

第三十条Enterprises carrying out overseas investment in the process of the situation listed in Article 4 of these measures, shall bear the corresponding legal responsibility。

Article 31If the enterprise forges, alters, rents, lends or transfers the Certificate in any other form, the Ministry of Commerce or the competent department of Commerce at the provincial level shall give a warning;If the case constitutes a crime, criminal responsibility shall be investigated according to law。

Article 32Enterprises that make overseas investment in the circumstances provided for in Article 28 to 31 and violate other provisions of these Measures shall not enjoy the relevant policy support of the State within three years。

第三十三条If the relevant staff members of the Ministry of Commerce and the competent commercial departments at the provincial level fail to perform their duties in accordance with the provisions of these Measures, abuse their power, solicit or accept property from others or seek other benefits, and if the case constitutes a crime, they shall be investigated for criminal responsibility according to law;If the case does not constitute a crime, administrative sanctions shall be imposed according to law。

Chapter V Supplementary Provisions

第三十四条Provincial commercial authorities may formulate corresponding work rules in accordance with these Measures。

Article 35The central enterprises mentioned in these Measures refer to the enterprises that the State-owned Assets Supervision and Administration Commission of the State Council performs the functions of investor, their affiliated enterprises and other units under the central administration。

Article 36These Measures shall apply to the establishment of overseas investment by legal persons of public institutions and overseas branches by enterprises。

第三十七条The investment of enterprises in Hong Kong, Macao and Taiwan shall be carried out in accordance with these Measures。

Article 38The Ministry of Commerce shall be responsible for the interpretation of these measures。

第三十九条These Measures shall come into force on October 6, 2014。The Measures for the Administration of Overseas Investment issued by the Ministry of Commerce in 2009 (Ministry of Commerce Order No. 5, 2009) shall be repealed simultaneously。

 

 

Appendix: 1. Enterprise Overseas Investment Certificate (Style).doc

2. Overseas Investment Record Form (Style).docx

3. Overseas Investment Application Form (Style).doc

4. Reinvestment Report Form of Overseas Chinese Enterprises (Style).doc

 

(Source: Department of Treaty and Law, Ministry of Commerce)


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