Implementation Regulations for the Wholly Foreign Owned Enterprise Law
of the People's Republic of China
(Approved by the State Council on October 28, 1990, and promulgated by Decree No. 1
of the Ministry of Foreign Economic Relations and Trade on December 12, 1990)
Article 1.
These Rules are formulated in accordance with the provisions in Article 23 of the Law of
the People's Republic of China on Foreign-Capital Enterprises.
Article 2. Foreign-capital enterprises
shall be under the jurisdiction of and protection by China' s laws. Foreign - capital
enterprises, while engaged in business operational activities within the territory of
China, must abide by Chinese laws and regulations and must not jeopardize the social and
public interests of China.
Article 3. A foreign-capital enterprise
to be established in China must be conducive to the development of China's national
economy, be capable of gaining remarkable economic results and shall meet at least one of
the following conditions: (1) the enterprises is to adopt advanced technology and
equipment, engage in the development of new products, conserve energy and raw materials,
and realize the upgrading of products and the replacement of old products with new ones
which can be used for placing similar imported goods; (2) its annual output value of
export products accounts for more than 50% of the annual output value of all products,
thereby realizing the balance between revenues and expenditures in foreign exchange or
with a surplus.
Article 4. No foreign-capital
enterprise shall be established in the following trades: ( l ) the press, publication,
broadcasting, television, and movies; (2) domestic commerce, foreign trade, and insurance;
(3) post and telecommunications; (4)other trades in which the establishment of
foreign-capital enterprises of foreign-capital enterprise is forbidden, as prescribed by
Chinese government . Chapter I General Provisions
Article 5. The establishment of
foreign-capital enterprises shall be restricted in the following trades: ( l ) public
utilities; (2) communications and transportation; (3) real estate; (4) trust investment;
(5) leasing The application for the establishment of a foreign capital enterprise in the
preceding paragraph shall be submitted to the Ministry of Foreign Economic Relations and
Trade of the People' s Republic of China (hereinafter referred to as the Ministry of
foreign Economic Relations and Trade) for approval, except as otherwise provided by
Chinese laws and regulations .
Article 6. Application for the
establishment of a foreign - capital enterprise shall not be approved if the proposed
enterprise would involve one of the following circumstances: (1) injury to China's
sovereignty or to social and public interests; (2) impairment of China's national
security; (3) violation of Chinese laws and regulations; (4) incompatibility with the
requirements of China's national economic development; or (5) possible creation of
environmental pollution.
Article 7. A foreign-capital enterprise
shall make its own managerial decisions within the approved scope of business operations
and shall not be subject to intervention. Chapter II Procedures for Establishment
Article 8. The application for the
establishment of a foreign- capital enterprise shall be submitted to the Ministry of
Foreign Economic Relations and Trade, and after examination and approval, a certificate of
approval shall be issued by the Ministry. With respect to the application for the
establishment of a foreign -capital enterprise that comes under one of the following
circumstances, the State Council shall authorize the People's Government of the relevant
province, autonomous region, municipality directly under the Central Government,
municipality separately listed on the state plan, or the special economic zone, to issue
the certificate of approval after examining and approving the application: (l) the total
amount of investment is within the limits of powers for the examination and approval of
investments stipulated by the State Council. (2) the proposed enterprises does not need
the raw and processed materials to be allocated by the State, or does not influence
unfavorably the national comprehensive balance of energy resources, communications and
transportation, as well as export quotas for foreign trade. Where the people's government
of the province, autonomous regions, municipality directly under the Central Government,
municipality separately listed on the state plan, or the special economic zone has
approved the establishment of a foreign- capital enterprise within its limits of powers
granted by the State Council, it shall, within 15 days after the approval, submit a report
to the Ministry of Foreign Relations and Trade for the record (hereinafter the Ministry of
Foreign Relations and Trade, and the people' s government of the province, autonomous
regions, municipality directly under the Central Government, municipality separately
listed on the state plan, and the special economic zone shall be called generally as the
examining and approving organ).
Article 9. With respect to a
foreign-capital enterprise, the establishment of which has been applied for, if its
products are subject to export license, export quota, or import license, or are under
registrations by the State, prior consent of the department of foreign economic relations
and trade shall be obtained in accordance with the limits of powers for administration.
Article 10. 0 A foreign investor shall,
prior to the filling of an application for the establishment of a foreign-capital
enterprise, submit a report to the local people's government at or above the county level
at the place where the proposed enterprise is to be established. The report shall include:
the aim of the establishment of the proposed enterprise; the scope and scale of business
operation; the products to be produced; the technology and equipment to be adopted and
used; the proportion of the sales of products between the domestic market and the foreign
market; the area of land to be used and the related requirements; the conditions and
quantities of water; electricity, coal, coal gas and other forms of energy resources
required; and the requirement of public facilities. The local people's government at or
above the county level shall within 30 days after receiving the report submitted by the
foreign investor, give a reply in writing to the said foreign investor.
Article 11. In case that a foreign
investor wishes to establish a foreign-capital enterprise, an application shall be
submitted to the examining and approving organ through the local people's government at or
above where the enterprise is to be established, together with the following documents:
(1) the written application for the establishment of a foreign-capital
enterprise; (2) a feasibility study report; (3) the articles of association of the foreign
- capital enterprise; (4) the name-list of the legal representatives (or the candidates
for members of the board of directors) of the foreign-capital enterprise; (5) the legal
certifying documents and the credit position certifying documents of the foreign investor;
(6) the written reply given by the people's government at or above the county level at the
place, where the enterprise is to be established; (7) an inventory of goods and materials
needed to be imported; (8) other documents that are required to be submitted.
The documents mentioned in items (1) and (3) in the preceding paragraph must be written
in the Chinese language while the documents mentioned in items (2), (4) and (5) in the
preceding paragraph may be written in a foreign language, but a corresponding Chinese
translation shall be attached. In the event that two or more foreign investors jointly
file an application for the establishment of a foreign capital enterprise, they shall
submit a duplicate of the contract concluded and signed between them to the examining and
approving organ for the record.
Article 12. The examining and
approving organ shall, within 90 days after receiving all the required documents with
respect to an application for the establishment of foreign - capital enterprise, make a
decision whether to approve or disapprove the application. In the event that the examining
and approving organ has found that the documents mentioned above are not complete, or that
some of them are inappropriate, it may call on the applicant to make up the incomplete
documents, or to make necessary revisions, within 3 prescribed time limit.
Article 13. After the approval of the
application for the establishment of a foreign - capital enterprise by the examining and
approving organ, the foreign investor shall, within 30 days after receiving the
certificate of approval, file an application with the relevant administrative department
for industry and commerce for registration, and obtain a business license. The date on
which the business license is issued shall be the date of the establishment of the said
enterprise. In the event that the foreign investor fails to file an application with the
administrative department for industry and commerce for registration on the expiration of
the 30 days after receiving the certificate of approval, the certificate of approval for
the establishment of the proposed enterprise shall become invalid automatically. A
foreign-capital enterprise shall, within 30 days after its establishment, go through the
procedures for taxation registration with the tax authorities.
Article 14. Foreign investors may
appoint a Chinese service agency for enterprises with foreign investment or other economic
organization to handle, on their behalf, the affairs stipulated in Article 9, the first
paragraph of Article 10 and Article 11 of these Rules, but a contract of entrustment shall
be concluded and signed between them.
Article 15. The written application
for the establishment of a foreign-capital enterprise shall include the following
contents:
(1) the name of designation, the residence and the place of registration of the foreign
investor, and the name, nationality, and position of the legal representative.
(2) the name and residence of the foreign-capital enterprise;
(3) the scope of business operations, the varieties of products, and the scale of
production.
(4) the total amount of investment, the registered capital, the source of funds, and
the method of investment contribution and the operation period;
(5) the organizational form and organs, and the legal representative of the foreign -
capital enterprise;
(6) the primary production equipment to be used and the degrees of depreciation,
production technology, technological level and their sources;
(7) the sales orientation and areas, the sales channels and methods, and the sales
proportion between China's market and foreign market;
(8) the arrangements for the revenues and expenditures in foreign exchange;
(9) the arrangement for the establishment of relevant organs and the authorized size of
working personnel, the engagement and use of workers and staff members, their training,
salaries and wages, material benefits, insurance and labor protection.
(10) the degrees of probable environmental pollution and the measures for tackling
pollution.
(11) the selection of sites and the area of land to be used;
(12) the funds, energy resources, raw and processed materials needed in capital
construction and in production and business operations and the solutions thereof;
(13) the progress plan for the construction of the project; and
(14) the period of business operations of the foreign capital enterprise to be
established.
Article 16. The articles of
association of a foreign capital enterprise shall include the following contents:
(1) the name and the residence;
(2) the aim and the scope of business operations;
(3) the total amount of investments; the registered capital, and the time limit for
contributing investment;
(4) the form of organization;
(5) the internal organizational structures and their functions and powers as well as
their rules of procedures; the functions, duties and limits of powers of the legal
representative as well as of the general manager, chief engineer, chief accountant and
other staff members;
(6) the principles and system of financial affairs accounting and auditing;
(7) labor administration;
(8) the term of business operations, termination, and liquidation, and
(9) the procedures for the amendment of the articles of association.
Article 17. The articles of
association of a foreign-capital enterprise shall become effective after the approval by
the examining and approving organ. The same procedure shall apply when amendments are
made.
Article 18. The division or merge of
foreign capital enterprises, and the significant change in capital resulting from other
causes, shall be subject to the approval by the examining and approving organ; in
addition, the said enterprises shall engage a Chinese registered accountant to carry out
verification, and to submit a report on the verification of capital; after the approval by
the examining and approving organ, the enterprises concerned shall go through the
procedures for the change of the registration with the relevant administrative department
for industry and commerce. Chapter III Form of Organization and Registered Capital
Article 19. The organizational form of
a foreign capital enterprise shall be a limited liability company. With approval, the
enterprise may also take any other liability form. With respect to a foreign - capital
enterprise which is a limited liability company, the liability of the foreign investor to
the enterprise shall be limited to the amount of investment subscribed and contributed to
the enterprises by the investor. With respect to a foreign - capital enterprise which
takes any other liability form, the liability of the foreign investor to the enterprise
shall be dealt with in accordance with the provisions of Chinese laws and regulations.
Article 20. 0 The total amount of investment
of a foreign - capital enterprise refers to the total amount of funds needed for the
establishment of the enterprises, i. e. the sum total of the funds invested in capital
construction in accordance with the scope of production and the circulating funds for
production.
Article 21. 1 The registered capital of a
foreign capital enterprise refers to the total amount of capital registered with the
administrative department for industry and commerce for the purpose of establishing the
foreign - capital enterprise, i. e. the total amount of investment the foreign investor
undertakes to contribute. The registered capital of a foreign - capital enterprise shall
fit in with the enterprise's scope of business operations; and the proportion between the
registered capital and the total amount of investment shall conform with the provisions of
the relevant Chinese laws and regulations.
Article 22. A foreign - capital
enterprise shall not reduce the registered capital during the term of business operation.
Article 23. The increase or assignment
of the registered capital of a foreign - capital enterprise shall be subject to the
approval by the examining and approving organ; in addition, the said enterprise shall go
through the procedures for the change of the registration with the administrative
department for industry and commerce.
Article 24. In case that a foreign -
capital enterprise intends to mortgage or assign its assets or rights and interests to a
foreign unit, the case shall be submitted to the examining and approving organ for
approval, and then to the administrative department for industry and commerce for the
record.
Article 25. The legal representative
of a foreign capital enterprise shall be the person-in-charge who, in accordance with the
stipulations in the enterprise's articles of association, executes his/ her functions and
powers on behalf of the enterprise. In the event that the legal representative is unable
to execute his/ her functions and powers, he/ she shall entrust in writing an agent with
the execution of his/ her functions and powers. Chapter IV Methods of Contributing
Investment and the Time Limit
Article 26. Foreign investors may use
convertible foreign currencies for the contribution of investment, or use as their
investment machinery and equipment, industrial property rights, and proprietary technology
that, are assigned a fixed price. Foreign investors may, after approval by the examining
and approving organ, use, as their investment, their profits in Renminbi ( RMB ) earned
from other enterprises with foreign investment established within the territory of China.
Article 27. In case that foreign
investors intend to use machinery and equipment, being assigned a fixed price, as their
investment, the said machinery and equipment must meet the following requirements:
(1) those the t are needed for the production of the foreign- capital
enterprise; (2) those that cannot be produced in China, or that can be produced in China
but cannot be guaranteed to meet the needs in terms of technical performance or time of
supply. The price fixed for the aforesaid machinery and equipment shall not be higher than
the normal price for similar machinery and equipment sold on the international market at
the time.
With respect to the machinery and equipment, being assigned a fixed price and used as
contributing investment, an inventory listing in detail the assigning of fixed prices as
contributing investment, including the names, categories, quantities, and the assignment
of prices, shall be made and submitted to the examining and approval organ as an appendix
to the application for the establishment of the foreign - capital enterprise.
Article 28. In case that foreign
investors intend to use industrial property rights and proprietary technology, being
assigned a fixed price, as their in vestment, the said industrial property rights and
proprietary technology must meet the following requirements: (1) owned by the foreign
investors themselves; (2) capable of producing new products that are urgently needed by
China, or that are suitable for export and marketable abroad. The assigning of a fixed
price for the aforesaid industrial property rights and proprietary technology shall be in
conformity with the general pricing principles of the international market and the amount
of pricing thereof shall not exceed 20% of the registered capital of the foreign - capital
enterprise. With respect to those industrial property rights and proprietary technology,
being assigned a fixed price for contributing investment, a detailed inventory of relevant
data, including a duplicate of the proprietary rights certificate, the effective
condition, technological performance, the practical value, the basis and standard for the
calculation of pricing, shall be prepared and submitted to the examining and approving
organ as an appendix to the application for the establishment of the foreign - capital
enterprise.
Article 29. When the machinery and
equipment, being assigned a fixed price and used as contributing investment, have arrived
at China's port, the foreign capital enterprise shall apply to China's commodity
inspection, which shall then issue as inspection report. In the event that the variety,
quality and quantity of the machinery and equipment, being assigned a fixed price and used
as contributing investment, are not in conformity with the variety, quality and quantity
of the machinery and equipment, being assigned a fixed price as contributing investment
and listed in the inventory submitted to the examining and approving organ, the examining
and approving organ has the power to require the foreign investors to make corrections
within a prescribed time limit.
Article 30. 0 After the industrial property
rights and proprietary technology priced as contributing investment have been put to use,
the examining and approving organ has the power to carry out inspection. In the event that
the said industrial property rights and proprietary technology are not in conformity with
the data originally provided by the foreign investors, the examining and approving organ
has the power to require the foreign investors to make corrections within a prescribed
time limit.
Article 31. The time limit for a
foreign investor to make the investment contributions shall be clearly stipulated in the
written application for the establishment of the foreign- capital enterprise and also in
the article of association of the enterprise. A foreign investor may make the investment
contribution by installments, but the last installment of the contribution shall be made
within the period of three years beginning from the day when the business license is
issued. The first installment of investment contribution shall not be less than 1S % of
the total amount of investment contribution that the foreign investor undertakes to make,
and shall be made in full within a period of 90 days beginning from the day when the
business license is issued. In the event that a foreign investor fails to make in full the
first installment of the investment contribution within the time limit stipulated in the
preceding paragraph, the certificate of approval for the establishment of the proposed
foreign-capital enterprise shall become invalid automatically. The foreign-capital
enterprise in question shall go through the procedure for registration cancellation with
the relevant administrative department for industry and commerce, and hand in its business
license for cancellation. In the event of the failure to go through the procedure for
registration cancellation and to hand in the business license for cancellation, the
administrative department for industry and commerce shall revoke the business license and
announce the case publicly.
Article 32. After making the first
installment of investment contribution, the foreign investor shall make the remaining
installments of contribution strictly as scheduled. In the event that a foreign investment
is in arrears with the contribution for 30 days without any justification, the case shall
be handled in accordance with the provisions of paragraph 2 of Article 31 of these Rules.
In the event that a foreign investor has proper reasons for requesting the postponement of
investment contribution, prior consent of the examining and approving organ shall be
obtained, and the case shall also be reported to the administrative department for
industry and commerce for the record.
Article 33. After the foreign
investor's each installment of investment contribution, the foreign - capital enterprise
shall engage a Chinese registered accountant to carry out verification, and to prepare a
report on the verification of capital, which shall be submitted to the examining and
approving organ and the administrative department for industry and commerce for the
record. Chapter V Use of site and the Site Use Fees
Article 34. With respect to the site
to be used by a foreign - capital enterprise, the local people' s government at or above
the county level in the place where the enterprise is to be located, shall make
arrangements after examination and verification in the light of the local conditions.
Article 35. A foreign - capital
enterprise shall, within 30 days from the day the business license is issued, go through
the procedure for the use of land and obtain the land certificate by presenting the
certificate of approval and the business license to the land administration department
under the local people's government at or above the county level in the place where the
enterprise is to be located.
Article 36. The land certificate shall
be the legal instrument for the foreign - capital enterprise to use the land. The foreign
- capital enterprise within its term of operations, may not assign its land - use right
without permission.
Article 37. A foreign - capital
enterprise shall, when obtaining the land certificate, pay its land use fee to the land
administrative department in the place where the enterprise is located.
Article 38. In case that a foreign -
capital enterprise uses land that has already been developed, it shall pay the land
development fee. The land development fee, as mentioned in the preceding paragraph,
includes the expense for the requisition of land, the expense for the pulling down of
houses and the settlement allowance, and the expense for the construction of basic
installations that match the foreign - capital enterprise. The land development fee may be
calculated and collected by the land development unit in a lump - sum, or by yearly
installments.
Article 39. In case that a foreign -
capital uses land that has not been developed, it may develop the land by itself, or it
may entrust a department concerned in China to develop the land. The infrastructure
construction shall be carried out under the unified arrangement of the local people' s
government at or above county level in the place where the enterprise is to be located.
Article 40. 0 The standard for the
calculation and collection of land use fee and land development fee shall be handled in
accordance with the pertinent provisions of China.
Article 41. The term for the use of
land by a foreign - capital enterprise shall be the same as the approved operation period
of the said enterprise.
Article 42. A foreign - capital
enterprise, besides obtaining the land use right in accordance with the provisions of this
Chapter, may also obtain the same right in accordance with the pertinent provisions of
other Chinese laws and regulations. Chapter VI Purchasing and Marketing
Article 43. A foreign - capital
enterprise shall formulate and execute its production and operation plans on it own; the
said production and operation plans shall be submitted to the competent department in
charge of the trade, in the place where the said enterprise is located, for the record.
Article 44. A foreign - capital
enterprise is entitled to make decisions for itself on the purchase, for its own use, of
machinery and equipment, raw and processed material, fuels, parts and components,
fittings, primary parts, means of transport, and articles for office use (hereinafter
uniformly called 'goods and materials'). A foreign - capital enterprise shall, when
purchasing goods and materials in China under the same condition, enjoy the same treatment
as enjoy by the Chinese enterprises.
Article 45. In case that a foreign -
capital enterprise sells its products on the Chinese market, it shall conduct its sales in
accordance with the approved sales proportion. In the event that sales of products on the
Chinese market by a foreign - capital enterprise exceed the approved sales proportion, the
case shall be subjected to the approval by the examining and approving organ.
Article 46. A foreign - capital
enterprise is entitled to export of its own accord, goods produced by itself; it may also
appoint a Chinese foreign trade company or a company outside the territory of China to
sell its goods on a commission basis. A foreign - capital enterprise is entitled to sell,
of its own accord, the products produced by itself on the Chinese market in accordance
with the approved sales proportion; it may also appoint a Chinese commercial agency to
sell its products on a commission basis.
Article 47. Where machinery and
equipment being assigned a fixed price and used by foreign investors as contributing
investment require, according to the pertinent provisions of China, import licenses, the
foreign investors shall, on the strength of the approved inventory of equipment and goods
and materials of the said enterprise to be imported, file an application directly, or
through an agency entrusted by them, with the license issuing organ for obtaining due
import licenses. Where a foreign - capital enterprise has to import, in accordance with
the approved scope of business, goods and materials for its own use and needed by its
production and if, according to the pertinent provisions of China, it is necessary for the
said enterprise to obtain import licenses, it shall work out an annual plan for
importation and apply, every six months, to the license - issuing organ for the licenses.
With respect to products to be exported by a foreign - capital enterprise, if, according
to the pertinent provisions of China, it is necessary for the said enterprise to obtain an
export license, it shall work out an annual plan for exportation, and apply, every six
months, to the license - issuing organ for the license.
Article 48. The prices of the goods
and materials and technological labor service imported by a foreign capital enterprise
shall not be higher than the normal prices of similar goods and materials and
technological labor service on the international market at the time. The price of export
products produced by a foreign capital enterprise shall be fixed by the enterprise itself
with reference to the international market prices at the time, but the prices must not be
lower than the reasonable export prices. With respect to the evasion of tax by using such
methods as importing at high prices while exporting at low prices, the tax authorities
shall have the power, in accordance with the pertinent provisions of the tax law, to
investigate the legal responsibilities therefor. The pricing of products to be sold by a
foreign - capital enterprise on the Chinese market in accordance with the approved sales
proportion shall be governed by the pertinent provisions of China administration of
prices. The pricing mentioned in the preceding paragraph shall be reported to the
administrative authorities for prices and the tax authorities for the record, and shall be
placed under their supervision.
Article 49. A foreign - capital
enterprise shall provide statistical data and submit statistical statements to the
departments concerned in accordance with the provisions in the Statistics Law of the
People' s Republic of China and the relevant provisions of China concerning the
statistical system for the utilization of foreign capital. Chapter VII Taxation
Article 50. 0 A foreign - capital enterprise
shall pay taxes and duties in accordance with the provisions of Chinese laws and
regulations.
Article 51. The workers and staff
members of a foreign- capital enterprise shall pay individual income tax in accordance
with the provisions of Chinese laws and regulations.
Article 52. The following goods and
materials imported by a foreign - capital enterprise shall be exempted from Customs duties
and consolidated industrial and commercial tax: (1) the machinery and equipment, parts and
components, building materials as well as other materials used as investment by the
foreign investor and needed for construction, as well as the installation and
reinforcement of machinery; (2) the machinery and equipment, parts and components, means
of communications and transportation for use in production, and equipment for use in
production and management, imported, for their own use, by a foreign - capital enterprise
with the funds included in the total amount of investment; (3) the raw materials and
processed materials, auxiliary materials, primary parts, parts and components, and
articles and materials for packaging imported by a foreign - capital enterprise for the
production of export products. In the event that the imported goods and materials, as
mentioned in the preceding paragraph, are resold within the territory of China, or are
used in the production of products to be sold within the territory of China, the foreign -
capital enterprise concerned shall pay the taxes or make up the taxes in accordance with
the provisions of the tax law of China.
Article 53. The export commodities
produced by a foreign - capital enterprise, except those whose exportation is restricted
by China, shall be exempted from customs duties and consolidated industrial and commercial
tax in accordance with the tax law of China. Chapter VIII Control of Foreign Exchange
Article 54. Foreign exchange affairs
of a foreign capital enterprise shall be handled in accordance with the pertinent laws and
regulations of China concerning foreign exchange control.
Article 55. A foreign - capital
enterprise shall, on the strength of the business license issued by the administrative
department for industry and commerce, open an account at a bank which may handle foreign
exchange business within the territory of China, and its receipts and payments in foreign
exchange shall be subject to the supervision by the interested bank. The foreign exchange
revenue of a foreign - capital enterprise shall be deposited in the foreign exchange
account of the bank where it has opened an account; and the foreign exchange expenses
shall be paid from the foreign exchange account.
Article 56. A foreign - capital
enterprise shall achieve by itself the balance of revenue and expenditures in foreign
exchange. In the event that a foreign - capital enterprise is unable to strike by itself
the balance between revenues and expenditure in foreign exchange, the foreign investor
shall indicate it clearly in the application for the establishment of the enterprise, and
put forward a specific plan for solving the problem; the examining and approving organ
shall give a reply after consultation with department concerned. In the event that the
foreign investor has indicated in the application for the establishment of the foreign
capital enterprise, that the balance of revenues and expenditure in foreign exchange would
be achieved by itself, no government department shall be responsible for the solution of
the balance problem of revenues and expenditure in foreign exchange for the said
enterprise. With respect to products, manufactured by a foreign capital enterprise,
urgently needed in China, capable of replacing similar imported goods, and permitted to be
sold in China, the payments may be made in foreign exchange, subject to the approval by
the Chinese administrative department for foreign exchange control.
Article 57. In case that a foreign -
capital enterprise has the necessary to open a foreign exchange account at a bank outside
the territory of China to meet the needs of production and business operations, the case
shall be submitted to the Chinese administrative department for foreign exchange control
for approval and, in accordance with the provisions of the Chinese administrative
department for foreign exchange control, regular reports on the conditions of revenues and
expenditures in foreign exchange and statements of account shall be submitted.
Article 58. The wages and salaries as
well as other rightful earnings in foreign exchange of foreign workers and staff members
and of those from Hong Kong, Macao and Taiwan working in a foreign capital enterprise may
be remitted freely out of the country after taxes have been paid in accordance with the
provisions of the Chinese tax law. Chapter IX Financial Affairs and Accounting
Article 59. A foreign - capital
enterprise shall, in accordance with Chinese laws, regulations and the provisions of
financial organs, set up financial and accounting systems, which shall be reported, for
the record, to the financial departments and the tax authorities at the place where the
enterprise is located.
Article 60. 0 The fiscal year of a foreign -
capital enterprise shall begin from January 1 and end on December 31 of Gregorian
calendar.
Article 61. Reserve funds and bonus
and welfare funds for workers and staff members shall be withdrawn from the profits after
a foreign - capital enterprise has paid income tax in accordance with the provisions of
the Chinese law. The proportion of reserve funds to be withdrawn shall not be lower than
10% of the total amount of profits after payment of tax; the withdrawal of reserve funds
may be stopped when the total cumulative reserve has reached 50% of the registered
capital. The proportion of bonus and welfare funds for workers and staff members to be
withdrawn shall be determined by the foreign - capital enterprise of its own accord. In
the event that deficits of previous fiscal years of a foreign - capital enterprise have
not been made up, it may not distribute the profits, while the undistributed profits of
previous fiscal years may be distributed together with the distributable profits of the
current fiscal year.
Article 62. Accounting vouchers,
account books and accounting statements made by a foreign - capital enterprise shall be
written in the Chinese language; if they are written in a foreign language, notes in the
Chinese language are required.
Article 63. Business accounting of a
foreign capital enterprise shall be conducted independently. The annual accounting
statements and liquidation accounting statements of a foreign-capital enterprise shall be
prepared in accordance with the provisions of the Chinese competent departments for
financial and tax affairs. If accounting statements are prepared in foreign currencies,
accounting statements in which the foreign currencies are converted into Renminbi (RMB)
shall be prepared at the same time. The annual accounting statements and liquidation
accounting statements of a foreign?apital enterprise shall be verified by a Chinese
registered accountant, who shall submit a verification report. The annual - accounting
statement and liquidation accounting statement of a foreign?apital enterprise, as
stipulated in the second and third paragraphs of this Article, together with the
verification report prepared by a Chinese registered accountant, shall be submitted,
within a prescribed time limit, to the Chinese competent departments for financial and tax
affairs and also to the examining and approving organ and the administrative department
for industry and commerce for the record.
Article 64. The foreign investor may
engage Chinese or foreign accounting personnel to consult the account books of a foreign -
capital enterprise, and the expenses thus entailed shall be borne by the foreign investor.
Article 65. A foreign - capital
enterprise shall submit its annual statement of assets and liabilities and annual
statement of profit and loss to the competent departments for financial and tax affairs,
and also to the examining and approving organ as well as the administrative department for
industry and commerce for the record.
Article 66. A foreign - capital
enterprise shall set up account book at the place where the said enterprise is located,
and shall receive supervision of the competent departments for financial and tax affairs.
With respect to any foreign - capital enterprise which violates the provisions in the
preceding paragraph, the competent departments for financial and tax affairs may impose a
fine, and the administrative department for industry and commerce may order to suspend its
business operations or revoke its business license. Chapter X Workers and Staff Members
Article 67. In case that a foreign -
capital enterprise employs workers and staff of members within the territory of China,
both the enterprise and the workers and staff members shall, in accordance with the
Chinese laws and regulations, conclude and sign a labor contract. Matters as employment,
dismissal, salaries and wages, welfare, labor protection and labor insurance shall be
clearly stipulated in the contract. Foreign - capital enterprises may not hire child
labors.
Article 68. A foreign - capital
enterprise shall be responsible for the vocational and technical training of its workers
and staff members, and shall set up a check - up and appraisal system, so that workers and
staff members are capable of meeting the needs of the enterprise' s production and
development in terms of production and managerial skills. Chapter XI Trade Union
Article 69. The workers and staff
members of a foreign - capital enterprise shall have the right to set up a grass - roots
trade union organization and carry out trade union activities in accordance with the
provisions of the Trade Union Law of the People's Republic of China.
Article 70. 0 The trade union in a foreign -
capital enterprise shall represent the interests of workers and staff members, and have
the right to conclude labor contracts with the enterprise on their behalf, and to
supervise the execution of the labor contracts.
Article 71. The basic tasks of the
trade union in a foreign- capital enterprise shall be as follows: to safeguard the lawful
rights and interests of workers and staff members in accordance with the provisions of
Chinese laws and regulations; and to assist the enterprise in the rational arrangement and
use of welfare and bonus funds for the workers and staff members; to organize workers and
staff members in carrying on political study, in learning scientific, technical and
professional knowledge, in carrying out cultural, artistic and sports activities; to
educate workers and staff members in complying with labor discipline and in striving to
fulfill various economic tasks of the enterprise. When a foreign - capital enterprise
holds discussions on problems concerning the commendation and punishment of workers and
staff members, the wage system, welfare benefits, labor protection and labor insurance,
representative of the trade union shall have the right to attend the discussions as
nonvoting attendants. A foreign - capital enterprise shall listen to the opinions of the
trade union, and win its cooperation.
Article 72. A foreign- capital
enterprise shall give an active support to the work of the trade union of the enterprise,
and, in accordance with the provisions of the Trade Union Law of the People' s Republic of
China, provide the trade union organization with the necessary houses and equipment for
handling trade union work, holding meetings, and conducting such collective undertakings
as welfare benefits, and sports activities for workers and staff members. Every month ,
the enterprise shall appropriate a sum equal to 2% of the total amount of wages and
salaries of workers and staff members to the trade union as outlay, and the trade union of
the enterprise shall use this sum of money in accordance with the measures for the
administration of trade union outlay. As formulated by the All - China Federation of Trade
Unions. Chapter XII Term of Operations, Termination and Liquidation
Article 73. The term of operation of a
foreign capital enterprise shall be proposed by the foreign investor in the written
application for the establishment of the enterprise in the light of the specific
conditions of different enterprises, and shall be subjected to the approval by the
examining and approving organ.
Article 74. The terms of operations of
a foreign capital enterprise shall be calculated from the day when the business license is
issued. In the event that the term of operations of a foreign capital enterprise has to be
extended upon its expiration, the enterprise shall, 180 days before the expiration of the
term of operations, file an application for the extension of the term of operations with
the examining and approving organ. The examining and approving organ shall, within 30 days
from the day of receiving the application, determine whether to approve or disapprove the
extension. The foreign - capital enterprise shall, after obtaining the approval for an
extension of its term of operations and within 30 days of the receiving the approval for
the extension, go through the procedure for the change of registration with the
administrative department for industry and commerce.
Article 75. A foreign - capital
enterprise that falls under one of the following circumstances shall terminate its
business operations: (1) the term of operations expires; (2) the foreign investor decides
to dissolve it because of poor operation and management resulting in serious losses; (3)
business cannot be carried on because of heavy losses as a result of natural disasters,
wars or their force majeure. (4) bankruptcy; (5) disbanded by law because it has violated
Chinese laws and regulations or jeopardized social and public interests; (6) other causes
for dissolution, as stipulated in the enterprise' s article of association, have occurred.
If a foreign - capital enterprise falls under any of the circumstances as stipulated in
item (2), (3) and (4) of the preceding paragraph, it shall submit, of its own accord, an
application for the termination of business operations to the examining and approving
organ for verification and approval. The date of approval after verification by the
examining and approving organ shall be the date of the said enterprise's termination.
Article 76. In case that a foreign -
capital enterprise terminates its business operations in accordance with the provisions in
items (1), (2), (3) and (6) of article 75, the enterprise shall, make a public
announcement and notify the creditors, and, it shall, within 15 days from the days of the
public termination announcement for liquidation, the principles of liquidation, and the
candidates for the liquidation committee to the examining and approving organ for
verification and approval before liquidation is carried out.
Article 77. The liquidation committee
shall be composed of the legal representatives of the foreign capital enterprise, the
representatives of the creditors, from the competent authorities concerned; Chinese
registered accountant and lawyers shall be engaged in the liquidation. Priority shall be
given to the payment of expenses for liquidation made from the existing property of the
foreign - capital enterprise.
Article 78. The liquidation committee
shall execute the following functions and powers:
(1) to convene a meeting of creditors;
(2) to take over and liquidate the propery of the enterprise in question, and to
prepare the statement of assets and liabilities and the inventory of property;
(3) to propose a basis for the valuation and computation of the property of the
enterprise in question;
(4) to work out a liquidation plan;
(5) to recover creditors rights and to pay the debts;
(6) to receive the payments from shareholders which have not yet been made;
(7) to distribute the remaining property;
(8) to represent the foreign-capital enterprise in
bringing a suit or responding to a suit.
Article 79. Prior to the conclusion of
the liquidation of foreign - capital enterprise, the foreign investor shall not remit or
carry the said enterprise's funds out of the territory of China, nor dispose of the
enterprise's property privately. If, upon the conclusion of the liquidation of a foreign
capital enterprise, its net assets and remaining property exceed its registered capital,
the excess portion shall be regarded as profit on which income tax shall be imposed in
accordance with the Chinese tax law.
Article 80. 0 Upon the conclusion of the
liquidation of a foreign - capital enterprise, it shall go through the procedures for the
cancellation of registration with the administrative department for industry and commerce,
and to hand in the business license for cancellation.
Article 81. While disposing of the
assets and properties of a foreign - capital enterprise, Chinese enterprises or other
economic organizations shall, under equal conditions, have the priority in purchasing the
aforesaid assets and properties.
Article 82. In case that a foreign -
capital enterprise terminates its business operations in accordance with the provisions in
item (4) of Article 75, its liquidation shall be carried out with reference to the
pertinent laws and regulations of China. In case that a foreign - capital enterprise
terminates its business operations in accordance with the provisions in item (5) of
Article 75, its liquidation shall be carried out in accordance with the pertinent
provisions of China. Chapter XIII Supplementary Provisions
Article 83. With respects to the
various categories of insurance for a foreign - capital enterprise, it shall take out
insurance from insurance companies within the territory of China.
Article 84. If a foreign - capital
enterprise concludes economic contracts with any other Chinese enterprise or economic
organization, the Economic Contract Law of the People's Republic of China shall be
applied. If a foreign - capital enterprise concludes economic contracts with any foreign
company, enterprise or individual, the law of the People's Republic of China on Economic
Contracts Involving Foreign Interests shall be applied.
Article 85. Cases concerning the
establishment, in China's mainland, of enterprises, the capital of which is owned solely
by the companies, enterprises, and other economic organizations or individuals in the
regions of Hong Kong, Macao or Taiwan, or by Chinese citizens residing in foreign
countries, shall be handled with reference to these rules.
Article 86. Foreign workers and staff
members, and workers and staff members from Hong Kong, Macao and Taiwan, who are working
in a foreign capital enterprise, may carry into the country means of transport and
articles for daily use that are within reasonable quantities and for their own use, and
they shall go through the import procedures in accordance with pertinent provisions of
China.
Article 87. The right to interpret
theses rules shall reside in the Ministry of Foreign Economic Relations and Trade.
Article 88. These rules shall go into
effect as of the date of promulgation.
