(英文版)商务部关于外商投资举办投资性公司的规定

1、establishment of companies with an investment nature by foreign investors provisions商务部令2004年第22号商务部关于外商投资举办投资性公司的规定(promulgated by the ministry of commerce on 23 november 2004 and effective 30 days after the date of promulgation.)颁布口期：20041117 实通口期：20041217颁布单位：商务部article 1 in order to promote inve

2、stment in china by foreign investors and attract foreign adva need tech no logy and man ageme nt expertise, foreig n investors are permitted to establish companies with an in vestment nature in china in accorda nee with the relevant laws and regulations of china on foreign investment and these provi

3、sions.article 2 for the purposes of these provisions, the term “company with an investment nature ” shall refer to a company established in china by a foreign investor either in the form of a wholly foreign-owned company or a joint venture in conjunction with a chinese investor engaged in direct inv

4、estments. the company shall take the form of a limited liability company.article 3 the application for the establishment of a company with an investment nature shall satisfy the following conditions：1. (a) the foreign investor shall have good credit standing, financial capability necessary for the e

5、stablishment of a company with an investment nature, a total asset value of no less than us$400 million in the year prior to the application, and the investor shall also have established foreign-invested enterprise (s) in china with a capital contribution of more than us$10 million of the registered

6、 capital actually paid in； or(b) the foreign investor shall have good credit standing, the financial capability required for the establishment of a company with an investment nature； have already established 10 or more foreigninvested enterprises, with a capital contribution of more than us$30 milli

7、on of the registered capital actually paid in；2. where a company with an investment nature is established in the form of a joint venture, the chin ese in vestor shall have good credit standi ng and the fina ncial capability n ecessary for the establishment of a company with an investment nature and

8、the investor*s total asset value shall be no less than rmb 100 million in the year prior to the application； and3 the registered capital of a company with an investment nature shall not be less than us$30 million.a foreign investor applying to establish a company with an investment nature shall be a

9、 foreign company, enterprise or economic organization if there are two or more foreign investors, at least one of them shall be a foreign investor that holds a majority equity interestand complies with item (1) of paragraph one of this articlearticle 4 a foreign investor that satisfies the condition

10、s specified in item (1) of paragraph one of article 3 hereof may inv est in and establish a company with an in vestment n ature in the name of its wholly-owned subsidiaryarticle 5 a foreign investor that satisfies the conditions specified in item (1) of paragraph one of article 3 hereof applying to

11、establish a company with an investment nature must provide the exami nation and approval authority with a letter of guara ntee on the payment of registered capital by the company with an in vestment nature it established at the time it in vests in china and on the tech no logy tran sfer belonging to

12、 the said foreig n investor or its affiliated compa ny (compa nies)。where a parent company invests in and establishes a company with an investment nature in the name of its wholly-ow ned subsidiary, it must provide the exami nation and approval authority with a letter of guarantee on the payment of

13、registered capital of the company with an investment nature it established by its subsidiary in accordanee with the conditions approved by the examination and approval authority, and on the payment of registered capital by the company with an in vestme nt n ature at the time it inv ests in china and

14、 the tech no logy tra nsfer belonging to the par ent company and its subsidiary article 6 when applying to establish a company with an investment nature, an investor shall submit the following documents to the ministry of commerce for examination and approval after such documents have been examined

15、and consented to by the department in charge of commerce of the provinee, autonomous region, municipality directly under the central government or municipality with an independent development plan where such company with an investment nature is to be established：1. the application report, contract a

16、nd articles of association signed by all in vestment parties that establish a company with an investment nature in the form of a joint venture；the application form for foreign-invested enterprises, feasibility study report and articles of association signed by the foreign investor that establishes a

17、 company with an investment nature in the form of a wholly foreign-owned company；2. the support!ng documents on the creditworthiness of the investment parties as well as (photocopies of) the support!ng documents of registration and legal representatives；3. (photocopies of) the approval certificate (

18、s), busi ness lice nee (s) an d the capital contribution verification report (s) issued by a chinese certified accountant of the enterprise(s) in vested by the foreig n in vestor；4 balanee sheets, audited in accordanee with the law, of the investment parties for the past three years；5. a letter of g

19、uarantee to be submitted in accordanee with article 5 hereof； and6. other documents required by the ministry of commercethe aforementioned documents shall be originals except where indicated as copies.where a document is not signed by a legal representative,a power of attorney from suchlegal represe

20、ntative shall be provided.where an agency established in accordanee with the law is appointed to handle application procedures, a power of attorney signed by a legal representative of the investor shall be provided.article 7 a foreign in vestor shall con tribute capital to the registered capital of

21、a compa ny with an investment nature in a freely convertible currency or with renminbi profits gained in china or with lawf ul in come in renminbi derived from activities such as equity tran sfer and liquidati on. the chin ese in vestor may con tribute capital in renminbi. where a foreign in vestor

22、con tributes capital to the registered capital of a company with an in vestment n ature with its lawful in come in renminbi, it shall submit the re leva nt support! ng docume nts and tax receipts. the capital contribution shall be fully paid in within two years of the date of issue of the business l

23、icence.article 8 at least us$30 million of the registered capital of companies with an investment n ature shall be used as capital con tributi ons to the foreig n-in vested enterprises in vested in and newly established by them, or as contributions to the capital that have not been fully paid in or

24、in creases in capital of foreign-i nv ested en terprises already inv ested in and established by their parent companies or affiliated companies (and for which procedures for the assignment of equity have bee n completed accordi ng to law), or be used as in vestment in the establishme nt of organizat

25、ions such as research and development centres, or be used to purchase the equity of shareholders of domestic companies in china (excluding the equity formed as a result of the capital con tributi on already paid in full by the pare nt compa ny or affiliated companies of the company with an in vestme

26、nt n ature )oarticle 9 where the registered capital of a company with an investment nature is not less than us$30 million, the amount of loans it takes out may not exceed four times the amount of registered capital already paid in. where the registered capital of a company with an investment nature

27、is not less than us$100 million, the amount of loans it takes out may not exceed six times the amount of registered capital already paid in. if, due to business requirements, a company with an investment nature intends to have its amount of loans exceed the amount prescribed above, it shall obtain t

28、he approval of the ministry of commerce.article 10 after a company with an investment nature has been approved to be established by the ministry of commerce, it may engage in the following businesses according to the actualneeds of business activities in which it engages in china：1. investment in se

29、ctors in which foreign investment is permitted by the state；2. appointed in writing (subject to a unanimous resolution of the board of directors) by its investee enterprise to provide the following services to such enterprise：(1) assisti ng or acti ng as age nt for its in vestee en terprise in the p

30、urchase of machi nery, equipment and office equipment for the own use of such enterprise and in the purchase of raw materials, spare parts and compone nts required for producti on from in side and outside china, and in the sale of products in side and outside china produced by such en terprise, as w

31、ell as providing after-sale services；(2) balancing foreign exchange among its investee enterprises with the consent and under the supervision of the administration of foreign exchange；(3) providing services such as tech nical support, employee trai ning and in ter nal pers onnel management of enterp

32、rise in the course of production, sales and marketing of products to its investee enterprises； and(4) assisting its investee enterprises in raising loans and providing guarantees3. setting up scientific research and development centre or department in china to engage in research and development of n

33、ew products and high and new technology, assign its achievements of research and development and provide corresponding technical services；4 providing its investors with consultsncy services, and providing its affiliated company (companies) with such consultancy services as market information and inv

34、estment policies related to their investment；and5. un dertaki ng service outsourcing busi ness of its pare nt compa ny and affiliated compa ny (compa nies)。article 11 where a company with an investment nature engages in the import and export of goods or technology, it shall comply with the provision

35、s of the record filing and registration of foreign trade operators procedures of the ministry of commerce；where a compa ny with an investme nt nature en gages in commissi on age ncy, wholesale, retail and fran chisi ng activities, it shall comply with the re leva nt provisi ons of the admi nistrati

36、on of foreign investment in commercial sectors procedures of the ministry of commerce, and shall change the corresponding scope of business in accordanee with the lawarticle 12 for the purposes of these provisions, the phrase "investee enterprise of a company with an investment nature” shall re

37、fer to an enterprise that satisfies the followingconditions：1 an enterprise invested by a company with an investment nature directly or in conjunction with other foreig n an d/or chin ese investor (s), and the ratio of the in vestment of the foreign investor alone or in conjunction with the investme

38、nt of other foreign investor( s) in the company with an investment nature is more than 25% of the registered capital of such enterprise；2. an established enterprise in china whose equity interests, owned by the investor (s) ina company with an investment nature or by its affiliated company (companie

39、s), other foreign investor (s) and investors in china, are partly or entirely acquired by the company with an investment nature,and the investment of the foreign investor alone, or the joint amount ofinvestment of the foreign investor(s) and that of other foreign investor(s) in the company with an i

40、nvestment nature accounts for more than 25% of the registered capital of such enterprise； or3. the amount of investment of a company with an investment nature is not less than 10% of the registered capital of the enterprise in vested in and established by it.article 13 subject to the approval by the

41、 china banking regulatory commissi on, a company with an investment nature may provide financial support to enterprises invested in and established by it.article 14 compa nies with an in vestme nt n ature may act as spon sors in spon sori ng and establishing foreig nfun ded compa nies limited by sha

42、res or to hold un listed no refloating legal person shares of foreign-funded companies limited by shares. companies with an investment n ature may also hold un listed non -floating legal pers on shares of other domestic compa nies limited by shares in accordance with the re leva nt state provisions.

43、 compa nies with an in vestme nt nature shall be deemed to be foreign sponsors or shareholders of companies limited by sharesarticle 15 if, after a company with an investment nature is established, it has operated in accordanee with the law and has no record of violations of the law, and the registe

44、red capital has been paid in on schedule in accordanee with the articles of association, and the amount of registered capital actually paid in by the investors is not less than us$30 million and has been used for the purposes specified in article 8 hereof, it may, subject to the exami nation and con

45、sent of the department in charge of commerce of the provinee, autonomous region, municipality directly un der the cen tral go ver nment or city with in depe ndent developme nt plans where it is located, engage in the following businesses according to the actual needs of business activities in which

46、it engages in china after it has applied to the k/linistry of commerce and the application has been approved：1. appointed in writing (subject to a unanimous resolution of the board of directors) by its investee enterprise to engage in the following businesses：(1) act as a distributor on the domestic

47、 and foreign markets for the products produced by its investee enterprise； and(2) provide transportation,warehousing and other such comprehensive services to itsinvestee enterprise2. export domestic mercha ndise accordi ng to the re leva nt state provisi ons by acti ng as an agent or distributor, or

48、 by establishing an export procurement orga nizati on (includi ng in ter nal organization), and may handle refund for exports according to the relevant provisions；3. purchase the products of its investee enterprise and, after effecting system integration, sell such products domestically and abroad.

49、if the products of its investee enterprise are not able to completely satisfy the requirements of system integration, it shall be permitted to procure an ciliary system integration products domestically and abroad, provided that the value of such procured products does not exceed 50% of the value of

50、 all the products required to effect system in tegrati on；4. provide releva nt tech nical training to the domestic distributors and agents for the products of its investee enterprise and to the domestic companies and enterprises with which it, its pare nt compa ny or its affiliated company has en te

51、red into tech no logy tra nsfer agreeme nts；5. in order to carry out market development for the products of an investee enterprise before such enterprise comes on stream or before a new product of an investee enterprise enters into product!on, companies with an investment nature are permitted to imp

52、ort from their parent companies, for trial sale in china, products of their pare nt companies that are related to the products to be produced by the investee enterprise；6 provide commercial leasing services of machinery and office equipment to its investee enterprise or establish commercial lease fi

53、nancing company according to law；7. provide after-sale services for the products produced by its pare nt compa ny；8 participate in overseas project contracting of chinese enterprises that have the right to eng age in foreig n project con tracti ng；and9. sell (excludi ng retail) in china the products

54、 of its pare nt compa nies imported by it.article 16 a company with an investment nature that imports products according to items(3) and (5) of article 15 shall complete formalities according to the releva nt state provisio ns. the aggregate value of the afore-mentioned imports each year may not exc

55、eed the amount of registered capital that the company has already paid in.article 17 where a company with an investment nature applies to engage in the businesses spec讦ied in article 15 hereof, it shall submit the following documents to the ministry of commerce：1 an application signed by the legal r

56、epresentative of the company with an investment nature；2. the resolution of the board of directors of the company with an investment nature；3. the amended articles of association of the company with an investment nature；4. (photocopies of) the approval certificate, (photocopies of) the busi ness lic

57、e nee and the capital contribution verification report issued by a chinese certified accountant of the company with an investment nature；5. the capital contribution verification report of the investee enterprise issued by a chinese certified accountant； and6. other documents required by the ministry

58、 of commercearticle 18 the term of a company with an investment nature shall be determined according to the nature of the project to be established by the company with an investment n ature and on the basis of the re leva nt state regulati ons on the term of operati on of foreign-invested enterprise

59、s.article 19 the establishme nt of an en terprise by a compa ny with an in vestment n ature shall be submitted and approved individually in accordanee with the limits of authority and procedures for the exami nation and approval of foreig nin vested en terprises.article 20 where a company with an investment nature invests in and establishes an enterprise in which the ratio of the investment of the foreign investor alone or