关于外商投资企业合并与分立的规定-英文版

1、Regulations of the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce on Merging and Splitting of Foreign-funded Enterprises(No.395 1999 of the Ministry of Foreign Trade and Economic Cooperation Amended according to the Decision of the Mini

2、stry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce on Amending the Regulations on Merging and Splitting of Foreign-funded Enterprises of November 22, 2001)Article 1 To standardize the actions related to merging and splitting of foreign-funded enterp

3、rises and to protect the legal rights and interests of investors of the enterprises and creditors, these Regulations are enacted in accordance with the Company Law of the People' Republic of China and with laws and administrative regulations on foreign-funded enterprises.Article 2 These regulati

4、ons are applicable to the merging between and the splitting of Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures with legal person status, wholly foreign-owned enterprises, and foreign-funded joint-stock limited companies (hereinafter referred to as companies) that ar

5、e established within the Chinese territory in accordance with the Chinese laws.Merging between the companies and Chinese domestic-funded enterprises shall be handled in reference to the relevant laws, regulations and these Regulations.Article 3 Merging as used in these Regulations refers to the merg

6、ing into one company of two or more companies through signing agreement according to the rules of the Company Law.Merging of companies may take the forms of merger and consolidation.Merger refers to a company absorbs another or others and remains in existence while the absorbed is or are dissolved.C

7、onsolidation refers to two or more companies merge into one new company and the original ones are dissolved. .Article 4 Splitting as used in these Regulations refers to the fact that one company is divided into two or more companies through decisions made by the body of supreme power of the company

8、in accordance with the Company Law.Splitting may take the forms of split-off and split-up.Split-off refers to the fact that one company is divided into two or more companies while the company remains to exist after the establishment of one or more new companies.Split-up refers to the fact that one c

9、ompany is divided into two or more companies while the company itself is dissolved after the establishment of two or more new companies.Article 5 Merging or splitting of companies shall abide by the Chinese laws, regulations and these Regulations, shall follow the principle of self-willingness, equa

10、lity and fair competition, and shall not be harmful to the social public interest and to the legal rights and interests of the creditors.Merging or splitting of companies shall be accorded with the stipulations of the Provisional Regulations Guiding the Directions of Foreign Investment and of the Gu

11、iding Catalog of Industries for Foreign Investment, and shall not lead to solo investment, share-controlling or dominance status by foreign investors in companies of industries where solo investment, share-controlling or dominance status by foreign investors are not allowed.Alteration in industry or

12、 scope of business of companies as a result of merging or splitting shall be governed by the relevant laws, regulations and provisions of the State industrial policies, and shall go through the approval procedures.Article 6 Merging or splitting of companies shall be accorded with the regulations iss

13、ued by the departments of the Customs, taxation and foreign exchange. After verified by the departments of examination and approval, the Customs and taxation, etc., companies which continue to exist or the newly established after merging or splitting shall continue to enjoy the same various treatmen

14、ts of foreign-funded enterprises as they enjoyed originally.Article 7 Merging or splitting of companies shall be examined and approved by the original departments for examination and approval, and shall go to the registration department for the registration of establishment, alteration or the cancel

15、lation of registration.Where there exist more than two original departments for examination and approval for the companies to be merged, the registration departments authorized by the department of foreign trade and economic cooperation in the place of residence of the merged companies and the State

16、 Administration for Industry and Commerce (hereinafter referred to as SAIC for short) shall be the institutions functioning for examination and approval and registration.Where the total amount of investment of the companies to be merged exceeds the power of the original authorities for examination a

17、nd approval or that of the authorities for examination and approval in the place of residence of the merged companies, the merging shall be examined and approved by the competent authorities with the power for examination and approval.Where at least one of the companies to be merged is joint-stock l

18、imited company, the merging shall be examined and approved by the Ministry of Foreign Trade and Economic Cooperation (hereinafter referred to as MOFTEC for short).Article 8 For dissolution of the original companies or establishment of new companies in different places owing to merging or splitting,

19、opinions should be sought from the authorities for examination and approval in the place where the companies to be dissolved or established are located.Article 9 Companies shall not be merged or split before they pay their capital, provide conditions for cooperation and actually start production and

20、 operation in accordance with the companies contract and the articles of association. Where the investors have already paid the capital, provided the conditions for cooperation, the companies may merge with Chinese domestic-funded enterprises. Article 10 Merging between liability limited compan

21、ies will result in a liability limited company. Merging between joint-stock limited companies will result in a joint-stock limited company.Merging between listed joint-stock limited companies and liability limited companies will resulte in a joint-stock limited company. Merging between non-listed jo

22、int-stock limited companies and liability limited companies will result in either a joint-stock limited company or a liability limited company after.Article 11 In case of merging between the joint-stock limited companies or where the companies merge into a limited liability company, the re

23、gistered capital of the merged company shall be the totality of the amount of registered capital of the original companies.Where the liability limited companies and joint-stock limited companies merge into one joint-stock limited company, the registered capital of the merged company shall be the tot

24、ality of the value of shares converted into from the value of net assets each share of the original liability limited companies contains and the total shares of the original joint-stock limited companies.Article 12 In case of merging between companies accorded with Clause one of Article 11

25、 of these Regulations, the stock equity proportion of the invested parties to the merged company shall be determined, as stipulated by the State, through negotiations between the investors or calculated in accordance with the appraisal result of the stock equity value of the original company done by

26、 an assets evaluation institution, and shall be recorded in the contract and the articles of association of the merged company. But the equity proportion of the foreign party shall not be below 25% of the registered capital of the merged company.Article 13 The amount of registered capital of each of

27、 the split companies shall be determined by the body of supreme power of the original company, in accordance with the relevant laws and regulations concerning foreign-funded enterprises and regulations of the registration institutions. But the totality of the amount of registered capital of each of

28、the split companies shall be equal to the total amount of registered capital of the original company.Article 14 The stock equity proportion of all investors in each of the split companies shall be determined by the investors in the contracts and the articles of association of the split companies, bu

29、t the equity proportion of foreign party shall not be below 25% of the registered capital of the split company.Article 15 Where the merging of companies takes the form of merger, the date of establishment of the absorbing company shall be the date of establishment of the merged company; for that tak

30、ing the form of consolidation, the date on which the registration institution gives its approval for the establishment registration and issues the business license shall be the date of the establishment of the merged company.Where any new company is established as a result of splitting, the date on

31、which the registration institution gives its approval for the establishment registration and issues the business license shall be the date of the establishment of the split company.Article 16 Where the merging or splitting involves any listed joint-stock limited company, it must be acted in conformi

32、ty with the relevant laws and regulations and the regulations on listed companies issued by the departments for supervision of securities under the State Council, and shall go through necessary procedures for examination and approval.Article 17 Merging between foreign-funded companies and Chinese do

33、mestic-funded enterprises shall be carried out in accordance with the Chinese laws and regulations on the use of foreign investment and China's industrial policies, and shall meet the following conditions:(1) The Chinese domestic-funded enterprises to be merged must be liability limited companie

34、s or joint-stock limited companies established in accordance with the norms stipulated in the Company Law of the People's Republic of China;(2) The investors must meet with the qualifications required for the investors engaged in the related industries of the merged company as stipulated in the

35、relevant laws, regulations and rules by the departments concerned;(3) The stock equity proportion of the foreign party shall not be below 25% of the registered capital of the merged company;(4) All parties to the agreement on merging shall guarantee full employment of their original staff members an

36、d workers of the companies to be merged or make rational arrangement.Article 18 Where companies and Chinese domestic-funded enterprises merge into a foreign-funded enterprise, the total amount of investment thereof shall be totality of the total amount of investment of the original companies and the

37、 total amount of enterprise assets recorded in the financial auditing reports of the Chinese domestic-funded enterprises. The proportion that the registered capital takes in the total amount of investment of the merged company shall be in accordance with the Interim Provisions on the Proportion of R

38、egistered Capital in the Total Amount of Investment of Chinese-foreign Equity Joint Ventures of the SAIC; where those Provisions cant be carried out under special circumstances, approval from the MOFTEC together with the SAIC is required.Article 19 Where the enterprises already established by the Ch

39、inese domestic-funded enterprises merging with the companies become the enterprises in which the companies hold shares, the requirements of Chinas industrial policies on the use of foreign investment and the Interim Provisions on Investment Made by Foreign-funded Enterprises within China&#

40、160;shall be complied with. The merged company shall not hold stock equities in the enterprises of the industries in which foreign investment is prohibited. Article 20 In case of merger of companies, the absorbing party should be the applicant. In case of consolidation of companies, a

41、n applicant should be determined through negotiations of all parties.The following documents should be submitted by the applicant to the authorities for examination and approval:(1) Application for the merging of the companies and agreement on merging of the companies signed by the legal representat

42、ives of all companies concerned;(2) Decision on the merging of companies made by the supreme authorities of each of the companies;(3) Contracts and the articles of association of all companies;(4) Copies of approval certificates and business licenses of all companies;(5) Credit examination reports o

43、f all companies provided by authorized Chinese institutions for credit examination;(6) Balance sheets and property lists of all companies;(7) Audit reports of the previous year of all companies;(8) Lists of creditors of all companies;(10) Membership list of the body with supreme power of the merged

44、company;(11) Other documents required by the authorities for examination and approval.Where the companies merge with Chinese domestic-funded enterprises, the applicant shall also submit the copies of the business licenses of the enterprises already established by those Chinese domestic-funded enterp

45、rises to be merged to the authorities for examination and approval. Article 21 The agreement on merging of companies should include the following contents:(1) Names, addresses and legal representatives of all parties to the agreement on merging;(2) Name, address and legal representative of the

46、merged company;(3) The total amount of investment and registered capital of the merged company;(4) The form of merging;(5) The succession plan for creditors' rights and debts of the parties to the agreement on merging;(6) Measures for the arrangement of the staff members and workers;(7) Liabilit

47、ies for breach of contract;(8) Ways for settlement of disputes;(9) Date and place for signing agreement;(10) Other items deemed necessary to stipulate by the contractual parties to the agreement on merging.Article 22 Where companies to be merged involve two or more original authorities for examinati

48、on and approval, the companies to be dissolved should submit an application for dissolution to the original authorities for examination and approval before they submit the relevant documents in accordance with Article 18 of these Regulations to the authorities concerned for examination and approval.

49、The original authorities for examination and approval should give a reply within 15 days from the date of the receipt of the application for dissolution as stipulated in the preceding Clause. Where the original authorities for examination and approval fail to give a reply within 15 days, it will be

50、deemed that the original authorities for examination and approval have agreed the dissolution of the company.When the original authorities for examination and approval give a negative reply within the period as stipulated in the preceding Clause to the company's application for dissolution, the

51、company to be dissolved may submit the application for dissolution to the responsible department of foreign trade and economic cooperation at the higher level to both the original authorities for examination and approval and the authorities for examination and approval of the merging, and the said d

52、epartment shall give a judgment within 30 days upon the receipt of the application for dissolution of the company.If the authorities for examination and approval disagree or do not approve the merging of companies, the reply on the dissolution of the companies shall become invalid automatically.Arti

53、cle 23 A company to be split should submit to the authorities for examination and approval the following documents:(1) Application for splitting of the company signed by the legal representative of the company;(2) Decision on splitting of the company by the body of supreme power of the com

54、pany;(3) Agreement on splitting of the company signed by companies that remain to exist or to be newly established (hereinafter referred to as parties to the agreement on splitting) owing to the splitting;(4) Contract and the articles of association of the company;(5) Copies of approved certificates

55、 and business license of the company;(6) Credit examination reports of the company provided by authorized Chinese institutions for credit examination;(7) Balance sheet and property list of the company;(8) List of creditors of the company;(9) Contracts and articles of association of all split compani

56、es;(10) Membership lists of the bodies of supreme power of the split companies;(11) Other documents required by the authorities for examination and approval.Where any company is newly established in different place, the company shall also submit the opinions on the establishment of new company signe

57、d by the authorities for examination and approval in the place where the company to be established is located.Article 24 The agreement on splitting of the a company should include the following contents:(1) Names, addresses and legal representatives of the parties to the agreement on splitting;(2) T

58、he total amount of investment and registered capital of the split companies;(3) The form of splitting;(4) Plan agreed by the parties to the agreement on splitting for property partition of the company to be split;(5) The succession plan agreed by the parties to the agreement on splitting for credito

59、rs' rights and debts of the company to be split;(6) Measures for the arrangement of the employees;(7) Liabilities for breach of contract;(8) Ways for the settlement of disputes;(9) Date and place for signing agreement;(10) Other items deemed necessary by the parties to the agreement on splitting.Article 25 Companies continuing to