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MOFCOM Order No.3 of 2016 - Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-funded Enterprises
2017/4/28 17:33:15 Source:

 MOFCOM Order No.3 of 2016 - Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-funded Enterprises

MOFCOM Order No.3 of 2016

 

The Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-funded Enterprises, adopted after deliberation at the 83rd executive meeting of the Ministry of Commerce, are hereby promulgated for implementation as of the date of promulgation.

Minister, Gao Hucheng

October 8, 2016

 

Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-funded Enterprises

 

Chapter I General Provisions

Article 1 In order to further expand opening-up, promote the reform of the foreign investment management system, and improve our domestic business environment in terms of legal, international and business-friendly practices, the Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-funded Enterprises (these "Measures") are formulated in accordance with the Law of the People's Republic of China on Sino-Foreign Equity Joint Ventures, the Law of the People's Republic of China on Sino-Foreign Cooperative Joint Ventures, the Law of the People's Republic of China on Wholly Foreign-owned Enterprises, the Company Law of the People's Republic of China and the relevant laws, administrative regulations and decisions of the State Council.

Article 2 If the incorporation and change of a foreign-funded enterprise does not involve the implementation of special access administrative measures prescribed by the State, these Measures shall apply.

Article 3 The competent commerce department under the State Council is responsible for the coordination and guidance of the record-filing administration for the incorporation and change of nationwide foreign-funded enterprises.

Competent commerce departments of all provinces, autonomous regions, municipalities directly under the Central Government, cities specifically designated in the state plan, Xinjiang Production and Construction Corps and cities at the deputy provincial level, and the relevant institutions of pilot free trade zones and state-level economic and technological development zones are institutions in charge of the record-filing of the incorporation and change of foreign-funded enterprises and responsible for the recording-filing administration for the incorporation and change of foreign-funded enterprises within their jurisdictions.

Institutions in charge of record-filing carry out the record-filing work through the foreign investment comprehensive administration information system (hereinafter referred to as the "comprehensive administration system").

Article 4 Foreign-funded enterprises or their investors shall provide information for record-filing in accordance with these Measures in an authentic, accurate and complete manner, and fill in the letter of commitment for record-filing application, and ensure that there are no false descriptions, misleading statements or major omissions. Foreign-funded enterprises or their investors shall properly keep a record of evidentiary materials related to the information already submitted for record-filing.

Chapter II Record-filing Procedures

Article 5 Where the incorporation of a foreign-funded enterprise falls within the scope prescribed in these Measures, after the prior approval of the enterprise name is obtained, the representative designated or agent jointly entrusted by all investors (or all promoters of foreign-funded companies limited by shares) before the issuance of a business license, or the representative designated or agent entrusted by the foreign-funded enterprise within 30 days upon issuance of a business license, shall fill in online and submit an Application for Record-filing of the Incorporation of a Foreign-funded Enterprise (hereinafter referred to as the Application for Incorporation) and the relevant documents via the comprehensive administration system, and go through record-filing formalities on incorporation.

Article 6 Within the record-filing scope prescribed in these Measures, in the case of the following change matters, the designated representative or entrusted agent of a foreign-funded enterprise shall fill in online and submit an Application for Record-filing of the Change of a Foreign-funded Enterprise (hereinafter referred to as the Application for Change) and the relevant documents within 30 days upon occurrence of the change via the comprehensive administration system, and go through recording-filing on change:

1. change of the basic information of a foreign-funded enterprise, including the name, registered address, type of business, operating period, investment industry, business type, business scope, whether or not falling within the scope of tax exemption or reduction for imported equipment stipulated by the State, registered capital, total investment, organizational structure, and legal representative, as well as the information, contact persons and contact methods of the ultimate actual controller of the foreign-funded enterprise;

2. change of the basic information of investors of a foreign-funded enterprise, including the name (title), nationality/region or address (place of registration or registered address), license type and number, subscribed capital contribution, type of investment, investment period, sources of funds, and change of the type of investor;

3. changes in equity (shares) or cooperation interests;

4. merger, division or dissolution;

5. a wholly foreign-owned enterprise mortgaging its interests in property to others;

6. advance recovery of investments by foreign partners of a Sino-foreign cooperative joint venture; and

7. entrusted operation and administration of a Sino-foreign cooperative joint venture.

Where such matters as merger, division and capital reduction shall be announced under the relevant laws and regulations, the handling of announcement formalities shall be stated in making record-filing of change.

Where the said change is subject to resolution by the highest authority, the time to make the resolution by the highest authority of a foreign-fund enterprise is the time of occurrence of the change; in the event of conditions otherwise required concerning the entry into force of the change of foreign-funded enterprises as prescribed by laws and regulations, the time to meet the appropriate requirements is the time of occurrence of the change.

Listed foreign-funded companies and foreign-funded companies listed on the National Equities Exchange and Quotations may go through record-filing formalities in respect of change in the basic information of investors or shares only when there is an accumulated change of more than 5% in shareholding ratio of foreign investors and a change in the holding position or relative holding position.

Article 7 When a foreign-funded enterprise or any of its investors handles the procedures for the record-filing of the incorporation or change of such enterprise, the following documents shall be uploaded via the comprehensive administration system:

1. materials for the prior approval of the name or business license of the foreign-funded enterprise;

2. a Letter of Commitment Regarding the Record-filing of the Incorporation of a Foreign-funded Enterprise signed by all investors (or all promoters) of the foreign-funded enterprise or its authorized representative, or a Letter of Commitment Regarding the Record-filing of the Change of a Foreign-funded Enterprise signed by the legal representative or authorized representative of the foreign-funded enterprise;

3. the certification testifying that all investors (or all promoters) or the foreign-funded enterprise designates a representative or jointly entrusts an agent, including a power of attorney and identity certification of the representative or agent;

4. the certification testifying that the investors or legal representative of the foreign-funded enterprise entrusts another party to sign the relevant documents, including a power of attorney and identity certification of the party (if no other party has been entrusted to sign the relevant documents, there is no need to provide the same);

5. investors' subject qualification certification or natural person identity certification (if the change does not involve the basic information of the investors, there is no need to provide the same); and

6. natural person identity certification of the legal representative (if the change does not involve a change of the legal representative, there is no need to provide the same).

Where the original of an above-mentioned document is made in a foreign language, the Chinese translation version shall also be uploaded and submitted; the foreign-funded enterprise or its investors shall ensure that the content of the translated version is consistent with that of the original.

Article 8 Where a foreign-funded enterprise has submitted the information before a business license is issued, if the change of actual investment circumstances occurs, the record-filing of the change shall be made with the institution in charge of record-filing within 30 days upon issuance of the business license.

Article 9 If there is a change in a foreign-funded enterprise incorporated upon approval, and the changed foreign-funded enterprise does not involve the implementation of special access administrative measures prescribed by the State, record-filing procedures shall be handled. Once the procedures are completed, the Certificate of Approval for Establishment of Enterprises with Foreign Investment shall be rendered invalid at the same time.

Article 10 In the case of a change in a foreign-funded enterprise subject to record-filing administration which involves the implementation of special access administrative measures prescribed by the State, the approval procedures shall be handled in accordance with the relevant laws and regulations on foreign investment.

Article 11 Foreign-funded enterprises or their investors shall submit online an Application for Incorporation or Application for Change and related documents, and the institutions in charge of record-filing will verify the completeness and accuracy of the filled-in information in the form and check whether the reporting matters fall within the scope of the record-filing. If they fall within the scope of record-filing prescribed in these Measures, the institutions in charge of record-filing shall complete record-filing within three working days; otherwise, institutions in charge of record-filing shall inform, within three working days, the foreign-funded enterprises or their investors online to handle the same in accordance with the relevant provisions and inform the relevant departments to handle the same in accordance with the law.

If recording-filing institutions find out any incompleteness or inaccuracy in the information filled in by foreign-funded enterprises or their investors in the form, or further explanation is necessary in connection with their business scope, such institutions shall inform them online of the relevant information to be supplemented online at one stroke within 15 working days. The time for supplementing the relevant information will not be included in the record-filing time limit set by institutions in charge of record-filing. If foreign-funded enterprises or their investors cannot supplement the relevant information within 15 working days, institutions in charge of record-filing shall inform foreign-funded enterprises or their investors online that they have failed to complete the record-filing. Foreign-funded enterprises or their investors can file separate applications in connection with the same incorporation or change. If the change or incorporation has been executed, an application shall be filed separately within five working days.

Institutions in charge of record-filing shall publish the results via the comprehensive administration system. Foreign-funded enterprises or investors can make enquiries about the record-filing information in the comprehensive administration system.

Article 12 After the completion of record-filing, foreign-funded enterprises or their investors may, on the strength of materials for the prior approval of names of foreign-funded enterprises (copies) or business licenses of foreign-funded enterprises (copies), obtain Record-filing Receipt for the Incorporation of Foreign-funded Enterprises or Record-filing Receipt for the Change of Foreign-funded Enterprises (hereinafter referred to as the "Record-filing Receipt") from institutions in charge of record-filing.

Article 13 The following contents are stated in the Record-filing Receipt issued by institutions in charge of record-filing:

1. the application materials have been submitted for the record-filing of the incorporation or change of foreign-funded enterprises or their investors, and comply with the requirements in terms of form;

2. recorded incorporation or change of foreign-funded enterprises;

3. incorporation or change of such foreign-funded enterprises falls within the scope of record-filing; and

4. whether they are within the scope of tax reduction or exemption for imported equipment stipulated by the State.

Chapter III Supervision and Administration

Article 14 Competent commerce departments supervise and inspect the implementation of these Measures by foreign-funded enterprises and their investors.

Competent commerce departments can perform spot checks, conduct examination according to reports, and perform checks based on the recommendations and feedback of the departments concerned or judiciary organs, as well as carry out ex officio supervision and inspection by starting checks or otherwise.

Competent commerce departments and the relevant administrative departments of public security, state-owned assets, customs, tax, industry and commerce, securities, and foreign exchange shall closely cooperate and coordinate to strengthen information sharing. If competent commerce departments find, in the process of supervision and inspection, any illegal behaviors of foreign-funded enterprises or their investors which do not fall within the scope of their administrative responsibilities, they shall promptly inform the departments concerned.

Article 15 Competent commerce departments shall, in accordance with the requirements for fair specifications, randomly determine objects for checks based on record-filing numbers of foreign-funded enterprises and randomly select and assign checkers to conduct supervision and inspection of foreign-funded enterprises and their investors. Random-check results are to be publicized by the competent commerce departments via the foreign investment information disclosure system of the Ministry of Commerce.

Article 16 If citizens, legal persons or other organizations find that foreign-funded enterprises or their investors have committed any behaviors in violation of these Measures, they can report the same to competent commerce departments. Where a report is in writing with clearly-identified persons reported against and the relevant facts and evidence provided, competent commerce departments shall conduct necessary check after receiving the report.

Article 17 Where other relevant departments or judicial organs find any behaviors of foreign-funded enterprises or their investors in violation of these Measures during performance of their duties, suggestions of supervision and inspection may be made to competent commerce departments, which shall promptly perform checks after receiving the relevant suggestions.

Article 18 For foreign-funded enterprises or their investors failing to carry out record-filing according to these Measures or having any record of inauthentic record-filing, lacking cooperation concerning supervision and inspection, or refusing to implement the administrative penalty decisions made by competent commerce departments, the competent commerce departments may launch an ex officio investigation against them.

Article 19 The supervision and inspection conducted by competent commerce departments on foreign-funded enterprises or their investors shall include:

1. whether the record-filing procedures have been handled according to these Measures;

2. whether the record-filing information filled in by foreign-funded enterprises or their investors is authentic, accurate and complete;

3. whether they have conducted investment and operation activities in forbidden investment sectors listed in the special access administrative measures prescribed by the State;

4. whether they have conducted investment and operation activities in the restricted investment sectors listed in the special access administrative measures prescribed by the State without approval;

5. whether there are circumstances which trigger the national safety review;

6. whether they have forged, altered, rented out, lent, or transferred the Record-filing Receipt; and

7. whether they have executed the administrative penalty decisions made by competent commerce departments.

Article 20 Competent commerce departments may examine in accordance with the law or require the examinees to provide the relevant materials, and the examinees shall truthfully provide such materials.

Article 21 The inspection conducted by competent commerce departments shall not impede the normal production and business activities of examinees. Things of value or services offered by examinees shall not be accepted. Unlawful interests shall not be sought.

Article 22 The integrity information of foreign-funded enterprises or their investors found out in the process of supervision and inspection by competent commerce departments and other responsible departments shall be kept in the foreign investment integrity records system of the Ministry of Commerce. Specifically, in the case of any failure to carry out record-filing, any case of forging, altering, renting out, lending or transferring the Record-filing Receipt, any inauthentic record-filing, lack of cooperation concerning supervision and inspection, or refusal to implement the administrative penalty decisions made by competent commerce departments, competent commerce departments shall disclose the integrity information via the foreign investment information disclosure platform of the Ministry of Commerce.

The Ministry of Commerce and the relevant departments shall share the integrity information of foreign-funded enterprises and their investors.

The integrity information disclosed or shared by competent commerce departments according to the preceding two paragraphs may not contain any personal privacy or trade secrets of foreign-funded enterprises or their investors, or state secrets.

Article 23 Foreign-funded enterprises and their investors may check their own integrity information in the foreign investment integrity records system of the Ministry of Commerce. If they believe the relevant information is incomplete or erroneous, they may provide the relevant evidentiary materials and apply to the competent commerce departments for correction. Amendment shall be made if the situations are found to be true after verification.

Where foreign-funded enterprises or their investors with bad credit records due to violation of these Measures do not violate these Measures again within three years after they correct the illegal acts and perform the relevant obligations, competent commerce departments shall remove such bad credit records.

Chapter IV Legal Liability

Article 24 Where foreign-funded enterprises or their investors, in violation of the provisions hereof, fail to perform their record-filing obligations, or have significant omissions in the process of record-filing, competent commerce departments shall order them to make corrections within a prescribed time limit; if they fail to make corrections within the prescribed time limit, or the circumstances are serious, a penalty of not more than CNY30,000 shall be imposed.

Where foreign-funded enterprises or their investors, in violation of the provisions hereof, avoid performing record-filing obligations, or conceal the actual circumstances or provide misleading or false information in the process of record-filing, or forge, alter, rent out, lend or transfer the Record-fling Receipt, competent commerce departments shall order them to make corrections within a prescribed time limit and impose a penalty of not more than CNY30,000 against them. In the case of violation of other laws and regulations, the relevant departments shall investigate the corresponding legal liability.

Article 25 If foreign-funded enterprises or their investors conduct investment and operation activities in restricted investment sectors listed in the special access administrative measures prescribed by the State without approval, competent commerce departments shall order them to make corrections within a prescribed time limit, and impose a fine of not more than CNY30,000. In the case of violation of other laws and regulations, the relevant departments shall investigate the corresponding legal liability.

Article 26 If foreign-funded enterprises or their investors conduct investment and operation activities in forbidden investment sectors listed in the special access administrative measures prescribed by the State, competent commerce departments shall order them to make corrections within a prescribed time limit, and impose a fine of not more than CNY30,000. In the case of violation of other laws and regulations, the relevant departments shall investigate the corresponding legal liability.

Article 27 If foreign-funded enterprises or their investors evade, deny, or otherwise obstruct the supervision and inspection by competent commerce departments, the competent commerce departments shall order them to make corrections and impose a fine of not more than CNY10,000.

Article 28 Where a functionary, in the course of record-filing or supervision administration, abuses his/her powers, commits dereliction of duty, resorts to deception for personal gains, or accepts bribes, an administrative sanction shall be imposed in accordance with the law; if a crime is constituted, criminal liability shall be investigated in accordance with the law.

Chapter V Supplementary Provisions

Article 29 For incorporation or change of a foreign-funded enterprise that has been accepted by the competent commerce department before the implementation of these Measures, the examination and approval for which has not been completed and which is within the scope of record-filing, the examination and approval procedures shall be terminated, and the foreign-funded enterprise or its investors shall go through the record-filing formalities in accordance with these Measures.

Article 30 If a foreign investment matter involves antitrust review, the relevant provisions shall apply.

Article 31 Where a foreign investment matter involves the national security review, it will be handled according to the relevant provisions. When an institution in charge of record-filing believes that a foreign investment matter may fall within the scope of national security review in handling record-filing procedures or supervision and inspection, but the investors of the foreign-funded enterprise concerned fail to file an application for national security review with the Ministry of Commerce, such institution shall promptly inform the investors to do so, temporarily suspend the handling of the relevant procedures, and meanwhile report the relevant circumstances to the Ministry of Commerce.

Article 32 Foreign-funded enterprises of the class of investment (including investment companies and venture capital companies) shall be deemed as foreign investors and governed by these Measures.

Article 33 If the investment made by investors in the Hong Kong Special Administrative Region, the Macao Special Administrative Region or Taiwan region does not involve the implementation of special access administrative measures prescribed by the State, these Measures shall apply mutatis mutandis.

Article 34 Hong Kong service providers shall invest only in the service trade sectors in the Mainland available for Hong Kong investors under the Agreement on Trade in Services under the Mainland and Hong Kong Closer Economic Partnership Arrangement, and Macau service providers shall invest only in the service trade sectors in the Mainland available to Macau investors under the Agreement on Trade in Services under the Mainland and Macau Closer Economic Partnership Arrangement. The record-filing of incorporation and change of their companies shall be subject to the Administrative Measures for the Record-filing of Investments by Hong Kong and Macau Service Providers in the Mainland (for Trial Implementation).

Article 35 Where departmental rules and the relevant documents promulgated by the Ministry of Commerce before these Measures come into force are inconsistent with these Measures, these Measures shall prevail.

Article 36 The relevant institutions of pilot free trade zones and national economic and technological development zones shall supervise and inspect the compliance by foreign-funded enterprises within their jurisdictions and their investors with these Measures according to Chapter III and Chapter IV hereof.

Article 37 These Measures shall come into force as of the date of promulgation. The Administrative Measures for the Record-filing of Foreign Investment in Pilot Free Trade Zones (for Trial Implementation) (MOFCOM Announcement Order No.12 of 2015) shall be repealed simultaneously.

Appendices:

I. Application Materials for Record-filing of the Incorporation of Foreign-funded Enterprises (omitted)

II. Application Materials for Record-filing of the Change of Foreign-funded Enterprises (omitted)

III. Record-filing Receipt for the Incorporation of Foreign-funded Enterprises (omitted)

IV. Record-filing Receipt for the Change of Foreign-funded Enterprises (omitted)

(Note: website of the foreign investment comprehensive administration information system: http://wzzxbs.mofcom.gov.cn)

 

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