您的当前位置: 首页 >> Investment >> 文章正文
Detailed Rules and Regulations for the Implementation of
阅读选项: 自动滚屏[左键停止]
作者:  来源:  阅读:

Detailed Rules and Regulations for the Implementation of

the Law of the People’s Republic of China on Sino-Foreign Contractual Cooperative Enterprises

   (Effective September 4, 1995 )
(Unofficial Translation)

Chapter I General Provisions

Article 1  These Detailed Rules and Regulations are formulated in accordance with the Law of the People"s Republic of China on Sino-Foreign Contractual Cooperative Enterprises.

Article 2  Sino-foreign Contractual Cooperative Enterprises (hereinafter referred to as CCE) established within the territory of the People"s Republic of China shall comply with the development policies and industrial policies of the State and follow the State"s regulations on direction guide to foreign investments.

Article 3  CCE shall have the lawful right to do business and manage its operations independently within the scope pursuant to the approved CCE agreement, contract and the articles of association and shall not be interfered by other organizations and individuals.

Article 4  CCE includes the CCE with the status of a legal person according to law or without the status of a legal person. CCE without the status of a legal person shall comply with the provisions in Chapter IX of these Detailed Rules.

Article 5  The department in charge of the CCE shall be the department in Charge of the Chinese Partner. When CCE has two or more Chinese partners, the examing and approving authorities may consult with the relevant departments to ascertain the department in charge of that CCE, unless otherwise stipulated in law and administrative regulations.

The department in charge of the CCE shall coordinate the affairs of the CCE and provide assistance to the CCE in accordance with law.

Chapter II Establishment of CCE

Article 6  The establishment of CCE is subject to examination and approval by the Ministry of Foreign Trade and Economic Cooperation (MOFTEC)or the departments and the local People"s government authorized by the State Council.

The establishment of CCE under the following situations shall be examined and approved by the departments or the local People"s government authorized by the State Council:

(1) Total investment within the approval limit, which the departments or the local People"s government authorized by the State Council may approve, as stipulated by the State Council;

(2) Self-funding and without the need of balancing of the infrastructure and production conditions by the State ;

(3) The export of products is not subject to export licenses and export quotas to be issued by the relevant department in charge of the State, or even though expert licenses and export quotas are required, approval has been obtained from the State"s relevant department in charge before submission of project proposal;

(4) Other circumstances for the departments or the local People"s government authorized by the State Council to examine and approve as stipulated by the law and administrative regulations.

Article 7  The Chinese partner shall submit following documents to the examining and approving authorities for the establishment of CCE :

(1) Project proposal for the establishment of the CCE and the document of examination and agreement from the department in charge;

(2) The feasibility study report jointly drawn up by the cooperative parties and the document of examination and agreement from the department in charge;

(3) Agreement, contract and articles of association of the CCE signed by legal representatives or authorized representatives of the cooperative parties;

(4) The business licenses or certificates of incorporation and registration of the cooperative parties, certificate of creditability and valid certificates of legal representatives; valid documents certifying his identity, resume and creditability when the foreign partner is a natural person;

(5) List of chairman, vice chairman, directors, or the head, deputy head, members of the joint management committee of the CCE determined after consultation between the cooperative parties;

(6) Other documents requested by the examining and approving authorities.

All the above documents, except for documents under item (4) to be provided by the foreign partner, shall be submitted in Chinese. Documents(2),(3)and (5) can be submitted concurrently in a foreign language being agreed upon by the cooperative parties.

The examing and approving authorities shall decide whether to approve or not within 45 days upon receipt of all the required documents. Should any incompleteness or inappropriateness be found in any of the submitted documents, the examing and approving authorities have the right to demand submission of missing information or an amendment by the cooperative parties within a prescribed time limit.

Article 8  If a CCE is approved by MOFTEC or a department authorized by the State Council, the approval certificate shall be issued by the MOFTEC.

If the establishment of a CCE is approved by the local People"s government authorized by the State Council, the approval documents shall be issued by the relevant local People"s government and shall, within 30 days of the approval date, be submitted to the MOFTEC for records. The approved CCE shall perform the registration procedures with and obtain Business License from the authorities for the administration of industry and commerce.

Article 9 Application to establish CCE shall not be granted approval under any one of the following circumstances:

(1) Detriment to the State"s sovereignty or to the social public interests;

(2) Endanger the States security;

(3) Create pollution and damage to the environment;

(4) Violate the laws, administrative regulations or the State"s industrial policies.

Article 1O The CCE agreement stipulated in these Detailed Rules refers to the written document regarding the principles and major items for the establishment of the CCE as unanimously agreed by the cooperative parties.

The CCE contract stipulated in these Detailed Rules refers to the written document regarding the mutual rights and responsibilities for the establishment of the CCE as unanimously agreed by the cooperative parties.

The CCE articles of association stipulated in these Detailed Rules refers to the written documents regarding CCE"s organization principle, operation and management method, etc., in accordance with the CCE contract as unanimously agreed by the cooperative parties.

When the contents of the CCE agreement and the articles of association are inconsistent with those of the contract, the CCE contract shall prevail.

The cooperative parties may enter into no CCE agreement.

Article 11 CCE agreement, contract and articles of association shall come into force on the date the approval document is issued by the examining and approving authorities. During the cooperation term, approval shall be obtained from the examining and approving authorities when there are significant changes in the CCE agreement, contract and articles of association.

Article 12 The CCE contract shall include the following contents :

(l) The names, the places of registration, the address of the cooperative parties, and the names, occupation and nationalities of the legal representatives thereof (the name, nationality and residential address when the foreign partner is a natural person);

(2) The name, address, business scope of the CCE;

(3) Total investment and registered capital of the CCE, forms and time limit for capital to the contributed or appropriate conditions to be provided by the cooperative parties,

(4) Assignment of capital or cooperative conditions by the cooperative parties ;

(5) Profit or products distribution, risk or loss sharing between the cooperative parties;

(6) The composition of the board of directors or joint management committee of the CCE and the allocation of the quota of directors or joint management committee members. The responsibilities and the method of the appointment and dismissal of the general manager and other senior management personnel ;

(7) The major production facilities and technologies used and their sources;

(8) The arrangement of products sold written and outside the territory of the People"s Republic of China;

(9) The arrangement for receipts and payments in foreign exchange of the CCE ;

(10) The duration, dissolution and liquidation of the CCE;

(11) The other responsibilities and liabilities for breach of contract of the cooperative parties;

(12) Finance, accounting and auditing principles;

(13) Settlement of disputes between the cooperative parties;

(14) Procedures for amendment to the CCE contract.

Article 13 Articles of association of the CCE shall include the following contents :

(1) The name and address of the CCE;

(2) The business scope and cooperation duration of the CCE;

(3) The names, the places of registration and address of the cooperative parties, and the names, occupation nationalities of the legal representatives thereof (the name, nationality and residential address when the foreign partner is a natural person) ;

(4) Total investment and registered capital of the CCE, forms and time limit for capital to be contributed or cooperative conditions to be provided by the cooperative parties ;

(5) Profit or products distribution, risk or loss sharing between the cooperative parties,

(6) The composition, authorities and rules for resolutions of the board of directors on the joint management committee of the CCE, the term of office of the directors of the board or joint management committee members, and the responsibilities of the chairman and deputy chairman or the head or deputy head of the joint management committee;

(7) The setting up, authorities and rules for handling business of the management office, the responsibilities and the method of the appointment and dismissal of the general manager, and other senior management personnel;

(8) The rules of labor management such as employees" recruitment, training, labor contract, wages, social security, welfare, occupational safety and hygiene, etc. ;

(9) Finance, accounting and auditing systems of the CCE;

(10) Ways for dissolution and liquidation of the CCE;

(11) Procedures for amendment to the articles of association of the CCE.

Chapter III Form of Organization and Registered Capital

Article 14 The CCE which obtained the status of a legal person shall be a limited liability company. Unless the CCE contract stipulates otherwise, the cooperative parties shall be liable to the CCE to the extend of the respective capital to be contributed or the cooperative conditions to be provided.

The CCE shall be responsible for its liabilities with all its assets.

Article 15 The total investment of the CCE refers to the total sum of funds required to be contributed, in accordance with the production and operation scale stipulated in the CCE contract and the articles of association.

Article 16 The registered capital of the CCE refers to the sum of capital to be contributed by the cooperative parties and registered with the authorities for the administration of industry and commerce for the establishment of the CCE.

Registered capital shall be stated in Renminbi, and may be stated in a freely convertible foreign currency as agreed by cooperative parties.

The registered capital of the CCE cannot be reduced during the term of the cooperation. However, any reduction needed due to changes in total investment and scale of production operation, etc. , shall be subject to the approval by the examing and approving authorities .

Chapter IV Investment, Cooperative Conditions

Article 17 The cooperative parties shall contribute capital into or provides cooperative conditions to the CCE in accordance with the stipulations of the relevant laws, administrative regulations and the arrangement in the CCE contract.

Article 18 Capital to be contributed or cooperative conditions to be provided to the CCE by the cooperative parties can take the form of cash, or property rights such as tangible properties or industrial property rights, proprietary technology, rights, land use rights, etc,

When the capital contribution or cooperative conditions provided by the Chinese partner is State-owned property, asset valuation shall be performed in accordance with the provisions of the relevant laws and administrative regulations.

The investment from the foreign partner in the CCE that obtain the Chinese legal person status by law generally shall not be lower than 25% of the CCE"s registered capital. The detailed requirements for capital contributed or cooperative conditions provided by cooperative parties in the CCE without the status of legal person shall be regulated by the MOFTEC.

Article 19 Cooperative parties shall use their own properties or property rights as capital contribution or cooperative conditions and the said capital contribution or cooperative conditions shall not be pledged under charge or any other form of security.

Article 20 In accordance with the production and operation needs of the CCE and the provisions of the relevant laws and administrative regulations, the cooperative parties shall stipulate in the CCE"s contract the time limit of capital contribution or provision of cooperative conditions by the cooperative parties to the CCE ,

If the cooperative parties do not comply with the contribution of the capital or provision of cooperative conditions as stipulated in the CCE contract, the authorities for the administration of industry and commerce shall set a time limit for compliance. When the imperative parties do not comply upon expiry of the time limit, the examing and approving authorities shall rescind the approval certificate of the CCE, the authorities for the administration of industry and commerce

Shall set a time limit for compliance. When the cooperative parties do not comply upon expiry of the time limit, the examing and approving authorities shall rescind the approval certificate of the CCE, the authorities for the administration of industry and commerce shall revoke the CCE"s business license and announce to the public.

Article 21 The cooperative party who does not contribute the capital or provide the cooperative conditions according to the stipulations the CCE contract, shall bear the liabilities for breach of contract the other parties who contribute the capital or provide the cooperative conditions according to the provisions of the CCE contract.

Article 22 After the capital has been contributed or the cooperative conditions have been provided by the cooperative parties, a Chinese certified public accountant shall verify and issue a verification report and base on which the CCE shall issue to the cooperative parties a certificate of capital contribution. The certificate of capital contribution shall include the following items:

(1) The name of the CCE ;

(2) The date of the establishment of the CCE;

(3) The name of the cooperative partners;

(4) The contents of the capital contributed or the cooperative conditions provided by the cooperative parties;

(5) The date when the capital is contributed or cooperative conditions are provided by the cooperative parties;

(6) The serial number and date of issuance of the certificate of capital contribution.

A copy of the verification report shall be submitted to the examining and approving authorities and the authorities for the administration of industry and commerce.

Article 23 The assignment of the whole or part of the interest in the CCE between the cooperative parties or by one cooperative party of the CCE to a third party shall obtain the written consent of the other cooperative party(ies) and report to the examining and approving authorities for approval.

The examining and approving authorities shall decide whether to approve or disapprove within 30 days upon receiving the relevant documents of assignment.

Chapter V Organization

Article 24 A CCE shall set up its board of directors or the joint management committee. The board of directors or the joint management committee is the authority of the CCE which shall decide all major issues concerning the CCE according to the provision of the CCE articles of association.

Article 25 The board of directors or the joint management committee shall consist of not less than three members. The allocation of the quota of directors shall be ascertained through consultation by the cooperative parties with reference to the respective capital contributed and cooperative conditions provided.

Article 26 The members of the board of directors or the joint management committee shall be appointed or dismissed by the respective cooperative parties. The method of appointment of the chairman and the vice chairman of the board of director"s or the head and the deputy head of the joint management committee shall be stipulated in the CCE articles of association. If the position of the chairman of the board of directors or the head of the joint management committee is held by one party then the vice chairman of the board of directors or deputy head of the joint management committee shall be held by the other party.

Article 27 The term of office for the directors or the joint committee members shall be stipulated in the CCE articles of association, but not exceed three years. Their term of office may be renewed with the continuous appointment by the appointing parties upon expiry.

Article 28 The board of director"s or the joint management committee meeting shall be convened at least once a year. The meeting shall be called and presided over by the chairman or the head. Should the chairman or the head be unable to exercise his responsibilities due to special reason, he shall designate the vice chairman, deputy head or the other directors or committee members to call and preside over the meeting. A board of directors or joint management committee meeting may be convened based on a proposal made by more than one-third of the directors or committee members.

A meeting of the board of directors on the joint management committee shall require a quorum of over two-thirds of the directors or committee members.

Should a director or a committee member be unable to attend meeting of the board of directors or the joint management committee, he shall present a proxy in writing authorizing someone else to represent him and vote for him. The resolution of the meeting of the board or committee shall be passed by more than half of all directors of the board or committee members. Should a director or a committee member without reasonable excuse fails to attend or to authorize his representative to attend the meeting of the board of directors or the joint management committee, he will be considered present in the meeting of the board of directors or the joint management committee and abstained from the voting right. When convening a board meeting or a committee meeting, all directors or committee members shall be notified 10 days before the meeting. The directors or committee members may pass written resolution by circulation.

Article 29 Decisions on the following items shall be made only after being unanimously agreed upon by the directors or committee members present at the meeting of the board of directors or joint management committee :

(1) Amendment of the articles of association of the CCE;

(2) Increase or reduction in the registered capital of the CCE;

(3) Dissolution of the CCE;

(4) Mortgage of the assets of the CCE;

(5) Merger, de-merger and change of the organization form of the CCE ;

(6) Other items need to be unanimously agreed upon by the meeting of the board of directors or joint management committee as agreed by the cooperative parties .

Article 30 The method and the procedure of resolution of the meeting of the board of directors or joint management committee shall be stipulated by the CCE articles of association, unless otherwise provided in these Detailed Rules.

Article 31 The chairman or the head is the legal representative of the CCE. When the chairman or the head is unable to exercise his responsibilities due to special reasons, he shall authorize the vice chairman, deputy head , or other directors or committee members to represent the CCE in the external dealings .

Article 32 A CCE shall have a general manager who shall be responsible for the daily operation and management of CCE and shall be responsible to the board of directors or the joint management committee.

The general manager of the CCE shall be appointed or dismissed by the board of directors or the joint management committee.

Article 33 The general manager and the other senior management personnel may be Chinese citizens or foreign citizens. Upon appointment by the board of directors on the joint management committee, a director or a committee member may concurrently hold the office of the general manager or other senior management of the CCE.

Article 34 In case of incapacity, graft or serious dereliction of duty on the part of the general manager or other senior management personnel, the board of directors or joint management committee may dismiss him by resolution. The general manager or other senior management personnel shall be liable by law to the losses caused to the CCE.

Article 35 Appointment of third party to operate and manage after the establishment of the CCE shall be subject to the unanimous agreement of the board of directors or the joint management committee and a management contract shall be signed with the appointee.

The CCE shall submit the resolution of the board of directors or joint management committee, the management contract together with the credit reference documents of the appointee to the examining and approving authorities for approval. The examining and approval authorities shall decide whether to approve or disapprove within 30 days upon receiving the relevant documents.

Chapter VI Purchasing Materials and Selling Products

Article 36 The CCE shall formulate its production and operating plan in accordance with the approved business scope and scale of production. Government departments shall not force the CCE to carry out the production and operating plans imposed by government departments.

Article 37 The CCE has the right to decide whether to purchase in China or from abroad the required machinery, equipment, raw materials, fuel, parts, spare parts, components, means of transport and items for office use, etc. ( hereinafter referred to as "materials" ) .

Article 38 The State encourages the CCE in selling its products to the international market. The CCE can sell its products to the international market by itself, or entrust a selling agent outside China or a Chinese foreign trade company to sell the products on a commission or distribution basis. The price of the products sold shall be determined by the CCE in accordance with law.

Article 39 The machinery, equipment, parts and other materials imported as foreign partner"s investment and the machinery, equipment, parts and other materials imported by the CCE using the funds within the total investment for production and operation need shall be exempt from customs duty and import turnover taxes. Reselling or selling the above mentioned duty-free materials upon approval within the People"s Republic of China shall be subject to tax or the tax previously exempted shall be repaid.

Article 40 The CCE shall not export products at a price obviously less than the reasonable price of the same type of products in the international market. The CCE shall not import materials at a price higher than the price of the same type of products in the international market.

Article 41 The CCE shall sell its product according to its approved selling arrangements stipulated in the CCE contract.

Article 42 If the CCE import and export commodities which are subject to import/export licenses or quotas, it shall follow the application procedures in accordance with the provisions of the relevant regulations of the State.

Chapter VII Income Appropriation and Investment Repatriation

Article 43 The Sino-foreign cooperative partners may adopt profits distribution, product distribution or other measures as mutually agreed to distribute income.

In case of adopting the product distribution or other measures for the income distribution, the taxable income shall be computed in accordance with the relevant provisions of the tax laws.

Article 44 In case the Sino-foreign cooperative partners stipulate in the CCE contract that all the fixed assets of the CCE be reverted to the Chinese cooperative partner free of charge upon the expiration of the agreed term, the foreign cooperative partner may apply for early repatriation of its investment within the cooperative period by the following ways:

(1) Based on the principle of distribution in accordance with the ratio of capital contribution or cooperative conditions provision, to increase the foreign cooperative partner"s income distribution proportion as stipulated in the CCE contract ,

(2) Upon the examination and approval of the finance and tax authorities in accordance with the relevant tax provisions of the State, the foreign cooperative partner may repatriate the investment before payment of income tax;

(3) Other investment repatriation measures approved by the finance and taxation authorities and the examing and approving authorities.

When the foreign partner repatriates its investment within the cooperation period, pursuant to the preceding provisions, the Sino and foreign partners shall be liable to the debts of the CCE according to the provisions the relevant laws and the stipulations of the CCE contract.

Article 45 The application by the foreign cooperative partner to request repatriation of investment pursuant to the stipulations of the Article 44(2) and ( 3) of these Detailed Rules shall describe in detail the total amount of the investment repatriated, the timing and the measures adopted. Alter examination and approval by the finance and tax authorities, it shall be submitted to the examing and approving authorities for approval.

Prior to making up the losses of the CCE, capital cannot be repatriated by the foreign cooperative partner.

Article 46 The CCE shall according to the regulations of the State engage a certified public accountant in the People"s Republic of China to exam and verify the books of account. The cooperative parties may mutually or unilaterally appoint a certified public accountant in the People"s Republic of China to examine the books of account and the related costs shall be borne by the party appointing the auditor.

Chapter VIII Duration and Dissolution

Article 47 The duration of the CCE shall be determined through consultation by the Chinese and foreign partner and specified in the CCE contract.

Upon expiry of the term of cooperation, if the cooperative parties agree to extend the term of cooperation, an application shall be submitted to the examing and approving authorities 180 days before the expiry of the term stating the operation results of the original CCE contract and the reason for extending the term of cooperation. At the same time, the agreement between the cooperation parties on the rights and obligations during the extended term of cooperation shall also be submitted. The examing and approving authorities shall decide whether approve or disapprove within 30 days upon receiving the application. Upon approval of the extension of its terms of cooperation, the CCE shall bring along the approved documents to the authorities for the administration of industry and commerce to perform alternation of registration procedures. The extended period shall commence from the first day after the original term of cooperation of the CCE expires. If the foreign partner repatriates its investment according to the provisions of the CCE contract and the repatriation of investment has been completed, the term of cooperation of the CCE cannot be extended. However, if the foreign partner increases its investment and upon agreement through consultation between the cooperative parties, the CCE can apply to the examining and approving authorities to extend the term of cooperation pursuant to the provisions of the second paragraph of this Article.

Article 48 The CCE shall be dissolved in any one of the following situations :

(1) Expiry of the term of cooperation;

(2) Inability to continue operations due to CCE suffering heavy losses or serious damages resulted from force majeure;

(3) Inability to continue operations of the CCE due to the failure of one or more of the cooperative parties to fulfil the obligations prescribed by the CCE contract and articles of association ;

(4) Occurrence of the other reasons for dissolution prescribed by the CCE contract and articles of association,

(5) The CCE violates the laws and administrative regulations and is ordered to close down by law.

In the occurrence of the situations described in items (2) and (4) of this article, the board of directors or the joint management committee of the CCE shall make a decision and report to the examining and approving authorities for approval. In the situation described in item (3) of this article, the one or more cooperative party( ies) which failed to fulfil the obligations prescribed by the CCE contract and articles of association shall be liable to the losses caused to other parties which fulfil the prescribed obligations. The party( ies) which fulfil the obligations prescribed by the CCE contract has or have the right to apply to the examining and approving authorities for dissolving the CCE.

Article 49 The matters of liquidating the CCE shall be handled in accordance with the provisions of the relevant laws and administrative regulations of the State and the CCE contract and articles of association.

Chapter IX Special Provisions Regarding CCE Without Legal Person Status

Article 50 The CCE without legal person status and its cooperative parties shall be liable to civil responsibilities pursuant to the relevant provisions of the civil laws of China.

Article 51 The CCE without legal person status shall register its cooperative partners respective capital contributed or cooperative conditions provided with the authorities for the administration of industry and commerce.

Article 52 The capital contributed or cooperative conditions provided of the cooperative parties of the CCE without legal person status belong to the respective cooperative parties or subject to the agreement of the cooperative parties, can be jointly owned, or partly owned separately and partly owned jointly. The properties accumulated through operations of the CCE shall be jointly owned by all cooperative parties. The capital contributed or imperative conditions provided by the cooperative parties of a CCE without legal person status shall be consolidatedly managed and operated by the CCE. Any one party shall not dispose of the assets without the other cooperative party"s consent.

Article 53 The CCE without legal person status shall set up a joint management organization. The joint management organization shall comprise of representatives appointed by the imperative parties, and represents all cooperative parties to jointly manage the CCE. The joint management organization decides on all important issues of the CCE .

Article 54 The CCE without legal person status shall establish consolidated books of account within the locality of the CCE. The cooperative parties shall also establish their own books of account.

Chapter X Supplementary Provisions

Article 55 The laws of People"s Republic of China shall apply to the conclusion, validity, interpretation, execution and the settlement of disputes of the CCE contract.

Article 56 For matters that are not regulated in these Detailed Rules, including CCE"s financial affairs, accounting, auditing, foreign exchange, taxation, labor management, trade union, etc., the provisions of the relevant laws and administrative regulations shall apply.

Article 57 CCE"s established by companies, enterprises, other economic organizations or individuals from the regions of Hong Kong, Macao and Taiwan or by Chinese citizens residing abroad shall be handled with reference to these Detailed Rules.

Article 58 These Detailed Rules shall take effect from the date of promulgation.

 

】【关闭窗口
 :: 站内搜索 ::
 
 :: 点击排行 ::
·广州市公安局、检察院、..
·对监控摄像头拍摄的交通..
·广州市律师协会
·珠水能源集团有限公司(..
·香港《公司条例》
·中外法律名人名言录(节..
· 在交通事故中被抛出车..
·案外人应通过何种程序对..
·广州大诚房地产评估咨询..
·中介合同违约条款无效,..
设为主页  |  收藏本站 | 友情链接 | 管理登录