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--项目核准和设立审批程序 Examination and Approval Procedures for Verifying and Setting up Projects

关键词:中国投资环境、外商投资法律法规、外商投资形式、企业注册登记、投资政策及优惠、中国(上海)自由贸易实验区、外商投资产业指导目录(2011年修订)、中西部地区外商投资优势产业目录(2013年修订)、外商投资项目核准、外商投资企业设立审批、外商投资企业设立程序、外籍人士在华生活、外国人就业、外国人出入境、外国人子女教育、房屋买卖和租赁、执业签证、就业许可证、居留证、个人所得税


Keywords: china overview, china laws and policies, foreign investment policies, form of foreign investment, enterpriese registration, preferencial policies, China (Shanghai) Pilot  Free Trade Zone, Three Catalogues of foreign investment Industries, Catalogue of Advantaged Industries for Foreign Investment in the Central-Western Region, examination and approval authority, procedures for establishing enterprises with foreign investment, living in China, entry and exist, residency, property, basic education for the children, employment procedures, work visa, residency permit

核准和审批权限

Examination and Approval Authority

1

外商投资企业设立流程

Procedures for Establishing Enterprises with Foreign Investment

2

1. Examination and Approval Authority


According to existing national laws and regulations, the establishment of foreign- invested enterprises is subject to term-wise examination, approval and registration by the government. The total investment size and the categories set in the Catalogue for the Guidance of Foreign Investment Industries are the main basis for the examination and approval of the central government and local governments.


The setup and changes of enterprises with foreign investment under the categories of encouragement and permission with a total investment of US$300 million and the category of restriction with a total investment of US$50 million (hereinafter referred to as the limit) in accordance with the Catalogue for the Guidance of Foreign Investment Industries are subject to the approval of the competent department of commerce of provinces/ autonomous regions, municipalities directly under the Central Government/ separately planning cities/ Xinjiang Production and Construction Corps/ sub-provincial cities (including Harbin, Changchun, Shenyang, Jinan, Nanjing, Hangzhou, Guangzhou, Wuhan, Chengdu, Xi'an) as well as National Economic and Technological Development Zone (hereinafter referred to as the local approval authorities). The limit for the Joint Stock Limited Company with Foreign Investment is measured by its registered capital. The limit for the company that is restructured into a Joint Stock Limited Company with Foreign Investment is measured by its post-assessment net assets. The limit for the merger of a domestic enterprise by a foreign investor is measured by the value of the M&A.


The examination, approval and regulation of matters concerning single capital increase below the limit are handled by local competent authorities. The examination, approval and regulation of matters concerning single capital increase above the limit are handled by local competent authorities on condition that the project is under the category of encouragement and requires no overall balance of the state.


The examination, approval and regulation of matters concerning the establishment and changes of investment companies by foreign investors with the registered capital of below US$300 million and foreign-invested venture investment enterprises with total capital of below US$300 million are handled by local competent authorities.


To fulfill China's WTO commitments, in accordance with the three laws and their implementing regulations (rules) concerning foreign investment, China has developed and promulgated over 40 laws and regulations in the fields of trade in services, e.g. finance, commerce, transportation, film and television production and so on. The examination and approval of matters concerning foreign-invested projects in these fields are subject to corresponding laws and regulations.


2 Procedures for Establishing Enterprises with Foreign Investment


2.1 Procedures for Establishing Chinese-Foreign Equity Joint Ventures (EJV) ,Chinese-Foreign Cooperative Joint Ventures (CJV) and Wholly Foreign- Owned Enterpries(WFOEs)


(1) Project verification and approval. Joint ventures and cooperative joint ventures established within China’s territory must be able to promote the development of China's economy and the improvement of the science and technology for the benefit of socialist modernization. Businesses and industries in which the establishment of joint ventures is encouraged, prohibited or restricted by the State shall be decided in accordance with provisions of the State in the Regulations on Foreign Investment Guidelines and the Guideline Catalogue of Foreign Investment Industries. If the investment project is subject to verification and approval, the application for verification and approval procedures should be submitted to the development and reform department, and the relevant documents should be applied from the relevant department of urban and rural planning, land resources, environmental protection based on the actual situation of the project.


(2) Name pre-registration. Application for company name pre-registration should be submitted to the administration for industry and commerce. Then the “Notification of Company’s Name Pre-Approval” will be issued.


(3) Examination and Approval of the Contracts and Articles of Association; Applying and Obtaining the Certificate of Approval for the Establishment of Enterprises with Foreign Investment. Upon the approval of the project, the Chinese investor(s) shall submit the contract and articles of association and other legal documents to the examination and approval authority (commerce departments). The examination and approval authority shall decide to approve or not the establishment of the EJV within 90 days (or the establishment of the CJV within 45 days) upon receiving the feasibility study report, contract, articles of association and other documents. Upon approval, the commerce department will issue a certificate of approval.


(4) Applying and Obtaining the Business License. Upon obtaining the certificate of approval for the establishment of enterprises with foreign investment, the Chinese and foreign investors shall register at and obtain the business license from the industry and commerce administration departments within 30 days. The signing date of the business license is regarded as the date of establishment of the EJV/CJV.


(5) Other formalities. WFOEs shall go through other registration formalities at relevant departments within 30 days upon obtaining the business license. For example, to open a foreign exchange and RMB account at a bank; to register at the tax authority, customs, foreign exchange administrative department, etc.


2.2 One-Stop Examination and Approval Services


To facilitate the examination and approval procedures for Chinese and foreign investors and to improve the government efficiency, many local governments summon commerce and other relevant departments to provide One-Stop Examination and Approval Services by handling matters concerning foreign investment in a centralized manner. All provinces, autonomous regions, municipalities directly under the Central Government and separately planning cities have established Foreign Investment Service Centers to provide one-stop services for foreign investors. The services provided include the following: A. at the earlier stage, the Center can help foreign investors select partners and sites, prepare project proposals and submit them, register the enterprise's name, prepare the feasibility study report, draft contracts and articles of association, and apply for a business license; B. at the mid-stage, it can help foreign investors handle construction-related procedures, e.g. planning and design, engineering construction, land use, environmental protection, fire protection, and utilities; C. at the later stage, it can help foreign investors recruit employees and provide relevant information and other services. In addition, consulting firms, law firms, accounting firms and other intermediary agencies can also provide investors with efficient and effective services.


第一节 核准和审批权限


根据国家现行法律规定,外商投资企业的设立实行政府逐项核准和审批登记制度。投资总额大小和《外商投资产业指导目录》的项目分类是划分中央政府和地方政府核准和审批外商投资企业许可权的主要依据。


《外商投资产业指导目录》鼓励类、允许类总投资3亿美元和限制类总 投资5000万美元(以下筒称限额)以下的外商投资企业的设立及其变更事 项,由省、自治区、直辖市、计画单列市、新疆生产建设兵团、副省级城市(包 括哈尔滨、长舂、渖阳、济南、南京、杭州、广州、武汉、成都、西安) 商务主管部门及国家级经济技术开发区(以下筒称地方审批机关)负贵审批和管理。其中,外商投资股份有限公司的限额按注册资本计,改制为外商投资股份有限公司的限额按评估后的淨资产值计,外国投资者并购境内企业的限额按并购交易额计。


单次增资额在限额以下的增资事项由地方审批机关负贵审批和管理。 限额以上鼓励类且不需要国家综合平衡的外商投资企业的设立及其变更事项,由地方审批机关负贵审批和管理。


注册资本3亿美元以下外商投资性公司和资本总额3亿美元以下外商投资创业投资企业、外商投资创业投资管理企业的设立及其变更事项,由 地方审批机关负贵审批和管理。


为履行我国加入世贸组织的承诺,依据外商投资三个法律及其实施条 例(细则),我国已陆续制订并公佈实施金融、商业、交通运输、电影电视 製作等40多项服务贸易领域外商投资的法律、规章,在服务贸易领域的外 商投资项目的审批按相应法律规定办理。


第二节 外商投资企业设立程序


一、申请设立中外合资经营企业、中外合作经营企业、外商独资企业的基本程序


1. 项目核准。在中国境内设立的合资、合作经营企业,应当能够促进中国经济的发展和科学技术水平的提高,有利于社会主义现代化建设。国家鼓励、允许、限制或者禁止设立合营企业的行业,按照国家指导外商投资方向的规定及外商投资産业指导目録执行。投资项目如涉及到需要审批、核准的,应向发改部门申请项目审批、核准手续,并依据项目实际情况向城乡规划、国土资源、环境保护等相关部门申请办理相关文件。


2. 名称预登记。向工商行政管理部门申请企业名称预登记手续。获得“企业名称预先核准通知书”。


3. 合同、章程的申报审批及申领外商投资企业批准证书。获得项目核准后,由中方投资者将合同、章程等法律文件报送审批部门(商务管理部门)审批。审批部门在收到可行性研究报告和合同、章程等文件之曰起,90日内决定批准或不批准。申请设立合作企业,应在45曰内决定批准或不批准。 经批准后,由商务部门颁发外商投资企业批准证书。


4. 营业执照的申领。中外投资者在领取外商投资企业批准证书之曰起,30日内向工商行政管理部门办理登记注册手续,并领取营业执照。营业执照签署曰期为合资合作企业的成立曰期。


5. 其他手续。在领取营业执照起30日内还需向有关部门办理相关登记手续,如到银行开立外汇及人民币帐户;到税务部门办理税务登记;办理海关登记;到外汇管理部门办理外汇管理登记等待相关手续。


二、‘‘一站式审批”和‘‘一条龙服务”


为方便中外投资者办理审批手续,提高政府工作效率,目前,许多地方政府可提供“一站式审批”,商务部门和相关政府部门採取联合办公形式, 对外商投资事项进行集中受理。各省、自治区、直辖市和计画单列市均成立了外商投资服务中心,为外国投资者提供全过程的服务,即“一条龙服务”。 例如在前期帮助寻找合作伙伴;协助选择厂址;编制项目建议书并代理上报;代办企业名称登记;编制可行性研究报告,代拟合同、章程,代办申请营业执照;中期可代办规划设计、工程建设和用地、环保、消防以及公用事业等有关建设手续和协调工作;后期可代聘员工,提供相关信息等服务。 此外,谘询顾问公司、律师事务所、会计师事务所等仲介服务机构也可为 投资者提供高效优质的服务。

Flow Chart for Establishing EJVs, CJVs and WFOEs

 

 

 

 

Procedures

Approval Departments

Documents to Be Submitted

Certificates

1.Project Approval

National Development and Reform Commission

Project application reports, enterprise registration certificates (business licenses) of Chinese and foreign investors, business registration certificates and audited latest corporate financial statements (including balance sheets, income statements and cash flow statements), capital credit certificates issued by the bank, term sheet, the Board resolution for recapitalization and M&A project, a financing letter of intent issued by the bank, an EIA issued by the provincial or national environmental protection authority, a position paper on planning and site selection issued by the provincial planning authority, a position paper on the preliminary review of the land use of the project issued by the provincial or national land resources authority. If the contribution is made by the state-owned assets or land use rights, a confirmation document issued by the relevant competent authority is required.

 

2. Contracts and Articles of Association

Commerce Departments

Project approval documents, industrial and commercial registration and credit certificates of both Chinese and foreign investors, contracts, articles of association; the list of directors of both parties. The joint venture contract is not required for a WFOE.

Certificates of approval

3.Registration

Industrial and commercial administrative departments

Certificates of approval from relevant authorities, contracts and articles of association, list of the members of the board of directors

Business licenses

4. Registration at the taxation, customs and foreign exchange authorities and at the banks.

The taxation,customs, foreign exchange authorities and the banks.

Within 30 days upon obtaining a certificate of approval, the enterprise shall collect its business license from the local administration of industry and commerce and go through related procedures concerning corporate code, taxation, finance, customs, and foreign exchange and so on.

 

Notes:
1.  The above procedures apply to the establishment of enterprises engaging in both production and service.
2.  Some provinces and municipalities currently provide package approval for foreign investment project proposals, feasibility study reports, contracts and articles of association.
3.  To fulfill China's WTO commitments, in accordance with the three laws and their implementing regulations (rules) concerning foreign investment, China has developed and promulgated over 40 laws and regulations in the fields of trade in services, e.g. finance, commerce, transportation, film and television production and so on. The examination and approval of matters concerning foreign- invested projects in these fields are subject to corresponding laws and regulations.