Measures for the Administration on Foreign Investment in Commercial Fields |
(The Ministry of Commerce of the People’s Republic of China [2004] No.8 Measures for the Administration on Foreign Investment in Commercial Fields has been examined and approved at the sixth executive meeting of the Ministry of Commerce of the People’s Republic of China and shall come into effect as of June 1,2004.) Article 1 In order to further expand the open-up to the outside world and improve the construction of market circulation system. The present Measures are hereby 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 Contractual Joint Ventures, Law of the People’s Republic of China on Wholly Foreign-owned Enterprises, and the Company Law, and other relevant laws and administrative regulations. Article 2 Where a foreign company, enterprise and other economic organization or individual (hereinafter referred to as "foreign investors") establishes foreign-funded commercial enterprises within the China territory and undertakes business activities, the present Measures shall be observed. Article 3 The "foreign-funded commercial enterprises" shall refer to the enterprises with foreign investment which undertake the following business activities:
Foreign companies, enterprises, and other economic organs or individuals shall carry out the business activities as prescribed in items 1, 2, 3, and 4 of the preceding paragraph through foreign-funded enterprises established within China. Article 4 Foreign-funded commercial enterprises shall abide by laws, administrative regulations and the relevant rules of the People’s Republic of China. Their proper business activities and legal rights and interests shall be subject to the protection of the Chinese laws. Article 5 The competent commerce departments of the state shall make supervision over and administration on foreign investment in commercial fields and the business activities of foreign-funded commercial enterprises according to law. Article 6 The foreign investors of the foreign-funded commercial enterprises shall have good credit standing, and have no acts in violation of Chinese laws, administrative regulations and the relevant rules. Foreign investors who have stronger economic power, advance experiences and marketing technology in business management, and broad international marketing networks shall be encouraged to establish foreign-funded commercial enterprises. Article 7 A foreign-funded commercial enterprise shall meet the following requirements:
Article 8 A foreign-funded commercial enterprise shall meet the following requirements when opening a store:
Article 9 Foreign-funded enterprises may operate the following business upon approval:
Article 10 The following procedures shall be followed when handling the establishment and opening of stores by a foreign-funded commercial enterprise:
Article 11 The investors shall, within one month after receiving the certificate of approval, go through the registration formalities at the administrative department for industry and commerce upon the strength of the Certificate of Approval for Foreign-funded Enterprises. Article 12 The following documents shall be submitted when applying for establishing a foreign-funded commercial enterprise:
In case that the documents are signed by a person who is not the legal representative, the power of attorney of the legal representative shall be issued. Article 13 Where an already established foreign-funded commercial enterprise applies for opening a store, it shall submit the following documents:
In case the document is signed by the person who is not the legal representative, the power of attorney of the legal representative shall be issued. Article 14 The license contract for use of a trademark or a business name, technology transfer contract, management contract and service contract signed by a foreign-funded commercial enterprise, and other legal documents shall be deemed as the attachment of the contract (for a foreign-funded commercial enterprises, it shall be deemed as the attachment of the articles of association) and be submitted along with all the other documents. Article 15 The foreign-funded commercial enterprises shall, when opening a store, obtain the land for commercial use by way of public invitation of bidding, auction or listing in accordance with the provisions of the relevant laws and administrative regulations of the state on land management. Article 16 Where a foreign-funded commercial enterprise manages the commodities on which the state has special provisions and the import and export goods involving quota or license administration, it shall go through the formalities in accordance with the relevant state provisions. Article 17 A foreign-funded commercial enterprise shall, when undertaking the following commodities, conform to the following prescriptions in addition to the provisions of the present Measures: Where a foreign-funded commercial enterprise undertakes books, newspapers or periodicals, it shall conform to the Measures for the Administration of Foreign-funded Distribution Enterprises of Books, Newspapers, or Periodicals; Where a foreign-funded commercial enterprise undertakes gas station and deals with retail of refined oil, it shall have stable channel for supply of refined oil, conform to the construction plan of the local oil station, with the business establishments thereof corresponding with the existing state standards and the provisions on computation and checking procedures, and meet the requirements for fire control and environmental protection, etc. In addition, the specific implementation measures shall be formulated by the Ministry of Commerce. Where a foreign-funded commercial enterprise manages drugs, it shall conform to the relevant standards for the administration of the drug sale. In addition, the specific implementation measures shall be formulated by the Ministry of Commerce. Where a foreign-funded commercial enterprise manages automobiles, it shall manage within the approved business scope. In addition, the specific implementation measures shall be formulated by the Ministry of Commerce. Except the special provisions in Article 18 of the present Measures and the present Article, if foreign investors establish commercial enterprises of farm products and by-products, and agricultural production materials, they shall not be restricted by the region, proportion of share, and the amount of investment. No wholesaling foreign-funded commercial enterprises may manage drugs, pesticides and agricultural films before December 11, 2004, nor shall they manage fertilizers, refined oil and crude oil before February 11, 2006. No retailing foreign-funded enterprises may manage drugs, pesticides, agricultural films and refined oil before December 11, 2004, nor shall they manage fertilizers before December 11, 2006. No wholesaling foreign-funded commercial enterprises may manage salt or tobacco, and no retailing foreign-funded commercial enterprises may manage tobacco. Article 18 Under the circumstance that the same foreign investor opens more than 30 stores accumulatively within China, if the goods it manages include books, newspapers, magazines, automobiles (this restriction shall be cancelled from December 11, 2006), drugs, pesticides, agricultural films, fertilizers, refined oils, food, vegetable oil, sugar, cotton, and other commodities, and the above commodities are of different brands and come from different suppliers, the proportion of capital contribution of the foreign investors shall not exceed 49%. Article 19 Where a foreign-funded commercial enterprise authorizes others to open stores by way of franchising, it shall, in addition to observing the provisions of the present Measures, observe the special provisions of the state on franchising if any. Article 20 Where a foreign-funded commercial enterprise manages auction business, it shall accord with the Auction Law, Laws on Cultural Relics, and other relevant laws, and shall be examined and approved by the Ministry of Commerce. The specific implementation measures shall be formulated additionally. Article 21 The establishment of foreign-funded commercial enterprises shall be allowed from December 11, 2004. Article 22 The regions where a foreign-funded retail commercial enterprise and its stores may be established shall be restricted to the provincial capital cities, metropolis of autonomous regions, municipalities directly under the Central Government, cities directly under state planning, and special economic zones before December 11, 2004, and the regional restrictions shall be cancelled after December 11, 2004. Regional restrictions on foreign-funded wholesaling commercial enterprises shall be cancelled from the date of implementation of the present Measures. Article 23 Where an enterprise with foreign investment invests in commercial fields within the territory of China, it shall accord with the Interim Provisions on Investment of Foreign-funded Enterprises in China, and refer to the present Measures. Article 24 Other foreign-funded enterprises undertaking the business activities as enumerated in Article 3 of the present Measures except the foreign-funded commercial enterprises, shall conform to the provisions of the present Measures, and alter by law the business scope accordingly. Article 25 Where investors from Hong Kong Special Administrative Region, Macao Special Administrative Region, and from Taiwan region, who invest to establish commercial enterprises in other provinces, autonomous regions, and municipalities directly under the Central Government, shall refer to the present Measures in addition to the following prescriptions:
Article 26 The foreign-funded commercial enterprises shall be encouraged to join in the relevant trade associations to strengthen self-discipline of the enterprises. Article 27 The responsibility to interpret the present Measures shall be remained with the Ministry of Commerce. Article 28 The present Measures shall be implemented as of June 1, 2004. Article 29 The Measures for Trial Implementation of the Foreign-funded Commercial Enterprises as promulgated jointly by the former State Economic and Trade Commission and the Ministry of Foreign Trade and Economic Cooperation shall be abolished as of the date of the implementation of the present Measures. 注意事项: 在本英文翻译版本同汉语原版本出现任何不符时,以汉语版本为准。 Important Notice: In case of this English version has any discrepancy with the original version in Chinese, the Chinese version shall prevail. |