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Order of the Ministry of Commerce [2018] No.6 Decision on Revising the Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-invested Enterprises

The Decision on Revising the Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-invested Enterprises, which was adopted at the fourth ministerial meeting of the Ministry of Commerce upon deliberation, is hereby promulgated and shall take effect as of June 30, 2018.

Minister, Zhong Shan

June 29, 2018

Decision on Revising the Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-invested Enterprises

To implement the decision-making arrangements of the Central Committee of the CPC and the State Council, promote the practice of "one single form and one-stop services" for the business record-filing and industrial and commercial registration for foreign-invested enterprises across the whole country, optimize the record-filing procedures for the incorporation of foreign-invested enterprises and further enhance the level of facilitating foreign investment, the Ministry of Commerce has decided to revise the Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-invested Enterprises (Order of the Ministry of Commerce [2017] No.2) as follows:

I. Paragraphs 1 and 2 of Article 5 shall be revised to read "Where the incorporation of foreign-invested enterprises falls within the scope prescribed in the Measures, when representatives designated by all investors (or the board of directors of foreign-invested companies limited by shares) or their jointly-entrusted agents go through the registration procedures for incorporation with the competent administrations for industry and commerce and market supervision, they shall file and submit the recording-filing information on the incorporation of foreign-invested enterprises simultaneously.

Where a non-foreign-invested enterprise changes into a foreign-invested enterprise due to acquisition, consolidation by merger or otherwise, which is subject to record-filing as stipulated in the Measures, it shall file and submit the recording-filing information on the incorporation of foreign-invested enterprises simultaneously while going through the registration procedures for incorporation with the competent administrations for industry and commerce and market supervision."

A paragraph is added as Paragraph 3 of Article 5, which reads "The record-filing institutions shall, after obtaining such record-filing information transmitted by the competent administrations for industry and commerce and market supervision, handle the record-filing procedures and notify the investors simultaneously."

II. Paragraphs 1 and 3 of Article 7 are deleted, and the wording "prior to the security registration or" in Paragraph 2 thereof is deleted.

III. The phase "via the comprehensive administration system" in Paragraph 1 of Article 8 is deleted, and the phrase "or all initiators" in Item 3 of Paragraph 1 thereof is revised to read "or the board of directors of foreign-invested companies limited by shares".

IV. Article 9 is deleted.

V. The sentence "Foreign-invested enterprises or their investors shall make an online submission of the Incorporation Application or Change Application and related documents, and the record-filing institutions will verify the completeness and accuracy of the filled-in information in the form" in Paragraph 1 of Article 12 is revised to read "The record-filing institutions shall, after obtaining the record-filing information on the incorporation or change of foreign-invested enterprises, verify the completeness and accuracy of the filled-in information in the form"; the last sentence in Paragraph 2 is revised to read "Foreign-invested enterprises and their investors shall make a separate application with additional record-filing information in connection with the same incorporation or change matters within five working days."

VI. The phrase "application materials for the prior approval of the names of foreign-invested enterprises (copies) or" in Article 13 is deleted.

In addition, the orders of related articles and content in the appendixes shall be adjusted accordingly.

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

Chapter I General Provisions

Article 1 In order to further expand opening-up, promote the reform of the foreign investment management system, improve the law-based, internationalized and facilitated business environment, the Interim Administrative Measures for the Record-filing of the Incorporation and Change of Foreign-invested Enterprises (the "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 and 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-invested enterprise do not involve the implementation of special access administrative measures prescribed by the state, the Measures shall apply.

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

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

Record-filing institutions shall 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-invested enterprises and their investors shall provide the record-filing information in accordance with the Measures in a truthful, correct 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-invested enterprises and their investors shall keep a good record of evidentiary materials related to the information already submitted for record-filing.

Chapter II Record-filing Procedures

Article 5 Where the incorporation of foreign-invested enterprises falls within the scope prescribed in the Measures, when representatives designated by all investors (or the board of directors of foreign-invested companies limited by shares) or their jointly-entrusted agents go through the registration procedures for incorporation with the competent administrations for industry and commerce and market supervision, they shall file and submit the recording-filing information on the incorporation of foreign-invested enterprises simultaneously.

Where a non-foreign-invested enterprise changes into a foreign-invested enterprise due to acquisition, consolidation by merger or otherwise, which is subject to record-filing as stipulated in the Measures, it shall file and submit the recording-filing information on the incorporation of foreign-invested enterprises simultaneously while going through the registration procedures for incorporation with the competent administrations for industry and commerce and market supervision.

The record-filing institutions shall, after obtaining such record-filing information transmitted by the competent administrations for industry and commerce and market supervision, handle the record-filing procedures and notify the investors simultaneously.

Article 6 Within the record-filing scope of the Measures, in the case of the following change matters, the designated representatives or entrusted agents of foreign-invested enterprises shall fill in online and submit an Application for Record-filing of the Change of Foreign-invested Enterprises (the "Change Application") and the relevant documents within 30 days upon the occurrence of the change via the comprehensive administration system, and handle the recording-filing procedures:

1. change of the basic information of foreign-invested enterprises, including name, registered address, type of business, operating period, investment industry, business type, operation scope, whether or not 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 information of the final actual controller of the foreign-invested enterprises;

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

3. change in the basic information about the merger and acquisition transaction of the incorporated foreign-invested enterprise.

4. change in equity (shares) or cooperation interest;

5. merger, division or dissolution;

6. foreign-invested enterprise mortgaging its property or rights and interests to others;

7. advance recovery of investments by foreign partners of Sino-foreign cooperative joint ventures; and

8. entrusted operation administration of Sino-foreign cooperative joint ventures.

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

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

Listed foreign-invested companies and companies listed on the National Equities Exchange and Quotations may handle 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 Where a listed foreign-invested company introduces a new foreign investor to make strategic investment, which is subject to the record-filling stipulated herein, it shall complete the formalities for record-filing, and submit the Change Application within 30 days after the security registration with the competent securities registration and settlement institution.

Article 8 When foreign-invested enterprises or their investors handle the procedures for the record-filing of the incorporation or change, such documents shall be uploaded:

1. application materials for the prior approval of the name of foreign-invested enterprises or business licenses thereof;

2. a letter of commitment regarding the record-filing of the incorporation by foreign-invested enterprises signed by all investors (or all initiators) of foreign-invested enterprises or their authorized representatives, or letter of commitment regarding the record-filing of the change of foreign-invested enterprises signed by all investors (or all initiators) of foreign-invested enterprises or their authorized representatives;

3. the certification of the relevant documents testifying that all investors (or the board of directors of foreign-invested companies limited by shares) or foreign-invested enterprises designate representatives or jointly-entrusted agents, including the power of attorney and the identification certificates of the agent;

4. the certification testifying that the investors of foreign-invested enterprises or legal representatives entrust another party to sign the relevant documents on their behalf, including a power of attorney and the identification certificates of the agent (if no other party has been entrusted to sign the relevant documents, there is no need to provide them);

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 this);

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

7. shareholding chart of the final actual controllers of a foreign-invested enterprise (not applicable, in the case that no final actual controller of a foreign-invested enterprise is involved in any changes); and

8. if a foreign investor pays with the equities of an overseas company, a Certificate for Outbound Investment by an Enterprise shall be provided by the domestic enterprise which obtains the equities of the overseas company.

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

Article 9 If there is a change in a foreign-invested enterprise incorporated upon approval, and the changed foreign-invested enterprise does not involve the implementation of special access administrative measures prescribed by the state, record-filing procedures shall be handled and completed. Meanwhile the Approval Certificates for Foreign-invested Enterprises are rendered invalid.

Article 10 In the case of a change in a foreign-invested 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 The record-filing institutions shall, after obtaining the record-filing information on the incorporation or change of foreign-invested enterprises, verify the completeness and accuracy of the filled-in information in the form and will check whether the reporting matters fall within the scope of the record-filing. If they fall within the scope of record-filing prescribed in the Measures, the record-filing institutions shall complete the record-filing within three working days. Otherwise, record-filing institutions shall inform, within three working days, the foreign-invested enterprises or their investors online to handle them in accordance with the relevant provisions and inform the relevant departments to handle them in accordance with the law.

If recording-filing institutions find out any incompleteness or inaccuracy in the information filled in by foreign-invested enterprises or their investors in the form, or further explanation is necessary in connection with their business scope, they shall inform them online at one time to supplement the relevant information online within 15 working days. The time for supplementing the relevant information shall not be included in the record-filing time limit set by record-filing institutions. If foreign-invested enterprises or their investors cannot supplement the relevant information within 15 working days, record-filing institutions shall inform foreign-invested enterprises or their investors online that they have failed to complete the record-filing. Foreign-invested enterprises and their investors shall make a separate application with additional record-filing information in connection with the same incorporation or change matters within five working days.

Record-filing institutions shall publish the results via the comprehensive administration system. Foreign-invested 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-invested enterprises or their investors may use business licenses of foreign-invested enterprises (copies) to obtain Record-filing Receipts for the Incorporation of Foreign-invested Enterprises or Record-filing Receipts for the Change of Foreign-invested Enterprises (hereinafter referred to as the "Record-filing Receipt").

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

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

2. incorporation or change for the record-filing of foreign-invested enterprises;

3. incorporation or change of such foreign-invested enterprises falls within the scope of the 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 Management

Article 14 Competent commerce departments shall supervise and inspect the implementation of the Measures by foreign-invested 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 or the judiciary organs concerned, as well as carry out ex officio supervision and inspection to start the checks, etc.

Competent commerce departments and the relevant administrative departments of public security, state-owned assets, customs, tax, industry and commerce, securities, and foreign exchange should 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-invested enterprises or their investors which do not fall within the scope of their administrative responsibilities, they should promptly inform the departments concerned.

Article 15 Competent commerce departments shall determine the checked subjects and randomly select and assign checkers to conduct supervision and inspection of foreign-invested enterprises and their investors in accordance with the requirements of fair specifications and random drawing based on the record-filing numbering of foreign-invested enterprises. Spot-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-invested enterprises or their investors have committed any behaviors in violation of the Measures, they can report the same to the 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 the necessary check after receiving the report.

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

Article 18 For foreign-invested enterprises or their investors failing to carry out record-filing according to the 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 contents of supervision and inspection conducted by competent commerce departments on foreign-invested enterprises and their investors shall include:

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

2. whether the record-filing information filled in by foreign-invested enterprises and their investors is authentic, correct 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 the 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 the 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-invested enterprises and their investors found out in the process of supervision and inspection by the competent commerce departments and other competent departments shall be kept in the foreign investment integrity records system of the Ministry of Commerce. Among them, in the case of any failure to carry out record-filing, any inauthentic record-filing, lack of cooperation concerning supervision and inspection, or refusal to implement the administrative penalty decisions made by competent commerce departments, the 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-invested enterprises and their investors.

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

Article 23 Foreign-invested 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-invested enterprises or their investors with bad credit records due to violation of the Measures do not violate the Measures again within three years after they correct the illegal acts and perform the relevant obligations, the competent commerce departments shall remove such bad credit records.

Chapter IV Legal Liability

Article 24 Where foreign-invested enterprises or their investors, in violation of the provisions hereof, fail to perform their record-filing obligations, or there are significant omissions in the process of record-filing, the 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 less than CNY30,000 shall be imposed.

Where foreign-invested 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, the competent commerce departments shall order them to make corrections within a prescribed time limit and impose a penalty of less 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-invested enterprises and their investors conduct investment and operation activities in restricted investment sectors listed in the special access administrative measures prescribed by the state without approval, the competent commerce departments shall order them to make corrections within a prescribed time limit, and impose a fine of less 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-invested enterprises and their investors conduct investment and operation activities in forbidden investment sectors listed in the special access administrative measures prescribed by the state, the competent commerce departments shall order them to make corrections within a prescribed time limit, and impose a fine of less 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-invested 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 less than CNY10, 000.

Article 28 If public officers in charge of record-filing or supervision administration abuse their powers, commit dereliction of duty, resort to deception for personal gains, or accept bribes, administrative sanctions shall be imposed in accordance with the law; where crimes are constituted, criminal liability shall be investigated.

Chapter V Supplementary Provisions

Article 29 For incorporation or change of a foreign-invested enterprise that has been accepted by the competent commerce department before the implementation of the 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-invested enterprise or its investors shall handle the record-filing formalities in accordance with the Measures.

Article 30 If foreign investment matters involve antitrust review, the relevant provisions shall apply.

Article 31 Where foreign investment matters involve the national security review, they will be handled according to the relevant provisions. When record-filing institutions believe that the foreign investment matters may fall within the scope of national security review in handling record-filing procedures or supervision and inspection, but the investors of foreign-invested enterprises fail to make an application for national security review to the Ministry of Commerce, record-filing institutions shall promptly inform the investors to make a security review application to the Ministry of Commerce, temporarily suspend the handling of the relevant procedures, and meanwhile report the relevant circumstances to the Ministry of Commerce.

Article 32 Foreign-invested enterprises of the class of investment (including investment companies, venture capital companies) shall be deemed as foreign investors, and the Measures shall apply.

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, the Measures shall apply mutatis mutandis.

Article 34 Hong Kong service providers shall invest only in the trade service sectors in the Mainland available for Hong Kong 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 trade service sectors in the Mainland available to Macau 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 the Measures come into force are inconsistent with the Measures, the 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-invested enterprises within their jurisdictions and their investors with the Measures according to Chapter III and Chapter IV.

Article 37 The 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) (Announcement of the Ministry of Commerce [2015] No.12) shall be repealed simultaneously.

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