在中國

前言

In recent years，China has become one of the world’S leading economic powers(in 20 1 0，it overtook Japan to become the second largest economy on the planet in GDP terms，behind the us)．This economic development took place in the space of over 3 0 years as it has to be remembered that until the end of the 70s，China was closed to the outside world and during that period(first the Imperial reign，then its short experience as a republic，followed by the establishment of the People’S Republic，with The Great Proletarian Cultural Revolution)，commercial relations between China andthe outside world were virtually non—existent．  It should also be noted that following the breakupof the USSR，China repealed a number of the Soviet—inspired laws it had passed and after the CulturalRevolution，China had no legal system for almost 2 0years，which obviously greatly hindered the developmentof the country and its economy．    All of this changed with the reform and opening up of the country instigated by Deng Xiao Ping who，withhis“open door”policy,began，from 1 9 79 onwards，to open China up to the world．This resulted in one of the greatest economic transformations the world has seen in recent times and which radically changed the position of China and the rest of the world．Subsequently,a growing and continuous flow of foreign investment began to enter China，and today it is the second largest recipient of foreign investment in the world．    Growing foreign investment in China has also givenrise to massive legislative developments in the countrywhich has enacted thousands of important laws and rules in recent years，providing commercial transactionswith increased legal certainty．To give you an idea of thescale of the legislative change that has taken place in China in recent times，in the last five years alone Chinahas amended，inter alia，the following fundamental laws：    catalog of foreign investments．    Company law．    Antitrust law．    Bankruptcy law．    Property law．    Real estate legislation．    It could almost be said that in recent years，Chinahas completely overhauled its entire legal system．    Furthermore，China’S entry into the World TradeOrganization(WTO)in 200 1 obliged it to open up itseconomy to foreign investment to an even greaterdegree and left it with no choice but to amend and adapt a significant portion of its laws in order to comply withthe commitments it assumed in the context of the WTO．    Lastly,it must be taken into account that despite all of the abovementioned progress，the Chinese economyis still not fully open to the outside world and，as a result，foreign investors still sometimes find themselves subject to a legislative framework that differs from that applicable to national investors．This，together with the obstacles inherent in a culture and language that are SO different，makes it even more difficult for foreigninvestors to do business in China．    This ad hoc system of rules takes the form of laws and provisions that subj ect foreign investment to administrative authorizations and approvals，registrations，additional requirements and，in some cases，restrictions that allow the Chinese government to control and select the type of investment it wishes to attract．This difference in treatment used to have a positive aspect in terms of the policy on tax incentives for foreign Investment，which the Chinese government applied paradoxically with the aim of standardizing the tax treatment of national and foreign investors until its almost total abolition in January 2008．    In addition to the above，it must be noted that the Chinese legal system，although to a lesser extent than one might think，is influenced by the peculiarities 0I its recent history and current political situation．For example，the ownership of land located in urban areas continues to belong to the Chinese state while land located in rural areas or on city outskirts belongs，in general，to collective economic organizations．Nevertheless，individuals and legal entities can hold a right to use land，(known as a land use right)for a period of time depending on each concession and on the use of the land in question(e．g．residential，industrial or educational)．Moreover,and to greater extent following the reforms of recent years，labor legislation stands out for the protection it affords workers which，in certain areas，even rises above the levels to which we are accustomed in European countries with higher levels of protection．We hope this book will help minimize the difficulties described above，allowing foreign investors in China to reduce the uncertainties that are inherent in a country that is SO different from their own，and at thesame time facilitate trade and investment between Chinaand other countries．

作者簡介

作者：弗朗西斯科·索勒（Francisco Soler）

書籍目錄

Chapter Ⅰ GENERAL ASPECTS 1.Geographic Location and Administrative Regions 2.People and Languages 3.Economy 4.Industry 5.Foreign Trade 6.Consumption 7.Political Matters 8.Culture Note  Chapter Ⅱ LEGAL SYSTEM 1.Legislation in China 1.1 Sources of Law 1.2 Civil and Commercial Legislation in China 2.Judicial System in China 2.1 Organization ofthe Courts 3 Governmental Structure of the Administration 3.1 Ministry of Commerce(MOFCOM) 3.2 State Administration of Industry and Commerce(SAIC) 3.3 State Administration of Taxation(SAT) 3.4 State Administration of Foreign Exchange(SAFE) 3.5 Customs Note  Chapter Ⅲ FOREIGN INVESTMENT POLlCY IN CHINA 1.Special Zones 1.1 Special Economic Zones and Other Development Zones 1.2 Export Processing Zones 1.3 Bonded Zones，Bonded Logistics Parks and Bonded Port Areas 2.WT0 Commitments 3.Closer Economic Partnership Arrangements(CEPA)with Hong Kong and Macau_ 4 Foreign Investment Industrial Guidance Catalogue. 4 1 Encouraged Industries and Sectors 4.2 Restricted Industries and Sectors 4 3 Prohibited Industries and Sectors 4.4 Permitted Industries and Sectors 5 Foreign Exchange Contr01 5.1 Current Account Items 5.2 Capital Account Items. 6.Debt Financing 6.1 Borrowing Foreign Currency 6.2 Borrowing RMB ChapterⅣ DISTRIBUTION AND SUPPLYCONTRACTU AL ARRANGEMENTS 1.Distribution Contracts 1.1 Exclusivity. 1.2 Distributor’S Obligations 1.3 Ownership of Intellectual Property 1.4 Confidentiality 1.5 Term  1.6 Termination 1.7 Goveming Law 1.8 Regulatory Approvals 2.Agency Contracts 2.1 Duties of the Principal 2.2 Restrictions and Duties of the Agent 2.3 Commission 3.Franchise Contracts 3.1 Franchisor Requirements and Content of a Franchise Contract 3.2 Procedures and required documentation for registration 3.3 TerlTIS and Conditions of the Franchise Contract 3.4 Inventory Supply and Control 3.5 Trademark Issues 3.6 Term and Termination 4.Supply Contracts 4.1 Obligations of the Suppliers 4.2 Obligations of the Purchasers 5.Processing Contracts 5.1 Grant Of License 5.2 Intellectual Property 5.3 Processing of Products 5.4 Placing of Orders and Estimates 5.5 Quality Control 5.6 Pricing and Payment 5.7Delivery and Quality Inspection 5.8 Transfer of Risk and Insurance 5.9 Restrictions on the Contractor Note Chapter ⅤINVESTMENT VEHICLES 1 Representative Office and Branch Office 1 1 Representative O伯ce 1.2 Branch Office 2.Foreign Invested Enterprises 2.1 Limited Liability Companies 2.2 Qualification as a Shareholder 2.3 Business Scope of Foreign Invested Enterprises 2.4 Names of Foreign Invested Enterprises 2.5 Total Investment and Registered Capital 2.6 Registered Capital 2.7 Registered Address 2.8 Corporate Governance 2.9 Directors’and Officers’Duties and Liabilities 2.10 Foreign Exchange 2.1l Audit Requirements 2.12 Finance and Tax 2.1 3 Allocation of Funds and Distribution of Profits 2.14 Duration 2.1 5 Procedures for the Incorporation of an FIE 2.16 Annual Inspections 2.17 Foreign Invested Commercial Enterprises 2.18 Comparison of Difierent Investment Vehicles 3 Other ways of doing business in China Sourcing／Trading 3.2 Processing or assembling 3.3 Franchising 3.4 Build—Operate—Transfer Note ChapterⅥ MERGERS AND ACQUISITIoNS 1.Mergers and Acquisitions in China 1.1 Mergers. 1.2 Acquisition 2.Due Diligence 2.2Legal Due Diligence 2.2 Tax Due Diligence 2.3 Financial Due Diligence 2.4 Reputational Due Diligence. 3.Anti—Monopoly Law 3.1 Enforcement Authority 3.2 Monopolistic Conduct 3.3 Legal Liability Note Chapter Ⅶ INSOLVENCY AND BANKRUPTCY 1.Scope and Application  2.Commencement of Insolvency Action. 2.1 Debtor 2.2 Creditor 2.3 Parties Responsible for Liquidating the Enterprise 3.Administrator 4.Property of the Debtor 5.Restructuring 6.Settlement 7.Distribution Priority Chapter Ⅷ INDUSTRIAL AND INTELLECTUAL PRoP ERTY 1.Trademarks 1.1 Legislative development 1.2 Registrable Trademarks 1.3 Registration ofTrademarks 1.4 Rights ofTrademark Registrants 1.5 Protection and Enforcement 1.6 Special Provisions for Foreign Applicants for Trademark Registration 2.Patents 2.1 Legislative Development 2.2 Protected Patents 2.3 Application for Patents 2.4 Rights of Patent Holders 2.5 Protection and Enforcement 2.6 Special Provisions for Foreign Applicants for Patents 3.Copyright 3.1 Legislative Development 3.2 Protected Copyrights 3.3 Rights of Copyright Owners 3.4 Protection and Enforcement 3.5 Special Provisions for Foreign Copyright Holders 4.Trade Secrets(Know—how) 4.1 Legislative Development 4.2 Definition of Know—how 4.3 Protection and Enforcement Note Chapter Ⅸ TAX 1.Taxes Levied on FIEs 1.1 Value Added Tax 1.2 Business Tax 1.3 Consumption Tax 1.4 Enterprise Income Tax 1.5 Individual Income Tax 1.6 City Maintenance and Construction Tax 1.7 Deed Tax 1.8 Stamp Duty 1.9 Customs Duty 2.Taxes levied on Foreign Enterprises 2.1 Enterprise Income Tax 2.2 Business Tax 3.Administration of Taxation 3.1 Local Taxation Organizations. 3.2 Taxation Control Note Chapter Ⅹ EMPLOYMENT 1.LabOr contract 1.1 written Contract 1.2 Form and Contents 1.3 Tvpes of Labor Contracts 2 Salary and Individual Income Tax 3.Working Hours，Holidays and Vacations 4.Termination of Labor Contracts 4.1 Termination Grounds 4.2 Severance Compensation 5.Social Insurance and Housing Fund 6.Labor Unions 7.Employment Policies for Foreigners 7.1 Work Permit Certificate and Visa Notice Letter 7.2 WOrk Visa 7.3 WOrk Permit 7.4 Residence Permit 8.Child Labor 9.Labor Authorities 9.1 Administrative Authorities 9.2 Semijudicial Authority Note Chapter Ⅺ REAL ESTATE 1.Real Estate 1.1 Land and Land Use Right 1.2 Land Ownership 1.3 Right to Use State—owned Land. 1.4 Purposes for the Exercise of Land Use Rights and Term 1.5 Termination of a Land Use Right 1.6 Acquisition of a Land Use Right 1.7 Granting of a Land Use Right 1.8 Transfer of a Land Use Right 1.9 Lease 1.10 Mortgage 1.1 1 Building Ownership 1.12 Title Documents 2.Foreign Investment in the Real Estate Sector. 2.1 Definition 2.2 Incorporation of a Foreign Invested Real Estate Enterprise 2.3 Incorporation Procedures 2.4 Acquisition of a Land Use Right 2.5 Registered Capital 2.6 Special Requirements for FIREEs 2.7 Registration Procedure and Total investment 2.8 Fixed Return and Financing 2.9 Development／Exploitation 2.10 Acquisition of Property by Foreign Individuals／Entities (other than FIREEs) 2.11 Relevant Governmental Authorities for Foreign Investment in Real Estate Chapter Ⅻ DISPUTE RESOLUTION AND PREVENTION 1.Negotiation 2.Mediation. 3.Arbitration 3.1 Arbitration in China 3.2 International Arbitration 4.Litigation 5.Dispute Prevention Appendix：CATALOGUE FOR THE GUIDANCE OF FOR EIGN INVESTMENT INDUSTRIES Catalogue of Encouraged Foreign Investment Industries Catalogue of Restricted Foreign Investment Industries Catalogue of Prohibited Foreign Investment Industries   

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