China: China Legal Briefing - April 12– May 21

[Subject] Contract

[Source] www.law-star.com

The draft addresses four issues: (1) The legal effect of a digital signature: the draft lays down rules to decide under what circumstances the digital signature has the same legal effect as a handwritten signature and/ or seal. (2) Electronic documents: this section deals with three aspects. First, the circumstances under which electronic documents are legally effective; secondly, the circumstances under which electronic documents may be introduced as evidence; thirdly, the criteria for determining the sender, sending time and sending place of electronic documents. (3) Market access to digital certification services. (4) Security safeguards for digital signature.

[Issued By] Supreme People’s Court

[Subject] Right in Rem

[Promulgated on] April 14th 2004

[Effective From] April 19th 2004

[Source] www.law-lib.com

In a response to similar issues respectively raised in cases pending before the High Courts of Yun’nan Province, Sichuan Province and Hebei Province, the Supreme Court rendered the following opinion:

The Guarantee Law of PRC provides that the obligation of guarantee is discharged where the creditor fails to make claims against the guarantor during the term of guarantee. Once the obligation of guarantee so discharged, the people’s courts shall not rule that the obligation of guarantee is to be continued on the facts that the creditor requests in written form the guarantor, who signs the request for repayment, to fulfill the obligation of guarantee or repay the debt. However, where the request for repayment satisfies the conditions of formation of the guarantee contract provided for in the Contract Law and the Guarantee Law and is acknowledged by the signature of the guarantor, the people’s court shall rule that the guarantor is bound by the obligation of guarantee under a new guarantee contract.

[Issued By] State Council

[Promulgated on] April 15th 2004

[Subject] Foreign Trade

[Effective From] June 1st 2004

[Source] www.china.org.cn

In addition to changes responding to the establishment of the Ministry of Commerce, which replaces the Ministry of Foreign Trade and Economic Cooperation and State Commission of Trade and Economics, the decision makes several substantive amendments to the Regulation: 

Preliminary ruling : the current Regulation requires seperate rulings be made respectively on dumping, damage and causation. The revised version requires only one ruling covering the three issues.

Deposit : the requirement that deposit from exporters under investigation shall be only in cash is repealed. 

Suspension and termination of investigation : public interest is added to the existent list of conditions for supensison and termination of investigation.

Continuation of investigation : in the existent Regulation, request by exporters is a discretionary circumstance for the continuation of investigation. The revised Regulation makes it a mandatory one.

 Anti-dumping duties : the revised Regulation provides that the anti-dumping duties shall be imposed in accordance with public interests.

[Issued By] State Council

[Promulgated on] April 15th 2004

[Subject] Foreign Trade

[Effective From] June 1st 2004

[Source] www.china.org.cn

The revision of this regulation is quite similar to that of the Regulation on Anti-Dumping. After revising some phrases to give effect to the establishment of the Ministry of Commerce, the State Council follows exactly the same route in revising the Regulation. Readers may have the idea of how the Regulation on Anti-Subsidy has been revised simply by replacing the words of anti-dumping with anti-subsidy in the preceding section of this piece. However, they are reminded that with reference to continuation of investigation of anti-subsidy, the request, which is a mandatory reason for continuation of investigation, comes from government of exporting states or regions instead of exporters.

[Issued By] State Council

[Promulgated on] April 15th 2004

[Subject] Foreign Trade

[Effective From] June 1st 2004

[Source] www.china.org.cn

Similarly, after giving effect to the establishment of the Ministry of Commerce, the State Council made 3 substantive changes to this regulation:

Ruling: under the existent regulation, preliminary ruling and final ruling shall be rendered separately. The revised regulation removes this requirement by authorizing the Ministry of Commerce to render preliminary ruling or directly render final ruling.

Public interest: the revised regulation provides further that imposition of safeguard measures shall be in line with public interests.

Maximum term of safeguard measures: the revised regulation increases the maximum term from 8 years to 10 years.

[Issued By] Ministry of Commerce

[Promulgated on] April 16th 2004

[Subjec t] Internal Trade

Effective From] June 1st 2004

[Source] www.mofcom.gov.cn

This regulation marks a full-scale opening of the commercial market to foreign investors. It is an overhaul of the 1999 Provisions on Experimental Foreign Investment to Commerce Enterprises. In addition to removing the qualification requirements of investors as well as the minimum requirements of registered capital of the enterprises being established, the new regulation delegates some power of approval to provincial authorities in charge of commerce.

The commercial enterprises refer to enterprises engaged in the following business fields : (1) commissioned agency (sale of products of others through sales agent, broker, auctioneer, etc. on a contractual basis); (2) wholesale; (3) retail; (4) franchise.

The foreign invested commerce enterprises shall meet the conditions as follows:

The minimum registered capital requirements set by the Company Law are satisfied;

(2) The rules on registered capital and overall investment for foreign invested enterprises are abided by;

(3) The business operation term is no more than 30 years. In the case of commerce enterprises established in the central and western areas, the operation term is no more than 40 years.

CHINA LEGAL BRIEFING 71-April 19 - April 23, 2004

[Issued By] Customs General Administration et al

[Subject] Foreign Trade

Promulgated on] April 8th 2004

[Effective From] April 8th 2004

[Source] www.chinatax.gov.cn

The major criteria for establishing Export Processing Zones (EPZ) are as follows:

1. The EPZ should in principle be established in a state Development Zone (SDZ) as approved by the State Council. Each SDZ can only have one EPZ.

2. The SDZ applying for the establishment of an EPZ should have an annual import-export value from processing trade exceeding USD 100 million

3. There can be only one EPZ in the province whose annual import-export value from processing trade is less than USD 10 billion

4. The province whose annual import-export value from processing trade exceeds USD 10 billion may apply for an additional EPZ

5. The Province may not apply for an additional EPZ or extend the existent EPZ unless the annual importexport value from processing trade existent of the EPZ therein exceeds: (a) USD 50 million (eastern provinces ); (b) USD 20 million (central provinces); (c) USD 10 million (western provinces).

6. An EPZ will be cancelled under the following conditions: (a) its construction has not commenced within 2 years of approval; (2) the annual import-export value from processing trade fails to reach USD 1 million within 4 years of approval.

The application for the establishment of an EPZ shall be filed with the State Council and forwarded to its relevant departments by the provincial governments. The State Council will make its decision after the relevant departments make their remarks. These relevant departments include the Customs General Administration, the State Commission for Development and Reform, the Ministry of Finance, the Ministry of Land and Resources, the Ministry of Commerce, the State Administration of Taxation, the State Administration of Industry and Commerce, the State Administration of Quality Supervision, Inspection and Quarantine, and the State Administration of Foreign Exchange.

[Issued By] China Insurance Regulatory Commission

[Subject] Insurance

[Promulgated on] April 21st 2004

[Effective From] June 1st 2004

[Source] www.circ.gov.cn

The insurance asset management company refers to a company established with the approval of China Insurance Regulatory Commission to manage the insurance funds of insurance companies, including reserves, capital, operation funds, accumulation funds, undistributed profits and other debts, and various other assets formed on the basis of the above funds.

1. The insurance asset management company may take the form of a limited liability company or company limited by shares, with the registered capital no less than RMB 30 million or an equivalent of free convertible curren cies. At least one of the shareholders or initiators shall be an insurance company or an insurance controlling company which meets the following conditions:

Having been operational in the insurance business for more than 8 years;

2. Not having received any administrative penalties for violation of provisions on the use of funds during the latest three years of operation;

3. Having a net asset value no less than RMB 10 billion and a total asset value no less than RMB 50 million. In the case of an insurance controlling company and a life insurance company, the total assets has to be no less than RMB 100 billion;

4. The value of the funds operated by the fund management departments therein should be no less than 50% or 80% (in the case of a life insurance company) of the total asset value.

It seems that foreigners may invest in the insurance asset management company. However, the shareholding of domestic insurance companies shall be no less than 75%.

[Issued By] Ministry of Labor and Social Security et al

[Promulgated on] February 23rd 2004

[Subject] Social Security; Finance

[Effective From] May 1st 2004

[Source] www.china.com.cn

This regulation governs the commissioned management, account management, custodianship and investment management for pension funds of enterprises. Pension funds refer to funds raised under the enterprise pension plan and its investment profit thereof accruing into complementary endowment insurance funds.

The contractual relationships are multifold: (1) between enterprises and their employees ("Principal"), and pension fund council of the enterprise or legal person commissioned institution ("Fiduciary"); (2) between Fiduciary and pension funds account management institutions ("Account Manager"); (3) between pension fund custodian institutions ("Custodian") and pension fund investment management institutions ("Investment Manager").

Enterprise pension funds are independent from properties owned or managed by the Principal, the Fiduciary, the Account Manager, the Custodian, the Investment Manager, and other national persons, legal persons and entities providing fund-related services. If these persons become insolvent, the assets of pension funds shall not be included into the bankruptcy property.

The regulations in the subsequent sections provides rules for the Fiduciary, the Custodian, the Account Manager and the Investment Manager. They also address the distribution of profits and costs, the disclosure of information, the role of intermediaries, and supervision and inspection.

[Issued By] State Administration of Foreign Exchange

[Promulgated on] April 12th 2004

[Subject] Export Credit Insurance

[Effective From] May 1st 2004

[Source] www.law-lib.com

This Circular is adopted to facilitate the collection and payment of foreign exchange in transactions involving export credit insurance. It sets out three scenarios for and for each the required documents that have to be produced at the banks and the working procedures are specified. The three scenarios are: the payment of premiums and compensations, the refund of premiums, and the collection and payment in foreign exchanges for reclaimed sums.

As of May 1st 2004, the following instruments will enter into force:

• Law on the Safety of Road Transportation

• Interpretation of Certain Issues Regarding the Applicable Law in the Adjudication of Compensation for Personal Injuries

• Provisions on Penalties of Misconducts of Lawyers and Law Firms 

• Rules of Procedure for the Collection of Legal Fees by Law Firms 

• Provisions on the Administration of Related Transactions between Commercial Banks and Insiders or Shareholders

• Provisional Rules on the Administration of Pension Funds of Enterprises 

[Issued By] State Environmental Protection Administration

[Subject] Environmental Assessment

[Promulgated on] April 12th 2004

[Effective From] April 12th 2004

[Source] www.zhb.gov.cn

In a Response to the question put forward by the Shanghai Bureau of Environmental Protection regarding the environmental assessment issue in the event of changes to the enterprise registration, the Administration makes the following observations:

The Law on Environmental Assessment and the Regulation on the Administration of Environmental Protection in Construction Projects provide that environmental assessment shall be conducted for construction projects. The enterprises whose construction projects are underway shall re-file the environmental assessment reports for approval in the event that there are material changes to the nature, dimension or site of the construction projects or to the production methodologies applied after the initial environmental assessment report has been approved.

With reference to the issue of environmental assessment in the event of changes to the enterprise registration, provisions on environmental assessment shall apply to the construction project given that the previous enterprise has been terminated and a new one is to be established. However, no environmental assessment is required to be conducted or re-conducted where the changes to enterprise registration are limited to the legal representative, the name, and are unaccompanied by material changes to the nature, dimension or site of the construction projects or to the production methodologies applied.

[Issued By] China Banking Regulatory Commission

[Subject] Financial Companies

[Closing Date] May 20th 2004

[Source] www.cbrc.gov.cn

The draft regulation is divided into seven parts with the following headings: general principles, establishment of and changes to institutions, business scope, rules of operation, supervision & administration and risk control, reform & receivership and termination, final clauses. It also governs financial companies established by foreign investment companies to provide financial services to the enterprises invested by them.

The Enterprise Corporation in this regulation refers to a combination of enterprise legal persons which are registered in PRC, comprising of the parent company and its subsidiaries as its main part and other member units ("Member Units"), connected by the nexus of capital and governed by the articles of association of the Corporation.

The financial company in this regulation refers to the non-banking financial institution established to provide financial management services to the Member Units of the Enterprise Corporation with a view to reinforce the collective management of funds within the Corporation and improving the efficacy in the utilization of the funds.

The application for the establishment of financial companies of the Enterprise Corporation shall be made by the parent company to the China Banking Regulatory Commission.

The Enterprise Corporation itself shall meet the following criteria :

1. Be in accord with state industry policies;

2. The registered capital of the parent company is no less than RMB 10 billion;

3. The total assets of Member Units is no less than RMB 50 billion and the net asset ratio is no less than 25% on the prescribed consolidated basis;

4. The annual revenue of Member Units in the past two consecutive years before application is no less than RMB 40 billion on the prescribed consolidated basis and the annual tax contribution is no less than RMB 2 billion within that period;

5. There is a large amount of cash flow within the Corporation;

6. The parent company has been in operation for more than 2 years with the experience in internal financial and funds management for the Enterprise Corporation.

Source www.law-star.com

It is reported that under the Provisions on the Administration of Investing Insurance Funds listed on the Stock Market, there will be more investment options for insurance companies. In addition to circulated A Shares, insurance funds may be invested in non-circulated shares in the A Share Market including state owned shares, legal person shares, convertible bonds and other products acknowledged by the China Insurance Regulatory Commission as related to A Shares.

The insurance funds that may be invested include reserves, capital, operation funds, accumulation funds, undistributed profit, and other various assets formed on the basis of other debts and insurance funds.

For internal control, insurance companies are required to establish a firewall to guarantee the independence of departments dealing with stock trading, fund allocation and accounting.

[Issued By] China Insurance Regulatory Commission

[Subject] Risk Control

[Promulgated on] April 28th 2004

[Effective From] June 1st 2004

[Source] www.law-lib.com

The document, comprising 6 parts, requests insurance companies and insurance asset management companies incorporated in China to establish risk control mechanisms for the operation of insurance funds. The headings of the constituting parts are as follows: general provisions, principles of risk control, institutional control, scope of risk control, inspection & supervision and assessment and final clauses.

The principles for risk control are: (1) independence, checks and balances; (2) comprehensive control; (3) timely response; (4) responsibility and accountability. The scope of risk control will cover such areas as management of assets and liabilities, investment decisions and transactions, management of risk control technology and information technology, management of accounting, and management of human resources.

[Issued By] State Administration of Industry and Commerce

[Subject] Advertisement

[Promulgated on] April 10th 2004

[Effective From] April 10th 2004

[Source] www.law-lib.com

The operative part of the Circular provides that entities and individuals are banned from advertising commercially in the name of Governmental Institutions including their short titles. The Governmental Institutions shall comprise the Party, the governments and departments thereof, people’s congresses, political consultative conferences, the judiciary, the procuratorate, the military, the armed police, and other governmental institutions.

[Issued By] National Development and Reform Commission, People’s Bank of China, China Banking Regulatory Commission 

[Subject] Industry Policy, Credit Policy

[Promulgated on] April 30th 2004

[Effective From] April 30th 2004

[Source] www.sdpc.gov.cn

The essence of the Circular is that local offices of the National Reform and Development Commission (NRDC) shall overhaul projects under construction or to be constructed, using the annexed List of Current Restraints of Repetitive Construction at Low Levels for Certain Industries  Referred to as List of Restraints) as yardstick, and apply a suitable treatment based on the classifications in the List. Meanwhile, the local branches of People’s Bank of China (PBC) shall faithfully implement the credit policies adopted by the PBC, issue guidelines in order to provide financial facilities, and assist the commercial banks to establish an early warning credit risk mechanism. At the same time, local offices of the China Banking Regulatory Commission (CBRC) shall ensure that commercial banks act in line with state industry policies and credit policies.

The annexed List of Restraints covers such industries as steel, nonferrous metal, machinery, building materials, petroleum& chemical, light industry, textile, pharmacy, and printing. Each industry is subdivided into two categories, Ban and Limitation, enjoying different regulatory treatments.

Local offices of NRDC and financial institutions are requested to classify the projects to their concerns by making reference to the List of Restraints and adopt different treatments: (1) Projects classified under the Ban Category shall either be terminated for those under construction or cease to be used for those accomplished. Financial institutions shall stop providing new financial facilities and take appropriate measures to ensure repayment of outstanding facilities. (2) Construction of projects classified under the Limitation Category shall not be commenced or be suspended, pending the decisions to be made by competent authorities. While awaiting the final decisions, no new financial facilities shall be provided by financial institutions.

[Issued By] Ministry of Construction

[Subject] Architectural Designing

[Promulgated on] May 10th 2004

[Effective From] June 9th 2004

[Source] www.sdpc.gov.cn

The regulation applies to foreign enterprises incorporated in China to engage in architectural designing business. It equally applies to the provisions within China of preliminary design and elaborate design by foreign enterprises through trans-boundary delivery. However, the regulation does not apply to preparatory work before the stage of preliminary design.

Foreign enterprises which wish to engage in architectural designing business in China shall find at least one Chinese partner holding qualifications of architectural designing to conduct cooperative designing. The capacity of the foreign enterprise is limited by the qualification of its Chinese partner. The cooperation contracts between foreign enterprises and their Chinese partners shall have a Chinese version. In no case may foreign enterprises engage in designing of confidential projects, projects against natural disasters, and projects in which foreign investment is prohibited.

The designing contract shall be concluded in Chinese between the enterprise whose project is to be constructed and the Chinese designing enterprise. The foreign enterprise may also be a party to the contract together with its Chinese partner. 

The designing fees shall be charged by making reference to the standards applicable in China. Furthermore, Tax shall be paid to the governments of China.

[Issued By] Ministry of Transportation, Ministry of Commerce

[Subject] Foreign Investment, International Carriage by Sea

[Adopted on] February 25th 2004

[Effective From] June 1st 2004

[Source] www.moc.gov.cn

This regulation applies to the operation in China of international carriage of goods by sea and relevant auxiliary businesses in which there is foreign in-vestment. Foreign investors may get access to the Chinese market of international carriage of goods by sea in the following manners:

Establish a Sino-foreign equity enterprise and/or Sino-foreign cooperative enterprise to engage in the activity of international shipping carriage, interna-tional shipping agency, international shipping management, loading and  unloading of international goods carried by sea and the exploitation of a container freight station and container yard.

Establish a Sino-foreign equity enterprise, and/or Sino-foreign cooperative enterprise, and/or a wholly foreign owned enterprise to engage in the activity of warehousing international goods carried by sea and engaging in routine business services related to ships owned or operated by the foreign investors such as issuing orders and bills of lading, collecting carriage fees and signing service contracts.

The regulation sets out the criteria for the establishment of various businesses related to the international carriage of goods by sea. Generally, the applications should be made to the Ministry of Transportation. Once the approval from the Ministry of Transportation is obtained, investors may proceed with the process by filing the application documentation with the Ministry of Commerce for approval of foreign investment.

[Issued By[ China Insurance Regulatory Commission

[Subject] Administration of Insurance Companies

[Promulgated on] May 13th 2004

[Effective From] June 15th 2004

[Source] www.xinhuanet.com

The revised regulation applies to commercial insurance companies established in China and is divided into seven sections with the following headings: general provisions, insurance institutions (establishment, alteration, insurance permit, termination and liquidation, investment in insurance companies), operation of insurance, terms and rates of insurance, solvency of insurance funds and insurance companies, inspection and supervision and the final clauses.

The revised regulation is innovative in several aspects and codifies several supervisory practices.

The use of Insurance Funds. The investment of insurance funds is limited to bank deposits, the purchase and sale of government bonds, enterprise bonds, financial bonds, securities investment funds, and other vehicles approved by the State Council. The insurance companies may establish insurance funds management companies and engage the latter as custodians.

Public Listing. There are no extra requirements for public listing other than the ones provided in the Supervision Opinion of the China Insurance Regulatory Commission (CIRC), provided that the insurance companies wishing to be listed publicly have satisfied the relevant requirements provided for in the Company Law and the laws on securities regulation.

Market Access. The review of new applications to establish insurance companies is to be reinforced. In the process of this review, the CIRC shall notify the investors of the potential risks, hear the presentations made by the prospective chairmen and general managers on market strategies, business development plans, mechanisms of internal control and take them into consideration when making the decisions on applications.

[Issued By] China Insurance Regulatory Commission

[Subject] Foreign Invested Insurance Companies

[Promulgated on] May 13th 2004

[Effective From] une 15th 2004

[Source] www.china.org.cn

This regulation is enacted to supplement its parent regulation, which was adopted in 2002, and provides an answer to some issues which had not been addressed in the previous regulation.

With reference to the foreign shareholding in life insurance companies, the Implementing Rules provide that the percentage of foreign shareholding, directly or indirectly held by foreign insurance companies, shall not exceed 50% of the total capital of the JV life insurance companies.

With reference to the establishment of business outlets, the Implementing Rules provide that foreign insurance companies entering the Chinese market in the form of branches, instead of JVs and WFOE’s, may conduct business only within the provincial jurisdictions of their seats. JV and WFOE insurance companies shall establish extra branches if they wish to extend their business to provincial jurisdictions outside their seats.

Local

[Issued By] Shenzhen Stock Exchange

[Subject] Small and Medium Size Enterprise Board

[Promulgated on] May 18th 2004

[Effective From] May 18th 2004

[Source] www.szse.cn

Following the approval by the China Securities Regulatory Commission of establishment of small and medium size enterprise board within the Shenzhen Stock Exchange (SZSE), the SZSE proposed its action plan.

The framework of the small and medium size enterprise board may be summarized as "two aspects of con-stancy" together with "four points of independence". More precisely the laws and regulations applied to the main board will be constantly applied to the small and medium size enterprise board. Moreover, the criteria for being listed will also remain constant. As to distinctive features, the new board will be independent in terms of operation, supervision, code and index.

To implement the action plan, the SZSE recently has promulgated relevant documents such as the Special Rules of Trading in Small and Medium Size Enterprise Board, the Special Rules for Companies Listed in Small and Medium Size Enterprise Board , and the Listing Agreement for Small and Medium Size Enterprise Board

© Wenger Vieli Belser, Beijing, May 21, 2004

This publication is intended to provide accurate information in regard to the subject matter covered. Readers entering into transaction on the basis of such information should seek additional, in-depth services of a competent professional advisor. Wenger vieli belser, the author, consultant or general editor of this publication expressly disclaim all and any liability and responsibility to any person, whether a future client or mere reader of this publication or not, in respect of anything and of the consequences of anything, done or omitted to be done by any such person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication.