China: China Legal Briefing-March 8 - April 9, 2004

CHINA LEGAL BRIEFING 65 -March 8 - March 12, 2004

National

Amendments to the Constitution of the People’s Republic of China

[Adopted By] National People’s Congress (NPC)

[Adopted On] March 14^th 2004

[Subject] Constitutional Amendments

[Effective From] March 14^th 2004

[Source] www.china.org.cn

This is the fourth time that National People’s Congress, the highest organ of State power of the PRC, amends the 1982 Constitution. The previous amend-ments were made respectively in 1988,1993, and 1999.

A total of 31 amendments have been adopted by this Congress, several being innovative. It is the first time that protection of private property is recognized in the Chinese Constitution of 1949. The revised Article 13 reads: "The legitimate private property of citizens is sacred. The State protects the private property and the right of inheritance in accordance with laws. The State may launch expropriation or requisition against private property of citizens, provided that such actions are conducted in accordance with laws, justified by public interests and followed by compensation."

It is also the first time that human rights are incorporated in the Constitution. A provision is added to Article 33 as paragraph 3, reads: "The State respects and protects human rights".

[Issued By] State Administration of Quality Supervision, Inspection and Quarantine

[Adopted On] March 12^th 2004

[Subject] Call Back, Automobile Products

[Effective From] October 1^st 2004

[Source] www.law-lib.com

The regulation applies to production, importation, sale, lease and reparation of automobiles carried out in China. However, at the present stage, it only applies to automobiles with less than 9 passenger seats, including the seat of the driver. The application to other categories of automobiles, which fall outside this scope of application, awaits further notice.

The Producer and the Importer are obliged to call back the deficient automobiles and bear the transportation costs and costs for removing the deficiencies. The Seller, the Lessor and the Repairer shall assist the Producer in implementing the call-back obligation. The "Producer" refers to the producer incorporated in China that produces or assembles automobile products and issues a quality permit in its own name as well as to the foreign producer whose products have been sold to China.

The call-back refers to the process in which the Producer and the Importer remove the deficiencies which may give rise to personal injury and property loss by way of retaking, repairing or replacing the deficient product.

The call-back period is the quality guarantee period or 10 years, whichever is longer, starting from the moment the automobile is delivered to the first user.

There are two call-back procedures. In the first one, the voluntary call-back, the initiative goes out from the Producer and the Importer which have discovered the deficiencies through their own information system, or reports and complaints from the retailer, the repairer and the customer, or notification from the products quality supervisory bodies. In the second procedure, the non-voluntary call-back, the initiative goes out from the product quality supervisory bodies in case the Producer and the Importer deliberately fail to take call-back initiatives, or they knowingly conceal the deficiencies of the products, or they handle the deficient products in an improper manner.

[Issued By] Ministry of Commerce, State Administration of Industry and Commerce

[Subject] Advertisement Enterprise

[Adopted On] March 2^nd 2004

[Effective From] March 2^nd 2004

[Source] www.law-lib.com

This regulation applies to the investment in the advertisement industry by foreign investors, including adding advertisement to the existent scope of business. Moreover, in the event that foreign investors wish to invest in the advertisement industry by way of merger and acquisition, the rules governing M & A by foreign investors shall be applied together with this regulation.

The foreign invested advertisement enterprise may take the form of a joint venture or a wholly foreign invested enterprise. The foreign investor may have a controlling shareholding in the joint venture but not exceeding 70%. However, no wholly foreign invested enterprise is permitted before 10 December 2005 unless the investor is qualified as a Hong Kong Service Provider or a Macao Service Provider whose scope of business includes advertisement.

This regulation does not provide for the requirement of a minimum registered capital. However, the parties to the joint venture shall be enterprises conducting advertisement business, which have been established and have been operating for more than 2 years and have a performance record of advertisement. For wholly foreign invested enterprises, the requirements for the foreign investor are increased to the establishment and operation of minimum 3 years and having advertisement as their major business. The foreign invested advertisement enterprise may not establish branches unless the registered capital has been actually contributed and the annual business income is more than RMB 2 million.

The approving authorities are the State Administration of Industry and Commerce (or its provincial offices) and the Ministry of Commerce (or its provincial bureaus). The applicant shall first seek approval from the State Ad-ministration of Industry and Commerce (or its provincial offices) for the project proposal and feasibility study report. Once approved, it shall submit the contracts and articles of association to the Ministry of Commerce (or its provincial bureaus) for approval. Where both stages are successful, the applicant may complete the procedure by registering the enterprise.

[Issued By] China Banking Regulatory Commission

[Subject] Corporate Governance

[Adopted On] March 11^th 2004

[Effective From] March 11^th 2004

[Source] www.cbrc.gov.cn

The Guidelines, although specifically addressed to the Bank of China and the Construction Bank of China, may set a precedent for further joint-stock reforms of other state-owned commercial banks.

The Guidelines prescribe various requirements in relation to corporate governance for the two banks, affecting such aspects of organization, selection of investors, development plans, decision-making, internal control, management of risks, business management, disclosure of information, application of information technology, human resources and use of intermediary institutions.

The Guidelines also set out performance assessment indicators, including ROA (Return on Assets), the ROE (Return on Equity), the cost/income ratio, the non-performing asset ratio, the capital adequacy ratio, largest exposure concentration and the NPL provisioning coverage ratio.

© Wenger Vieli Belser, Beijing, March 12, 2004

[Adopted By] Supreme People’s Court, Ministry of Justice

[Adopted On] March 19^th 2004

[Subject] Professional Ethics

[Effective From] March 19^th 2004

[Source] www.china.org.cn

The document is adopted to make the justice seen to be done. It does not define the scope of the lawyer and the judge and as a result seems to be applied only to the person that holds the practice permit, who has been granted the qualification certificate and has finished one year of training at a law firm (Lawyers Law 2001, Article 2, 8).

The regulation concerns three main aspects. First, the prohibition of a unilateral meeting between the judge and a single party. Second, judges recusing and lawyers declining to provide service. Third, bribery and corruption issues.

From the lawyer’s perspective, he shall not disclose to the parties, both before and after he has been retained, that he is relative, classmate, student, teacher or former colleague of the judge in charge of this case. Further, he shall decline the offer from the party to represent him or terminate the power of attorney, where he is disallowed by the law to do so. In addition, the lawyer retained by the party shall not send gifts, money or securities on the occasion of the wedding or funeral of the judge or his immediate relatives; neither shall he fix up the judge’s house, buy gifts for the judge or invite him to entertainment and free trips; nor shall he reimburse the costs of the judge; loan him vehicles or communication apparatus.

The judge may draw the attention of the relevant authorities to the misconducts of the lawyer and suggest disciplinary measures and administrative punishment. Parties and the third parties may also draw the attention of relevant authorities to the misbehavior of the lawyer or submit communication that is not anonymous.

[Issued By] State Council

[Adopted On] March 8^th 2004

[Subject] Foundation

[Effective From] June 1^st 2004

[Source] www.mca.gov.cn

This regulation repeals the Provisions on Foundations of 1988. The established foundation shall renew its registration certificate within 6 month of the effective date of this regulation.

The Foundation refers to a legal person established in accordance with this regulation for the purpose of the commonwealth on the basis of assets donated by natural persons, legal persons and other entities. The Foundation may either be a Public Foundation or a Non-Public Foundation. The Public Foundation is further divided into a National Foundation and a Regional Foundation according to the area of fundraising.

The registration and administration authorities for the foundations are the Ministry of Civil Affairs and its provincial offices. The Ministry of Civil affairs is responsible for the registration and administration of the following foundations: (1) national public foundations; (2) foundations whose legal representative is not a resident of the mainland; (3) non-public foundations whose original assets exceed RMB 20 million; (4) representative institutions established in the mainland by foreign foundations.

The thresholds of original assets of foundations are RMB 8 million, 4 million and 2 million, respectively for National Public Foundations, Regional Public Foundations and Non-Public Foundations.

The documents for the establishment of Representative Institutions of Foreign Foundations comprise: (1) the application; (2) the proof of legal status and articles of association; (3) the personal identification and resume of the prospective head of the representative institution; (4) the proof of address; (5) the approval from the relevant authorities of China according to the activities of the foundation.

The liabilities incurred by the Representative Institutions of Foreign Foundations shall be borne by the Foreign Foundation.

[Issued By] Legal Office of State Council, China Securities Regulatory Commission

[Subject] Arbitration

[Adopted On] January 18^th 2004

[Source] www.law-star.com

The circular is adopted to speed up the settlement of disputes involving securities and futures. Disputes between market parties at equal footing may submit their disputes for arbitration:

1. Disputes of issuance and underwriting between an issuer and a securities company or between securities companies themselves;

2. Disputes between a securities company, a securities agency company, a securities consultancy institution, a futures consultancy institution and their clients;

3. Disputes of issuance, management, custodianship of fund between a fund initiator, a fund management company and a fund custodian;

4. Disputes between an issuer, a public company on one side and an accounting firm, a law firm or a rating agency on the other;

5. Disputes of changes in shareholding of a public company, a securities company, a securities agency company and a fund management company;

6. Other contractual disputes between a securities company, a securities agency company, a securities consultancy institution, a futures consultancy institution, a public company, a fund management company, a securities registration and clearance company and other parties to the securities and futures market.

The circular requires the incorporation of an arbitration clause in the standard contracts for securities and futures transactions by 30 June 2004.

[Issued By] State Administration of Foreign Exchange

[Adopted On] March 1^st 2004

[Subject] Traveler’s Checks

[Effective From] April 1^st 2004

[Source] www.safe.gov.cn

This circular applies to the sale of traveler’s checks in foreign currencies by domestic commercial banks to domestic institutions, representative agencies of foreign institutions in China, individual residents and non-residents of China. The traveler’s check refers to an instrument in convertible currencies issued by a foreign bank or special financial institution acting as the ultimate payer.

The traveler’s check in foreign currencies can in principle be sold only for such non-trade purposes as tourism, pilgrimage, family visit, medical treatment and payment for costs related to overseas study. The domestic institutions and representative agencies of foreign institutions may not purchase travelers’ checks in foreign currencies by using whatever kind of cash. This limitation, however, does not apply to individuals.

© Wenger Vieli Belser, Beijing, March 19, 2004

[Adopted By] State Administration of Industry and Commerce

[Adopted On] March 12^th 2004

[Subject] Consumer Protection

[Effective From] March 12^th 2004

[Source] www.saic.gov.cn

This regulation is adopted to enhance the implementation of the Law on the Protection of Rights and Benefits of Consumers on its 10th anniversary.

In case of discrepancies between the terms and conditions agreed upon or undertaken by the business operator, the one more favorable for the consumer shall apply. In addition, the business operator shall stop selling the products and services that may cause personal harm to the consumer or damage consumer property even if properly utilized, and also is obliged to retake the sold products. Further, the business operator shall not include such provisions as shifting the obligation of the operator to the consumer, increase the burden of the consumer, exclude or restrict the consumer’s right to alter or terminate the contract, request for compensation and damages, and initiate lawsuits.

The bureaus of industry and commerce are empowered to correct the irregularities and issue orders for compliance. They may also record the misbehaviors in the market participant credit supervision system.

[Issued By] Ministry of Justice

[Promulgated On] March 19^th 2004

[Subject] Penalties

[Effective From] May 1^st 2004

[Source] www.china.com.cn

This regulation repeals the 1997 Provisions on Penalties of Misconducts of Lawyers. Compared to its forerunner, the scope of punishable acts has been expanded.

The authorities that are entitled to impose penalties in accordance with the Lawyer’s Law and this regulation are the administrations of justice at various levels. The penalties against lawyers include admonition, confiscation of illegal benefits, suspension of practice and revocation of practice license. The sanctions against law firms embody admonition, confiscation of illegal benefits, suspension of business and correction or revocation of business license.

This list of punishable acts committed by the lawyer in this regulation are an interpretation of "other punishable acts" in Article 44 (11) of the Lawyer’s Law. They concern such aspects as conflicts of interests, unfair competition, infringement upon the rights of clients, interference with the administration of justice, and perjury.

[Issued By] Ministry of Justice

[Adopted On] March 16^th 2004

[Subject] Legal Fees

[Effective From] May 1^st 2004

[Source] www.china.com.cn

The Rules provide that the collection of legal fees shall be governed by the 1997 Provisional Rules on the Ad-ministration of Collection of Legal Fees and other regulations on legal fees promulgated by provincial price authorities and administrations of justice.

Only law firms shall collect legal fees. An individual lawyer is not entitled to do so. Law firms shall publicize billable items, the calculation basis, and the means of payment by notifications or brochures. Law firms shall conclude legal fee contracts or include a clause on legal fees in the power of attorney.

Costs independent from legal fees borne by the party, such as costs for appraisal and notarization, shall be notified in advance to the party. The scope and payment of these costs shall be agreed between the law firm and the party. Costs for appraisal, notarization, translation and fees charged by the courts should be paid on a reimbursement basis. Traveling costs may be collected in advance on the basis of a budget agreed by the party.

The law firm may establish special accounts for the party to keep contract funds, funds collected from enforcement and a security account for the implementation of contract.

[Issued By] China Banking Regulatory Commission

[Adopted On] March 25^th 2004

[Subject] Non-performing Assets

[Effective From] March 25^th 2004

[Source] www.cbrc.gov.cn

This regulation is divided into seven parts with the following headings: general principles, supervision of non- performing assets, analysis of non-performing assets, examination of non-performing assets, sources and analysis of data and information & time-limit for submission of reports, liabilities for administration and supervision of non-performing assets, final clause.

Compared to the existent rules on the supervision of unperformed assets, there are two new features in the regulation. First, the scope of supervision is more comprehensive, including loans, non-loaned assets and off-balance sheet transactions. Secondly, emphasis is placed both on the balance and the ratio of unperformed assets.

Commercial banks shall exercise direct supervision over their institutions and clients. The institutions include: the top 5 bank branches in terms of unperforming assets ratio, bank branches whose balance or ratio of unperforming assets keep rising, the top 5 bank branches in terms of anticipated loss-ratio in non-loaned assets, bank branches whose off-balance sheet transactions are in disorder. The clients include: clients with more than RMB 100 million outstanding unperforming loans, the group clients owning more than 5 related enterprises with an overall outstanding amount of unperformed loans more than RMB 100 million.

[Issued By] China Securities Regulatory Commission

[Adopted On] March 15^th 2004

[Subject] Corporate Governance, Futures Brokerage Companies

[Effective From] March 15^th 2004

[Source] www.law-lib.com

The Code applies to futures brokerage companies incoporated in China. The corporate governance for the purpose of this code refers to the corporate structure comprising the conference of shareholders, board of directors, board of supervisors, and the management, as well as arrangements including decision-making, restrictions and incentives to guarantee the effective functioning of the foregoing organs and the balance of power between them.

In order to improve corporate governance the following principles shall be adhered to: the improvement of the balance of power, the reinforcement of risk control of futures brokerage, the protection of the equality and the rights of all shareholders and the perfection of the incentives and restrictions.

The position of an independent director shall be established in one of the following cases: (1) the registered capital is no less than RMB 50 million; (2) the single shareholder or ultimate beneficiary directly or indirectly holds more than 50% of the shares; (3) the position of chairman of the Board of directors and the general manager are held by the same person; (4) the financial institutions directly or indirectly act as shareholders

© Wenger Vieli Belser, Beijing, March 26, 2004

[Adopted By] China Securities Regulatory Commission (CSRC)

[Subject] Sale of Fund Units

[Source] www.law-star.com

Recently, as a reaction against the appearance of unfair competition activities by fund companies and sale agencies in the marketing of fund units, the CSRC reiterated its position on this matter.

The Circular requires that fund companies and sale agencies should strictly abide by the Provisional Rules on the Administration of Sale of Securities Investment Fund (CSRC, 18 September 2002). The materials used for marketing shall contain wording that will explicitly inform about the risks involved. The fund companies and sale agencies shall not viciously suppress prices of their products or harm the reputation of products of others. Furthermore, they shall not sell their products at a price lower than their actual cost by means of lottery, rake-off, gratuitous insurance, cash back and free fund units. More importantly, no assurance of profit or minimum profit may be made to the investors. The fund companies shall ensure that sale agencies sell the fund units at a uniform price.

As to compliance and enforcement, the CSRC will adopt the following measures including face to face reminder, written notification, open criticism, suspension of new fund application and suspension or revocation of the sale agency permit.

[Issued By] State Administration of Taxation (SAT)

[Promulgated On] March 4^th 2004

[Subject] Enterprise Income Tax

[Effective From] March 4^th 2004

[Source] www.law-lib.com

Considering the practice that some travel agencies book inbound tickets for their customers from elsewhere and include the ticket fare into the group fee, the SAT makes it clear that the actual costs of inbound tickets for customers may be deducted before taxation.

The application for such deduction requires the proof by photocopy of the ticket, as the ticket has been delivered to the customer. However, the taxation authorities may request additional documentation from the travel agency to establish its application for deduction.

To avoid double deduction, the cost of tickets for consumption purposes, such as tourism, shall not be deducted again as enterprise cost at the enterprise employing the ticket holder or the enterprise invested by the ticket holder.

[Issued By] State Administration of Foreign Exchange

[Adopted On] March 18^th 2004

[Subject] Settlement of Foreign Exchange Deals

[Effective From] April 1^st 2004

[Source] www.safe.gov.cn

The Circular is adopted to facilitate trade and investment as well as effectively regulate capital account and discourage speculated capital transactions through individual residents and non-residents via non-trade channels.

The bank shall examine whether the request for settlement of foreign exchange is genuine. Where the sum is no more than USD 10000, the individual resident making the request for settlement shall produce his or her ID. Where the sum is more than USD 10000 but no more than USD 50000, the individual resident making such request shall produce his or her ID as well as proof of legitimacy of the source. Where the sum is more than USD 50000, the individual resident shall apply for the approval from the local bureau of foreign exchange administration with ID and proof of the legitimacy of the source before making the request for settlement to the bank.

[Issued By] Bureau of Pricing of Guangdong Province et al

[Adopted On] March 26^th 2004

[Subject] Labor Arbitration Fees

[Effective From] April 10^th 2004

[Source] www.szlabor.com

The arbitration fees under this regulation encompass registration fees and processing fees. The registration fee is decided according to the number of the parties. The processing fee is calculated on the basis of the sum in dispute. Where the case does not involve a sum in dispute, the processing fee is set at RMB 300. Seperate processing fees will be charged for additional claims, counter-claims and third-party claims.

The registration fee shall be advanced by the applicant within 5 days of notification of registration by the arbitration commission. Failure to pay the registration fee is presumed as withdrawal of application. The processing fee shall be advanced by both parties, the allocation of which shall be decided by the tribunal.

The losing party shall foot the bill for arbitration fees. Where there is no absolute losing party, the arbitration fees shall be shared by both parties in accordance with the decision of the tribunal. Where the case is settled through mediation presided by the tribunal and the parties fail to agree upon the allocation of arbitration fees, the tribunal shall decide the allocation.

For additional arbitration fees, the party making the request shall bear the following costs: (1) the travel expenses for the obtainment of evidence by the arbitration commission; (2) copy fees for photocopying documentation relevant to the case; (3) costs arising out of appraisal, inspection, translation, announcement by third parties; (4) compensation for witness, appraiser or interpreter appearing before the tribunal.

© Wenger Vieli Belser, Beijing, April 2, 2004

[Issued By] Standing Committee of National People’s Congress

[Adopted On] April 6^th 2004

[Subject] Foreign Trade

[Effective From] July 1^st 2004

[Source] www.china.org.cn

The Law is revised to reflect the developments in the field of foreign trade, notably the commitments under the WTO agreements, since it was first adopted in 1994. It applies to foreign trade, which refers to importation and exportation of goods and technologies and trade in service, and protection of trade-related intellectual property rights. However, it does not apply to separate custom territories of China.

There are 11 chapters in the Law, namely, general principles, foreign trade operator, importation and exportation of goods and technology, international trade in services, protection of trade related intellectual property rights, order of foreign trade, investigation of foreign trade, remedies of foreign trade, promotion of foreign trade, sanctions and final clause.

In relation to the foreign trade operator, the Law lifts the restrictions of the capacity of individuals to engage in foreign trade. Furthermore, the Law abolishes the current approval procedures for foreign trade operators. In addition, the Law provides for state trade, which applies to certain goods and can only be dealt with by certain authorized enterprises, both subject to later announcements.

With reference to trade in goods, technologies and services, the Law enshrines the principle of foreign trade. However, this principle is qualified by exceptions listed in Article 16 and 26, which resemble those of Article 20 GATT.

As for the protection of trade related intellectual property rights, the department of the State Council in charge of foreign trade may impose a ban upon certain imports where such imports infringe IP rights and jeopardize foreign trade orders. At the same time, the Law authorizes the said department to take necessary measures to remove the damage brought about by unfair trade terms in license agreements such as waiver of challenge and exclusive license-back constructions.

[Issued By] Supreme People’s Court

[Subject] letter of credit

[Closing Date] June 1^st 2004

[Source] www.court.gov.cn

The judicial interpretation is drafted by referring to the Uniform Customs and Practices for Documentary Credit. It is divided into 4 parts: the scope of letter of credit cases and applicable law, the separate nature of the letter of credit and examination of documents, fraud and injunction, and guarantee for letter of credit.

The people’s courts, in adjudicating cases involving letter of credit as defined in part I, shall apply international customs and other rules agreed by parties. In absence of such agreement, they shall apply the Uniform Customs and Practice for Documentary Credit and other international customs.

The letter of credit is documentary transaction separate from the underlying transaction on which it may be based. The issuing bank is by no means bound by the underlying transaction between the applicant and the beneficiary and shall make the payment within the set period where the documents are consistent with each other and in compliance with the terms and conditions of the letter of credit. The inconsistencies between documents, between documents and the letter of credit will not be considered as discrepancies provided that they will not lead to different interpretations.

The judicial interpretation devotes many of its provisions to anti-fraud. The fraud will occur where:

(1) The applicant, in conspiracy with the beneficiary or the third party, presents fake documents without genuine underlying transactions;

(2) The beneficiary does not make delivery or the goods delivered by him are of little value;

(3) The beneficiary forges documents or presents documents containing fraudulent statements;

(4) Other fraudulent use of documents.

The issuing bank or the applicant may seek the injunction from the court having jurisdiction when the fraud comes to their notice.

However, even if it has affirmed fraud exists the court shall not render injunction by order or by judgment in the following cases:

(1) The bank designated or authorized by the issuing bank has made the payment upon the instruction from the issuing bank;

(2) The holder in due course of the draft accepted by the issuing bank, or the bank designated by it, has paid the value of the drafts in good faith;

(3) The confirming bank has made the payment in good faith;

(4) The negotiating bank has negotiated the letter of credit in good faith;

(5) The second beneficiary under the transferable letter of credit has paid the value of credit in good faith.

[Issued By] China Banking Regulatory Commission

[Promulgated on] April 2^nd 2004

[Subject] Related Transaction of Commercial Banks

[Effective From] May 1^st 2004

[Source] www.cbrc.gov.cn

The regulation consists of 6 parts with the following headings: general principles, related parties, related transactions, administration of related transactions, sanctions, and miscellaneous matters.

There are three categories of related parties to commercial banks. The first category includes parties having an actual related relationship with commercial banks (Article 7-9). The second category refers to parties having contractual arrangements with commercial banks, which makes them meet one of scenarios of first category related parties (Article 10). The third category of parties is presumed related when engaging in a transaction with commercial banks which is unfair and not carried out on market basis, making such parties benefit on the cost of the commercial banks.

The related transaction may take one of the following forms: grant of credit, guarantee, transfer of assets, provision of service and other related transactions defined by the CBRC. To facilitate management and administration, the related transactions are divided into two groups: ordinary related transaction and material related transaction, based on ratio of value of single transaction and ratio of overall transactions.

The administration system comprises 4 pillars. The first pillar is the requirement to establish a management scheme for related transactions by commercial banks. The key factor is the commission on related transactions chaired by an independent director comprising at least 3 members. The second pillar is to prescribe approval and report procedures for related transactions. The third pillar is to ban and restrict certain transactions. The fourth pillar is to provide rules for auditing and disclosure.

© Wenger Vieli Belser, Beijing, April 9, 2004