District and county sub-bureaus, professional sub-bureaus, municipal bureau offices and law enforcement brigades:
On May 26th, 2006, the State Administration for Industry and Commerce issued the Notice on Implementing the Opinions on Several Issues Concerning the Application of Laws in the Examination and Registration of Foreign-invested Companies (No.102 [2006], hereinafter referred to as the Notice). In order to better implement the Implementation Opinions of the State Administration for Industry and Commerce, the Ministry of Commerce, the General Administration of Customs and the State Administration of Foreign Exchange on Several Issues Concerning the Administration of Approval and Registration of Foreign-invested Enterprises (Industrial and Commercial Enterprise Zi [2006] No.81,hereinafter referred to as the Implementation Opinions) and accurately apply the laws and regulations on the administration of registration of foreign-invested enterprises, we hereby transmit the Notice and the Implementation Opinions to you.
I. Issues concerning registered items and their changes
The registration of foreign-invested companies shall be governed by Article 9 of the Regulations on the Administration of Company Registration; To apply for changing the registered items, the corresponding documents shall be submitted in accordance with the provisions of Article 13 of the Implementation Opinions. After the issuance of this notice, the registered items of the newly established Sino-foreign equity joint ventures and Sino-foreign cooperative limited companies change, which involves the submission of resolution documents. In principle, it shall be a resolution of the board of directors of the company, unless otherwise stipulated in the articles of association formulated by the company according to law; If the newly established foreign joint venture, wholly foreign-owned company or foreign-invested joint-stock company changes its registered items and involves the submission of resolutions (resolutions), it shall be the resolutions (resolutions) made by the company in accordance with the Company Law and the Articles of Association, shareholders' decisions or shareholders' meetings.
If the change of registration of a foreign-invested company established according to law before the issuance of this notice involves the submission of a resolution (final document), it shall be implemented in accordance with its original articles of association; Where a company amends its articles of association according to law, the provisions of the revised articles of association or amendments to the articles of association shall prevail.
Where the alteration of the registered items of a foreign-invested company involves the revision of the articles of association, it shall submit the revised articles of association or the amendment of the articles of association signed by the legal representative of the company and stamped with the official seal of the enterprise.
(1) Company name, shareholder name and name change.
If a foreign-invested company changes its name or shareholder's name, it may directly apply to the administrative department for industry and commerce for registration of change, without submitting the approval documents of the original examination and approval authority and the certificate of approval after the change, but it shall go through the relevant formalities of change at the original examination and approval authority within 30 days after the completion of registration of change.
(2) Changing the company's domicile.
Where a foreign-invested company registered in this Municipality moves out of this Municipality or moves into the State Administration for Industry and Commerce for registration, or a foreign-invested company registered in the State Administration for Industry and Commerce or other places moves into this Municipality for registration, it shall be handled in accordance with the procedures stipulated in Article 14 of the Implementation Opinions and the relevant operating procedures of the Municipal Bureau on the change of enterprise registration jurisdiction.
If a foreign-invested company registered in our bureau changes its domicile within the jurisdiction of this Municipality, it may directly apply to the administrative department for industry and commerce for registration of change, but it shall go through the relevant formalities of change at the original examination and approval authority within 30 days after the completion of registration of change.
(3) Registered capital (funds) and its changes.
The minimum registered capital of a newly established one-person limited liability company in the form of wholly foreign investment shall conform to the provisions of the Company Law on one-person limited liability companies and shall not be less than RMB 654.38+10,000.
The regulations on the minimum registered capital (gold) of a specific industry in the implementation rules of Opinions on Implementing the Revised Company Law and Further Improving the Market Access System (Jing Gong Shang Fa [2006] 1 1) are applicable to foreign-invested enterprises.
The accumulated monetary contribution of all shareholders of a newly established foreign-invested company shall not be less than 30% of the total registered capital at the time of company change.
The registered capital (capital) of a legally established foreign-invested enterprise remains unchanged, but the change of its registered capital (capital) shall comply with the above provisions.
(4) Changes in paid-in capital.
If a foreign-invested company has paid its registered capital in full, it shall go through the corresponding change registration in accordance with the Regulations on the Administration of Company Registration, but the company does not need to submit resolutions or decision documents.
(5) Business scope.
For foreign-invested enterprises and their branches outside Zhongguancun Science Park, the administrative department for industry and commerce shall, in accordance with the requirements of the Regulations on the Administration of Registration of Business Scope, specifically verify the business scope of foreign-invested enterprises within the scope of projects approved by the examination and approval authorities. If the approval documents of foreign-invested enterprises and their branches in Zhongguancun Science Park and the business scope of foreign-invested enterprises are specifically approved by the examination and approval authorities, the administrative department for industry and commerce shall specifically approve the business scope of enterprises according to the approval documents; The approval documents of the examination and approval authorities of foreign-invested enterprises shall not operate unless the general business scope is specifically approved, that is, prohibited by laws, administrative regulations, the State Council decisions and national industrial policies for foreign investment, except for the legally licensed business projects and the restricted projects stipulated in the Catalogue for Foreign Investment Industries; Projects that are restricted by laws, administrative regulations and the State Council's decisions and the national industrial policies for foreign investment can only be operated after being approved by the examination and approval authorities and registered by the administrative department for industry and commerce; Where the laws, administrative regulations and the State Council decisions do not stipulate the license and the national industrial policy on foreign investment does not restrict the operation, the administrative department for industry and commerce shall independently choose the business projects to carry out business activities, and the above-mentioned non-specific business scope shall be approved accordingly.
(6) Mode of contribution by shareholders.
The monetary funds raised by the shareholders of a foreign-invested company in their own names through loans and other means according to law shall be used as shareholders' capital contribution after capital verification by a statutory capital verification institution, and shall be explained in the capital verification certificate, with a loan contract or other relevant supporting documents attached. Where overseas loans are involved, the relevant approval documents of the State Administration of Foreign Exchange shall also be submitted. With the approval of the relevant departments, creditors of foreign-invested enterprises may convert their creditor's rights into investments in foreign-invested enterprises.
(7) Time of capital contribution and its change.
After the issuance of this notice, the shareholders of the newly established foreign-invested company shall pay their capital contributions in accordance with the provisions of Article 9 of the Implementation Opinions.
If a newly established foreign-invested company applies for increasing the registration of change of registered capital after the registered capital has been fully paid, when applying to the company registration authority for registration of change of registered capital, the shareholders shall pay no less than 20% of the newly added registered capital, and the rest can be paid in full within two years from the date of approval of change registration, and the investment company can pay in full within five years from the date of approval of change registration.
A newly established foreign-invested company that has not paid its registered capital in full but has paid it on time may apply for increasing its registered capital. When applying for this change of registration, the shareholders shall subscribe for not less than 20% of the newly-increased registered capital, and may pay the original contribution within the time limit stipulated in the revised Articles of Association or amendments to the Articles of Association, but the final payment period of all registered capital shall comply with the provisions of the Company Law.
In a legally established foreign-invested company, the time limit for shareholders to contribute capital shall conform to the provisions of the original articles of association. However, the application for increasing the registered capital shall comply with the foregoing provisions of this article.
If the shareholders of a foreign-invested company have paid the statutory minimum registered capital but are unable to pay the rest of their capital contribution on schedule, they may directly apply to the administrative department for industry and commerce for the change registration of extending the capital contribution time before the expiration of the capital contribution period, without submitting the approval documents of the examination and approval authority.
Where a shareholder of a foreign-invested company fails to pay the statutory minimum registered capital or applies for extending the registration time of investment change after the expiration of the capital contribution period, in addition to the relevant application materials for change registration, it shall also submit a proposal for registration issued by the supervision and administration department of foreign-invested enterprises. Where the supervision and administration department of foreign-invested enterprises proposes to suspend registration or make other decisions, such decisions shall prevail.
If the investors of an established foreign-invested enterprise exceed the final capital contribution period approved by the original examination and approval authority, or the shareholders of a newly established foreign-invested company fail to pay their registered capital in full beyond the final capital contribution period stipulated in the Company Law, the company shall not apply for the extension of its capital contribution time for change registration, and the company shall reduce its registered capital to less than the paid-in capital.
Two, about filing matters and filing related issues
(1) Filing of articles of association.
If the amendment to the articles of association of a foreign-invested company does not involve registered items, the company shall submit the revised articles of association or amendments to the articles of association to the administrative department for industry and commerce for the record. When applying for filing, the approval documents of the examination and approval authority, the resolutions (decisions) made by the company according to law, and the revised articles of association or amendments to the articles of association signed and sealed by the legal representative of the company shall be submitted as required.
(2) The supervisors put on record.
Where a foreign-invested company establishes a supervisor and a board of supervisors in accordance with the provisions of the Company Law and applies for filing, the company registration authority shall file it.
(3) deliver the legal documents to the recipient for the record.
Where the names and domiciles of overseas shareholders and promoters of a foreign-invested company change, they may separately apply to the administrative department for industry and commerce for filing, and submit the new legal documents signed by the authorized person and the authorized person, as well as the new qualification certificate or identity certificate of the authorized person.
(4) filing of equity pledge.
Where an investor funded by a foreign-invested enterprise takes the legally pledged equity as the creditor's rights guarantee, after approval by the examination and approval authority, he may go through the filing formalities with the registration authority, and the filing formalities shall be implemented according to the Operating Rules for Equity Pledge of Foreign-invested Enterprises attached to this Notice.
(five) issued a record certificate.
Where the company registration authority approves the filing of a foreign-invested company, it shall issue a written filing certificate.
Three, about the registration application documents and certification materials.
(1) Certification documents and notarized authentication documents of foreign investors.
The identification of foreign natural person investors in foreign-invested enterprises is limited to identity cards, passports and long-term residence permits. The identity certificates of natural person investors in Hong Kong and Macao Special Administrative Regions are local permanent identity cards or passports of special administrative regions; The identity certificate of the natural person investor in Taiwan Province Province is the local permanent identity card or passport, and the Taiwanese certificate issued by the mainland public security department can also be used as the identity certificate of the natural person investor in Taiwan Province Province without notarization.
The establishment of a foreign-invested company or the establishment of a foreign-invested company to increase foreign investors shall, in accordance with the provisions of Article 5 of the Implementation Opinions, be accompanied by notarization and authentication documents concerning the qualification documents of foreign investors. If the foreign investor's host country has not established diplomatic relations with China or has terminated diplomatic relations with China, his qualification certificate or identity certificate shall be notarized by the notary office of the host country and submitted to the embassy (consulate) of a third country that has diplomatic relations with China for authentication. The aforesaid notarized authentication documents shall also be authenticated by the embassy (consulate) of China in a third country. The qualification certificates of investors issued by overseas territories of some countries need to be notarized by the notary organs of the territory before being submitted to the foreign exchange bureau for certification. The above notarized documents also need to be certified by the embassy (consulate) of China in that country. Notarial documents of investors in the China Special Administrative Region shall be issued by a notary public entrusted by the Ministry of Justice of the Republic of China in China, and transmitted by "China Legal Service (Hong Kong) Co., Ltd." recognized by the Ministry of Justice with a special transmission seal. Notarization documents of investors in the Macao Special Administrative Region can be issued by the notary office of the Macao Special Administrative Region Government or a notary commissioned by the Ministry of Justice of China in China, and the "China Legal Service (Macau) Co., Ltd." recognized by the Ministry of Justice can be transmitted with the special seal for transmission. The notarial certificate issued by the Notary Office of Taiwan Province Province can be directly recognized by the registration authority. In case of the circumstances described in the Agreement on Verification of the Use of Notary Certificates across the Taiwan Strait, the registration authority shall send a copy of the notarial certificate to Beijing Notary Association or China Notary Association for verification, and explain the reasons for verification.
(2) Accept the service authorization document.
If a newly established foreign-invested company or an established foreign-invested company adds foreign investors, it shall submit the Power of Attorney for the Service of Legal Documents to the company registration authority in accordance with the provisions of Articles 5 and 19 of the Implementation Opinions, and attach the subject qualification certificate or identity certificate of the authorized person. The above-mentioned documents serve as an important basis for the relevant authorities to serve legal documents to foreign investors of foreign-invested companies, and are included in the company registration file, which is the same as when filing.
(3) Non-natural person sole proprietorship certificate and other matters.
Wholly foreign-funded companies and non-natural persons registered in this Municipality reinvest in this Municipality to establish a one-person limited liability company, but the "company type" item of their business licenses does not meet the provisions of Article 6 of the Implementation Opinions. Required to fill in, by the Council issued a "non-natural person sole proprietorship certificate"; If a foreign city or a wholly foreign-owned company registered by the State Administration for Industry and Commerce reinvests in this city to set up a one-person limited liability company and its business license is not annotated, it shall also submit the certificate of "wholly foreign-owned company" issued by the company registration authority of this city.
Where a joint venture or cooperative company applies for registration of establishment or change of equity transfer, it is no longer necessary to submit a joint venture or cooperative contract or supplementary agreement to the registration authority, but the articles of association submitted shall comply with the provisions of the Company Law.
Four. Other issues concerning registration.
(1) Investor qualification.
The shareholders of a foreign-invested company shall meet the qualifications stipulated by the relevant laws and administrative regulations of China and be approved by the examination and approval authority. Among them, the Chinese side of a joint venture or cooperative company shall not be a natural person, nor shall it be any other entity prohibited from engaging in business activities by the Central Committee, the State Council and the Municipal Party Committee and Municipal Government. Within the scope of Zhongguancun Science Park, we will continue to implement the relevant provisions of the Measures for the Administration of Enterprise Registration in Zhongguancun Science Park, and qualified China natural persons can be investors of foreign-invested enterprises.
The restrictive provisions of the company law that natural persons can only invest in the establishment of a one-person limited liability company do not apply to companies with foreign investment.
(2) reinvestment.
The company registration authority will no longer issue domestic investment qualification certificates for foreign-invested enterprises. When a foreign-invested enterprise is a shareholder or promoter of a domestic-funded enterprise, it shall directly apply to the domestic-funded enterprise registration authority for establishment or change of registration, but the registration authority shall pay attention to the following matters when reviewing the materials:
1. Investor qualification. Investors of foreign-invested enterprises should have paid their capital contribution in full or paid the statutory minimum initial capital contribution according to regulations, and shall not exceed the next capital contribution period.
2. Approval of business scope. The business scope of the invested domestic company shall be approved in accordance with the provisions of the Catalogue for the Guidance of Foreign Investment Industries, and investment in prohibited areas shall not be allowed; Investment in restricted areas must be approved in writing by the Municipal Bureau of Commerce.
Enterprises reinvested by foreign-invested enterprises in Zhongguancun Science Park may apply for approval of unspecified business projects, but they shall submit a letter of commitment, and their general business projects shall be examined and approved with reference to the examination and approval measures for the business scope of foreign-invested enterprises in the park.
3. prohibitive clauses. Companies with enterprise types of "limited liability company (wholly owned by overseas natural persons)" and "limited liability company (wholly owned by natural persons from Taiwan, Hong Kong and Macao)" can no longer invest in the establishment of new one-person limited liability companies.
(3) Cancellation of registration of change.
If a foreign-invested company applies for cancellation of registration of change in accordance with Article 22 of the Company Law, which involves the examination and approval of foreign capital, it shall first obtain the approval document of the original examination and approval authority for cancellation of the original registration of change and the approval certificate after the change, and then the company shall apply to the registration authority.
(4) branch registration.
Shareholders of a foreign-invested company may apply for the establishment of a branch if they have paid their capital contribution in full or paid the statutory minimum initial capital contribution in accordance with regulations and the next capital contribution period has not expired. Branches shall conduct business activities within the company's business scope, and may engage in liaison and consulting business within the company's business scope.
A foreign-invested company established in the bonded area may apply to set up branches in this city, but if the company's business scope clearly stipulates that it is limited to companies operating in the bonded area, its branches set up in this city can only engage in liaison and consulting business within the company's business scope.
(five) office registration and supervision and management.
According to the provisions of Article 25 of the Implementation Opinions, the administrative department for industry and commerce will no longer handle the registration of offices of foreign-invested companies. The original registered office shall not go through the formalities of alteration or extension. After the expiration of the time limit, it shall cancel the registration or apply for the establishment of a branch as needed.
The office of a company with foreign investment shall not engage in commodity processing, manufacturing, sales, procurement, promotion, storage, distribution, installation, debugging, maintenance and other businesses related to the above businesses; Do not undertake business, directly provide services or sign sales service contracts on behalf of the head office and collect fees. Those who engage in the above activities shall be regarded as the business activities of the office, and the branches shall be registered.
Verb (abbreviation of verb) fails to pay the fine of registered capital on time.
(a) all branches should strengthen supervision and management of the investment behavior of foreign-invested companies, and list enterprises that cannot invest on schedule as key monitoring enterprises for supervision.
(2) If a foreign-invested company fails to pay its registered capital on time, it shall be punished by relevant laws, regulations and rules in accordance with the provisions of Article 26 of the Implementation Opinions, except in any of the following circumstances:
1. If the shareholders and promoters of the company voluntarily correct the illegal acts and pay the registered capital in full, the registration authority may be exempted from administrative punishment according to the provisions of Article 27 of the Administrative Punishment Law.
2. If the shareholders and promoters of the company fail to make capital contribution on schedule, and the illegal acts are obviously minor, which have not caused harmful consequences, and the company applies for extending the time of capital contribution to change registration in time, the registration authority may be exempted from administrative punishment according to the provisions of Article 27 of the Administrative Punishment Law. The provisions of this article shall not apply to shareholders and promoters whose capital contribution has not reached the statutory minimum registered capital or exceeded the final capital contribution period.
3. A foreign-invested company that has paid the statutory minimum registered capital, but is unable to pay the remaining registered capital, may apply to the registration authority for capital reduction and change registration on the strength of the approval document of the examination and approval authority on reducing the registered capital, and may be exempted from administrative punishment.
4. If the investment time is changed and registered before the expiration of the investment period, no penalty will be imposed.
(3) If an unincorporated foreign-invested enterprise fails to pay its capital contribution on schedule, it may be dealt with in accordance with the relevant provisions of Several Provisions on the Capital Contribution of the Parties to a Sino-foreign Joint Venture, in addition to the Foreign-invested Enterprise Law.
(4) If a foreign-invested company fails to make capital contribution on schedule after the deadline stipulated in the Company Law, it may be deemed as falsely reporting the registered capital according to Article 68 of the Regulations on the Administration of Company Registration, and a fine of more than 5% 15% shall be imposed on the falsely reported registered capital; If the circumstances are serious, the company registration or business license shall be revoked.
Six, on the service of legal documents supervision and management
If the supervision and administration department of foreign-invested enterprises or other relevant departments need to serve legal documents on foreign investors of foreign-invested enterprises, they shall serve them in accordance with the relevant provisions on the service of legal documents.
Among them, if a foreign investor entrusts a domestic entity or individual to accept legal documents on his behalf, and the Power of Attorney for Service of Legal Documents has been registered in the registration department, the supervision and administration department or other relevant departments may directly serve legal documents to their domestic authorizers. If the legal documents are directly delivered to foreign investors, the contact address is the legal address of the foreign investors recorded in the company registration file.
7. Relevant requirements on strengthening the supervision and management of foreign-invested enterprises.
(a) to strengthen the publicity of laws and regulations and related training. The enterprise supervision departments of all branches should strengthen the study and training of the Implementation Opinions, increase publicity, and the qualified branches should provide relevant training to the enterprise secretary (contact person).
(2) Strengthen the management of registered capital. The enterprise supervision departments of all branches should take the opportunity of the revision of the Company Law, fully grasp the capital contribution of foreign-invested enterprises through annual inspection, and severely investigate and deal with illegal acts of not making capital contribution on time. After the annual inspection, each sub-bureau will report the enterprises that meet the cancellation conditions to the Municipal Bureau for cancellation, and at the same time, timely file the information of cases in which the inspected company fails to make contributions on schedule, so that the Municipal Bureau can publicize the punishment of such cases to the public through the Beijing Industrial and Commercial website and increase the deterrent force of laws and regulations.
(3) The enterprise supervision department of the sub-bureau shall conduct a comprehensive survey of the offices of foreign-invested enterprises within its jurisdiction, publicize relevant policies in a timely manner, and urge the offices with business activities to register branches in a timely manner. Anyone who finds that he is engaged in business activities in the name of the office shall be investigated and dealt with according to law.
If the relevant provisions of our bureau are inconsistent with the provisions of this article, the provisions of this article shall prevail.
For details, please inquire.
Beijing Municipal Bureau of Commerce
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