林燊，金杜律师事务所税务主管合伙人
中国政府对境外控股公司的反避税管理又向前迈进了一步。国家税务总局日前下发文件，即《关于如何理解和认定税收协定中”受益所有人”的通知》（国税函[2009]601号，简称“601号文”），指导地方税务机关调查认定申请人是否满足“受益所有人”的条件，以决定申请人能否享受税收协定中有关股息、利息、特许权使用费、财产转让收益等优惠待遇。该文件的发布引起广泛关注，跨境交易的税务筹划及利用境外控股公司享受税收协定优惠的安排将受到很大限制。
Continue Reading...By Stephen Nelson, Partner and Head of King & Wood's Taxation Practice
China’s crack down on tax anti-avoidance took another major step forward with the release of a new Circular by the SAT which may severely restrict the ability of offshore holding companies to take advantage of tax treaty benefits. The SAT’s “Notice on Interpretation and Determination of Beneficial Owner under Tax Treaties” (Guoshuihan [2009] No. 601, or “Circular 601”), directs local tax authorities to investigate whether an applicant satisfies the requirements to qualify as a beneficial owner, which is a pre-requisite to enjoy the benefit of a reduced withholding tax on dividends, interest, royalties or capital gains under a double tax arrangement.
Continue Reading...In patent prosecution, an examiner often mentions the term "common knowledge" when evaluating a step forward in an invention, as one cannot patent common knowledge. Common knowledge in the IP sense is generally a fact known or ought to be known to one skilled in the art and can be applied by such a person to solve specific technical problems. Common knowledge can also be a technical means that is most likely to be considered and applied by one skilled in the relevant technical field when working on solutions to specific technical problems. As China's Guidelines for Patent Examination (the "Guidelines") do not provide a clear definition for "common knowledge", the examiner and the applicant or the applicant's attorney often disagree on what is common knowledge in a particular patent dispute.
By Chen Wei, Partner at King & Wood's Intellectual Property Group
Continue Reading...The People's Government of Shanghai Pudong New Area promulgated on June 2, 2009, the Pilot Measures for the Establishment of Foreign-invested Equity Investment Management Enterprises in the Pudong New Area of Shanghai ("Pilot Measures"). The Pilot Measures provide guidance on registration and incorporation of equity investment management companies in Pudong New Area to be established by foreign equity investment capital firm including private equity investment and venture capital.
By Zhang Yi, Partner at King & Wood's Corporate Group
Continue Reading...By Xu Jing, Partner at King & Wood's Intellectual Property Group
Malicious litigation is broadly thought to be using a legal right to litigate to protect an interest when no substantive right has been violated. Currently, Chinese law does not provide any specific provisions on how to determine whether a party has abused its right to litigate, nor does the law define the concept of malicious litigation. Moreover, Chinese law does not provide specific remedies for a victim of malicious litigation to repair the damages suffered from a malicious litigation.
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