Since the reform and opening-up policy was introduced in 1978, especially in the past ten (10) years, the People's Republic of China (the "PRC" or "China") has undergone significant changes. China is a growth engine for the worldwide economy, fueling global expansion via higher output and trading relationships with other nations as well as greater contributions from domestic consumption. Over last nine (9) months of 2011, China has already attracted contractual inbound foreign direct investment of USD177.8 billion. Notwithstanding China's status as one of the world's largest economies, and the massive amounts of foreign money invested in China, the basic laws and rules in China governing foreign investment seems mysterious for those who want to invest in China or are accustomed to laws of their countries.
1 Governmental Structure
1.1 China's Political System
Political System of China refers to the political structure, fundamental laws, rules and regulation and practices that are implemented in China, and which control the state power, government, and the relationships between the state and society. Being a socialist country, based on the worker-peasant union and practicing people's democratic centralism, the primary system in the country is the socialist system.
The main political structure of the PRC is comprised of two vertically integrated, but interlocking institutions: the Chinese Communist Party (the "CCP" or "Party"), headed by the Party Politburo and its Standing Committee; and the state government (the "state" or "government") apparatus, headed by the premier, who presides over the State Council, a de-facto cabinet. Throughout China, Party and government structures closely parallel one another, with Party committees and representatives present not only in government agencies, but also in most organizations and institutions, including universities and foreign owned enterprises.
Two other major institutions play roles in Chinese politics. One is the National People's Congress (the "NPC"). According to the PRC Constitution, the NPC of China is the highest organ of state power. Its highest officers are the president and vice president of the NPC, who are directly elected by the members of the NPC. Articles 85 and 92 of the Constitution state that the State Council is the executive arm of the government and reports to the NPC.
The other is the Chinese People's Political Consultative Conference ("CPPCC"). The CPPCC is an organization of the patriotic united front of the Chinese people. It is also an important organ of multi-party cooperation and political consultation under the leadership of the CPC, and an important instrument of democracy in the nation's political life. The CPPCC exercises the functions of political consultation, democratic supervision, and participating in the administration and discussion of state affairs. This is a key link for the CPC and the governments at all levels to ensure that decision-making is scientific and democratic.
Another key institution in Chinese politics is the People's Liberation Army ("PLA"). The distinction between civilian and military leadership in the PRC is tenuous. There are, for instance, two authoritative bodies ostensibly tasked with authority over military policy and decisions: the Central Military Commission of the PRC, a state entity; and the Central Military Commission of the Communist Party, a party organ. Although the former is nominally considered to be in supreme command of military and defense affairs, including the formulation of military strategy, in reality it is the Party-controlled Central Military Commission ("CMC") that exercises command and control over the PLA. Since the membership of the two 11-member commissions is usually identical, it has become customary to refer to the CMC alone without distinguishing between the two. The CMC is chaired by the Party general secretary, emphasizing that leadership of the military is a Party prerogative.
1.2 Government
The PRC is governed under the leadership of the CCP. The PRC government is organized in two tiers. The central government, State Council is the highest administration authority of PRC and leads various departments, bureaus and public service units, while local governments have authority over the provinces, autonomous regions, centrally governed municipalities (Beijing, Shanghai, Tianjin and Chongqing), and special administrative regions (Hong Kong and Macau).
The PRC's legal system, administrative apparatus, policy-making and government organizations are broadly divided into three levels, namely, the central government level, provincial or municipal government level, and local municipal or county government level. Foreign investors need to understand which authorities are relevant to their particular activities and it is important to appreciate that the role of government is very significant in PRC business matters.
1.3 Foreign Investment Approval Authorities
There are several authorities responsible for overseeing different aspects of foreign investment through their central and local branches.
(a) Project Approval involves the National Development and Reform Commission (the "NDRC")
The NDRC co-ordinates development policy and also takes a major role in approving foreign investment projects. Along with the project approving procedure, opinions from other relevant authorities (such as the opinion from the Ministry of Environment regarding the environmental protection for a plant project) are often involved in this process.
(b) Approval of establishment of foreign invested enterprises (the "FIE") by the Ministry of Commerce (the "MOFCOM")
MOFCOM is responsible for examining and approving the establishment of FIEs, including the form of their constitutional documents and the approved areas in which they will be permitted to conduct business.
(c) Special Industry Approvals
Although the main approving authorities are the NDRC and MOFCOM, other authorities may also be involved in approving procedures particularly where there is some limitation on the entrance by foreign investors into a special industry. For example, the pre-approval from the State Food and Drug Administration ("SFDA") or its branches is needed if the investment involves the pharmaceutical production.
(d) Registration with the State Administration for Industry and Commerce (the "SAIC")
All business entities need to maintain records of corporate documents with local branches of SAIC including basic information regarding registered capital, directors, shareholders and the constitutional documents. SAIC also oversees initial approvals for special industries such as advertising.
(e) Other business administrations relevant to foreign investors
The tax bureau, the administration of foreign exchange, the finance bureau, the customs and the administration of quality supervision, among others, are all involved in the routine management of FIEs.
1.4 Constitutional Protection
A number of constitutional changes have occurred in recent years. Businessmen have been allowed to join the CCP since November 2002 which is indicative of the importance now placed on the private sector in modern China. The amendment to the state constitution in March 2004 and enactment of the PRC Property Law in 2007 both demonstrated the PRC government's commitment to the protection of property rights and investors' interests. Measures such as these have also helped to strengthen foreign investors' long term confidence in China.
2 Legal System
Shortly after its founding in 1949, the PRC government dismantled the former legal system and created a socialist legal system. The modern Chinese legal system mainly consists of seven (7) branches and four (4) levels of law. The seven (7) branches of law are: the Constitution and laws related to the Constitution; civil and commercial laws; administrative laws; economic laws; social laws; criminal laws; and litigation and non-litigation procedural laws. The four (4) levels of law are: the Constitution; laws; administrative regulations; local regulations, and autonomous regulations, specific rules and rules.
Amendments to the Constitution are rectified by a two-thirds majority vote from all deputies of the NPC.
Laws on the following matters are enacted exclusively by the NPC and its Standing Committee: state sovereignty; the formation, organization, functions and powers of state organs; the system of regional autonomy by ethnic minorities, the system of special administrative regions and the system of autonomy at the grass-root level; criminal offences and punishment; the deprivation of citizens' political rights and mandatory measures and penalties involving the restriction of personal freedom; the expropriation of non State-owned property; the basic civil system; the basic economic system and basic systems of finance, taxation, customs, banking and foreign trade; the litigation and arbitration systems and other matters for which laws must be enacted by the NPC or its Standing Committee. The Standing Committee of the NPC follows the "system of three deliberations" in the enactment of laws, which means that a bill should be deliberated at three (3) meetings of the Standing Committee of the NPC before it is voted on. An important or controversial bill may undergo more than three (3) deliberations.
The State Council enacts administrative regulations in accordance with the Constitution and the laws.
The people's congresses of the provinces, autonomous regions and municipalities directly under the central government, or their standing committees, have the power to enact local regulations. The people's congresses of the ethnic autonomous regions have the power to enact autonomous region regulations and also other specific regulations based on local political, economic and cultural conditions.
Ministries and commissions of the State Council and other organs endowed with administrative functions directly under the State Council, such as MOFCOM, SAIC and the China Securities Regulatory Commission (the "CSRC") may, in accordance with the laws and administrative regulations, enact departmental rules within the limits of their power. The people's governments of the provinces, autonomous regions, municipalities directly under the central government and larger cities may, in accordance with the laws, administrative regulations and local regulations of their respective province, autonomous region or municipality, enact local rules.
Bills are usually deliberated on a non-public basis. The process is not published in government publications, nor are the bills announced to the public. However, in recent years, laws, regulations and rules that are controversial or will have a significant social and economic impact on Chinese society, such as the PRC Property Law, the PRC Labor Contract Law, the PRC Food Safety Law and the Administrative Regulations on the Registration of Resident Representative Offices of Foreign Enterprises, have been released on the Internet to solicit public opinion. Public seminars and public hearings have also been held, for example, in respect of revisions proposed for the PRC Individual Income Tax Law and the PRC Intangible Cultural Heritage Law, as well as the formulation of the Regulations on the Expropriation of Houses on State-owned Land and Compensation. These signify a major change in the PRC legislative system.
In general, legislative bodies are entitled to construe and interpret the laws and regulations that they have enacted, although such laws and regulations are also subject to the construction and interpretation by other legislative bodies of a higher level. The PRC body of laws has undergone a comprehensive overhaul since 1979 with the passage and revision of many major pieces of legislation, including laws and regulations applicable to foreign investment.
3 Establishing a Business Vehicle in China
3.1 General Policy
Provisions on Guiding the Orientation of Foreign Investment promulgated by the State of Council came effective on 11 February 2002, which classifies foreign investment areas into four (4) different sectors, the encouraged, permitted, restricted and prohibited. In the Catalogue of Industries for Guiding Foreign Investment (the "Catalogue") jointly published by the MOFCOM and NDRC further specifies which areas are prohibited, restricted and encouraged for foreign investors, and those areas which are not provided in the Catalogue should be permitted for foreign investors. According to the Catalogue, we understand the prohibited are areas which cannot be invested by foreign investors, the restricted may have some investment requirements or limitations such as only permitting cooperation jointly by Chinese and foreign investors, or only permitting foreign investor to hold minority interests of the proposed company (or other kinds of organizations) up to 49% etc., and the permitted and encouraged are areas which permit the structure wholly invested by foreign investors.
3.2 Types of Foreign Investment Vehicles
Companies that desire a permanent presence have to set up operations as an appropriate legal entity, depending on the intended business scope, and be compliant with Chinese legal and tax requirements. The most common legal structures used for establishing a presence in the PRC are:
- A Representative Office (the "RO")
- A Wholly Foreign-owned Enterprise (the "WFOE")
- An Equity Joint Venture (the "EJV")
- A Contractual Joint Venture (the "CJV")
- A Foreign-invested Partnership Enterprise (the "FIPE")
Each of these structures has unique advantages, restrictions and drawbacks, and it is essential to choose the option best suited to your business aims. Among of the above forms, the WFOE, EJV, CJV and FIPE are collectively referred to as FIEs.
(a) RO
ROs are often the first step taken by foreign companies when establishing a permanent presence in China. ROs can undertake market investigation, display, publicity activities in connection with the products or services of foreign companies, and liaison activities in connection with the products sales, services provision, domestic procurement and domestic investment of foreign companies. However, ROs are not permitted to engage in any profit activity which means that they cannot sign contracts, receive income, or issue invoices and business tax receipts. Under PRC law, an RO is considered to be an extension of its establishing company, and does not have the status of a legal person.
To establish an RO in China is relatively easy. Generally, a foreign company only needs to register with the SAIC to establish an RO. Law firms, financial and insurance companies and other certain industries may require substantive approvals, but for most industries no substantive government approval is required. In addition, ROs are not subject to the capital contribution requirement imposed on companies and their investors.
(b) WFOE
A WFOE refers to a company incorporated in China with limited liability that is owned by one or more foreign investors. Where permitted, a WFOE is now a popular option for foreign business, as the investor may completely control over their business entity as well as enjoy the full profit from its operation. Moreover, WFOEs also provide a better protection to the investor's intellectual property rights in comparison to other types of entities.
The WFOE is an appropriate structure for companies whose main activities in China are to manufacture and sell products, or provide services such as research and development or business consultancy. A WFOE allows the foreign investor to issue invoices and receive revenues in Renminbi (the "RMB") that can then be converted and repatriated out of China.
Compared to an RO, to establish a WFOE is a little more complex and time consuming, since generally the WFOE has to get the approval from MOFCOM prior to registration with SAIC. In addition, besides the approval from MOFCOM, the WFOE usually should obtain approvals from other governmental authorities such as NDRC and SFDA etc., depending on the WFOE's business scope.
(c) EJV
An EJV is typically used for long-term projects and is formed by foreign companies, enterprises, other economic organizations or individuals and Chinese companies, enterprises or other economic organizations. An EJV is typically a limited liability company. The proportion of an EJV's registered capital contributed by the foreign investors shall not be less than 25%.
The board of directors is the highest authority of an EJV, which should decide all major issues concerning the EJV. An EJV must have at least three (3) directors, including a chairman and a vice chairman.
For foreign investors who are not familiar with Chinese market, an EJV may be beneficial for such foreign investors. A good local partner may contribute market knowledge and strong marketing and distribution channels, and they may help reduce the costs and risk of market entry. In certain restricted sectors, such as automotive and insurance, forming an EJV with a Chinese company is still the only permitted route for establishing a permanent presence in China.
The challenge of establishing and running a successful EJV is finding and nurturing the right partnership. Partners have to overcome issues such as mismatched expectations and differences in business culture and practices. The ability to maintain effective communication, and control where necessary, is also crucial.
(d) CJV
A CJV is often adopted for shorter-term projects or built-operate-transfer projects, and are formed with join capital or terms of cooperation between foreign enterprises, other economic organizations or individuals and Chinese enterprises or other economic organizations. CJV can be registered as a limited liability company which owns the status of legal person, but it is not mandatory. A CJV should set up a board of directors (a CJV which has the status of legal person) or a joint management committee (a CJV which has no status of legal person) which is the authority of CJV.
CJVs are similar in many ways to EJVs but have the potential to be more flexible in certain aspects. Unlike EJVs, the profits, risks and losses of CJVs may be allocated between the parties in a proportion that differs from the equity contributions by the parties. It may also be possible for the foreign investor to recover its investment before the end of cooperation term of the CJV.
(e) FIPE
On 1 March 2010, Administrative Measures on the Establishment of Partnership Enterprises in China by Foreign Enterprises or Individuals came into effect, allowing foreign individuals or organizations to participate in partnership enterprises, offering a further alternative to the RO, WFOE, EJV and CJV. FIPEs allow for partnerships between two or more foreign enterprises or individuals, or a combination of foreign enterprises or individuals and Chinese individuals, legal persons or other organizations.
FIPEs do not need to obtain the approval from MOFCOM. They only require registration through the local branches of SAIC. However, businesses in certain sectors will need to comply with other specific regulations and the FIPE should submit approvals from relevant authorities when applying for its registration.
The types of FIPEs include foreign-invested general partnership and foreign-invested limited partnership. Solely State-owned companies, State-owned enterprises, listed companies and public welfare institutions and social organizations shall not be general partners of FIPEs. Limited partners cannot be the executive partner of a FIPE.
The FIPE provides a good channel to enter into Chinese market for foreign investors, especially for those private equity firms.
(f) Branch Office
Besides the above forms, a foreign company can set up a branch office in China if certain prerequisites, which may vary for different industries, can be met. Such branch office does not have independent legal person status and its parent company will be held liable for all of its business activities in China. Generally, in practice not all industries are permitted to establish a branch office by the foreign company in China.
The approval authority for the establishment of branch offices is generally MOFCOM or its local counterparts, while for certain regulated industries, it is the industry administration authority, such as China Insurance Regulatory Commission ("CIRC") or China Banking Regulatory Commission ("CBRC") that is charged with the approval responsibility. Following the obtaining of approval of establishment, a branch office must apply to the local branch of SAIC for a business license.
3.3 Investment Process
(a) Establish a New Company
As analysis in Item 3.2, there are several different choices for foreign investors if they want to establish a new company in China. Foreign investors may select a proper vehicle in accordance with their business considerations.
(b) Merger and Acquisition (the "M&A") of Domestic Chinese Enterprises
(i) General rules
Instead of setting up a brand new company, a foreign investor may acquire the equity interest in or the assets of a domestic Chinese company, assuming that such domestic company is engaged in an industry which is open to foreign investment under the Catalogue, and the shareholding ratio of foreign investors is compliant with the relevant rules and regulations. There are two ways of achieving this, namely: ⑴ by establishing a FIE with the purpose of using such FIE to purchase assets from a PRC domestic company, or by directly acquiring assets from a PRC domestic company and then using those assets to establish a FIE; and ⑵ by acquiring the equity interest in, or by subscribing for new equity in a PRC domestic company, resulting in the conversion of such PRC domestic company to a FIE.
(ii) Special provisions on State-owned Enterprises
If the subject matter of the M&A involves the equity interest or assets of a State-owned enterprise (the "SOE"), a qualified asset valuation company must be appointed to carry out a valuation of the State-owned equity interest or assets in question. The valuation result must be approved by or filed with the appropriate level of the State-owned Assets Supervision and Administration Commission of the State Council (the "SASAC"), and will be used as a reference for the determination of the transfer price of the State-owned equity interest or assets. Where the agreed transfer price falls below 90% of the valuation, approval from the relevant property rights transfer government authorities must be obtained before the transaction may continue. Moreover, the sale of State-owned equity interest or assets to foreign investors must be conducted publicly through holding public tender, or by listing or being auctioned on a recognized property rights exchange.
(iii) M&A procedures
When acquiring the equity interest in or assets of an existing domestic company, it is necessary to conduct a thorough due diligence investigation on the Chinese target company or the assets to be acquired. It is important to confirm that the target company was duly organized and are validly existing, and to investigate any loans borrowed or extended, and the title of any assets (including but not limited to land use rights, intellectual property rights etc.) owned by the target company. The results of such thorough due diligence can provide guidance to the foreign investor when negotiating the contractual terms of the acquisition.
As the completed M&A will result in the conversion of the domestic company into an FIE, it is essential to obtain approval from the government authorities at the correct level.
If the proposed M&A by foreign investors of a domestic company satisfies the reporting standards as stipulated in the Rules on Standards of Reporting Business Operator Concentration promulgated by the State Council, the foreign investors shall report to the MOFCOM beforehand, and no transaction shall be conducted without reporting.
In 2011, the State Council released certain rules on the national security review. Where the target domestic enterprise is involved in a business that concerns national defense security issues or national economic security issues, the national security review process will be conducted by the Joint Committee led by NDRC and MOFCOM. If the proposed transaction is determined by the Joint Committee that it has or is likely to have a major impact on national security, the merging parties will be required to terminate the transaction or to undertake certain remedies such as the transfer of relevant shares, assets to eliminate any impact on national security. It's worth noting that the variable interest entities mode (the "VIE") which was common used in foreign investments will face restrictions for certain industries in the future.
Following the obtaining of governmental approvals, registration with the local branches of SAIC and other relevant governmental authorities, such as tax administration authority, customs administration authority and foreign exchange administration authority, will have to be conducted within specified time periods.
(c) M&A of FIEs
Alternatively, a foreign investor may acquire the equity interests of a FIE held by another foreign investor. Acquiring the equity interests in an already established FIE requires the consent of all other original shareholders, approval by the government authorities which initially approved the establishment of the FIE, and re-registration with SAIC. In the case of an EJV, unanimous approval of the EJV's board, or in the case of some CJVs, the "joint management committee", is also required.
(d) Merger and Division of FIEs
Merger and division of FIEs are allowed in the PRC. The merger of two or more FIEs requires approval from the relevant PRC government authorities that originally approved the establishment of each of those FIEs. Similarly, the division of a FIE requires approval from its original examination and approval authority.
(e) Purchasing Shares in PRC Public Companies
Shares in PRC companies listed on the Shenzhen or Shanghai stock exchanges are classified into "A" shares, which can only be sold to Chinese citizens and organizations, Qualified Foreign Institutional Investors (the "QFII") and strategic foreign investors, and B shares, which can be sold to foreign citizens and organizations, including persons from Hong Kong, Macau and Taiwan, and (since February 2001) also to Chinese nationals residing inside the PRC.
3.4 Government Approval
(a) Approval Level
According to PRC law, the foreign invested projects should be submitted to NDRC or its local branches for the project review (if necessary) and the contract and articles of association (the "AOA") should be submitted to MOFCOM or its local branches prior to registration with SAIC. The following chart shows which level of government approvals should be obtained.
|
Sector
|
Investment Amount
|
MOFCOM
|
NDRC
|
|
Encouraged or Permitted
|
Less than USD300 million
|
Provisional or local MOFCOM
|
Provisional or local NDRC
|
|
USD300 million and above
|
Central MOFCOM
|
Central NDRC
|
|
Restricted
|
Less than USD50 million
|
Provisional or local MOFCOM
|
Provisional or local NDRC
|
|
USD50 million and above
|
Central MOFCOM
|
Central NDRC
|
Moreover, for the approval of an investment company by MOFCOM, if its registered capital is less than USD300 million, the approval level should be provisional or local MOFCOM, and only if its registered capital is or exceeds USD300 million it should obtain the approval from central MOFCOM.
(b) The Basic Approval Process
An FIE may be established only with the approval of the Chinese government. The approval process for forming new entities or for acquiring existing companies (thereby converting them into FIEs) is largely the same. The approval process begins with a name reservation application to the SAIC to check on the proposed name for the FIE.
After the company name has been reserved, the applicant must obtain substantive examination and approval of the investment by MOFCOM. Examination and approval by MOFCOM is the key stage in the approval process. It requires submission of the full definitive documents for the proposed FIE to MOFCOM, and may also require a feasibility study report describing background on the project, along with other supporting documents. MOFCOM has the flexibility to request documents not expressly set forth in the statutes if they believe such documents would be helpful to its decision.
Project Verification from NDRC is technically required for any foreign investment project, but in practice, the NDRC's approval is critical only in certain industries, such as automotive industry, oil exploitation industry, etc.
After approvals from MOFCOM and NDRC (if necessary), the FIE may be registered with SAIC for issuance of a business license. Under PRC law, the date of issuance of the business license is the date of incorporation of a company. After obtaining the business license, the FIE should complete remaining registrations with relevant authorities including branches of State Administration of Foreign Exchange (the "SAFE"), General Administration of Customs of the People's Republic of China (the "Customs") and State Administration of Taxation ("SAT"), etc.
(c) Special Approvals
For some certain industries, the FIE should obtain special approvals.
Environmental approval from State Environmental Protection Agency (the "SEPA") may be required prior to applying to MOFCOM for manufacturing enterprises, or for any investment project that entails a construction project. Before registration with SAIC, for companies involving food or pharmaceutical production, they have to get the approval from SFDA.
The approval from SASAC will be required for investments involving Stated-owned assets.
Some typically regulated industries (including, for example, securities, banking and insurance) involve special approval regimes in addition to, or in place of, MOFCOM examination and approval. CSRC reviews applications to set up or acquire securities companies, CBRC covers banks, and CIRC reviews insurance company applications.
4 Operating in China
Whereas the previous parts addressed the basic political and legal system of China and the entry into Chinese market, this part will outline the principle business and commercial regulations governing the operations of FIEs in China.
4.1 Taxation
(a) Tax System
Under the current tax system, the PRC imposes about twenty (20) types of taxes, including enterprise income tax (the "EIT"), value added tax (the "VAT"), business tax, property tax, consumption tax, land appreciation tax (the "LAT"), land use tax, deed tax, stamp duty and individual income tax (the "IIT"). PRC has signed income tax treaties and arrangements with more than 80 countries and regions, including two special administrative regions of the PRC, Hong Kong and Macau.
(b) EIT
On 1 January 2008, the new unified PRC Enterprise Income Tax Law (the "EIT Law") became effective. It consolidated the previous two separate income tax regimes for domestic enterprises and FIEs into one single income tax regime. The new EIT Law introduced the concept of resident enterprises, unified the tax rate for Chinese domestic enterprises and FIEs, replaced the old tax incentive system with a new model and addressed special tax adjustments, such as adjustments made pursuant to transfer pricing, or thin capitalization rules.
(i) Resident Enterprises vs. Non-resident Enterprises
A resident enterprise refers to an enterprise which is legally established in accordance with PRC law, or an enterprise which is legally established in a foreign country or region whose actual administration institution is in China. The actual administration institution refers to the institution that actually and comprehensively manages and controls the production and operation, staff, account, property and other aspects of the enterprises. A resident enterprise should pay EIT on its worldwide income, i.e., income derived from sources both inside and outside the PRC.
A non-resident enterprise refers to an enterprise which is legally established in a foreign country or region whose actual administration institution is outside China, but which either has an establishment in the PRC or has no establishment in the PRC but derives PRC-sourced income. A non-resident enterprise which has an establishment or place in the PRC pays EIT on income which is derived from sources inside the PRC, as well as on income which, although derived from sources outside the PRC, is effectively connected with such establishment. If a non-resident enterprise has no establishment in the PRC, or has an establishment in the PRC but has derived income not effectively connected with such establishment, it pays EIT only on income derived from sources inside the PRC.
(ii) Tax Base and Tax Rate
The taxable income of an enterprise is defined as the amount remaining from its gross income in a year, after non-taxable income, tax-exempt income, various expenses and losses have been deducted. Losses incurred by an enterprise may be carried forward for a period of five (5) years. No carry-back is permitted. Reasonable expenditures which have actually been incurred and are related to the generation of income, including costs, expenses, taxes, losses and other expenditures are deductible.
A PRC resident enterprise is subject to EIT at a rate of 25% on its worldwide income. A non-resident enterprise having an establishment in the PRC is subject to EIT at a rate of 25% on its PRC-sourced income received by the establishment as well as its non-PRC-sourced income actually connected with the establishment. Where a non-resident enterprises that does not set up an institutions or establishments in China, or where institutions or establishments are set up but there is no actual relationship between the income and such institutions or establishments, the non-resident enterprise should pay EIT at a rate of 10% in relation to the income originating from China, which should be subject to tax withholding at source with the payer as the withholding agent. Under certain tax treaties between China and other countries and/or regions, non-resident enterprise may enjoy more preferential tax treatment depending on the provisions of such treaties.
(iii) Tax Incentives
Various EIT incentives are provided in the EIT Law. Preferential treatment is generally granted to industries and projects, the development of which is supported and encouraged by the State.
Qualified high-new technology enterprises (the "HNTEs") enjoy a 15% preferential tax rate nationwide. Further, in respect of HNTEs established in the five special economic zones (Shenzhen, Zhuhai, Xiamen, Shantou and Hainan) and Pudong New Area of Shanghai, a tax holiday of a two-year exemption of EIT and a three-year half reduction of EIT will apply commencing from the first profitable year.
Venture capital investment enterprises enjoy a bonus deduction equaling 70% of the investment made to qualified medium and small sized high-tech enterprises, upon reaching two (2) years of ownership. A bonus deduction or amortization of 50% of expenses incurred for research and development activities for new technology, new products, or new craftsmanship is also available to most enterprises.
Incomes earned from projects of agriculture, forestry, husbandry and fishery, incomes earned from business operations of important public infrastructure investment projects supported by the state, and incomes earned from eligible projects of environmental protection, energy and water saving may be exempted or reduced.
(c) IIT
China has a progressive IIT ranging from 3% up to 45%. Generally, an individual who has a domicile in the territory of China or who has no domicile but has stayed in the territory of China for one (1) year or more should pay individual income tax for his/her incomes obtained in and/or outside the territory of China. An individual who has no domicile and does not stay in the territory of China or who has no domicile but has stayed in the territory of China for less than one (1) year should pay individual income tax for his incomes obtained in the territory of China.
An FIE must generally serve as a withholding agent for its employees, and withhold and pay IIT on their behalf each month. China relies principally on withholding to collect IIT, and only those individuals whose annual income is RMB120,000 or more, whose income from outside the territory of China, who receive wage and salary income from at least two (2) sources within the territory of China, or who receive taxable income but have no tax withholding agent, are required to file separate annual tax returns to the competent tax authorities.
(d) VAT
VAT is levied on the sale of goods inside the PRC, the import of goods into the PRC and the provision of processing, repair and maintenance services in the PRC. The standard tax rate for most goods is 17%, though a concessionary rate of 13% applies to certain goods such as agricultural machinery, books and utilities.
The PRC VAT regime distinguishes between general VAT taxpayers and small scale VAT taxpayers. The threshold to qualifying for general VAT taxpayers are those whose annual sales are above RMB 0.5 million for manufacturing enterprises and above RMB 0.8 million for trading enterprises. The small VAT taxpayers should pay VAT at a lower rate of 3%.
(e) Business Tax
Business tax is levied on the provision of most services within the PRC, the transfer of intangible property in the PRC and the transfer of real property in the PRC.
Business tax rates
|
Services
|
Tax rate
|
|
Construction, transport, post and telecoms, cultural activities and sports
|
3%
|
|
Banking and insurance
|
5%
|
|
Services, transfer of intangible assets
|
5%
|
|
Sale of real properties
|
5%
|
|
Entertainment
|
5%-20%
|
(f) Consumption Tax
Consumption tax is imposed as a measure to monitor the consumption of goods deemed as luxury or unhealthy. It is charged to any person or unit engaged in the manufacturing, subcontracting, importing or processing of the prescribed goods. The rate varies, depending on the exact taxable items.
(g) Stamp Duty
Stamp duty is levied on specific documents executed or obtained in the PRC. The rates generally range from 0.01% to 0.003%, depending on the type of document. To the extent that a document is a contract to which there is more than one contracting party, each party needs to pay stamp duty at the full statutory rate.
(h) Deed Tax
Deed tax is levied on the transfer of land use rights and real property. The rate is 3% to 5%, depending on the location of the land or property. Deed tax is payable by the transferee.
(i) LAT
LAT is levied on the gain from the transfer of State-owned land use rights and the property situated on the land. The rates are progressive ranging from 30% to 60%, depending on the percentage of the appreciation.
(j) Property Tax
Property tax is levied on the ownership of real property in urban areas. It is assessed at an annual rate of 1.2% of the original cost of the building with less a 10% to 30% deduction (this percentage of deduction is determined by the relevant local authorities and thus may vary from location to location) or at a rate of 12% of the annual rental income. From 1 January 2009, Chinese companies or individuals have stopped paying property tax; however, FIEs, foreign enterprises and organizations and foreign individuals continue to pay property tax. In early 2011, Chongqing and Shanghai has begun to levy property tax again.
(k) Urban Land Use Tax
Urban land use tax is levied on the ownership of land use rights in urban areas. The exact rate depends on the location of the relevant land. According to the national regulations, the applicable rates per square meter are RMB 1.5 to RMB30 per year for large cities, RMB1.2 to RMB24 per year for medium-sized cities, RMB0.9 to RMB18 per year for small cities and RMB 0.6 to RMB12 per year for counties.
(l) Customs Duty
Customs duty is levied on the imported and exported goods and articles entering or leaving the territory of the PRC. Customs duty is payable according to a tariff schedule. With free trade agreements (the "FTA"), goods traded between the PRC and the FTA signatory countries qualify for lower customs duty rates. Qualified enterprises enjoy duty reduction or exemption as a tariff preference measure.
4.2 Employment
(a) Regulatory Environment
The foundation for China's employment laws, rules, and regulations is the PRC Labor Law, which was enacted on 1 January 1995 by the NPC. Another milestone in the development of China's labor and social security legislation is the PRC Labor Contract Law, which was passed by the NPC and came into force on 1 January 2008. Later, the Regulations of Implementation on the PRC Labor Contract Law became effective on 18 September 2008, which specifies certain issues on labor.
Employment matters, including those of FIEs, within the territory of the PRC are all subject to the PRC Labor Law, the PRC Labor Contract Law, and other laws and regulations issued by the NPC or the central government. There are also local regulations and rules issued by provincial, municipal, and other lower level government authorities that are only applicable to the relevant local regions.
(b) Contract of Employment
PRC law allows the employer to engage a part-time employee with an oral contract. However, in case of any employment of full time employee, the parties are required to enter into a written labor contract within one month from the date of commencement of employment. Failure to comply with this provision results in the employer being required to pay to the employee twice the amount of the agreed remuneration as salary.
(c) Minimum Wage
There is a system of guaranteed minimum wages and salaries for Chinese workers. Local people's government will formulate its own specific standards for minimum wages and salaries. The payable wages and salaries (exclusive of any overtime pay, social insurance/housing fund contributions borne by the employee, or any allowance for middle/night shifts, high/low temperature etc.) shall be in no case lower than the local minimum wage and salary standards if the workers have provided "normal work" pursuant to their labor contracts.
(d) Working Day and Overtime
There are three kinds of work hour systems, i.e., standard work hour system, comprehensive work hour system and indefinite work hour system.
(e) Social Insurance
The employer is obliged to have their PRC employees enrolled in the applicable social insurance schemes provided by the local labor authorities, and withhold the contributions borne by the employee (referred to as the "Individual Contributions" below) from his/her monthly salary and pay the individual contributions as well as the contributions borne by the employer (the "Company Contributions") to the local social insurance institution each month.
The rate and contribution basis of social insurance premium depends on the relevant local regulations. Different localities provides for different categories of social insurance schemes, which mainly depends on the localities of the domicile of the employees.
(f) Health and Safety
Employers are required to strictly implement the rules and standards of the State with regard to occupational safety and health, carry out relevant education among employees, prevent accidents in the process of work, and lessen occupational hazards. Facilities of occupational safety and health must meet the standards set by the State.
(g) Termination of Employment and Economic Compensation
(i) Termination initiated by employer
The employer is generally not allowed to unilaterally terminate the labor contract at will or without cause. The termination of employment initiated by the employer is not allowed unless some specific conditions (i.e., the statutory termination grounds) have occurred, for instance, the employee seriously violates work rules and regulations of the employer.
If the employer terminates the employment of the employee in violation of law, the employee may request for specific performance, i.e., reinstatement to his/her job position. If the employee does not so request or the contract is no longer capable of being performed, the employer shall pay twice the usual severance pay amount as damages to the employee.
(ii) Termination by mutual consent
If the employer proposes to terminate the employment of the employee, and the employee so agrees after negotiation between the parties, the labor contract can be terminated, which is referred to as the "termination by mutual consent" in the PRC employment law.
(iii) Termination initiated by employee
The employee may: ⑴ unilaterally early terminate the labor contract without cause as long as he/she gives a 30-day prior written notice to the employer (in case such employee is in probationary period, such prior notice period is three (3) days); or ⑵ immediately terminate his/her labor contract without any prior notice under some specific circumstances, such as when the employer does not pay the employee in full and on time.
(h) Labor Secondment or Contractual Worker
The ROs set up by foreign companies are not allowed to employ staff directly in the PRC but may only obtain the staff through certain designated labor agencies (the "Agency") like Foreign Enterprise Services Corporation (the "FESCO"), which is generally referred to in China as the labor secondment arrangement. Local labor bureau are in charge of monitoring compliance. Under this arrangement, the RO as the Secondee Company signs a service contract with the Agency for engagement of their labor secondment services, and the employee as the Seconded Employee, who may be appointed by the Secondee Company or the Agency, signs labor contract with the Agency and is seconded to work in the Secondee Company.
(i) Employment of Foreigners
In most cases, employers must recruit Chinese nationals if at all possible. In order to bring in a foreign employee, the employer must first apply to the local labor bureau for an employment permission certificate to bring in the intended employee. Once the employer has received the employment permission certificate, the foreign employee must apply for a work visa at his local Chinese consulate. After entering China, the employee must obtain a work permit and residence card prior to commencing employment. Foreign experts, off shore petroleum workers, cultural and artistic performers, and representatives of ROs enter China under different procedures.
4.3 Antitrust & Competition
(a) Legislation
A broad range of PRC laws contain one or more provisions prohibiting anti-competitive practices such as price-fixing, market-sharing and below-cost sales. These include the Anti-Unfair Competition Law and the Price Law. Many of these provisions have not been widely enforced, and the fragmented structure of the competition legislation reflects the historical absence of a cohesive competition policy in the PRC.
However, a comprehensive Anti-Monopoly Law (the "AML") came into effect on 1 August 2008. A number of provisions in the AML overlap with pre-existing competition provisions, but it is expected that the AML will be the primary law used to tackle anti-competitive conduct going forward. The AML regulates three (3) main areas of business conduct: monopoly agreements, the abuse of a dominant market position, and concentrations (i.e., M&A deals and certain other transactions) with anti-competitive impacts. These prohibitions are understood to apply to nearly all businesses, although SOEs may receive some special treatment under the AML, and certain activities of agricultural producers and farming entities are exempt from the law.
(b) The Development Nature of the PRC Competition Regime
Prior to the commencement of the AML, most PRC competition-related provisions were rarely enforced. The main exception was the merger control regime under the M&A regulations. However, the commencement of the AML, and the introduction of significant new legal liabilities relating to anti-competitive practices, reflects an increasing focus on competition issues in China. This suggests that, going forward, competition provisions may be enforced with more vigor than historically has been the case – particularly once further detailed implementing regulations and guidelines regarding application and enforcement of the AML are released.
It should also be noted that many of the laws prior to the AML that incorporate competition-related provisions remain in force. While many of these provisions overlap with the AML, in some cases they may have a potentially broader application. Additionally, some competition provisions are sector-specific, relating to industries such as banking and telecommunications. It is possible these provisions may still be applied going forward, either in conjunction with the AML or on a stand-alone basis.
4.4 Intellectual Property
Intellectual property protection is a key consideration for foreign investors entering Chinese market. The PRC has a comprehensive regime of intellectual property laws which provide a wide range of remedies and channels for enforcement, including civil and criminal courts, several different administrative enforcement authorities, prosecutors and polices. Legislation facilitating private prosecution by intellectual property owners came into effect in 1997. These intellectual property laws are compliant with the requirements under the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPs Agreement") of the World Trade Organization. Also, China is a party to most of the international conventions on intellectual property rights, including:
- the Paris Convention for the Protection of Intellectual Property Rights
- the TRIPs Agreement
- the Berne Convention for the Protection of Literary and Artistic Works
- the Universal Copyright Convention
- the WIPO Copyright Treaty
- the Locarno Agreement for International Classification for Industrial Designs
- the Madrid Agreement for the International Registration of Trademarks
- the Nice Agreement for the International Classification of Goods & Services
- the Patent Co-operation Treaty
- the Strasbourg Agreement for International Patent Classification
- the Budapest Treaty for Deposit of Micro-organisms
- the Geneva Convention on Unauthorized Duplication of Phonograms
- the WIPO Performances and Phonograms Treaty
Although the laws are there, the level of infringement and the inadequacy of enforcement has been the subject of disputes with Chinese trade partners, particularly the United States of America.
In China, PRC law provides protection for the patent, trademark and copyright.
(a) Patent
There are three (3) types of patents in China: invention patents, utility model patents and design patents. Invention refers to any new technical solution relating to a product, a process or improvement thereof. Utility model refers to any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. Design refers to any new design of the shape, pattern or their combination and the combination of color and shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.
Patents may be assigned or licensed, but only upon registration with the State Intellectual Property Office of the People's Public of China (the "SIPO"). Invention patents are the most robust of the three (3) kinds of patents, involving a meticulous review process that takes several years to complete, and providing protection for a period of twenty (20) years from the date of filing to SIPO. Utility model patents and design patents have a less meticulous and lengthy review process, and also provide a shorter period of ten (10) years after the date of filing. China's patent system works on a first to file basis.
(b) Trademark
In China, trademarks include registered trademarks and unregistered trademarks. Only if trademarks are registered with the Trademark Office of the State Administration for Industry and Commerce of the People's Republic of China (the "Trademark Office") can such trademarks seek protection under the PRC Trademark Law, unless the unregistered trademarks are be defined as well-known trademarks. The period of validity of a registered trademark is ten years commencing from the date of approval for the registration, with subsequent ten-year extensions being available. Registered trademarks may be assigned or licensed provided such assignments or licenses are registered with or approved by the Trademark Office.
(c) Copyright
The PRC Copyright Law provides protections for creative works, including software. The National Copyright Administration of the People's Republic of China (the "NCAC") oversees the copyright system. The NCAC oversees a non-mandatory registration process covering the both registration of copyrights themselves and of assignments or licenses thereof.
4.5 Real Property
(a) Overview
In China land in urban areas shall be owned by the State, and land in rural and suburban areas, unless otherwise prescribed by the State, shall be collectively owned by farmers, including land for houses and private plots in fields and on hillsides. Neither domestic companies nor FIEs can own land, although they may hold land use rights.
For State-owned land use rights, there are two (2) different types, allocated land use rights and granted use rights. Generally, the State-owned land use right shall be obtained by paid means such as grant. However, upon the approval from the government at or above the county level, the State-owned land may be allocated for government institutions or the military; urban infrastructure or public welfare projects; or energy, transportation and water conservancy projects as well as other infrastructure projects supported by the government. In general, allocated land use rights cannot be transferred or leased without first being converted into granted land use rights (for which a grant fee must generally be paid to the government). The government may reclaim allocated land use rights at any time without compensation.
Granted land use right is the right to use land for a specific purpose for a fixed term, seventy (70) years, fifty (50) years or forty (40) years, depending on the purpose of land. A grant fee must be paid to the government for granted land use rights.
Buildings on land generally should be owned by the same person that holds the corresponding land use rights. Nevertheless, land use rights and buildings on the corresponding land are sometimes owned by different persons.
(b) Land use rights transfers
Under PRC law, only granted land use rights may be transferred. Nobody will obtain title to allocated land, even if someone purports to sell it to you, provided that it is first converted to granted land use rights (for which a grant fee must first be paid to the government). Vacant land is required to be at least 25% developed before the corresponding land use rights can be transferred. The government may reclaim vacant land if development is not started within two (2) years of transfer.
(c) Renewal of land use rights
From 1 October 2007, the term of residential land use rights will be automatically renewed upon expiry. This is a welcome relief to those owning residential properties in China. It will also ensure that financing remains available for residential property approaching expiration of its land use right term. Non-residential land use right terms are not granted automatic renewal under the Property Law. Rather, renewal will be subject to other laws and regulations.
(d) Easements
The creation of easements has been recognized since the PRC Property Law became effective on 1 October 2007. The ability to create easements recognized by law is likely to be of particular importance for infrastructure projects that involve the construction of pipelines or other networks requiring access to land over which the project owner does not hold the land use rights.
(e) Leasing
Land must generally have been developed before it can be leased. A lessee is required to comply with the terms and conditions of the land use rights grant contract. A registered lease with authorities will gain priority over any unregistered lease.
(f) Expropriations
Land may be expropriated by the government only in special circumstances and in the public interest. Compensation is required to be paid if land is expropriated.
4.6 Foreign Exchange
China's currency, the RMB, is not fully convertible. The RMB is ultimately monitored and controlled by China's State Administration of Foreign Exchange (the "SAFE"). In the past, all foreign currency transactions involving the purchase or sale of RMB were subject to SAFE's review and approval. Since China became a member of the WTO in 2001, China's foreign currency policy has become increasingly less restrictive.
Under PRC law, foreign currency transactions are categorized as the capital account transactions and the current account transactions. Capital account transactions refer to the transaction items in the balance of payments leading to changes in external assets and liabilities, including capital transfers, direct investments, portfolio investments, derivatives, loans, etc. Current account transactions refer to the transaction items in the balance of payments involving goods, services, income, and current transfers, etc. Compared to payments of capital, current account items may face relatively easier control.
An FIE may, subject to SAFE approval, open a foreign exchange account with a designated foreign exchange bank. Usually, the account must be opened within the same area in which the FIE is registered. The approval is required to open an account in another area. An FIE may purchase foreign exchange if it has insufficient funds in its foreign exchange account to meet a foreign exchange obligation. Foreign currency accounts of FIEs are subject to annual inspections by SAFE. Moreover, foreign investors without an FIE in China may open a multicurrency account with a bank to fund the pre-establishment expenses of an FIE.
4.7 Environmental Regulation
The PRC Environmental Protection Law is the national law governing all environmental protection matters in the PRC. In addition to the Environmental Protection Law, other laws and regulations such as the Prevention of Atmospheric Pollution Law and the Prevention of Water Pollution Law have been enacted to regulate different parts of the environment. Different provinces and municipalities have also implemented their own environmental protection regulations which are of regional application.
It should be noted that the PRC government has not separately formulated a set of rules and regulations concerning environmental protection for FIEs and FIEs within the territory of the PRC are subject to the same regulatory regime as domestic enterprises.
It's also worth noting that China's recent green policy link benefits in other areas to environmental compliance. Green insurance policies require enterprises in certain sectors to insure against environmental damage. Green trade policies may result in higher export taxes on products made in pollution-intensive industries. The EIL Law also contemplates green taxation polices, providing tax incentives and sanctions concerning the environment.
4.8 Product Safety
China does not have a single, codified product safety law. Manufacturers and sellers of products and other stakeholders in this area must follow legal requirements as set out in various laws and regulations, including the General Principles of the Civil Law, the Law on Protection of the Rights and Interests of Consumers, the Criminal Law, and laws on the Administration of Pharmaceuticals and on Product Quality. China issued important legislation on food and product safety in the past several years, including the Law on the Quality and Safety of Agricultural Products in 2006; several sector-specific regulations covering the recall of vehicles, toys, food, and drugs in 2007; and the Food Safety Law and its implementing rules in 2009, which represented a milestone in the formation of China's product safety regime. These laws and regulations responded to the public's rising concern about product safety in China. Despite these laws and regulations, China has experienced a number of significant product safety issues in the recent years.
4.9 Dispute Resolution
As an increasing number of foreign investors penetrate the Chinese market, commercial disputes are expanding quickly both in number and in scale. China has made significant progress in increasing the integrity and reliability of its courts. The formal processes available for resolving such disputes in China have, in recent years, become increasingly similar to those elsewhere in the world.
If a dispute cannot be settled through negotiation between the parties, the case must be submitted for litigation or arbitration. Under PRC law, it is permitted for the parties to choose for binding arbitration to resolve their disputes and the courts will generally enforce arbitration judgment without inquiry into the merits. It is worthy noting that arbitration is only possible if the parties expressly agree to arbitrate. In practice, the arbitration is favored by many foreign investors in China.
(a) Litigation
The PRC courts consist of four (4) layers: the People's Court (at the district or county level), the Intermediate People's Courts (at the municipal level), the High People's Courts (at provincial level), and the Supreme People's Court (at the national level). The level of the competent court should be generally subject to the nature and size of the disputes. In most cases, disputes with a foreign connection may be initially in the Intermediate People's Courts.
Court judgments may be appealed once, but the judgment of the second instance is final and binding upon the parties immediately. Under the PRC Contract Law, it is permitted to select a foreign law to govern the contract with a foreign connection and to provide for exclusive jurisdiction in foreign courts. In fact, it may be difficult for Chinese courts to enforce a judgment made by a foreign court, but Hong Kong's judgments are exceptions.
(b) Arbitration
In comparison to litigation, the arbitration seems much quicker, more efficient and more reliable, thus major foreign investors would like to include an exclusive arbitration clause in their contracts.
Under PRC law, an express clause clearly indicating the parties' selection of binding arbitration is enforceable, which should be in writing and contain a clear statement of the parties' intention to submit the dispute to arbitration, the scope of disputes subject to arbitration, and the specific arbitral commission to resolve the dispute. In addition, it is possible for the parties to reach an arbitration agreement after a dispute arises, but in most cases an arbitration clause is included from the outset in the operative contracts.
The China International Economic and Trade Arbitration Commission (the "CIETAC") is one of the most frequently selected arbitration forums when the arbitration will be held within the PRC. Foreign investors sometimes do not agree to arbitration in PRC, including arbitration at CIETAC, because they believe that Chinese parties will have a home advantage, meanwhile, Chinese parties concomitantly often object to arbitration aboard. Therefore, Hong Kong seems as acceptable compromise to both parties. Of course, to select a third country's jurisdiction for arbitration is also common in practice. Since China is a party to the United Nations Convention of Recognition and Enforcement of Foreign Arbitral Awards, it is generally possible to obtain the enforcement of an arbitration award issued by a panel in any member country.
