本文分两部分刊登， 2011年10月12日金杜法律博客(Chinalawinsight)刊登的了本文的第一部分。文章第二部分将继续对《大型成套设备买卖合同中的法律问题》进行解读。
由于大型成套设备通常由多个部分组成，因此往往是按照装配顺序，边生产、边交付。相应地，在合同履行过程中会发生多次交货、安装和验收。从设备交货到验收，通常会经历如下几个阶段：
1、检验
设备的第一次检验通常是在到达目的港后由买卖双方联合进行开箱检验。在包装完好的情况下，如检验发现设备存在损坏、缺陷、短少或不符合质量标准和规格的情况，买方有权要求买方修理、更换、补供或赔偿。如是运输中发生的问题，则需向承运人或保险公司索赔。有时，为稳妥起见，买方也会在设备生产完毕后或发货前，派员到卖方工厂或发货港对设备进行装船前预检。
By Susan Ning, Ji Kailun and Yin Ranran
Only 10 days after its conditional clearance of the Alpha V/Savio deal1, the Ministry of Commerce (MOFCOM) published, on 10 November 2011, the third conditional merger clearance of this year approving the proposed joint venture between General Electric (China) Ltd. (GE China) and China Shenhua Coal to Liquid and Chemical Co., Ltd. (CSCLC)2.
This is the first conditional decision relating to a Chinese Stated-owned enterprise (SOE) and the number of MOFCOM’s conditional clearance decisions is lifted to nine in total. According to MOFCOM’s announcement, the review process lasted for about 7 months starting from April 13 when the notification was first submitted to MOFCOM.
Continue Reading MOFCOM Imposed Conditions on SOEs – GE/Shenhua Deal
by Liu Xinyu and Jing Yunfeng of King & Wood’s Corporate group
According to Articles 56 to 58(1) of the Customs Law of the People’s Republic of China ("Customs Law")(2), there are three categories where duties may be reduced: statutory duty abatements or exemptions, deductions or exemptions on special goods, and temporary duty reductions or exemptions. "Deductions or exemptions on special goods" refers to goods imported into China that enjoy a reduction or exemption of duties in specified areas and enterprises or for special purposes until the expiration of customs supervision over such goods. Special goods which are subject to reductions or exemptions are divided into many categories according to the region, use of the goods, nature of the trading business and source of funds. According to related regulations, if the imported goods fall within certain product categories encouraged by the government, the foreign investment enterprise can apply for a preferential policy of deduction and/or exemption of duties.
However, in practice, some foreign investment enterprises, being unaware of customs supervision rules, receive penalties from China Customs offices for improper handling of these special goods that are otherwise eligible for reductions or exemptions of duties. Therefore, it is important for foreign investment enterprises to understand the relevant regulations concerning special goods that are eligible for deductions and exemptions.
Continue Reading Common Mistakes Made by Foreign Investment Enterprises Utilizing Duty-Exempt Goods
根据《中华人民共和国海关法》（《海关法》）（1）第五十六条（2）、五十七条第一款（3）以及第五十八条（4）的规定，关税的减免分为三大类，即法定减免税、特定减免税和临时减免税。其中，“特定减免税货物”是指货物在进口时减征或免征进口关税，进口后只能用于特定地区、特定企业或者特定用途，直至海关监管年限届满后解除海关监管的进口货物。而特定减免税货物又根据地区、货物用途、贸易性质、企业性质和资金来源等税收政策可分为很多种类。其中，根据有关政策规定，外商投资企业进口属于国家鼓励发展的外商投资项目货物时，可申请享受特定减免税优惠政策。
但是，实践中，很多外商投资企业却因对海关监管要求的不了解而违法处置特定减免税货物导致遭受海关的处罚。因此，对于外商投资企业而言，了解特定减免税货物监管的相关规定以及海关在实践中的要求是非常重要的。
By Susan Ning, Sun Yiming and Liu Jia
On November 9, 2011, an earlier rumor indicating that China Telecom is under antitrust investigation for alleged abuse of dominance in the broadband market was confirmed by the National Development and Reform Commission ("NDRC"), the authority in charge of price-related breaches of the Anti-Monopoly Law ("AML"). This is by far the first time for China’s antitrust enforcement authority to conduct an antitrust investigation on large state-owned companies. It is speculated that billions of antitrust fines could possibly be levied if the violation is established.
This article is a follow-up of our previous article entitled "Chinese Antitrust Enforcement Agencies Ready to Show Teeth to Large State-owned Enterprises? ", which includes a comprehensive analysis of the claimed violation.
by Cecilia Lou and Yao Di of King & Wood’s Intellectual Property Group
It is not uncommon to receive unsolicited emails from domain registrars warning of imminent domain registrations by third parties. Generally, this email is a means by which some registrars solicit business in China. In many cases there is no actual third party attempting to register the domain in question.
When receiving such domain name emails we suggest that clients consider the following measures:
by Alex Zhang King & Wood Intellectual Property Group
As the second largest economy in the world, China is emerging to the center of the world’s economic stage. This emergence has been accompanied by constant changes in its legal and economic sectors. The intellectual property sector also has witnessed numerous recent changes. There have been significant new advances in China’s national innovation policies. New trends in Chinese patent filings have emerged. A growing number of Chinese companies are creating their own IP and increasingly filing infringement suits against foreign companies and their local competitors in China. China’s third patent law amendment has materially changed patent practice and procedures in that country.
These changes and trends will have profound impacts on foreign companies doing business in China, especially in intellectual property areas. What are the best ways to deal with these important changes? The following several considerations should be evaluated in determining a company’s patent strategies in China.
Continue Reading Key Considerations for Patent Strategies in China
by Susan Ning and Liwei Wang
On September 11, 2011, the name of the previous Guangdong Provincial Price Bureau was officially changed to the PriceSupervision and Inspection and Antitrust Bureau of Guangdong Province (广东省价格监督检查及反垄断局, Guangdong PAB). In connection with the expanded scope of its administrative authority, the agency will recruit additional officials for the purpose of supporting its price inspection and antitrust functions. In addition, the administrative hierarchy of the post-reform Guangdong PAB is elevated, indicating heightened administrative authority.
By Susan Ning, Liu Jia and Yin Ranran
On 31 October 2011, the Ministry of Commerce (MOFCOM) publicly announced the eighth conditional merger clearance since the enactment of the Anti-monopoly Law (AML) in 2008. According to its announcement 1 , MOFCOM cleared the proposed acquisition by Alpha Private Equity Fund V (Alpha V) of Savio group (an Italia based textile machinery producer, Savio) with four conditions. This is also the second conditional merger clearance this year 2 .
Set out below are the salient issues in relation to this conditional clearance decision.
Continue Reading MOFCOM’s 8th Conditional Clearance – Alpha V/Savio Deal
By Susan Ning and Liu Jia
On 31 October 2011, the Ministry of Commerce (MOFCOM) publicly announced the eighth conditional merger clearance since the enactment of the Anti-monopoly Law (AML) in 2008. According to its announcement1 , the review process lasted for 3.5 months starting from 14 July 2011 when the notification was submitted to MOFCOM.
Set forth below is a chart outlining the review process.
Continue Reading Alpha V/Savio Deal – A Procedural Overview of MOFCOM’s Decision-making Process