내국민대우원칙에 따른 중국 외자기업법제 개편논의와 전망

The WTO system made all membership countries to follow the international trade regulations system, and the fundamental measures of China on joining WTO is to complete its market economy law system to match the needs of market economy and WTO demands. China's foreign investment law still includes articles that are contrary to national treatment and basic principles of WTO despite the revision in year 2000 and 2001. Also, there were no change or actual improvements done on the collision and contradiction between laws, and those with their superior ordinances as well as disharmony between foreigners investment enterprise and company laws, and other civil, mercantile laws. This situation is negatively and passively influencing China's politic issues called as creation of a healthy, clear foreign investment inducing environment. However, in August 2006, the Standing Committee of the National People’s Congress commenced the discussion on the amendment of the Income Taxes Act that unifies the enterprise income taxes of domestic and foreign enterprises and this law is expected to take effect as of 2008. Such movement for unifying the income taxes of foreign and domestic capital corporations is directly related, in terms of depth and timing, to the long-debated topic of the amendment of China's foreign investment law system. The concern with the China's foreign investment law is the fact that, rather than treating foreign investors with disadvantage and prejudice, the domestic enterprises are being held in unfavorable positions because the foreign investments are being granted with too much privilege. Therefore the process of the national treatment became essential in revolutionizing the China's foreign investment law system. China, which has become the country in possession of the most foreign exchange, changed their attitude from what they used to passively and reluctantly seek for the need of amending the National Treatment as a mandatory WTO measure to what they now try to actively rationalize the need for an amendment that complies with the National Treatment while the academia is pursuing a balanced combination of the China's Transcendental National Treatment and the WTO's National Treatment. Even if the Income Taxes Act that unifies the income taxes of foreign-domestic enterprises is introduced, considering the positive roles that foreign enterprises are responsible for and the priority that the WTO grants to developing countries in terms of their investment, a Unified Corporation Act that will effectively demonstrate the national treatment in a short period of time seems difficult. Considering the fact that the WTO National Treatment is in gradual progress and that China is familiar with procedural unified law translation by disperse lawmaking, the Code of Foreign Investment Unification theory seems like a more reasonable and feasible amendment method than the mono-track system amendment theory or the standard corporation act amendment theory. Taking into account WTO international trade regulations, world trends of economy globalization, and the Chinese macro-economy, China, hereafter, is expected to concentrate all efforts in improving the environment of hosting foreign capitals by heading towards the ‘national treatment for global convenience’ rather than the ‘ultimate treatment for the Chinese tradition.’ Meanwhile, the country is viewed to change from 'code system' to 'mono-track system' after changing its China's foreign investment law system from 'dual-track system' to 'code system'.