중국 외국인투자기업의 창업판(创业板, GEB) 상장에 관한 법제 연구

As the Chinese government recently tries to build a multilayered capital market, they establish and operate an exclusive financing market only for technical innovation enterprises and high growth type of small and medium enterprises, namely Growth Enterprise Board (“GEB”), at the Shenzhen Stock Exchange. Since the listing entity enabling to list on GEB should be a limited company passing more than 3 years from the date of legal establishment, foreign investor should establish a ‘foreigner investment limited company to have form of limited company. There are the way of new establishment, changing establishment of foreigner investment enterprise or merger and acquisition of domestic capital company in China, in the way to establish ‘foreigner investment limited company’. In order to be listed on GEB, ‘the foreigner investment limited company’ should obtain a written consent of the Chinese Ministry of Commerce and a prior permission of the China Securities Regulatory Commission at first, and foreign investment is under the relevant regulation pursuant to “the provision to guide direction of foreigner investment” and “the list to guide foreigner investment industry”There is no restriction relating to the ratio of intangible assets in requirements to list on GEB, but the company should engage in the single business category, and be in the black for latest consecutive 2 years and record more than ten million yuan (renminbi) of accumulated net profit, or be in the black for latest one year and record more than five million yuan (renminbi) of net profit, more than 50 million yuan (rinminbi) of operating income for recent one year, more than 30% of growth rate of sales (operating income) for 2 years, more than 20 million yuan (renminbi) of net assets (net assets before listing) at the end of latest fiscal quarter, more than 30 million yuan (renminbi) of total amount of market price after listing. Furthermore, minority stockholder’s equity ratio should be more than 30% of total number of stocks issued and publicly issued stocks should be more than 25% of total number of stocks issued, and in case total amount of capital stock shall exceed 400 yuan, the rate of publicly issued stock should be more than 10% and internal governance structure should be established. Moreover, considering characteristics of the foreign investment limited company, in case of listing on GEB, the relevant countermeasure regarding the below regulation may be taken account of. Foreign investor’s investment ratio of the foreigner investment limited company should not be less than 25% of total capital stock, and the Chinese investor may, under normal circumstances, not be a natural person (individual), but a natural person (individual) who is a Chinese stockholder of the corporation merged and acquired by the method of acceptance of stocks shall be able to become a stockholder of foreigner investment limited company which was changed and established successively, by obtaining permission of the Chinese government only in case the said natural person (individual) shall own his stocks more than for one year. In addition, in case it shall be needed to make judgment regarding transaction between foreigner investment limited company and its affiliated person, competitive relation with the similar business category, comprehensive and careful consideration should be made in various ways such as characteristics of management affairs, product type, difference of consumer’s pattern, substitutability of products and labor, sales method, stockholders’ status, including the relevant regulation about information disclosure system and guide for listing.