중국 외국투자법(초안)에 대한 고찰

On January 19, 2015, the Ministry of Commerce (the "MOFCOM") of the People's Republic of China (the "PRC") released a draft of a newly proposed Foreign Investment Law for public comment (the "New Law"). If the New Law is passed by the National People's Congress and goes into effect, it will entirely replace the current foreign investment legal framework; i.e., the Sino-Foreign Equity Joint Ventures Law of the PRC, the Sino-Foreign Cooperative Joint Ventures Law of the PRC and the Wholly Foreign-Owned Enterprises Law of the PRC (together, the "Current Framework"), and foreign investors in China will need to adapt accordingly. In the Draft Law, only those foreign investment projects that fall under the negative list are subject to the governmental approval requirement. For those projects or entities that are not on the negative list, foreign investors are allowed to bypass MOFCOM approval and directly register with the respective Administration of Industry and Commerce in the location of the business or the entity. In this regard, foreign invested enterprises can benefit from the national treatment principle and only follow the PRC Company Law and relevant regulations in the same way as Chinese domestic enterprises. In addition to this, the current rules regarding national security review of mergers and acquisitions of domestic enterprises by foreign investors are general and broad with respect to its scope and contents. The Draft Law will subject all foreign investors and foreign invested enterprises to comprehensive information reporting obligations regardless of the investment sector, even though foreign investment that is not on the negative list is exempt from prior approval. Furthermore, Under the Current Framework, most foreign multinational corporations (the "MNCs") in China operating in the technology, media and telecommunications ("TMT") industries (areas in which foreign equity ownership is restricted) access these industries free of investment restrictions through a variable interest entity ("VIE") structure. The new provisions and systems have received critical comments from scholars, Association on Foreign Enterprises and other departments of government. Some of them include Information reporting systems do raise administrative burdens for the foreign investors and that might be violation of National Treatment. and the provisions regarding national security review are vague and the scope which fall in under system are not clear engough. The deadline of soliciting public comments of the Draft Law was on February 17, 2015. We will keep a close eye on MOFCOM’s subsequent actions over this Draft Law and also monitor any change of rules by other regulatory authorities of foreign investments. As the foreign investor who are currently run business or plan to enter the chinese market should be prepared for the change in chinese legal systems.