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对外贸易经济合作部、科学技术部、国家工商行政管理总局、国家税务总局、外汇管理局令[2003]年第2号 (来源:EnglishCN英语博客基地)

(Promulgated by the Ministry of Foreign Trade and Economic Cooperation, Ministry of Science and Technology, State Administration for Industry and Commerce, State Administration of Taxation and State Administration of Foreign Exchange on 30 January 2003 and effective as of 1 March 2003.)

颁布日期:20030130  实施日期:20030301  颁布单位:对外贸易经济合作部、 科学技术部、 国家工商行政管理总局、 国家税务总局、 外汇管理局

  PART ONE GENERAL PROVISIONS

  Article 1 These Provisions have been formulated pursuant to the PRC, Sino-foreign Co-operative Joint Venture Law, the PRC, Sino-foreign Equity Joint Venture Law, the PRC, Wholly Foreign-owned Enterprise Law, the Company Law and other relevant laws and regulations in order to encourage foreign companies, enterprises, other economic organizations and individuals (Foreign Investors) to engage in venture investment in China and to establish and improve the mechanism for venture investments of China.

  Article 2 For the purposes of these Provisions, the term “Foreign-invested Venture Investment Enterprises” (Venture Investment Enterprises) shall refer to foreign-invested enterprises that are established in China by Foreign Investors or by Foreign Investors with companies, enterprises or other economic organizations that are registered and established according to Chinese law (Chinese Investors) pursuant to these Provisions to engage in venture investment business activities.

  Article 3 For the purposes of these Provisions, the term “venture investment” shall refer to an investment method consisting of equity investment, principally in unlisted high- and new-technology enterprises (Investees), and the provision to such enterprises of start-up management services in order to obtain gains in the form of capital appreciation.

  Article 4 Venture Investment Enterprises may take the organizational form of a non-legal person entity or a company.

  The investors of a Venture Investment Enterprise that takes the organizational form of a non-legal person entity (Non-legal Person Venture Investment Enterprises) shall undertake joint and several liability for the debts of the Venture Investment Enterprise. The investors of a Non-legal Person Venture Investment Enterprise may agree in the contract for Venture Investment Enterprise that the requisite investors specified in Article 7 shall undertake joint and several liability when the assets of the Non-legal Person Venture Investment Enterprise are insufficient to discharge the debts, and that the liability of other investors shall be limited to the amount of capital contribution to which they subscribed.

  The liability of each investor of a Venture Investment Enterprise that takes the organizational form of a company (Corporate Venture Investment Enterprises) shall be limited to the amount of capital contribution to which it subscribed.

  Article 5 Venture Investment Enterprises shall abide by relevant Chinese laws and regulations, comply with foreign investment industrial policies, and may not prejudice the public interest of China. The legitimate business activities in China and lawful rights and interests of Venture Investment Enterprises are protected by Chinese law.

  PART TWO ESTABLISHMENT AND REGISTRATION

  Article 6 The establishment of a Venture Investment Enterprise shall satisfy the following conditions:

  1. the number of investors shall be more than two and less than 50, and there shall be at least one requisite investor as specified in Article 7;

  2. the minimum amount of capital contribution to which the investors of a Non-legal Person Venture Investment Enterprise subscribed shall be US$10 million. The minimum amount of capital contribution to which the investors of a Corporate Venture Investment Enterprise subscribed shall be US$5 million. Except for the requisite investors specified in Article 7, the minimum amount of capital contribution to which each other investor subscribed may not be less than US$1 million. Foreign Investors shall make their capital contributions in a freely convertible currency, whereas Chinese Investors shall make their capital contributions in Renminbi;

  3. having a clear organizational form;

  4. having a clear and legitimate investment direction;

  5. except where the Venture Investment Enterprise has entrusted a venture investment management company to manage the business activities of the enterprise, the Venture Investment Enterprise shall have at least three professional management personnel with experience in venture investment business; and

  6. other conditions stipulated by laws and administrative regulations.

  Article 7 Requisite investors shall satisfy the following conditions:

  1. having venture investment as its main line of business;

  2. having cumulative capital under its management of not less than US$100 million in the three years before the application, and at least US$ 50 million of which has been used for venture investment. Where the requisite investor is a Chinese investor, the requirements under this paragraph shall be: having cumulative capital under its management of not less than Rmb 100 million in the three years before the application, and at least Rmb 50 million of which has been used for venture investment;

  3. having at least three professional management personnel with not less than three years experience in venture investment business;

  4. if the affiliated entity of one of the investors satisfies the afore-mentioned conditions, that investor may apply to become a requisite investor. For the purposes of this paragraph, the term “affiliated entity” shall refer to an entity controlled by that investor, or an entity that controls that investor, or another entity that is under the common control of an entity as that investor. For the purposes of this paragraph, the term “control” shall refer to the controlling party owns more than 50% of the voting rights of the controlled party;

  5. the requisite investors and the afore-mentioned affiliated entity shall not have been prohibited by the judicial authorities or other relevant regulatory authorities of their own countries from engaging in venture investment or investment and consultancy business, or subjected to penalty for reasons such as fraud;

  6. the amount of capital contribution subscribed to and the actual amount of capital contributed by the requisite investors of a Non-legal Person Venture Investment Enterprise shall not be less than 1% of the total capital contribution subscribed to by all investors and 1% of the total actual amount of capital contribution respectively, and the requisite investors shall undertake joint and several liability for the debts of the Venture Investment Enterprise. The amount of capital contribution subscribed to and the actual amount of capital contributed by the requisite investors of a Corporate Venture Investment Enterprise shall not be less than 30% of the total capital contribution subscribed to by all investors and 30% of the total actual amount of capital contribution respectively.

  Article 8 The establishment of a Venture Investment Enterprise shall be carried out in accordance with the following procedure:

  1. the investors shall submit the application and relevant documents to the competent provincial-level foreign trade and economic cooperation department of the place where the proposed Venture Investment Enterprise is to be established;

  2. the competent provincial-level foreign trade and economic cooperation department shall complete preliminary examination and report to the Ministry of Foreign Trade and Economic Cooperation (the Examination and Approval Authority) within 15 days of the date of receipt of all the submitted materials;

  3. within 45 days of the date of receipt of all the submitted materials, the Examination and Approval Authority shall, after reaching agreement upon consultation with the Ministry of Science and Technology, render its written decision on whether to give its approval. If it grants its approval, it will issue a Foreign-invested Enterprise Approval Certificate;

  4. within one month of the date of receipt of the Foreign-invested Enterprise Approval Certificate issued by the Examination and Approval Authority, the Venture Investment Enterprise that has been approved to be established shall file an application for registration, on the strength of the Certificate, with the State Administration for Industry and Commerce or the provincial-level industry and commerce administrative department of the place with the authority to register foreign-invested enterprises (the Registration Authority)。

  Article 9 When applying to establish a Venture Investment Enterprise, the following documents shall be submitted to the Examination and Approval Authority:

  1. an application for establishment signed by the requisite investors;

 
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