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全国人民代表大会关于修改《中华人民共和国中外合资经营企业法》的决定　附：第二次修正本

（２００１年３月１５日第九届全国人民代表大会第四次会议通过　２００１年３月１５日中华人民共和国主席令第四十八号公布　自公布之日起施行）

　　第九届全国人民代表大会第四次会议决定对《中华人民共和国中外合资经营企业法》作如下修改：
　　一、将第二条第二款修改为：“合营企业的一切活动应遵守中华人民共和国法律、法规的规定。”
　　二、将第六条第四款修改为：“合营企业职工的录用、辞退、报酬、福利、劳动保护、劳动保险等事项，应当依法通过订立合同加以规定。”
　　三、增加一条，作为第七条：“合营企业的职工依法建立工会组织，开展工会活动，维护职工的合法权益。”
　　“合营企业应当为本企业工会提供必要的活动条件。”
　　四、将第八条改为第九条，第四款修改为：“合营企业的各项保险应向中国境内的保险公司投保。”
　　五、删去第九条第一款。
　　六、将第九条改为第十条，原第九条第二款改为第十条第一款，修改为：“合营企业在批准的经营范围内所需的原材料、燃料等物资，按照公平、合理的原则，可以在国内市场或者在国际市场购买。”
　　七、将第十四条改为第十五条，增加一款，作为第二款：“合营各方没有在合同中订有仲裁条款的或者事后没有达成书面仲裁协议的，可以向人民法院起诉。”
　　八、删去第十五条中“本法修改权属于全国人民代表大会”的规定。
　　此外，根据本决定对部分条文的顺序作相应调整。
　　本决定自公布之日起施行。
　　《中华人民共和国中外合资经营企业法》根据本决定作相应的修改，重新公布。
附：中华人民共和国中外合资经营企业法（第二次修正）
　　（１９７９年７月１日第五届全国人民代表大会第二次会议通过　根据１９９０年４月４日第七届全国人民代表大会第三次会议《关于修改〈中华人民共和国中外合资经营企业法〉的决定》修正　根据２００１年３月１５日第九届全国人民代表大会第四次会议《关于修改〈中华人民共和国中外合资经营企业法〉的决定》第二次修正）

　　第一条　中华人民共和国为了扩大国际经济合作和技术交流，允许外国公司、企业和其它经济组织或个人（以下简称外国合营者），按照平等互利的原则，经中国政府批准，在中华人民共和国境内，同中国的公司、企业或其它经济组织（以下简称中国合营者）共同举办合营企业。

　　第二条　中国政府依法保护外国合营者按照经中国政府批准的协议、合同、章程在合营企业的投资、应分得的利润和其它合法权益。
　　合营企业的一切活动应遵守中华人民共和国法律、法规的规定。
　　国家对合营企业不实行国有化和征收；在特殊情况下，根据社会公共利益的需要，对合营企业可以依照法律程序实行征收，并给予相应的补偿。

　　第三条　合营各方签订的合营协议、合同、章程，应报国家对外经济贸易主管部门（以下称审查批准机关）审查批准。审查批准机关应在三个月内决定批准或不批准。合营企业经批准后，向国家工商行政管理主管部门登记，领取营业执照，开始营业。

　　第四条　合营企业的形式为有限责任公司。
　　在合营企业的注册资本中，外国合营者的投资比例一般不低于百分之二十五。
　　合营各方按注册资本比例分享利润和分担风险及亏损。
　　合营者的注册资本如果转让必须经合营各方同意。

　　第五条　合营企业各方可以现金、实物、工业产权等进行投资。
　　外国合营者作为投资的技术和设备，必须确实是适合我国需要的先进技术和设备。如果有意以落后的技术和设备进行欺骗，造成损失的，应赔偿损失。
　　中国合营者的投资可包括为合营企业经营期间提供的场地使用权。如果场地使用权未作为中国合营者投资的一部分，合营企业应向中国政府缴纳使用费。
　　上述各项投资应在合营企业的合同和章程中加以规定，其价格（场地除外）由合营各方评议商定。

　　第六条　合营企业设董事会，其人数组成由合营各方协商，在合同、章程中确定，并由合营各方委派和撤换。董事长和副董事长由合营各方协商确定或由董事会选举产生。中外合营者的一方担任董事长的，由他方担任副董事长。董事会根据平等互利的原则，决定合营企业的重大问题。
　　董事会的职权是按合营企业章程规定，讨论决定合营企业的一切重大问题：企业发展规划、生产经营活动方案、收支预算、利润分配、劳动工资计划、停业，以及总经理、副总经理、总工程师、总会计师、审计师的任命或聘请及其职权和待遇等。
　　正副总经理（或正副厂长）由合营各方分别担任。
　　合营企业职工的录用、辞退、报酬、福利、劳动保护、劳动保险等事项，应当依法通过订立合同加以规定。

　　第七条　合营企业的职工依法建立工会组织，开展工会活动，维护职工的合法权益。
　　合营企业应当为本企业工会提供必要的活动条件。

　　第八条合营企业获得的毛利润，按中华人民共和国税法规定缴纳合营企业所得税后，扣除合营企业章程规定的储备基金、职工奖励及福利基金、企业发展基金，净利润根据合营各方注册资本的比例进行分配。
　　合营企业依照国家有关税收的法律和行政法规的规定，可以享受减税、免税的优惠待遇。
　　外国合营者将分得的净利润用于在中国境内再投资时，可申请退还已缴纳的部分所得税。

　　第九条　合营企业应凭营业执照在国家外汇管理机关允许经营外汇业务的银行或其它金融机构开立外汇帐户。
　　合营企业的有关外汇事宜，应遵照中华人民共和国外汇管理条例办理。
　　合营企业在其经营活动中，可直接向外国银行筹措资金。
　　合营企业的各项保险应向中国境内的保险公司投保。

　　第十条　合营企业在批准的经营范围内所需的原材料、燃料等物资，按照公平、合理的原则，可以在国内市场或者在国际市场购买。
　　鼓励合营企业向中国境外销售产品。出口产品可由合营企业直接或与其有关的委托机构向国外市场出售，也可通过中国的外贸机构出售。合营企业产品也可在中国市场销售。
　　合营企业需要时可在中国境外设立分支机构。

　　第十一条　外国合营者在履行法律和协议、合同规定的义务后分得的净利润，在合营企业期满或者中止时所分得的资金以及其它资金，可按合营企业合同规定的货币，按外汇管理条例汇往国外。
　　鼓励外国合营者将可汇出的外汇存入中国银行。

　　第十二条　合营企业的外籍职工的工资收入和其它正当收入，按中华人民共和国税法缴纳个人所得税后，可按外汇管理条例汇往国外。

　　第十三条　合营企业的合营期限，按不同行业、不同情况，作不同的约定。有的行业的合营企业，应当约定合营期限；有的行业的合营企业，可以约定合营期限，也可以不约定合营期限。约定合营期限的合营企业，合营各方同意延长合营期限的，应在距合营期满六个月前向审查批准机关提出申请。审查批准机关应自接到申请之日起一个月内决定批准或不批准。

　　第十四条　合营企业如发生严重亏损、一方不履行合同和章程规定的义务、不可抗力等，经合营各方协商同意，报请审查批准机关批准，并向国家工商行政管理主管部门登记，可终止合同。如果因违反合同而造成损失的，应由违反合同的一方承担经济责任。

　　第十五条　合营各方发生纠纷，董事会不能协商解决时，由中国仲裁机构进行调解或仲裁，也可由合营各方协议在其它仲裁机构仲裁。
　　合营各方没有在合同中订有仲裁条款的或者事后没有达成书面仲裁协议的，可以向人民法院起诉。

　　第十六条　本法自公布之日起生效。

PRC, Sino-foreign Equity Joint Venture Law (2nd Revision)

(Passed on 1 July 1979 by the 1st Session of 5th NPC; first amendment made by the Decision Regarding the Revision of <PRC, Sino-foreign Equity Joint Venture Law>, adopted at the 3rd Session of the 7th NPC on 4 April 1990; second amendment made by the Decision Regarding the Revision of <PRC, Sino-foreign Equity Joint Venture Law>, adopted at the 4th Session of the 9th NPC on 15 March 2001.)

Article 1: In order to expand international economic co-operation and technological exchange, the People's Republic of China shall permit foreign companies, enterprises, other economic organizations or individuals (hereafter "foreign parties"), after approval by the Chinese government, to organize within the territory of the People's Republic of China joint ventures with Chinese companies, enterprises or other economic organizations (hereafter "Chinese investors") on the principles of equality and mutual benefit.

Article 2: The Chinese government shall protect, in accordance with the law, the investment by a foreign party in a joint venture and the profits due it pursuant to the agreements, contracts and articles of association authorized by the Chinese government as well as its other lawful rights and interests.

A joint venture shall observe the laws and regulations of the People's Republic of China in all its activities.

The state shall not nationalize or expropriate joint ventures. Under special circumstances, in accordance with the public interest, a joint venture may be expropriated according to the procedure prescribed by law, in which case appropriate compensation shall be given.

Article 3: Joint venture agreements, contracts and articles of association concluded by the parties to a joint venture shall be reported to the state foreign economic relations and trade administrative department (hereafter, the "approval authority") for examination and approval. The approval authority shall decide, within 30 days, whether or not to approve a joint venture. Once approved, a joint venture shall be registered with the state industry and commerce administrative department, a business licence shall be obtained and operations shall begin.

Article 4: A joint venture shall take the form of a limited liability company.

The proportion of the investment contributed by the foreign party in the registered capital of a joint venture shall in general not be less than 25 per cent.

The profits, risks and losses of a joint venture shall be shared by the parties to the venture in proportion to their contributions to the registered capital.

A party may only assign its share in the registered capital with the agreement of the other parties to the venture.

Article 5: Each party to a joint venture may contribute cash, material objects, industrial property rights, etc, as its investment in the venture.

The technology or equipment contributed by a foreign party as investment shall be truly advanced and appropriate to China's needs. Compensation shall be paid where losses are caused by fraud through the intentional provision of outdated equipment or technology.

The investment contributed by a Chinese investor may include the right to use a site provided for the joint venture during the term of its operation. Where the right to use a site does not constitute a part of the investment by the Chinese investor, the joint venture shall pay fees to the Chinese government for use of the site.

The various contributions referred to in this Article shall be specified in the contract concerning a joint venture or in its articles of association, and the value of each contribution (excluding that of the site) shall be ascertained by the parties to the venture through consultation.

Article 6: A joint venture shall establish a board of directors. The size and composition of the board of directors shall be determined through negotiations between the parties to the joint venture, and shall be stipulated in the contract and articles of association. Members of the board of directors shall be appointed and replaced by the parties to the joint venture. The chairman of the board and the vice-chairman of the board shall be determined through negotiation between the parties to the joint venture or elected by the board of directors. Where the post of chairman of the board is assumed by the Chinese party or the foreign party to the joint venture, [a member of] the other party shall assume the post of vice-chairman. The board of directors shall make major decisions concerning the joint venture based on the principles of equality and mutual benefit.

The powers and functions of the board of directors shall be to discuss and decide in accordance with the provisions of the articles of association of the joint venture, all major problems concerning the venture, namely, development plans, production and business plans, the budget, distribution of profits, manpower and pay scale plans, the termination of business and the appointment or recruitment of the general manager, the deputy general manager, the chief engineer, the chief accountant and the auditor as well as their functions and powers and their remuneration, etc.

The general manager and deputy general manager shall be chosen from the parties to the joint venture.

Matters concerning the employment, discharge, remuneration, benefits, labour protection, labour insurance, etc. of the workers and staff of a joint venture shall be stipulated in accordance with the law through the conclusion of a contract.

Article 7: Workers and staff of a joint venture may, in accordance with the law, establish trade union organizations to conduct trade union activities and safeguard the lawful rights and interests of workers and staff.

A joint venture shall provide its trade union necessary conditions for the union's activities.

Article 8: The net profit of a joint venture shall be distributed to the parties to the venture in proportion to their respective shares in the registered capital after the payment of joint venture income tax in accordance to the tax laws of the People's Republic of China and after deductions for the reserve fund, the bonus and welfare fund for workers and staff and the expansion fund of the venture as stipulated in the articles of association of the joint venture.

A joint venture may, in accordance with relevant tax laws and administrative regulations of the state, enjoy preferential tax reductions or exemptions.

A foreign party that re-invests its share of the net profit within Chinese territory may apply for the reimbursement of a part of the income taxes already paid.

Article 9: A joint venture shall, on the strength of its business licence, open a foreign exchange account with a bank or other financial institution permitted by the state foreign exchange control authority to engage in foreign exchange transactions.

A joint venture shall conduct its foreign exchange transactions in accordance with the regulations of the People's Republic of China for the administration of foreign exchange.

A joint venture may, in its business activities, directly borrow funds from foreign banks.

Any insurance policy taken out by a joint venture shall be taken out with an insurance company within China.

Article 10: Materials, such as raw materials and fuel, which are required under the approved scope of operation of a joint venture, may be purchased on the domestic market or international market according to the principles of fairness and reasonableness.

A joint venture is encouraged to sell its products outside China. It may distribute its export products on foreign markets directly or through relevant agencies or China's foreign trade organizations. Its products may also be distributed on the Chinese market.

When necessary, a joint venture may establish branch organizations outside China.

Article 11: A foreign joint venture party may, using the currencies stipulated in the joint venture contract and in accordance with foreign exchange administration regulations, remit abroad the net share of profits distributed to it after performance of its obligations as stipulated by the law, agreements and contracts, and the funds distributed to it following the expiry or suspension of a joint venture and other funds.

A foreign party shall be encouraged to deposit the foreign exchange that it is entitled to remit abroad in the Bank of China.

Article 12: The wage income and other lawful income of expatriate employees of joint ventures, after the payment of individual income tax in accordance with PRC tax law, may be remitted abroad in accordance with foreign exchange administration regulations.

Article 13: A joint venture's term of operation shall be stipulated in accordance with the type of industry, and individual circumstances. For joint ventures in some industries, the period of operation shall be fixed, and for joint ventures in other industries a period of operation may or may not be fixed. Where the period of operation is stipulated for a joint venture and the parties agree to extend the period of operation, they shall, six months prior to the expiry of the operation period, apply to the approval authority. The approval authority shall decide whether or not to approve the extension within one month of the date of receiving the extension application.

Article 14: The joint venture contract may be terminated upon agreement by the parties to the joint venture, pursuant to approval by the approval authority and registration with the state industry and commerce administration department where heavy losses occur in a joint venture, where one party fails to perform its duties under the contract or the articles of association, or where there occurs an event of force majeure and in other situations. Where economic losses are caused by breach of contract, the party in breach of contract shall be liable for such losses.

Article 15: Disputes between the parties to a joint venture that its board of directors fails to resolve through consultation may be resolved through conciliation or arbitration by an arbitral body in China or through arbitration by an arbitral body agreed upon by the parties.

If the parties to the equity joint venture have not made an arbitration clause in their contract or have not subsequently reached an arbitration agreement in writing, they may institute lawsuits in a people's court.

Article 16: This Law shall be implemented from the date of promulgation.

The Law of the Reople's Republic of China on Chinese-Foreign Joint Ventures

(Adopted by the Second Session of the Fifth National People's Congress on July 1, 1979, first amended according to the Resolution on Revising the Law of the People's Republic of China on Chinese-Foreign Joint Ventures adopted by the Third Session of the Seventh National People's Congress on April 4, 1990 and amended for the second time according to the Resolution on Revising the Law of the People's Republic of China on Chinese-Foreign Joint Ventures adopted by the Fourth Session of the Ninth National People's Congress on March 15, 2001)

Article 1 With a view to expanding international economic cooperation and technical exchange, the People's Republic of China permits foreign companies, enterprises, other economic organizations or individuals (hereinafter referred to as ``foreign partner in a joint ventures'') to join with Chinese companies, enterprises or other economic organizations (hereafter referred to as ``Chinese partner in a joint ventures'') to establish joint ventures in the People's Republic of China in accordance with the principle of equality and mutual benefit and subject to approval by the Chinese government.

Article 2 The Chinese government protects, in accordance with the law, the investment of foreign partner in a joint ventures, the profits due them and their other lawful rights and interests in a joint venture, pursuant to the agreement, contract and articles of association approved by the Chinese government. All the activities of a joint venture shall comply with the stipulations of the laws and legal regulations of the People's Republic of China. The state shall not nationalize or take over joint ventures; under special circumstances and according to the needs of social public interests, the state may requisite joint ventures according to legal procedures with due compensation.

Article 3 The joint venture agreement, contract and articles of association signed by the parties to the venture should be submitted to the competent foreign economic and trade department of the state (hereafter referred to as the ``examining and approving organ'') for examination and approval; and the examining and approving organ shall, within three months, decide whether to approve or disapprove them. After approval, the joint venture should register with the competent administration department for industry and commerce, obtain a license to do business and start operation.

Article 4 A joint venture shall take the form of a limited liability company. The proportion of the investment contributed by the foreign joint venture(s) should generally not be less than 25 percent of the registered capital of a joint venture.

The parties to the venture shall share the profits, risks and losses in proportion to their respective contribution to the registered capital. No assignment of the registered capital of a joint venture participant shall be made without the consent of the other parties to the venture.

Article 5 Each party to a joint venture may make its investment in cash, in kind or in industrial property rights, etc. The technology and the equipment that serve as the investment of the foreign partner in a joint venture must be advanced technology and equipment that actually suit our country's needs. If the foreign partner in a joint venture causes losses by deception through the intentional use of backward technology and equipment, it shall pay compensation for these losses.

The investment of a Chinese partner in a joint venture may include the right to the use of a site provided for the joint venture during the period of its operation. If the right to the use of the site does not constitute a part of a Chinese partner's investment, the joint venture shall pay the Chinese government a fee for its use. The various investments referred to above shall be specified in the joint venture contract and articles of association, and the value of each (excluding that of the site) shall be jointly assessed by the parties to the venture.

Article 6 A joint venture shall have a board of directors, which shall have its size and composition stipulated in the contract and the articles of association after consultation between the parties to the venture, and the directors shall be appointed and replaced by the parties to the venture. The chairman and vice-chairmen of the board shall be decided by the parties to the venture through consultation or elected by the directors of the board. The office of chairman of the board shall be assumed by one side of the venture, and that of the vice-chairman, by the other party. The board of directors shall decide major problems of the joint venture in accordance with the principle of equality and mutual benefit.

The board of directors is empowered, pursuant to the provisions of the articles of association of the joint venture, to discuss and decide all major problems of the joint venture: expansion programs, proposals for production and operating activities, the budget for revenues and expenditures, distribution of profits, plans concerning manpower and pay scales, the termination of business and the appointment or employment of the president, the vice-president(s), the chief engineer, the treasurer and the auditors, as well as their powers and periods of employment, etc. The offices of president and vice-president(s) (or factory manager and deputy manager(s)) shall be assumed by the respective parties to the venture. Matters such as the employment, dismissal, payment, welfare, labor protection and labor insurance of the staff and workers of joint ventures shall be provided for in contracts reached in accordance with the law.

Article 7 Staff and workers of joint ventures shall establish their trade union organizations, conduct trade union activities and safeguard their lawful rights and interests according to the law. Joint ventures shall provide necessary conditions for the activities of the trade unions within the enterprises.

Article 8 After payment, pursuant to the provisions of the tax laws of the People's Republic of China, of the joint venture income tax on the gross profit earned by the joint venture and after deduction from the gross profit of a reserve fund, a bonus and welfare fund for staff and workers, and a venture expansion fund, as provided in the articles of association of the joint venture, the net profit should be distributed to the parties to the joint venture in proportion to their respective contributions to the registered capital.

A joint venture may enjoy preferential treatment of tax reduction or exemption in accordance with state tax laws and administrative regulations. A foreign partner in a joint venture that reinvests in China its share of the net profit may apply for refund of a part of the income taxes already paid.

Article 9 A joint venture shall open a foreign exchange account with a bank approved by the state foreign exchange administration or other financial organs for handling foreign exchange businesses, with its business license. The pertinent foreign exchange transactions of a joint venture shall be conducted in accordance with the regulations on foreign exchange control of the People's Republic of China. In its operating activities a joint venture may directly raise funds from foreign banks.

The various kinds of insurance coverage of a joint venture shall be furnished by insurance companies within Chinese territory.

Article 10 In its purchase of required raw and processed materials, fuels, etc. within the approved business scope, a joint venture may make the purchases from Chinese market or the international market according to the principle of being fair and rational.

A joint venture is encouraged to market its products outside China. Export products may be distributed to foreign markets through the joint venture directly or through associated agencies, and they may also be distributed through China's foreign trade agencies. Products of the joint venture may also be distributed in the Chinese market.

Whenever necessary, a joint venture may establish branches outside China.

Article 11 The net profit that the foreign side in a joint venture receives after fulfilling its obligations under the laws and various agreements and contracts, the funds it receives at the time of the joint venture's scheduled expiration or early termination, and any other funds, may be remitted abroad in accordance with the foreign exchange regulations and in the currency specified in the joint venture contract.

The foreign side in a joint venture shall be encouraged to deposit in the Bank of China the foreign exchange that it is entitled to remit abroad.

Article 12 The wages, salaries and other legitimate income earned by the foreign staff and workers of a joint venture, after payment of individual income tax under the tax laws of the People's Republic of China, may be remitted abroad in accordance with the foreign exchange regulations.

Article 13 The contract period of a joint venture may be decided through consultation by the parties to the venture according to its particular line of business and circumstances. The joint ventures of some trades should decide their contract periods; and the joint ventures of other trades may or may not decide their contract periods. If the parties to a joint venture with a prescribed contract period agree to extend the period, an application for extension of the contract should be made six months before its original expiration date. The examining and approving organ should make a decision within one month from the day of receiving the application.

Article 14 In case of heavy losses, failure of a party to fulfill the obligations prescribed by the contract and the articles of association, force majeure, etc., the contract may be terminated through consultation and agreement by the parties to the venture, subject to approval of the examining and approving organ and to registration with the industry and commerce administrations of the state. In cases of any losses caused by a breach of contract, the party violating the contract shall assume financial responsibility.

Article 15 Disputes arising between the parties to a joint venture that the board of directors cannot settle through consultation may be settled through mediation or arbitration by a Chinese arbitration agency or through arbitration by another arbitration agency agreed upon by the parties to the venture. In cases where the parties of a joint venture have not made any stipulations on arbitration in their contract or have not reached an agreement on arbitration in writing afterward may take proceedings to the people's court.

Article 16 This law shall come into force on the day of promulgation.


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