外商投资商业领域管理办法 Administration of Foreign Investment in Commercial Sectors Procedures

商务部令[2004]年第8号

（Promulgated by the Ministry of Commerce on 16 April 2004 and effective as of 1 June 2004.）

颁布日期：20040416 　实施日期：20040601 　颁布单位：商务部

　　Article 1　These Procedures have been formulated in accordance with laws and administrative regulations such as the PRC， Sino-foreign Equity Joint Venture Law， the PRC， Sino-foreign Cooperative Joint Venture Law， the PRC， Wholly Foreign-owned Enterprise Law and the Company Law in order to further open up to the outside world and to improve the construction of the market circulation system.

　　Article 2　Foreign companies， enterprises and other economic organizations or individuals （Foreign Investors） that establish foreign-invested commercial enterprises and engage in business activities in China shall comply with these Procedures.

　　Article 3　Foreign-invested commercial enterprises refer to foreign-invested enterprises that engage in the following business activities：

　　1. commission agency services： sale of goods of other parties by way of collection of fees on a contract basis by a sales agent， broker or auctioneer or other wholesalers of goods， and related auxiliary services；

　　2. wholesale： sale of goods to retailers and industrial， commercial， institutional and other users， or to other wholesalers， and related auxiliary services；

　　3. retail： sale of goods for individual or group consumption or use from a fixed location or via television， telephone， mail order， internet， automated vending machine， etc.， and related auxiliary services； and

　　4. franchising： authorization of the use of its own trademark， trade name and operation model， etc. to another party for remuneration or franchise fees through conclusion of contract.

　　Foreign companies， enterprises and other economic organizations or individuals must engage in the business activities specified in Items （1）， （2）， （3） and （4） of the preceding paragraph only through foreign-invested enterprises established in China.

　　Article 4　Foreign-invested commercial enterprises shall comply with the laws， administrative regulations and relevant rules of the People‘s Republic of China. Their legitimate business activities and lawful rights and interests are protected by the laws of China.

　　Article 5　The State authority in charge of commerce shall regulate foreign investment in commercial sectors and the business activities of foreign-invested commercial enterprises according to law.

　　Article 6　Foreign Investors in foreign-invested commercial enterprises shall have good reputation and no acts of violation of the laws， administrative regulations and relevant rules of China. Foreign Investors with relatively strong economic strength， advanced commercial operation and management experience and marketing techniques， and extensive international sales networks are encouraged to establish foreign-invested commercial enterprises.

　　Article 7　A foreign-invested commercial enterprise shall fulfil the following conditions：

　　1. its minimum registered capital fulfils the relevant provisions of the Company Law；

　　2. it fulfils the relevant provisions on the registered capital and total investment amount of foreign-invested enterprises； and

　　3. the term of operation of a foreign-invested commercial enterprise shall in general not exceed 30 years； and the term of operation of a foreign-invested commercial enterprise established in central and western China shall in general not exceed 40 years.

　　Article 8　A foreign-invested commercial enterprise that opens stores shall fulfil the following conditions：

　　1. if it applies to open a store at the same time when applying to establish a commercial enterprise， it shall comply with the relevant provisions on urban development and urban commercial development；

　　2. if a foreign-invested commercial enter

prise that has been established upon approval applies to open additional stores， it shall fulfil the following conditions in addition to the requirement in Item （1）：

　　（1） it has timely participated in and passed the joint annual inspection of foreign-invested enterprises； and

　　（2） the registered capital of the enterprise has been fully paid up.

　　Article 9　Upon approval， a foreign-invested commercial enterprise may engage in the following businesses：

　　1. for a foreign-invested commercial enterprise engaged in retail business：

　　（1） retail of merchandise；

　　（2） import of merchandise dealt in by itself；

　　（3） procurement of domestic products for export； and

　　（4） other related auxiliary businesses.

　　2. for a foreign-invested commercial enterprise engaged in wholesale business：

　　（1） wholesale of merchandise；

　　（2） commission agency services （excluding auction）；

　　（3） import and export of merchandise； and

　　（4） other related auxiliary businesses.

　　Foreign-invested commercial enterprises may authorize other parties to open stores in the form of a franchise.

　　Foreign-invested commercial enterprises may， upon approval， engage in one or more of the above sales businesses. The types of merchandise it deals in shall be specified in the content of the contract and articles of association regarding the scope of business.

　　Article 10　The establishment and opening of stores of foreign-invested commercial enterprises shall be handled in accordance with the following procedure：

　　1. The project proposal， feasibility study report and the establishment of the foreign-invested commercial enterprise shall be filed and verified and approved in one lot.

　　2. Except as otherwise stipulated in Items （3） and （4） of Paragraph One of this article， investors that propose to establish a foreign-invested commercial enterprise or established foreign-invested commercial enterprises that apply to open stores are required to submit the application documents specified in Articles 12 and 13 respectively to the department in charge of commerce at provincial level of the place of registration of the foreign-invested commercial enterprise. After preliminary examination of the submitted documents， the department in charge of commerce at provincial level shall submit the application documents to the Ministry of Commerce within one month of the date of receipt of all application documents.

　　The Ministry of Commerce shall render a decision on whether or not to approve the application within three months of the date of receipt of all application documents. If it approves the establishment， it shall issue an Approval Certificate for Foreign-invested Enterprises. If it disapproves the establishment， it shall state the reasons therefor.

　　The Ministry of Commerce may authorize departments in charge of commerce at provincial level to examine and approve the aforementioned applications in accordance with these Procedures.

　　3. If a foreign-invested commercial enterprise engaged in retail business that opens a store within the provincial administrative region in which it is located fulfils the following conditions and its scope of business involves neither sale via television， telephone， mail order， internet and automated vending machine nor the merchandise listed in Articles 17 and 18 hereof， the department in charge of commerce at provincial level shall examine and approve the application within its examination and approval authority and submit the same to the Ministry of Commerce for record filing：

　　（1） the business area of a single store shall not exceed 3，000 square metres； the total number of stores shall not exceed three； and the total number of the same type of store opened in China by its Foreign Investor through established foreign-invested commercial enterprises shall not exceed 30；

and

　　（2） the business area of a single store shall not exceed 300 square metres； the total number of stores shall not exceed 30； and the total number of the same type of store opened in China by its Foreign Investor through established foreign-invested commercial enterprises shall not exceed 300.

　　4. If the owner of the trademark or trade name of a Sino-foreign equity or cooperative commercial joint venture is a domestic enterprise or a Chinese natural person； the Chinese investor has a controlling share in the foreign-invested commercial enterprise； and the scope of business of the foreign-invested commercial enterprise does not involve the merchandise listed in Articles 17 and 18 hereof， its applications for establishment and opening of stores shall be examined and approved by the department in charge of commerce at provincial level of the place in which the enterprise is located within its examination and approval authority. If a store is to be opened in another province， the opinion of the department in charge of commerce at provincial level of the place in which the proposed store is to be located shall be sought.

　　Without authorization by the Ministry of Commerce， the department in charge of commerce at provincial level shall not delegate on its own the examination and approval authority specified in Items （3） and （4） of Paragraph One of this article.

　　Article 11　Investors shall handle registration procedures with the administration for industry and commerce on the strength of the Approval Certificate for Foreign-invested Enterprises within one month of receipt thereof.

　　Article 12　When applying to establish a foreign-invested commercial enterprise， the following documents shall be submitted：

　　1. an application；

　

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