对外贸易经济合作部、国家工商行政管理总局关于外商投资企业合并与分立的规定（修订） Merger and Division of Foreign Investment Enterprises Provi

　([1999] Wai Jing Mou Fa No. 395, revised in the > Decision> on 22 November 2001.)
颁布日期：20011122 　实施日期：20011122 　颁布单位：对外贸易经济合作部、 国家工商行政管理总局

　　Article 1　These Provisions are formulated in accordance with the PRC, Company Law and laws and administrative regulations concerning foreign investment enterprises, in order to standardize acts involving merger or division of foreign investment enterprises and to protect the lawful rights and interests of the investors in and creditors of enterprises.

　　Article 2　These Provisions are applicable to mergers between, or division of, Sino-foreign equity joint ventures, Sino-foreign cooperative joint ventures with legal person status, wholly foreign-owned enterprises and companies limited by shares with foreign investment (Companies), which have been established in China pursuant to China's laws.

　　Mergers between Companies and wholly Chinese-owned enterprises shall be handled by reference to relevant laws and regulations and these Provisions.

　　Article 3　For the purposes of these Provisions, the term "merger" means the joining of two or more Companies to become one Company through the conclusion of an agreement pursuant to the relevant provisions of the Company Law.

　　The merger of Companies may take the form of merger by absorption or merger by new establishment.

　　The term "merger by absorption" means that a Company admits another Company into its own Company, whereby the admitting Company survives and the admitted Company or Companies is or are dissolved.

　　The term "merger by new establishment" means that two or more Companies merge to establish a new Company, whereby each party to the merger is dissolved.

　　Article 4　For the purposes of these Provisions, the term "division" means that a Company is divided into two or more Companies pursuant to the relevant provisions of the Company Law, by means of a resolution of the highest organ of authority of the Company.

　　The division of Companies may take the form of survived division or division by dissolution.

　　The term "survived division" means that a Company is split into two or more Companies, whereby the Company itself survives and one or more new Companies are established.

　　The term "division by dissolution" means that a Company is broken up into two or more Companies, whereby the existing Company is dissolved and two or more new Companies are established.

　　Article 5　The merger or division of Companies shall be conducted in accordance with China's laws and regulations and these Provisions, and conform to the principle of voluntariness, equality and fair competition. The merger or division of Companies may not harm the public interest or the lawful rights and interests of creditors.

　　The merger or division of Companies shall comply with the provisions of the Directing of Foreign Investment Tentative Provisions and the Foreign Investment Industrial Guidance Catalogue and may not lead to a situation where a foreign investor wholly owns, has a controlling interest in, or holds a dominant position in any Company active in an industry in which foreign investors are not permitted to wholly own, have a controlling interest in or hold a dominant position in Companies.

　　If a Company becomes active in another industry or a change occurs in its scope of business as a result of its merger or division, such change of industry or change in business scope shall conform to relevant laws and regulations and the State's industrial policy, and the relevant examination and approval procedures shall be carried out.

　　Article 6　The merger or division of Companies shall comply with the regulations promulgated by relevant authorities such as the customs, taxation and exchange control authorities. Following verification by the examination and approval authority, customs and the tax authority, etc., a Company

which survives or is newly established following a merger or division shall continue to enjoy all items of foreign investment enterprise treatment which were enjoyed by the original Company or Companies.

　　Article 7　The merger or division of a Company shall be subject to the approval of the original examination and approval authority of the Company or Companies and require registration of the establishment, change or de-registration of the relevant Companies with the registration authority.

　　If the original examination and approval authorities or registration authorities of the parties to a proposed Company merger number two or more, the examination and approval authority shall be the authority in charge of foreign economic relations and trade of the domicile of the post-merger Company, and the registration authority shall be the registration authority authorized by the State Administration for Industry and Commerce (SAIC).

　　If the sum of the total amounts of investment of the parties to a proposed Company merger exceeds the approval limit of any of the original examination and approval authorities of the parties or that of the examination and approval authority of the place where the post-merger Company is to be domiciled, the merger shall be subject to the examination and approval of an examination and approval authority with the appropriate approval limit.

　　If at least one of the parties to a proposed Company merger is a Company limited by shares, the merger shall be subject to the examination and approval of the Ministry of Foreign Trade and Economic Cooperation of the People's Republic of China (MOFTEC).

　　Article 8　If the merger or division of an existing Company will cause such Company to be dissolved or a new Company to be established elsewhere, the opinion of the examination and approval authority of the place where the Company to be dissolved or established is to be located must be obtained.

　　Article 9　Companies may not be merged or divided until the investors have made their capital contributions or provided their cooperation conditions in full in accordance with the Company's contract and articles of association, and the Company has actually commenced production or business. Where investors have made their capital contributions or provided their cooperation conditions in full in accordance with the Company's contract and articles of association, the Company may merge with a wholly Chinese-owned enterprise.

　　Article 10　The Company in existence after the merger of limited liability Companies shall be a limited liability Company. The Company in existence after the merger of Companies limited by shares shall be a Company limited by shares.

　　The Company in existence after the merger of a listed Company limited by shares and a limited liability Company shall be a Company limited by shares. The Company in existence after the merger of a non-listed Company limited by shares and a limited liability Company may be either a Company limited by shares or a limited liability Company.

　　Article 11　If two or more Companies limited by shares merge with each other or if the Company in existence after the merger of Companies is a limited liability Company, the registered capital of the post-merger Company shall be the sum of the registered capitals of the original Companies.

　　If the Company in existence after the merger of a limited liability Company and a Company limited by shares is a Company limited by shares, the registered capital of the post-merger Company shall be the sum of (i) the share amount derived by converting the net asset value of the original limited liability Company according to the net asset value per share of the Company limited by shares with which it is to merge and (ii) the total share amount of the original Company limited by shares.

　　Article 12　Where Companies merge in accordance with the first paragraph of Artic

le 11 hereof, the ratio of each investor's equity in the post-merger Company shall be specified in the post-merger Company's contract and articles of association as agreed between the investors or according to the result of the appraisal by an appraisal institution of the value of each investor's equity share in its original Company, in accordance with relevant State regulations. However, the ratio of the foreign investor's equity may not be less than 25% of the registered capital of the post-merger Company.

　　Article 13　The registered capital of post-division Companies shall be determined by the highest organ of authority of the pre-division Company pursuant to the laws and regulations concerning foreign investment enterprises and the relevant regulations of the registration authorities. However, the sum of the registered capital of each post-division Company shall be equal to the registered capital of the pre-division Company.

　　Article 14　The ratio of each investor's equity in the post-division Companies shall be specified by the investors in each post-division Company's contract and articles of association. However, the ratio of the foreign investor's equity may not be less than 25% of the registered capital of each post-division Company.

　　Article 15　Where Companies are merged by absorption, the date of establishment of the admitting Company shall be the date of establishment of the post-merger Company. Where Companies are merged by new establishment, the date on which the registration authority approves the registration of establishment and issues a business licence shall be the date of establishment of the post-merger Company.

　　When a new Company is established as a result of the division of an existing Company, the date on which the registration authority approves the registration of es

┨网页设计特效库┠ http://www。z┗co⊙l。com/网页特效/