中华人民共和国技术进出口管理条例 PRC, Administration of Technology Import and Export Regulations1

or that has not been made public to the extent, and within the term, of confidentiality stipulated in the contract.

　　After confidential technology has been made public during the term of confidentiality for reasons not attributable to the party who has the obligation of confidentiality, the confidentiality obligation undertaken by it shall be terminated.

　　Article 27　During the valid term of a technology import contract, the fruits of improvements to the technology shall belong to the party making the improvements.

　　Article 28　Upon the expiration of the term of a technology import contract, the licensor and licensee of the technology may discuss the continual use of the technology in accordance with the principles of fairness and reasonableness.

　　Article 29　A technology import contract may not contain any of the following restrictive clauses:

　　1. requiring the licensee to accept attached conditions that are not absolutely necessary for the import of the technology, including the purchase of technology, raw materials, products, equipment or services that are not necessary;

　　2. requiring the licensee to pay royalties or to undertake relevant obligations for the technology when the valid term of the patent has already expired or the patent has been declared to be invalid;

　　3. restricting the licensee from making improvements to the technology provided by the licensor or restricting the licensee from using improved technology;

　　4. restricting the licensee from acquiring from other sources technology similar to, or competitive with, the technology provided by the licensor;

　　5. unreasonably restricting the channels or sources from which the licensee buys raw materials, parts and components, products or equipment;

　　6. unreasonably restricting the quantity, type or sale price of the products manufactured by the licensee; or

　　7. unreasonably restricting the export channels of the products manufactured by the licensee with the imported technology.

　　PART THREE　ADMINISTRATION OF TECHNOLOGY EXPORT

　　Article 30　The State encourag

es the export of mature industrialized technology.

　　Article 31　The export of technology that falls into one of the circumstances prescribed in Articles 16 and 17 of the Foreign Trade Law shall be prohibited or restricted.

　　The State Council Foreign Trade Department shall, together with the relevant department(s) of the State Council, formulate, adjust and promulgate the list of technologies the export of which is prohibited or restricted.

　　Article 32　Technology the export of which is prohibited may not be exported.

　　Article 33　An export licensing system shall be adopted for technology the export of which is restricted, and no export without a licence shall be allowed.

　　Article 34　To export technology the export of which is restricted, an application for the export of the technology shall be filed with the State Council Foreign Trade Department.

　　Article 35　Upon receipt of an application for the export of technology, the State Council Foreign Trade Department shall, together with the State Council administrative department of science and technology, examine the application for the export of technology and shall decide whether to approve or disapprove the application within 30 working days from the receipt of the application.

　　If the technology the export of which is restricted needs to be examined on a confidential basis, it shall be conducted in accordance with the relevant provisions of the State.

　　Article 36　If the application for the export of technology is approved, the State Council Foreign Trade Department shall issue a proposal for technology export licence.

　　Only upon obtaining the proposal for technology export licence may the applicant carry out substantive negotiations and sign the technology export contract.

　　Article 37　Upon the signing of the technology export contract, the applicant shall submit the following documents to the State Council Foreign Trade Department to apply for the technology export licence:

　　1. the proposal for technology export licence;

　　2. a duplicate copy of the technology export contract;

　　3. the list of technology materials to be exported; and

　　4. documents evidencing the legal status of the contracting parties.

　　The State Council Foreign Trade Department shall examine the authenticity of the technology export contract and shall decide whether to approve or disapprove the export of technology within 15 working days from the receipt of the documents set out in the preceding paragraph.

　　Article 38　If the export of technology is permitted, the State Council Foreign Trade Department shall issue a technology export licence. The technology export contract shall become effective from the date on which the technology export licence is issued.

　　Article 39　A contract registration system shall be adopted for technology that may be freely exported.

　　For technology that may be freely exported, the contract shall become effective when the contract is formed according to law, and the registration of the contract shall not be a condition precedent for the effectiveness of the contract.

　　Article 40　When exporting technology that may be freely exported, registration procedure with the State Council Foreign Trade Department shall be carried out and the following documents shall be submitted:

　　1. the application for the registration of technology export contract;

　　2. a duplicate copy of the technology export contract; and

　　3. documents evidencing the legal status of the contracting parties.

　　Article 41　The State Council Foreign Trade Department shall register the technology export contract and issue the technology export contract registration certificate within three working days from the receipt of the documents set out in Article 40 hereof.

　　Article 42　The applicant shall complete the formalities

in respect of foreign exchange, banking, taxation, customs, etc. on the strength of the technology export licence or the technology export contract registration certificate.

　　Article 43　If the main content of a technology export contract that has been licensed or registered pursuant to the provisions of these Regulations is changed, the formalities in respect of the licence or registration shall be carried out again.

　　In the event of termination of a technology export contract that has been licensed or registered, record filing to the State Council Foreign Trade Department shall be made promptly.

　　Article 44　The State Council Foreign Trade Department and the relevant department(s) and their staff shall have the obligation to keep confidential the State secrets and trade secrets that they have become aware of in the performance of their duties in connection with the administration of technology export.

　　Article 45　The export of any technology that is under export control such as nuclear technology, technology relating to dual-use nuclear products, manufacturing technology for controlled chemical products and military technology shall be carried out in accordance with the relevant administrative rules and regulations.

　　PART FOUR　LEGAL LIABILITY

　　Article 46　In the case of the import or export of technology that is prohibited from being imported or exported or the import or export, without authorization, of technology that is restricted from being imported or exported, criminal liability shall be pursued according to the provisions on the crime of smuggling, the crime of illegal operations, the crime of disclosure of State secrets or other crimes under the criminal law. If not serious enough for the imposition of criminal penalties, depending on the circumstances, penalties shall be imposed pursuant to the relevant provisions of the customs law, or a warning shall be given by the State Council Foreign Trade Department, the illegal income shall be confiscated, a fine of not less than one time and not more than five times of the illegal income shall be imposed, and the State Council Foreign Trade Department may at the same time revoke the foreign trade operation permit.

　　Article 47　In the case of import or export of technology that is restricted from being imported or exported beyond the scope of licensing without authorization, criminal liability shall be pursued according to the provisions on the crime of illegal operations or other crimes under the criminal law. If not serious enough for the imposition of criminal penalties, depending on the circumstances, penalties shall be imposed pursuant to the relevant provisions of the customs law, or a warning shall be given by the State Council Foreign Trade Department, the illegal income shall be confiscated, a fine of not less than one time and not more than three times of the illegal income shall be imposed, and the State Council Foreign Trade Department may at the same time suspend or revoke the foreign trade operation permit.

　　Article 48　In the case of forging, altering, purchasing or selling technology import or export licences or technology import or export contract registration certificates, criminal liability shall be pursued according to the provisions on the crime of illegal operations or the crime of forging, altering, purchasing or selling State authority documents, certificates or chops under the criminal law. If not serious enough for the imposition of criminal penalties, depending on the circumstances, penalties shall be imposed pursuant to the relevant provisions of the customs law, and the

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