China Laws and Regulations Update in December 2015

1 The State Council Issues Policy, Emphasizing Combating Fake Goods Sales and Copyright Infringements on Internet                 

On 7th November, 2015, the General Office of the State Council issued the Opinions on Intensifying the Regulation of intellectual property Infringement and Counterfeiting in the Internet Domain (the “Opinions”) with the aim to strengthen regulation of infringement and counterfeiting behaviors in the internet domain and promote sound growth of the e-commerce industry. The Opinions pointed out main activities the government authorities will fight against, including online sale of counterfeited and inferior products and internet copyright infringement.

(For more details, please consult with your lawyer.)

Sourced from the official website of the Government of the P.R.C.:  http://www.gov.cn/zhengce/content/2015-11/07/content_10276.htm

2 China Securities Regulatory Commission Issue Drafts of New Editions of Supervision Regulations for Public Comment     

On 6th November, 2015, China Securities Regulatory Commission (“CSRC”) issued notice requesting public comment on the Administrative Measures for Initial Public Offerings and Listing (Consultation Read More...

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China Laws and Regulations Update in November 2015

1 The Central Government Pushes to Introduce Negative List System for Market Access across the Country

On 19th October 2015, the State Council issued the Opinions on Implementing Negative List System for Market Access (“Opinions”), pushing to introduce the system nationwide. As set forth by the Opinions, pilot negative list system for market access will be launched in certain selected districts from 1st December 2015 to 31st December 2017, and a nationally uniform negative list system for market access and corresponding policies are expected to be implemented as of 2018, under which except for those listed on the negative list, all kinds of entities have equitable access to markets and businesses under applicable laws.

(For more details, please consult with your lawyer.)

Sourced from the official website of the Government of the P.R.C.:

   http://www.gov.cn/zhengce/content/2015-10/19/content_10247.htm

2 The State Food and Drug Administration Issues New Regulations on Food Industry Licensing 

On 30th September 2015, the Read More...

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China Laws and Regulations Update in September 2015

  1. The State Council Issues Policies on the Promotion of Imports and Exports On 22nd July 2015, the General Office of the State Council of the P.R.C. issued the Policies on the Promotion of Imports and Exports.

(For more details, please refer to your lawyer.)

Sourced from the official website of the National Government of the P.R.C.:   http://www.gov.cn/zhengce/content/2015-07/24/content_10031.htm

  1. The Supreme People’s Court Issues New Judicial Interpretation, Conditionally Recognizing the Validity of Private Lending Between Enterprises

On 6th August 2015, the Supreme People’s Court issued the judicial interpretation on Private Lending, which will take into effect on 1st September 2015.

The new judicial interpretation specifies the conditions of the effectiveness of private lending agreements and notably validates private lending between private enterprises which meets the requirements thereof.

(For more details, please refer to your lawyer.)

Sourced from the official website of the Supreme People’s Court: http://www.court.gov.cn/fabu-xiangqing-15146.html

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China Laws and Regulations Update in August 2015

  1. The People’s Bank of China and the Other Nine Authorities Jointly Issue Policies on Boosting the Internet Finance Industry            

On 18th July 2015, the People’s Bank of China, the Ministry of Industry and Information Technology, the Ministry of Public Security, the Ministry of Finance, the State Administration for Industry and Commerce, the Legislative Affairs Office, the China Banking Regulatory Commission, the China Securities Regulatory Commission, the China Insurance Regulatory Commission and the State Internet Information Office jointly issued the Policies on Boosting the Internet Finance Industry (“Policies”).

Such Policies provide a range of instructions on supporting and encouraging internet finance activities and specify duties of administration and control over major internet finance activities such as payment over the internet, network lending, equity crowd-funding, sale of funds via the internet, internet insurance, internet trust, doing and closing transactions through the internet.

Sourced from the official website of the National Government of the P.R.C.: http://www.gov.cn/xinwen/2015-07/18/content_2899360.htm

  1. The Supreme People’s Court Issues the Decision on the Dispute of Arbitration Jurisdiction between China International Economic and Read More...

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China Laws and Regulations Update in April 2015

  1. The National Development and Reform Commission and the Ministry of Commerce Publish the Catalogue of Industries for Foreign Investment (2015 Revised Edition)                            

On the 10th March 2015, the National Development and Reform Commission and the Ministry of Commerce of the PRC published the Catalogue of Industries for Guiding Foreign Investment (2015 Revised Edition) (“Catalogue”) under the approval by the State Council of the PRC. The Catalogue will become effective on the 10th of April 2015.

The Catalogue totally contains 432 items, from which 48 items of the 471 items totally contained in the 2011 Edition, have been eliminated. Among those eliminated items, 41 ones are under the restricted class, 5 under the priority class and 2 under the prohibited class. In addition, the number of items “limited to joint investment and cooperation” in the Catalogue is 15, decreased from 43 in the 2011 Edition and the number of items applicable only to “Chinese controlled businesses” in the Catalogue is 35, decreased from 44 in the 2011 Edition.

Items under the priority class newly added to the Catalogue mainly include modern agriculture, high tech, advanced manufacturing, energy conservation, renewable energy and modern service industries.

Sourced from the official website of the National Development and Reform Commission of the PRC:   Read More...

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China Laws and Regulations Update in February 2015

  1. The New Foreign Investment Law(Draft) Published for Public Comments

On 19th of January 2015, the Ministry of Commerce of PRC published the Foreign Investment Law of PRC (Draft for Comments) (referred to as ‘draft FIL’ below). Opportunities to offer comments on the draft FIL will remain open to the public until 17th of February 2015.

Significantly, the draft FIL transforms the current foreign investment administration system by introducing the administration model combining pre-establishment national treatment policies and the Negative List and stipulating that foreigners intending to invest in one of the areas as specified in the Negative List shall apply for and obtain a foreign investment entry permit beforehand. Also, foreign investors throughout PRC shall perform the reporting obligation regardless of the Negative List. Under this new administrative system, foreign investment in most areas can be admitted to PRC without prior approval by relevant departments. In addition, the draft FIL includes provisions on China’s national security review system, the foreign investment promotion and protection system, supervision and inspection of investment and operational actions taken by foreign investors and foreign invested enterprises, strengthened in-process and after-the-fact administration.

Sourced from the official website of the Ministry of Commerce of PRC:

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Will China New Foreign Investment Law Wipe Out VIE Structure?

(By You Yunting) Abstract: The Foreign Investment Law (Draft for Comments) has shifted the standard of a company based upon the actual controller, instead of the shareholder of the company, and regulated that the domestic company must not engage in any industries where operation by foreign investors is prohibited. In case the Draft becomes law, it will cut off the survival basis of VIE structure, so that the VIE company controlled by foreign investors cannot be operated, that the overseas listed company controlled through the VIE structure by Chinese will lose its survival basis of oversea listing, and that the startup companies of VIE structure controlled by Chinese will be forced to abandon the VIE structure.

China Ministry of Commence issued the Foreign Investment Law (Drafts for Comments) (hereinafter the “Draft”) and began its revolution on the approval and management of foreign investment companies. However, the Draft regulated that a domestic company controlled by foreign investors must not engage in any industries where operation by foreign investors is prohibited, which will probably have some serious influence on industries such as internet companies that have already used variable interest entities (hereinafter the “VIE”) structure in gray zone, and might even wipe out the existence space for VIE structure. I am wondering Read More...

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China Laws and Regulations Update in December 2014

  1. The State Council Releases the Catalogue of Investment Projects Subject to Government Verification and Approval (2014 Edition)

On 31st of October 2014, the State Council released the Notice of the State Council on Promulgating the Catalogue of Investment Projects Subject to Government Verification and Approval (2014 Edition), which became effective on the same date.

Enterprises that intend to invest in and construct the fixed-asset investment projects listed in the Catalogue shall apply to relevant project verification and approval authorities for verification and approval in accordance with pertinent provisions. Enterprises that intend to invest in and construct projects other than those listed in the Catalogue shall be subject to record-filing administration. Projects invested and constructed by public institutions, social organizations, etc. shall be governed by the Catalogue.

Sourced from http://www.gov.cn/zhengce/content/2014-11/18/content_9219.htm

 

  1. The Supreme People’s Court Promulgates Provisions on the Jurisdictions over Cases by Intellectual Property Courts in Beijing, Shanghai and Guangzhou      

On 27th of October 2014, the Supreme Read More...

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China Laws and Regulations Update in November 2014

  1. The State Intellectual Property Bureau of the P.R.China Publishes the Opinions on Investment Administration Regulations Concerning Intellectual Property to Foster Growth of Small and Micro Enterprises.      

On 11th of October 2014, the State Intellectual Property Bureau of P.R.China published the Opinions on Investment Administration Regulations Concerning Intellectual Property to Foster Growth of Small and Micro Enterprises. The Opinions involve fifteen specific measures to help small and micro enterprises obtain rights to their innovative achievements, improve patent sponsorship policies for small and micro enterprises and support small and micro enterprises by properly tackling intellectual property related issues, in order to foster innovation and growth of small and micro enterprises, perfect intellectual property services for small and micro enterprises, improve the ability of small and micro enterprises to use intellectual property and optimize the intellectual property development environment for small and micro enterprises.

Sourced from the official website of the State Intellectual Property Office of the PRC:

http://www.sipo.gov.cn/tz/gz/201410/t20141011_1020001.html

  1. Twenty-one Provinces and Cities across P.R.China Witness Publication of the 2014 Salary Rise Read More...

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China Laws and Regulations Update in Octorber 2014

  1. Intellectual Property Tribunals to Be Established in Beijing, Shanghai and Guangzhou

On 1 September 2014, the Standing Committee of the National People’s Congress approved the Decision to Establish Intellectual Property Tribunals in Beijing, Shanghai and Guangzhou. The Decision stipulates that the Supreme People’s Court should be entitled to set up intellectual property tribunals in Beijing, Shanghai and Guangzhou by taking into account types and numbers of intellectual property cases. Such tribunals govern first-instance civil and administrative intellectual property litigation cases relating to such technically demanding issues as patents, new species of plants, layout designs of integrated circuits, confidential know-hows, etc. and have the right to decide on any appeal against first-instance judgment or verdict by a local lower-level people’s court on civil and administrative intellectual property cases relating to copyrights, trademarks, etc.

Sourced from the NPC News Website:

http://npc.people.com.cn/n/2014/0901/c14576-25574846.html

  1. The Shanghai Municipal Government Publishes the Priority Work Arrangements in 2014 through 2015 for Establishment of the International Trade Center

On 27 August 2014, the Shanghai Read More...

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China Laws and Regulations Update in September 2014

1.The PRC State Administration of Foreign Exchange releases the Notice on the Pilot Reform of the Administrative Approach Regarding the Settlement of the Foreign Exchange Capitals of Foreign-Invested Enterprises in Certain Areas

On 4 August 2014, the PRC State Administration of Foreign Exchange released the Notice on the Pilot Reform of the Administrative Approach Regarding the Settlement of the Foreign Exchange Capitals of Foreign-Invested Enterprises in Certain Areas to launch the pilot reform of the settlement of the foreign exchange capitals of foreign invested enterprises on a discretionary basis in 16 areas throughout the P.R.China, including the Suzhou Industrial Park, on 4 August 2014, after such reform was first launched in the Shanghai Free Trade Zone.

In addition, according to the Notice, the uses of the foreign exchange capitals of foreign invested enterprises and the RMB capitals acquired through the settlement of such foreign exchange capitals are restricted, and the payment management, the management of settlement and use of the capitals in foreign accounts for direct investment and the post-supervision of the PRC State Administration of Foreign Exchange are standardized.

Website of the State Administration of Foreign Exchange:

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Analysis on New Provision of Agent’s Trademark Rush-Registration in China Trademark Law

(By Luo Yanjie) According to the latest news report, more than 14 millions of trademark applications in China have already been filed by June 2014. It indicates that Chinese economy develops very fast and also that brands across China and even all over the world, big or small, are attempting to the protection of trademark registration in China. However, there is no doubt that some trademarks were registered with bad faith at the beginning, i.e., pirate trademark rush-registrations. Among those trademark rush-registrations, some of rush-registrars are connected to the original holders, thus leading to prevention from agent’s trademark rush-registration as regulated in Article 15 of the Trademark Law (2001 version). Furthermore, in the newly applicable Trademark Law from May 2014, legislature departments made implementation on the Article 15. In today’s post, we will discuss the modification and its application.

1.   Modification of Article 15 in the 2013 Trademark Law

The 2001 version of Trademark Law stipulates that, in the event that an agent or representative seeks Read More...

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China Laws and Regulations Update in August 2014

  1. The Shanghai Municipal People’s Government Releases the 2014 Revised Version of ‘Negative List’ Applicable in the Shanghai Free Trade Zone

On 1 July 2014, the Shanghai Municipal People’s Government released the 2014 Revised Version of ‘Negative List’ applicable in the Shanghai Free Trade Zone, containing 139 special administrative measurements, while the previous version contained 190 ones, representing a change of 26.8% contents of the Negative List.

The Revised Version of ‘Negative List’ eliminated fourteen (14) material clauses to expand business scopes, fourteen (14) material clauses to lift dual restrictions on both domestic and foreign investments and twenty three (23) clauses to readjust categories. The eliminated clauses, including those restricting foreign investment in mail orders and online sales of ordinary commodities, allowing wholly owned foreign businesses to deal in railroad transport, etc., relate to manufacturing, real estate, infrastructure, commercial trade, shipping, social service sectors, etc.

Website of the Municipal Government of Shanghai:

http://www.shanghai.gov.cn/shanghai/node2314/node2319/node12344/u26ai39501.html

  1. The Ministry of Commerce Publishes the Notice on Improving the Read More...

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China Laws and Regulations Update in July 2014

  1. The Legislative Affairs Office of the State Council Releases the newly revised Copyright Law of the People’s Republic of China (under Review) and Solicits Public Opinions for It

On 6 June 2014, the Legislative Affairs Office of the State Council released the newly revised Copyright Law of the People’s Republic of China (under Review) and solicited public opinions for it. The deadline for opinion solicitation will be 5 July 2014.

What is most significantly revised according to the draft copyright law under review includes provisions on objects, contents, ownership and the validity period of rights within the scope of copyright. Also, it has stipulated more penalties that will be imposed on those who infringe others’ copyrights and has set forth means of enforcement by administrative authorities concerned, who have powers of seizure and confiscation, which was first stipulated by laws.

(Website of the Legislative Affairs Office of the State Council:

http://www.chinalaw.gov.cn/article/cazjgg/201406/20140600396188.shtml)

  1. The State Administration for Industry and Commerce of the People’s Republic of China Solicits Public Opinions for Regulations (Used for Opinion Solicitation) on Prohibiting Read More...

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