Laws of the People's Republic of China

Ministry of Commerce, State Administration of Foreign Exchange

Circular on Issues concerning the Joint Annual Inspection and Comprehensive Performance Evaluation of Overseas Investment in 2004

Shanghehan [2004] No.6

March 18, 2004

The Foreign Trade and Economic Commissions (Offices or Bureaus), Departments (Bureaus) of Commerce of all provinces, autonomous regions, municipalities directly under the central government, cities separately listed in the state budgetary planning, and branches/foreign exchange authorities of the State Administration of Foreign Exchange in provinces, autonomous regions, municipalities directly under the central government, and Shenzhen, Dalian, Qingdao, Xiamen, and Ningbo, the State Tobacco Monopoly Administration, and all companies directly under the central government:

In 2003, all local commerce authorities, local foreign exchange authorities and headquarters of companies directly reporting to the central government (hereinafter referred to as the annual inspectors), on the basis of close coordination and cooperation as well as efforts to overcome the impacts of the SARS epidemic, carried out the first joint annual inspection and comprehensive performance evaluation of overseas enterprises set up by Chinese corporations with their direct investment. Anticipated effect was achieved. Experience shows that the joint annual inspection mechanism has played an important role in reinforcing and perfecting the macro supervision and regulation of Chinese overseas investment, which therefore should be carried on. However, there still existed some deficiencies in the joint annual inspection in 2003. For example, a few provincial and municipal investors did not pay enough attention to the inspection and failed to fulfill their obligation of being supervised and regulated, which was manifested by the fact that some overseas enterprises did not take part in the inspection as they were not dually informed by their domestic investors.

As the joint annual inspection and comprehensive performance evaluation in 2004 will soon start, all annual inspectors are kindly requested to be fully and carefully prepared On the basis of the overall experience of 2003, the annual inspection and comprehensive performance evaluation in 2004 is expected to be more successful. In view of the problems occurred last time, we have made some adjustments to the procedure and content of the joint annual inspection in 2004. Issues relating to the joint annual inspection in 2004 are publicized as follows:

1.

Annual Inspectees

All overseas enterprises that were established by Chinese investors prior to January 1, 2002 with their direct investment, through acquisition or equity purchase (except for overseas companies being set up by aid fund provided by the Chinese government, in countries and regions without diplomatic ties with China, or in the financial sector) shall take part in the annual inspection and performance evaluation.

Those overseas enterprises being set up between Jan 1st, 2002 and Dec 31st, 2003, by aid fund to foreign countries or regions, or in countries and regions with no diplomatic relations with China are only required to submit Form 1, Form 2 and Form 4 provided in the Annual Inspection Report> , the financial statements for overseas enterprises, the foreign exchange registration paper for overseas investment or other documents certifying the approval of foreign exchange for overseas investment (Written explanations are required in case of failure to present the above documents).

The annual inspectors should give enough publicity to the annual inspection; inform all domestic investors to attend the joint annual inspection 2004 in time through releasing public notices at local media. They are also required to, based on information about the 2003 inspection and their own database, carefully check up the attendance of administered companies with focuses on those that have completed the overseas investment approval procedures and foreign exchange registration procedures but did not duly attend the 2003 inspection.

2.

Annual inspection Date: Apr 1st - Jun 15th, 2004

3.

Annual inspection documents:

(1)

Due to some changes in the procedures and contents of the joint annual inspection, adjustments are also made to the Annual Inspection Report accordingly. Investors may download the new from the website of the Ministry of Commerce (www.mofcom.gov.cn) or that of the State Administration of Foreign Exchange (www.safe.gov.cn), print it on A4 paper, fill it according to the actual information of the overseas enterprise, and submit it in 3 copies.

(2)

Those enterprises which had attended the 2003 ion and attained the Annual Inspection Certificate shall submit one copy of the Annual Inspection Report and the (3)

Those overseas enterprises which for the first time attend the joint annual inspection shall submit one copy of the Annual Inspection Report to the local authorities in charge of commerce affairs or headquarters of enterprises directly under the central government, and another copies together with the financial statements of the overseas enterprises and the foreign exchange registration documents for overseas investment to the local foreign exchange authorities. Should domestic investors enable to provide the foreign exchange registration documents for overseas investment, they may present such other documents certifying the approval of foreign exchange for overseas investment as the written reply from the foreign exchange authority concerning the sources of foreign exchange after their examination and approval letter concerning the purchase and remittance of foreign exchange. All the above documents shall be submitted as annexes. Written explanations are needed in case of failure to provide any documents.

4.

Annual inspection procedures for the local foreign exchange authorities.

Local foreign exchange authorities shall, within 15 days after receiving complete annual inspection documents from domestic investors, carry out the annual inspection following procedures listed below:

(1)

Auditing Form 2 and Form 4 of the Annual Inspection Report. With regard to Form 2, focus of the examination should be put on the authenticity and validity of the foreign exchange approval for overseas investment based on their working files. The examination of Form 4 shall be focused mainly on whether the figures filled in by the investors accord with the overseas enterprises' financial statements.

(2)

Grading the inspectees according to the examination result of the inspection documents and the grading standard, filling the grades in the Column of " Comment of the Foreign Exchange Authority" in Form 5 of the Annual Inspection Report, and stamping the Seal of Approval for Capital Account Foreign Exchange Business (2)" in the "Annual Inspector" Column. All branches of the foreign exchange administration may authorize the central branches to complete the preliminary audit and grading of the annual inspection documents presented by enterprises under their jurisdiction according to the actual situation of their localities. Branches and central branches of the foreign exchange administration re-check the result of the preliminary audit and stamp the Seal of Approval for Capital Account Foreign Exchange Business (2)" in the "Annual Inspector" Column.

(3)

One copy of the Annual Inspection Report will be handed back to the investor, who shall transmit it to the local foreign exchange administration or the headquarter of the enterprise directly under the central government. Other documents shall be kept on file.

5.

Annual inspection procedures for the local commerce authorities or the headquarters of enterprises directly under the central government.

After receiving the Annual Inspection Report from the foreign exchange authority, the local commerce authorities or the headquarters of enterprises directly under the central government carry out the annual inspection following the procedures listed below:

(1)

Evaluate the performance of the overseas enterprises by using the comprehensive overseas investment performance evaluation software. Multiply the score by 50% to get the final result for filling in the Column of "Overseas Investment Performance" in Form 5. The year for comprehensive performance evaluation shall be filled in as 2004.

(2)

Undertake the evaluative work of overseas enterprises originally done by the Chinese diplomatic missions abroad in charge of economic and commercial affairs. The contents and standard will be simplified to: 1 Check, whether the overseas enterprises are established and running well (the full mark is 6); 2. Check whether there exist serious problems in the operation of the overseas enterprises (the full mark is 4). The local commerce authorities or the headquarters of enterprises directly under the central government shall carry out investigations seriously and make objective evaluations. The overseas Chinese diplomatic missions in charge of economic and commercial affairs may be consulted when necessary.

(3)

Fill the above scores (cumulative total of 10) and the score (cumulative total of 20) for the performance of the investor and its overseas enterprise in complying with China's provisions concerning overseas investment in the Column of "Comment of the Local Commerce Authority or Headquarter of Enterprise Directly under the Central Government" in Form 5 of the Annual Inspection Report. The highest score for the Column shall be changed to 30 accordingly.

(4)

Fix the annual inspection grade of the overseas enterprises according to their total score and record the grade on the Annual Inspection Certificate with the special Annual Inspection Seal stamped on, then give the Annual Inspection Certificate to the investors.

(5)

After the annual inspection work is finished, email the data files composed by the overseas investment comprehensive performance evaluation system to the Ministry of Commerce at pengnanfeng@mofcom.gov.cn ; and then email the annual inspection result (the grade of overseas enterprises) to the Ministry of Commerce at lijian@mofcom.gov.cn.

6.

Sum-up of the annual inspection work

On the basis of the inspection result, the annual inspectors shall carefully summarize relevant information of overseas investment and draft the annual inspection work report. The local commerce authorities or headquarters of enterprises directly under the central government shall submit their work report to the Ministry of Commerce before Jun 30th, 2004. The local foreign exchange authorities shall submit their work report and the Basic Information Sheet of the Joint Annual Inspection of Overseas Investment (which may be downloaded from the website of SAFE: www.safe.gov.cn) to State Administration of Foreign Exchange before Jun 30th, 2004.

7.

The Cross-check and sharing of annual inspection data

The local commerce authority and foreign exchange authority shall provide to each other and cross check the annual inspection data summary.

8.

Management of Archives

Relevant documents in the 2003 and 2004 annual inspections shall be kept in the domestic investors' corresponding files under the category of overseas enterprise or that of foreign exchange for overseas investment, and managed by the local commerce authorities and foreign exchange authorities. All written documents will be kept for as long as 3 years.

9.

Punishments to Enterprises not Attending the Inspection

After the annual inspection is completed, the local commerce authorities and foreign exchange authorities shall focus on penalizing, according to relevant provisions, those investors within their jurisdiction that are involved in unlawful overseas investment or failure to fulfill their obligation of being supervised and regulated. Domestic investors that have gone through foreign exchange registration procedures for overseas investment, or approval procedures for the establishment of overseas enterprises, but did not take part in the 2004 annual inspection, shall be dealt with differently depending on their specific circumstances. Refer to Annex 1 for the detailed principles for dealing with these enterprises.

10.

Make-up Examination and Approval Procedures

Those domestic investors that have invested abroad without duly going through domestic approval procedures can apply for make-up examination and approval to the local commerce authority and foreign exchange authority after participating in the 2004 joint annual inspection and comprehensive performance evaluation. The Annual Inspection Certificate for the concerned year shall be attached in the application. Refer to Annex 2 for the specific make-up examination and approval procedures for the establishment of overseas enterprises.

11.

For questions concerning the 2004 joint annual inspection, please contact (the Department of Foreign Economic Cooperation of) the Ministry of Commerce, or (the Department of Capital of) the State Administration of Foreign Exchange. Contact person: (Ministry of Commerce) Lijian and Pengnanfeng Telephone : 010-65197482 Fax : 010-65197481 ; (State Administration of Foreign Exchange) Ma Shaobo and Feng Yanqiu Telephone : 010-68402252 Faxes: 010-68402253.

The Circular is hereby publicized.

Annexes:

1.

Principles for Dealing with Enterprises not Attending the Annual Inspection

2.

Make-up Procedures of Domestic Authorities for the Establishment of Overseas Enterprises

3.

Basic Information Sheet of the Joint Annual Inspection of Overseas Investment (omitted)

4.

Annual Inspection Report (omitted)

Annex 1:Principles for Dealing with Enterprises not Attending the Annual Inspection

1.

For those overseas enterprises which have been liquidated or withdrawn their overseas staffs and stopped any substantive business activities though unliquidated, the local commerce administration shall nullify their approval certificates, while the local foreign exchange authority shall cancel their foreign exchange registration records for overseas investment and urge them to transmit their income after liquidation or remaining assets back to China. When going through procedures to cancel foreign exchange registration records, domestic investors shall deliver the following documents: a written application; liquidation report should the concerned overseas enterprises be liquidated; financial statements should the overseas enterprises have withdrawn their overseas staffs and stopped their substantive business activities but have not been liquidated.

2.

For those overseas enterprises which still have not started any business activities after completing the approval procedures for the establishment of overseas enterprises for 2 years, no local commerce administrations shall handle formalities to extend the validity of their approval certificates. The local foreign exchange authorities shall cancel their foreign exchange registration records for overseas investment.

3.

For those overseas enterprises which have not attended the 2004 annual inspection unjustifiably, the local commerce administrations and foreign exchange authorities shall keep a close watch on them, list these overseas enterprises and their corresponding domestic investors, and copy the list to the Ministry of Commerce and State Administration of Foreign Exchange. The competent authorities in charge of commercial affairs and foreign exchange shall grant no overseas investment related preferential policies to them within 3 years starting from the year when the enterprises should have attended the inspection. Before their misconducts are settled, approval will not be granted to any of their new overseas investment.

Annex 2:Make-up Procedures of Domestic Authorities for the Establishment of Overseas Enterprises

1.

For those overseas enterprises which have completed the procedures for the registration of foreign exchange for overseas investment, but which have not gone through approval procedures for the establishment of overseas enterprises, the commerce authorities shall give them an opportunity to go through the make-up procedures for the approval of the establishment of overseas enterprises according to relevant regulations, and copy the approval documents to the competent authority in charge of foreign exchange.

2.

For those overseas enterprises which have got the approval for the establishment of overseas enterprises but have not gone through the procedures for the registration of foreign exchange for overseas investment, the foreign exchange authorities shall give them an opportunity to go through the make-up registration procedures in line with the provision of the Circular of the State Administration of Foreign Exchange on Issues concerning Deepening the Reform on the Administration of foreign exchange for Overseas Investment (Huifa [2003] No. 120).

3.

Those overseas enterprises which have gone through neither the approval procedures for the establishment of overseas enterprises nor the procedures for the registration of foreign exchange for overseas investment, shall apply to the commerce authorities for their approval of the establishment of overseas enterprises first, and then to the foreign exchange authorities for going through the procedures for the registration of foreign exchange for overseas investment. In case more fund needs to be remitted abroad to the overseas enterprise to expand its capital base, before applying to the commerce authority for its approval of establishment of the overseas enterprise, the domestic investor shall first go to the foreign exchange authority for its examination of the sources of foreign exchange for overseas investment.