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Regulations
of Shenzhen Special
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Economic
Zone on Business
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(Adopted at the Thirty-third Meeting of Standing Committee of
the Second Shenzhen Municipal People' s Congress on
June 30,
1999.) |
Chapter
I General Provisions
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Article
1 In
order to affirm qualification of merchants and standardize
commercial acts, protect lawful
rights and interests of
merchants, maintain the order of socialist market economy and
promote economic
development, these regulations are hereby
formulated according to basic principles of laws and
administrative regulations and in light of the specific
conditions of the Special Zone.
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Article
2
These regulations shall be applicable to the merchants
registered and established in Shenzhen Special
Economic Zone
(hereinafter referred to as "Special Zone" ) and the
commercial acts carried out
within the jurisdiction of the
commercial registration organizations in the Special Zone.
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Article
3
The lawful rights and interests of merchants shall be protected
by laws, rules and these regulations.
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Where
the merchants conduct commercial acts in the Special Zone, they
shall abide by the principles
of justice and good faith and
shall not infringe upon the lawful rights and interests of other
merchants and consumers or engage in any activities detrimental
to the social and public interests.
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Article
4
Merchant article and partnership agreement shall be applicable
to the matters that are not specifically
stipulated by these
regulations and the commercial law of the state, whereas
the civil law shall be applicable in case relevant provisions
absent in the merchant article and
partnership agreement.
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Chapter
II Merchants
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Article
5
Merchants refer to natural persons, legal persons and other
economic organizations, which are registered
according to laws
to undertake commercial acts as their regular vocation in their
own names for
the purpose of making profits.
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In
these regulations, merchants refer to:
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(1)
Limited liability merchants, including limited liability
companies of all kinds and their subsidiaries,
enterprises with
legal personality other than corporations and their
subsidiaries; and
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(2)
Unlimited liability merchants, including enterprise without
legal personality and their subsidiaries,
partnership
organizations and their subsidiaries, individual businesses and
other economic organizations.
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In
these regulations, commercial acts refer to the acts such as
productions and operations, wholesale
and retail of commodities,
science and technology development and provision of consulting
service
and other services, which are carried out by the
merchants.
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Article
6 Any
organizations of state powers, administrative organizations,
judicial organizations, procuratorial
organizations, military
organizations or primary and high schools invested by the
government shall
be prohibited to establish merchants and
conduct commercial acts. But the provisions of laws and
regulations shall be applicable in case they stipulate
otherwise.
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Any
staffs in post of the above mentioned organizations or
managerial staffs of state-owned enterprises
shall be prohibited
to establish merchants and conduct commercial acts.
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Article
7
Any minors under the age of 16 shall not establish merchants and
conduct any commercial acts.
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Any
minors or other persons without full civil capacity shall not
become partners of the merchants.
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Chapter
III Registration of Merchants
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Article
8
The establishment, alteration and termination of merchants shall
be applied to the Registration
Organization according to laws,
administrative regulations and these regulations.
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Article
9 The
Shenzhen Municipal industrial and commercial administration
department, which is the agency
for registration of merchants
(hereinafter referred to as "Registration Organization" ),
shall
handle commercial registration in accordance with laws,
administrative regulations and these regulations.
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Article
10
Commercial registrations include registration of limited
liability merchants and unlimited liability
merchants.
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The
registration of limited liability merchants shall be handled by
the Registration Organization
in accordance with relevant laws
and administrative regulations.
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The
registration of unlimited liability merchants shall be handled
by the agencies authorized by
the Registration Organization
(i.e. detached offices) according to these regulations.
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Article
11
The registration items of unlimited liability merchants shall
include: names, places (or addresses),
persons in charge, types
of enterprises, business scope, operating period, and the
subscribers'
or partners' names, addresses and identity card
numbers.
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Article
12
To establish unlimited liability merchants, the applicants or
their consignees shall submit to
the Registration Organization
the following documents:
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(1)
Application forms for commercial registration, which are printed
by the Registration Organization
and signed by subscribers or
partners;
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(2)
Documents of approval of names for merchants;
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(3)
Certification of domiciles or addresses;
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(4)
Identification papers specifying the items such as names of
persons in charge, subscribers,
or partners, etc;
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(5)
Partnership agreements of partnership organizations; and
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(6)
Other documents required by the Registration Organization.
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Where
the registrations of establishment are required to be applied to
relevant department for approval
according to laws and
administrative regulations, the applicants or their consignees
shall submit
the document of ratification while applying for the
registrations.
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Article
13
Where an applicant submits false certification documents to the
Registration Organization for establishment
of unlimited
merchant, he shall be ordered to make corrections and be imposed
a fine of RMB 5,000
by the Registration Organization; in case
the circumstances are serious, he shall be revoked of his
commercial registration.
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Anyone
who has applied for false registration or provided false
certification documents shall bear
corresponding legal
liability.
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Article
14 The
Registration Organization shall make decisions on approval or
disapproval of registration within
20 days upon the date
receiving the documents of application for establishment of
unlimited liability
merchants. Those who are qualified shall be
registered and granted business licenses uniformly printed by
the Registration Organization; those who are unqualified shall
not be registered and shall be given a
written reply with proper
reason.
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Article
15
The date an unlimited liability merchant granted a business
license shall be the date of its establishment.
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After
obtaining a business license, an unlimited liability merchant
may have its seals engraved,
open accountants with banks and
apply for tax payment registration with such license presented.
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Before
obtaining a business license, any unlimited limited liability
merchants shall not conduct
any commercial acts in the name
applied for registration.
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Anyone
shall be imposed a fine of not less than RMB 3,000 but not more
than RMB 5,000 by the Registration
Organization in case they
violate the third paragraph of this article.
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Article
16
Where unlimited liability merchants change their registered
items, they shall apply to the Registration
Organization for
registration of such changes within 15 days upon the date
changing those items.
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In
violation of the aforesaid paragraph of this article, anyone
shall be ordered to handle the aforesaid
registration within the
specified time limit by the Registration Organization; in case
it fails
to handle such registration within the time limit, it
shall be imposed a fine of not less than RMB 1,000 but not
more
than RMB 3,000.
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Article
17
Any unlimited liability merchant shall apply to the Registration
Organization for registration
of closure of business in case it
plans to close its business for six months or above.
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In
violation of the aforesaid paragraph of this article, anyone
shall be temporary suspended of
its business license or revoked
of its business license in accordance with relevant laws and
administrative
regulations by the Registration Organization.
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Article
18
To terminate business, any unlimited liability merchant shall
apply to the Registration Organization
for cancellation of
registration with the following documents presented:
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(1)
Application forms for cancellation of registration, which are
printed by the Registration Organization
and signed by
subscribers or partners;
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(2)
Business license;
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(3)
Debt and credit liquidation reports signed by subscribers or
partners;
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(4)
Evidence of payment of duty; and
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(5)
Other documents as required by the Registration Organization.
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Anyone
shall not apply to write off registration of unlimited liability
merchant with the purpose
of evading the liability for the
payment of debts he should actually bear.
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Anyone
who has written off its registration to conceal debts
intentionally shall be revoked of registration
of cancellation
and be imposed a fine of not less than RMB 3,000 but not more
than RMB 5,000 by
the Registration Organization once checked and
verified.
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Article
19
Any unlimited liability merchant shall apply to the Registration
Organization for annual inspection
and present relevant
documents as required by the organization during 1st January to
30th April
every year.
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Anyone
in violation of the aforesaid paragraph of this article shall be
imposed a fine of not less
than RMB 500 but not more than RMB
3,000, and be ordered to receive annual inspection within the
specified time limit by the Registration Organization; in case
the offender fails to accept annual inspection
within the time
limit specified, it shall be revoked of its business license
according to relevant
laws and administrative regulations.
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Article
20
Any limited liability merchant and partnership organization
shall issue a public notice on the
registration items approved
within 30 days from the date its application for the
registration of
establishment, alteration and cancellation
approved. The items in the public notice shall be kept in
conformity with those registered.
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Anyone
shall be ordered to make corrections within the time limit
specified by the Registration
Organization in case it violates
the aforesaid paragraph of this article; in case it fails to
make
any corrections within the time limit specified, it shall
be imposed a fine of RMB 5,000.
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The
registration items that have not been published cannot be
invoked to resist any third party.
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Any
published items that are not in conformity with the registered
items cannot be invoked to resist
any third party; in case any
mistake exists in publication due to fault and causes damages to
the
bona fide third party, the offender shall bear corresponding
civil liability for it.
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Article
21
Anyone may apply to the Registration Organization for consulting
or duplicating documents relevant
to registration of merchants
other than those involving commercial secrets of the merchant.
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Article
22
The Registration Organizations shall exchange commercial
registration information with competent
authorities in charge of
taxation. |
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Article
23
Any individual business may be revoked of his business license
by the Registration Organization
in case he seriously violates
the provisions relevant to registration of unlimited liability
merchants
in these regulations.
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Article
24 Any
applicant who thinks his application met the requirement of
establishment of merchant
but has been refused to be registered
by the Registration Organization, or any merchant who objects to
the decision made by the Registration Organization on the
administrative sanction related to commercial
registration, may,
within 15 days upon receiving such decision, apply for
reconsideration to Shenzhen
Municipal People' s Government, or,
within 3 months, directly file an administrative lawsuit before
the people' s court. |
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Article
25
In case those applicants who fail to meet the requirements for
commercial registration have been
approved to be registered by
the Registration Organization, the persons in charge of such
registration
or persons directly liable for such registration
shall be subject to administrative sanctions imposed by the
Registration Organization; the offender shall be prosecuted for
criminal liability in case he commits
a crime.
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Chapter
IV Names of Merchants and Transfer of Business
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Article
26
Merchants shall have their own names.
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Names
of merchants shall be composed of the following parts in such
proper order: names of administrative
areas, shop names, trade
or business features and form of organization. Laws and
administrative
regulations shall be applicable in case they
stipulate otherwise.
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Article
27
Merchants may use their own names as shop names, but only
limited to the merchants whose investors
are natural persons.
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Article
28
Shop names of merchants shall be composed of more than two
Chinese characters.
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Words
or content of shop names that are applied to be registered shall
not:
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(1)
damage the interests of the state, society and public;
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(2)
contain feudal and superstitious elements;
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(3)
be contrary to social ethics and aequum et bonum;
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(4)
contain harmful political meaning or racial or ethnic
discrimination;
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(5)
use the same name as that of an administrative area at or above
the county level;
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(6)
be homonymous compared with a registered shop name of any other
person, which may be misunderstood
as the other's shop name;
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(7)
be composed of Arabic numerals or letters of foreign languages;
or
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(8)
be the ones prohibited to be used according to laws and
administrative regulations.
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Article
29
The preliminary examination system shall be applied to
registration of names of merchants. In case
the names applied
for registration passed the examination and approved by the
Registration Organization,
the organization shall provide
documents regarding use of such names for the applicants. The
names
approved shall be revoked by the Registration Organization
in case they have not been used by the applicants within
6
months from the date such names have been checked and approved.
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Article
30
Anyone shall not use a shop name that has been registered by any
other person within the Special
Zone as his own within the
Special Zone, unless otherwise they have investment relationship
or
they have agreed in a franchise agreement.
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Article
31
The shop name may be separately transferred in case it is
different from trademark or composed
no trademark of the
transferor, but it can be transfer to only one transferee.
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The
shop name or name that has been transferred separately shall not
be further used within the
same jurisdictional areas of the
Registration Organization by the transferor.
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The
transfer of shop names or name without registration cannot be
invoked to any third party, the
transferor and transferee shall
bear jointly and severally liability for the payment of debts
arised
to the third party.
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Anyone
shall be ordered to make corrections within the specified time
limit, or else shall be imposed
a fine of RMB 5,000 in case he
violates the first, second and third paragraphs of this article.
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Article
32
The transferors and transferees of a business transfer shall
fulfill registration of alteration
and go through other
procedures concerned according to law.
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Article
33
In the case of business transfer, operating properties including
names shall be transferred. The
Registration Organization shall
automatically revoked the names resulted in the transfer in case
the transferees fails to use it.
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Subsidiaries
of limited liability merchants shall not be transferred other
than their properties,
and their names shall not be used by the
transferee. Transfer of subsidiaries of unlimited liability
merchants shall be prohibited.
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Article
34
The transferor and transferee of a business transfer shall
determine ways of assumption of debts
incurred by the transferor
before such business transferred under a contract.
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Article
35
The transferee of a business transfer, who has not used the name
resulted from the transfer but
has promised in the public notice
to assume the debts incurred by the transferor, shall pay the
debts upon requesting by the debtee.
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Article
36
In case the transferee in a business transfer assumes the debts
incurred by the transferor, the
debtee shall request the
transferee to pay the debts within one year from the date such
business
transfer takes effect or the public notice is issued. |
Chapter
V Commercial Account Books
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Article
37
All merchants shall establish financing and accounting systems
according to laws, administrative
regulations, rules of the
financial competent authority of the State Council and these
regulations.
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Article
38
All merchants shall establish account books at the commencement
of business. Account books and
balance sheets shall be made to
provide the information concerning the status of profit and loss
in the course of business operation.
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Article
39
All merchants may adopt electronic account books, but shall not
destroy the data that has generated
while changing the financial
software under use.
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Article
40
All merchants shall record the transactions in written forms
according to their successively order,
unless otherwise
specifically provided by the laws and administrative
regulations.
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Article
41
The operating properties and their value at the commencement of
business and the end of each year
shall be clearly recorded in
account books.
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The
balance sheets shall be made on the basis of the account books
and shall be signed in the name
of the person who makes the
account books.
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Article
42
The following matters that may affect any transactions and
operating properties shall be recorded
in account books on the
basis of the original vouchers:
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(1)
Receipt and expenditure of funds and portfolios;
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(2)
Receipt and expenditure, addition and subtraction, and use of
funds in finances;
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(3)
Generation and settlement of debts and credits;
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(4)
Addition and subtraction of capital and funds, receipt and
expenditure of funds;
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(5)
Calculation of income, expenses and cost;
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(6)
Calculation and treatment of financial results; and
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(7)
Other matters required by laws that shall be handled with
accounting procedures and financial
accounting.
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Article
43
All merchants shall assign special persons to properly preserve
business account books. The period
for preserving business
account books shall be subject to the provisions of laws,
administrative
regulations and rules of the financial competent
authority of the State Council.
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Article
44
The agencies of justice, taxation, audit and registration may
order contesting parties or merchants
to submit all or part of
their business account books under the application of
subscribers or shareholders,
partners or other interested
persons.
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Chapter
VI Commercial Employees
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Article
45 The
merchants may select or appoint managers to conduct specific
business according to association
articles or partnership
agreements.
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Article
46
The merchants may appoint several managers including deputy
managers to jointly exercise rights
of representation.
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The
commercial acts conducted by any of the representatives with the
authorization of the merchants
shall be effective to the
merchants.
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Article
47
The manager shall be entitled to manage all kinds of business on
behalf the merchant within the
scope of authorization.
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The
manager shall be entitled to nominate deputy managers and chief
accountants to the merchant
for appointing or dismissing.
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The
manager may appoint or dismiss employees at or below the post of
a deputy manager.
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Article
48
The restriction on the right of representation for a manager
shall not be invoked to resist the
bona fide third party, unless
otherwise the manager provides warranty for others or disposes
real
properties of the merchant without being authorized by the
merchant.
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Article
49
The manager shall fulfill the obligations of prohibition of
business strife, i.e., shall not carry
out any business that is
the same as that of the merchant who appoints him, which are
stipulated
by the Company Law of the People's Republic of
China.
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The
merchant shall be entitled to deem the transaction, which is
carried out by the manager who
violates the aforesaid
obligations, as its own transaction and acquire his income.
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The
merchant shall lose such right in case it fails to exercise the
right as specified in the aforesaid
paragraph of this article
within 3 months from the date it knows that the manager violates
such
obligations or within one year from the date of the
transaction carried out by the manager.
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Article
50 The
authority of the person in charge of a subsidiary of a limited
liability merchant, whose
duty is similar to that of a manager,
may be deemed as same as that of a manager. But such person
shall not act on behalf of the merchant in respect of acts in
action.
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Chapter
VII Agents
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Article
51 The
agent is an independent merchant who is authorized to act
regularly or continuously on
behalf of other merchants or help
to bring about deals between its consigner and other merchants.
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The
agent, who is authorized to conduct business within the Special
Zone by the consigner, is called
a regional agent.
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The
agent, who is authorized to exclusively conduct business within
the Special Zone by the consigner,
is called an exclusive agent.
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Article
52
To act on behalf of other merchants or helps to bring about
deals between its consigner and other
merchants, the agent shall
conclude an agency contract with the consigner, or else the acts
of
the agent shall be subject to relevant provisions of the
civil law.
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Where
the expired original agency contract between the agent and the
consigner has not been renewed
and has been further performed by
the two parties, such contract shall be deemed as being changed
into a casual one. Any of the parties may terminate the casual
contract after notifying the other party for 30
days ahead of
the termination, unless the parties have agreed otherwise.
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The
aforesaid paragraph of this article shall not be applicable in
case the contract terminated
due to gross negligence of any
party or force majeure.
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Article
53
The agent shall fulfill the obligations according to the agency
contract and defend the interests
of the consigner, while the
consigner shall provide the necessary conditions for the agent
to fulfill
such obligations. To help to bring about deals
between the consigner and other merchants, both the agent and
the consigner shall bear the obligation to provide each other
with relevant information in time.
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Article
54
Unless otherwise specifically restricted by an agency contract,
the agent may simultaneously accept
authorizations from two or
more consigners or conduct the business involving competition
with the
consigners.
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Article
55
The agent shall bear the obligation of not taking advantage of
or disclosing any commercial secrets
of the consigners to any
third party, even though the agency contract is terminated.
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Article
56 The
agent and the consigner may conclude an agreement at the time
terminating the agency relations,
under which restricts the
agent from conducting the same business as that of the consigner
within
a reasonable time limit, i.e., the time limit may not
exceed two years from the date terminating the agency relations.
In this respect, the agent may request the consigner to pay for
reasonable compensation.
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The
agent shall be forfeited of the right to claim for compensation
stipulated in the aforesaid
paragraph of this article in case
the agency contract terminated due to gross negligence of the
agent.
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Article
57
The consigner shall pay corresponding remuneration for the agent
as agreed under the agency contract.
Where there is no such
definite agreement in the contract on remuneration, the agent
shall be entitled
to acquire a reasonable sum of remuneration
for the actual provision of services within the scope of
authorization according to the business practice.
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Article
58
Where any transaction fails due to the consigner' s fault or
default while the agent has provided
services for it, the agent
shall be entitled to claim for reasonable remuneration from the
consigner.
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Article
59
Where any bargain is closed due to the service provided by a
former agent within 6 months from
the date rescinding the agency
contract, unless otherwise the rescission due to the faults of
the
agent, the agent shall be entitled to claim for remuneration
resulted from such transactions.
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Article
60
Where the consigner closes any bargain within the agency area
coverage of any regional agent, the
regional agent shall be
entitled to claim for the remuneration from the consigner
regardless his
presence or not in the transaction.
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Article
61
The rescission of any agency contract shall be subject to the
provisions of the contract law.
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Article
62
Where any agent enjoys the creditor' s right for its agency or
contributory in the conclusion of
transaction but without being
discharged of debts by the consigner within the time limit of
payment,
the goods or securities of the consigner may be kept by
the agent unless otherwise agreed by both parties or prohibited
to be kept by law.
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Chapter
VIII Supplementary Provisions
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Article
63 The
provisions concerning shop names, managers, publication of
commercial registration and business
account books in these
regulations shall not be applicable to any individual
businesses.
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Article
64 The
detailed implementing measures are to be formulated by the
Municipal Government in accordance
with these regulations.
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Article
65 These
regulations shall take effect as of October 1, 1999.
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