Study Of WTO And Chinese Foreign Inwestment Lawmaking

From the beginning of the reform and opening, China set about the foreign investment lawmaking, lots of laws and rules were come on gradually from Chinese People's Representitive Conference to local governments, forming a great system of Foreign Capital Law. These laws and rules once contributed great to China to draw on and to make use of foreign investment in the period from closing to opening. However, after 20 years of reform and opening, Foreign Investment Law has not suitable anymore. China made some amendments to it before and after China's joining WTO, but the amendments are small and not satisfactory. The existing instance is that some parts of Chinese Foreign Investment Law don't not only accord with WTO's rules, but vails for China to utilize Foreign Investment Law to develop economy and improve synthetic national power. Thereupon, for China, how to constitute one Foreign Investment Law adapting to the situation of China becomes a hot lawmaking problem.Looking on the existing achievements, the civil studies mostly centralize on the national treatment, inspiritment policy and lawmaking system, but the opinions are different. Scholars are short of macroscopic train of thought to lawmaking, and most rest on the manipulating lay. The foreign scholars studying this are not many and only pay attention to the admitting procedures and performing requests. Therefore, these studies can't satisfy far the demand of the great project of China's foreign Investment lawmaking.On the basis of the change of China's situation and it's assuming WTO's obligation, this article, aiming at some important questions in the amendment of the Foreign Investment Law, carries through study from Economic Law angle. In the light of the Economic Law theory, the Foreign Investment Law is the one of National Regulation, which is based on the Market Regulation. In the economic globlization time, the Foreign Investment Law is still restricted by International Regulation. Perforating the main line of 'Closing —Opening--Joining in WTO', and adopting the methods of Nomology, Comparative Law and cases analysis, the whole article studies on the principle of foreign Investment lawmaking, the admitting industry policy, investment inspiritment and restriction policy, and the nationalization to foreign investment.In the first chapter, the author, first of all, retrospects the course of China's foreign investment lawmaking, and affirms the Foreign Investment Law's contribution in the special time, meanwhile, analyzes it's deficiency. Afterwards, the author, aiming at WTO's requests to it's members, finds the disparities. On this basis, the author introduces the basic thought-way about perfecting Chinese foreign investment lawmaking — the Foreign Investment Law's regulated object is foreign direct investment law-relationship, setting up one four -layer law system which is from the Constitution, the Basic Foreign Investment Law, the Special Foreign Investment Law to local laws, accordingly realizing the correspondence with the Company Law and representing the function of market regulation, national regulation and international regulation.Lawmaking principle, which arranging the system of the Foreign Investment Law, is an important problem in need of solution in lawmaking. In the initial stage of the reform and opening, China making use of foreign investment was mainly for the purpose of making up civil capital limitation, as represented the exclusive-mind to the "Capitalism" natrual of foreign capital, however, this lawmaking principle hasn't adapted to the demand of the time. In the following 20 years, this principle hasn't changed all along. After China joining WTO, China utilizing foreign capital is in order to indraught competitor, flour market and blend foreign investment with China's economy so as to develop Chinese economy. Therefore, Foreign Investment Law should foster competition system and build a fair competition circumstance. Hence, foreign capital lawmaking should, under the guidance of justice and efficiency, stick to four-item principle:(l) abide by the principle of WYO rules, (2) defend and develop national economy, (3) protect resource and environment, (4) carry out gradually National Treatment. Correspondently, in the lawmaking and law-applying, we should, according to the principle in investment rules of WTO, constitute and implement Foreign Investment Law, improve national industry's competence, regulate foreign capital-protected source and environment and allow foreign investment take National Treatment by degrees. What the second chapter study is this aspect.Generally speaking, from the industry policy of foreign capital permission, we can make out a country's opening extent. Today when WTO dedicates to promote commerce freedom, developed countries do their utmost to claim that developing countries should open their markets as possible as they can. Thereby, theindustry policy of foreign capital permission becomes a hot problem of the Foreign Investment Law. The third chapter, starting with WTO's requests to it's members, according as every country's permission practice, analyzes China's opening history and existing instance, propose that China should adopt gradual policy.A great deal of measures of investment inspiritment and restriction were adopted in Chinese foreign investment lawmaking. Whether these measures would be still used after joining WTO? This aspect is studied in the third chapter. Part of measures of inspiritment and restriction were forbidden temporarily in WTO rules. Developed countries widely don't adopt these measures. Developing countries ever adopted investment measures, which, however, are reduced gradually now, inclining to allow foreign investment have the same treatment as civil investment. In the initial stage of the reform and opening, China adopted these measures in favor of foreign investment's entry, yet they are not suitable now, inasmuch as the adoption of these measures were not propitious to the formation of fair competition circumstance, and breach the value of law justice; In economics, the measures disobey the theory of inequality development; From the realism, the measures go against Chinese economic development. For the future, China should strengthen the administration to foreign investment and supply service for it.Nationalization is a sensitive problem in Foreign Investment Law, which connects correctly with the safety of foreign investment. In the fifth chapter, the author puts forward how to standardize nationalization in Foreign Investment Law. WTO represents the spirit of foreign capital protection, but has not direct rules of nationalization. Considering that WTO rule is a dynamic process, we ever considered to establish Investment Code in WTO's confine in lately negotiation, so aftertime, nationalization may be standardized. Generally, defined nationalization conditions and compensation criterions are prescribed in International Treaty and any country's Foreign Investment Law. With regard to nationalization conditions, "for commonality benefit, in term of legal proceedings, indiscrimination and paying advisable compensation", UN's "advisable" compensation criterion has accepted worldwide. China should firstly define the connotation of "nationalization", and also should adopt international-used nationalization conditions and prompt, adequate, effective compensation criterions.