On The Legal System Of The FDI

Foreign direct investment refers to capital-exporting countries (also known as the home country) running enterprises in foreign, and more controlling over the investment activities management of the enterprise outside. In detail, it is a kind of capital export activities that the home country enterprises or other economic organizations, as well as its natural person invest capital, the kind, industrial property, etc. into the outside, and establish enterprises in local or acquire local firms by foreign law, and carry out the production and operation and gain management control. Foreign direct investment has the following features:cross-border investment activities, investors have control over the enterprise, investment entity is a private, the investment activities suffer from dual jurisdiction of investors of home and host countries, adjust investment norms of the purpose and content in three areas, including management, and promoting or to the protection of foreign direct investment, diverse methods of dispute settlement in outside the direct investment.China's foreign direct investment enterprises generally experienced international trial operation stage, the internationalization of business management framework and strengthening the stage of formation and operation of the rapid development of the international stage. For these years, suffered from the international financial crisis, China's foreign direct investment activity has growth slowed down, but this is only temporary.Foreign direct investment law is made to regulate and protect national regulation and the development of foreign investment, generated due to the developed functions of the state regulation in foreign investment behavior. On international direct investment markets at this stage, the adjustment mechanism has been a "ternary" structure:market regulation, national regulation and international regulation. Three regulations interact with each other and play an integrated regulatory function. The State regulation in the legal sources is reflected on foreign direct investment for the norms of domestic law, and international regulation is reflected in foreign direct investment for the norms of international law. International regulation is a way to readjust each country's national regulation. National regulation needs international regulation, and should consistent with it as far as possible.The nature of things decides the pattern and size of the thing system. Although foreign direct investment-related provisions in China are still scattered in a number of laws, regulations and departmental rules, its purpose and content of the adjustment nothing more than reflected in three aspects including promotion, management and protection:First, foreign direct investment in the promotion of the legal system; second, foreign direct investment in the management of the legal system; third, foreign direct investment in the protection of the legal system. This "trichotomy" assumption has been accepted by some national scholars indirectly. The establishment of "trichotomy"" assumption laid the scientific basis of epistemology and methodology for improving overseas investment legal system. If we could follow the science "trichotomy" thread in legislation, the contradiction, not matching and the resulting confusion of such a phenomenon between the specific regulations of overseas investment legal system are expected to be an effective solution.The foreign direct investment law, as a department of economic law, is bound to follow the China economic values in legislation:efficiency, equity and social-based, taking into account the interests of the international community. However, foreign direct investment law has its special values, and such specific values are decided by the special nature of the foreign direct investment law in economic law system. According to adjustment objects and function division of foreign direct investment in economic law system, as well as the international investment market-specific political risks and commercial risks, foreign direct investment law needs to focus on the security of investment activities in order to eliminate the concerns of investors. Therefore, foreign direct investment legal system should regard security and efficiency as its legal value.The purposes and tasks of foreign investment legislation in China should be conducive to the economic structure and operation of co-ordination, stability and development. As an important sector of economic law, foreign direct investment law has its unique adjustment of objects and function. In addition to its legislative activities should reflect the basic principles of economic law-the maintenance of the overall socio-economic benefits, considering the interests of all parties, it also should be its unique principles:the principle of internationalization. Legislative model for foreign investment should be used first single after the basic law, and the basic law and the single legislative pattern match with each other. We should learn from the countries which are successful in implementation of a number of experiences and practices about the foreign direct investment in the country legal system building, such as The United States, Canada, Britain, Germany and France.There are some problems on foreign direct investment in promotion legal system. We should conjunct with international practice, in particular WTO rules, through the establishment of a loss of tax concessions, tax credits, tax sparing, and allowing conditional extension to pay taxes, giving particular tax incentives for small and medium enterprises, establishing the reserve fund system for overseas investment, and improving the system of tax laws. We should not only broaden the financing channels for small and medium enterprises, and expand the credit provision of financial institutions and their scope of business, but also establish foreign direct investment funds, and improve financial support legal system. Through the play of the special advantages of the relevant government departments, we could create specialized agencies, establish an information platform, and improve technical assistance and information services legal system. Thus the above systems can play a real role in promoting foreign direct investment development.In China, foreign direct investment on the management of the legal system has undergone three stages:the system started, the system formed and strengthened, and gradually perfected. There is a phenomenon in our foreign investment management legal system called "putting more emphasis on preventive approval than after management" Therefore, according to legislative guidance in future, we should regard approval as important as management. Through the establishment of co-ordination mechanism between investment units and the competent financial authority, we should play the regulatory advantages from the Economic and Commercial Counselor in the Department (Room) in foreign direct investment, and establish Foreign Direct Investment Management Committee, and establish the reporting system for overseas investment, and strengthen supervision on the loss of state-owned assets in foreign investment and non-standard invest behaviors of private enterprises.The protection of foreign investment arises from the needs of various risks (including political risk and commercial risk) and security threat which foreign investors may face. At present, China has initially established the legal protection of foreign direct investment in the system (such as overseas investment guarantee, complaints service on outside business, security protection on outside enterprise agencies and personnel, international protection, etc.), but there are many problems, such as the scope of the insured person in foreign insurance system is unreasonable, the lack of national regulation in insurance approval system, the difficulty to realize the subrogation rights and the limitation of the international legal protection efforts. Therefore, we should focus on perfecting China's foreign investment insurance legal system, strengthening the diplomatic protection and using protection of international law better.