Legal System Research Of National Security Review Of Foreign Investment Under The Mode Of Negative List

Legal System Research of National Security Review of ForeignInvestment Under the Mode of Negative ListRegarding the national security review of foreign investment legal system as the research object,the international investment rules from new liberalism development paradigm to the embedded liberalism as the background,the situation of our country with more and more capital input power and capital output power as the foundation,the implementary national treatment before access plus negative list foreign investment management mode as the center,the research uses a combination of international economics,international politics,legislation,law hermeneutic and comparative law,puts forward and proves that,with the economic globalization and investment liberalization and facilitation and under the trend of fundamental change in foreign investment management system,establish and perfect the inevitability,legitimacy and necessity of national security review of foreign investment legal system in China.Based on the national treatment before access and negative list foreign investment management model that will soon be put into practice in China,the research clarifies the basic concept of legal system of national security review of foreign investment--foreign investment,safety and national security,explicates the fundamental problems of the legal system of national security review of foreign investment--the influence of foreign investment on national security,and the necessity and legalization of national security review of foreign investment,discusses the basic theory of the legal system of national security review of foreign investment--the national sovereignty theory,the theory of state intervention,the theory of national interests and the theory of new national security and analyzes legal system related to the foreign investment legal system of national security review--foreign investment access censorship,antitrust review system and the relationship between the legal system of national security review;summarizes essential feature of national security review system of foreign investment;introduces the developmental process of national security review(legal)system of foreign investment in China,which has experienced three processes,starting from scratch,from affiliate to independence,from partial to full,as well as three stages of independent foreign investment legal system of national security review,before establishing stage,establishment stage and test and direction selection stage,and points out its shortages--“national security” and related concepts are fuzzy and chaotic,the power and responsibility of foreign investment access review,antitrust scrutiny,and the national security review of foreign investment is not clear,and insufficiencies of the relevant national security review of foreign investment legal system design,such as “ Notification of establishing security review system of Mergers and acquisitions of domestic enterprises by foreign investors”,“Trial measures for national security review of foreign investment in the free trade area”,“foreign investment law”(draft).This research summarizes the advanced experience of foreign investment legal system of national security review of the United States,Canada,Australia,Germany,France and other countries,on the basis of China ' s actual conditions and the above insufficiencies in the national security review of foreign investment legal system,this research puts forward specific legislative proposals in perfecting four core aspects our country's foreign investment legal system of national security review--review object,review standards,review institution and review procedures.In the aspect of objection of review,it emphasizes actual control,in order to control effect to determine the scope of the “foreign”.In the aspect of review standard,it should stick to the balance of blur and certainty,and reflect our country's national conditions.In the aspect of review institution,it advocates that Commence Department takes the lead and join up with multi-department to allocate reasonably and divide responsibility clearly.While in the review process,it should reflect efficiency and review inhibition,and establish the proper rights relief system and supervision system.These suggestions aim to build national security review of foreign investment legal system in our country that is suitable for national treatment before access plus negative list foreign investment management mode.The innovation of this research can be expected in four aspects: The first one,on the research view,it always puts the national security review system under the influence of both international and domestic environment.Let the legal system of national security review of foreign investment in China both draw lessons from foreign countries,and base on domestic legal system.Not only in line with international standards,but also has the Chinese characteristic.The second one,on the research emphasis,in the large category of the foreign capital supervision system,it clarifies the function distinction of foreign investment access,antitrust supervision and regulation of national security review,and attempts to establish coordination between the three elements,which is what most of the existing national security review system in China lacks.The third one,on the research idea,adhere to the embedded liberalism paradigm,this research deems that national security review system of foreign investment construction should stick to the balance of freedom and security,stick to the “de-political”,stick to carefully review,and should “prepare and use less”.The last one,this research evaluates and analyzes “Trial measures for national security review of foreign investment in the free trade area”,“foreign investment law”(draft),the latest regulations and legislation trend,to ensure the research frontier and novelty.In order to provide adequate theoretical basis and new solutions to the legal system of national security review of foreign investment that is under construction and improved.