The Study On The Law Problem Of Negative List In Foreign Investment Access Areas

With China(Shanghai)free trade zone were officially launched,the negative list management began in China.For the negative list is the high international standards open market access mode of Chinese,after several years of development,the negative list management model to a great role for China foreign trade and the country's economic development.But the negative list for the show in Chinese still some problems can not be avoided,according to the United States,Australia,South Korea,Singapore,Mexico,Indonesia and other economic development in different countries to use the negative list of empirical analysis,summing up the experience,and combined with the Chinese economic,administrative,the judicial present situation,countermeasures are given to the negative list system in China applicable.The first chapter summarizes the negative list in the field of foreign investment admission.It defines the negative list from the historical evolution,concept,nature,characteristics,forms of existence and legal positioning.This paper expounds the legal basis of negative list,including the theories of "state sovereignty","limited national treatment","general exception and special exception","legal reservation",etc.Starting from the source and application mode of negative list,this paper discusses that national treatment is the effective source of negative list,and the application of negative list in the field of international investment is the mode of entry of negative list investment.It also compares the positive list and the negative list from many angles,and evaluates the advantages and disadvantages of the two.This paper analyzes the value of negative list in the field of foreign investment from the perspectives of legislation,administration and foreign economic exchanges,that is,the application of negative list helps our country to conform to the new pattern of international trade.To master the right to speak in international trade;To promote the profound development of China's domestic market economy;From the two aspects of the application of negative list in the free trade area and the problems existing in the existing three methods of foreign investment,this paper discusses that the model of negative list can promote the promulgation of foreign investment law;Starting from the bottleneck encountered in the reform of the administrative examination and approval system,this paper discusses that the negative list accords with the reform direction,advances the reform of the administrative examination and approval system,and transforms the government functions.Research on the application of the negative list of international treaties in chapter second.The North American Free Trade Agreement(NAFTA),the United States Australia Free Trade Agreement(FTA),the US South Korea Free Trade Agreement(FTA),the trans Pacific Partnership Agreement(TPP),the trans the Atlantic partnership agreement(TIPP),the United States of Uruguay bilateral investment treaty(BIT)the United States of Rwanda,bilateral investment agreements(BIT)and empirical research,summarizes the forms and characteristics of the negative list in the international treaties,and be arranged on a free trade agreement,the negative list for comprehensive partnership agreements and bilateral investment agreements are analyzed.Finally analyze the experience in the use of the negative list in international treaties.,summarize our country should learn from the negative list in the application of the experience.The third chapter is comparative study of the development trend for different countries in the negative list.According to different situation of economic development in the country(the United States,Australia,South Korea,Singapore,Mexico,Indonesia)is an empirical study on the negative list,which can be divided into moderately developed countries,developed countries and developing countries,with different national economic development situation and development analysis of the status quo.Summarize the negative list in the form of content,highlight the characteristics of industry protection principles,make comments on countries at different levels of development,control situation,China's economic development and make analysis,learn from experience,learn from each other,put forward suggestions for reference.The fourth chapter is on the entry of foreign investment negative list field in China.This paper introduces the establishment of a negative list entry mode in the entry of foreign investment in China in the field of analysis,the negative list and the negative list of international treaty application mode in China as the host country in the same time.Based on the Shanghai FTA negative list(2013 edition,2014 edition.),unified negative list(2015 edition,2017 Edition)the empirical research,based on the Sino US BIT,South Korea FTA,Sino Australian comparative study of FTA,this article discusses the characteristics of the negative list of China in host countries and in the international treaties,the negative list for the special management measures type and industry protection tendency.And to do the assessment.From the "foreign investment law(Draft)"in the negative list is discussed the development trend of our country in the field of foreign investment negative list for foreign access field.Based on the negative list.In current practice,points out the existing problems.One is according to the international experience,pointed out that our country is the negative list without legal basis;the two is that the negative list to develop low transparency,operability is not strong;the three is that the principle of indusrtry protection in the negative list is not clear,the four is the supporting system of the negative list entry mode is not perfect five;is the contradiction between the negative list entry mode and the existing legal system of a positive list of legislative mode;finally pointed out that the relief system of the negative list entry mode under the lack of administrative litigation filing behavior can be pending.The fifth chapter to perfect our research path for foreign investment access areas of the negative list.Discusses the foreign investment law as soon as possible,to develop a negative list of guidelines,given the right to adjust the local legislature to unify the negative list,the negative list of China's foreign BIT template in the template including the establishment of a negative list of legal system;the supplement and upgrade the existing negative list,reflecting the principle of industry protection in our country,improve the negative list of its transparency and operability;from the establishment of the linking system of the negative list update and update on the perfection of law,the commercial registration system and security review system and improve the supporting system,discusses the negative list mode through the transformation;the legislative thinking,clear the existing laws and regulations,to promote the gradual change of legislative thinking positive list to the negative list through the clear legislative thinking;The administrative filing behavior can be actionable in administrative reconsideration and administrative litigation,and improve the relief system of administrative record behavior under the negative list mode.