On Confliction And Coordination Of Negative List And Positive List On Foreign Investment

Foreign investment access system is the core content of foreign capital law and foreign investment policy. For quite some time, the foreign investment access system has achieved remarkable success in the introduction of foreign investment and promotes the development of national economy. Currently, however, great changes have occurred in global market, thusly, we have to face a series of outstanding contradictions and challenges. From the international perspective, the international financial crisis is still grim, WTO is marginalized, various free trade areas are increasing rapidly, the "Trans Pacific Partnership Agreement" and "inter the Atlantic trade and investment partnership agreement" which is led by the United States is trying to squeeze out China. In China, the speed of economic development has stepped into high level. This circumstance requires us deeply reform the legal system of the ingress of foreign investment.In the international investment area, a majority of nation make the management model of pre-establishment national treatment and negative list in their legislation, bilateral investment treaty and free trade zone treaty. Pre-establishment national treatment and negative list is also the mode of bilateral investment treaty between China and America. China will also draw into pre-establishment national treatment and negative list in cooperation with other nations. Besides, the four largest free trade zones in China are also actively implementing the negative list. The development in the legislation requires us focus our attention on the confliction and coordination of negative list and positive list on foreign investment, and in the same time, put pre-establishment national treatment and negative list system into foreign investment.The legislation concept of negative list of freedom is which is not forbid in legislation is more advanced than the legislation concept of positive list of there is no law in the law to do it. The previous one is accorded with the legislation concept and regulation in international community; it also conformed to our requirement in drawing into foreign investment. The legislation concept of freedom is which is not forbid in legislation is the important manifestation of civilization society and society with rule of law. On the contrary, the legislation concept of there is no rule of law that cannot be done is not suit for the requirement of market economy and society with rule of law.We should set up the concept of correct understanding and coordinate the confliction on negative list and positive list, then make unified market access system put into practice. In addition to Shanghai, the four largest free trade zone, the vast majority of China’s mainland and foreign bilateral investment treaties are basically put positive list management system into practice. We have to fully cleaned up the relevant laws and regulations and set up correct understanding on many aspect of the conflicts, for instance: on negative list and the positive list system in the legislative guiding ideology, the relevant legislation, government services and management functions, foreign investors and the inter regional and inter country applicable. These conflicts should be gradually eliminated, so as to promote the relevant rules of our country and the rules of the international community.Amendment or repeal the legislation conflicts on foreign investment and pursue pre-establishment national treatment and negative list system. The law which is the impediment of foreign investment in China should be modified or abolished. Draw on the Sino US bilateral investment treaty in the Sino foreign bilateral investment treaty on the management system of pre-establishment national treatment and negative list. The purpose is to make China’s market access system unified, so as to improve the quality and efficiency of the introduction of foreign investment in China.Coordinating the conflict of government functions in the two list system and promoting the transformation from management to service oriented government functions, from the examination oriented to the record oriented change. Positive list system give the government more authority, whether the Industrial Catalog of four categories of foreign investment in any category, they have to approved by the government, otherwise, it cannot enter the market of China. Negative list system will give foreign investors the right of checkout themselves, the problem can be found in a timely manner and the industrial investment which is not contained in the negative list only needs to be reported to the government. Negative list is conducive to limiting the power of government and reduce a large number of approval. Thusly, the government can make a lot of time to do duty and responsibility to improve the services efficiency.Pay attention to whole course regulation and highlighting the supervision and regulation in the event. The positive list emphasizes the administrative examination and approval of the market access of foreign investors. Its essence is an ex ante supervision behavior. However, negative list gives foreign investors pre-establishment national treatment. The negative list only takes responsibilities on which it contained. It requires whole process of supervision after foreign investment entering into China. By contrast with prior review of the positive list system, the negative list system and afterwards regulation is more conducive to reduce government intervention and prevent the corruption from the government. Meanwhile, Negative list is conducive to improving the regulatory capacity of government organs and their staff and improve the efficiency of foreign investment and China’s utilization of foreign capital.