Research On The Law Issues Of Negative List In The Sphere Of Foreign Investment

In the context of globalization,international trade has been playing an increasingly important part in China's economic development.With the profound foresight,our government set up eleven free-trade zones,namely,Shanghai,Tianjin,Guangdong,Fujian,Liaoning,Zhejiang,Henan,Hubei,Chongqing,Sichuan as well as Sichuan free-trade zone successively and implemented the 'register plus negative list' mode for the entry of foreign investment.It suggests that China' s trade access standard tends towards the mode of international standard.Therefore,it is of vital significance to probe into the flaw of foreign investment's negative list in characteristic,content,procedure and so forth.In the development of contemporary international trade,negative list,as a rule in the neighborhood of foreign investment access,is demonstrated in the.international trade system of both developed and developing countries.And China,a developed-country-to-be,can draw valuable lessons from the implementation and dealing method of negative list in other countries.Currently,negative list plays an administrative rule in the grand socialist law system with Chinese characteristics.There are many problems with the Negative List:limited openness at a whole,over-coverage of the industrial range,relatively more limits on service industry and too frequent revisions in content.Particularly,severaLproblems shoulld be prioritized:monopolizing and franchising,too many prohibitions on domestic shipping and limits on news publication,radio and television and financial information.The transparency of the Negative List should also be further promoted.The over-simple structure of the Negative List can be recompiled by learning from the foreign mode:department-involving obligation-government-involving law-description;explanation with inadequate strictness and prudence can be solved by regulating relevant concepts and terms;the transparency of the procedures can be further promoted by general laws,technical regulation and standard constituting procedure;unclear legal basis and conflicts in different hierarchies of laws and regulations are its legal problems,which can be solved by amending or repealing relevant laws and regulations.Meanwhile,problems with the surveillance over the Negative List should not be ignored.First,the transformation of the government's function is too slow and cancellation of pre-approval brings problems.They can be resolved through streamlining the government and simplifying and perfecting the procedure for pre-approval.Second,the implementation of the filing system exacerbates the difficulty of surveillance.It can be correcting by perfecting antimonopoly censorship,safety censorship and monitor complaints censorship,and establishing a regulation to let social power in supervision.Third,the credit system is left behind.Its risk can be controlled by perfecting credit database,establishing a system of credit rewards and punishments.There are two disputes in the Negative List:the dispute among the countries involved about the explanation and application of the Negative List,and the dispute among investors and companies in the host country.From the perspective of the first dispute,on the one hand,the substandard description can be amended by stipulating connotation of the restricted articles,repealing regulations with unclear obligations,and regulating relevant concepts and terms.On the other hand,the complaints problem can be solved by establishing complaints principles,setting up specialized agency to dealing with complaints,and helping deal with complaints.From the perspective of the second one,on the one hand,the arbitration system of free-trade zone can be alleviating by constructing temporal arbitration,solving the recognition and implementation of the decision of the temporal arbitration,and learning from investment court.On the other hand,the administrative review and the administrative proceeding can be improved by defining the legal application of the administrative disputes caused by the Negative List,regarding one side as the actions of the state,making the disputes of administrative rules into administrative law's category,and reforming the court system in free-trade zone.