On The Foreign Investment Access System Of China

Along with the release of Foreign Investment Law of the People's Republic of China(draft),the foreign investment access in China becomes hot topics of scholars'.The admittance of foreign investment legislation in our country adopts the composite double-track mode,there is no unified foreign investment law,but to make one or several special laws or regulations about foreign investment,they constitute the basic law or law group about foreign investment,supplemented by other relevant laws and regulations.On the one hand,it is a delegate with "three-capital","foreign enterprise"legislation;On the other hand,it is a delegate with the company law,the partnership enterprise law and the sole proprietorship enterprise law.There are differences between the two on enterprise governance structure,the form of liability and the rights and obligations,etc.All of these result defects of the admittance of foreign access system.Legal system did not keep pace with the development of economic,caused the admittance of foreign capital lack of openness.No unified foreign investment law,legislation,caused low law transparency.The special management measures use positive list,born with the trace of planned economy history,caused inconsistency with the international investment rules.National security review system uses separate several laws,rules and regulations,caused low legal hierarchy and lack of standardization of the legislation procedure.In order to solve the above problems,to make reference of the foreign legislation of developed countries,especially the foreign investment access system of the United States,Japan,and Canada and Australia regulations on national security review.In terms of openness,to change the domestic and foreign double track system to monorail one,to promote the negative list model,and open the industries which benefiting people's livelihood,such as education,health care,and infrastructure industries;In terms of transparency,it is suggested that the relevant foreign investment laws and regulations disclose in relevant department and have English versions;In terms of inconsistency of the rules of international investment,to take the national treatment before access and negative list model,with a focus on the inconsistent problem about the treatment of state-owned enterprises and foreign enterprises,suggest that take the principle of reciprocity,give equal treatment through the way of bilateral investment treaties,and provide corresponding remedy mechanism to foreign investors.For the dispute of the inconsistent of the treatment of China's state-owned enterprises and foreign enterprises,the state sovereign immunity principle can be quoted;In terms of national security review,to take the reference of Canadian and Australian legislation,to take independent personal way of making a final decision and establish accountability mechanisms.For the Foreign Investment Law of the People's Republic of China(draft),specific suggestions on improvement include:For the definition of foreign investors and foreign investment,take the reference of legislation model of Japan.For the definition of "Chinese investors",it is suggested that the current draft use the standards of domicile instead of actual control,so that it can enlarge the openness.Also refer to the legislation of Japan and Canada,to define the "foreign investors"by defining "investors in China",rather than the current way of both are defined respectively.Refine the definition of all kinds of investment,it is recommended to redefine the branches of foreign companies in China as "Chinese investor",then the RMB financing between these kinds of enterprises not regarded as foreign investment.About the access approval part,mainly is the special management measures list,recommended national treatment before access and negative list model,namely changing the current foreign investment industrial guidance catalogue from positive model to negative list.In the national security review part,it is suggested that specify the organs composing joint conference,national security review decision made by prime minister or minister of commerce,and establish the corresponding accountability mechanism,to give foreign investors remedies in procedural law.