Study On The National Security Review System Of Foreign Investment In China

Foreign investment in the capital importers bring a lot of money and advanced technology and modern enterprise management experience. There are many drawbacks at the same time, such as environmental pollution, cultural erosion, the threat to national security. To prevent foreign investment from affecting national security, various countries have established the national security review system. Our country has been trying to establish a better national security review system after about 40 years of exploration.In 2015, our country promulgated the Draft of Foreign Investment Law (hereinafter referred to as "the draft"), which provides the national security review system. These rules compared with current relevant system at least have the following three aspects of progress: Firstly, the scope of national security review has been extended to all foreign investment activities. Secondly, the review criteria are more specific and clear. Article 57 of the document not only lists 10 important security factors, but also sets out the terms of the lease, enhanced the flexibility of the system. Thirdly, the legislative level has been improved. However, there are still some shortcomings in the national security review system stipulated in the draft. So it is necessary to improve the national security review system furtherly.We should specify the component part of censorship and the decision-making mechanism of the joint meeting. The establishment of the censorship is irrational. The division of authority between the various departments is unclear. Convened by the Development and Reform Commission and the Ministry of Commerce of the State Council as a unit and other relevant departments to attend the joint meeting is a security review censorship of our country, as to which units are "relevant departments" is not clear.From this point of view, the joint meeting is temporary, summoned units must specially organize meetings members before every review of foreign investment projects, which not only can increase the time cost of censorship, but also is not conducive to the performance of investors to declare obligations. In addition, the unclear division of the responsibilities between the National Development and Reform Commission and the Ministry of Commerce is not conducive to improving the work efficiency and implement the review responsibility. In this regard, the system should separate review function and decision-making function, so that the two convened units lead respectively. The decision-making mechanism of the joint meeting is not clear in the draft. In order to take into account the two objectives of efficiency and safety, the general review stage should adopt the principle of absolute majority decision, and the principle of full consistency is adopted in the special review stage.On the improvement of review scope, the national security review system should be combined with the restricted implementation of the directory, which limits the investment industry can be used as the main content of the former review. Although the scope of the review of the national security review system for foreign investment in our country has been expanded,which is a manifestation of progress,but the review scope is lack of focus, which has given rise to new anxiety. All foreign investments are likely to be subject to a security inspection, on the one hand, I am afraid that the joint meeting does not have enough time and energy to complete a large number of cases review,on the other hand,starting the procedure for some investment activities that do not need to be reviewed will dampen the enthusiasm of investors.We should improve the review procedure from perfecting appointment negotiation mechanism and other two aspects. From the point of review procedure, China and the majority of countries' national security review system is divided into two stages as a whole, namely, general review and special review, the system design is more scientific.However, there are also worth thinking about, such as before investors take the initiative to declare, the draft sets an appointment negotiation mechanism, the two sides mainly communicate on procedural issues. Obviously, the national security review is a very professional, complicated task, the procedural arrangements on the provision is relatively clear, foreign investors do not understand more about the substantive aspects of the case.Since there is a program design to discuss points, we should let it play the greatest function, investors and relevant departments can communicate the details of the project deals, so that investors understand the attitude of the censorship to avoid their own passive stuck in the mire. To a certain extent, it can also reflect the protection of the legitimate rights and interests of foreign investors. At the same time, the censors can also understand required information through the communication, and have sufficient time to consider whether to start the security review procedure or not and help improve efficiency of the latter part of the work. To sum up, that the content of the negotiations between the two sides is not limited to procedural issues is more advantageous to achieve a win-win situation.It is necessary and feasible to give supervision to the legislature to supervise national security review in foreign investment. The establishment of a supervisory mechanism is of great significance to the national security review of foreign investment,which is conducive to promoting the positive operation of the system and the protection of the legitimate rights and interests of foreign investors. Due to the inherent defects of administrative supervision and unrealistic factors of the judicial supervision, the legislature is the most suitable supervisor, and the good effect of the national security review body can be achieved by listening to the annual report, conducting on-site supervision, exercising the right of inquiry and so on.