Study On The Obligation Of Information Reporting Of <The Draft Of Foreign Investment Law>

Chinese--foreign Equity Joint Ventures Law, Foreign—capital Enterprises Law,Chinese--foreign Contractual Joint Ventures Law (hereinafter referred to as the foreign investment "three law"),which were established for regulating foreign investors'investment. The development of these laws has promoted the development of China's opening-up strategy and the use of foreign capital to develop the cause of national economy progress, and achieved great success. 37 years after opening to the outside world, China's use of foreign capital is facing a series of new situation and tasks From home and abroad, especially the development of regional trade liberalization, the development of international investment liberalization and national treatment of high voice, making our original "foreign Three law "has not adapted to a comprehensive deepening reform, building a new system of open economy needs. To this end, the state began a unified internal and external law work, and in early 2015 by the Ministry of Commerce issued a "foreign investment law (draft)" ( Hereinafter referred to as "draft"),unified provisions of foreign investment activities can not be other legal norms of special matters.The "draft" includes access system, national security review and other systems,which joined the original did not specify the foreign investor information reporting system. Foreign investment management model from the "positive list" to the "negative list" of the need to introduce information reporting system to implement things, after the supervision; In addition, the major international developed countries to take information reporting system for foreign management, which also forced China to adopt "Negative list + information reporting system" model to improve the attractiveness of foreign investment in Chinese market. It is the key to the effect of the information reporting system by foreign investors to fulfill the information reporting obligation. The fulfillment of the report obligation of the Company makes it easy for China's foreign investment authorities to grasp the investment situation of the obligor and the operation status of the investment enterprises to provide basis for the formulation and improvement of foreign investment laws and regulations and policies to promote and guide foreign investment.The information reporting system designed by the "Draft", requires all foreign investors or foreign investment enterprises to fulfill the obligation of reporting information to the foreign investment department for their business practice. The regulations about truthfully reporting the information obligation can not only make the foreign investment department of China grasp foreign investment and operation of foreign investment enterprises, providing basis for the legislative formulation and perfection, and guidance to foreign investment, but also make up for "access to national treatment and negative list mode", and strengthen supervision during the process and after that, with the purpose of eliminating the unsafe factors of foreign investment in China and safeguarding China's national security.The existing effective "three foreign investment law" and other foreign investment laws and regulations for foreign investment has not been introduced into the information reporting system about foreign investment. Although introducing the information reporting system, and stipulating the obligation of reporting the information truthfully,due to the system both in theory and in practice have no basis, the "draft" needs to be perfected on the definition of the obligation body, the scope of reporting information,and the legal responsibility report etc..Adopting the mode of "nationality" / "establishment + actual control", the draft makes definition to the subject (foreign investors or foreign investment enterprises) of truthfully reporting the information obligation. This definition brings the "actual control" standard into the foreign field, which has great significance, but the identity of foreign businessman need to break through the established criteria in form such as nationality and birthplace , and value "standard habitual residence / main agencies, the principal place of business" in it."Efficiency" and "security" are two main factors in setting the scope of foreign reporting information. "Foreign investment law" should take the "security" and"efficiency" into account on the establishment of foreign investors, the report of the change and the scope of the periodic reporting requirements. The law put forward non monetary assessment report be included in the report scale, annual report be pre audited,and quarterly report of the key enterprises turned into semi annual one, thus achieving effective connection of information report and the industrial and commercial registration. In the meantime, on the premise of reporting essentical information concerning about economic order and national safety, it is necessary to reduce the burden on foreign businessmen, thus creating a relatively free legal environment for foreign investors, and attracting foreign investors to invest in china.The establishment of legal responsibility is an important guarantee to promote the foreign investors to fulfill the obligation of reporting information truthfully. The administrative liability and the criminal liability clause borne by the foreign traders who are in violation of the obligation of information reporting should be scientific, and strengthen the prevention effects of punishment. For the cases such as concealing the true situation, providing misleading statements or false information in the process of foreign reporting information, the punishment should be more severe, and the legal responsibility should be strengthened. At the same time, it is necessary to add the provisions of civil liability for breach of the obligation of reporting information, and make up for the other participants' losses resulting from the failure of the foreign traders to fulfill the obligation of information reporting.