National Security Review System Of Foreign M&A Concerning Critical Technologies And Its Improvement

With the rapid development of the new scientific and technological revolution,the role of the first productive forces of science and technology has become increasingly evident.The overall national strength of a country depends mainly on the ability of scientific and technological innovation and its development potential.Many countries regard the research and development of key technologies as a national strategy and attach importance to attracting foreign advanced technology by attracting foreign capital.At the same time,foreign investment in key technology areas,especially foreign capital mergers and acquisitions,will also pose a hidden danger to a country's safeguarding its national sovereignty,national security,and international competitiveness.Therefore,in recent years,developed countries have formulated or tightened security review legal systems in key technology areas to prevent foreign mergers and acquisitions from affecting and even undermining national security.In the past 40 years of reform and opening up,our country has promoted the rapid development of science and technology in China through the introduction of technology through investment promotion;however,we should also see a series of negative impacts of foreign investment,especially foreign capital acquisition,on China's national security in key technology fields.The main causes of these negative effects are summed up in the following aspects:First,there are deviations in the understanding of opening to the outside world,and the opening up is opposed to the national security review of foreign investment;second,it is confined to traditional national security concepts for a long time.Failure to incorporate key technologies into national security in a timely manner.Third,China's current foreign investment legislation involves the introduction of key technology national security review documents at a later date and at a lower level.Fourth,foreign-funded M&A target companies and their managers of intangible assets and countries.Inadequate understanding of security;Fifth,foreign investors control key technologies for maximizing capital benefits and hinder China's R&D and innovation;Sixth,foreign investors' home governments seek to undermine the country's key technological areas for political reasons.Safety.China has not formed a relatively mature national security review legislative system for foreign investment like the United States,Canada and Germany.The existing key technology areas of foreign capital mergers and acquisitions security review system are mainly established through regulations and regulatory documents,the legal hierarchy is low,and there are still some contradictions between the industrial policies guiding foreign investors and the regulations do not specify the key technologies.The definition or scope of this important concept is also ambiguous in the setting of the reviewing organization,and cannot guarantee the efficient operation of the review mechanism.Although the "Foreign Investment Law(Draft for Soliciting Opinions)" promulgated by the Ministry of Commerce in 2015 has made progress in legislative concepts and legislative techniques,it still does not completely solve the problems exposed by the current foreign investment and merger security review legislation in key technology areas.In order to meet the needs of China's scientific and technological development and safeguarding national security,we must further improve the relevant security review system legislation.First of all,it is necessary to abandon the scattered legislative practices that have not been coordinated in the past,adopt a special legislative model,formulate a unified "Foreign Investment Law",and use it as the center to construct a legislative system for the review of foreign investment safety,so that relevant regulations can be harmonized and unified to jointly promote national security.In the "Foreign Investment Law","key technologies" should be defined as technologies,originals or technical products that play a key role in national defense and military affairs,major scientific and technological innovations of the country,national political security,economic security,cultural security,and social security..At the same time,in the implementation details,the scope of key technologies is listed in a taxonomy or list format to enhance the certainty and enforceability of related regulations.In the review agency's regulations,while adopting the mechanism of the inter-ministerial joint meeting,it also clarified its constituent departments and division of labor,with the Ministry of Commerce as the lead department and the Ministry of Science and Technology as the main department responsible for security review in key technology fields.During the review process,more attention should be paid to assessing the connection between foreign mergers and acquisitions and the interests of foreign governments through various methods,and acquire key technologies for mergers and acquisitions that minimize foreign investors' support through foreign governments and benefit from them.In addition,it is also necessary to combine ex post facto supervision with pre-examination to further improve the provisions of the national security review reopening system,and to use additional conditions to reduce the negative impact that foreign investors may have on national security in key technology areas after mergers and acquisitions.