Study Of The Identification Criteria Of Foreign Investor

The Identification Criteria of Foreign Investor is being challenged and need to be more scientific with the internationalization of investment,Identification of Foreign Investors is the Basis of Reconstructing Foreign Investment Supervision System.Based on institutional innovation,re-determining the Identification Criteria of foreign investors so that help Implementing administrative supervision and Judicial regulations on foreign companies and foreign capital,could help create a fair and open market environment,promote and regulates foreign investment,safeguard national security and improve social public interests on the one hand,also it could guarantees the legitimate interests of foreign investors,keeps our country attractive to foreign investors,and achieve sustainable development of China's economy under a competitive market.on the other hand.At the same time,it ensures the balance of diversified goals in the field of foreign investment and balances the rights and obligations of investors with the host country.On January 19,2015,the Ministry of Commerce issued the "People's Republic of China Foreign Investment Law(Draft of the Exposure Draft)" and related instructions,and a major adjustment has been made to the long-term adoption of the country's established location and corresponding standards by putting forward the Actual control standards.The root cause is that,the current application of the original identification criteria is no longer in line with the national conditions and shows many problems.It is imperative to formulate standards that are more in line with the current foreign investment situation based on actual conditions.Under the new circumstances,as a prerequisite for accepting foreign investment laws and regulations in the future,it is necessary and urgency to clearly define the identification Criteria of foreign investor.The research purpose of this paper is to analyze the actual control standards in the “Foreign Investment Law of the People's Republic of China(Draft of the Exposure Draft)” based on the analysis of the merits and demerits of different identification Criteria of foreign investor and the analysis of factors that determine the criteria for determining foreign investors,and study the identification Criteria and put forward some sound suggestions..The paper is divided into four chapters:Chapter one analyzed the different value orientations in establishing identification Criteria of foreign investor under the perspective of domestic law and international law,and analyzed the main theories for the company's nationality in practice and their respective advantages and disadvantages,drawing the attention of the trend that many developed countries began to pay attention to the application of actual control standards in recent years and changes the identification criteria according to the historical traditions,economic conditions,development stages,and economic and social development and changes in the countries,which will pave the way for the analysis of China's identification Criteria of foreign investor.Chapter two analyzed the current China's identification Criteria of foreign investor,which is decided by the place of establishment and the governing law.It has been reflecting the limitations due to significant changes in the background,causing the dilemmas of different regulations found that the application of different standards,the predicament failing under in VIE framework under the industrial policy control,and the predicament of the defeat of competition policy under SPV design return investment.The applicable single factor of the place of establishment as the identification criteria will result in failure to identify foreign investors who really need to review and supervise in the national security censorship system.With the gradual opening of foreign investment,the review of foreign investment access is gradually weakening,the protection function was transferred to the national securityreview legal system,and the function of the foreign investment national security review legal system was strengthened.In the context of new trends in international investment and the shift in the focus of foreign investment supervision,it is necessary to make adjustments to better meet the needs of the times and to manage changing markets with changing systems.Chapter three discusses the micro and macro factors of determine the identification criteria of foreign investors,and comments on the questions and uncertainties of the actual control standards introduced in the Foreign Investment Law(Draft of the Exposure Draft),and several analysis conclusions have been made on the issue,witch are that we should implement the essence of the "control" standard and explicit legal consequences of "as a Chinese investor's investment",and specify the consequences when foreign exchange transactions that result in the transfer of the actual control of a domestic enterprise to foreign investment,are regarded as the connotation of the foreign investor's investment in China,and we should establish a "substantial rather than formal" principle to solve the problem that relevant provisions are not yet sufficiently.Based on the combing,argumentation,analysis of the previous three chapters,chapter four puts forward the applicable countermeasures and suggestions for the improvement of China's actual control standards,including to establish the basic principle of substance over form,the principle of continuity of foreign investor status,and the principle of differentiated traced treatment between foreign and Chinese investors.And establish three steps path of type,nationality,and control to identify investor.In the direction of supporting legislation applicable to practical control standards,effectiveness of control should be ensured first,then identity control standards followed,finally,the chain effect of the flow of the actual controller should be simplified;in the coordination of actual control standards with other applicable legislation and other values,Firstly,we should ensure that the actual control standards are consistent with national security factors.Secondly,we should ensure the coordination of international investment interests and actual control standards.Thirdly,we should ensure the unification of deterministic operating rules and generalprinciples.Fourthly,a proper transition of actual control standards and current standards should be ensured.