| The Foreign Investment Law of the People’s Republic of China（hereinafter referred to as the "Foreign Investment Law"）was adopted in March 2019,in December of the same year,the Implementing Regulations of the Law of the People’s Republic of China on Foreign Investment（the "Implementing Regulations of the Law on Foreign Investment"）were adopted.As a basic law and the Implementation Regulations in the field of foreign investments of our country,its fundamental,encouraging and forward-looking features have provided strong legal protection for further expanding the opening up,actively and effectively utilizing foreign capital and creating a good business environment for foreign investors in the new era and new situation.The Foreign Investment Law and its Implementation Regulations（hereinafter referred to as the "New Foreign Investment Law"）not only design legal clauses on investment protection,investment promotion,etc for protection of foreign investors,but also stipulate foreign investment administration to safeguard national security and safeguard public interest in the meantime of providing facilitation for investment by foreign investors.In addition to the foreign investment management mode set out in the negative list,another highlight of the legislation this time is the "national security review system for foreign investment".When open up to the outside world and introduce foreign investment,the issue of national security review of foreign investment shall not be underestimated.If articles on foreign investment protection and promotion create a good business environment for foreign investors,foreign investment management is a good security system created by the host country for maintaining its national security and economic order.At present,the provisions on the national security review system for foreign investment in the Foreign Investment Law of the People’s Republic of China are only principled provisions,and do not design supporting systems such as standards and procedures for the national security review of foreign investment.With the rising of China’s international voice and international trade and investment exchanges,it is worth considering how to design the detailed rules of foreign investment national security review in line with China’s socialist basic national conditions.Therefore,this paper points out the development and change,the direction of improvement and the practical significance of the improvement of the national security review system of foreign investment.This article expounds the development requirements on the review body,review standards and review procedures for the national security review system fromthe perspective of the new Foreign Investment Law,and preliminarily puts forward substantive suggestions on refining and improving the national security review system under the Foreign Investment Law by comparing the national security review systems for foreign investment overseas,so as to achieve the dual value objectives of the Foreign Investment Law of the People’s Republic of China of promoting foreign investment,expanding opening up and protecting the lifeline of national security.This article is divided into four chapters:The first chapter is a summary of the changes in and improvements to the national security review system for foreign investment from the perspective of the new Foreign Investment Law.The first section of this Chapter summarizes the theoretical basis and historical evolution of the national security review system for foreign investment,which lays the foundation for subsequent suggestions on improving the national security review system for foreign investment.The second section of this Chapter mainly elaborates the new changes in the national security review system for foreign investment compared with previous laws and regulations under the background of the Foreign Investment Law in order to adapt to the transformation and development of the times.The third Section of this Chapter points out the importance of the existence and the urgency of developing and improving the national security review system for foreign capital by analyzing the status and role of the national security review system for foreign capital in our country.The second chapter is the improvement of foreign investment national security review authorities under the vision of the new Foreign Investment Law.The first section of this Chapter expounds the development requirements for foreign investment national security review organizations under the vision of the new Foreign Investment Law,and points out the shortcomings of the current establishment of review organizations,that is,the allocation of powers and responsibilities of review organizations is unclear.The second section of this Chapter analyzes foreign investment national security review agencies in the United States,Canada and Germany by way of extraterritorial comparison.The third section of this Chapter makes a summary on the basis of the comparison outside the territory of the previous section,selects the essence,and puts forward specific suggestions on improving the national security review institutions for foreign capital of our country based on the actual situation of our country.The third chapter is the improvement of the national security review standards for foreign investment from the perspective of the new Foreign Investment Law.Thereview criteria is the core of the national security review mechanism for foreign capital,and the basis for the review institution to make a decision on whether or not to approve the review for foreign capital.In the era of the Foreign Investment Law,the expansion and extensiveness of the scope of review set higher requirements for the national security review of foreign investment.Vague examination standards shall be dealt with by adopting the comparative analysis method and adopting international practices.At the same time,China shall formulate examination standards with Chinese characteristics in line with the socialist development of the country.On the basis of the determination of general guiding principles,"summarize and list" the national security review standards for foreign investments and the considerations thereof,make the national security review system for foreign investments in our country more transparent and predictable,and ensure that the authority entity is granted appropriate discretion and investors are given appropriate investment predictability.The fourth chapter is the improvement of the national security review procedures for foreign investment from the perspective of the new Foreign Investment Law.The first section of this Chapter discusses that the national security review procedures for foreign investment shall be continuously refined with the improvement of the economic development level and degree of openness of our country.A set of complete and systematic review procedures and an effective supervision mechanism can ensure the effective implementation of the national security review system for foreign investment.The second section of this Chapter makes a comparison of the procedural rules of the United States,Canada and Germany,and provides guidance for improving the review procedure that runs through our country.Our country shall increase the pre-consultation that is the informal consultation link and conditional mitigation measures so as to improve the examination efficiency of examination agencies and the predictability of foreign investors.Besides,the internal and external supervision of the examination procedures shall be strengthened so as to effectively balance the rights and interests between foreign investors and examination organs,and thus achieve a dynamic balance between national security and foreign investment attraction. |
