| With the development of investment globalization,foreign investment activities become more and more frequent,so it is particularly important to strengthen the management and protection of foreign investment.In order to attract foreign investment to promote domestic economic development and prevent excessive control of foreign investment on the lifeblood of domestic economy,China and the United States have taken restrictive measures on foreign investment while formulating the system of encouraging and protecting foreign investment.National security review system is an important content.In December 2020,China promulgated the "foreign investment security review measures",which systematically stipulated the foreign investment security review procedures,and established the basic framework of foreign investment security review system,However,there are some deficiencies in the review procedure: the legal rank is relatively low in the legislation,In the general procedure of review,there are deficiencies in the status and organization of law enforcement agencies;In the start-up procedure of review,the provisions of voluntary declaration are general,and the third party’s start-up method has disadvantages;In the implementation procedure of review,there is a lack of special review conditions for cases,and the provisions of supplementary declaration are insufficient.In the special system,the function of the preview negotiation procedure is single,the withdrawal and restart procedures of declaration are lack,and the conditional mitigation measures are lack of supporting mechanism.In the aspect of relief,there is no relief channel for security review.In order to study the above issues,this paper firstly analyzes the related concepts of foreign investment national security review,explains the four functions of the security review procedure,and makes a comparative analysis of the legal sources of the review procedure between China and the United States.Secondly,taking the general procedure,the special system and the relief procedure as the comparative items,this paper makes a comparative analysis of the review procedure between China and the United States,studies the consistency and difference of the procedural norms between the two countries,and puts forward some suggestions on the review procedure in China in view of the problems existing in the review procedure in China.First,improve the legislative rank of review,and provide high authority legal basis for the review.Secondly,in view of the problems existing in the general procedure,establish a foreign investment security review committee and clear the legal status of law enforcement agencies in China.The content of voluntary declaration should be refined,the conditions of the third party’s proposal to start should be stipulated,and the deficiencies of the start-up procedure should be solved.It is necessary to raise the threshold of special review,limit the supplementary declaration of the parties,and solve the problem of review implementation procedure.Thirdly,in view of the shortcomings of special procedures,the following suggestions are put forward respectively: We should enrich the contents of pre examination negotiations,set up a restart mechanism,refine the withdrawal procedures,and add supporting provisions for conditional implementation.Fourth,in view of the defects of China’s censorship relief,this paper proposes to set up procedural relief channels to protect the rights and interests of investors by referring to the practice of the US government’s censorship relief and the thinking of Sanyi group v.the US government case. |
