중국 외국인투자기업 법제의 개선방안 연구

Abstract

The economic system of China is the economic system derived from the common development of economies with different types of ownership, based on the socialist market economy and oriented with the public ownership. In order to introduce the foreign capital, China continuously adjusts the laws and regulations related to the foreign capital investment as the situation required. In the process of the socialist legal construction, Foreign-funded Enterprise Law is constantly improved and used for the equal protection of the legitimate rights and interests for the domestic and foreign investors in accordance with the principle of the moderate supervision. According to the provisions of Article 218 of Company Law in China, the foreign-invested limited liability companies and joint stock limited companies are applicable to the law; where provided otherwise by laws on Sino-foreign equity joint ventures, Sino-foreign cooperative joint ventures and foreign-funded enterprises, such provisions shall prevail. Therefore, the foreign-funded joint stock limited company is completely applicable to the relevant provisions of Company Law. According to the provisions of article 75 of Company Law, for the establishment of Joint Stock Limited Company, there are at least 5 sponsors or more; more than half of them shall have their domiciles in China. According to Article 85, the joint stock limited company can conduct the public offering abroad. These articles of law don’t exclude the foreign investors to become the sponsors or shareholders of the joint stock limited company. When the initial Company Law was laid down, China’s attraction for foreign investment focused on “three kinds of foreign-funded enterprises”, and deficient in the estimation of the development of foreign-funded joint stock limited company; secondly, due to the long-term implementation of such legislation model in China, in other words, the legislation model is completely adjusted with the needs of laws in practice, this is very realistic. So there will inevitably be problems in cohesion. In addition, the legislative confusion will inevitably weaken the legal determinacy and make the law become the policy-based documents for the economic management from the government. Therefore, the unification of legislation for domestic capital and foreign capital investment is not only the urge for China’s legal system construction, but also China’s demands and commitments to WTO under the background of economic globalization.