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초록· 키워드
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The Legal System Related to Foreign Commercial Investment
China as the socialist state adhered to the planned economic system that had the mainstay of "the public ownership system of the means of production" and "distribution based on labor" but decided on reformation and opening in 1978 as the economic contradiction was deepened. Ever since, encouraged by the development of the privately-operated economy taking the economic form of the non-public ownership system, China transformed its planned economic system into the socialist market economic system and recognized the "form of ownership other than the public ownership system" and the "form of distribution other than distribution based on labor".
The reformation and opening policy was limitedly enforced because it conflicted with the existing system in nature, and its related legal provisions greatly deviated from the existing legal system. For this reason, confusion in the Chinese legal system has been worsened even though many economy-related laws were enacted and amended.
The Chinese foreign commercial investment system, the foreigners I investment system, generally refers only to the direct investment that foreigners made to establish and manage the joint-venture company, the joint-stock company or the foreign-capital company.
The constitutional grounds for this foreign commercial direct investment is Sec. 18 of the "Constitution" and there are such basic laws as "Chinese-Foreign Joint-Stock Business Enterprise Law" enacted in 1979, "Foreign Investment Enterprise Law enacted in 1986" and "Chinese-Foreign Joint-Venture Business Enterprise Law" enacted in 1979. And there are such executive regulations as the "Regulations for Operation of the Chinese-Foreign Joint-Stock Business Enterprise Law", the "Rules for Operation of the Foreign Investment Enterprise Law" and the "Rules for Operation of the Chinese -Foreign Joint-Venture Business Enterprise Law". They forms the basic skeleton of theforeign commercial investment system.
The Problem Related to Incorporation
Consideration should first be given as to whether investment in China is the field permitting investment or whether it corresponds to the industrial policy. China enacted the temporary regulation for guiding the direction of foreign commercial investment and promulgated the "Inventory of Guidance of Foreign Commercial Investment Industries", which is classified into the fields of encouragement, permission, restriction and prohibition of investment. According to the Industrial Guidance Inventory, it is necessary to bear in mind that the fields of investment encouragement and prohibition are presently increased compared to the past.
If the direction of investment is decided, the investment contract is concluded. But there may be the possibility that the dispute may occur as to the content of the contract due to the difference in the economic and legal system between the parties to it. Especially, it is necessary to make sure the right and obligation between the parties to the contract in case a number of parties as investor are involved in investment as its size expands. In case of Chinese, individuals or unionized enterprises, not the legal person, can usually become the investor, and it is necessary to pay attention to the choice of the other party. In addition, Chinese are often involved in investment in such forms as the organization of the paper company in the so-called economic zone of Chinese emigrants such as Taiwan, Hong Kong, Singapore and the like in keeping with the recent economic development. In this case, it is necessary to consider the precautionary measure against the breach of the contract through the guarantee of actual investors and the like.
In turn, the great problem in Korea is the adoption of the stem and complicated screening ratification system for foreign commercial investment. To form the business enterprise, the investor should receive the ratification from the Ministry of Foreign Affairs, Economy and Trade that governs foreign commercial investment via the screening of the planning department governing the competent category of business, the contract comes to become effective, and based on it receive ratification from the agency administering and managing industry and commerce. There is the case that the foreign investor receives ratification from the local government using making use of theexpedient though he should receive ratification from national government in the process of preparing for screening and ratification. Ratification is requisite for the management of the business enterprise, and care should be taken because there is a danger that permission is cancelled in case the fact of breach is disclosed.
The Problem Relating to Capital and Investment
There is no uniform regulations concerning the registered capital needed to form the foreign commercial investment enterprise, and Chinese government has enacted a different standard according to the category or size of business, resulting in great complication. The Company Law enacted in 1993 provides the minimum limit of the registered capital according to the kind and of the company and the category of business. Nevertheless, the Chinese government does not apply it to the foreign commercial investment enterprise. Taken together, the Chinese government requires the foreign commercial investment enterprise to have excessive registered capital. This comes from the Chinese situation but is necessary to amend because it runs counters to the spirit of WTO.
In case of foreign commercial investment, the minimum investment ratio reqwres more than 25% of registered capital, but the maximum investment ratio is limited as the case may be. Investment can be made in accordance with the condition for permission after incorporation but unless investment is made within the stipulated period, the joint-managed enterprise is regarded as automatically dissolved. Because capital is realistically made by going through the procedures for transfer of rights, cash is paid on the account of the enterprise and real estate or registered property right should go through procedures for transfer of rights.
The object of investment may include cash, spot goods, intellectual property right, knowhow, land use right and the like. What matters is that cash and intellectual property right should necessarily be owned by the investor and it is impossible to invest real rights granted by way of security. The foreign investor is allowed to invest intellectual property right and knowhow within the range of 20% of registered capital, and it is possible to exceed it in case of high technology. Chinese government puts restriction on the introduction of technology by classifying it into the technology of prohibition from introduction, restriction on introduction and free introduction. For this reason, it is necessary to examine whether it is possible to make technological investment. In case the use of invested technology constitutes the unlawful act, the investor should be held liable for it.
In case the investor assigns his share to another, it is necessary to bear in mind that it should go through consent from the other investors and receive permission from the competent agency. The point in time when assignment takes effect is not the time of consent but the time of ratification and registration. An investor may assign his equity to another before he fully performs investment.
New Form of Using Foreign Capital
China has come to feel keenly the limitation in attracting foreign capital in the form of forming existing joint-venture, joint-stock and foreign capital investment enterprises, and Chinese government has come to permit foreigners to form the corporation in China since 1995. The method of forming the corporation includes the method of forming a new company, the method of transforming existing stock-venture, joint-stock or foreign capital investment firm into the corporation or the method of transforming the state-owned firm or collectively-owned firm into the corporation and the method of transforming the Chinese corporation into the corporation. The minimum equity capital is The currency of the PRC 30,000,000 and foreign investors should own more than 25% of registered capital as in case of the joint-venture or joint-stock enterprise. The investor should make a total amount of investment at a time, and unless the promoter takes over the stock, the other promoter should assume joint responsibility for it. The promoter can assign the stock three years after incorporation and needs to receive permission from the competent agency.
As another method of foreign commercial investment, the Chinese government has permitted the holding company system that foreigners invest since 1995. The registered capital is more than USD 30,000,000 and a given restriction is placed on the requirement of Qualification for foreign investors and Chinese investors. Foreign investors should make an investment with freely convertible money and investment should be made within two years after the business license certificate is received.
Conclusion
It is true that laws related to foreign commercial investment still have many problems, but have a great significance in that they are not accepted as the universal legal principle, not as the temporary special regulation. They are enacted as a temporary expedient as the case may be, but it can be seen that they have cohered to the consistent principle in that they are the regulations enacted to achieve the purpose of policy that has been carried forward with the consistent objective of reformation and opening and socialist market economy.
China as the socialist state adhered to the planned economic system that had the mainstay of "the public ownership system of the means of production" and "distribution based on labor" but decided on reformation and opening in 1978 as the economic contradiction was deepened. Ever since, encouraged by the development of the privately-operated economy taking the economic form of the non-public ownership system, China transformed its planned economic system into the socialist market economic system and recognized the "form of ownership other than the public ownership system" and the "form of distribution other than distribution based on labor".
The reformation and opening policy was limitedly enforced because it conflicted with the existing system in nature, and its related legal provisions greatly deviated from the existing legal system. For this reason, confusion in the Chinese legal system has been worsened even though many economy-related laws were enacted and amended.
The Chinese foreign commercial investment system, the foreigners I investment system, generally refers only to the direct investment that foreigners made to establish and manage the joint-venture company, the joint-stock company or the foreign-capital company.
The constitutional grounds for this foreign commercial direct investment is Sec. 18 of the "Constitution" and there are such basic laws as "Chinese-Foreign Joint-Stock Business Enterprise Law" enacted in 1979, "Foreign Investment Enterprise Law enacted in 1986" and "Chinese-Foreign Joint-Venture Business Enterprise Law" enacted in 1979. And there are such executive regulations as the "Regulations for Operation of the Chinese-Foreign Joint-Stock Business Enterprise Law", the "Rules for Operation of the Foreign Investment Enterprise Law" and the "Rules for Operation of the Chinese -Foreign Joint-Venture Business Enterprise Law". They forms the basic skeleton of theforeign commercial investment system.
The Problem Related to Incorporation
Consideration should first be given as to whether investment in China is the field permitting investment or whether it corresponds to the industrial policy. China enacted the temporary regulation for guiding the direction of foreign commercial investment and promulgated the "Inventory of Guidance of Foreign Commercial Investment Industries", which is classified into the fields of encouragement, permission, restriction and prohibition of investment. According to the Industrial Guidance Inventory, it is necessary to bear in mind that the fields of investment encouragement and prohibition are presently increased compared to the past.
If the direction of investment is decided, the investment contract is concluded. But there may be the possibility that the dispute may occur as to the content of the contract due to the difference in the economic and legal system between the parties to it. Especially, it is necessary to make sure the right and obligation between the parties to the contract in case a number of parties as investor are involved in investment as its size expands. In case of Chinese, individuals or unionized enterprises, not the legal person, can usually become the investor, and it is necessary to pay attention to the choice of the other party. In addition, Chinese are often involved in investment in such forms as the organization of the paper company in the so-called economic zone of Chinese emigrants such as Taiwan, Hong Kong, Singapore and the like in keeping with the recent economic development. In this case, it is necessary to consider the precautionary measure against the breach of the contract through the guarantee of actual investors and the like.
In turn, the great problem in Korea is the adoption of the stem and complicated screening ratification system for foreign commercial investment. To form the business enterprise, the investor should receive the ratification from the Ministry of Foreign Affairs, Economy and Trade that governs foreign commercial investment via the screening of the planning department governing the competent category of business, the contract comes to become effective, and based on it receive ratification from the agency administering and managing industry and commerce. There is the case that the foreign investor receives ratification from the local government using making use of theexpedient though he should receive ratification from national government in the process of preparing for screening and ratification. Ratification is requisite for the management of the business enterprise, and care should be taken because there is a danger that permission is cancelled in case the fact of breach is disclosed.
The Problem Relating to Capital and Investment
There is no uniform regulations concerning the registered capital needed to form the foreign commercial investment enterprise, and Chinese government has enacted a different standard according to the category or size of business, resulting in great complication. The Company Law enacted in 1993 provides the minimum limit of the registered capital according to the kind and of the company and the category of business. Nevertheless, the Chinese government does not apply it to the foreign commercial investment enterprise. Taken together, the Chinese government requires the foreign commercial investment enterprise to have excessive registered capital. This comes from the Chinese situation but is necessary to amend because it runs counters to the spirit of WTO.
In case of foreign commercial investment, the minimum investment ratio reqwres more than 25% of registered capital, but the maximum investment ratio is limited as the case may be. Investment can be made in accordance with the condition for permission after incorporation but unless investment is made within the stipulated period, the joint-managed enterprise is regarded as automatically dissolved. Because capital is realistically made by going through the procedures for transfer of rights, cash is paid on the account of the enterprise and real estate or registered property right should go through procedures for transfer of rights.
The object of investment may include cash, spot goods, intellectual property right, knowhow, land use right and the like. What matters is that cash and intellectual property right should necessarily be owned by the investor and it is impossible to invest real rights granted by way of security. The foreign investor is allowed to invest intellectual property right and knowhow within the range of 20% of registered capital, and it is possible to exceed it in case of high technology. Chinese government puts restriction on the introduction of technology by classifying it into the technology of prohibition from introduction, restriction on introduction and free introduction. For this reason, it is necessary to examine whether it is possible to make technological investment. In case the use of invested technology constitutes the unlawful act, the investor should be held liable for it.
In case the investor assigns his share to another, it is necessary to bear in mind that it should go through consent from the other investors and receive permission from the competent agency. The point in time when assignment takes effect is not the time of consent but the time of ratification and registration. An investor may assign his equity to another before he fully performs investment.
New Form of Using Foreign Capital
China has come to feel keenly the limitation in attracting foreign capital in the form of forming existing joint-venture, joint-stock and foreign capital investment enterprises, and Chinese government has come to permit foreigners to form the corporation in China since 1995. The method of forming the corporation includes the method of forming a new company, the method of transforming existing stock-venture, joint-stock or foreign capital investment firm into the corporation or the method of transforming the state-owned firm or collectively-owned firm into the corporation and the method of transforming the Chinese corporation into the corporation. The minimum equity capital is The currency of the PRC 30,000,000 and foreign investors should own more than 25% of registered capital as in case of the joint-venture or joint-stock enterprise. The investor should make a total amount of investment at a time, and unless the promoter takes over the stock, the other promoter should assume joint responsibility for it. The promoter can assign the stock three years after incorporation and needs to receive permission from the competent agency.
As another method of foreign commercial investment, the Chinese government has permitted the holding company system that foreigners invest since 1995. The registered capital is more than USD 30,000,000 and a given restriction is placed on the requirement of Qualification for foreign investors and Chinese investors. Foreign investors should make an investment with freely convertible money and investment should be made within two years after the business license certificate is received.
Conclusion
It is true that laws related to foreign commercial investment still have many problems, but have a great significance in that they are not accepted as the universal legal principle, not as the temporary special regulation. They are enacted as a temporary expedient as the case may be, but it can be seen that they have cohered to the consistent principle in that they are the regulations enacted to achieve the purpose of policy that has been carried forward with the consistent objective of reformation and opening and socialist market economy.
목차
I. 서론
II. 설립과 관련한 문제
III. 자본과 출자에 관한 문제
IV. 지분양도(股權變更)
V. 경영관리의 문제
VI. 새로운 외자이용 형식
VII. 결론
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