Circular of the General Office of the State Council Concerning the Transmission of a Clarification

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Circular of the General Office of the State Council Concerning the Transmission of a Clarification

国务院办公厅转发外国投资管理委员会关于执行《中华人民共和国国务院关于管理外国企业常驻代表机构的暂行规定》中若干问题的说明的通知
Circular of the General Office of the State Council Concerning the Transmission of a Clarification Submitted by the Commission for the Administration of Foreign Investments on Several Questions on the Implementation of Interim Provisions of the State Council of the People’s republic of China on the Administration of Resident Representative Offices of Foreign Enterprises

外国投资管理委员会关于执行《中华人民共和国国务院关于管理外国企业常驻代表机构的暂行规定》中若干问题的说明，已经国务院批准，现转发给你们，请参照执行。
The clarification submitted by the Commission for the Administration of Foreign Investments on several questions on the implementation of "Interim Provisions of the State Council of the People’s Republic of China Governing Resident Representative Offices of Foreign Enterprises", has been approved by the State Council and is hereby transmitted to you, and you are requested to implement it accordingly.

外国投资管理委员会关于执行《中华人民共和国国务院关于管理外国企业常驻代表机构的暂行规定》中若干问题的说明
Appendix: A CLARIFICATION OF THE COMMISSION FOR THE ADMINISTRATION OF FOREIGN INVESTMENTS ON SEVERAL QUESTIONS ON THE IMPLEMENTATION OF INTERIM PROVISIONS OF THE STATE COUNCIL OF THE PEOPLE’S REPUBLIC OF CHINA ON THE ADMINISTRATION OF RESIDENT REPRESENTATIVE OFFICES OF FOREIGN ENTERPRISES

《中华人民共和国国务院关于管理外国企业常驻代表机构的暂行规定》（以下简称《暂行规定》发布后，各审批单位依照《暂行规定》对申请设常驻代表机构的外商进行了审批工作，工商行政管理部门核准了登记，公安机关办理了居留手续，工作进展很快，对外国企业常驻代表机构的管理工作有所加强。
Since the promulgation of the "Interim Provisions of the State Council of the People’s Republic of China Governing Resident Representative Offices of Foreign Enterprises" (hereinafter referred to as the "Interim Provisions"), the various examining and approving units have, in accordance with the "Interim Provisions", examined and approved, the applications filed by foreign businessmen for the establishment of resident representative offices, the departments for the administration of industry and commerce have approved their registration, and the organs of public security have the performed residence procedures; work in this respect has made very good progress, and the administrative work concerning the resident representative offices of foreign enterprises has been strengthened to some extent.

但在执行中也遇到了一些问题，需要予以明确或说明。
However, in the course of implementing the "Interim Provisions", there still exist some questions which need to be defined more sharply or clarified.

现对《暂行规定》中若干问题说明如下。
Now, several questions concerning the implementation of the "Interim Provisions" are hereby clarified as follows:
一、《暂行规定》第一条中的“其它经济组织”是指从事经济、贸易、技术、金融业务活动，但又不称为公司、企业的组织，还包括如日中经济协会、日本国际贸易促进协会、美中贸易全国委员会、加中贸易理事会等非营利性的经济团体。
(1) "Other economic organizations", as mentioned in Article 1 of the "Interim Provisions", refer to those organizations which are engaged in economic, trade, technological or finance business activities but are not called companies or enterprises as such, and which also include such non-profit economic organizations as the Japanese-Chinese Economic Association, the Japanese Association for the Promotion of International Trade, the National Council for American-Chinese Trade Relations, and Council for Canadian-Chinese Trade Relations.

二、《暂行规定》第二条：“未经批准、登记的，不得开展常驻业务活动。”是指未经批准、登记的，不得以常驻机构人员的身份从事业务活动；并不准在住处设置外国公司、企业等任何标志。
(2) Article 2 of the "Interim Provisions", which reads: "Those who have not obtained approval or have not gone through the procedures for registration shall not be permitted to undertake business operations of resident offices", means that those who have not obtained approval or have not gone through the procedures for registration shall not be permitted to undertake business operations in the capacity of the staff of resident (representative) offices, and neither shall they be permitted to put up any sign at their residences that represents foreign companies or enterprises.

未经批准登记设立常驻代表机构，擅自以常驻机构人员的身份进行业务活动的，由工商行政管理部门通知其撤销机构并立即停止业务活动。
With respect to those who undertake unauthorized business operations in the capacity of the staff of resident (representative) offices without going through the proper approval registration procedures for setting up resident representative offices, the departments for the administration of industry and commerce shall notify the persons concerned to close down their resident offices and to stop their business operations forthwith.

三、《暂行规定》第三条中外国企业申请设常驻代表机构时应当提交的证件和材料，其中的申请书和授权书必须提交原件；其它证件可提交副本或影印件。
(3) With respect to the certifying documents and relevant materials to be presented by foreign enterprises when applying for the permission to set up resident representative offices as provided for in Article 3 of the "Interim Provisions", the written application and the vesting instrument must be presented in the original and the other certifying documents may be presented in duplicate or photo copies.

“金融机构出具的资本信用证明书”，如外商提交确有困难，可灵活掌握，改为近1年内外商与银行有业务往来的证明即可。
As regards "the certificates of creditworthiness issued by a financial institution", if a foreign businessman has difficulty providing one, flexibility may be exercised by requiring the foreign businessman concerned to present certifying documents indicating business transactions concluded between the foreign businessman and a bank within the preceding year instead.

非营利性外国经济团体申请设常驻代表机构时，对《暂行规定》第三条所要求提交的资本信用证明书可以免交。
When a non-profit foreign economic organization applies for the permission to set up its resident representative office, it may be exempt from presenting the certificate of creditworthiness required in Article 3 of the "Interim Provisions".

四、《暂行规定》第四条中的“其它行业”，是指外贸部、中国人民银行、交通部、民航总局批准范围以外的行业，如合作开发石油、煤炭等，按其业务性质，报国务院主管部门批准。
(4) "The other trades", as mentioned in Article 4 of the "Interim Provisions", refer to those trades such as cooperative exploitation of oil and coal resources and etc. which are beyond the approving authority of the Ministry of Foreign Trade, the People’s Bank of China, the Ministry of Communications, and the Civil Aviation Administration of China, and the parties concerned shall submit their applications to the competent departments concerned under the State Council for approval in light of the nature of their businesses.

同中国国际贸易促进委员会对口的外国非营利性经济团体申请设常驻代表机构，暂报外贸部审批。
With respect to those non-profit foreign economic organizations, which are the counterparts of the China Council for the Promotion of International Trade, their applications for the permission to set up resident representative offices shall, for the time being, be submitted to the Ministry of Foreign Trade for examination and approval.

外贸部在审批过程中要征求贸促会的意见。
In the course of examination and approval, the Ministry of Foreign Trade shall consult China Council for the Promotion of International Trade.

信托投资行业外商申请设常驻代表机构，暂报中国人民银行审批。
With respect to foreign businessmen in the trust and investment trade, their applications for the permission to set up resident representative offices shall, for the time being, be submitted to the People’s Bank of China for examination and approval.

中国人民银行在审批过程中，要征求中国国际信托投资公司的意见。
In the course of examination and approval, the People’s Bank of China shall consult the China International Trust and Investment Corporation.

五、几个不同行业的外国企业共同申请设一个综合性的常驻代表机构时，向中华人民共和国外国投资管理委员会提出申请，外国投资管理委员会商请有关单位审批。
(5) In the event that several foreign enterprises of different trades jointly apply for the permission to set up a comprehensive resident representative office, they shall submit their application to the Commission for the Administration of Foreign Investments of the People’s Republic of China, and the latter shall examine and approve the application in consultation with the relevant units.

六、由于当前用房十分紧张，外国企业常驻代表机构的人数、驻在期限，由审批机关根据具体情况，从严控制。
(6) Owing to the serious shortage of housing at present, a strict control shall be exercised, by the examining and approving organ in accordance with the specific conditions, over the number of staff of the proposed resident representative offices of foreign enterprises and over the duration of residence.

住房尚未落实的，不予批准。
An application for the setting up of a resident representative office shall not be approved if the problem of housing has not been solved.

一次批准驻在期限最长不超过3年。
The maximum duration of residence, approved on each occasion, shall not exceed 3 years.

期满后如需要延长，外国企业应在期满前3个月向审批机关提出申请，经批准后，向工商行政管理部门申请登记。
On the expiration of this prescribed period, if it is necessary to have an extension, the foreign enterprise concerned shall submit anew its application to the examining and approving organ 3 months before the expiration of the original prescribed duration of residence. And, after obtaining the approval, the foreign enterprise concerned shall apply to the department for the administration of industry and commerce for registration.

根据政府间的协定，需要在我国设立的常驻代表（办事）机构，按《暂行规定》办理登记手续，其人数、驻在期限、登记费等，按对等原则处理。
If resident representative offices are to be set up in China in accordance with agreement between the Chinese government and foreign governments, the foreign enterprises concerned shall go through the procedures for registration in accordance with the "Interim Provisions", and the number of staff of the proposed resident representative office, the duration of residence, the registration fees, etc., shall be handled according to the principle of reciprocity.

七、批准机关在发给申请单位批准证书的同时，应书面通知工商行政管理总局。
(7) The approving organ, while issuing the certificate of approval to the applying unit, shall notify in writing the case to the General Administration for Industry and Commerce.

工商行政管理部门在登记注册后，应及时通知批准机关，国家外资管委、外交部、公安部、海关总署、财政部税务总局。
The departments for the administration of industry and Commerce shall, after the foreign enterprise concerned has gone through the registration procedures, notify without delay the case to the State Commission for the Administration of Foreign Investments, the Ministry of Foreign Affairs, the Ministry of Public Security, the Customs General Administration, and the State Tax Bureau under the Ministry of Finance.

属于信托投资行业的外国企业申请设常驻代表机构，在获得批准和登记后，有关部门应同时通知中国国际信托投资公司。
With respect to foreign enterprises in the trust and investment trade which apply for the permission to set up their resident representative offices, after they have obtained the approval and have gone through the registration procedures, the department concerned shall at the same time notify the case to the China International Trust and Investment Corporation.
与贸促会对口的非营利性外国经济团体申请设常驻代表机构，在获得批准和登记后，有关部门应同时通知贸促会。
With respect to those non-profit foreign economic organizations, which are the counterparts of the China Council for the Promotion of International Trade and apply for the permission to set up their resident representative offices, after they have obtained approval and have gone through the registration procedures, the department concerned shall at the same time notify the case to the China Council for the Promotion of International Trade.

八、《暂行规定》第五条：“逾期没有办理登记手续的，应当缴回原批准证件。”申请人收到批准证件之日起，超过30天未到工商行政管理部门办理登记手续的，视为自动撤销原申请，已发给的批准证件自动失效，并应缴回原批准机关。
(8) Article 5 of the "Interim Provisions" reads: "Those who have failed to go through the procedures for registration within the prescribed time limit, shall return the original certificate of approval". An applicant shall go through the procedures for registration with the department for the administration of industry and commerce within 30 days from the day he/she has received the certificate; if he/she has failed to do so within prescribed time limit, he/she shall be considered to have withdrawn automatically the original application, and the certificate of approval already issued to him/her shall become invalid automatically, and he/she shall be required to return the certificate of approval to the original approving organ.

九、《暂行规定》第七条常驻代表机构“驻在地点”的变更，是指在同一城市内地址的变动。
(9) The change of "the [] of resident office", as mentioned in Article 7 of the "Interim Provisions", refers to the change effected within the same city.

但在同一建筑物内房间号的变动，可不视为驻在地点的变更。
However, the change of room number within the same building shall not be considered as a change of the [] of resident office.
常驻代表机构应及时将变动情况通知当地有关的主管单位和登记单位。
The resident representative office concerned is required to notify, without delay, the case of change of the [] of resident office to the local competent department concerned and also to the department for registration.

由于我有关主管部门的要求，需要外国企业常驻代表机构变更驻在地点的，只办理变更登记手续，不收登记费。
In case that the resident representative office of a foreign enterprise has to change its [] at the request of the competent department concerned of China, the foreign enterprise concerned shall be required to go through the procedures for the registration of the change without paying any registration fees.

十、外国企业常驻代表机构聘请工作人员，应按1981年4月6日公安部、外交部、工商行政管理总局、进出口管理委员会、外贸部联合签发的[81]公发（政）48号文件规定办理，原则上不得雇用第三国人员和在华没有正式户口的中国人。
(10) If the resident representative office of a foreign enterprise wishes to employ staff members, the case shall be handled in accordance with the provisions in Document No.48, signed and issued jointly, in 1981, by the Ministry of Public Security, the Ministry of Foreign Affairs, the General Administration for Industry and Commerce, the Commission for the Administration of Imports and Exports, and the Ministry of Foreign Trade; and, in principle, no individual of a third country or Chinese without regular registered residence in China shall be hired.

但如遇特殊情况，经征得当地外事服务部门或劳动部门的同意，也可以聘用第三国公民或港澳地区人员。
However, in special cases, citizens of a third country or individuals from the areas of Hong Kong and Macao may be engaged with the approval of the local department of service for foreign affairs and of the labour department.

十一、1980年12月8日，中华人民共和国工商行政管理总局《关于外国企业常驻代表机构办理登记事项的通知》第四条规定“已经省、市、自治区人民政府或所属主管部门批准的外国企业常驻代表机构或常驻代表”是指国务院1980年10月30日发布《暂行规定》以前批准的外国企业常驻代表机构；
(11) Article 4 of "Circular Concerning Registration of Resident Representative Offices of Foreign Enterprises" promulgated by the General Administration for Industry and Commerce of the People’s Republic of China on December 8, 1980, provides: "the resident representative offices, or the resident representatives, of foreign enterprises approved by the competent departments of the people’s governments of the province, municipality directly under the Central Government, and autonomous region" refer to the resident representative offices of foreign enterprises approved before the promulgation of the "Interim Provisions" by the State Council on October 30, 1980.

《暂行规定》发布以后外国企业申请在华设常驻代表机构，按《暂行规定》办理。 Applications for the setting up of resident representative offices submitted by foreign enterprises after the promulgation of the "Interim Provisions" shall be handled in accordance with the "Interim Provisions".

十二、外商申请在北京以外的城市设常驻代表机构，除银行业、航空运输业必须直接向《暂行规定》第四条所列有关主管部门提出申请外，其它行业，应根据其业务性质，分别向所在省、市、自治区的外贸局、交通局或国务院其它主管部、委、局对口的厅、局提出申请，然后由这些部门签署意见，转报《暂行规定》第四条所列有关主管部门审批。
(12) In the event that foreign businessmen apply for permission to set up resident representative offices in cities other than Beijing, with the exception of such trades as banking or air transportation - the applications shall be submitted directly to the competent departments listed in Article 4 of the "Interim Provisions", all other trades shall, in light of the nature of their respective businesses, apply accordingly to the local bureau of foreign trade or bureau of communications of the province, municipality directly under the Central Government, or autonomous region, or to the departments or bureaus in the localities, which have a direct business relationship with the ministries, commissions or bureaus under the State Council; and the aforesaid departments shall, in turn, write their comments on the written applications and forward same, for examination and approval, to the competent departments concerned listed in Article 4 of the "Interim Provisions".

十三、除银行业、航空运输业外，外商申请在广东、福建两省设常驻代表机构的，由省人民政府审批；
(13) With the exception of such trades as banking and air transportation, in case that foreign businessmen apply for the permission to set up resident representative offices in the two provinces of Guangdong and Fujian, their applications shall be submitted to the provincial governments for examination and approval.
在深圳、珠海、厦门等经济特区设常驻代表机构的，由省经济特区管理委员会审批。
In case that resident representative offices are to be set up in the Shenzhen, Zhuhai and Xiamen Special Economic Zones, the applications shall be submitted for examination and approval to the provincial committee for the administration of special economic zones.

十四、华侨、港澳同胞、台湾同胞在国外开设的企业要求在国内（包括广东、福建两省及经济特区）设立常驻代表机构，参照《暂行规定》及本说明办理。
(14) If enterprises established and run abroad by overseas Chinese, by compatriots from Hong Kong, Macao and Taiwan, wish to set up resident representative offices in China (including Guangdong and Fujian Provinces and the special economic zones), their applications shall be dealt with reference to the "Interim Provisions" and this Clarification.

十五、《暂行规定》及本说明执行中遇到需要加以解释和解决的问题，由国家外国投资管理委员会负责组织协调处理。
(15) Should problems arise in the course of the execution of the "interim Provisions" and of this Clarification, and that explanation and solutions are called for, they shall be handled through coordination and consultation by the State Commission for the Administration of Foreign Investments.

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