松绑外资监管，从“全面审批制”到“负面清单管理”（双语）

作为一名工作在一线的律师，实践工作中所接触到的外国企业多数认为中国有关外资进入的法律政策中审批、管制太多，从外资公司设立到解散、从注册资本增减到股东变更、从境内再投资到经营期限调整，事无巨细，只要涉及外资都少不了向“原审批部门”报审环节，全面审批制已然成为限制外资企业发展的紧箍咒，亟需重新构建外资监管模式。
一、解除审批紧箍咒，助力外资企业健康发展
以外资企业的股权转让为例，外资企业股东变更是典型的外资审批事项，按照原对外经济贸易合作部《外资企业投资者股权变更的若干规定》，必须由外资企业持转让双方签订的股权转让协议和企业的董事会决议等文件报批。这样的规定，在转让双方没有发生争议的正常情况时没有问题。
但现实中，不少当事人在转股协议签订之后并没有及时报批，而多年以后随着时过境迁，外资企业股权的价值大幅增值，转让方不愿继续履行转股协议，以致协议双方诉诸法院。看似争议均可司法救济，但由于外资企业股权变更需原审批部门审批这一监管要求，却往往因受让方不能提交外资企业的董事会决议等文件而得不到股权转让的批准，实际股东变更因审批未完成而受限，大量法院判决均不能实际执行。
实践中针对外资企业的“全面审批制”被诟病已久，幸得十二届全国人大常委会第二十二次会议高票审议通过了《全国人民代表大会常务委员会关于修改〈中华人民共和国外资企业法〉等四部法律的决定》，“对不涉及国家规定实施准入特别管理措施的，将相关审批事项改为备案管理”，也即四大自贸试验区的负面清单投资准入模式将在全国范围内推广，外资企业管理实现了从“全面审批制”到“负面清单管理模式下的备案制”的飞跃。
二、外商投资修法对外资企业而言系重大利好
外资监管实行“负面清单管理模式下的备案制”对于外商投资实务无疑是重大利好。
取消全面审批制，极大程度地缩小了外资企业与中资企业的监管差异，只要不涉及“准入限制”，外资企业的设立、分立、合并、解散、增资、减资、变更出资方式、延长经营期限、扩大经营范围等方面均不再需要审批。
有利于增强投资的稳定性。审批制的问题就在于主观性过强，不同地区的不同官员对于相关法律、法规的理解不可能完全一致，因此批准与否具有不确定性。备案制虽然不能完全消除这种不确定性，但将大大增强投资的稳定性，有利于外商投资的信心。
有利于提高投资的效率。审批制下，外资企业需报审事项繁琐且琐碎，往往还需要经过县、市、省多个层级，效率较低，进而妨碍投资者的意思自治，抑制投资的积极性。而备案制后，外资企业可以和内资企业一样，无需商务部门的审批而先行工商登记，再在30日内到商务部门办理备案，同时，投资者可以按照自己的利益制定相应的合同与章程，充分体现公司自治原则。
三、外商投资修法是第一步，还需配套法律法规的跟进
执业过程中，我一直关注和推进外商投资修法，此前我曾建议商务部在自己的职权范围内，尽快废止或修改已经不合时宜的《外商投资企业投资者股权变更的若干规定》等部门规章，努力减轻修法滞后的不利影响。我相信此次外企企业法等4部法修订只是外商投资修法第一步，制定一部管理和促进外国投资的《外国投资法》如箭在弦。
2015年1月，商务部公布的《中华人民共和国外国投资法（草案征求意见稿）》既已提出重新构建“有限许可加全面报告”的外资准入管理制度是想法，大幅取消行政审批。但取消审批后如何推行“负面清单管理模式下的备案制”？如何处理好全国版负面清单与自贸区现行清单的关系？全国版的负面清单是对自贸区现行负面清单进行照搬，还是基于放松监管的大原则予以调整？取消全面审批制后，是全部事项均采用事后备案，还是区分重大变更事项分设事前备案和事后备案两种方式？是否取消外资企业的超国民待遇，实质性落实外资内资平等对待？
本次外商投资修法还仅仅是第一步，加快清理并废除不合时宜的旧法，制定出台适应经济全球化需要和市场经济规则的统一的外商投资法及相应配套，任重而道远。
From "Comprehensive Approval System" to "Negative List Administration": Foreign Investment Regulation Loosened
Most foreign enterprises that I, a front-line lawyer, get in touch with in practical work hold that the laws and policies of China on foreign investment access set up too much approval and regulation that all matters, whether important or trivial, are required to be reported to the "original approving department" for approval, involving foreign investment from the establishment to dissolution of a foreign-invested company, from the increase or decrease in the registered capital to the change in shareholders, and from the reinvestment in China to the adjustment to the operating period. The comprehensive approval system has become a barrier restricting the development of foreign-invested enterprises, so it is an urgent need to establish a new foreign investment regulation mode.
I. The approval is cancelled to facilitate the healthy development of foreign-invested enterprises
To take equity transfer of foreign-invested enterprises as an example, the change in shareholders of a foreign-invested enterprise, which is a typical approval item related to foreign investment, shall be reported for approval by the foreign-invested enterprise by presenting such documents as the equity transfer agreement entered into by and between the transferor and transferee and the resolution made by the board of directors, according to the Several Provisions on the Alteration of Investors' Equities in Foreign-invested Enterprises issued by the former Ministry of Foreign Trade and Economic Cooperation. The above provision will not lead to any issue under the normal circumstance that no dispute arises between the transferor and transferee.
However, in reality, many parties concerned fail to timely make a report for approval after the signing of an equity transfer agreement. After many years, along with the change in circumstances with the passage of time and the sharp increase in the value of equities in a foreign-invested enterprise, the transferor is unwilling to continue to perform the equity transfer agreement, so that both parties to the agreement sue to a court. It seems that such disputes may be settled through judicial relief, but due to the regulation requirement that the change of equities in a foreign-invested enterprise shall be subject to approval by the original approving department, the transferee often cannot get the approval for equity transfer for failure to submit such documents of the foreign-invested enterprise as the resolution made by the board of directors; the change in actual shareholders is restricted due to unfinished approval; and a large number of court decisions cannot be actually executed.
In practice, the "comprehensive approval system" for foreign-invested enterprises has been denounced for a long time. Fortunately, the Decision of the Standing Committee of the National People's Congress on Revising the Law of the People's Republic of China on Wholly Foreign-owned Enterprises and Other Three Laws was deliberated and adopted with a majority of votes at the 22nd Session of the Standing Committee of the 12th National People's Congress, according to which "the relevant approval items not involving the special administrative measures for access prescribed by the State shall be subject to record-filing administration", that is, the negative list mode for investment access adopted in the four pilot free trade zones will be promoted throughout the country. The administration over foreign-invested enterprises is improved greatly from the "comprehensive approval system" to the "record-filing system under the negative list administration mode".
II. The modification of foreign investment laws is a great favor for foreign-invested enterprises
Undoubtedly, the implementation of "record-filing system under the negative list administration mode" for foreign investment regulation is a huge boost for foreign investment practice.
The cancellation of the comprehensive approval system will narrow the differences in regulation between foreign-invested enterprises and Chinese-invested enterprises to the utmost extent. The establishment, division, merger, dissolution, capital increase, capital reduction, change of contribution mode, extension of operating period, expansion of business scope and other aspects of foreign-invested enterprises not involving "access restrictions" will no longer be subject to approval.
The law modification is conducive to enhancing the stability of investment. The issue of the approval system is too subjective. Different officers from different regions never have identical understanding of the relevant laws and regulations, so whether to approve is uncertain. Even though the record-filing system cannot completely eliminate this uncertainty, it will significantly enhance the stability of investment and increase the confidence in foreign investment.
The law modification is conducive to enhancing the efficiency of investment. Under the approval system, foreign-invested enterprises need to report many trivial items for approval, which often involves multiple levels of county, city and province and has lower efficiency, thus hindering investors' autonomy of will and dampening incentive to make investment. However, after the implementation of the record-filing system, like domestic enterprises, foreign-invested enterprises may handle the industrial and commercial registration firstly without the approval from the commerce department and then file with the commerce department within 30 days; meanwhile, investors may formulate the corresponding contracts and articles of association in the light of their own interests, fully embodying the principle of company autonomy.
III. The modification of foreign investment laws is the first step and the supporting laws and regulations shall also be formulated
In the course of practice, I have been paying attention to and promoting the modification of foreign investment laws. I ever advised the Ministry of Commerce to repeal or revise the Several Provisions on the Alteration of Investors' Equities in Foreign-invested Enterprises and other departmental rules that have become inappropriate as soon as possible within the scope of its functions and powers, trying to reduce the adverse effect of lagging law modification. I believe that this revision of the Law of the People's Republic of China on Wholly Foreign-owned Enterprises and other three laws is just the first step of the modification of foreign investment laws, and it is imperative to formulate the Foreign Investment Law to administrate and facilitate foreign investment.
The Foreign Investment Law of the People's Republic of China (Draft for Comment) promulgated by the Ministry of Commerce in January 2015 has put forward the idea of establishing a new regulatory system for foreign investment access featuring "limited licensing plus comprehensive reporting", and is intended to substantially cancel administrative approval. It is an urgent need to clarify the following issues: how to promote the "record-filing system under the negative list administration mode" after the cancellation of approval? How to properly deal with the relationship between the national negative list and the current list adopted in the pilot free trade zones? Is the national negative list formulated by completely copying the current negative list adopted in the pilot free trade zones or by making adjustments based on the major principle of loosening regulation? After the cancellation of the comprehensive approval system, are all the items subject to ex post record-filing, or are ex ante and ex post record-filing set up respectively for changes in significant items? Whether the super national treatments for foreign-invested enterprises should be canceled in order to substantially perform the equal treatments for foreign and domestic investment?
This modification of foreign investment laws is just the first step. It is a long-term, arduous task to speed up the clearing and repeal of inappropriate old laws, and formulate and introduce unified foreign investment laws and the corresponding supporting ones that meet the needs of economic globalization and conform to the rules of market economy.