吸引外资法律环境尚待改进

<正> 今年10月31日,九届全国人大常委会第十八次会议通过了关于修改中外合作经营企业法和外资企业法的决定,同意将中外合资经营企业法修正案草案提请九届全国人大四次会议审议通过。这三部外商投资企业法律的修改,主要是为了适应中国加入WTO的要求,根据中国政府在加入世界贸易组织谈判过程中所作出的承诺进行的,说明中国在外商投资方面的法律正在朝着世界贸易组织规则所要求的方向转变。不过,这和中国的三部外商投资企业法律要合并为一的传闻又不一致。本人建议,将这三部外商投资企业法律合并为一部统一的《外商投资企业法》作为过渡,待时机成熟时,最终并入中国的《公司法》实现世贸组织规则所要求的国民待遇原则,从而使外资企业和中资企业都站在同一起点上,享有同等权利,履行同等义务,进行公平竞争。

Further Improvement in Legal Environment Needed to Attract Foreign Investment

On October 31 this year, the 18th Session of the Ninth Standing Committee of the National People's Congress adopted the decision on revising the Law on Sino-foreign Contractual Enterprises and the Law on wholly Foreign-funded Enterprises, agree to submit the draft of the revised Law on Sino-foreign Equity Joint Ventures to the Fourth Session of the National People's Congress. The revision on the three laws on foreign-funded enterprises is to meet the needs of China's entry into the WTO and accord with the promises made by the Chinese Government in WTO negotiations. It indicates that China's legislation on foreign investment is adjusting to the principles of WTO.The revision includes the following aspects: 1. Foreign exchange balance. The requirement that foreign-funded enterprises should solve foreign exchange balance independently fit the condition of foreign exchange shortage of China at the time then. The Chinese government has promised to eliminate all measures inconsistent with the Agreement on Trade-related Investment Measures after China's entry into the WTO. Included are such as asking enterprises to keep a balance of foreign exchange in revenue and expenditure, and to reach a fixed export target for exchange balance. Thus, the elimination of Article 20 in the Law on Sino-Foreign Contractual Enterprises and the Third Item under Article 18 in the Law on wholly Foreign-funded Enterprises is necessary for the WTO entry.2. Priority given to the Chinese market in purchase. The Chinese Government has made the promise of eliminating "local containment requirement" in WTO negotiations, which is revised to "Raw materials and fuels needed by foreign-funded enterprises within the authorized business scope can either be purchased in domestic or international market". This amendment accords with the requirement of market economy.3. Export obligations. To fulfill promises made in WTO negotiations on eliminating "export volume requirement", the Chinese Government has eliminated regulations on enterprises export obligations in the Law on Wholly Foreign-funded Enterprises. And it has revised the stipulations as the State encourages exports and grants enterprises more autonomy in deciding domestic or international sales in light of domestic and foreign markets without government interference.4. Corporate production plan and operation. Regulations on corporate production and operation plan are eliminated to conform to the principles of separating government and enterprises. At present, the legislative organs are examining on WTO related laws so as to establish a more transparent legal system in accordance with the WTO principles. These practices will play an active role in improving China's legal system. On the other hand, law revision itself cannot represent the improvement in legal environment. The improvement and adjustment of legal soft environment are equally important and even more so for foreign investors.First, China's laws, regulations and policies should be made transparent.Second, it is necessary for the legal environment to be further improved. Whether or not the legitimate rights and interests of foreign investors could be protected in China will greatly affect their decision of investing in China.