Foreign-controlled joint ventures on the legislation to reflect

Keywords: Sino-foreign joint ventures / foreign-owned / value game / legislation to reflect

Summary: Foreign Investment in China has experienced a calling foreign Investment, foreign expansion and foreign-owned,-controlled city of three stages. Controlling foreign Investment in China's history reflects the practice of foreign-controlled phase with the original intention of China's foreign Investment legislation discrimination contrary, China's Economic Development marginal contribution rate have a negative effect, mainly due to China's current Laws on foreign ownership under the new situation of China's lack of response, mainly Industry-oriented foreign policy anomie, lack of controlling the proportion of upper limit, holding mode is not perfect, the approval authority controlling chaos, holding Rules of the lack of fit and so on. respond to the legal response to foreign holding includes three aspects: First, as soon as possible to modify <<Foreign Joint Ventures>> prohibit or restrict foreign ownership, the second is to develop a unified <<M & Law>> to restrict the or prohibit the holding of foreign mergers and acquisitions, supporting the improvement of the legal system. the holding of foreign mergers and acquisitions as the main method, supplemented by supporting the Law, to jointly cope with the Economic Development of foreign holding on the negative effects.



First, the trend of foreign Investment in China holding the dynamic analysis

China's foreign Investment began in the late 1970s, the reform and opening up, from the PArty's Third Plenum of the major decisions made by the reform and opening to the Communist PArty Congress held in victory today, foreign Investment into the Chinese market nearly three years in this journey of nearly three decades of reform and opening up, China from a planned economy to a market economy in the transformation of the market, foreign investors in China's Investment strategy and policy has undergone a qualitative change, a joint venture by the sporadic and random, exploratory Investment towards large-scale, systematic acquisition of holding strategic Investments, we can put nearly three decades roughly divided into three phases: from 1979 to 1992, this is the first stage, that is determined from the Third Plenum Deng Xiaoping's reform and opening up to the 1992 southern tour speech, we call this the call for foreign investment stage. At this stage, the Chinese government is cautious, reform and opening up in the end and opening to what extent, is not very clear at this time also foreign exploratory investment, investment in new investments mainly in the way, that the establishment of joint ventures , joint venture investment in China as the main form of investment subject to Hong Kong, Macao and Taiwan investors are mostly concentrated in the area of ​​investment and more labor-intensive industries, direct investment, less controlled circumstances, although the proportion of foreign-owned projects, foreign amount, the number of items increases every year, but foreign direct investment in China Holdings and the total foreign investment in China is still less than the amount.

From 1992 - 2001 This is the second phase, from Deng Xiaoping's southern tour speech to China's accession to the WTO, we call it foreign expansion phase, at this stage, after 80 years of repeated introduction, duplication, duplication of production, leading to production and higher levels of market concentration, market competition, many enterprises in the fierce market competition, survival and Development in the face of crisis, the domestic market and foreign competition, foreign competition situation, in order to overcome the crisis and out of the woods, opening up of the Chinese government expanding, with preferential policies to attract foreign investment, while foreign investment after the first phase of exploratory familiar with China market and become more experienced operators in China, they believe that opening up our government's determination, it is optimistic about China's vast market prospects. Kodak's chairman Peixue De said: "As long as China has half a year making a film filled with 36, enough to expand the imaging market, 25 percent of the world, China's market potential than any other place to be generous." [1] this stage, foreign-owned enterprises in China developed rapidly, expanding, and equity requirements for more investment from the "green investment" to cross-border M & A Holdings, investors from the Hong Kong, Macao and Taiwan, mostly into the United States, Japan, Europe top, investment and technology from the labor-intensive to capital-intensive industries.

Foreign equity from the point of view, since 1992, increasing the proportion of foreign equity, while the decline in the proportion of equity in China, mainly foreign-owned enterprises may lead to an increase in the proportion. In the form of foreign expansion also occurred at this stage mutation mainly in four areas: (1 shift from joint ventures mergers mergers and acquisitions (M & 2 shift focus from the general mergers and acquisitions, so-called key mergers and acquisitions, acquisition of one large state-owned enterprises, is the key acquisition of profitable business, (3 from the scattered M & M turned to focus on, that the purpose of foreign investment the same area of ​​mergers and acquisitions or merger of all state-owned enterprises in different regions of the backbone or the same Industry leading enterprises, (4 from holding shares to control the export market.

From 2001 to now, this is the third phase, from China's WTO victory to the Communist PArty Congress was held. Foreign investment in China by the acquisition of controlling the expansion phase to the holding stage of Development of city control, which is mainly reflected in the foreign-conscious in some industries and regional control and the formation of quasi-control of the situation. multinationals Artificially Chinese market system into their global strategy into the Chinese market for large-scale, systematic integration of the Chinese side is just as multinational companies enter the Chinese market, a carrier is multinational companies with global strategic investment in a chain node or a processing base, from a point of view, we use the marginal effect of foreign capital at this time has become zero or negative, ie, not in foreign investment, but foreign investment in the use of us, with our legislation contrary to the purpose of foreign capital, is where we should be especially vigilant. anything more than a "degree", things will inevitably move toward the opposite. Here we are dead after a foreign-owned new features, new trends for Further dynamic analysis:

First, the holding means from the perspective of foreign investment, mergers and acquisitions efforts to increase foreign ownership, according to statistics, as of 2004, according to sales revenue targets, foreign investment in manufacturing and communications equipment, apparel manufacturing, sports goods, fur manufacturing Industry in four the proportion accounted for more than 50%, according to the calculation of profit targets, foreign production of cameras and fax machines of the market share of 99% and 98%, 75% medium-sized computers, cars and electronic components are 70%, 63% machine , micro-computer 60%, showing that foreign investment in China Holdings has intensified, companies and even to seek the intention of controlling the Industry have become increasingly apparent [2] of foreign capital from the holding or a joint venture to wholly-owned, reflecting foreign investment into the Chinese market, the company's overall Development, integration strategy on a global scale, that is in the world to share their sources of supply, human resources and technology, management experience, only the joint venture has the absolute controlling stake in order to achieve this goal.

Second, the field of view of foreign investment holding, foreign-owned key industries from traditional industries to penetrate. In recent years, foreign ownership from traditional industries to high-tech, high value-added and the tertiary Industry forward, and to continue to education, media and other ideological infiltration. Specifically, the acquisition of state-owned foreign-controlled enterprises are mainly concentrated in four industries: market prospects are very promising, capital-intensive and high technology, and industry has a certain number of foreign manufacturing, such as domestic manufacturing in the automotive, appliance, petrochemical, machinery, etc., the second is obvious scale circulation, mainly wholesale and retail as well as large-scale comprehensive supermarkets and other industries, the three are being eliminated into the limits of the original monopoly industries, such as trade in services and finance and insurance industries, the four are pArt of the high-tech industries such as telecommunications and pharmaceutical industries. [3]

Third, the principal investment holding and regional point of view, the main investment holding units by the Hong Kong Olympic SMEs into the world's leading multinational corporations, investment in the region increasingly expanded the world top 500 in more than 400 to China's investment, investment holding area Although mainly located in the eastern coastal areas, but in recent years in the Midwest there is a certain development, and investment from a foreign region to invest in the mainland of a high concentration, such as Guangdong and Hainan provinces to Hong Kong and Macao invested mostly in the majority of Taiwanese investment in Fujian Province, the Korean Investment in Shandong Province, mostly in Liaoning Province to invest mostly in Japan, and Shanghai places the majority of U.S. investment.

Fourth, foreign-invested holding large-scale, systematic and the extent of so-called systematic investment is the only multinational company to invest in a separate, but also an industry, the middle and lower reaches of the various stages of the product or associated horizontal business and industry investment or the production, distribution, sales or customer service and other aspects of the longitudinal or investments in systems they have invested in both the final product, but also on parts, grasping both the production and in R & D, sales and after-sales service, the also supporting the investment-related production, and selectively set points in various parts of China; some multinational parent company to implement deep integration strategy in China only for the production of a part or assembly of a product line, they are the parent company part of the global production system and its supporting system is global, driven by the development of global affiliates, is not associated with our industry, whether the choice of investment in China, multinational corporations must be subject to the overall development strategy, and some multinational corporations In our R & D centers and regional headquarters, in order to complete their unified strategy toward China. [4]

Second, the foreign holding practice and purpose of the value of China's foreign investment legislation Game

The original investment by China's foreign investment legislation, mainly to foreign investment to solve three problems. First, solve the shortage of domestic capital, foreign investment holding an inventory of the stock of assets of state-owned enterprises, redundant construction in our country due to the formation of a large number of excess production capacity direct surface on the international market, using their global marketing network resources to expand state-owned enterprise's survival and development space, the second is to solve the problem of technological backwardness of domestic enterprises, with the market for technology, take full advantage of multinational companies investing in the technology spillover effect, enhance China's technological innovation capability of enterprises, third is to solve the low level of domestic corporate governance problems and lack of management experience. controlling the use of foreign mergers and acquisitions, learn from their advanced management concepts, management tools and marketing techniques to promote the state-owned enterprise "software" of resources to enhance and promote modern enterprise system construction and improvement, strengthening the basis for enterprise development, which we want to achieve the use of foreign capital, however, foreign acquisition of controlling the starting point of our business is not to help our business turnaround and restructuring. the practice of holding more attention to foreign acquisition advantage complement each other, not both small and great, strong helping the weak, and its fundamental purpose is to achieve its global strategy, and thus seek to maximize profits. foreign both goals in the pursuit of value differences, we in the use of foreign capital, foreign We also use, in which there are differences in the value of the game, harmony and win-win situation only by constant struggle and compromise to maintain, which is foreign investment in China and strive for holding the value lies.

The reason why multinational companies in pursuit of a controlling interest in investment practices, the first is related to technical security issues. Technical advantage is the lifeblood of multinationals. Harvard University professor Richard E · Kaifu Si that multinational companies to engage in overseas investment advantages, the most important investment companies should be mastered by advanced technology, efficient management of knowledge and other intangible assets. multinationals use of technological advantages of foreign investment, would inevitably lead to the transfer of technical advantages [5] how to control the spread of technology in the enterprise, multinational companies are most worried about the problem, according to the ownership advantage theory, the more high-tech industries, the more foreign control options into high, on the contrary, the more mature industries, control foreign access to more choice low. Foreign-invested enterprises, the level of advanced technology is proportional to the extent of its holding requirements In order to ensure technological superiority to achieve full, multinational companies owned or controlled more inclined to take way to invest in China, the only way to be more high-end products and production technology transfer over, and take the global harmonization of intellectual property protection measures will be accessible technology to protect their advantages [6] In a sense, technical control is more important than the stock control, because the holding and control technology exchange, making the control Stock sometimes meaningless.

Second, you can reap greater profits. In accordance with Western accounting system, is a joint venture holding company is considered a subsidiary, all of its assets can be credited to the parent company, outside of the total balance sheet, in so doing can Overseas stock markets financing, through the listing of earnings will exceed its purchase of state-owned enterprises in the country when the original capital injection, and during the holding in M ​​& A snowballing, grab more profits, "Zhongce phenomenon" is proof. in accordance with international practice , the holding company for its subsidiary's assets, business and efficiency have control over, but the loss of business or investment property in addition to its failure risk, do not assume any responsibility [7]

Again, it helps foreign-controlled enterprises into its parent company to subsidiaries or affiliates, to facilitate its occupation of Chinese assets. Given China's current Laws and regulations for small shareholders lack the necessary protection, or that the legislation is some of the deficiencies in the within the large corporate interests of shareholders and minority shareholders during the game, small shareholders can not help but be hurt, as a major foreign shareholder easily through reinvestment, to determine prices, raw materials purchasing, merchandise trade, technology transfer, guarantees and other means for others minority shareholders in equity capital into its own, and thus against the interests of China.

Finally, the parent company's control and ease of management. Multinationals in order to effectively carry out its strategic intent, the joint venture enterprise for more effective management and control, but also tend to holding TNCs investing in China acts as a whole, the M & A activity have plans, goals, step by step, with clear long-term strategic intent. the Chinese market as a whole, to consider the company's investment and development in some areas, the foreign holding merger intentions very clear in order to bring China into the overall development strategy of multinational companies, only to master a controlling stake in order to achieve its strategic intent. After holding a successful multinational companies, can take advantage of international tax differences and other policy differences between the transfer of funds, to evade taxes, weakening the control of foreign exchange, to seek maximum profits based on the same industry or same area of ​​the backbone enterprises and leading enterprises to control or quasi-control.

From the above analysis, we found that more clearly: we want to use foreign capital to solve financial difficulties, and foreign investors, it was like to lack of funds from the Chinese market, grab more profits, we would like to use market for technology, and foreign investors, it wanted to use Chinese market to maintain its technological advantage in the pursuit of value in this game, the practice has been to host foreign holding a tremendous impact on the national economy, pose a serious threat to a sense, this merger has been a threat to the host holding the economy sovereignty and Economic security. foreign-owned practice with the aim of China's foreign investment legislation relative to discrimination contrary.

Third, analysis of the negative effects of foreign-controlled

In a market economy, the expansion of enterprises, mainly mergers and the sale of shares, transfer and other ways, this is a market based on the principle of independent behavior, is the enterprise from product expansion and development to finance the expansion of industrial expansion and important way of capital expansion, the goal is to maximize profits. This corporate behavior is objectively conducive to capital in different industries, the flow between different enterprises, can effectively promote the Economic structure adjustment and optimization of resource allocation, follow the normal trend of Economic globalization, and social economic development of large-scale production and market trends are compatible.

Objectively speaking, the introduction of foreign capital in the first phase is indeed to promote development of national economy, accelerate China's economic system from a planned economy to a market economy, optimizing the economic development needs of economic conditions, but later with China's further opening-up policy expansion of foreign acquisitions in some industries or holding areas for the formation of our control or quasi-control of the situation, the holding of foreign mergers and acquisitions have been the objective of the enormous impact of China's national economy and a serious threat impact and threat of such negative effects mainly in :

(A threat to national security, undermine the economic position of the socialist public ownership

Foreign investments are looking for those holding technical, market and good economic returns of state-owned enterprises, some enterprises are the pillar industry of national economy, foreign investment in these enterprises is directly related to holding national security and national economic sovereignty. Foreign holding would reduce the state-owned economy in the national economy, shaken and influence public ownership as the mainstay of the economy. China <<Constitution>> Article 7 stipulates: "the socialist state economy that is state-owned economy, national economy dominant force in the State to protect the consolidation and development of state-owned economy. "Hong Kong in 1992 in Quanzhou, Fujian Province China Strategic Investment Ltd." acquired "the city of all 41 state-owned enterprises, and industry-wide implementation of Dalian Light Industry Bureau grafting, foreign holding 51% foreign investment in many parts of the present into the establishment, through the acquisition of controlling a wide range of ways to monopolize the domestic market, dismembered complete national economic system, China's public sector, in particular, the dominance of state-owned economy and pose a huge impact and serious threat.

(B monopolize, weakening our government's macro-control ability

Transnational "nature" is the pursuit of monopoly reap monopoly privileges to extract monopoly profits, it may be depressed once to control the market competition and reduce market efficiency, distort the market structure, reducing social welfare present in some of China's industries, multinational companies have the formation of a monopoly situation, for example, in the light-sensitive materials, cosmetics, detergent industries that commodity markets are controlled by multinational companies. carbonated beverage industry, radio communications, control almost 100 percent foreign investment in recent years, China's banking also unwittingly controlled by foreign capital, [8] This greatly weakened China's fiscal and monetary policies on the social scale of investment regulation and control. multinationals is a self-contained independent economic entity, with its global business strategy. foreign Once an industry monopoly, it will by the parent company's global strategy to implement its business strategy in the host country. In a sense, the degree of foreign mergers and acquisitions holding capacity of the host country's macro-control is inversely proportional holding of foreign acquisitions in China industry, particularly in banking sector of China's macro-control in recent years, the main setback in many companies or industries have been under the control of foreign investment, continue to use the traditional double tight fiscal policy for macro-control do not control it, a steady stream of foreign investment into itself is a negation of the central government tightening, "tight" only the role of domestic enterprises, resulting in difficulties in the domestic business, the objective of cheap foreign capital will help control the hand, Chinese enterprises, including two high-speed industrial development of many industries, would ultimately result in the central government's macro-control goals to nothing.

(C loss of state assets

Foreign M & A focus on the brand control, the controlling position in the enterprise, the general business after the acquisition is still required along the Chinese brand sales channels of foreign brand goods, which has been idle for a certain reputation in the market of domestic enterprises of various brand names, and in order to continues to expand its influence in the Chinese market, usually provided by a certain percentage of sales for product promotion and advertisement, but part of the costs can only increase the value of intangible assets, foreign brands, resulting in rapid loss of the Chinese state-owned intangible assets.

In addition, the foreign holding position obtained after the transfer pricing by affiliated enterprises, but also the state's tax assets. Multinationals use transfer pricing and international tax differences in other policy differences, transfer of profits to evade taxes, avoid foreign exchange risk, weakening the host country, exchange control, seek to maximize the overall interests of multinational corporations as a preferred means of transfer pricing rules is actually a distortion of the market economy, the price is neither determined by the cost, not determined by supply and demand, which is based on the principle of maximizing the overall interests of multinational corporations determined TNCs use of internal sale of products related party transactions, through the "high-low" approach to transfer pricing to shift profits, the joint venture at a loss. This virtual loss-avoidance manner, resulting in state-owned assets.

(D impact of domestic brands, undermine China's independent innovation capability

After the holding of foreign mergers and acquisitions, and some use of Chinese brand-name production capacity and sales channels, to launch its own brand, gradually reduce until stop using China trademarks, some of the Chinese trademark located in the low-end products, China's reputation and value of the mark fall Some provisions within certain disabled Chinese trademarks, Chinese trademark slowly replaced by a foreign trademark. [9] is a brand asset, according to <<International Accounting Standards>> assets is defined as: business owns or possesses, can bring about the current and (or the objective existence of future earnings. After numerous proven brand current and enterprises can (or future earnings, and owned by the enterprise, therefore, the loss of the brand is essentially a loss of intangible assets, the resulting direct consequence of hindering the healthy growth of domestic enterprises, the country's long-term development, the Chinese competition in the international community is undoubtedly a great loss. the technology and equipment to do a joint venture joint venture in China to bring advances in technology products, but these techniques are mainly applied technology, and is not advanced technology, multinational companies are generally not transferable development of technology, and some even have to stop, Kongzhi Chinese technology for their learning and mastery of technology demonstration and spillover effects has become zero, therefore, we "market for technology" The strategy did not achieve the desired results, the joint venture did not achieve real technological progress and improve China's international competitiveness, increased domestic competition, but because the motivation for foreign investment in China's market and profits, rather than the Chinese Church of advanced technology, especially In the foreign-controlled joint ventures, the right to reduce foreign investment in research and development costs, and weaken the innovative capability of enterprises, even the existing joint venture or technology transfer has been developed out of advanced, produce adverse spillover effects of technology and what is more, to China's technology research and technical staff dissolution, and then tap the Chinese low-cost technical personnel for the multinational study of the localization of new products. market for technology by developing countries and China, proved impossible to attract investment, technology No change to have lost a promising Chinese market.

(E squeeze the market share of domestic enterprises, resulting in massive unemployment, an increase of government and social responsibility

China is a huge population and sustained rapid economic development of developing countries to invest in foreign markets point to a clear, according to the third national industrial census data, foreign-invested industrial enterprises in sales, domestic sales accounted for 64.8%, exports accounted for 35.2 % foreign investment are concentrated in some industries, foreign-invested enterprises in the higher proportion of output. wholly-owned industrial enterprises accounted for the object, according to sales revenue, foreign-invested enterprises accounted for more than 50% of the electronic industry and communication equipment manufacturing industry in four sectors, accounting for 30% to 50% of the industry Instruments and supplies machinery manufacturing industry in four sectors accounted for 20% - 30% of the wood processing industry in seven industries with foreign investment company's products are sold in relatively large proportion of the domestic market, is bound to the domestic business market share and operating conditions have a significant impact [10], crowding-out effect on domestic enterprises. In addition, foreign acquisitions of Chinese enterprises, the bound to target company staff reorganization, the spirit of "fine to coarse to stay" principle, the employment of staff will be reduced from the practice of China's foreign-owned, foreign acquisition of a holding company, not only resulted in the company laid off staff, and often across a crowded industry, resulting in massive unemployment, the large number of unemployed workers eventually were forced to the society. the flow of society vulnerable to social unrest laid-off workers, impact from the economic chaos, this objective to increase the social and government responsibility.

Fourth, China's current legal form of a new deal with the lack of foreign-owned

By controlling the negative effects of foreign-analysis, we can see that foreign investment in China's social economic development and the contribution rate was lowered into a negative performance in some areas, holding areas against foreign mergers and acquisitions has expanded each year and the depth and extent, " blocking "(into the ban on foreign investment does not work, only" sparse "(guide foreign holding, and" sparse "it is necessary to identify the foreign ownership of China's economic development into the negative effects of the obstruction where it is. remedy, must not be blindly We believe that some of the utilization of foreign capital into China's current marginal negative effect, mainly due to the existing Law on the new form of lack of foreign-controlled response:

(An industry-oriented foreign investment policy anomie

The current scope of regulation controlling the normative documents issued in 2002 and revised in 2004 <<Foreign Investment Industrial Guidance Catalogue>> under the new Industrial Guidance Catalogue, the real key is to prohibit the industry Defence industry, journalism, radio and television industry, China has the advantage of traditional light industry, the state's wildlife resources and the protection of rare varieties, green tea, specialty tea, etc., or modifications are allowed other industries to allow foreign-owned, foreign-owned range can be too large, the only requirement to accounted for by the state-owned asset holding or leading position on the ownership in the industry to measure the orientation is not appropriate, the competent authorities and industry associations have not done enough guidance, adjustments are not timely, Foreign Investment Industrial Guidance Catalogue authority for the promulgation of the National Development and Reform Commission and the Ministry of Commerce, the effect of a lower level, making the guide is not enough, for modifications or prohibit foreign-owned projects dismember the lack of effective regulatory mechanisms.

(B holding the lack of upper limit ratio

<<Foreign Joint Ventures>> Article 4: "The joint venture's registered capital, the foreign partner's investment ratio is generally not less than 25 %",<< Acquisition of Domestic Enterprises by Foreign Investors requirement>> (2006 Amendment Article 7: Foreign investors in the acquisition of foreign-invested enterprises established after the registered investment capital of more than 25% of the enterprises with foreign investment enterprises to enjoy the treatment. shows that China's current laws on foreign investment ratio is only provides a lower limit, there is no cap on the reform and opening up, the lowest proportion of foreign investment law is intended to increase the amount of foreign investment funds to cover the serious shortage of domestic funds at that time, but also to increase foreign economic interests in joint ventures to enhance their concerns and improve the business sense of responsibility, filling in the domestic capital today, the newly revised laws and regulations except in the <<Foreign Investment Industrial Guidance Catalogue>> in the amount of shares to certain industry restrictions, generally do not limit the number of shares of foreign investment, continue to give foreign investors a controlling stake, which is the smooth holding of foreign capital, the holding company into its subsidiary bodies, the occupation of state-owned enterprise assets, and thus control the lifeblood of our national economy, providing legal support.

(Three foreign acquisitions holding the lack of legal regulation

Foreign Investment Law provides only three foreign companies to the new way of direct investment, foreign holding is in mergers and acquisitions are not involved, although the state Economic and Trade Commission in August 1999 by enacting the <<foreign acquisition of state-owned enterprises Interim Provisions> > clear that foreign firms can participate in mergers and acquisitions China's state-owned enterprises, but in mergers, acquisitions and operating procedures is as yet no concrete, operational measures, but also in practice, has acquired controlling the emergence of new forms of regulation are not synchronized promulgated .2006 The <<Acquisition of Domestic Enterprises by Foreign Investors provisions of "Article 4 paragraph states:" In accordance with <<Foreign Investment Industrial Guidance Catalogue>> does not allow foreign investors, sole proprietor of the industry, mergers and acquisitions may cause foreign investors to hold Enterprises of all shares to be controlled or relatively controlled by the Chinese industry, the industry's enterprises have been mergers and acquisitions, China should still be accounted for in the enterprise holding or controlling the relative position, to prohibit foreign investors to the industry, mergers and acquisitions of foreign investors may not companies engaged in the industry. "Although the administrative regulations related to foreign acquisitions in investment holding, but in mergers and acquisitions of foreign holding rule is still unclear, non-specific.

(Four foreign holding approval authority chaos

China has yet to establish a dedicated and effective approval system of foreign mergers and acquisitions, used to guide practice some provisions of examination and approval of foreign acquisitions, there is a lower level and government than many, even conflicting issues <<transfer market to foreign state-owned shares and legal person shares the company issues a notice>> in the examination and approval authority up to forty-five expression, involving the Commission, the Ministry of Finance, the former Economic and Trade Commission and the Foreign Exchange Administration and other ministries and from the Ministry of Foreign Economic and Trade Commission in 1997 release of "foreign-invested enterprises to change the number of equity investors, provides>> you can see, if you want to mergers and acquisitions of foreign enterprises in China are required and the business sector, asset evaluation agencies, the state-owned assets management department and other agencies to deal with, long processing time, approval of ineffective , good projects approved agencies cannibalize each other, no good project, the Selection Committee with each other, thus forming a kind of irresponsible and chaotic situation of holding the approval, but also for the smooth holding of foreign capital to provide a favorable platform.

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(Lack of fit of the five holding rules

Many of our acquisition of controlling rules have not align with international practice, in fact, not a specific legal rules on the holding provided, in a sense, the full provisions of the rules of law or holding a vacancy. Asset evaluation system, for example, China's asset evaluation system is based on the book value of assets subject to replacement, while the international arena is its actual market price, the two different assessment system, a larger difference between the assessed value of the assets , while the foreign press only accept international assessment system evaluate the asset value, resulting in our current assessment system assess the value of the assets tend to have no market price. Again, promotional fees, marketing costs, according to the current accounting treatment, As production costs, this approach led to decline in corporate equity capital as well as damage to the interests of China, etc., required by both Chinese and foreign rules of the lack of fit of the holding.

In addition, China is not a legal motive to be provided for foreign holding, including the current policy not to discuss foreign-controlled motivation and empirical analysis of the requirements.

Fifth, the legal response to deal with foreign-owned

Foreign Holdings of the legal response should include three aspects: First, modify the existing foreign investment legislation, in principle, prohibited foreign ownership, the second is to develop as soon as possible mergers and acquisitions law, the provisions of chapter controlling question of foreign mergers and acquisitions, and the third is to develop or improve regulation controlling the relevant supporting legal system.

(A revision of the existing foreign investment legislation, in principle, prohibited foreign-owned

China's current foreign investment legislation in the relevant legislation to encourage foreign holding is mainly reflected in the <<foreign joint ventures>> and <<on the Establishment of Foreign Investment Co., Ltd. Interim Provisions on Several Issues>> and "Acquisition of Domestic Enterprises by Foreign Investors of provides equity investors in foreign-invested enterprises >>,<< change certain provisions "and other laws and regulations, we should modify these regulations as soon as possible, in addition to our <<WTO accession protocol>> promised foreign investment can reach 51% equity holding individual allow foreign investment in the industry and some up to 50% or 49%, the abolition of other industries and foreign joint ventures with foreign investment shall not be less than 25% of the relevant provisions, and expressly requires foreign investment ratio must be controlled at 40% -25% of the between, some industries in accordance with <<Foreign Investment Industrial Guidance Catalogue>> and other relevant laws and regulations, the proportion of foreign investment must also be 25% or less, shall be in accordance with existing regulations.

In addition, we also need to modify the foreign investment legislation of the majority shareholder abuse of dominant position, abuse of controlling the necessary restrictions on foreign and foreign joint venture acquired a controlling interest in the law, the board shall be by modifying the rules of procedure, rules of procedure of general meetings and other content to be limited, even if the law allows foreign investors to obtain a controlling stake in Chinese joint venture partners can not be arbitrarily or against national interest and the interests of employees.

(B formulation <<M & Law, "the provisions of chapter problems of foreign M & A Holdings

In the development of <<M & Law>> the provisions of chapter problems of foreign mergers and acquisitions before holding various levels should be relevant to my current foreign investment normative legal documents in order, integrate and absorb the essence remove the dross, for the development of <<M & law>> for bedding in the <<M & Law>> clearly stated in principle, prohibits holding of foreign mergers and acquisitions, for we have promised to allow foreign ownership of industry or Chinese-foreign joint ventures have been set up to allow foreign ownership contract, to the following aspects should be regulated:

1. Establish the motivation for censorship of foreign holding

From a macro point of view of foreign holding is not a simple economic problem, to a certain extent, is a political issue and the issue of sovereignty. It is related to a country's economic security and economic sovereignty, therefore, the foreign holding on the issue from a strategic perspective to examine the foreign holding motivation determines behavior after the direction of foreign holding, holding motivated misconduct, even if the project is to encourage foreign-owned, can not easily allow foreign-owned and once holding would weaken our government's regulatory capacity of foreign investment, the impact of China's Government decision-making of China's overall economic development, although motivation is a subjective abstract thing, but it is a characterization and signs, which requires approval of department officials that we want to go official, entered the market motive for holding foreign manifested Characterization and evidence search, and for empirical analysis, empirical review of production reports of foreign controlled and foreign motives after controlling market share forecast report to the contrary motives censorship, examination and approval departments and their staff on courses to strict liability.

2. Use of foreign investment in industrial policy-oriented system

Use of foreign investment foreign investment in industry-oriented policy is holding hands, but also foreign-owned business "electric fence." We have to the existing <<Foreign Investment Industrial Guidance Catalogue>> re-search, sort and improve it as << M & A law>> in a chapter or section to be provided. be noted that taking into account the acquisition of controlling the variability of practice, we <<M & law>> in the Catalogue of Industries for Foreign Investment in principle can only be provided for specific Holding the project we can, "M & A Law Enforcement Regulations>> to be provided so that for us based on the actual situation of China's economic development, timely adjustment of holding the project. controlling industrial policy to develop the principles of acquisition should be in the socialist market economy institutional framework, according to the state's position in the national economy and the role of the industrial distribution structure should be, based on state of development of productive forces determine the foreign firms can participate in the industrial areas of mergers and acquisitions in order to achieve the maximization of the interests of China [11]

According to this principle: whether to allow foreign holding should be adhered to based on: involving national sovereignty and security industries, infant industries and leading industry must not holding the domestic blank, or is too far behind the advanced world level, is more difficult to rely on their strength in the near future发展的产业应允许在一定时期内控股,允许旨在引进先进技术替代进口的外商在一定期限内控股,对以开拓国际市场为主的(如70％以上应允许外商控股,对以国内市场销售为主的应具体分析:对引进填补国内空白、创造新市场的可允许控股,对能迅速增大市场容量的可考虑同意控股,国内市场已饱和,属于占领原有市场的应不许控股,市场利益大、技术障碍小、易造成垄断的行业或产品应不能随便允许控股,国家吸收外资试点或实行专卖的产业应不许控股.对允许外方控股的产业,应规定合资企业的经营年限,原则不能超过20年,应根据经济发展状况,每年修改产业政策导向目标,适应我国经济发展的需要.[12]

3.控股比例调控制度

我国现行外资立法对外资控股比例只规定下限,没有规定上限,这种外资控股比例立法模式刚好适合了外资对我国经济并购控股,给外资并购控股中国市场起到了推波助澜的作用,我们认为在<<并购法>>中,有关外资控股比例的制度设计,建议表述为:在合营企业的注册资本中,一些关系国际民生的产业控股不得超过49%,但不得低于25%.改变过去对注册资本只规定下限的立法方法,使我国外资立法与入世承诺相协调一致.这样,既能强化外商在我国投资应当承担的企业责任和社会责任,又能强化我国政府对外资的宏观调控能力.

对外商控股比例除了上述原则性的规定外,还应依据我国产业结构、产品结构和区域经济的发展状况等作出例外规定.因为关系国民经济命脉的经济领域是动态发展的,过去一直被世界许多国家认为是居于国民经济命脉的领域,如电信、交通运输等,如今随着经济社会发展和开放进程的深入也会被越来越多的纳人开放领域.也就是说,外商控股比例存在一个"时效性"问题,需要特别强调的是:外商控股比例"时效性"的审批权应放在国务院.因为国务院最能从全局来调控外商控股对象的时效性.安第斯条约国对外国投资者要求法定年限内逐步降低股权比例,使其成为"本国公司"或"混合公司".适度的控股比例,不仅能有效地遏制外资行业垄断地位的形成,还能增强我国政府对利用外资的宏观调控能力.

4.控股方式规制制度

随着外商投资的不断扩大和深入,外商在我国的控股的方式表现出变迁性:原始控股(在建立合资企业初期,就由外方控股.增资控股、并购控股,而并购控股又表为多种形式:协议收购一定期增发股、新建型的间接收购一购买型的间接收购一定向发行和转换债券一其他模式.[13]而这些新出现的控股方式,我国现行三部外资立法没有规定,虽然2006年修订后的<<关于外国投资者并购境内企业的规定>>第2条规定了并购的类型:股权并购和资产并购,但对外商投资控股的方式并未作出系统的、前瞻性的规定.外商有可能在控股方式上,利用法律规定的滞后性和经验不足,侵吞我国国有资产.鉴于此,我们必须在<<并购法>>中设置并购控股方式,对已经出现的并购控股方式,建议采用列举性立法,对可能出现和现在还未能预测的新型的控股方式,建议采取概括性立法.这样既能保证立法的稳定性,又能对新型的控股方式作出应对性的规制.

5.并购控股审批制度

依据<<中外合资经营企业法>>(2001年第2条和<<中外合资经营企业法实施条件>>(2001年修订第6条规定可知,我国外资立法只对合营企业设立审批机关进行了规定,没有对控股审批制度进行规定,这包括外资控股审批的主体、控股审批主体的审批权限、控股审批主体的职责、违法审批的法律责任、审批主体变更等问题.西方发达国家对外资并购本国企业规定有完善的调控审批制度.我国可以根据实际借鉴之.我们认为:(1对涉及国家安全,和产业安全,危及社会主义公有制主体地位的领域,由国务院出面设限审批.(2对超过一定规模的外资控股的项目,国有大中型骨干企业对外商出售股权,以全部(或部分国有资产与外商建立外商控股企业等项目,由行业主管部门会同国有资产管理部门预审后按项目性质报国务院审批.(3控制权属于地方政府的项目与外商合资时,一般由地方政府审批,但审批结果应当报国家发展和改革委员会、行业主管部门和国有资产监管机构备案,发现地方政府审批存在违规违法行为,可以提请国务院审查.(4合营企业因增加注册资本而使投资者控股权发生变化,并且导致其投资总额超过原批机关的审批权限的,应报上级审批机关审批.

6.完善资产评估制度

完善资产评估制度是控制国有资产流失最佳举措之一.在通常情况下,国有资产流失包括两种情况,一种是公开流失,即在国有产权交易过程中,国有资产评估不准确,低评、漏评国有资产,另一种是潜在的流失或隐性流失.要控制外商并购过程中的国有资产公开流失,关键在于实现国有资产评估的公正、合理和科学化.要做到这一点,需要<<并购法>>中明确资产评估方式方法、资产评估程序、资产评估机构资质的认定、产权交易价格的认定,资产评估会计处理方法等评估规则.

目前,国有企业产权变动中的资产评估,主要采取三种评估方法:资产重置法、资产收益法、帐面计一算法.资产重置法只是市场经济中确定交易价格的一种方式,机械、固定的采用这种方法,既对中方不利,也可能对外方不利,资产收益法这种方法也可能会造成中方收益受损,而帐面计算法又不被外商接受.我们认为,采用何种评价方法,决策权应交给企业,由中外双方谈判决定,但应加强政府对评估方法的监管,对于资产评估标准应重新确定,外国的资产在中国的价值应按我国法定评估标准来评价,改变以往在会计帐册的无形资产栏目中往往只反映土地使用权的价值,忽略对企业拥有的专利商标等无形资产不作任何记载的会计处理方法,还要考虑土地、商标、名称、销售网络的价值及市场需求的价值、劳动的价值.只有这样,才能有效地控制国有资产流.

此外,设立合资企业资金到位的有效监督机制.<<中外合资经营企业合资各方出资的若干规定>>规定"中外合资经营企业的投资者均按合同比例和期限同步缴付认缴出资额."但这其中没有对不按时、不按合同缴纳出资额,应该怎样处理的相应法律规定.实践中,据调查,外方资金到位率一般只有60%-70%,有的只有20%-30%,却能按照协议上的股份获得利润.[14]据此,建议在<<并购法>>中设置资金到位的有效监督机制条款,且表述为:"中外合资经营企业的投资者均按合同比例和期限同步缴纳出资额,对于外商资金不按时、按量缴纳的,中方合资者不得与其进行项目合作,外方股东还应当向已按期足额缴出资的中方股东承担违约责任,省(自治区、直辖市级工商行政主管部门对此类行为进行监督.违反此规定并带来严重经济损失的,要依法追究主要负责人的法律责任."

资产评估机构的资质认定问题,也不容忽视.我们认为,应由外商控股审批机构指定资产评估机构的范围,再由中外双方投资者在指定范围内选择相恰互适的资产评估机构.另外还要强调的是评估程序要公开透明.

7.建立董事渎职责任制度

<<中外合资经营企业法实施条例>>第24条规定:"合资经营企业注册资本的增加,转让或以其他方式处置应有董事会会议一致通过,并报原审批机构批准,向原登记管理机构变更登记手续."从这一规定,我们可以看出:<<中外合资经营企业法实施条例>>对增加企业注册资本及由之引起的股权变更未作出具体规定.而是统一交由董事会处理.而<<中外合资经营企业法实施条例>>中又未对中方董事管理国有资产的责任和义务作出明确规定,这样在企业增资扩股等重大问题上中方董事表现软弱无力致使外商轻易实现增资扩股.还有一种情况是中方董事联合合作伙伴阳奉阴违、假公济私、中饱私囊,造成中方权益受损,甚至导致国有资产流失.在<<并购法>>中应明确规定董事渎职的相应法律责任.中方董事作为中方投资受托的管理人,应尽职尽责维护中方权益,保证国有资产保值增值,这是我国合资企业成功的核心问题.

(三制定和完善相关配套法律制度

规范外商在我国并购控股行为,除了制定<<并购法>>外,还必须制定完善相关配套的法律,这里主要包括<<社会保障法>>、<<公司法>>、<<证券交易法>>、<<破产法>>、<<企业所税得法>>、<<反不正当竞争法>>、<<反垄断法>>、<<会计法>>、<<审计法>>等.对外商在我国并购控股依法进行规范化管理,包括加强对其经营活动的统计调查、会计核实、审计监督及税收监管工作,防止跨国公司利用国际转移价格,扭曲其在我国的分支机构的财务状况,防止"高进低出",偷漏税属非法行为和不正当竞争,制止跨国公司在我国的倾销活动与垄断经营,保护国家、国内企业和广大消费者的利益.





Notes:
[1]曹洪军、朱晓滨:<<外商并购控股我国企业的模式、动因及效应分析>>,载<<理论学刊>>2003年第6期.

[2]史海升:<<跨国公司在华直接投资控股问题分析>>,载<<现代审计与经济>>2007年第2期.

[3]李盾:<<外资控股购并国有企业的状况、问题和前景>>,载<<管理世界>>2005年第11期.

[4]国家计委宏观经济研究院课题组:<<外资控股并购国有企业问题研究>>,载<<管理世界 2002年第6期.

[5]http://210.32.205.64/index/ index/ showdoc. asp?blockcode=sj nan&filename = 200806162495 , 2009年7月8日访问.

[6]李侠:<<跨国公司控制中外合资企业的动态分析>>,载<<贵州大学学报>>2005年第6期.

[7]孙南中:<<外资引进中控股行为与股权管理之法律分析>>,载<<南京社会科学>>2002年第5期.

[8]参见2008年3月<<银行控股股东监管办法(征求意见稿>>第10条境外金融机构取得境内中资银行的控制权,应当符合以下条件:(1符合住所地国家(地区监管当局相应的审慎监管指标要求,(2公司治理良好,内部控制健全有效,(3具有先进的金融行业管理经验和技术手段,(4最近3年内未发生重大案件和重大违法违规行为,(5财务稳健,资信良好,最近3个会计年度连续盈利,(6用于取得控制权的资金为自有资金且来源真实合法,(7住所地国家(地区金融机构监督管理制度完善,(8该项投资符合住所地国家(地区法律、法规的规定以及监管要求,(9住所地国家(地区经济状况良好,(10银监会规定的其他审慎性条件. 境外证券公司、保险公司、基金公司等取得境内中资银行的控制权,除应当符合本条第一款的规定外,还应当符合其他金融监管部门的有关规定.我们认为,<<银行控股股东监管办法(征求意见稿>>明确表示只要满足条件,境外金融机构能够取得境内中资银行的控制权,也就是说,只要<<银行控股股东监管办法(征求意见稿>>通过,我国银行业就可能受控于外资亦成显然之理.一言以蔽之,就是允许外资控股中国银行.

[9]转引藏减跃茹:<<外资控股和并购国有企业问题研究>>,载<<经济研究参考>>2002年第10期.

[10]前注[9],藏跃茹文.

[11]前引[4],国家计委宏观经济研究院课题组文.

[12]夏友富:<<＜跨国公司在华投资股权问题研究会＞综述>>,载<<管理世界>>1997年第6期.

[13]前注[1],曹洪军、朱晓滨文.

[14]前注[7],孙南申文.

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