Opinions on Regulating the Entry of Foreign Investment into the Real Property Market and the Administration Thereof

关于规范房地产市场外资准入和管理的意见

The New Opinions on Foreign Investment in China Real Estate represents the PRC government's concern and determination to cool down an overheated real estate market.

Clp Reference: 4100/06.07.11 Promulgated: 2006-07-11

(Issued by the Ministry of Construction, Ministry of Commerce, National Development and Reform Commission, People's Bank of China, State Administration for Industry and Commerce and State Administration of Foreign Exchange on July 11 2006.):

(建设部、商务部、国家发展和改革委员会、中国人民银行、国家工商行政管理总局、国家外汇管理局于二零零六年七月十一日发布。)

Jian Zhu Fang [2006] No.171

建住房 [2006] 171号

People's governments of the provinces, autonomous regions and municipalities directly under the central government, and the ministries, commissions and agencies of the State Council:

各省、自治区、直辖市人民政府,国务院各部委、各直属机构:

Since the beginning of this year, investment in the real property sector in China by foreign business entities has increased quite rapidly and the purchase of real property by foreign organizations and individuals has also been quite brisk. With a view to promoting the healthy development of the real property market, following the approval of the State Council, we hereby set forth our opinions on regulating the entry of foreign investment into the real property market and the administration thereof as follows.

今年以来,我国房地产领域外商投资增长较快,境外机构和个人在境内购买房地产也比较活跃。为促进房地产市场健康发展,经国务院同意,现就规范房地产市场外资准入和管理提出以下意见:

1. Regulating the Entry of Foreign Investment into the Real Property Market

一、   规范外商投资房地产市场准入

(1) When a foreign organization or individual wishes to invest in or purchase real property in China not for its/his/her own use, it/he/she shall comply with the principle of having a commercial presence by applying to establish a foreign-invested enterprise in accordance with provisions on investment in real property by foreign business entities. The foreign organization or individual may only engage in the relevant business within the approved scope of business after obtaining the approval of the relevant departments and carrying out the relevant registration procedures.

(一)  境外机构和个人在境内投资购买非自用房地产,应当遵循商业存在的原则,按照外商投资房地产的有关规定,申请设立外商投资企业;经有关部门批准并办理有关登记后,方可按照核准的经营范围从事相关业务。

(2) A real property enterprise invested in and established by a foreign business entity with a total investment of
US$10 million or more may not have registered capital of less than 50% of its total investment. If the total investment in such an enterprise is less than US$10 million, current provisions shall continue to apply in respect of its registered capital.

(二)  外商投资设立房地产企业,投资总额超过1000万美元(含1000万美元)的,注册资本金不得低于投资总额的50%。投资总额低于1000万美元的,注册资本金仍按现行规定执行。

(3) When a foreign-invested real property enterprise is established, its establishment shall be subject to the approval of, and the registration procedures therefor carried out with, the competent commerce department and administration for industry and commerce in accordance with the law, which shall issue to it a Foreign-invested Enterprise Approval Certificate and Business Licence for a term of one year. After paying in full the grant fee for the leasehold, the enterprise shall carry out the application procedure for a State-owned Land Use Certificate with the land administration department on the strength of the aforementioned documents and then, on the strength of the State-owned Land Use Certificate, it shall be issued a formal Foreign-invested Enterprise Approval Certificate by the competent commerce authority and a Business Licence with a term of operation identical to that of the Foreign-invested Enterprise Approval Certificate by the administration for industry and commerce. The enterprise shall then carry out tax registration procedures with the tax authorities.

(三)  设立外商投资房地产企业,由商务主管部门和工商行政管理机关依法批准设立和办理注册登记手续,颁发一年期《外商投资企业批准証书》和《营业执照》。企业付清土地使用权出让金后,凭上述証照到土地管理部门申办《国有土地使用証》,根据《国有土地使用証》到商务主管部门换发正式的《外商投资企业批准証书》,再到工商行政管理机关换发与《外商投资企业批准証书》经营期限一致的《营业执照》,到税务机关办理税务登记。

(4) The competent commerce department and other departments shall examine and approve equity and project transfers by foreign-invested real property enterprises and acquisitions of domestic real property enterprises by foreign investors in strict accordance with relevant laws, regulations and policies. Investors shall submit guarantees for their performance of the State-owned Leasehold Grant Contract, Construction Land Use Planning Permit, Construction Project Planning Permit, as well as their State-owned Land Use Certificate, proof of the record filing of their amendment issued by the competent construction (real property) department and the relevant proof of tax payment issued by the tax authorities.

(四)  外商投资房地产企业的股权和项目转让,以及境外投资者并购境内房地产企业,由商务主管等部门严格按照有关法律法规和政策规定进行审批。投资者应提交履行《国有土地使用权出让合同》、《建设用地规划许可証》、《建设工程规划许可証》等的保証函,《国有土地使用証》,建设(房地产)主管部门的变更备案証明,以及税务机关出具的相关纳税証明材料。

(5) If a foreign investor acquires a domestic real property enterprise by way of an equity transfer or otherwise, or acquires the equity of a Chinese party to an equity joint venture, it shall duly make arrangements for the settlement of the staff and workers, dispose of bank debts and use its own funds to pay the entire transfer price in one lump sum. Foreign investors that have records of improper activities shall not be permitted to engage in the foregoing activities in China.

(五)  境外投资者通过股权转让及其他方式并购境内房地产企业,或收购合资企业中方股权的,须妥善安置职工、处理银行债务、并以自有资金一次性支付全部转让金。对有不良记录的境外投资者,不允许其在境内进行上述活动。

2. Strengthening the Administration of the Development of and Dealing in Real Property by Foreign-invested Enterprises

二、   加强外商投资企业房地产开发经营管理

(6) Foreign investors that wish to invest in real property but do not have a Foreign-invested Enterprise Approval Certificate and Business Licence may not develop or deal in real property.

(六)  对投资房地产未取得《外商投资企业批准証书》和《营业执照》的境外投资者,不得进行房地产开发和经营活动。

(7) If the registered capital of a foreign-invested real property enterprise has not been paid in full, or the enterprise has not obtained a State-owned Land Use Certificate, or the paid-in capital of a development project is less 35% of the total investment of the project, the enterprise may not take out domestic or offshore loans and the foreign exchange control department will not approve the settlement of foreign exchange in connection with its foreign exchange borrowings.

(七)  外商投资房地产企业注册资本金未全部缴付的,未取得《国有土地使用証》的,或开发项目资本金未达到项目投资总额35%的,不得办理境内、境外贷款,外汇管理部门不予批准该企业的外汇借款结汇。

(8) The Chinese and foreign investors to a foreign-invested real property enterprise may not in any manner specify in the contract, articles of association, equity transfer agreement or other document terms that guarantee a fixed return or a fixed return in a disguised form to either party.

(八)  外商投资房地产企业的中外投资各方,不得以任何形式在合同、章程、股权转让协议以及其他文件中,订立保証任何一方固定回报或变相固定回报的条款。

(9) Foreign-invested real property enterprises shall comply with real property laws, regulations and policies, strictly perform the provisions of their land grant contracts and abide by the time limits and conditions approved in their planning permits. Relevant departments shall strengthen their oversight of the development, sales and other such business activities of foreign-invested real property enterprises. If they uncover such violations of laws or regulations as the hoarding of land and housing resources, the artificial driving up of real property prices, etc., they shall investigate and severely deal with the same in accordance with document Guo Ban Fa [2006] No.37 and other relevant provisions.

(九)  外商投资房地产企业应当遵守房地产有关法律法规和政策规定,严格执行土地出让合同约定及规划许可批准的期限和条件。有关部门要加强对外商投资房地产企业开发、销售等经营活动的监管,发现囤积土地和房源、哄抬房价等违法违规行为的,要根据国办发〔2006〕37号文件及其他有关规定严肃查处。

3. Strict Control of the Purchase of Real Property by Foreign Organizations and Individuals

三、   严格境外机构和个人购房管理

(10) Branches, sub-branches and representative offices set up in China by foreign organizations (excluding enterprises that have been approved to engage in real property business) and foreign individuals who are to work or study in China for more than one year may, in line with their actual needs, purchase commodity premises for their own use or their own residence, but may not purchase commodity premises that they will not themselves use or reside in. Foreign organizations that do not have a branch, sub-branch or representative office in China and foreign individuals who are to work or study in China for less than one year may not purchase commodity premises. Residents of Hong Kong, Macao and Taiwan and overseas Chinese may, in line with their personal needs, purchase commodity premises in the mainland of a certain area for their own residential purposes.

(十)  境外机构在境内设立的分支、代表机构(经批准从事经营房地产业的企业除外)和在境内工作、学习时间超过一年的境外个人可以购买符合实际需要的自用、自住商品房,不得购买非自用、非自住商品房。在境内没有设立分支、代表机构的境外机构和在境内工作、学习时间一年以下的境外个人,不得购买商品房。港澳台地区居民和华侨因生活需要,可在境内限购一定面积的自住商品房。

(11) Qualified foreign organizations and individuals that wish to purchase commodity premises for their own use or for their own residence must do so using their true names and, on the strength of valid documentation (which here and hereinafter shall mean, for a foreign organization, the proof issued by the relevant departments of the Chinese government evidencing approval for the setting up of an establishment in China; and for a foreign individual, proof evidencing approval for him/her to work or study in China), carry out the relevant leasehold and housing title registration procedures with the competent land and real property department. The real property title registration department must carry out the title registration procedures for foreign organizations and individuals in strict accordance with the principles of own use and own residence, and may not grant registration to unqualified organizations or individuals.

(十一) 符合规定的境外机构和个人购买自用、自住商品房必须采取实名制,并持有效証明(境外机构应持我政府有关部门批准设立驻境内机构的証明,境外个人应持其来境内工作、学习,经我方批准的証明,下同)到土地和房地产主管部门办理相应的土地使用权及房屋产权登记手续。房地产产权登记部门必须严格按照自用、自住原则办理境外机构和个人的产权登记,对不符合条件的不予登记。

(12) The foreign exchange control department shall verify the inward remittances of funds and the settlement of foreign exchange of foreign-invested enterprises, foreign organizations and foreign individuals made in connection with the purchase of real property in strict accordance with relevant provisions and the requirements of these Opinions. Qualified foreign-invested enterprises, foreign organizations and individuals shall be permitted to make such remittances and effect foreign exchange settlement. With respect to renminbi proceeds derived from the transfer of relevant real property, the purchase of foreign exchange in connection therewith and the remittance thereof out of China shall only be permitted after such procedures as a legal compliance review and confirmation, the payment of taxes in accordance with provisions, etc. have been carried out.

(十二) 外汇管理部门要严格按照有关规定和本意见的要求审核外商投资企业、境外机构和个人购房的资金汇入和结汇,符合条件的允许汇入并结汇;相关房产转让所得人民币资金经合规性审核并确认按规定办理纳税等手续后,方允许购汇汇出。

4. Further Strengthening and Implementation of Regulatory Responsibilities

四、   进一步强化和落实监管责任

(13) All local people's governments, particularly those of municipalities, shall duly take responsibility for, and pay close attention to the problems that may arise due to the current inflows of foreign investment into the real property market, further strengthen their guidance and effectively assume their regulatory responsibilities. Local authorities may not issue preferential policies aimed at foreign-invested real property enterprises without authorization, and where such preferential policies have been issued, the same must be screened, reviewed and rectified. The Ministry of Construction, Ministry of Commerce, National Reform and Development Commission, Ministry of Land and Resources, People's Bank of China, State Administration of Taxation, State Administration for Industry and Commerce, China Banking Regulatory Commission, State Administration of Foreign Exchange and other relevant departments shall formulate relevant operational rules in a timely manner, strengthen their guidance and regulatory inspections of the implementation by local authorities of policies regulating the entry of foreign investment into the real property market and the administration thereof and investigate and deal with, in accordance with the law, unauthorized reductions of the percentages of the registered capital of enterprises or the capital of projects and other violations of laws and regulations arising due to lax administration. Furthermore, the efforts invested in the investigation and handling of illegal cross-border real property transactions and illegal foreign currency conversions shall be further intensified.

(十三) 各地区、特别是城市人民政府要切实负起责任,高度重视当前外资进入房地产市场可能引发的问题,进一步加强领导,落实监管责任。各地不得擅自出台对外商投资房地产企业的优惠政策,已经出台的要清理整顿并予以纠正。建设部、商务部、发展改革委、国土资源部、人民银行、税务总局、工商总局、银监会、外汇局等有关部门要及时制定有关操作细则,加强对各地落实规范房地产市场外资准入和管理政策的指导和监督检查,对擅自降低企业注册资本金和项目资本金比例,以及管理不到位出现其他违法违规行为的,要依法查处。同时,要进一步加大对房地产违规跨境交易和汇兑违法违规行为的查处力度。

(14) The mechanism for market monitoring and analysis shall be improved. Relevant departments, such as the Ministry of Construction, Ministry of Commerce, National Bureau of Statistics, Ministry of Land and Resources, People's Bank of China, State Administration of Taxation, State Administration for Industry and Commerce, State Administration of Foreign Exchange, etc., shall establish a sound system for monitoring information on the flow of foreign investment into the real property market and improve the network that provides information on foreign investment in real property. Relevant departments shall strengthen their coordination and cooperation, intensify the monitoring of cross-border capital movements and realize as soon as possible the sharing of statistical data on foreign investment in real property.

clp reference:4100/06.07.11prc reference:建住房 [2006] 171号promulgated:2006-07-11

(十四) 完善市场监测分析工作机制。建设部、商务部、统计局、国土资源部、人民银行、税务总局、工商总局、外汇局等有关部门要建立健全外资进入房地产市场信息监测系统,完善外资房地产信息网络。有关部门要加强协调配合,强化对跨境资本流动的监测,尽快实现外资房地产统计数据的信息共享。

This premium content is reserved for
China Law & Practice Subscribers.

  • A database of over 3,000 essential documents including key PRC legislation translated into English
  • A choice of newsletters to alert you to changes affecting your business including sector specific updates
  • Premium access to the mobile optimized site for timely analysis that guides you through China's ever-changing business environment
For enterprise-wide or corporate enquiries, please contact our experienced Sales Professionals at +44 (0)203 868 7546 or [email protected]