Provisions for the Administration of the Registration of Foreign-invested Partnerships

Revised on February 20 2014. Latest revision can be found at: http://www.chinalawandpractice.com/Article/3326434/Provisions-for-the-Administration-of-the-Registration-of-Foreign-invested-Partnerships-Revised.html

(Promulgated by the State Administration for Industry and Commerce on January 29 2010 and effective as
of March 1 2010.)

Order of the SAIC No.47

Part One: General provisions

Article 1:These Provisions have been formulated pursuant to the PRC Partnerships Law (the Partnership Law), the Measures for the Administration of the Establishment of Partnerships in China by Foreign Enterprises or Individuals and the PRC Measures for Administration of the Registration of Partnerships (the Measures for Administration of the Registration of Partnerships) in order to regulate the establishment of partnerships in China by foreign enterprises and individuals, facilitate investment in China by foreign enterprises and individuals through the establishment of partnerships and expand foreign economic co-operation and technology exchanges.

Article 2:For the purposes of these Provisions, the term “foreign-invested partnership” means a partnership established in China by two or more foreign enterprises or individuals, or a partnership established in China by a foreign enterprise or individual together with natural persons, legal persons or other organisations of China.

These Provisions shall govern the registration of the establishment of and changes in, and the de-registration of, foreign-invested partnerships.

When an application is made for the registration of a foreign-invested partnership, the applicant shall be liable for the truthfulness of the application materials.

Article 3:A foreign-invested partnership shall comply with the Partnership Law and other relevant laws, administrative regulations, and rules, and with foreign investment industrial policy.

The state encourages the establishment of partnerships in China by foreign enterprises and individuals with advanced technologies and management expertise in order to promote the development of the modern service sector and other such industries.

Foreign-invested partnerships may not be established for projects in the prohibited category of, or those marked as “restricted to equity joint ventures”, “restricted to co-operative joint ventures”, “restricted to equity and co-operative joint ventures”, “the Chinese party shall hold a controlling interest” or “the Chinese party shall hold a relative controlling interest” or those for which there are requirements in respect of the foreign investment ratio in, the Foreign Investment Industrial Guidance Catalogue.

Article 4:A foreign-invested partnership may engage in business activities only after it has been registered in accordance with the law and collected its Foreign-invested Partnership Business licence.

Article 5:The State Administration for Industry and Commerce is in charge of the administration of the registration of foreign-invested partnerships nationwide.

Local administrations for industry and commerce to which the State Administration for Industry and Commerce has delegated the authority to approve the registration of foreign-invested enterprises (Enterprise Registries) shall be responsible for the administration of the registration of foreign-invested partnerships in their jurisdictions.

The administrations for industry and commerce of provinces, autonomous regions, municipalities directly under the central government, cities with independent development plans and sub-provincial level municipalities shall be responsible for the administration of the registration of those foreign-invested partnerships the main business of which is investment.

Part Two: Registration of establishment

Article 6:To establish a foreign-invested partnership, the conditions set forth in the Partnership Law and the Measures for the Administration of the Establishment of Partnerships in China by Foreign Enterprises or Individuals shall be satisfied.

Wholly state-owned enterprises, state-owned enterprises, listed companies, charitable public institutions and associations may not become general partners.

Article 7:A foreign-invested partnership's registered particulars shall include:

(1) its name;

(2) its main place of business;

(3) its managing partner(s);

(4) its scope of business;

(5) the type of partnership; and

(6) the names of the partners, their countries (or regions) and domiciles, the method in which they bear liability, the amounts of the capital contributions that they have subscribed for or actually paid in, the time limit(s) for payment thereof, the method of contribution and the method of appraisal.

If the partnership agreement specifies the term of a partnership, the registered particulars shall also include such term.

If the managing partner is a foreign enterprise, or a Chinese legal person or other organisation, the registered particulars shall also include the name of the representative appointed by such foreign enterprise, or Chinese legal person or other organisation (Appointed Representative).

Article 8:The name of a foreign-invested partnership shall comply with relevant state provisions on the administration of the registration of enterprise names.

Article 9:A foreign-invested partnership may have only one main place of business that shall be located in the jurisdiction of its Enterprise Registry.

Article 10:If the partnership agreement is silent on the matter, or if all of the general partners did not decide to appoint an managing partner, all of the general partners shall be managing partners.

Limited partners may not become managing partners.

Article 11:The types of foreign-invested partnerships shall include foreign-invested general partnerships (including limited liability partnerships) and foreign-invested limited partnerships.

Article 12:When establishing a foreign-invested partnership, the representative designated by all of the partners or the agent jointly appointed by them shall submit the application for the registration of establishment to the Enterprise Registry.

To apply for the establishment of a foreign-invested partnership, the following documents shall be submitted to the Enterprise Registry:

(1) an application letter for the registration of establishment signed by all of the partners;

(2) the partnership agreement signed by all of the partners;

(3) the proofs of qualification as an entity or the natural person identity documents of all the partners;

(4) proof of the main place of business;

(5) the power of attorney of the representative designated, or the agent jointly appointed, by all of the partners;

(6) the written instrument of all of the partners confirming the capital contributions subscribed for or actually paid in by each partner;

(7) a statement signed by all of the partners to the effect that the foreign-invested partnership complies with foreign investment industrial policy;

(8) a certificate of creditworthiness issued by (a) financial institution(s) that has/have business dealings with the foreign partner(s);

(9) the Power of Attorney for Service of Legal Documents signed by the foreign partner(s) with the domestic recipient for service of legal documents; and

(10) other relevant documents stipulated herein.

If a law, administrative regulations or the State Council specifies that the establishment of a foreign-invested partnership requires approval, the relevant approval document shall additionally be submitted.

The proof of qualification as an entity or the natural person identity document of a foreign partner and the proof of its/his/her domicile outside China shall have been notarised and authenticated by the competent authority in its/his/her country and authenticated by the Chinese embassy (or a consulate) in that country. The proof of qualification as an entity or the natural person identity document of a partner from the Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan, and the proof of its/his/her domicile outside China shall be handled in accordance with current relevant provisions.

The Power of Attorney for Service of Legal Documents shall expressly authorise the domestic agent to accept service of legal documents, and stipulate his/her/its name, address and contact method. The agent may be an enterprise established by the foreign partner in China, the proposed foreign-invested partnership (where the agent is the proposed foreign-invested partnership, the appointment shall become effective once the foreign-invested partnership is established) or other relevant work unit or individual in China.

Article 13:If the scope of business of a foreign-invested partnership includes an industry that a law, administrative regulations or the State Council specifies requires approval before registration, the approval document shall be submitted to the Enterprise Registry.

Article 14:If a foreign partner uses renminbi lawfully derived in China as its/his/her capital contribution, it/he/she shall provide relevant supporting documents such as the capital-account foreign exchange transaction approval document for the re-investment of renminbi profits or other lawful renminbi proceeds derived in China issued by the foreign exchange control department.

Article 15:If a capital contribution is made in the form of physical goods, intellectual property, leaseholds or other property rights and the value thereof is determined by all of the partners through consultations, a written instrument signed by all of the partners confirming such valuation shall be submitted to the Enterprise Registry. If the value was appraised by a statutory appraisal firm appointed by all of the partners, the certificate of appraisal issued by the domestic statutory appraisal firm shall be submitted to the Enterprise Registry.

If a foreign general partner makes his/her capital contribution in the form of services, his/her foreigner employment permit shall be submitted to the Enterprise Registry. The specific procedure therefor shall be handled in accordance with relevant state provisions.

Article 16:If a law or administrative regulations specify that, when a limited liability partnership is established, the professional qualification certificates of the partners are to be submitted, the relevant certificates shall be submitted to the Enterprise Registry in accordance with the relevant law or administrative regulations.

Article 17:The date of establishment of a foreign-invested partnership shall be the date on which its business licence is issued.

Part Three: Amendment of registration

Article 18:In the event of a change in the registered particulars of a foreign-invested partnership, the foreign-invested partnership shall apply to the original Enterprise Registry for amendment of its registration within 15 days from the date on which the decision on the change was made or the reason for the change arose.

Article 19:When applying for amendment of its registration, a foreign-invested partnership shall submit the following documents to its original Enterprise Registry:

(1) an application letter for amendment of registration signed by the managing partner or the appointed representative;

(2) the written decision on the change signed by all of the partners or by the person(s) stipulated in the partnership agreement; and

(3) other relevant documents stipulated herein.

If a law, administrative regulations or the State Council specifies that the change of a particular requires approval, the relevant approval document shall additionally be submitted.

If there is a change in the registered particulars such as the managing partner, type of partnership, name of a partner, method of bearing liability, amount of a capital contribution subscribed for or actually paid in, deadline for payment, contribution method or appraisal method, the signature on the relevant application document shall be notarised by a statutory notary office in China.

Article 20:If a foreign-invested partnership changes its main place of business, it shall apply for amendment of its registration and submit proof of use of its new main place of business.

If the new main place of business of a foreign-invested partnership is outside the jurisdiction of its original Enterprise Registry, it shall apply for amendment of its registration to the Enterprise Registry of the place to where it is relocating. If the application is accepted by the Enterprise Registry of the place to where the foreign-invested partnership is relocating, its original Enterprise Registry shall transfer the enterprise registration file to the Enterprise Registry of the place to where the foreign-invested partnership is relocating.

Article 21:In the event of the replacement of the managing partner of a foreign-invested partnership, the amended partnership agreement signed by all of the partners shall be submitted.

If the new managing partner is a foreign enterprise, or a Chinese legal person or other organisation, the letter of appointment of its Appointed Representative and his/her natural person identity document shall be submitted.

In the event of the replacement of the Appointed Representative serving as managing partner, the letter of appointment of his/her successor and his/her natural person identity document shall be submitted.

Article 22:If a foreign-invested partnership makes a change to its scope of business, it shall submit a statement to the effect that it complies with foreign investment industrial policy.

If the revised scope of business includes an industry that a law, administrative regulations or the State Council specifies requires approval before registration, the foreign-invested partnership shall apply to its original Enterprise Registry for amendment of its registration within 30 days from the date of approval by the relevant department.

In the event of the revocation, cancellation or expiration of the permit or other approval document for an item in the scope of business of a foreign-invested partnership that a law, administrative regulations or the State Council specifies requires approval, the foreign-invested partnership shall apply to its original Enterprise Registry for amendment or cancellation of its registration within 30 days from the date on which the permit or other approval document was revoked or cancelled, or expired.

Article 23:In the event of change in its type, a foreign-invested partnership shall apply for amendment of its registration and, in accordance with the law, submit the relevant documents to its Enterprise Registry by the prescribed deadline based on the conditions for the establishment of the proposed enterprise type.

Article 24:In the event of a change in the name or domicile of a partner in a foreign-invested partnership, the document evidencing the change of name or domicile shall be submitted.

The document evidencing the change in the name, country (or region) or domicile outside China of a foreign partner shall be notarised and authenticated by the competent authority in his/her/its country and authenticated by the Chinese embassy (or a consulate) in that country. The document evidencing the change in the name, region or domicile outside China of a partner from the Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan shall be handled in accordance with current relevant provisions.

Article 25:In the event of an increase or reduction in the capital contribution made to a foreign-invested partnership by a partner, a written instrument signed by all of the partners or the person(s) stipulated in the partnership agreement confirming the capital contribution subscribed for or actually paid in by the partner in question shall be submitted to the original Enterprise Registry.

Article 26:When a new partner is admitted, the foreign-invested partnership shall apply to its original Enterprise Registry for amendment of its registration. Reference shall be made to relevant provisions of Part Two hereof for the documents to be submitted.

If a new partner is admitted through the acquisition of part or all of an existing partner's share of the property in the foreign-invested partnership, the agreement for the transfer of the share of the property shall be submitted.

Article 27:If all of the foreign partners withdraw from a foreign-invested partnership and the partnership survives such withdrawal, an application for the amendment of registration shall be made in accordance with the procedures prescribed in the Measures for Administration of the Registration of Partnerships.

Article 28:If a partnership agreement is amended without amending the registered particulars, the foreign-invested partnership shall file the amended partnership agreement or the resolution for the amendment of the partnership agreement with its original Enterprise Registry for the record.

Article 29:If the domestic recipient for service of legal documents of a foreign partner is replaced, a new Power of Attorney for Service of Legal Documents shall be signed and filed with the original Enterprise Registry for the record.

Article 30:If a change in the registered particulars of a foreign-invested partnership results in the amendment of its business licence, the Enterprise Registry shall issue a new business licence.

Part Four: De-registration

Article 31:If a foreign-invested partnership is dissolved, it shall, pursuant to the Partnership Law, be liquidated by a liquidator. Within 10 days of being designated, the liquidator shall file a list of its members with the Enterprise Registry for the record.

Article 32:When a foreign-invested partnership is dissolved, the liquidator shall, within 15 days from the date of completion of the liquidation, carry out the procedures for de-registration with the original Enterprise Registry.

Article 33:When procedures for de-registration are carried out, a foreign-invested partnership shall submit the following documents:

(1) an application letter for de-registration signed by the liquidator;

(2) the bankruptcy ruling of the people's court, the decision made by the foreign-invested partnership in accordance with the Partnership Law, or the document evidencing that the foreign-invested partnership was ordered to close down or had its business licence revoked or cancelled in accordance with the law by an administrative authority; and

(3) the liquidation report signed and stamped by all of the partners (which shall contain a statement to the effect that tax and customs duty payment procedures have been completed).

If a foreign-invested partnership that applies for de-registration has (sub-)branches, it shall additionally submit proof of the de-registration of such (sub-)branches.

When carrying out de-registration procedures, a foreign-invested partnership shall return its business licence.

Article 34:A foreign-invested partnership shall end once its registration has been cancelled by the Enterprise Registry.

Part Five: Registration of (sub-)branches

Article 35:When a foreign-invested partnership establishes a (sub-)branch, it shall apply to the Enterprise Registry of the place where the (sub-)branch is located for registration of the establishment of such (sub-)branch.

Article 36:The registered particulars of a (sub-)branch shall include its name, place of business, scope of business and the name and domicile of the person in charge.

The scope of business of a (sub-)branch may not exceed that of the foreign-invested partnership.

If a foreign-invested partnership has a partnership term, the term of operations of a (sub-)branch shall be included in its registered particulars. The term of operations of a (sub-)branch may not exceed the partnership term of the foreign-invested partnership.

Article 37:When establishing a (sub-)branch, a foreign-invested partnership shall submit the following documents to the Enterprise Registry of the place where the (sub-)branch is located:

(1) an application letter for the registration of the establishment of a (sub-)branch;

(2) the written decision to establish the (sub-)branch signed by all of the partners;

(3) a photocopy of the partnership's business licence bearing its stamp;

(4) the letter of appointment and the identity document of the person appointed by all of the partners to handle the affairs of the (sub-)branch;

(5) proof of the place of business; and

(6) other relevant documents stipulated herein.

Article 38:If the scope of business of a (sub-)branch includes an industry that a law, administrative regulations or the State Council specifies that approval is required before registration, the approval document shall be submitted to the Enterprise Registry of the place where the (sub-)branch is located.

Article 39:Reference shall be made to the provisions hereof concerning the amendment of the registration or the de-registration of a foreign-invested partnership when a foreign-invested partnership applies for the amendment of the registration or the de-registration of a (sub-)branch.

Article 40:Within 30 days from the date of registration of the establishment of a (sub-)branch, the foreign-invested partnership shall carry out filing procedures with its original Enterprise Registry on the strength of a stamped photocopy of the (sub-)branch's business licence.

In the event of a change in the registered particulars of a (sub-)branch, its parent shall carry out filing procedures with its original Enterprise Registry within 30 days from the date of the amendment of registration.

If an application is made to de-register a (sub-)branch, the foreign-invested partnership shall carry out filing procedures with its original Enterprise Registry within 30 days from the date of the de-registration of its (sub-)branch.

Article 41:The date of establishment of a (sub-)branch of a foreign-invested partnership shall be the date of issuance of the (sub-)branch's business licence.

Part Six: Registration procedures

Article 42:If the documentation for an application for registration submitted by an applicant is complete and in the statutory format and the Enterprise Registry can carry out the registration on the spot, it shall carry out such registration on the spot and issue (or replace) a (the) business licence.

In circumstances other than that specified in the preceding paragraph, the Enterprise Registry shall render its decision on whether or not to grant registration within 20 days from the date on which it accepted the application. If it grants registration, it shall issue (or replace) a (the) business licence. If it does not grant registration, it shall give a written reply and explain the reason therefor.

For a project in the restricted category of the Foreign Investment Industrial Guidance Catalogue for which statutory advance approval is not required or another project falling within the purview of a relevant department, the Enterprise Registry shall seek the opinion of the relevant department in writing within five days from the date on which it accepted the application; then, within five days from the date of receipt of the written opinion of the relevant department, it shall render its decision on whether or not to grant registration. If it grants registration, it shall issue (or replace) a (the) business licence. If it does not grant registration, it shall give a written reply and explain the reason therefor.

Article 43:If a foreign-invested partnership is involved in an investment project that requires government approval, the procedures for the approval of an investment project shall be carried out in accordance with relevant state provisions.

Article 44:When a foreign-invested partnership is established, changed or de-registered, the Enterprise Registry shall forward the information on the registration of the establishment of, or changes to, or de-registration of the enterprise to the department in charge of commerce at the same level.

Article 45:The registered particulars of registered foreign-invested partnerships shall be recorded by the Enterprise Registry in the register of foreign-invested partnerships that shall be made available to the public for viewing and copying.

Article 46:An Enterprise Registry shall issue a public announcement when it revokes the business licence of a foreign-invested partnership.

Part Seven: Annual inspections and administration of permits and licences

Article 47:Every year between March 1 and June 30, a foreign-invested partnership and its (sub-)branches shall, as required by the Enterprise Registry, submit documents such as an annual inspection report, and submit to an annual inspection.

The Enterprise Registry shall forward information on the annual inspection of foreign-invested partnerships to the department in charge of commerce at the same level once the annual inspection has been completed.

Article 48:Business licences are divided into an original and duplicates, and originals and duplicates have the same legal force and effect.

In line with its business requirements, a foreign-invested partnership or a (sub-)branch thereof may apply to the Enterprise Registry for the issuance of multiple duplicates of its business licence.

The original of a business licence shall be placed in a conspicuous location in the place of business.

Article 49:No work unit or individual may alter, sell, lease, lend or otherwise transfer a business licence.

If a business licence is lost or damaged, a declaration shall be published in the newspaper(s) and/or periodical(s) designated by the Enterprise Registry to the effect that it has been invalidated, and an application for a replacement shall be made to the Enterprise Registry.

Article 50:The format of the registration documents of foreign-invested partnerships and (sub-)branches thereof and of the originals and duplicates of their business licences shall be formulated by the State Administration for Industry and Commerce.

Part Eight: Legal liability

Article 51:If partnership business is engaged in without a business licence in the name of a foreign-invested partnership, the Enterprise Registry shall impose punishment in accordance with Article 36 of the Measures for Administration of the Registration of Partnerships.

If an item in the prohibited category of the Foreign Investment Industrial Guidance Catalogue is engaged in or if an item in the restricted category is engaged in without registration, the Enterprise Registry and other competent authorities shall impose punishment in accordance with the Measures for Investigating, Handling and Shutting Down Unlicensed Business Operations, unless otherwise provided in laws or administrative regulations or by the State Council, in which case such provisions shall apply.

Article 52:If false documents are submitted or other fraudulent means are used to secure registration as a foreign-invested partnership, the Enterprise Registry shall impose punishment in accordance with Article 37 of the Measures for Administration of the Registration of Partnerships.

Article 53:If procedures for the amendment of registration are not carried out in accordance herewith after a change in the registered particulars of a foreign-invested partnership, the Enterprise Registry shall impose punishment in accordance with Article 38 of the Measures for Administration of the Registration of Partnerships.

Article 54:If a foreign-invested partnership fails to use the words “普通合伙”,¹ “特殊普通合伙”² or “有限合伙”³ in its name as approved by the Enterprise Registry, the Enterprise Registry shall impose punishment in accordance with Article 39 of the Measures for Administration of the Registration of Partnerships.

Article 55:If a foreign-invested partnership fails to carry out filing procedures for an amendment to its agreement that does not involve registered particulars, or for a (sub-)branch or the list of the members of its liquidator in accordance herewith, the Enterprise Registry shall impose punishment in accordance with Article 40 of the Measures for Administration of the Registration of Partnerships.

If a foreign-invested partnership fails to carry out filing procedures for the Power of Attorney for Service of Legal Documents of a foreign partner in accordance herewith, the Enterprise Registry shall order it to rectify the matter. If it has not done so by the expiration of the specified time limit, it shall be fined not more than Rmb2,000.

Article 56:If the liquidator of a foreign-invested partnership fails to submit the liquidation report to the Enterprise Registry, or if the submitted liquidation report conceals material facts or contains material omissions, the Enterprise Registry shall impose punishment in accordance with Article 41 of the Measures for Administration of the Registration of Partnerships.

Article 57:If a foreign-invested partnership fails to submit to an annual inspection in accordance herewith, the Enterprise Registry shall impose punishment in accordance with Article 42 of the Measures for Administration of the Registration of Partnerships.

Article 58:If a foreign-invested partnership conceals true circumstances or practises deception during an annual inspection, the Enterprise Registry shall impose punishment in accordance with Article 43 of the Measures for Administration of the Registration of Partnerships.

Article 59:If a foreign-invested partnership does not place the original of its business licence in a conspicuous location in its place of business, the Enterprise Registry shall impose punishment in accordance with Article 44 of the Measures for Administration of the Registration of Partnerships.

Article 60:If a foreign-invested partnership alters, sells, leases, lends or otherwise transfers its business licence, the Enterprise Registry shall impose punishment in accordance with Article 45 of the Measures for Administration of the Registration of Partnerships.

Article 61:If a (sub-)branch of a foreign-invested partnership commits any of the violations specified in this Part, the relevant provision of this Part shall apply.

Article 62:If, in violation of industrial policy, an Enterprise Registry grants registration where such registration ought not to have been granted or does not grant registration where it ought to have done so, the administrative liability of the person(s) directly responsible or the main person in charge shall be pursued in accordance with the law.

If a member of the working personnel of an Enterprise Registry abuses his/her authority, practises favouritism by committing fraud, accepts bribes or infringes the lawful rights or interests of a foreign-invested partnership, he/she shall be sanctioned in accordance with the law.

Part Nine: Supplementary provisions

Article 63:If a foreign enterprise or individual is to be admitted as a partner to a partnership established in China by Chinese natural persons, legal persons or other organisations, these Provisions shall be complied with and an application for amendment of registration shall be submitted to the Enterprise Registry in accordance with the law.

Article 64:Where a foreign-invested partnership, the main business of which is investment, makes an investment in China, matters shall be handled in accordance with relevant state laws, administrative regulations, and rules on foreign investment.

Article 65:Where a foreign-invested company with an investment nature or a foreign-invested venture capital firm establishes a partnership in China or is admitted as a partner to an existing partnership established by Chinese natural persons, legal persons or other organisations, matters shall be handled with reference to these Provisions.

Article 66:Once a foreign-invested partnership has carried out relevant registration procedures in accordance with these Provisions, it shall carry out foreign exchange, tax, customs and other such procedures in accordance with the law.

Article 67:Where enterprises or individuals from the Hong Kong Special Administrative Region, the Macao Special Administrative Region or Taiwan establish a partnership in mainland China or are admitted as partners to existing partnerships established by mainland Chinese natural persons, legal persons or other organisations, matters shall be handled with reference to these Provisions.

Article 68:These Provisions shall be effective as of March 1 2010.

1 Translator's note: These are the Chinese characters for “general partnership”.

2 Translator's note: These are the Chinese characters for “limited liability partnership”.

3 Translator's note: These are the Chinese characters for “limited partnership”.