Circular on Strengthening the Administration of the Examination and Approval and Record Filing of Foreign Investment in the Real Property Sector
关于加强外商投资房地产业审批备案管理的通知
Mofcom curbs on round-trip real property investment.
(Issued by the General Office of the Ministry of Commerce on November 22 2010.)
(商务部办公厅于二零一零年十一月二十二日发布。)
Shang Ban Zi Han [2010] No.1542
商办资函 [2010] 1542号
各省、自治区、直辖市、计划单列市及新疆生产建设兵团、哈尔滨、长春、沈阳、济南、南京、杭州、广州、武汉、成都、西安商务主管部门：
近年来，为规范房地产市场外资准入和管理，国务院有关部门陆续发布了一系列政策规定。为贯彻落实国务院有关文件要求，确保房地产调控政策取得实效，现就外商投资房地产企业审批备案及监管有关事项通知如下：
一、各地商务主管部门要切实加强涉及外汇流入类房地产项目的审查。省级商务主管部门在核对备案材料时，重点应就土地文件的完整性进行复核，包括：项目单位提交的开发商与土地管理部门签署的国有土地使用权出让合同、土地使用权证等土地成交证明材料。法律规定无需采用招标拍卖挂牌出让方式的，要提供由土地管理部门出具的符合国家土地管理规定的证明材料。商务部将在原有基础上对上述材料加大抽查力度。
二、各地商务主管部门要会同当地有关部门加强对跨境投融资活动的监控以及对房地产市场风险的防范，抑制投机性投资。对境外资本在境内设立房地产企业，不得通过购买、出售境内已建/在建房地产物业进行套利。商务部将会同住房城乡建设部、外汇局等有关部门对此类项目备案材料严格审查。
三、各地商务主管部门要严格按照外商投资设立投资性公司的各项规定开展审批工作，不得审批涉及房地产开发经营业务的投资性公司。
四、各地商务主管部门要会同外汇局等有关部门认真甄别、严格审核返程投资类房地产企业，严格控制以返程投资方式设立境内房地产企业。
五、进一步加强对并购、股权出资等方式新设/增资的房地产项目的审批监管和数据审核。商务部将会同有关部门对该类方式实际使用外资数据适时开展统计监督检查。
六、省级商务主管部门要加强对当地招商引资工作的服务与指导，积极发展绿色节能环保建筑，认真做好今后外资房地产审批备案和统计工作。
Competent commerce departments of the provinces, autonomous regions, municipalities directly under the central government, municipalities with independent development plans, the Xinjiang Production and Construction Corp, Harbin, Changchun, Shenyang, Jinan, Nanjing, Hangzhou, Guangzhou, Wuhan, Chengdu and Xi'an:
With a view to regulating the access of foreign investment to the real property market and the administration thereof, relevant departments of the State Council have issued a series of policies and provisions one after the other. We hereby notify you on the following matters relevant to the examination, approval and record filing of foreign investment in real property enterprises in order to thoroughly implement the requirements of relevant State Council documents and ensure the effectiveness of real property macroeconomic policies:
1. Competent commerce departments of all regions shall duly strengthen the examination of real property projects that involve the inflow of foreign exchange. The competent commerce department at the provincial level shall, when checking the materials submitted for record filing, make the focus of its check the determination of whether or not the land documents (including the contract for the grant of state-owned leasehold signed between the developer and the land administration department, leasehold certificate and other such materials evidencing the land transaction submitted by the project owner) are complete. Where laws provide that the grant can be effected without an invitation for bids, auction or listing on a land exchange, the materials issued by the land administration department evidencing that the grant was in keeping with state provisions on the administration of land shall be provided. The Ministry of Commerce will, on the existing basis, intensify its spot checks of the aforementioned materials.
2. Competent commerce departments of all regions shall, in concert with relevant local departments, enhance monitoring of cross-border investment and financing activities and their efforts at guarding against risk in the real property market, and they shall suppress speculative investment. Real property enterprises established in China with foreign capital may not seek to profit by arbitraging on the purchase and sale of existing real property/real property under construction. The Ministry of Commerce will, in concert with relevant departments such as the Ministry of Housing and Urban-rural Development and State Administration of Foreign Exchange, stringently examine the record filing materials for such projects.
3. Competent commerce departments of all regions shall carry out their examination and approval work in strict accordance with various provisions on the investment in and establishment of companies with an investment nature by foreign investors, and may not approve companies with an investment nature that are involved in the business of developing and operating real property.
4. Competent commerce departments of all regions shall, in concert with relevant departments such as the administration of foreign exchange, carefully discern and stringently review real property enterprises that involve round-trip investment and stringently control the establishment in China of real property enterprises with round-trip investment.
5. The examination, approval and oversight of, and review of the data on, newly established real property projects and real property projects the investment in which is increased through mergers, acquisitions, and capital contributions made in the form of equity, etc. shall be further strengthened. The Ministry of Commerce will, in concert with relevant departments, at appropriate times conduct statistical monitoring inspections of data on the actual use of foreign capital by such means.
6. Competent commerce departments at the provincial level shall enhance their services for and guidance of local efforts to attract investors, actively develop green, energy-saving and environmentally-friendly buildings and henceforth earnestly and duly carry out the work associated with the examination, approval and record filing of, and the keeping of statistics on, foreign capital in real property.
clp reference:4100/10.11.22prc reference:商办资函 [2010] 1542号effective:2010-11-22This premium content is reserved for
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