Circular on Issues Relevant to Cross-border Direct Investment in Renminbi
关于跨境人民币直接投资有关问题的通知
The Circular lists the circumstances under which cross-border direct investments in renminbi shall be submitted to the Ministry of Commerce for review.
(Issued by the Ministry of Commerce on, and effective as of, October 12 2011.)
(商务部于二零一一年十月十二日发布实施。)
Shang Zi Han [2011] No.889
Competent commerce departments of provinces, autonomous regions, municipalities directly under the central government, cities with independent development plans, the Xinjiang Production and Construction Corps, Harbin, Changchun, Shenyang, Jinan, Nanjing, Hangzhou, Guangzhou, Wuhan, Chengdu and Xi'an Municipalities, and state-level economic and technology development zones and border economic cooperation zones:
商资函 [2011] 第889号
With a view to adapting to the development of the new situation, promoting the simplification of investment and improving the work of utilising foreign investment, we hereby, pursuant to relevant provisions, such as laws and regulations on foreign investment, notify you on matters relevant to cross-border direct investment in renminbi as follows:
1. For the purposes of this Circular, the phrase “cross-border direct investment in renminbi” means the activity whereby a foreign investor invests directly in China in accordance with the law with lawfully-obtained offshore renminbi.
各省、自治区、直辖市、计划单列市、新疆生产建设兵团及哈尔滨、长春、沈阳、济南、南京、杭州、广州、武汉、成都、西安商务主管部门，国家级经济技术开发区、边境经济合作区：
2. For the purposes of this Circular, the term “offshore renminbi” means:
(1) renminbi that a foreign investor has obtained through cross-border trade settlement in renminbi as well as renminbi lawfully obtained in China as renminbi profit or as the result of an equity transfer, capital reduction, liquidation or early recovery of investment and remitted abroad; and
为适应新形势发展，促进投资便利化，进一步做好利用外资工作，根据外商投资法律法规等有关规定，现就跨境人民币直接投资的有关事宜通知如下：
(2) renminbi obtained abroad by a foreign investor through legal means, including but not limited to that obtained through means such as renminbi-denominated bonds issued abroad and renminbi-denominated shares issued abroad.
3. Cross-border direct investment in renminbi and reinvestment by foreign-invested enterprises in which such investment has been made shall conform with the requirements of laws and regulations on foreign investment and relevant provisions, and comply with the state policy on foreign investment in industry and relevant provisions on security review of acquisition by foreign investors and anti-monopoly review.
一、本通知所称“跨境人民币直接投资”是指外国投资者以合法获得的境外人民币依法来华开展直接投资活动。
4. Cross-border direct investment in renminbi may not be directly or indirectly used in China to invest in negotiable securities or financial derivatives (except as provided in Article 11 hereof) or used to make entrusted loans.
5. Competent commerce departments at every level shall examine and approve cross-border direct investments in renminbi in accordance with current provisions on the examination, approval and administration of foreign investment and within their purviews. In addition to submitting relevant documents in accordance with laws and regulations on foreign investment and relevant provisions, investors and foreign-invested enterprises shall submit the following documents to the competent commerce department:
二、本通知所称境外人民币是指：
(1) proof of the source of the renminbi funds or a document giving an account of the same;
(2) an account of the purpose to which the funds are to be put; and
（一）外国投资者通过跨境贸易人民币结算取得的人民币，以及从中国境内依法取得并汇出境外的人民币利润和转股、减资、清算、先行回收投资所得人民币；
(3) a Form of the Details of a Cross-border Direct Investment in Renminbi.
If in a cross-border direct investment in renminbi the original currency in which a capital contribution is made is to be changed from a foreign currency to renminbi, the same shall additionally be reported to the competent commerce department for its approval and, in addition to the aforementioned materials, the resolution of the board of directors or other such highest authority of the enterprise and the amended contract/articles of association (or amendment agreement) shall be provided.
（二）外国投资者在境外通过合法渠道取得的人民币，包括但不限于通过境外发行人民币债券、发行人民币股票等方式取得的人民币。
6. The competent local commerce department shall input the Form of the Details of a Cross-border Direct Investment in Renminbi into the system for examination, approval and administration of foreign investment, and cross-border direct investments in renminbi to which the following circumstances apply shall be forwarded to the Ministry of Commerce for review after the competent provincial-level commerce department has affixed its stamp to the Form of the Details of a Cross-border Direct Investment in Renminbi:
(1) the amount of the capital contribution in renminbi is Rmb300 million or more;
三、跨境人民币直接投资及所投资外商投资企业的再投资应当符合外商投资法律法规及有关规定的要求，遵守国家外商投资产业政策、外资并购安全审查、反垄断审查的有关规定。
(2) it is in the financing security, lease financing, micro-credit or auctioning industry or other such industry;
(3) it is in a foreign-invested company with an investment nature or foreign-invested venture investment or equity investment enterprise; or
四、跨境人民币直接投资在中国境内不得直接或间接用于投资有价证券和金融衍生品（除本通知第十一条规定外），以及用于委托贷款。
(4) it is in an industry subject to macroeconomic control by the state, such as cement, iron and steel, electrolytic aluminum or shipbuilding.
7. The Ministry of Commerce shall complete its review or put forward its comments upon review within five working days after receipt of the Form of the Details of a Cross-border Direct Investment in Renminbi forwarded by the competent provincial-level commerce department. If the investment passes the review, the competent local commerce department may issue an official reply and shall issue an approval certificate of a foreign-invested enterprise.
五、各级商务主管部门按照现行外商投资审批管理规定和权限审批跨境人民币直接投资。投资者或外商投资企业除按照外商投资法律法规及有关规定提交相关文件外，还应向商务主管部门提交下列文件：
8. The competent commerce department at the each level shall indicate the words “offshore renminbi capital contribution”, the amount of the capital contribution and the requirements of Article 4 hereof on its official reply for a cross-border direct investment in renminbi and add the words “offshore renminbi capital contribution” and the amount of the renminbi capital contribution in the space for remarks on the approval certificate of a foreign-invested enterprise.
9. The competent commerce department at each level shall send a copy of its official reply for a cross-border direct investment in renminbi to departments such as the People's Bank of China, customs, tax department, administration for industry and commerce and foreign exchange control department at the same level in a timely manner.
（一）人民币资金来源证明或说明文件；
10. A cross-border direct investment in renminbi in the real property sector shall be handled in accordance with current provisions for the administration of the approval and record filing of foreign investment in real property. A successful record filing shall be posted on the website of the Ministry of Commerce (in the “Release of results” section of the Department of Foreign Investment Administration sub-site of www.mofcom.gov.cn). In accordance with relevant administrative provisions, the foreign-invested enterprise shall carry out relevant procedures on the strength of the information posted on the Ministry of Commerce's website (which can be accessed by logging onto the site), the official reply document from the competent commerce department and the approval certificate of a foreign-invested enterprise.
11. If a foreign investor wishes to use lawfully obtained offshore renminbi to participate in a private placement of shares or a transfer by agreement of shares of a listed company in China, it shall carry out the relevant examination and approval procedures with the Ministry of Commerce in accordance with the requirements of the Measures for the Administration of Strategic Investments in Listed Companies by Foreign Investors.
（二）资金用途说明；
12. If a foreign investor directly invests renminbi profit derived from a foreign-invested enterprise that it has invested in in China but which profit it has not remitted outward, or renminbi derived from an equity transfer, capital reduction, liquidation or early recovery of investment of the foreign-invested enterprise, matters shall continue to be handled in accordance with relevant provisions.
13. At the time of the joint annual inspection of foreign-invested enterprises, competent commerce departments at every level shall inspect cross-border direct investments in renminbi by referring to Article 4 hereof.
（三）《跨境人民币直接投资情况表》。
14. This Circular shall apply mutatis mutandis to cross-border direct investments in renminbi by investors from Taiwan, Macao and Hong Kong.
15. The requirements for business statistics on cross-border direct investments in renminbi will be specified in a separate circular.
跨境人民币直接投资中将原出资币种由外币变更为人民币的，需同时报请商务主管部门批准，除上述材料外，还需提供董事会等企业最高权力机构的决议、修改后的合同/章程（或修改协议）。
16. This Circular shall be effective as of the date of issuance. In the event of a discrepancy between this Circular and previous provisions of the Ministry of Commerce on cross-border direct investment in renminbi, this Circular shall prevail.
With a view to promoting the compliant and healthy development of cross-border direct investment in renminbi, the competent provincial-level commerce departments are asked to transmit the requirements of this Circular to the competent commerce departments at each level in their jurisdictions and strengthen their examination, approval and oversight work. If an issue arises in the course of implementation, please do not hesitate to contact the (Department of Foreign Investment Administration of the) Ministry of Commerce and communicate the relevant circumstances to it.
六、地方商务主管部门应将《跨境人民币直接投资情况表》录入外商投资审批管理系统，对属于以下情形的跨境人民币直接投资，由省级商务主管部门在《跨境人民币直接投资情况表》上签章后，报商务部审核。
Attachment
| FORM OF THE DETAILS OF A CROSS-BORDER DIRECT INVESTMENT IN RENMINBI | |||||||
| Information on the enterprise | Name in Chinese | ||||||
| Name in English | |||||||
| Registered address | |||||||
| Approval authority | |||||||
| Total investment | Registered capital | ||||||
| Nature of the enterprise | £Sino-foreign equity joint venture | ||||||
| Organisational form | £limited liability company £company limited by shares | ||||||
| Scope of business | |||||||
| Business type | £ capital contribution of Rmb300 million or more: _______________ £ financing security, lease financing, micro-credit or other such industry: ______________ £ foreign-invested company with an investment nature or foreign-invested venture investment or equity investment enterprise: ____________ £ industry subject to macroeconomic control by the state: _____________ | ||||||
| Method of investment of renminbi funds | £establishment of a new enterprise | ||||||
| Amount of cross-border renminbi investment | Source of renminbi funds | ||||||
| Use to which renminbi funds are to be put | |||||||
| Information on foreign investors | Name of investor | Country | Amount of renminbi capital contribution (or amount of consideration paid in renminbi) | Percentage of equity accounted for | |||
| Undertaking | I/the enterprise (the applicant) undertake that the documents and relevant attachments submitted to the approval authority are true, lawful and valid, that any photocopies are true to the originals and that I/the enterprise will bear the legal liability for consequences arising from the submission of false documents. I/the enterprise further undertake that the cross-border direct investment in renminbi received will not be directly or indirectly used to invest in negotiable securities or financial derivatives or used to make entrusted loans.
Signature of the investor or legal representative (authorised representative) of the foreign-invested enterprise (Affix stamp of company, if any) | ||||||
| Provincial-level examination and approval department | The application documents (including proof of the source of the renminbi funds or a document giving an account of the same, an account of the purpose to which the funds are to be put and the undertaking) submitted by the investor or enterprise are complete and in order. After review, they have been found to comply with the requirements of laws and regulations on foreign investment and relevant provisions.
Signature of the official in charge of the competent provincial-level commerce department (Affix official stamp) | ||||||
附件：
跨境人民币直接投资情况表
| 企业 信息 | 中文名称 | ||||||||||||
| 英文名称 | |||||||||||||
| 注册地址 | |||||||||||||
| 审批机关 | |||||||||||||
| 投资总额 | 注册资本 | ||||||||||||
| 企业性质 | □中外合资 □中外合作 □外商独资 □其他： | ||||||||||||
| 组织形式 | □有限责任公司 □股份有限公司 □其他： | ||||||||||||
| 经营范围 | |||||||||||||
| 业务类型 | □3亿及3亿元以上人民币出资： □融资担保、融资租赁、小额信贷等行业： □外商投资性公司、外商投资创业投资或股权投资企业： □国家宏观调控行业: | ||||||||||||
| 人民币资金 投资方式 | □新设立企业 □增资 □并购境内企业 □外商投资企业股权转让 □其他： | ||||||||||||
| 跨境人民币 投资额 | 人民币资金来源 | ||||||||||||
| 人民币资金 用途说明 | |||||||||||||
| 境外投资者信息 | 投资者名称 | 国别 | 人民币出资金额 （或人民币支付对价金额） | 所占股比 | |||||||||
| 承诺 | 本申请人（企业）承诺所提交审批机关的文件和有关附件真实、合法、有效，复印件与原件一致，并对因提交虚假文件所引发的后果承担法律责任，承诺不将所接收的跨境人民币直接投资直接或间接用于投资有价证券和金融衍生品以及用于委托贷款。 投资者或外商投资企业法定代表人（授权人）签字 | ||||||||||||
| 省级审批部门 | 投资者或企业所提交的申报文件（含人民币资金来源证明或说明文件、资金用途说明、承诺等）齐备。经审核，符合外商投资法律法规及有关规定要求。 省级商务主管部门负责人签字 （盖公章） 年 月 日 | ||||||||||||
（一）人民币出资金额达3亿或3亿元人民币以上；
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