China question: How can I get a new legal representative?

The domestic perspective

In accordance with the Implementing Opinions on Several Issues Concerning the Application of the Law in the Administration of the Examination, Approval and Registration of Foreign-invested Companies (关于外商投资的公司审批登记管理法律适用若干问题的执行意见) (Gong Shang Wai Qi Zi [2006] No 81), a foreign-invested enterprise applying for change of its legal representative may go through the formalities for change of registration with the relevant administration for industry and commerce, and no approval from the original examination and approval authority is required.

Application documents

A wholly foreign-owned enterprise (WFOE) applying to change its legal representative would be generally required to submit the following documents:

a) application for change of registration of foreign-invested (partnership) enterprise;

b) resolutions or decisions made by the highest authority under the articles of association of the applicant (if the articles of association expressly stipulates that the legal representative shall be elected, such resolutions or decisions will not be needed);

c) resignation or removal document of the original legal representative and the appointment document of the new legal representative; and

d) business licences of the applicant (including both the original and the duplicate).

If the WFOE is registered in Beijing, in addition to the above documents, the Beijing Administration for Industry and Commerce (BAIC) also requires the applicant to provide a power of attorney. According to the Opinions on Simplifying the Process of Industrial and Commercial Registration and Optimising Access Services (Jing Gong Shang Fa [2013] No 85) (Opinions on Simplifying the Process of Industrial and Commercial Registration), issued by the Beijing Administration for Industry and Commerce on October 14 2013, applications for change of registration may be signed by either the former legal representative or the new legal representative and chopping of the company seal is no longer required.

If the WFOE is registered in Shanghai, in addition to the above documents, the Shanghai Administration for Industry and Commerce (SAIC) also requires the applicant to provide a registration sheet of the new legal representative, legal representative review comments, approval documents of the examination and approval authority (in the case of finance, securities and insurance companies).

Time limits

According to the Opinions on Simplifying the Process of Industrial and Commercial Registration, the time for issuing licences can be shortened to within five working days following its receipt of complete required application documents by the relevant local branches of the BAIC according to circumstances.

Under the relevant rules of the Shanghai Administration for Industry and Commerce, the relevant local SAIC branch is required to make a decision on whether or not to approve the registration within five days following its receipt of complete required application documents.