|
Regulations
on Administration of Foreign Investment Construction Enterprises
(Pinsent Masons'
Unofficial Translation)
The
Ministry of Construction of the People's Republic of China
The
Ministry of Foreign Trade and Economic Cooperation of the People's
Republic of China
Decree
No. 113: The Regulations on Administration of Foreign Investment
Construction Enterprises were adopted respectively at the 63rd
Executive Meeting of the Ministry of Construction on 9 September,
2002 and at the 10th Ministerial Meeting of the Ministry of Foreign
Trade and Economic Co-operation on 17 September, 2002, and they
are now issued and shall be effective from 1 December, 2002.
Minister
of the Ministry of Construction: Wang Guangtao
Minister
of the Ministry of Foreign Trade and Economic Co-operation: Shi
Guangsheng
27
September, 2002
| CHAPTER
1: |
General
Provisions |
Article
1
These
Regulations are formulated in order to further the opening up
to the outside and standardise the administration of foreign investment
construction enterprises and in accordance with such laws and
regulations as the Construction Law of the People's Republic of
China, the Tendering and Bidding Law of the People's Republic
of China, the Law of the People's Republic of China on Sino-Foreign
Equity Joint Ventures, the Law of the People's Republic of China
on Sino-Foreign Co-operative Enterprises, the Law of the People's
Republic of China on Wholly Foreign-Owned Enterprises and the
Regulations on Administration of Construction Works Quality.
Article 2
These
regulations shall apply to the establishment of foreign investment
construction enterprises within the territory of the People's
Republic of China, the application for construction enterprise
skill qualifications and the administration and supervision of
foreign investment construction enterprises.
In
these Regulations, the term "foreign investment construction
enterprise" refers to a wholly foreign-owned construction
enterprise, a Sino-foreign equity joint venture construction enterprise
or a Sino-foreign co-operative construction enterprise established
within the territory of the People's Republic of China in accordance
with Chinese laws and regulations.
Article 3
A
foreign investor who intends to establish a foreign investment
construction enterprise within the territory of the People's Republic
of China and carry out construction activities shall, in accordance
with law, obtain the foreign investment enterprise approval certificate
from the relevant foreign trade and economic co-operation administrative
department and register with the State Administration of Industry
and Commerce or the relevant local industry and commerce administrative
department authorised by the State Administration of Industry
and Commerce, and also obtain the construction enterprise skill
qualification certificate from the relevant construction administrative
department.
Article 4
Foreign
investment construction enterprises shall abide by the laws, regulations
and rules of the People's Republic of China when carrying out
construction activities within the territory of the People's Republic
of China.
The
legal operation of foreign investment construction enterprises
and their legal rights and interests within the territory of the
People's Republic of China shall be protected by Chinese laws,
regulations and rules.
Article 5
The
foreign trade and economic co-operation administrative department
of the State Council shall be responsible for the administration
of establishing foreign investment construction enterprises. The
construction administrative department of the State Council shall
be responsible for the administration of the skill qualifications
of foreign investment construction enterprises.
The
foreign trade and economic co-operation administrative department
of the People's Government of the province, autonomous region
or directly administered municipality shall be responsible for
the administration of establishing foreign investment construction
enterprises within the scope of power authorised by the State
Council. The construction administrative department of the People's
Government of the province, autonomous region or directly administered
municipality shall be responsible for the administration of the
skill qualifications of the foreign investment construction enterprises
within its administrative region.
| CHAPTER
2: |
Application
for and Examination and Approval of Establishment of Foreign
Investment Construction Enterprises and Skill Qualifications |
Article
6
The
application for and the examination and approval of the establishment
of a foreign investment construction enterprise and its skill
qualifications shall be administered by a grading and categorisation
system.
Where
an applicant is to apply for construction main contractor with
Special Class or Class 1 skill qualification or for specialist
contractor with Class 1 skill qualification, the establishment
of the foreign investment construction enterprise shall be examined
and approved by the foreign trade and economic co-operation administrative
department of the State Council and its skill qualification shall
be examined and approved by the construction administrative department
of the State Council. Where an applicant is to apply for construction
main contractor or specialist contractor with Class 2 skill qualification
or below or any of the labour subcontractor skill qualifications,
the establishment of the foreign investment construction enterprise
shall be examined and approved by the foreign trade and economic
co-operation administrative department of the People's Government
of the province, autonomous region or directly administered municipality
and its skill qualification shall be examined and approved by
the construction administrative department of the People's Government
of the province, autonomous region or directly administered municipality.
Where
the Chinese investor to a proposed Sino-foreign equity joint venture
construction enterprise or a Sino-foreign co-operative construction
enterprise is an enterprise administered by the Central Government,
the establishment of the joint venture shall be examined and approved
by the foreign trade and economic co-operation administrative
department of the State Council and its skill qualification shall
be examined and approved by the construction administrative department
of the State Council.
Article 7
The
procedures for establishing a foreign investment construction
enterprise and the application for a construction main contractor
with Special Class or Class 1 skill qualification or a specialist
contractor with Class 1 skill qualification shall be:
| |
(1) |
The
applicant shall submit an application to the foreign trade
and economic co-operation administrative department of the
People's Government of the province, autonomous region or
directly administered municipality where the proposed foreign
investment construction enterprise is to be established. |
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|
|
| |
(2) |
The
foreign trade and economic co-operation administrative department
of the People's Government of the province, autonomous region
or directly administered municipality shall carry out and
complete the preliminary examination within 30 days of receiving
the application, and shall, if it grants the preliminary approval
after the preliminary examination, submit the application
and its preliminary approval to the foreign trade and economic
co-operation administrative department of the State Council. |
| |
|
|
| |
(3) |
Within
10 days of receiving the application and the preliminary approval,
the foreign trade and economic co-operation administrative
department of the State Council shall forward the application
to the construction administrative department of the State
Council for comments. The construction administrative department
of the State Council shall within 30 days of receiving the
request give its comments. Within 30 days of receiving the
comments, the foreign trade and economic co-operation administrative
department of the State Council shall give its approval or
denial in writing. If approval is given, the applicant shall
be issued with an approval certificate, and if the application
is not approved, reason(s) for the denial shall be given in
writing. |
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|
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(4) |
Within
30 days of receiving the approval certificate, the applicant
shall carry out enterprise registration with the relevant
registration department. |
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|
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(5) |
After
obtaining the enterprise legal entity business license, the
application by the foreign investment construction enterprise
for a construction enterprise skill qualification, shall be
carried out in accordance with the Regulations on Administration
of Construction Enterprise Skill Qualifications. |
Article 8
The
procedures for the establishment of a foreign investment construction
enterprise and the application for a construction main contractor
or a specialist contractor with Class 2 skill qualification or
below or any of the labour subcontractor skill qualifications
shall be administered by the construction administrative department
and the foreign trade and economic co-operation administrative
department of the People's Government of the province, autonomous
region or directly administered municipality based on the actual
local conditions with reference to Article 7 of these Regulations
and the Regulations on Administration of Construction Enterprise
Skill Qualifications.
Examination
and approval of the skill qualifications of foreign investment
construction enterprises by the construction administrative department
of the People's Government of the province, autonomous region
or directly administered municipality shall be filed with the
construction administrative department of the State Council within
30 days of the approval being given.
Article 9
Application
by a foreign investment construction enterprise for upgrading
the class of its skill qualification or adding a new skill qualification
to its major business scope shall be made to the relevant construction
administrative department in accordance with the relevant regulations.
Article 10
The
applicant who intends to establish a foreign investment construction
enterprise shall submit the following materials to the relevant
foreign trade and economic co-operation administrative department:
| |
(1) |
Application
form to establish a foreign investment construction enterprise
signed by the legal representative of the investor; |
| |
|
|
| |
(2) |
Feasibility
study report prepared or accepted by the investor; |
| |
|
|
| |
(3) |
Foreign
investment construction enterprise contract and articles of
association signed by the investor's legal representative
(only the articles of association are required for establishing
a wholly foreign-owned construction enterprise); |
| |
|
|
| |
(4) |
Notification
of pre-approval of the enterprise name; |
| |
|
|
| |
(5) |
Documentary
evidence of legal entity registration and bank credential
letter of the investor; |
| |
|
|
| |
(6) |
Appointment
letters and documentary evidence of the investor's designated
chairman and members of the board of directors, managers and
technical managers etc.; and |
| |
|
|
| |
(7) |
Balance
sheets and profit and loss accounts of the investor for the
past 3 years audited by a registered accountant or accounting
firm. |
Article 11
The
applicant, applying for a foreign investment construction enterprise
skill qualification, shall submit the following materials to the
relevant construction administrative department:
| |
(1) |
Application
form for the foreign investment construction enterprise skill
qualification; |
| |
|
|
| |
(2) |
Approval
certificate for the foreign investment construction enterprise; |
| |
|
|
| |
(3) |
Enterprise
legal entity business licence; |
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|
|
| |
(4) |
Bank
credential letter of the investor; |
| |
|
|
| |
(5) |
Appointment
letters and documentary evidence of the investor's designated
chairman and members of the board of directors, the enterprise's
financial managers, operations managers and technical managers
etc.; |
| |
|
|
| |
(6) |
Balance
sheets and profit and loss accounts of the investor for the
past 3 years audited by a registered accountant or accounting
firm; and |
| |
|
|
| |
(7) |
Other documents as required by the Regulations on Administration
of Construction Enterprise Skill Qualifications. |
Article 12
The
total capital contribution of the Chinese party to a Sino-foreign
equity joint venture construction enterprise or Sino-foreign co-operative
construction enterprise shall not be less than 25% of the registered
capital.
Article 13
The
Sino-foreign equity joint venture construction enterprises and
Sino-foreign co-operative construction enterprises established
prior to the issue of these Regulations are required to be registered
to re-determine their respective skill qualifications in accordance
with these Regulations and the Regulations on Administration of
Construction Enterprise Skill Qualifications.
Article 14
All
materials required to be submitted by an applicant under these
Regulations shall be in Chinese. If the original documentary evidence
is in a foreign language, a Chinese translation shall be provided.
|
CHAPTER
3:
|
Scope
of Contracting |
Article
15
Wholly
foreign-owned construction enterprises may only undertake the
following types of construction works within the scope of their
skill qualifications:
| |
(1) |
Construction
works invested or funded totally by foreign investment or
grants; |
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|
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(2) |
Construction
projects invested by international financial organisations
and awarded through international tendering in accordance
with the provisions of the loan documents; |
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|
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(3) |
Sino-foreign
joint venture construction projects where the foreign investment
is equal to or greater than 50%, or Sino-foreign joint venture
construction projects where the foreign investment is less
than 50% but, due to technical difficulties, a Chinese construction
enterprise cannot undertake the project independently and
a special approval is obtained from the construction administrative
department of the People's Government of the province, autonomous
region or directly administered municipality; |
| |
|
|
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(4) |
China
invested construction projects where, due to technical difficulties,
a Chinese construction enterprise cannot undertake independently,
and subject to the approval of the construction administrative
department of the People's Government of the province, autonomous
region or directly administered municipality, the projects
may be undertaken by Chinese and foreign construction enterprises
jointly. |
Article 16
Sino-foreign
equity joint venture construction enterprises and Sino-foreign
co-operative construction enterprises shall undertake construction
works permitted by the scope of their respective skill qualifications.
| CHAPTER
4: |
Supervision
and Administration |
Article
17
The
classifications of the skill qualifications of foreign investment
construction enterprises shall be in accordance with the Construction
Enterprise Skill Qualification Classifications issued by the construction
administrative department of the State Council.
Article 18
Where
a foreign investment construction enterprise undertakes construction
works as the construction main contractor, it shall itself complete
the main structure of the works.
Article 19
Where
a foreign investment construction enterprise contracts construction
works by way of a consortium with other construction enterprises,
the consortium shall contract works permitted by the scope of
the skill qualification of the lowest class.
Article 20
Where
a foreign investment construction enterprise contracts construction
works beyond the scope permitted by its skill qualification in
violation of Article 15 of these Regulations, it shall be fined
at an amount between 2% to 4% of the construction contract price.
An order to suspend its works and to correct the wrong may also
be issued and its skill qualification certificate may be demoted.
If the circumstances are serious, the skill qualification certificate
shall be revoked and any proceeds illegally obtained shall be
confiscated.
Article 21
Where
a foreign investment construction enterprise, when carrying out
construction activities, violates the relevant laws, regulations
or rules such as the Construction Law of the People's Republic
of China, the Tendering and Bidding Law of the People's Republic
of China, the Regulations on Administration of Construction Works
Quality and the Regulations on Administration of Construction
Enterprise Skill Qualifications, it shall be penalised in accordance
with the relevant provisions.
| CHAPTER
5: |
Supplemental
Provisions |
Article
22
For
a foreign enterprise which has already obtained a Foreign Enterprise
Skill Qualification Certificate for Contracting Construction Works
prior to the effectiveness of these Regulations, it may apply
for a construction enterprise skill qualification of the similar
class based on its track record of undertaking construction works
within the territory of the People's Republic of China when establishing
a foreign investment construction enterprise.
For
a foreign enterprise which has already established a foreign investment
construction enterprise within the territory of the People's Republic
of China as stated in Paragraph 1 of this Article to establish
a new foreign investment construction enterprise, the class of
the skill qualification of the new foreign investment construction
enterprise shall be determined in accordance with the Regulations
on Administration of Construction Enterprise Skill Qualifications.
Article 23
The
establishment of foreign investment construction enterprises by
investors from Hong Kong Special Administrative Region, Macao
Special Administrative Region or Taiwan in another province, autonomous
region or directly administered municipality and the administration
of their construction activities shall be carried out with reference
to these Regulations, unless any laws or regulations or State
Council provisions provide otherwise.
Article 24
The
construction administrative department of the State Council and
the foreign trade and economic co-operation administrative department
of the State Council shall be responsible for interpreting these
Regulations in accordance with their respective scope of duties.
Article 25
These
Regulations shall be effective from 1 December, 2002.
Article 26
The
Tentative Measures on Administration of Foreign Enterprise Skill
Qualifications for Contracting Construction Works within the Territory
of China issued by the Ministry of Construction (the Ministry
of Construction Decree No. 32) shall be repealed as of 1 October,
2003.
Article 27
Several
Provisions on Establishment of Foreign Investment Construction
Enterprises jointly issued by the Ministry of Construction and
the Ministry of Foreign Trade and Economic Co-operation (Jian
Jian (1995) No. 533) shall be repealed as of 1 December, 2002.
Regulations
on Administration of Foreign Investment Construction and Engineering
Design Enterprises
(Pinsent Masons'
Unofficial Translation)
The
Ministry of Construction of the People's Republic of China
The
Ministry of Foreign Trade and Economic Co-operation of the People's
Republic of China
Decree
No. 114: The Regulations on Administration of Foreign Investment
Construction and Engineering Design Enterprises were adopted respectively
at the 63rd Executive Meeting of the Ministry of Construction
on 9 September, 2002 and at the 10th Ministerial Meeting of the
Ministry of Foreign Trade and Economic Co-operation on 17 September,
2002, and they are now issued and shall be effective from 1 December,
2002.
Minister
of the Ministry of Construction: Wang Guangtao
Minister
of the Ministry of Foreign Trade and Economic Co-operation: Shi
Guangsheng
27
September, 2002
Article 1
These
Regulations are formulated in order to further the opening up
to the outside and standardise the administration of foreign investment
construction and engineering design enterprises and in accordance
with such laws and regulations as the Construction Law of the
People's Republic of China, the Law of the People's Republic of
China on Sino-Foreign Equity Joint Ventures, the Law of the People's
Republic of China on Sino-Foreign Co-operative Enterprises, the
Law of the People's Republic of China on Wholly Foreign-Owned
Enterprises, the Regulations on Administration of Construction
Works Quality and the Regulations on Administration of Survey
and Design of Construction Works.
Article 2
These
Regulations shall apply to the establishment of foreign investment
construction and engineering design enterprises within the territory
of the People's Republic of China, the application for construction
and engineering design enterprise skill qualifications and the
administration and supervision of foreign investment construction
and engineering design enterprises.
In
these Regulations, the term "foreign investment construction
and engineering design enterprise" refers to a wholly foreign-owned
construction and engineering design enterprise, a Sino-foreign
equity joint venture construction and engineering design enterprise
or a Sino-foreign co-operative construction and engineering design
enterprise established within the territory of the People's Republic
of China in accordance with Chinese laws and regulations.
Article 3
A
foreign investor who intends to establish a foreign investment
construction and engineering design enterprise within the territory
of the People's Republic of China and carry out construction and
engineering design activities shall, in accordance with law, obtain
the foreign investment enterprise approval certificate from the
relevant foreign trade and economic co-operation administrative
department and register with the State Administration of Industry
and Commerce or the relevant local industry and commerce administrative
department authorised by the State Administration of Industry
and Commerce, and also obtain the construction and engineering
design enterprise skill qualification certificate from the relevant
construction administrative department.
Article 4
Foreign
investment construction and engineering design enterprises shall
abide by the laws, regulations and rules of the People's Republic
of China when carrying out construction and engineering design
activities within the territory of the People's Republic of China.
The
legal operation of foreign investment construction and engineering
design enterprises and their legal rights and interests within
the territory of the People's Republic of China shall be protected
by Chinese laws, regulations and rules.
Article 5
The
foreign trade and economic co-operation administrative department
of the State Council shall be responsible for the administration
of establishing foreign investment construction and engineering
design enterprises. The construction administrative department
of the State Council shall be responsible for the administration
of the skill qualifications of foreign investment construction
and engineering design enterprises.
The
foreign trade and economic co-operation administrative department
of the People's Government of each province, autonomous region
or directly administered municipality shall be responsible for
the administration of establishing foreign investment construction
and engineering design enterprises within the scope of power authorised
by the State Council. The construction administrative department
of the People's Government of the province, autonomous region
or directly administered municipality shall be responsible for
the administration of the skill qualifications of the foreign
investment construction and engineering design enterprises within
its administrative region.
Article 6
The
application for and the examination and approval of the establishment
of a foreign investment construction and engineering design enterprise
and the skill qualifications shall be administered by a grading
and categorisation system.
Where
an applicant is to apply for a construction and engineering design
Class A skill qualification or other engineering design Class
A or Class B skill qualification, the establishment of the foreign
investment construction and engineering design enterprise shall
be examined and approved by the foreign trade and economic co-operation
administrative department of the State Council and its skill qualification
shall be examined and approved by the construction administrative
department of the State Council. Where an applicant is to apply
for a construction and engineering design Class B skill qualification
or other engineering design Class C skill qualification or below,
the establishment of the foreign investment construction and engineering
design enterprise shall be examined and approved by the foreign
trade and economic co-operation administrative department of the
People's Government of the province, autonomous region or directly
administered municipality and its skill qualification shall be
examined and approved by the construction administrative department
of the People's Government of the province, autonomous region
or directly administered municipality.
Article 7
The
procedures for establishing a foreign investment construction
and engineering design enterprise and the application for a construction
and engineering Class A design skill qualification or other engineering
design Class A or Class B skill qualification shall be:
| |
(1) |
The
applicant shall submit an application to the foreign trade
and economic co-operation administrative department of the
People's Government of the province, autonomous region or
directly administered municipality where the proposed foreign
investment construction and engineering design enterprise
is to be established. |
| |
|
|
| |
(2) |
The
foreign trade and economic co-operation administrative department
of the People's Government of the province, autonomous region
or directly administered municipality shall carry out and
complete the preliminary examination within 30 days of receiving
the application, and shall, if it grants preliminary approval
after the preliminary examination, submit the application
and its preliminary approval to the foreign trade and economic
co-operation administrative department of the State Council. |
| |
|
|
| |
(3) |
Within
10 days of receiving the application and the preliminary approval,
the foreign trade and economic co-operation administrative
department of the State Council shall forward the application
to the construction administrative department of the State
Council for comments. The construction administrative department
of the State Council shall within 30 days of receiving the
request give its comments. Within 30 days of receiving the
comments, the foreign trade and economic co-operation administrative
department of the State Council shall give its approval or
denial in writing. If approval is given, the applicant shall
be issued with an approval certificate, and if the application
is not approved, reason(s) for the denial shall be given in
writing. |
| |
|
|
| |
(4) |
Within
30 days of receipt of the approval certificate, the applicant
shall carry out enterprise registration with the relevant
registration department. |
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|
|
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(5) |
After
obtaining the enterprise legal entity business license, if
the foreign investment construction and engineering design
enterprise is to apply for the construction and engineering
design enterprise skill qualification, the application shall
be carried out in accordance with the Regulations on Administration
of Construction and Engineering Design Enterprise Skill Qualifications. |
Article 8
The
procedures for the establishment of a construction and engineering
design enterprise and the application for Class B skill qualification
and other engineering design Class C skill qualification or below
shall be administered by the construction administrative department
and the foreign trade and economic co-operation administrative
department of the People's Government of the province, autonomous
region or directly administered municipality based on the actual
local conditions with reference to Article 7 of these Regulations
and the Regulations on Administration of Construction and Engineering
Design Enterprise Skill Qualifications.
Examination
and approval of the skill qualifications of foreign investment
construction and engineering design enterprises by the construction
administrative department of the People's Government of the province,
autonomous region or directly administered municipality shall
be filed with the construction administrative department of the
State Council within 30 days of the approval being given.
Article 9
An
application by a foreign investment construction and engineering
design enterprise to upgrade the class of its skill qualification
or to add a new engineering skill qualification shall be made
to the relevant construction administrative department in accordance
with the relevant regulations.
Article 10
An
applicant intending to establish a foreign investment construction
and engineering design enterprise shall submit the following materials
to the relevant foreign trade and economic co-operation administrative
department:
| |
(1) |
Application
form to establish a foreign investment construction and engineering
design enterprise signed by the legal representative of the
investor; |
| |
|
|
| |
(2) |
Feasibility
study report prepared or accepted by the investor; |
| |
|
|
| |
(3) |
Foreign
investment construction and engineering design enterprise
contract and articles of association signed by the investor's
legal representative (only the articles of association are
required for establishing a wholly foreign-owned construction
and engineering design enterprise); |
| |
|
|
| |
(4) |
Notification
of pre-approval of the enterprise name; |
| |
|
|
| |
(5) |
Documentary
evidence of legal entity registration of the investor to carry
out construction and engineering design in its home country
or region and its bank credential letter; |
| |
|
|
| |
(6) |
Appointment
letters and documentary evidence of the investor's designated
chairman and members of the board of directors, managers and
technical managers etc.; and |
| |
|
|
| |
(7) |
Balance
sheets and profit and loss accounts of the investor for the
past three years audited by a registered accountant or accounting
firm. |
Article 11
The
applicant, to apply for the foreign investment construction and
engineering design enterprise skill qualification, shall submit
the following materials to the relevant construction administrative
department:
| |
(1) |
Application
form for the foreign investment construction and engineering
design enterprise skill qualification; |
| |
|
|
| |
(2) |
Approval
certificate for the foreign investment construction and engineering
design enterprise; |
| |
|
|
| |
(3) |
Enterprise
legal entity business license; |
| |
|
|
| |
(4) |
Documentary
evidence of legal entity registration of the investor to carry
out construction and engineering design in its home country
or region and its bank credential letter; |
| |
|
|
| |
(5) |
Professional
qualification certificate issued to the foreign service
provider by his home country or region and the individual
or enterprise construction and engineering design track
record and documentary evidence of its reputation issued
by the relevant governmental department or professional
institution, association or notary public; and
|
| |
|
|
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(6) |
Other
documents as required by the Regulations on Administration
of Construction and Engineering Design Enterprise Skill Qualifications.
|
Article 12
All
materials required to be submitted by an applicant under these
Regulations shall be in Chinese. If the original documentary evidence
is in a foreign language, a Chinese translation shall be provided.
Article 13
The
foreign investor or the foreign service provider of a foreign
investment construction and engineering design enterprise shall
be an enterprise engaged in construction and engineering design
or a registered architect or registered engineer in its home country.
Article 14
The
total capital contribution of the Chinese party to a Sino-foreign
equity joint venture construction and engineering design enterprise
or a Sino-foreign co-operative construction and engineering design
enterprise shall not be less than 25% of the registered capital.
Article 15
The
classifications of the skill qualifications of the foreign investment
construction and engineering design enterprises shall be in accordance
with the construction and engineering design enterprise skill
qualification classifications issued by the construction administrative
department of the State Council.
Where
a wholly foreign-owned construction and engineering design enterprise
applies for the construction and engineering design enterprise
skill qualification, its foreign service providers who have been
qualified as registered architects or registered engineers in
China shall not be less than 1/4 of the total registered professionals
required under the skill qualification classifications, and the
foreign service providers who have the relevant design experience
shall not be less than 1/4 of the total key technical personnel
required under the skill qualification classifications.
Where
a Sino-foreign equity joint venture construction and engineering
design enterprise or a Sino-foreign co-operative construction
and engineering design enterprise applies for the construction
and engineering design enterprise skill qualification, its foreign
service providers who have been qualified as registered architects
or registered engineers in China shall not be less than 1/8 of
the total registered professionals required under the skill qualification
classifications, and its foreign service providers who have the
relevant design experience shall not be less than 1/8 of the total
key technical staff required under the skill qualification classifications.
Article 16
Each
of the architects and engineers registered in China and the key
technical personnel of the foreign service providers in a foreign
investment construction and engineering design enterprise shall
reside within the territory of the People's Republic of China
for not less than a cumulative period of 6 months each year.
Article 17
Where
a foreign investment construction and engineering design enterprise,
when carrying out construction and engineering design activities,
violates the relevant laws, regulations or rules such as the Construction
Law of the People's Republic of China, the Regulations on Administration
of Construction Works Quality, the Regulations on Administration
of Survey and Design of Construction Works and the Regulations
on Administration of Construction and Engineering Design Enterprise
Skill Qualifications, it shall be penalized in accordance with
the relevant provisions.
Article 18
The
establishment of foreign investment construction and engineering
design enterprises by investors from Hong Kong Special Administrative
Region, Macao Special Administrative Region or Taiwan in another
province, autonomous region or directly administered municipality
and the administration of their construction activities shall
be carried out with reference to these Regulations, unless any
laws or regulations or State Council provisions provide otherwise.
Article 19
The
time for accepting and processing the application for establishment
of foreign investment construction and engineering design enterprises
shall be determined by the construction administrative department
of the State Council and the foreign trade and economic co-operation
administrative department of the State Council.
Article 20
The
construction administrative department of the State Council and
the foreign trade and economic co-operation administrative department
of the State Council shall be responsible for interpreting these
Regulations in accordance with their respective scope of duties.
Article 21
These
Regulations shall be effective from 1 December, 2002. The
Regulations
on Administration of Establishment of Sino-Foreign Project Design
Joint Ventures (Jian She (1992) No. 180) shall be repealed
at
the same time.
Implementation Measures on Administration of Qualifications to
the Regulations on Administration of Foreign Investment Construction
Enterprises
(Pinsent Masons’ Unofficial
Translation)
These
measures are issued in order to implement the Regulations
on Administration of Foreign Investment Construction Enterprises (Decree
No. 113 by the Ministry of Construction and the Ministry of
Foreign Trade and Economic Co-operation) (hereafter, “the
Regulations”).
| I. |
The
enterprises to receive foreign investment construction
enterprise skill qualification certificates
Construction enterprise skill qualification certificates
are to be issued in accordance with law to the following
foreign investment construction enterprises who have obtained
Chinese legal person status:
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1. |
Construction enterprises whose capital is wholly funded
by foreign investors. |
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2. |
Construction enterprises established by foreign and Chinese
investors by way of equity or co-operative joint ventures. |
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3. |
Enterprises newly established within the territory of the
PRC or restructured through reinvestment or acquisition of
their equity interest by foreign investment enterprises already
established legally in the PRC in their own names. |
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Construction enterprise skill qualification certificates
shall not be issued to any foreign enterprises or any branches
set up within the territory of the PRC by such foreign
enterprises or other economic organizations.
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| II. |
Works to be carried out by foreign investment
construction enterprises
The
construction activities stated in Article 3 of the Regulations
refer to those activities such as the undertaking
of civil, building, pipeline, cabling and equipment installation
or decoration works and the expansion and alteration
of such works provided in the Construction Law of
People’s
Republic of China and the Regulation on Administration
of Construction Works Quality.
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| III. |
Determination of foreign investment construction
enterprise skill qualifications
The application for construction enterprise skill qualification
certificates by foreign investment construction enterprises
shall be based on the Regulations on Administration
of Foreign Investment Construction Enterprises (Decree No.
113 by the Ministry of Construction and the Ministry of
Foreign Trade and Economic Co-operation), the Regulations
on Administration of Construction Enterprise Skill Qualifications (Decree No. 87 by the Ministry of Construction), the Implementation
Rules to the Regulations on Administration of Construction
Enterprise Skill Qualifications (Jian Fa No. 24, 2001),
the Construction Enterprise Skill Qualification Classifications (Jian No. 82, 2001) and the related regulations and regulatory
documents.
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1. |
The skill qualification of a newly established foreign
investment construction enterprises shall be determined from
the lowest class in its area of discipline and would be issued
with a temporary certificate for a period of one year. |
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2. |
A foreign investment construction enterprise newly established
by a foreign enterprise(s) which has previously undertaken
projects within the territory of the PRC may, if it meets
the following requirements in addition to those as stated
in the Construction Enterprise Skill Qualification
Classifications,
apply directly for a Class 2 construction enterprise skill
qualification certificate or above:
| (1) |
The
foreign investment construction enterprise has received
a foreign enterprise skill qualification certificate
or a permit to undertake construction works issued
by the Ministry of Construction or the construction
administration department of a province, a special
economic zone or a coastal city in accordance with
the Tentative Measures on Administration of Foreign
Enterprise Skill Qualifications for Contracting Construction
Works Within the Territory of China (Decree No. 32
by the Ministry of Construction). |
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| (2) |
In
the case of a wholly foreign investment construction
enterprise applying for skill qualification, the
track record of the foreign investor(s) undertaking
projects within the territory of China shall meet
the requirements for the application of such skill
qualification. In case of a equity or co-operative
joint venture applying for skill qualification, the
combined track record from the foreign investor undertaking
projects within the territory of China and the Chinese
party shall meet the requirements for the application
of such skill qualification. |
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| (3) |
In
case of a domestic construction enterprise which
has become a Sino-foreign equity or co-operative
joint venture due to an acquisition of its equity
interest by foreign enterprise(s), such acquired
enterprise shall be re-assessed and its skill qualification
determined in accordance with the requirements which
it is able to satisfy. |
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| (4) |
In
case of a domestic construction enterprise which
has become a wholly foreign owned construction due
to an acquisition of its equity interest by foreign
enterprise(s), such acquired enterprise shall be
re-assessed and its skill qualification determined
in accordance with the requirements it is able to
satisfy. |
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| (5) |
A
Sino-foreign equity or co-operative construction
joint venture which has failed to meet the requirement
on registered capital under the Several Provisions
on Establishment of Foreign Investment Construction
Enterprises jointly issued by the Ministry of Construction
and the Ministry of Foreign Trade and Economic Co-operation
(Jian No. 553) prior to the effective date of the
Regulations may apply for the skill qualification
of the relevant class after the coming into effect
of these Regulations. |
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| IV. |
Qualifications
of foreign service providers in foreign investment construction
enterprises
When a foreign investment construction enterprise engages
foreign service providers as its engineering technical
or financial managerial personnel, it shall submit the
employment contracts signed in accordance with the law
when applying for the enterprise skill qualification.
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1. |
If
the foreign investment construction enterprise engages
a foreign service provider as the manager of the enterprise,
the foreign service provider must possess the construction
management experience required under the Construction
Enterprise Skill Qualification Classifications and relevant documentary
evidence shall be provided. |
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2. |
If
the foreign investment construction enterprise engages
a foreign service provider as the construction technical
or financial manager of the enterprise, the foreign service
provider must meet the requirements for technical qualifications
under the Construction Enterprise Skill Qualification Classifications. |
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3. |
A
construction technical or financial manager engaged by
the foreign investment construction enterprise who possesses
a bachelor degree or above and 10 years of experience in
his area of discipline may be qualified as a person with
senior qualification in the application for the skill qualification
by the enterprise. An engineering technical or financial
manager who possesses a college degree or above and 5 years
of experience in his area of discipline may be qualified
as a person with middle-level qualification in the application
for the skill qualification by the enterprise. |
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4. |
If
a foreign investment construction enterprise engages a
foreign service provider as the on-site project manager
of the enterprise, the relevant approval authority may,
in the application for the skill qualification by the enterprise,
confirm the qualification of the foreign service provider
in the relevant class if the foreign service provider meets
the following requirements and relevant documentary evidence
is provided: |
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| (1) |
If the foreign service provider is to be
qualified as a Class 1 on-site project manager, the person
must have acted as the person chiefly responsible for
the management of at least one construction project that
can only be undertaken by a Class 1 construction enterprise
or two construction projects that can only be undertaken
by a Class 2 construction enterprise. |
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| (2) |
If
the foreign service provider is to be qualified as
a Class 2 on-site project manager, the person must
have acted as the person chiefly responsible for the
management of at least two construction projects, and
one of them must be a project that can only be undertaken
by a Class 2 construction enterprise. |
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| (3) |
If the foreign service provider is to be
qualified as a Class 3 on-site project manager, the person
must have acted as the person chiefly responsible for
the management of at least two construction projects,
and one of them must be a project that can only be undertaken
by a Class 3 construction enterprise. |
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The
number of foreign service providers qualified as on-site
project managers in an enterprise in accordance with this
provision shall not exceed one third of the total number
of on-site project managers required under the Construction
Enterprise Skill Qualification Classifications. |
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5. |
A
foreign service provider engaged as the construction technical
or financial manager by a foreign investment construction
enterprise shall reside within the territory of the PRC
for a period of not less than 3 months each year. |
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| V. |
Determination
of track records for foreign investment construction enterprises
The construction projects jointly undertaken by the foreign
investor(s) of a foreign investment construction enterprise
and a Chinese domestic construction enterprise or subcontracted
to a Chinese domestic construction enterprise by such a
foreign investment construction enterprise after the coming
into effect of Regulations may be relied upon as the track
record of the foreign investment construction enterprise
in the application for its construction enterprise skill
qualification or to satisfy requirements for an annual
examination.
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| VI. |
Scope
of works to be contracted by wholly foreign owned construction
enterprises
The
term “undertaking construction works jointly
by Chinese and foreign investment construction enterprises” referred
to in Article 15, Section 4 of the Regulations means that
a wholly foreign owned construction enterprise may undertake
projects together with a domestic construction enterprise,
Sino-foreign equity or co-operative construction enterprise
as a consortium.
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| VII. |
Time
for processing applications for skill qualification certificates
by foreign investment
construction enterprises
The period from 1 December 2002 to 1 October 2003 shall
be a transitional period where Decree No. 32 and the Regulations
would be implemented simultaneously. During this period,
the relevant approval authority will accept and process
applications for skill qualifications by foreign investment
construction enterprises at any time.
From 1 October 2003, applications by foreign investment
construction enterprises for skill qualifications will
be accepted for processing in accordance with schedules
set for domestic construction enterprises. |
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| VIII. |
Relationship between the Regulations
and Decree No.32
Pursuant to Article 26 of
the Regulations, foreign enterprises contracting projects
within the territory of the PRC shall
prior to 1 October 2003 continue to be governed under Decree
32, the Tentative Measures on Administration of Foreign
Enterprise Qualifications for Contracting Construction
Projects Within the Territory of China issued by the
Ministry of Construction.
| 1. |
Those
foreign enterprises which have already obtained the
foreign enterprise qualification certificates to
contract projects in China are allowed to continue
to contract projects within the territory of China,
which includes completing any approved projects or
applying for expansion of the geographical areas
where they are allowed to contract or renewal of
their qualification certificates in accordance with
the Tentative Measures on Administration of Foreign
Enterprise Qualifications for Contracting Construction
Projects Within the Territory of China. |
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| 2. |
Those
foreign enterprises which have not yet obtained the
foreign enterprise qualification certificates to
contract projects in China are allowed to apply for
such certificates in accordance with the Tentative
Measures on Administration of Foreign Enterprise
Qualifications for Contracting Construction Projects
Within the Territory of China. |
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| 3. |
After
1 October 2003, the relevant approval authority will
not accept and process any applications for foreign
enterprise skill qualification certificates to contract
projects within the territory of China, renewal of
such certificates or expansion of the geographical
areas where foreign enterprises are allowed to contract.
However, foreign enterprises are allowed to complete
projects where the contracts are signed prior to
1 October 2003 but the contracts or the construction
period for these projects extend beyond this date.
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