Article 1 For the purposes of strengthening the administration of commercial franchise activities and regulating the commercial franchise market order, these Measures are formulated in accordance with relevant provisions of the Regulations on the Administration of Commercial Franchises (hereinafter referred to as the "Regulations").
Article 2 These Measures shall apply to commercial franchise activities conducted within the territory of the People's Republic of China (hereinafter referred to as the "within the territory of China").
Article 3 The Ministry of Commerce and the departments in charge of commerce of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are the authorities responsible for the record-filing of commercial franchises. The commercial franchise activities carried out within the territorial scope of a province, autonomous region or municipality directly under the Central Government shall be filed for record with the department in charge of commerce of the people's government of the province, autonomous region or municipality directly under the Central Government where the franchisor is domiciled. The franchise activities carried out across the territorial boundaries of provinces, autonomous regions or municipalities directly under the Central Government shall be filed for record with the Ministry of Commerce.
A nationwide network is adopted for the record-filing of commercial franchises. Franchisors complying with the provisions of the Regulations shall, in accordance with the provisions of these Measures, file for record through the information management system for commercial franchises established by the Ministry of Commerce.
Article 4 The Ministry of Commerce may, in accordance with relevant provisions, delegate work related to the record-filing of commercial franchises of franchisors engaging in franchise across the territorial boundaries of provinces, autonomous regions or municipalities directly under the Central Government to the departments in charge of commerce of the people's governments of the relevant provinces, autonomous regions or municipalities directly under the Central Government. The departments in charge of commerce of the people's governments of provinces, autonomous regions or municipalities directly under the Central Government entrusted with the record-filing work shall complete such work by themselves, and shall not further entrust any other organization or individual with the work.
If the departments in charge of commerce of the people's governments of provinces, autonomous regions or municipalities directly under the Central Government entrusted with the record-filing work fail to perform their record-filing related duties in accordance with the law, the Ministry of Commerce may directly accept the record-filing applications submitted by franchisors.
Article 5 Any entity or individual may report to the relevant department in charge of commerce any act that is in violation of provisions of these Measures, and the department in charge of commerce shall handle the case in accordance with the law.
Article 6 A franchisor applying for record-filing shall submit the following materials to the relevant record-filing authority:
(1) The basic information about the commercial franchise;
(2) The distribution of shops of all franchisees within the territory of China;
(3) The marketing plan of the franchisor;
(4) The enterprise legal person business license or other subject qualification certificates;
(5) Registration certificates on the trademark right, patent right and other operational resources relating to the franchise activities;
(6) Supporting documents in conformity with Paragraph 2 of Article 7 of the Regulations;
The provisions of the preceding paragraph do not apply to the circumstances where a franchisor that started the franchise activities before May 1, 2007 submits application materials for record-filing of commercial franchises.
(7) The first franchise contract signed with the franchisee within the territory of China;
(8) A sample franchise contract;
(9) The table of contents of the franchise operation manual (the number of pages of each chapter and the total number of pages in the manual shall be indicated. Where such manual is provided on the internal network of the franchise system, an estimate of the number of pages in a print-out shall be indicated);
(10) Where laws and regulations of the State require prior approval to offer the product and service involved in the franchise operation, the approval document from the relevant competent department shall be submitted;
Foreign-invested enterprises shall submit the Approval Certificate for Foreign-invested Enterprise. The business scope specified in the Approval Certificate for Foreign-invested Enterprise shall include the item of "engagement in commercial activities by way of franchise".
(11) The franchisor's undertaking signed or sealed by the franchisor's legal representative; and
(12) Other materials to be submitted as required by record-filing authorities.
If the abovementioned documents are prepared outside the territory of the People's Republic of China, such documents need be notarized by a notary public (with a Chinese translation attached) in the country where the document is prepared, and certified by the embassy or consulate of the People's Republic of China in that country, or the certification formalities prescribed in the relevant treaty signed between the People's Republic of China and that country shall be completed. If the documents are prepared in Hong Kong, Macao or Taiwan region, the relevant certification formalities shall be completed.
Article 7 A franchisor shall apply with the relevant record-filing authority for record-filing within 15 days from the date on which it signs the first franchise contract with the franchisee located within the territory of China.
Article 8 Where any changes occur to the following record-filing information of a franchisor, the franchisor shall submit an application for change of registration with the relevant record-filing authority within 30 days from the date of occurrence of such changes:
(1) The information of the franchisor registered with administrative authority for industry and commerce;
(2) The information pertaining to the operational resources; or
(3) The distribution of all the stores of the franchisees within the territory of China.
Article 9 Prior to March 31 of each year, a franchisor shall report to the relevant record-filing authority the status of the execution, rescission, termination and renewal of franchise contracts in the preceding year.
Article 10 A franchisor shall exercise due care in filling out information about all items required for record-filing, and ensure that the information provided is authentic, accurate, and complete.
Article 11 A record-filing authority shall complete the record-filing procedures within ten days from the date when it receives documents and materials submitted by a franchisor which comply with provisions of Article 6 of these Measures, and make the relevant announcement via the information management system for commercial franchises.
Where the documents and materials submitted by the franchisor are incomplete, the record-filing authority may require the franchiser to submit supplementary documents and materials within seven days. Upon receipt of all of the supplementary documents and materials from the franchiser, the record-filing authority shall complete the record-filing procedures within ten days.
Article 12 Where a franchisor that has completed the record-filing procedures involves any of the following acts, the relevant record-filing authority may cancel the record-filing, and make an announcement thereon via the information management system for commercial franchises:
(1) The franchisor cancels its registration with the administrative department for industry or commerce, or the franchisor's business license is revoked by the competent registration authority due to its illegal business operation;
(2) The record-filing authority receives the written judicial advice from a judicial authority proposing the cancellation of the record-filing due to the franchisor's illegal business operation;
(3) The franchisor conceals the relevant information or provides false information, which causes significant impact;
(4) The franchisor applies for the cancellation of the record-filing, and the relevant record-filing authority approves such application; or
(5) Other situations in which the cancellation of the record-filing is necessary.
Article 13 Departments in charge of commerce of the people's governments of all provinces, autonomous regions and municipalities directly under the Central Government shall report the information pertaining to the record-filing and cancellation of record-filing to the Ministry of Commerce within ten days.
Article 14 Record-filing authorities shall preserve complete and accurate records of the record-filing information pertaining to franchisors, as well as relevant materials, and keep confidential the trade secrets of franchisors in accordance with the law.
The department in charge of commerce of the people's government (at the level of province, autonomous region, municipality directly under the Central Government, or city divided into districts) where the franchisor is located may issue the record-filing certificate to the franchisor that has completed the record-filing procedures.
Article 15 The general public shall have access to the following information through the information management system for commercial franchises:
(1) A franchisor's enterprise name and operational resources such as registered trademarks, business logos, patents, and know-how used in the franchise business;
(2) A franchisor's record-filing time;
(3) The address of the legal business premises and the contact information of a franchisor, and the name of the legal representative thereof; and
(4) The distribution of all the stores of franchisees within the territory of China.
Article 16 If a franchisor fails to complete the record-filing procedures in accordance with provisions of the Regulations and these Measures, the department in charge of commerce at or above the level of city divided into districts shall order the franchiser to complete the record-filing procedures within a specified time limit, and impose thereon a fine of more than RMB 10,000 and less than RMB 50,000. If the franchisor fails to complete the record-filing procedures within the specified time limit, a fine of more than RMB 50,000 and less than RMB 100,000 shall be imposed, and an announcement shall be made.
Article 17 If a franchisor violates the provisions of Article 11 of these Measures, the department in charge of commerce at or above the level of cities with districts shall order the franchisor to make rectifications and may impose thereon a fine of less than RMB 10,000. In serious cases, a fine of more than RMB 10,000 and less than RMB 50,000 shall be imposed and an announcement shall be made.
Article 18 Overseas franchisors engaging in franchise activities within the territory of China shall be governed by these Measures. These Measures shall apply as the reference for governing franchisors from the Hong Kong and Macao Special Administrative Regions, and Taiwan region.
Article 19 The relevant associations shall, in accordance with the provisions of these Measures, strengthen the industry self-regulation, and provide guidance for franchisors on completing the record-filing formalities in accordance with the law.
Article 20 The Ministry of Commerce is responsible for the interpretation of these Measures.
Article 21 These Measures shall come into force on February 1, 2012. The Administrative Measures for the Record-filing of Commercial Franchises (Decree No. 15 [2007] of the Ministry of Commerce) which came into force on May 1, 2007, shall be repealed simultaneously.
杨春宝一级律师简介
杨春宝一级律师，大成上海高级合伙人、资本市场部主任、国资基金研究中心主任，大成中国区私募基金专业带头人、科技与文化法律研究中心联合牵头人。执业30余年，长期从事私募基金、投融资、并购重组法律服务，尤其对对赌研究颇深且具有非常丰富的实战经验，并专注于金融机构股权投资业务。2004年起多次入选The Legal 500"私募基金"和"公司与商业"等境内外各类律师榜单，代理的中国法院首例适用外国法律审理外国公司的董事损害小股东权益纠纷案入选上海高院发布的《上海法院域外法查明典型案例》和威科先行"要案头条"。入选上海涉外法律人才库、上海市司法局鼎新法治人才库、上海国有企业改制法律顾问团，具有上市公司独立董事任职资格，系多家知名高校的兼职教授或兼职研究生导师及上海市商务委跨国经营人才培训班讲师。出版《私募股权投资基金风险防控操作实务》等16本投融资法律专著。了解更多常见法律问题
特许经营备案的法定时限与材料要求是什么？
根据商业特许经营管理法规，特许人应当自首次与境内被特许人签订特许经营合同之日起15日内，向商务主管部门办理备案。备案材料包括特许经营基本状况、境内被特许人店铺分布、特许人市场计划、企业法人营业执照或其他主体资格证明、与特许经营相关的商标权或专利权等经营资源注册证书、首份特许经营合同、特许经营合同样本、特许经营操作手册目录（需注明各章页数和总页数，若提供内部网络版需估算打印页数）、法律法规要求前置审批的批准文件（外商投资企业还需提交批准证书，且经营范围须包含以特许经营方式从事商业活动）、特许人法定代表人签署的承诺书，以及备案机关要求的其他材料。境外形成的文件需经当地公证机构公证并附中文翻译，再经中国驻该国使领馆认证或按相关条约办理认证；港澳台文件需办理相应认证手续。备案机关收到符合要求的材料后10日内完成备案并公告；材料不完整的，备案机关可要求7日内补正，补正后10日内完成备案。逾期备案或提交虚假材料可能影响备案效力，并面临行政处罚。
特许经营备案信息变更与年度报告义务如何履行？
特许人完成备案后，若备案信息发生变更，应当在变更之日起30日内向原备案机关申请变更登记。需变更的信息包括：特许人在工商登记机关登记的信息、经营资源相关信息（如商标权、专利权等权利状态变化）、境内全部被特许人店铺分布情况。实务操作中，企业应建立内部信息跟踪机制，及时更新上述三类信息，避免因未及时变更导致备案信息与实际不符。此外，特许人还须于每年3月31日前，向备案机关报告上一年度特许经营合同的签订、解除、终止及续约情况。年度报告应准确反映年度内合同动态，包括新签合同数量、解除或终止合同的原因及数量、续约情况等。未按时报送年度报告或报告内容不实的，备案机关可责令改正，情节严重的可能撤销备案。企业应指定专人负责备案信息维护与年度报告编制，留存相关合同台账备查。
备案撤销的情形有哪些？备案被撤销后的法律后果如何？
备案撤销适用于已备案特许人发生特定违法行为或丧失经营资格的情形，主要包括：特许人向工商登记机关注销登记，即主体资格消灭；特许人从事特许经营业务时不再符合法定条件（如丧失经营资源权利）；特许人提供虚假备案材料或隐瞒重要事实，导致备案基础不实；特许人未履行年度报告义务且经催告仍不改正；特许人违反备案管理其他强制性规定，情节严重的。备案机关作出撤销决定后，通过商业特许经营信息管理系统公告。备案撤销的后果是特许人不再具备合法备案身份，无法援引备案对抗监管检查，其特许经营活动可能被认定为违规，从而面临商务主管部门的行政处罚，包括罚款、责令停止经营等。同时，备案撤销会影响潜在被特许人对特许人资信的判断，可能导致既有加盟商解约索赔。此外，撤销备案不免除特许人因先前违规行为应承担的法律责任，已发生的民事纠纷仍需按合同及法律规定处理。特许人应在日常运营中确保合规，避免触发撤销条件。
以上内容仅供参考，不构成法律意见。如需专业法律服务，请联系杨春宝一级律师：chambers.yang@dentons.cn
