Article 1
In order to further expand international economic co-operation and technological exchange, to absorb foreign investment and to promote the development of socialist market economy, foreign companies, enterprises and other economic organizations or individuals (hereinafter referred to as foreign shareholders) may incorporate themselves into a company limited by shares with foreign investment (hereinafter referred to as the company) with Chinese companies, enterprises or other economic organizations (hereinafter referred to as Chinese shareholders) within Chinese territory on the principle of equality and mutual benefit.
Article 2
In these Regulations, the term "a company limited by shares with foreign investment" refers to an enterprise legal person established in accordance with these Regulations, with the entire capital being divided into shares of equal value, where the shareholders bear responsibilities to the company to the extent of the number of the shares they hold and the company bears responsibilities for its debts with all its assets, and where the Chinese and foreign shareholders jointly hold the company's stock, with the shares subscribed and held by foreign shareholders being more than twenty-five per cent of the company's registered capital.
Article 3
The company is one of the forms of enterprises with foreign investment and shall be governed by the relevant laws and regulations of the state concerning enterprises with foreign investment.
Article 4
The establishment of such company shall be in conformity with the state industrial policies concerning foreign investment. The state encourages the establishment of production-oriented enterprises using advanced technologies.
Article 5
The company may be established by means of promotion or offer.
Article 6
The company set up by means of promotion shall meet the conditions as provided for in the Company Law on promoters, with at least one of the promoters being a foreign shareholder.
The company established by means of offer shall meet the requirements as provided for in the preceding paragraph, with at least one of the promoters having records of continuously making profits in the recent three consecutive years prior to the offer. In case the aforementioned promoter is a Chinese shareholder, the last three years' financial statements audited by a Chinese certified public accountant should be furnished. In case the aforementioned promoter is a foreign shareholder,
the financial statements audited by a certified public accountant registered in its country of residence should be furnished.
Article 7
The registered capital of the company shall be the total share capital registered with the registration authority and actually paid in. The minimum amount of the registered capital of the company shall be RMB 30 million, with the shares subscribed and held by foreign shareholders being no less than twenty-five per cent of the registered capital.
Article 8
The transfer of the shares subscribed by the shareholders shall meet the conditions stipulated in Article 7 of these Regulations. The promoters' shares may be transferred after three years from the date of registration of the company, subject to the approval by the original examination and approval authority.
Article 9
After the promoters conclude an agreement to establish the company, they may jointly entrust one of them to handle all matters regarding the application for setting up the company. The detailed procedures are as follows:
(1) the applicant shall submit an application for the setting up of the company, feasibility study report, asset evaluation report, etc. to the competent departments of the provinces, autonomous regions, municipalities directly under Central Government and cities with independent planning (hereinafter referred to as the competent departments) where the applicant is located. Prospectus shall also be submitted for the application of establishing a company through offer of shares.
(2) the aforementioned documents, upon examination by and with the consent of the competent departments, shall be submitted, through the competent departments, to the foreign economic and trade departments of the same provinces, autonomous regions, municipalities directly under Central Government and cities with independent planning. Upon approval of he documents by foreign economic and trade departments, the promoters shall officially sign an agreement for the establishment of the company and its articles of association. And
(3) the agreement for the establishment of the company and the articles of association signed by the promoters shall, upon examination by and with consent of the foreign economic and trade departments of the provinces, autonomous regions, municipalities directly under the Central Government and cities with independent planning, be submitted to the Ministry of Foreign Trade and Economic cooperation for examination and approval. The Ministry of Foreign Trade and Economic Cooperation shall decide to approve or disapprove it within 45 days.
Article 10
All kinds of documents provided by the promoters shall be written in the Chinese language. Where all promoters consider it necessary, a foreign language agreed upon by all the promoters can be used simultaneously.
However, the examined, approved and effectuated Chinese version shall be authentic.
Article 11
The application for establishing a company shall lay down the following:
(1) names, domiciles and the legal representative of the promoters;
(2) name, domicile and aims of the company to be established;
(3) method to establish the company, total value of shares, share category, value per share, proportion of the shares subscribed by promoters and the scope and means of the offer;
(4) the production and management situations of the promoters, including information about production and management, assets and liabilities and profitabilities in the recent three years (only applicable to promoters who establish a company by means of offer);
(5) the fields of capital investment and business scope of the company;
(6) time of the application, signature of the legal representative of the promoters and official stamp of the promoters' unit; and.
(7) other matters that need to be elaborated.
Article 12
The promoters' agreement shall include the following main contents:
(1) names and domiciles of the promoters; name, nationality, domicile and post of the legal representative;
(2) name and domicile of the company to be established;
(3) objectives and business scope of the company;
(4) means of establishment and structure of the company;
(5) the company's registered capital, total shares, share category and the number, form and subscription period of the shares subscribed by promoters;
(6) rights and obligations of the promoters;
(7) liability for breach of agreement;
(8) application of law and settlement of disputes;
(9) effectiveness and termination of the agreement;
(10) time and place of signature of the agreement, signature of the promoters; and
(11) other matters that need to be notified.
Article 13
After the promoters' agreement to establish the company and the articles of association are approved by the Ministry of Foreign Trade and Economic Cooperation, the promoters shall, within 30 days, open a special-purpose bank account with a bank by presenting the certificate of approval issued by the Ministry of Foreign Trade and Economic Cooperation.
The promoters shall make full payment in one installment of all the shares subscribed within 90 days from the date of issue of the certificate of approval. The promoters shall undertake the joint and several liability for the subscription before all the capital subscribed to the company by themselves is paid. The promoters are also jointly liable for the debts and expenses arising from actions to establish the company if the company fails to be established.
Article 14
Where the company is established by means of promotion, after the promoters have made full payment for shares subscribed in accordance with the provisions of Article 11, an election for the board of directors and the board of supervisors shall be made. The board of directors shall submit the document of approval to establish the company, articles of association, certificate of capital verification, etc. to the registration authority and apply for the registration.
Where the company is established by means of offer, after the full payment has been made for the shares issued, it must be verified and given certificate by an authorized investment verification organization. The promoters shall within 30 days, hold the founding meeting of the company and elect the board of directors and the board of supervisors. The board of directors shall submit document of approval, the company's articles of association, certificate of capital verification, memorandum of the founding meeting, etc. to the registration authority to apply for the registration.
The registration authority shall complete the registration formalities and issue the business licence within 30 days after it receives all documents for registration.
Article 15
Where existing Chinese-foreign equity joint ventures, Chinese-foreign cooperative joint ventures and wholly foreign-owned enterprises (hereinafter referred to as "enterprises with foreign investment") apply to reorganize themselves into a company, the enterprises with foreign investment must have a record of making profits for the recent 3 consecutive years. The investors of the original foreign investment enterprises shall act as the promoters (or together with other promoters) to sign the agreement for the set up of the company and the articles of association and then submit them to the original examination and approval authority in the location of the original foreign investment enterprise for preliminary examination and approval and onward submission to the Ministry of Foreign Trade and Economic Cooperation for final approval.
The following documents shall be submitted where an enterprise with foreign investment applies for such reorganization:
(1) contract, articles of association of the original enterprise with foreign investment;
(2) decision of the board of directors of the original enterprise with foreign investment on the reorganization of the enterprise;
(3) agreement of the investors of the original foreign investment enterprise on the termination of the original contract and articles of association;
(4) asset evaluation report of the original enterprise with foreign investment;
(5) the promoter's (including but not limited to the investors of the original enterprise with foreign investment) agreement;
(6) articles of association of the company;
(7) business licence, certificate of approval, and the financial report of the recent 3 consecutive years;
(8) application letter for the establishment of the company;
(9) the promoters' credit references; and
(10) feasibility study report.
Article 16
After the foregoing applications are approved by the Ministry of Foreign Trade and Economic Cooperation, the promoters shall go through the procedure of alteration of registration after the issuance of approval certificate and full payment of the capital shares subscribed.
Article 17
Upon the completion of the formalities for the alteration of registration, all the rights and obligations of the original enterprise with foreign investment shall be fully assumed by the company.
The obligations committed by the Chinese and foreign investors of the enterprise with foreign investment in the original contract and articles of association should be specified in the promoter's agreement and articles of association and made applicable to the company to be established.
Article 18
A state-owned enterprise or a collectively-owned enterprise which applies for reorganizing itself into a company shall meet the following requirements in addition to other provisions as provided for in these Regulations:
(1) the enterprise shall have an operational period of no less than five years, and have records of taking profits in the recent three consecutive years;
(2) shares of the enterprise as subscribed with freely convertible foreign currencies and held by foreign shareholders shall take more than twenty-five per cent of the registered capital of the enterprise; and
(3) the business scope of the enterprise shall be in line with the state's industrial policies for enterprises with foreign investment.
The agreement for the setting up of the company and the articles of
association signed by Chinese and foreign shareholders as promoters shall
be submitted to the local examination and approval authority for
preliminary examination and approval and onward submission to the Ministry of Foreign Trade and Economic Cooperation for final approval.
The following documents shall be submitted in order to apply for the reorganization:
(1) asset evaluation report of the enterprise;
(2) application letter for the establishment of the company;
(3) feasibility study report;
(4) promoters' agreement;
(5) the company's articles of association;
(6) business license and balance sheets for the recent three consecutive years of the enterprises;
(7) credit references of the promoters; and
(8) other necessary documents.
Article 19
Upon the approval by the Ministry of Foreign Trade and Economic Cooperation for the above mentioned application, the promoters shall, after the issuance of the approval certificate and full payment of the share capital subscribed, apply to the registration authority for the alteration of registration.
Article 20
A company limited by shares applying for reorganizing itself into the company shall meet the following requirements in addition to other provisions as provided for in these Regulations:
(1) the establishment of the company limited by shares was duly approved by the State;
(2) the shares subscribed with freely convertible foreign currencies and held by Foreign Shareholders shall take more than twenty-five per cent of the company's registered capital; and
(3) the business scope of the company limited by shares shall be in line with the industrial policies for enterprises with foreign investment.
Article 21
Where a company limited by shares applies to reorganize itself into a company by means of issuing Renminbi Special Shares (B Shares) to the public, the following documents shall be submitted:
(1) the decision of the shareholders' meeting on reorganizing itself into a company;
(2) asset evaluation report of the original company limited by shares;
(3) application report on the reorganizing itself into the company;
(4) agreement on the additions and amendments to the articles of association of the original company limited by shares;
(5) approval document from the security administration authority on the public offer of Renminbi Special Shares (B Shares); and
(6) other necessary documents.
Article 22
Where a company limited by shares applies to reorganize itself into a company by increasing capital and making public offer of new shares or reverting to offering shares to be held by foreign shareholders, it shall submit, in addition to the documents set out in item (1), (2), (3) and (4) in the preceding article, the share subscribing agreement entered into between the company limited by shares and the specifically-targeted subscriber (s) as well as other necessary documents.
Article 23
A company limited by shares, which is listed and makes public offer of shares outside the Chinese territory to foreign investors (including but not limited to H shares and N shares) and applies for the reorganization into the company, should submit the following documents in addition to documents set out in item (1), (2), (3) and (4) of Article 21:
(1) approval document from the security administration authority on the overseas listing;
(2) approval document from the security administration authority outside the Chinese territory on the public listing of the original company limited by shares; and
(3) transaction records of the overseas listed shares of the original company limited by shares.
Article 24
Upon approval by the Ministry of Foreign Trade and Economic Cooperation on the above mentioned application, the original company limited by shares shall apply for the alteration of registration by presenting the approval document and the public offering certificate to the administration authority for industry and commerce.
Article 25
Other matters relating to the company that are not provided for in these Provisional Regulations shall be handled in accordance with the Company Law and Special Regulations of the State Council on Offer and Listing of Shares Outside the Territory by Companies Limited by Shares.
Article 26
The tax holidays for tax exemption and reduction etc. shall not be recalculated for a company reorganized by an enterprise with foreign investment.
Article 27
These Provisional Regulations are applicable to the companies established with investment by companies, enterprises, and other economic organizations or individuals from the regions of Hong Kong, Macao and Taiwan.
Article 28
The Ministry of Foreign Trade and Economic Cooperation shall take charge of the interpretation of these Provisional Regulations.
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
什么是外商投资股份有限公司？其基本特征是什么？
外商投资股份有限公司是指依照相关规定设立的企业法人，其全部资本分为等额股份，股东以其认购的股份为限对公司承担责任，公司以其全部资产对债务负责。中外股东共同持有公司股份，其中外国股东认购并持有的股份须占公司注册资本的百分之二十五以上。该公司属于外商投资企业的一种形式，适用国家关于外商投资企业的法律制度和政策规范。在实务中，外国公司、企业及其他经济组织或个人可与中国的公司、企业或其他经济组织共同作为发起人。规定鼓励设立采用先进技术的生产性企业，并要求设立符合国家产业政策。外资持股比例是否达到四分之一以上，是确认企业能否适用外商投资企业待遇的核心标准，也直接关系到后续审批、税收及外汇管理等方面的法律适用。企业筹备阶段应准确测算注册资本总额与外资认购份额，确保外资比例达标。同时应提前研究产业准入政策，避免因项目属于限制或禁止类而无法获批。若外资比例低于法定下限，则不能按外商投资股份有限公司模式设立，可能需要调整股权架构或选择其他企业形式。另外，公司章程和协议中应明确股东权利义务，为后续运营提供依据。
设立外商投资股份有限公司需要经过哪些审批程序？
设立外商投资股份有限公司实行多级审查批准制度。基本流程是，发起人先签订设立协议，然后共同委托其中一名发起人办理申请事宜。申请时须向所在地的省级或计划单列市主管部门提交设立申请书、可行性研究报告、资产评估报告等文件；若采取募集设立方式，还须报送招股说明书。主管部门审查同意后，再由外经贸部门审核。主管部门对外经贸部门审核同意后，将发起人签署的公司设立协议与章程转报对外贸易经济合作部（即原审批机关）审查批准。审批机关应在四十五天内作出批准或不批准的决定。此外，所有申报文件应以中文书写，若同时使用外文，以经审查批准的中文文本为准。募集设立方式还要求至少一名发起人在募集前连续三年盈利，并提供相应审计报告。企业在准备申报材料时，应确保申请文件齐全、内容真实，特别是可行性研究报告与资产评估报告需符合规范。由于审批涉及地方与国家两级部门，建议事先与主管部门沟通，了解具体受理口径。审批通过后，发起人须凭批准证书在规定期限内开设银行专户，并一次性缴足所认购的全部股份。若未按期缴付，可能承担违约责任或导致设立失败。
外商投资股份有限公司的注册资本与股东出资有何特殊要求？
关于注册资本，规定要求外商投资股份有限公司的注册资本为公司登记机关登记的实收股本总额，最低限额为人民币三千万元。同时，外国股东认购并持有的股份不得低于注册资本的百分之二十五。股东缴付股本采取一次性实缴制，发起人必须在批准证书签发之日起九十天内，一次性缴清其认购的全部股份，不允许分期缴纳。在出资实务中，若采用发起设立方式，至少一名发起人应为外国股东；若采用募集设立方式，除满足前述条件外，还须至少有一名发起人在募集前连续三年保持盈利记录。中外发起人均须提供相应的财务审计报告。发起人之间对公司资本缴足前承担连带认缴责任；如果公司最终未能设立，发起人还要对公司设立过程中产生的债务和费用承担连带责任。企业设立时应统筹规划注册资本总额与各股东认购比例，确保外资份额达标并满足行业最低资本要求。因出资期限较短，发起人应提前做好资金安排，避免逾期违约。此外，股份转让受到限制，发起人持有的股份自公司登记设立之日起三年内不得转让，三年后转让须经原审批机关批准。外资持股比例的变化可能影响公司外资属性，转让时需保持谨慎并履行审批程序。
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
