澳洲留學作業 深度解析第三大貿易經濟體-中國
11-14, 2014
1.引言
從中國2001年加入世界貿易組織后，許多公司都想在中國投資，因此，中國已經成為了世界上的第三大貿易經濟體。為了市場擴展，許多的企業都希望能夠在中國投資。由于東道國在控制外商直接投資的進入上有極大的權力，所以了解中國的法律環境和相關的法律政策是十分重要的。本篇dissertation的目標就是，分析中國關于調控和鼓勵外商投資者的法律環境和政策規定。
2.中國法律環境
雷姆非與賽格爾的書中寫道：為了指導外商投資到一些優先的產業部門，同時也限制或禁止在其他產業的投資，中國的法律將所有的外商投資項目分成了以下的四個種類：禁止投資的項目，限制投資的項目，鼓勵投資的項目和允許投資的項目。此外，僅僅是研究中國有關外商投資的法律是遠遠不夠的，投資者也需要去了解中國的普通法規，比如勞動法和稅法。
1. Introduction
After China joined WTO in 2001, many companies want to invest in China resulted in China has became the third largest trade economy in the world. Many companies want to invest China for market expansion. Due to the unlimited right of host countries to control the entry of FDI, it is important to know the legal environment of China and relevant law and policy. This essay will aim to examine legal environment of China and the regulation both regulate and encourage foreign investors.
2. Chinese Legal Environment
According to Remfry & Sagar (n.d.),” In order to direct foreign investment into certain priority industry sectors, while restricting or prohibiting investment in others, Chinese law broadly classifies all foreign investment projects into one of the following four categories: prohibited projects, restricted projects, encouraged projects and permitted projects”. Moreover, it is not enough only examine the Chinese laws related to FDI, investors but also need to know general laws of P.R.China, for example Labour law and tax law.
3. Regulation encourage foreign investments
In accordance with general provisions article 4 of order of the president of the people's republic of China the enterprise income tax rate shall be 25%. However, if the enterprises fulfil some circumstances under the Chapter IV preferential tax treatments, they can granted preferential income tax, for example, the new-tech enterprises which are necessary to be supported by the state can reduced tax rate of 15% and the incomes from projects of agriculture, forestry, husbandry and fishery may be exempted or reduced. Regional free zones of china such as Shenzhen, Xiamen has some beneficial policy for foreign investment, for example, any enterprise with foreign investment of a production for a period of not less than ten years in the free zones, the income tax exempted in the first and second yeas and allowed a 50% reduction in the third to fifth years.
Moreover, there are some policies such as Catalogue of Encouraged Foreign Investment Industries and Catalogue of Prohibited Foreign Investment Industries in order to states industries which are encouraged or prohibited by the state. However, aerospace industry is encouraged by state.
Chinese government encourage foreign investor protect the environment in China and granted benefits for example the incomes may be deduced or exempted which is incurred from the projects of environmental protection, energy and water saving, which meet the relevant requirements) of The Enterprise income tax law of P.R.china.
In order to make sure the Chinese labour's right, Foreign Investors should allow the Labour law of P.R.China and other relevant policies and regulation of the place which is run the business. There is some policies benefit the foreign investors. For example, according to Enterprise income tax law of People's Republic of China, the wages paid to the disabled employees or other employees whom the state encourages to hire may be additionally calculated and deducted.
4. Regulation restrict foreign investments
There are many restrictions for accession in most countries including China. Detailed Rules for the implementation of the law of PRC on Sino-foreign contractual joint ventures states application for the establishment of contractual Joint Ventures shall not be approval on any one of the following conditions, namely causing pollution on environment in Article 9. Article 18 also demonstrates that in a contractual Joint venture that is accorded by law the status of a Chinese legal person, the foreign party's investment shall generally be no less than 25% of the registered capital.
In China, the expropriation has significant impact on foreign investors, particularly in land. Annex 13 is about expropriation in The Free Trade Agreement between the government of PRC and the Government of New Zealand, points in order to constitute indirect expropriation, the state's deprivation of the investor's property must be either severe or for an indefinite period and disproportionate to the public purpose. The Law of Land Administration of the PRC is the main law to regulate the ownership and right of use of land and relevant issues. For instance, most foreign companies joint venture with local partner and obtain the right of use land from Chinese party. A common problem is Chinese partner only holds the allocated land use rights for the land (all the land owned by state).
On the other hand, in order to protect environment of China, the Environment Protection Law of P.R.China stated that units that cause environmental pollution and other public hazards shall establish a responsibility system for environmental protection and a ban shall be imposed on the importation of any technology or facility that fails to meet the requirements of P.R.China in Article 24 and 30. According to the research called Silent Majority engaged by Greenpeace (2009a), there were eight foreign invested multinational companies included Nestle and Shell (however, shell declared the TRI including 49 kinds pollution caused by one of factories in United States on time (Greenpeace, 2009b).) breach system environmental information opening of enterprises of P.R.China, those companies were not disclosure the pollution information before the deadline.
On the other hand, for instance, Labour law of P.R.China regulates the responsibility of company for their employees, Such as working hours, wage and safety and health care. Labour department of Guangdong province states that McDonald breach the part-time job minimum wage policy of Guangdong province by following points (Wen et al, 2009). First, the part-time job minimum is 7.5 RMB yuan one hour, McDonald however just pay 4 RMB yuan one hour. Secondly, the maximum working hours are five hours one day, but the part-time staff works 8 hours a day.
5. Conclusion
Summarised, it can be seen, there are many policies and laws encourage or prohibit foreign investment inward China. It also shows that Chinese legal system has many restrictions to protect human right and environment which are the controversies in the world.
從中國2001年加入世界貿易組織后，許多公司都想在中國投資，因此，中國已經成為了世界上的第三大貿易經濟體。為了市場擴展，許多的企業都希望能夠在中國投資。由于東道國在控制外商直接投資的進入上有極大的權力，所以了解中國的法律環境和相關的法律政策是十分重要的。本篇dissertation的目標就是，分析中國關于調控和鼓勵外商投資者的法律環境和政策規定。
2.中國法律環境
雷姆非與賽格爾的書中寫道：為了指導外商投資到一些優先的產業部門，同時也限制或禁止在其他產業的投資，中國的法律將所有的外商投資項目分成了以下的四個種類：禁止投資的項目，限制投資的項目，鼓勵投資的項目和允許投資的項目。此外，僅僅是研究中國有關外商投資的法律是遠遠不夠的，投資者也需要去了解中國的普通法規，比如勞動法和稅法。
1. Introduction
After China joined WTO in 2001, many companies want to invest in China resulted in China has became the third largest trade economy in the world. Many companies want to invest China for market expansion. Due to the unlimited right of host countries to control the entry of FDI, it is important to know the legal environment of China and relevant law and policy. This essay will aim to examine legal environment of China and the regulation both regulate and encourage foreign investors.
2. Chinese Legal Environment
According to Remfry & Sagar (n.d.),” In order to direct foreign investment into certain priority industry sectors, while restricting or prohibiting investment in others, Chinese law broadly classifies all foreign investment projects into one of the following four categories: prohibited projects, restricted projects, encouraged projects and permitted projects”. Moreover, it is not enough only examine the Chinese laws related to FDI, investors but also need to know general laws of P.R.China, for example Labour law and tax law.
3. Regulation encourage foreign investments
In accordance with general provisions article 4 of order of the president of the people's republic of China the enterprise income tax rate shall be 25%. However, if the enterprises fulfil some circumstances under the Chapter IV preferential tax treatments, they can granted preferential income tax, for example, the new-tech enterprises which are necessary to be supported by the state can reduced tax rate of 15% and the incomes from projects of agriculture, forestry, husbandry and fishery may be exempted or reduced. Regional free zones of china such as Shenzhen, Xiamen has some beneficial policy for foreign investment, for example, any enterprise with foreign investment of a production for a period of not less than ten years in the free zones, the income tax exempted in the first and second yeas and allowed a 50% reduction in the third to fifth years.
Moreover, there are some policies such as Catalogue of Encouraged Foreign Investment Industries and Catalogue of Prohibited Foreign Investment Industries in order to states industries which are encouraged or prohibited by the state. However, aerospace industry is encouraged by state.
Chinese government encourage foreign investor protect the environment in China and granted benefits for example the incomes may be deduced or exempted which is incurred from the projects of environmental protection, energy and water saving, which meet the relevant requirements) of The Enterprise income tax law of P.R.china.
In order to make sure the Chinese labour's right, Foreign Investors should allow the Labour law of P.R.China and other relevant policies and regulation of the place which is run the business. There is some policies benefit the foreign investors. For example, according to Enterprise income tax law of People's Republic of China, the wages paid to the disabled employees or other employees whom the state encourages to hire may be additionally calculated and deducted.
4. Regulation restrict foreign investments
There are many restrictions for accession in most countries including China. Detailed Rules for the implementation of the law of PRC on Sino-foreign contractual joint ventures states application for the establishment of contractual Joint Ventures shall not be approval on any one of the following conditions, namely causing pollution on environment in Article 9. Article 18 also demonstrates that in a contractual Joint venture that is accorded by law the status of a Chinese legal person, the foreign party's investment shall generally be no less than 25% of the registered capital.
In China, the expropriation has significant impact on foreign investors, particularly in land. Annex 13 is about expropriation in The Free Trade Agreement between the government of PRC and the Government of New Zealand, points in order to constitute indirect expropriation, the state's deprivation of the investor's property must be either severe or for an indefinite period and disproportionate to the public purpose. The Law of Land Administration of the PRC is the main law to regulate the ownership and right of use of land and relevant issues. For instance, most foreign companies joint venture with local partner and obtain the right of use land from Chinese party. A common problem is Chinese partner only holds the allocated land use rights for the land (all the land owned by state).
On the other hand, in order to protect environment of China, the Environment Protection Law of P.R.China stated that units that cause environmental pollution and other public hazards shall establish a responsibility system for environmental protection and a ban shall be imposed on the importation of any technology or facility that fails to meet the requirements of P.R.China in Article 24 and 30. According to the research called Silent Majority engaged by Greenpeace (2009a), there were eight foreign invested multinational companies included Nestle and Shell (however, shell declared the TRI including 49 kinds pollution caused by one of factories in United States on time (Greenpeace, 2009b).) breach system environmental information opening of enterprises of P.R.China, those companies were not disclosure the pollution information before the deadline.
On the other hand, for instance, Labour law of P.R.China regulates the responsibility of company for their employees, Such as working hours, wage and safety and health care. Labour department of Guangdong province states that McDonald breach the part-time job minimum wage policy of Guangdong province by following points (Wen et al, 2009). First, the part-time job minimum is 7.5 RMB yuan one hour, McDonald however just pay 4 RMB yuan one hour. Secondly, the maximum working hours are five hours one day, but the part-time staff works 8 hours a day.
5. Conclusion
Summarised, it can be seen, there are many policies and laws encourage or prohibit foreign investment inward China. It also shows that Chinese legal system has many restrictions to protect human right and environment which are the controversies in the world.
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