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.
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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
如何理解外商投资股份有限公司的设立条件？
外商投资股份有限公司是指全部资本分为等额股份，中外股东共同持股，外国股东持股比例超过注册资本百分之二十五的企业法人。其设立需符合国家产业政策，鼓励采用先进技术的生产型企业。设立方式有发起设立和募集设立两种，无论哪种方式，至少一名发起人须为外国股东，且注册资本最低限额为人民币三千万元。
依据该规定，募集设立公司的发起人中，至少有一方须在募集前连续三年盈利，若该发起人为中方，需提供经中国注册会计师审计的最近三年财务报表；若为外方，则需提供其本国注册会计师审计的财务报表。这些要求旨在确保发起人具备相应的经营实力与财务稳健性。同时，外国股东持股比例不得低于注册资本的百分之二十五，这既是外商投资企业身份认定的门槛，也影响后续待遇适用。
实务中，拟设立公司应提前测算注册资本规模与外资股比例，确保满足最低限额与持股比例要求。发起设立时需注意发起人数量及资格限制，募集设立时则须严格准备财务审计材料，避免因材料不合规导致审批延误。另外，出资须在批准证书签发后九十日内一次缴足，否则可能承担连带责任。建议投资者在签署发起人协议前，充分核查各方财务及法律状况。
外商投资股份有限公司的设立审批流程有哪些关键环节？
设立外商投资股份有限公司实行多级审批制。首先由发起人共同委托其中一方作为申请人，向所在地省级或计划单列市主管部门提交设立申请、可行性研究报告、资产评估报告等文件；若为募集设立，还需提交招股说明书。主管部门审查同意后，文件交由同级外经贸部门审核，经同意后发起人正式签署设立协议与公司章程，再上报国家外经贸主管部门审批。
根据规定，全国审批机关应在四十五日内作出批准或不批准的决定，体现了明确的时限要求。所有申报文件须以中文书写，若需附外文版本，以审查批准生效的中文本为准，这凸显了中文文本的法律效力。申请文件内容须涵盖发起人基本情况、公司名称住所宗旨、设立方式、股份总额、每股价值、发起人认购比例及募集范围、发起人近三年生产经营情况等，确保审批机关全面掌握设立信息。
实务操作中，发起人应确保申报文件完整规范，特别是可行性研究报告和资产评估报告的质量直接影响审批效率。募集设立时，招股说明书必须真实准确，不得有虚假记载。由于审批层级较多，建议预留充足时间，并保持与各级主管部门的沟通。批准后三十日内需开设专用银行账户，并在九十日内一次缴足认购股份，否则可能影响公司设立合法性。发起人在公司设立成功前对公司设立行为产生的债务和费用承担连带责任。
外商投资股份有限公司的股份转让和出资缴纳有何法律限制？
外商投资股份有限公司的股份转让受到特殊限制，旨在维持外资股比例和公司稳定性。股东转让其认购的股份，应当确保受让后外资持股比例仍符合法定要求。发起人持有的股份，自公司登记成立之日起三年内不得转让；三年后转让的，须经原审批机关批准。这一规则既约束了发起人的退出行为，也保障了公司设立初期的资本稳定。
根据规定，股份转让必须满足注册资本及外资持股条件的限制。发起人的出资应在批准证书签发后九十日内一次性缴足全部认购股份，且发起人在全部资本缴足前对认购承担连带责任。如果公司最终未能设立，发起人对设立过程中产生的债务和费用承担连带责任。这些规定体现了对资本充实和债权人利益的保护。实务中，常见争议包括未按期缴资导致的责任认定，以及擅自转让股份引发的效力问题。
投资者应严格遵守九十天缴资期限，避免因延迟缴资而承担违约责任或连带责任。股份转让时，应先向原审批机关申请核准，确认外资比例不低于注册资本百分之二十五后再办理变更登记。发起人股份的禁售期三年自公司成立之日起算，转让协议需附审批文件方能生效。建议在发起人协议中明确约定违约情形及责任承担方式，以防范后续纠纷。
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
