Article 1 These Regulations hereof are formulated in order to further the opening up to the outside and standardise the administration of foreign-invested construction and engineering design enterprises 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 Cooperative Joint Ventures, the Law of the People’s Republic of China on Wholly Foreign-Owned Enterprises, the Regulations on Administration of Construction Engineering Quality and the Regulations on Administration of Reconnoitring and Designing of Construction Projects.
Article 2 These Regulations shall apply to the establishment of foreign-invested construction and engineering design enterprises within the territory of the People’s Republic of China, the application for construction and engineering design enterprise qualifications and the administration and supervision of the foreign-invested construction and engineering design enterprises.
The term ‘foreign-invested construction and engineering design enterprise’ mentioned in these Regulations refers to a wholly foreign-owned construction and engineering design enterprise, or a Sino-foreign equity construction and engineering design joint venture or a Sino-foreign cooperatively 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, which intends to establish a foreign-invested construction and engineering design enterprise within the territory of the People’s Republic of China and carry out construction and engineering design business shall, in accordance with laws, obtain the foreign-invested enterprise approval certificate from the relevant foreign trade and economic cooperation administration department and register with the State Administration of Industry and Commerce or its authorised administration of industry and commerce at local levels, and also obtain the qualification certificate of construction and engineering design enterprise from the relevant construction administration department.
Article 4 Foreign-invested 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 lawful operation of foreign-invested 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 cooperation administration department of the State Council shall be responsible for the administration of establishing foreign-invested construction and engineering design enterprises. The construction administration department of the State Council shall be responsible for the administration of the qualifications of foreign-invested construction and engineering design enterprises.
The foreign trade and economic cooperation administration departments of the people’s government of provinces, autonomous regions or directly administered municipalities shall be responsible for the administration of establishment of foreign-invested construction and engineering design enterprises within their authorized jurisdiction ; the construction administration departments of the people’s government of provinces, autonomous regions or directly administered municipalities shall, in accordance with these regulations, be responsible for the administration of the qualifications of the foreign-invested construction and engineering design enterprises within their administrative region.
Article 6 The application for and the examination and approval of the establishment of a foreign-invested construction and engineering design enterprise and the qualifications shall be managed by a grading and categorization system.
Where an applicant is to apply for Grade A qualifications for construction and engineering design or other Grade A or Grade B qualifications for construction and engineering design, the establishment of the foreign-invested construction and engineering design enterprise shall be examined and approved by the foreign trade and economic cooperation administration department of the State Council and its qualifications shall be examined and approved by the construction administration department of the State Council. Where an applicant is to apply for Grade B qualifications for construction and engineering design or other Grade C or lower qualifications for construction and engineering design, the establishment of the foreign-invested construction and engineering design enterprise shall be examined and approved by the foreign trade and economic cooperation administration department of the people’s government of the province, the autonomous region or the directly administered municipality and its qualifications shall be examined and approved by the construction administration department of the people’s government of the province, the autonomous region or the directly administered municipality.
Article 7 The procedures for the establishment of a foreign-invested construction and engineering design enterprise and the application for construction and engineering design qualifications or other Grade A or B engineering design qualifications shall be:
(1) The applicant shall submit an application to the foreign trade and economic cooperation administration department of the people’s government of the province, the autonomous region or the directly administered municipality where the proposed foreign-invested construction and engineering design enterprise is to be established.
(2) The foreign trade and economic cooperation administration department of the people’s government of the province, or the autonomous region or the directly administered municipality shall complete the preliminary examination within 30 days of receiving the application, and shall, if it grants the preliminary approval, submit the application to the foreign trade and economic cooperation administration department of the State Council for further approval.
(3) Within 10 days of receiving the application for further approval, the foreign trade and economic cooperation administration department of the State Council shall forward the application to the construction administrative department of the State Council for review and comments. The construction administration department of the State Council shall provide its opinion in writing within 30 days of receiving the request. Within 30 days of receiving the response, the foreign trade and economic cooperation administration department of the State Council shall decide whether or not to approve the application and express such a decision in written form. If the application is approved, a foreign-invested enterprise certificate shall be granted; if the application is not approved, reasons for the disapproval shall be given in written form.
(4) Within 30 days of receiving the approval certificate, the applicant shall carry out enterprise registration with the relevant registration department.
(5) After obtaining business license for the legal entity, if the foreign-invested construction and engineering design enterprise is to apply for the construction and engineering design enterprise qualifications, the application shall be carried out in accordance with the Regulations on Administration of Construction and Engineering Design Enterprise Qualifications.
Article 8 The procedures for the establishment of a construction and engineering design enterprise and the application for Grade B qualifications and Grade C or lower qualifications for engineering design shall be administered by the construction administration department and the foreign trade and economic cooperation administration department of the people’s government of the province, or the autonomous region or the directly administered municipality based on local conditions with reference to Article 7 of these Regulations and Regulations on Administration of Construction and Engineering Design Enterprise Qualifications.
Examination and approval of the qualifications of foreign-invested construction and engineering design enterprises by the construction administration departments of the People’s government of provinces, autonomous regions or directly administered municipalities shall be put on file with the construction administration department of the State Council within 30 days after the approval is given.
Article 9 The application by a foreign-invested construction and engineering design enterprise to upgrade its qualifications or to add additional engineering qualifications shall be made to the relevant construction administration department in accordance with relevant regulations.
Article 10 An applicant which intends to establish a foreign-invested construction and engineering design enterprise shall submit the following documents to the relevant foreign trade and economic cooperation administration department:
(1) Application forms to establish a foreign-invested construction and engineering design enterprise signed by the investor’s legal representative;
(2) The feasibility study report prepared or accepted by the investor;
(3) The contract for establishment of foreign-invested construction and engineering design enterprise and the articles of association signed by the investor’s legal representative (only the the articles of association are required for the establishment of a wholly foreign-owned construction and engineering design enterprise);
(4) The notification of pre-verification of the name of the enterprise;
(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 over the past three years audited by a certified accountant or an accounting firm.
Article 11 The applicant applying for foreign-invested construction and engineering design enterprise qualifications shall submit the following documents to the relevant construction administration department:
(1) Application forms for the qualifications for a foreign-invested construction and engineering design enterprise;
(2) The approval certificate for the establishment of the foreign-invested construction and engineering design enterprise;
(3) The business license for the legal entity;
(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 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
(6) Other documents as required by Regulations on Administration of Construction and Engineering Design Enterprise 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-invested construction and engineering design enterprise shall be an enterprise engaged in construction and engineering design or a certified architect or a certified engineer in his or her home country.
Article 14 The total capital contribution of the Chinese party to a Sin-foreign equity construction and engineering design joint venture or a Sino-foreign cooperatively construction and engineering design joint venture shall not be less than 25% of the registered capital.
Article 15 The criteria of grading of qualifications of foreign-invested construction and engineering design enterprises shall be in accordance with the requirements of grading of qualifications of construction and engineering design enterprise issued by the construction administration department of the State Council.
Where a wholly foreign-owned construction and engineering design enterprise applies for the construction and engineering design enterprise qualifications, its foreign service providers who have been qualified as certified architects or certified engineers in China shall not be less than 1/4 of the total certified professionals required under the qualification grading criteria, 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 qualification grading criteria.
Where a Sin-foreign equity construction and engineering design joint venture or a Sino-foreign cooperatively managed construction and engineering design enterprise applies for the construction and engineering design enterprise qualifications, its foreign service providers who have been qualified as certified architects or certified engineers in China shall not be less than 1/8 of the total registered professionals required under the qualification grading criteria, 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 qualification grading criteria.
Article 16 Each of the architects and engineers certified in China and the key technical personnel of the foreign service provider in a foreign-invested construction and engineering design enterprise shall reside within the territory of the People’s Republic of China for no less than a cumulative period of 6 months each year.
Article 17 Where a foreign-invested construction and engineering design enterprise carrying out construction and engineering design activities within the territory of the People’s Republic of China violates the Construction Law of the People’s Republic of China, Regulations on Administration of Construction Engineering Quality, Regulations on Administration of Prospecting and Designing of Construction Projects and Regulations on Administration of Construction Engineering Prospecting Design Enterprise Qualifications and other relevant laws, regulations and rules, it shall be penalized in accordance with relevant provisions.
Article 18 Investors from Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan shall establish construction and engineering design enterprises and carry out businesses in other provinces, autonomous regions or directly administered municipalities in accordance with these Regulations, unless it is otherwise provided by laws, regulations and the State Council.
Article 19 The timing for accepting and processing the application for establishment of foreign-invested construction and engineering design enterprises shall be determined by the construction administration department of the State Council and the foreign trade and economic cooperation administration department of the State Council.
Article 20 The construction administration department of the State Council and the foreign trade and economic cooperation administration department of the State Council shall be responsible for interpreting these Regulations in accordance with their functions.
Article 21 These Regulations shall go into force on 1 December 2002. Regulations on Administration of Establishment of Sino-Foreign Project Design Joint Venture (File No. 180, 1992) shall be repealed at the same time.
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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
外商投资建设工程设计企业如何设立？
外商投资建设工程设计企业的设立遵循双重许可制度。法律概念上，该类企业包括外商独资、中外合资和中外合作三种组织形式，均须依据中国法律设立。核心规则是，投资者必须先获得商务主管部门颁发的外商投资企业批准证书，随后向工商部门办理企业法人登记，取得营业执照后方可申请工程设计资质。这一程序体现了外资准入与行业资质管理相分离的基本原则。n在实务场景中，依据规定，申请设立企业的投资者应向拟设立企业所在地的省级商务主管部门提交申请。省级部门在30日内完成初审，通过后上报国务院商务主管部门。国务院商务部门收到后10日内转交国务院建设主管部门征求意见，建设部门在30日内出具书面意见。商务部门在收到意见后30日内作出批准决定，并颁发批准证书。取得证书后30日内，申请人必须完成工商注册登记。n实务操作需注意，整个设立流程涉及两个主管部门的协同审查，周期较长，投资者应预留充足时间。同时，批准证书并非最终经营凭证，后续资质申请是开展设计业务的前提。常见争议点在于外资比例、投资总额等条件是否符合产业政策，建议在申报前就企业形式、股权结构等核心要素进行充分论证，避免因审批条件不满足而导致流程反复。
外资设计企业资质分级审批权限如何划分？
资质分级审批权限的核心规则是根据资质等级实行差异化行政管理。甲级建设工程设计资质以及部分其他甲、乙级资质的设立与资质审批，统一由国务院商务主管部门和国务院建设主管部门负责。而乙级资质以及其他丙级及以下资质的审批，则由省级商务主管部门和省级建设主管部门负责。该划分明确了中央与地方的事权边界，目的是提高审批效率并兼顾行业专业管理要求。n以具体场景为例，若某外国投资者拟在中国设立一家承担大型项目设计的甲级资质企业，则其企业设立需经国务院商务部门批准，其资质需经国务院建设部门批准。若申请的是仅承担中小型项目的乙级资质，则只需省级两个部门分别审批即可。这种分级安排直接影响企业的申报路径和审批周期，甲级资质涉及跨层级文件流转，流程更为复杂。n实务中，企业应根据业务定位和未来承揽工程范围，准确判断所需资质等级。常见误区是混淆企业设立审批与资质审批的层级对应关系，导致提交到错误部门而延误时间。另外，获得资质后需持续满足资质标准，包括人员、业绩、技术条件等，否则可能面临资质动态核查不合格的风险。建议企业在申请前对照资质标准逐项准备材料，并关注政策调整对资质标准的最新要求。
外资设计企业审批流程有哪些关键时限？
审批流程的关键时限体现为一系列法定期间，对企业的整体筹备计划至关重要。具体而言，省级商务部门自受理申请之日起30日内完成初审；初审通过后上报国务院商务部门。国务院商务部门在10日内将申请转交国务院建设主管部门征求意见，后者须在30日内提出书面意见。国务院商务部门在收到意见后30日内作出是否批准的决定；若批准，颁发外商投资企业批准证书；若不批准，书面说明理由。申请人取得批准证书后，须在30日内办理企业注册登记。n从实务场景看，这一流程对应于申请甲级资质或部分乙级资质时的完整审批链条。以一个外商投资设计企业申请甲级资质为例，从最初提交申请到最后获得批准证书，理想状态下至少需要经过约100天的审批周期，这还未包含企业注册和后续资质申请时间。而对于乙级及以下资质，省级部门直接审批，时间相对缩短。时限规定旨在约束行政机关的效率，但也要求申请人必须在各环节迅速响应。n在实务操作中，应注意区分不同环节的起算点，如国务院商务部门10日转交期限是从收到省级上报文件之日计算，而建设部门30日意见期是从收到转交文件之日起算。常见的风险是材料不全导致审查期限重新计算，因此务必一次性提交完整申请文件。此外，若逾期未获决定，企业可依法寻求救济，但实践中建议主动与主管部门沟通进度，避免因部门间协调延误影响后续投资计划。
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
