Regulations on Merger and Split-up of Foreign-invested Enterprises (Revised in 2015)
Regulations on Merger and Split-up of Foreign-invested Enterprises (Revised in 2015)
Regulations on Merger and Split-up of Foreign-invested Enterprises (Revised in 2015)
Order of the Ministry of Commerce [2015] No.2
October 28, 2015
(Promulgated by the Order of the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce [2001] No. 8; and revised in accordance with the Decision of the Ministry of Commerce on Revising Some Regulations and Normative Documents on October 28, 2015)
Article 1 These Regulations are formulated in accordance with the Company Law of the People's Republic of China, as well as laws and administrative regulations on foreign-invested enterprises, with the purposes of standardizing the merger and split-up of foreign-invested enterprises and protecting the legitimate rights and interests of investors of the enterprises and creditors.
Article 2 These Regulations shall be applicable to the merger between and the split-up of Sino-foreign equity joint ventures, Chinese-foreign contractual joint ventures with legal person status, foreign-funded enterprises, and foreign-funded joint-stock limited companies (hereinafter referred to as the companies) which are established within the territory of China in accordance with the Chinese laws.
Merger between the companies and Chinese-funded enterprises shall be handled in accordance with the relevant laws and regulations and these Regulations.
Article 3 Merger as stated in these Regulations shall refer to the merger into one company of two or more companies via concluding agreement in accordance with the Company Law.
The company is eligible to adopt the forms of consolidation by merger and merger by incorporation in its merger.
Consolidation by merger shall refer to the circumstance where a company absorbs another one or others and remains in existence while the absorbed is dissolved.
Merger by incorporation shall refer to the circumstance where two or more companies merge into one new company and the original ones are dissolved.
Article 4 Split-up as stated in these Regulations shall refer to the fact that one company is divided into two or more companies upon decisions made by the body of highest power of the company in accordance with the Company Law.
The company is eligible to adopt the forms of split-off and split-up in its split-up.
Split-off shall refer to the fact that one company is divided into two or more companies while the company remains to exist after the establishment of one or more new companies.
Split-up shall refer to the fact that one company is divided into two or more companies while the company itself is dissolved after the establishment of two or more new companies.
Article 5 Merger and split-up of companies shall abide by the Chinese laws, regulations and these Regulations, shall follow the principle of self-willingness, equality and fair competition, and shall not be harmful to the social public interests and to the legitimate rights and interests of the creditors.
Merger and split-up of companies shall be accorded with the stipulations of the Tentative Regulations on Guiding the Directions of Foreign Investment and of the Guiding Catalogues of Industries for Foreign Investment, and shall not lead to solo investment, share-controlling or dominance status by foreign investors in companies of industries where solo investment, share-controlling or dominance status by foreign investors are not allowed.
Where the industry or scope of business of the companies is changed as a result of merger or split-up, they shall be compliant with the relevant laws, regulations and provisions of the state industry policies, and shall go through the necessary approval procedures.
Article 6 Merger or split-up of companies shall be compliant with the regulations issued by the administrative departments of the Customs, taxation and foreign exchange. Companies which continue to exist or the newly established companies after merger or split-up upon the verification of the departments of examination and approval, and administrative departments of the Customs and taxation, etc., they shall continue to enjoy the same various treatments of foreign-invested enterprises as they enjoyed originally.
Article 7 Merger or split-up of companies shall be examined and approved by the original examination and approval authorities, and shall go to the registration authority for the registration of establishment, alteration or the cancellation of registration.
Where there are more than two original examination and approval authorities for the companies to be merged, the registration authority authorized by the department of foreign trade and economic cooperation in the domicile of the merged companies and the State Administration for Industry and Commerce (hereinafter referred to as SAIC) shall be the institutions functioning for examination and approval and registration.
Where the aggregate investment of the companies to be merged exceeds the ceiling power of the original examination and approval authorities or that of the examination and approval authorities in the domicile of the merged companies, the merger shall be examined and approved by the competent authorities with the power for examination and approval.
Where at least one of the companies to be merged is joint-stock limited company, the merger shall be examined and approved by the Ministry of Foreign Economic Relations and Trade of the People's Republic of China (hereinafter referred to as MOFTEC).
Article 8 Where the original companies are dissolved or new companies are established in different places because of the merger or split-up, they shall seek opinions from the examination and approval authorities in the place where the companies to be dissolved or established are located.
Article 9 Merger between liability limited companies will result in a liability limited company.
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Order of the Ministry of Commerce [2015] No.2
October 28, 2015
(Promulgated by the Order of the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce [2001] No. 8; and revised in accordance with the Decision of the Ministry of Commerce on Revising Some Regulations and Normative Documents on October 28, 2015)
Article 1 These Regulations are formulated in accordance with the Company Law of the People's Republic of China, as well as laws and administrative regulations on foreign-invested enterprises, with the purposes of standardizing the merger and split-up of foreign-invested enterprises and protecting the legitimate rights and interests of investors of the enterprises and creditors.
Article 2 These Regulations shall be applicable to the merger between and the split-up of Sino-foreign equity joint ventures, Chinese-foreign contractual joint ventures with legal person status, foreign-funded enterprises, and foreign-funded joint-stock limited companies (hereinafter referred to as the companies) which are established within the territory of China in accordance with the Chinese laws.
Merger between the companies and Chinese-funded enterprises shall be handled in accordance with the relevant laws and regulations and these Regulations.
Article 3 Merger as stated in these Regulations shall refer to the merger into one company of two or more companies via concluding agreement in accordance with the Company Law.
The company is eligible to adopt the forms of consolidation by merger and merger by incorporation in its merger.
Consolidation by merger shall refer to the circumstance where a company absorbs another one or others and remains in existence while the absorbed is dissolved.
Merger by incorporation shall refer to the circumstance where two or more companies merge into one new company and the original ones are dissolved.
Article 4 Split-up as stated in these Regulations shall refer to the fact that one company is divided into two or more companies upon decisions made by the body of highest power of the company in accordance with the Company Law.
The company is eligible to adopt the forms of split-off and split-up in its split-up.
Split-off shall refer to the fact that one company is divided into two or more companies while the company remains to exist after the establishment of one or more new companies.
Split-up shall refer to the fact that one company is divided into two or more companies while the company itself is dissolved after the establishment of two or more new companies.
Article 5 Merger and split-up of companies shall abide by the Chinese laws, regulations and these Regulations, shall follow the principle of self-willingness, equality and fair competition, and shall not be harmful to the social public interests and to the legitimate rights and interests of the creditors.
Merger and split-up of companies shall be accorded with the stipulations of the Tentative Regulations on Guiding the Directions of Foreign Investment and of the Guiding Catalogues of Industries for Foreign Investment, and shall not lead to solo investment, share-controlling or dominance status by foreign investors in companies of industries where solo investment, share-controlling or dominance status by foreign investors are not allowed.
Where the industry or scope of business of the companies is changed as a result of merger or split-up, they shall be compliant with the relevant laws, regulations and provisions of the state industry policies, and shall go through the necessary approval procedures.
Article 6 Merger or split-up of companies shall be compliant with the regulations issued by the administrative departments of the Customs, taxation and foreign exchange. Companies which continue to exist or the newly established companies after merger or split-up upon the verification of the departments of examination and approval, and administrative departments of the Customs and taxation, etc., they shall continue to enjoy the same various treatments of foreign-invested enterprises as they enjoyed originally.
Article 7 Merger or split-up of companies shall be examined and approved by the original examination and approval authorities, and shall go to the registration authority for the registration of establishment, alteration or the cancellation of registration.
Where there are more than two original examination and approval authorities for the companies to be merged, the registration authority authorized by the department of foreign trade and economic cooperation in the domicile of the merged companies and the State Administration for Industry and Commerce (hereinafter referred to as SAIC) shall be the institutions functioning for examination and approval and registration.
Where the aggregate investment of the companies to be merged exceeds the ceiling power of the original examination and approval authorities or that of the examination and approval authorities in the domicile of the merged companies, the merger shall be examined and approved by the competent authorities with the power for examination and approval.
Where at least one of the companies to be merged is joint-stock limited company, the merger shall be examined and approved by the Ministry of Foreign Economic Relations and Trade of the People's Republic of China (hereinafter referred to as MOFTEC).
Article 8 Where the original companies are dissolved or new companies are established in different places because of the merger or split-up, they shall seek opinions from the examination and approval authorities in the place where the companies to be dissolved or established are located.
Article 9 Merger between liability limited companies will result in a liability limited company.
......