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
外商投资股份有限公司的设立条件有哪些？
第一，法律概念与规则解释：外商投资股份有限公司是企业法人，全部资本分为等额股份，股东以其所持股份为限对公司承担责任，公司以其全部资产对公司债务承担责任。其核心特征是中外股东共同持股，且外国股东认购并持有的股份须超过公司注册资本的百分之二十五。公司属于外商投资企业的一种形式，适用国家有关外商投资企业的法律规定，同时设立须符合国家关于外商投资产业政策的要求。第二，案件事实与实务场景引用：根据规定，此类公司可以采用发起方式或者募集方式设立。发起方式设立时，须符合公司法关于发起人的条件，且至少有一名发起人为外国股东。募集方式设立时，除满足前述条件外，还要求至少一名发起人在募集前连续三年保持盈利记录。若该发起人为中方股东，需提供经中国注册会计师审计的最近三年财务报表；若为外方股东，则需提供经其注册国注册会计师审计的财务报表。此外，公司注册资本最低限额为人民币三千万元，且外国股东持股比例不得低于注册资本的百分之二十五。第三，实务指引与风险提示：投资者在筹划设立时，应首先确认自身是否符合外资持股比例和注册资本门槛，同时根据拟采用的设立方式准备相应的盈利证明和审计文件。对于发起方式，尤其要注意发起人资格中必须有外国股东这一硬性要求；对于募集方式，盈利纪录的连续性和审计机构的合规性往往是审批中的审查重点。建议在正式申报前，对发起人的资信状况、财务报表的规范性以及产业政策符合性进行内部预审，以减少审批障碍。
外商投资股份有限公司的注册资本和外资比例要求是什么？
第一，法律概念与规则解释：注册资本是指公司在登记机关登记的全体股东实缴的股本总额，也是公司对外承担债务责任的基础。外商投资股份有限公司的注册资本必须与实际缴纳的股款一致，不能认而不缴。规定明确注册资本最低限额为人民币三千万元，并且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，这一比例是界定公司为外商投资企业的关键门槛，低于该比例则不适用外商投资企业的相关法律待遇。第二，案件事实与实务场景引用：根据规定，公司注册资本为登记机关登记的全体股东实缴股本总额，发起人应当在批准证书签发之日起九十日内一次性缴足全部所认购股份。如果公司未能设立，发起人对设立行为所产生的债务和费用承担连带责任。该规则强调资本充实原则，防止虚假出资或抽逃出资。在实务中，外方股东持股比例必须精确计算并体现在公司章程和股权结构中，若后续发生股权转让导致外资比例降至百分之二十五以下，公司性质将发生变化，可能影响其继续享受外商投资企业的优惠政策。第三，实务指引与风险提示：投资者在设立时，应确保注册资本金额达到三千万元人民币以上，并合理设计中外股东的持股比例，确保外资部分不低于百分之二十五。同时，全体发起人须在九十天内完成全部出资，任何一名发起人未缴足，其他发起人均需对其认购部分承担连带缴纳责任。建议在出资前做好资金调度安排，避免因个别股东资金不到位而引发连带风险。此外，股权转让须符合外资比例维持条件，转让后不得使外资持股低于法定比例，否则需重新办理审批手续，甚至导致企业性质变更。
外商投资股份有限公司的设立审批流程和文件要求有哪些？
第一，法律概念与规则解释：外商投资股份有限公司的设立实行审批制，须经过地方主管部门初审、省级外资部门复核、中央外资主管部门终审的三级审查机制。发起人签订设立协议后，可共同委托其中一位发起人办理申请事宜。最终审批机关在收到完备申请材料后四十五日内作出批准或不批准的决定。所有申报文件均须以中文书写，若发起人同意也可同时使用外文，但以经审查批准的中文文本为准。第二，案件事实与实务场景引用：具体流程为，申请人先将设立申请书、可行性研究报告、资产评估报告等文件报送其所在地的省、自治区、直辖市及计划单列市主管部门；主管部门审查同意后，转报同级外资经贸部门；外资经贸部门同意后，发起人正式签署设立协议和公司章程，再逐级上报至对外贸易经济合作部审批。以募集方式设立的，还需提交招股说明书。申请设立的文件应当载明发起人名称住所及法定代表人、拟设公司名称住所宗旨、设立方式、股份总额、每股金额、发起人认购比例、募集范围及方式、发起人近三年生产经营状况（仅适用于募集设立）、投资领域和经营范围、申请时间及发起人签章等事项。发起人协议则须包含发起人基本情况、公司名称住所、宗旨经营范围、设立方式与公司组织架构、注册资本与股份类别、发起人权利义务、违约责任、法律适用与争议解决、协议效力与终止、签署时间地点等条款。第三，实务指引与风险提示：实务中常见的问题是申报文件不齐全或不符合形式要求，导致审批周期延长。发起人应注意所有文件的中文版本必须准确完整，审计报告须由符合资格的会计师出具，资产评估报告应客观反映资产价值。募集设立时，招股说明书的内容须真实、准确，不得有虚假记载。此外，发起人协议中关于违约责任和争议解决条款的约定应明确具体，避免因约定不明而在后续合作中产生纠纷。建议发起人在正式申报前，对照审批机关的材料清单逐项核查，并可先向地方主管部门进行预沟通，了解当地审查口径，以提高一次性通过率。
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
