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摘要:随着《外国企业或个人在中国境内设立合伙企业管理办法》的出台,引发了新一轮的关于外资投资合伙企业的讨论。通过评论相关法规,我们期待外国企业和个人以有限合伙形式投资的PE和VC有新的发展。
关键词:有限合伙,外国企业或个人投资有限合伙
The Recent Development of Limited Partnership Enterprises by Foreign Enterprises or Individuals
Keyword: Limited Partnership Enterprises , Foreign Partnership Enterprises
Abstract: With the announcement of The Establishment of Limited Partnership Enterprises by Foreign Enterprises or Individuals, a new round of discussions which focus on this issue arise, by introducing the latest relevant regulations, we may expect new development of Private equities and venture capital invested by foreign enterprises or individuals in the form of limited partnership enterprises.
I. The Basic Laws and Regulations for Domestic Limited Partnership Enterprises
In accordance with the laws and regulations of The Securities Law, The Company Law and The Partnership Enterprise Law, we have already had the fundamental legal elements for the establishment of the limited partnership enterprises. In recent years, the private equity issue brings up a wide range of discussions which focus mainly in the types of private equity and venture capital. This essay limits our discussion within the scope of the limited partnership enterprises.
The amended Partnership Enterprise Law of the People's Republic of China (hereinafter refers to as the amended Partnership Enterprise Law)regulates that A limited partnership enterprise shall be composed of both general partners and limited partners and it shall have at least one general partner, the general partners shall bear unlimited liability to the debts of the limited partnership enterprise and the limited partners shall bear limited liability to the debts of the limited partnership enterprise in accordance with its subscribed capital contribution. The amended Partnership Enterprise Law also regulates the partners of a limited partnership enterprise, the partnership agreement, the capital contribution, the management of a limited partnership enterprise and the distribution of the assets of a limited partnership enterprise. The amended Partnership Enterprise Law regulates that natural person and legal person and other organizations may form a a limited partnership enterprise, nevertheless, the amend law exempts solely state-owned enterprise and state-owned enterprise, and the listed companies may only take part in the limited partnership enterprise as general partners. The above-mentioned change is a big development compared with the regulation of The Company Law , where The Company Law eliminates a company as a investor of a partnership enterprise which requires a joint and several liability to the debts incurred to the partnership enterprise.
The Partnership Enterprise Law involves the legal person as the legal partners, this regulation sets favorable conditions for the development of the limited partnership enterprise type private equity. For the investment fund of private equity, many of the investors are from institutions, if we deny the legitimacy for the legal person of being as partners, the private equity with the type of limited partners may not achieve its best effectiveness. A legal person shall be an organization that has capacity for civil rights and capacity for civil conduct and independently enjoys civil rights and assumes civil obligations in accordance with the law. Naturally, the civil rights of a legal person also includes the usage and disposition of its own assets as the owner or lawful operator based on its own will and benefits, and to invest a partnership enterprise is the internal requirement and external performance of the independent operation right of a enterprise.
The amended Partnership Enterprise Law regulates the administrative measures for the establishment of partnership enterprises by foreign enterprises or individuals in a vague and broad way which it states that all the relevant measures shall be formulated by the State Council.
II. The Latest Regulation of the Establishment of Limited Partnership Enterprises by Foreign Enterprises or Individuals
The Administrative Measures for the Establishment of Partnership Enterprises within China by Foreign Enterprises or Individuals (hereinafter refers to as the Regulation) removes the legal barrier for foreign enterprises and individuals to set up partnership enterprises in China, which mainly focus in the following aspects:
1.To apply for establishment registration, the applicant shall submit to the enterprise registration organ the documents as prescribed in the Administrative Measures of the People's Republic of China for the Registration of Partnership Enterprises, attached with a description of its conformity with the industrial policies on foreign investments. This regulation simplified the establishment procedure of the partnership enterprises by foreign enterprises and individuals without requiring obtaining approval certificate from the competent commerce departments.
The Regulation defines the phrase"establishment of partnership enterprises within China by foreign enterprises or individuals" as the establishment of partnership enterprises within China by 2 or more enterprises or individuals, as well as the establishment of partnership enterprises within China by foreign enterprises or individuals together with Chinese natural persons, legal persons and other organizations. It expands the establishment body of partnership enterprises from domestic enterprises and individuals to both domestic and foreign enterprises and individuals.
Concerning the establishment of above-mentioned partnership enterprises, enterprises establishment shall conform to The Catalogue of Industries for Guiding Foreign Investment (Revised 2007). Foreign Investment Industries Prohibited by the Catalogue (such as Processing of green tea and special tea with Chinese traditional techniques ), limited to equity joint ventures and cooperative joint ventures (such as Planting and cultivation of Chinese medicinal materials), limited to equity joint ventures and cooperative joint ventures (Exploration and exploitation of coal bed gas, as well as utilization of mine gas), the Chinese party shall have a controlling interest (such as Production of large chemical products using coal as raw material), the Chinese party shall hold a relatively dominant position (such as Mass production of ethane with an annual production capacity of over 800 thousand tons) and certain proportion requirement of foreign capital (i.e. For mobile voice and data services in basic telecommunication services , the proportion of foreign capital shall not exceed 49%).
Concerning the business scope of partnership enterprises, partnership enterprises shall obtain the advance approval from competent authorities in accordance with relevant and laws, regulations. The required advance approval include varied authorities which subject to business types and specific projects.
2.Foreign enterprises and individuals may participate in partnership enterprises with domestic enterprises and individuals, withdraw from partnership enterprises at their free will. The the enterprise registration organ only requires a registration modification application according to law, and no further approval shall be required from competent authorities. Foreign enterprises and individuals may choose to join existed domestic partnership enterprises or establish their own partnership enterprises.
III. Further Comment on The Regulation of the Establishment of Limited Partnership Enterprises by Foreign Enterprises or Individuals
People place much expectation on the Regulation by bringing up clearer rules for establishment of private equities and venture capital, some experts even predicted before the announcement of the Regulation that it would greatly improve the development of private equities and venture capital invested by foreign enterprises and individuals in the form of limited partnership enterprises. Nevertheless, the Regulation chooses not to directly regulate private equities and venture capital, and only states that if the State has otherwise different provisions regarding the partnership enterprises established within China by foreign enterprises or individuals for the primary purpose of investment, those provisions of the state shall prevail①.
Concerning the investment method of foreign invested partnership enterprises, the state encourages foreign enterprises or individuals with advanced technologies and management experience to establish partnership enterprises within China so as to promote the development of the modern service industry and other industries. Through the Regulation, we may find the tendency of the State, and those enterprises with advanced technologies and management experience will promote the development with the service industry. Though the mainstream of encouraged partnership enterprises are technology and management enterprises, the flexible regulation of the fourteenth rule also indicate other types partnership enterprises will develop soon.
注释:
①http://www.lawinfochina.com/law/display.asp?ID=6483&DB=1 visit time: May 23, 2010.
关键词:有限合伙,外国企业或个人投资有限合伙
The Recent Development of Limited Partnership Enterprises by Foreign Enterprises or Individuals
Keyword: Limited Partnership Enterprises , Foreign Partnership Enterprises
Abstract: With the announcement of The Establishment of Limited Partnership Enterprises by Foreign Enterprises or Individuals, a new round of discussions which focus on this issue arise, by introducing the latest relevant regulations, we may expect new development of Private equities and venture capital invested by foreign enterprises or individuals in the form of limited partnership enterprises.
I. The Basic Laws and Regulations for Domestic Limited Partnership Enterprises
In accordance with the laws and regulations of The Securities Law, The Company Law and The Partnership Enterprise Law, we have already had the fundamental legal elements for the establishment of the limited partnership enterprises. In recent years, the private equity issue brings up a wide range of discussions which focus mainly in the types of private equity and venture capital. This essay limits our discussion within the scope of the limited partnership enterprises.
The amended Partnership Enterprise Law of the People's Republic of China (hereinafter refers to as the amended Partnership Enterprise Law)regulates that A limited partnership enterprise shall be composed of both general partners and limited partners and it shall have at least one general partner, the general partners shall bear unlimited liability to the debts of the limited partnership enterprise and the limited partners shall bear limited liability to the debts of the limited partnership enterprise in accordance with its subscribed capital contribution. The amended Partnership Enterprise Law also regulates the partners of a limited partnership enterprise, the partnership agreement, the capital contribution, the management of a limited partnership enterprise and the distribution of the assets of a limited partnership enterprise. The amended Partnership Enterprise Law regulates that natural person and legal person and other organizations may form a a limited partnership enterprise, nevertheless, the amend law exempts solely state-owned enterprise and state-owned enterprise, and the listed companies may only take part in the limited partnership enterprise as general partners. The above-mentioned change is a big development compared with the regulation of The Company Law , where The Company Law eliminates a company as a investor of a partnership enterprise which requires a joint and several liability to the debts incurred to the partnership enterprise.
The Partnership Enterprise Law involves the legal person as the legal partners, this regulation sets favorable conditions for the development of the limited partnership enterprise type private equity. For the investment fund of private equity, many of the investors are from institutions, if we deny the legitimacy for the legal person of being as partners, the private equity with the type of limited partners may not achieve its best effectiveness. A legal person shall be an organization that has capacity for civil rights and capacity for civil conduct and independently enjoys civil rights and assumes civil obligations in accordance with the law. Naturally, the civil rights of a legal person also includes the usage and disposition of its own assets as the owner or lawful operator based on its own will and benefits, and to invest a partnership enterprise is the internal requirement and external performance of the independent operation right of a enterprise.
The amended Partnership Enterprise Law regulates the administrative measures for the establishment of partnership enterprises by foreign enterprises or individuals in a vague and broad way which it states that all the relevant measures shall be formulated by the State Council.
II. The Latest Regulation of the Establishment of Limited Partnership Enterprises by Foreign Enterprises or Individuals
The Administrative Measures for the Establishment of Partnership Enterprises within China by Foreign Enterprises or Individuals (hereinafter refers to as the Regulation) removes the legal barrier for foreign enterprises and individuals to set up partnership enterprises in China, which mainly focus in the following aspects:
1.To apply for establishment registration, the applicant shall submit to the enterprise registration organ the documents as prescribed in the Administrative Measures of the People's Republic of China for the Registration of Partnership Enterprises, attached with a description of its conformity with the industrial policies on foreign investments. This regulation simplified the establishment procedure of the partnership enterprises by foreign enterprises and individuals without requiring obtaining approval certificate from the competent commerce departments.
The Regulation defines the phrase"establishment of partnership enterprises within China by foreign enterprises or individuals" as the establishment of partnership enterprises within China by 2 or more enterprises or individuals, as well as the establishment of partnership enterprises within China by foreign enterprises or individuals together with Chinese natural persons, legal persons and other organizations. It expands the establishment body of partnership enterprises from domestic enterprises and individuals to both domestic and foreign enterprises and individuals.
Concerning the establishment of above-mentioned partnership enterprises, enterprises establishment shall conform to The Catalogue of Industries for Guiding Foreign Investment (Revised 2007). Foreign Investment Industries Prohibited by the Catalogue (such as Processing of green tea and special tea with Chinese traditional techniques ), limited to equity joint ventures and cooperative joint ventures (such as Planting and cultivation of Chinese medicinal materials), limited to equity joint ventures and cooperative joint ventures (Exploration and exploitation of coal bed gas, as well as utilization of mine gas), the Chinese party shall have a controlling interest (such as Production of large chemical products using coal as raw material), the Chinese party shall hold a relatively dominant position (such as Mass production of ethane with an annual production capacity of over 800 thousand tons) and certain proportion requirement of foreign capital (i.e. For mobile voice and data services in basic telecommunication services , the proportion of foreign capital shall not exceed 49%).
Concerning the business scope of partnership enterprises, partnership enterprises shall obtain the advance approval from competent authorities in accordance with relevant and laws, regulations. The required advance approval include varied authorities which subject to business types and specific projects.
2.Foreign enterprises and individuals may participate in partnership enterprises with domestic enterprises and individuals, withdraw from partnership enterprises at their free will. The the enterprise registration organ only requires a registration modification application according to law, and no further approval shall be required from competent authorities. Foreign enterprises and individuals may choose to join existed domestic partnership enterprises or establish their own partnership enterprises.
III. Further Comment on The Regulation of the Establishment of Limited Partnership Enterprises by Foreign Enterprises or Individuals
People place much expectation on the Regulation by bringing up clearer rules for establishment of private equities and venture capital, some experts even predicted before the announcement of the Regulation that it would greatly improve the development of private equities and venture capital invested by foreign enterprises and individuals in the form of limited partnership enterprises. Nevertheless, the Regulation chooses not to directly regulate private equities and venture capital, and only states that if the State has otherwise different provisions regarding the partnership enterprises established within China by foreign enterprises or individuals for the primary purpose of investment, those provisions of the state shall prevail①.
Concerning the investment method of foreign invested partnership enterprises, the state encourages foreign enterprises or individuals with advanced technologies and management experience to establish partnership enterprises within China so as to promote the development of the modern service industry and other industries. Through the Regulation, we may find the tendency of the State, and those enterprises with advanced technologies and management experience will promote the development with the service industry. Though the mainstream of encouraged partnership enterprises are technology and management enterprises, the flexible regulation of the fourteenth rule also indicate other types partnership enterprises will develop soon.
注释:
①http://www.lawinfochina.com/law/display.asp?ID=6483&DB=1 visit time: May 23, 2010.