揌aworth & Lexon Law Newsletter?is issued every month, mainly introducing the legal change in the fields of Corporate, Securities, Foreign investment, Intellectual property rights, International trade etc. with necessary comment. All the comments do not mean the legal opinion of our firm and the firm does not have any legal liability for such comment. Should you have any interest in any topics or any questions please feel free to contact the firm. You will be expected to have satisfactory response from the professional attorney of our firm.
Guidelines
?nbsp;Partner of Haworth & Lexon, Mr. Bailey Xu Wrote Article on 揊und Raise Overseas by Domestic Private Company? which was Published by 揕egal Manager?of CCH
?nbsp;Circular on Further Standardize Administration of Transfer of Mining Industrial Rights
?nbsp;Latest Laws and Regulations:
?nbsp;Supplementary Rules Two for 揟entative Rules on Foreign Investment in Cinemas?
?nbsp;Notice of the Ministry of Commerce on Regulating the Relevant Matters Concerning the Naming of Overseas Chinese-funded Enterprises and Institutions
?nbsp;Notice of the Ministry of Commerce concerning Authorizing the Local Departments to Examine and Approve foreign-funded Commercial Enterprises
?nbsp;Measures for Administration on Electronic Bank Services
Partner of Haworth & Lexon, Mr. Bailey Xu Wrote Article on 揊und Raise Overseas by Domestic Private Company? which was Published by 揕egal Manager?of CCH
Haworth & Lexon Law Office is one of the six members of Editorial Board of 揕egal Manger?of CCH, together with Lovells International, Rouse & Co. International and Wilmer Cutler Pickering Hale and Dorr etc. 揝AFE's new regulation: the door for domestic private company to be listed in overseas stock market is re-opened? written by Mr. Bailey Xu, Partner of Haworth & Lexon, was published in the first issue of 2006. Please kindly see http://www.hllawyers.com/law-cn-publications/law-cn-publications-55.htm for the article in Chinese.
Circular on Further Standardize Administration of Transfer of Mining Industrial Rights
The Ministry of Land and Resource promulgated 揅ircular on Further Standardize Administration of Transfer of Mining Industrial Rights?on January 24, 2006.
The Circular regulated on classification and transferring meanings of mining industrial rights, and 揅ontent on Classification of Perambulation and Exploitation of Mine?was attached at the end.
There are many ways to transfer the mining industrial rights according to the Circular:
The first way is called 揂pply first and then registered first? If the mines are in Classification 1 of Content on Classification, which belong to the perambulation blank zone or was perambulated once but there is none for further perambulation, the transfer of prospecting right is subject to this way. The second way is to transfer the prospecting right by public invitation of bidding and auction. These mines include those in Classification 2 of 揅ontent on Classification of Perambulation and Exploitation of Mine?and those in Classification 1, which have been perambulated and there were mines for further perambulation; the third way is not to transfer prospecting right but to transfer mining right by inviting public bidding or auction, which is relevant to Classification 3 of the Content and some mines in Classification 1. In addition, the Notice stipulates that it is necessary to transfer the prospecting right and mining right by inviting public bidding in three cases.
The Circular also regulates that the previous provisions on some mines, such as oil and natural gas, are still effective.
Supplementary Rules Two for 揟entative Rules on Foreign Investment in Cinemas?
The State Administration on Radio Film and Television, Ministry of Commerce and Ministry of Culture promulgated 揝upplementary Rules two for 揟entative Rules on Foreign Investment in Cinemas?on January 18, 2006, which came into force on February 20, 2006.
The Supplementary Rules Two removes the final obstacle to enter into film projecting industry by the service providers from Hong Kong and Macau , but the issuance of films has not been open to them yet. Article 3 of ?Tentative Rules on Foreign Investment in Cinemas ?in 2003 forbade foreign investors established wholly foreign owned cinemas in China ; the ensuing Supplementary Rules allowed the investors from Hong Kong and Macau to establish, reform and operate cinemas jointly, cooperatively or wholly from January 1, 2005. But Supplementary Two allows the service providers from Hong Kong and Macau establish wholly foreign owned companies in China to engage in film projecting industry, establishing or reforming many cinemas in many locations.
However, the service providers from Hong Kong and Macau must conform to the definition on 搒ervice provider?and rules in some laws and regulations.
Notice of the Ministry of Commerce on Regulating the Relevant Matters Concerning the Naming of Overseas Chinese-funded Enterprises and Institutions
The Ministry of Commerce promulgated ?Notice on Regulating the Relevant Matters Concerning the Naming of Overseas Chinese-funded Enterprises and Institutions?on January 22, 2006.
The names of Overseas Chinese-funded Enterprises (entities) shall not use wordings like 揅hina?揅hinese?or 揝tate? whether in Chinese or English. This is one of the requirements on regulating naming of overseas Chinese-funded enterprises and entities by the Ministry of Commerce.
The Notice requires that naming of overseas Chinese-funded enterprises and entities not violate the relevant laws and regulations in China , or impair the prestige or interest of China , and it must conform to the local regulations and customs.
The Notice clearly points out that if the name is relevant to an industry, form of organization, nature of business, the expressions shall be in accordance with the reality, and it shall not impair the interests of other enterprises, foreign enterprises and investing enterprises.
The Notice requires that the registered names of overseas Chinese-funded enterprises shall be the same as what are on the approval certificate. If the names have been changed, the enterprises shall perform the relevant proceedings as provided in ?Regulations on Examination and Approval Items for Overseas Investment and Establishment of Overseas Enterprise ?.
Notice of the Ministry of Commerce concerning Authorizing the Local Departments to Examine and Approve foreign-funded Commercial Enterprises
The Ministry of Commerce promulgated ?Notice of the Ministry of Commerce concerning Authorizing the Local Departments to Examine and Approve Foreign-funded Commercial Enterprises ?on December 9, 2005, which was effective on March 3, 2006.
The Ministry of Commerce confers some of the examining and approval items on the commercial department of province level and state economic and technological developing zone administration committee.
These items are as follows. Carrying on business by ways provided by article 9 of 揗easures for the Administration on Foreign Investment in Commercial Fields?is examined and approved by competent commercial department of province and put on records at the Ministry of Commerce, but the following two items shall still be examined and approved by Ministry of Commerce. One is the means of sales involve television, telephone, mail, internet and so on. The other is that the commodities are relevant to steel, noble metal, iron, fuel oil and natural gas and those provided by article 18 of 揗easures on Administration on Foreign Investment in Commercial Fields?. If a foreign-funded commercial enterprise who carries on retail business establishes stores within its provincial locality or state economic an technological zones, the competent commercial department shall examine and approve within its power and report to and put in on record at Ministry of Commerce, provided it belongs to one of the conditions listed in the Notice.
The Notice also provides that if a foreign-funded commercial enterprise is set up by way of acquisition, and it's controlled by one management group or its real controller is the same, it shall be examined and approved by Ministry of Commerce.
Measures for Administration on Electronic Bank Services
China Banking Regulatory Commission promulgated 揗easures for Administration on Electronic Bank Services?on January 26, 2006, which was effective on March 1, 2006.
Electronic bank services, means that the banking financial institutions provide banking services by public communication or open public network and specific network established for specific self-service facilities or clients. Electronic banking services include banking services using computers and networks, banking services using communication facilities and telecommunication network, banking services using mobile and internet and other banking services which help the clients complete the financial transactions by self-services, using electronic facilities and network.
If the financial institutions carry on electronic banking services, they shall report to banking regulatory commission or submit for its examination and approval, in case that the services are different, and they shall provide the relevant documents and data as provided by Measures.
The Measures pays great attention on the risk problem of electronic banks, which provides that the financial institutions shall establish the relevant mechanisms to research, supervise and deal with misconducts such as faking or intentionally setting up telephones, websites or SMS numbers which are similar to those of the financial institutions. If the misconducts are found, the financial institutions shall report the case to the safety authority, and report to the China Banking Regulatory Commission, and remind their clients on their websites, voice mail system or SMS platform on time.
The Measures also stipulates that financial institutions shall not transfer or sell data of electronic banking service to the financial institutions which do not have business with them, nor shall they get interests by impairing the clients' interests. If during the process of providing electronic banking services, losses are incurred from hidden safety trouble, illegal operation or other reasons which are not caused by the clients themselves, financial institutions shall be responsible for them.
The Measures provided further that, if losses are incurred from that the clients disclose the transaction passwords intentionally or do not fulfill their security and non-disclosure obligations, the financial institutions may be immune from being liable for them in accordance with the service agreements.
