|發布時間： 2020-09-07 14:55 來源： 商務部|
部 長 鐘 山
Order of the Ministry of Commerce of the People's Republic of China
The Rules on Handling Complaints of Foreign-Invested Enterprises has been adopted at the 29th ministerial conference of the Ministry of Commerce on August 18, 2020. It is hereby promulgated and shall come into force as of October 1, 2020.
Minister of Commerce
August 25, 2020
Rules on Handling Complaints of Foreign-Invested Enterprises
Chapter I General Provisions
Article 1 These Rules are formulated in accordance with the Foreign Investment Law of the People’s Republic of China and the Implementation Regulation of the Foreign Investment Law of the People’s Republic of China, for the purposes of handling complaints of foreign-invested enterprises in a timely and effective manner, protecting the legitimate rights and interests of foreign investors, and continuously optimizing foreign investment environment.
Article 2 The complaints of foreign-invested enterprises referred to in these Rules mean:
(1) making applications by foreign-invested enterprises or foreign investors (hereinafter collectively referred to as the Complainant)to Agencies Handling Complaints for coordination to resolve matters, alleging that administrative actions administrative agencies (including organizations authorized with the function of public affairs administration by laws and regulations) and their staff members (hereinafter collectively referred to as the Complainee) have infringed the Complainant’s legitimate rights and interests; or
(2) reporting issues concerning investment environment and suggesting improvements of relevant policies and measures by the Complainant to Agencies Handling Complaints.
Agencies Handling Complaints referred to in the preceding paragraph mean the Ministry of Commerce and the departments or institutions designated by local people's governments at and above the county level to accept complaints of foreign-invested enterprises.
The complaints of foreign-invested enterprises referred to in these Rules do not include applications of foreign-invested enterprises or foreign investors for coordination to settle civil and commercial disputes with other natural persons, legal persons or other organizations.
Article 3 Agencies Handling Complaints shall adhere to the principles of fairness, impartiality, lawfulness, and different levels of Agencies Handling Complaints shall fulfill their due responsibilities. Agencies Handling Complaints shall promptly deal with matters raised by Complainants, and coordinate to improve relevant policies and measures.
Article 4 The Complainant shall truthfully present the facts of the complaint, provide evidence, and actively assist Agencies Handling Complaints to handle the complaints.
Article 5 The Ministry of Commerce, in conjunction with other relevant departments under the State Council, establishes an inter-ministerial joint meeting system for complaints of foreign-invested enterprises (hereinafter referred to as the Joint Meeting) to coordinate and facilitate the handling of complaints of foreign-invested enterprises at the central level, and guide and supervise the handling of complaints of foreign-invested enterprises at the regional level. The Department of Foreign Investment Administration of the Ministry of Commerce serves as Office of Joint Meeting, which is responsible for the daily work of the Joint Meeting and guiding and supervising the work of the National Center for Complaints of Foreign-Invested Enterprises.
Article 6 The Ministry of Commerce shall be responsible for handling the following complaints:
(1) where the matter is related to administrative actions of the relevant departments under the State Council, people's governments of provinces, autonomous regions and municipalities and their staff members;
(2) where suggestions are made for relevant departments under the State Council and people's governments of provinces, autonomous regions and municipalities to improve relevant policies and measures; and
(3) where the matter has significant national or international impact, and could be handled by the Ministry of Commerce as it deems fit.
The Ministry of Commerce establishes the National Center for Complaints of Foreign-Invested Enterprises (hereinafter referred to as the National Center, which is temporarily seated at the Investment Promotion Agency of the Ministry of Commerce), which is responsible for handling the complaints referred to in the preceding paragraph.
The National Center organizes publicity campaigns on laws, regulations and policies relating to foreign investment, conducts training on handling complaints of foreign-invested enterprises, shares experience in handling complaints, puts forward relevant policy recommendations, supervises handling complaints of foreign-invested enterprises at local levels, and effectively avoids the occurrence of complaints.
Article 7 Local people's government at and above the county level shall designate a department or institution (hereinafter referred to as Local Agencies Handling Complaints) to be responsible for handling complaints. Local Agencies Handling Complaints shall improve the working rules for complaint handling, expand complaint channels, and specify the scope of acceptable complaints, and the time limits for handling complaints.
Local Agencies Handling Complaints shall accept complaints concerning administrative actions of administrative agencies of their region and their staff members, or complaints concerning suggestions to improve relevant policies and measures of their region.
Article 8 The filing of a Complainant for coordination to resolve disputes with administrative agencies in accordance with these Rules is without prejudice to its rights to initiate administrative reconsideration, administrative litigation and etc. within the statutory time limits.
Article 9 Chambers of commerce and associations referred to in the Article 27 of the Foreign Investment Law of the People's Republic of China may, with reference to these Rules, submit the issues concerning investment environment raised by their members, and specific suggestions on policies and measures to Agencies Handling Complaints.
Chapter II Filing and Acceptance of Complaint
Article 10 Complainants shall submit written complaint materials when filing a complaint. Complaint materials may be submitted on-site, or by letter, fax, e-mail, online application system and other ways.
Agencies Handling Complaints at all levels shall publish their contact information such as address, telephone and fax number, e-mail address, and website to help the Complainant file complaints.
Article 11 Complaint materials shall include the following, if the complaint is filed under subparagraph (1), paragraph 1 of Article 2 of these Rules:
(1) the Complainant’s name, correspondence address, postcode, relevant contact person and contact information, relevant identity certificate, and the date of filing;
(2) the Complainee’s name, correspondence address, postcode, relevant contact person and contact information;
(3) specific issues and claims of complaint;
(4) relevant facts, evidence and reasoning; together with relevant legal basis, if any; and
(5) description whether circumstances referred to in the subparagraphs (7), (8) and (9) of Article 14 of these Rules exist.
Complaint materials shall include information prescribed by the subparagraph (1) of the preceding paragraph, issues concerning investment environment and specific suggestions on policies and measures, if the complaint is filed under subparagraph (2), paragraph 1 of Article 2 of these Rules:
The complaint materials shall be written in Chinese. If relevant evidence and original documents are written in foreign languages, accurate and complete Chinese translations shall be submitted.
Article 12 The Complainant may entrust others to file complaints. If the Complainant entrusts others to file complaints, in addition to the materials prescribed in Article 11 of these Rules, the identity certificate of the Complainant, power of attorney issued by the Complainant and identity certificate of the entrusted party shall also be submitted to Agencies Handling Complaints. The power of attorney shall specify the entrusted matters, the scope and the time limits.
Article 13 Where the complaint materials are incomplete, Agencies Handling Complaints shall notify the Complainant in a single written notice within 7 working days after receiving the complaint materials and request the Complainant to make supplementation or corrections within 15 working days. The written notice shall specify the materials to be supplemented or corrected and the time limits.
Article 14 The complaint shall not be accepted if any of the following circumstances exists:
(1) the Complainant is not a foreign-invested enterprise or foreign investor;
(2) the Complainant applies for coordination to settle civil and commercial disputes with other natural persons, legal persons or other organizations, or not within the scope of complaints of foreign-invested enterprises prescribed by these Rules;
(3) the complaint is not within the acceptable scope of the respective Agencies Handling Complaints;
(4) the complaint materials fail to meet the requirements referred to in the Article 11 of these Rules, after being supplemented or corrected in accordance with the notice referred to in the Article 13 of these Rules;
(5) the Complainant forged or altered the evidence or the complaint is manifestly without factual basis;
(6) the Complaint refiles a complaint to the same Agency Handling Complaints without submitting any new evidence or legal basis;
(7) the same complaint matter has been accepted or the complaint handling process has been terminated by Agencies Handling Complaints at higher level;
(8) the same complaint matter has been accepted or the respective procedure has been terminated by public complaints and proposals administration and etc.; or
(9) the same complaint matter has been referred to, or settled by, administrative reconsideration, administrative litigation and etc.
Article 15 Agencies Handling Complaints shall make decision on whether to accept the complaint within 7 working days upon receipt of complete complaint materials.
The complaint shall be accepted, provided that it satisfies the conditions, and an acceptance notice shall be issued to Complainant.
Where the complaint fails to satisfy the conditions, the Agencies Handling Complaints shall, issue the notice of rejection with reasons for rejection to Complainant, within 7 working days. Under the circumstance referred to in the subparagraph (3), paragraph 1 of Article 14 of these Rules, the Agencies Handling Complaints may inform the Complainant to file the complaint to relevant Agencies Handling Complaints.
Chapter III Complaint Handling
Article 16 Once the complaint is accepted, the Agency Handling Complaints shall conduct sufficient communications with the Complainant and the Complainee, collect information, coordinate to handle complaints in accordance with law, and work for an appropriate solution for the complaint.
Article 17 When handling complaints, the Agencies Handling Complaints may request the Complainant to assist by offering further explanations, and providing documents or other necessary assistance, the Complainant shall provide assistance as requested; the Agencies Handling Complaints may request the Complainee to provide information, and the Complainee shall cooperate as requested.
According to the specifics of complaints, the Agencies Handling Complaints may organize meetings, and invite the Complainant and the Complainee to state their opinions and discuss possible solutions to the complaint matter. If needed in the complaint handling process, the Agencies Handling Complaints may seek opinions of relevant experts on professional issues.
Article 18 According to the specifics of complaints, the Agencies Handling Complaints may handle complaints in the following ways:
(1) promoting mutual understanding (including reaching a settlement agreement) between the Complainant and the Complainee;
(2) coordinating with the Complainee;
(3) submitting recommendations on improving relevant policies and measures to people's governments at and above the county level and their relevant departments; or
(4) other methods that the Agencies Handling Complaints deem appropriate.
The settlement agreement signed between the Complainant and the Complainee shall specify the matters and contents of the settlement. The settlement agreement concluded in accordance with law shall be binding on the Complainant and the Complainee. If the Complainee fails to implement the effective settlement agreement, Article 41 of the Implementation Regulation of the Foreign Investment Law of the People’s Republic of China shall apply.
Article 19 Agencies Handling Complaints shall complete the complaint handling process within 60 working days after the acceptance of the complaints. For complaints involving multiple departments or complicated matters, the time limits can be extended as appropriate.
Article 20 The Complaint handling process shall be terminated if any of the following circumstances exists:
(1) Agencies Handling Complaints coordinate to handle the complaints in accordance with the Article 18 of these Rules, and the Complainant agrees to terminate the process;
(2) the complaint lacks factual basis; or if the Complainant refuse to provide materials, which makes it impossible to examine relevant facts;
(3) the Complainant's claim lacks legal basis;
(4) the Complainant withdraws the complaint in writing;
(5) the Complainant no longer meets the identity qualification; or
(6) after being contacted by the Agency Handling Complaints, the Complainant has not participated in the complaint handling process for 30 consecutive days without justifiable reasons;
During the complaint handling process, if any of the circumstances referred to in the subparagraphs (7), (8) and (9) of Article 14 of these Rules occurs, the complaint shall be deemed as withdrawn in writing by Complainant.
Once the complaint handling process is terminated, the Agency Handling Complaints shall notify the Complainant of the result in writing within 3 working days.
Article 21 If the complaint handling process has not been terminated within 1 year after the acceptance of the complaints in accordance with Article 20 of these Rules, Agencies Handling Complaints shall promptly report the matters to people’s government at the same level, and provide relevant recommendations.
Article 22 If the Complainant objects to the rejection decisions issued by Local Agencies Handling Complaints, or is dissatisfied with the results of the complaint handling, such Complainant may submit the original complaint matter to the Agency Handling Complaints at a higher level. The Agency Handling Complaints at a higher level may decide whether to accept such original complaint matter in accordance with its working rules for complaint handling.
Article 23 Agencies Handling Complaints shall establish and improve their internal management systems, and take effective measures in accordance with law to protect trade secrets, confidential business information and personal privacy of Complainants obtained during the complaint handling process.
Chapter IV Administrative System of Complaint Handling
Article 24 Agencies Handling Complaints shall establish their complaints archive management system, update records for the acceptance and handling of relevant complaints in a timely, comprehensive and accurate manner, and archive annually.
Article 25 Local Agencies Handling Complaints shall submit complaints records to Agency Handling Complaints at a higher level every two months, including the total number of complaints, update for the handling process, detailed information of the terminated complaints and relevant policies recommendations.
Agencies Handling Complaints of provinces, autonomous regions and municipalities shall submit the complaints records of the last two months of their regions to the National Complaint Center within the first 7 working days of every odd numbered month, and the National Center shall collect and submit those records to the Office of Joint Meeting.
Article 26 During the complaint handling process, if Local Agencies Handling Complaints identify the existing general issues of relevant local governments or departments, or identify the relevant normative documents inconsistent with laws or containing manifestly inappropriate contents, they may report to the National Center accordingly and submit recommendations for the improvement of policies and measures. The National Center shall collect and submit those recommendations to the Office of Joint Meeting.
Article 27 The National Center supervises complaint handling of provinces, autonomous regions and municipalities, establishes a regular supervision and inspection system, circulates the complaint records to people's governments of provinces, autonomous regions and municipalities, and publishes such records as it deems appropriate.
Article 28 The National Center shall submit proposal on the protection of foreign-invested enterprises’ rights and interests to the Office of Joint Meeting annually. The proposal shall compile the representative cases, major issues and recommendations of policies and measures which were raised by foreign-invested enterprises, foreign investors, chamber of commerce, associations, relevant local governments and relevant departments, and provide relevant recommendations on the strengthening of investment protection and improvement of investment environment.
Chapter V Supplementary Provisions
Article 29 If Agencies Handling Complaints and their staff members, during the complaint handling process of foreign-invested enterprises, abuses powers, neglects duties, engages in malpractices for personal gain or disclose or illegally provide others with any trade secret, confidential business information or personal privacy obtained during such handling process, the Article 39 of the Foreign Investment Law of the People’s Republic of China shall apply.
Article 30 No entity or individual may suppress or retaliate against Complainants who raise matters or apply for coordination to resolve matters through the complaint mechanism for foreign-invested enterprises.
Article 31 The handling of complaints concerning enterprises invested by investors from the Hong Kong Special Administrative Region, the Macao Special Administrative Region, the Taiwan region and Chinese citizens residing overseas, shall be governed with reference to these Rules.
Article 32 The Ministry of Commerce is responsible for the interpretation of these Rules.
Article 33 These Rules shall come into force as of October 1, 2020. The Interim Rules of the Ministry of Commerce on Complaints of Foreign-Invested Enterprises, which was published by Decree No. 2 of the Ministry of Commerce and dated September 1, 2006, shall be repealed simultaneously.