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上海市鼓励引进技术的吸收与创新规定

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上海市鼓励引进技术的吸收与创新规定

上海市人大常委会


上海市鼓励引进技术的吸收与创新规定
上海市人民代表大会常务委员会


《上海市鼓励引进技术的吸收与创新规定》已由上海市第十一届人民代表大会常务委员会第十六次会议于2000年1月25日通过,现予公布,自2000年3月1日起施行。


第一条 为了鼓励引进技术的吸收与创新,提高本市引进技术的吸收与创新能力,加快产业升级和技术进步,促进经济和社会发展,根据有关法律、法规,结合本市实际情况,制定本规定。
第二条 本规定所称引进技术的吸收与创新(以下简称吸收与创新),是指依法通过贸易、经济技术合作等方式,从国外取得先进技术并通过掌握其设计理论、工艺流程等技术要素,成功地运用于生产经营,以及在此基础上开发新技术、新产品并实现商业化的活动。
第三条 本规定适用于本市范围内的吸收与创新活动。
第四条 吸收与创新应当遵守保护知识产权的法律、法规以及我国加入或者签订的国际条约、协议。
技术进出口合同对技术保密有约定的,从其约定。
吸收与创新所形成的知识产权受法律保护。
第五条 市人民政府负责吸收与创新工作的组织、协调,做好宏观调控,限制低水平的重复引进。
上海市经济委员会(以下简称市经委)负责组织编制和实施全市的吸收与创新规划;编制、公布本市吸收与创新重点项目指导目录(以下简称指导目录)和年度计划;指导年度计划项目的实施并组织鉴定和验收。
本市各有关部门以及区、县人民政府根据各自职责,共同做好吸收与创新工作。
第六条 企业是吸收与创新的主体,有权根据生产经营的需要和市场需求,自主引进先进适用技术,自主确定吸收与创新的内容和方式。
大型企业或者企业集团可以按照国家有关规定,设立吸收与创新基地,承担国家和本市重大技术装备或者吸收与创新的项目。
职工应当遵守企业依法建立的技术保密制度。
第七条 本市鼓励企业与科研单位、高等院校开展吸收与创新的联合研究、联合开发,或者联合建立技术开发机构。
参与吸收与创新项目的各方,应当签订合同,约定有关技术权益的归属以及各方的权利与义务。
第八条 企业可以按照指导目录以及规定的条件和程序,申请将本企业的吸收与创新项目列入市吸收与创新年度计划。
市经委接到申请后,应当组织专家,按照公平、公正、合理的原则进行评审,在每年第一季度确定市吸收与创新年度计划的项目,并书面通知申请单位。
第九条 本市设立吸收与创新的专项资金,列入市级预算并逐步增加。
吸收与创新的专项资金按照本规定用于吸收与创新项目的低息贷款、贷款贴息和技术开发经费补贴等方面的资助。
吸收与创新的专项资金,由市经委委托的企业技术创新服务中心(以下简称创新服务中心)负责结算管理。
区、县人民政府可以根据本地区经济发展情况和吸收与创新的需要,设立相应的专项资金,用于扶持本地区的吸收与创新项目。
第十条 市各有关部门用于技术进步的其他专项资金,应当确定高于百分之十的比例用于鼓励吸收与创新,重点支持引进高新技术的产品开发、中试和产业化。
第十一条 列入市吸收与创新年度计划项目的单位,可以申请低息贷款;获得金融机构贷款的,可以申请贷款贴息。
第十二条 下列项目或者技术、产品可以获得技术开发经费的补贴:
(一)属于国家技术创新项目或者本市重点支持的吸收与创新项目;
(二)在吸收基础上创新的、具有市场竞争力或者获得自主知识产权的技术、产品;
(三)未列入市吸收与创新年度计划,但符合指导目录要求,经过市经委组织鉴定,确认其技术上有重大突破并形成一定商业规模的项目。
第十三条 企业用于吸收与创新的技术开发经费,可以按照实际发生额计入成本。
用于吸收与创新的关键设备、测试仪器,单价在规定数额以下的,可以一次或者分次计入成本。
列入市吸收与创新年度计划的项目,经市财政、税务部门审核,可以对设备进行快速折旧,并参照市新产品试产计划或者中试产品计划的规定享受相应优惠。
第十四条 吸收与创新项目属于高新技术成果转化的,或者在吸收高新技术基础上创新的成果转让取得收益的,按照国家和本市高新技术成果转化的规定,享受优惠。
第十五条 列入市吸收与创新年度计划的项目,可以向市经委申请优先列入市技术改造项目计划,获得资本金注入或者贷款贴息的资助。
第十六条 吸收与创新的技术或者产品申请国内外专利的,可以分别向市科技行政管理部门、市专利行政管理部门、市经委申请专利申请费、专利维持费、专利代理费的部分资助。
企业引进国外专利技术用于技术开发,属于国内首次运用的,可以凭专利转让或者专利许可合同等有效证明,向市经委申请经费补贴。
第十七条 企业在本市建立吸收与创新的下列机构,可以向市经委申请启动经费的补贴:
(一)国家级或者市级的企业技术开发中心;
(二)国家级或者市级的吸收与创新基地;
(三)与科研单位、高等院校联合建立的市级技术开发机构。
第十八条 吸收与创新的高新技术产品出口,可以按照国家有关规定享受增值税零税率优惠。
吸收与创新的产品进入国际市场,其企业可以向市经委申请有关技术质量认证或者许可的经费补贴。
第十九条 本市吸收与创新年度计划的项目承担单位需要引进外省市专业技术人才的,可以按照规定直接申请办理外省市专业技术人才调入本市的手续,需要引进国外技术管理专家、海外高层次留学人员的,可以按照规定申请有关专项资金的扶持。
对列入市吸收与创新年度计划的项目进行关键技术攻关,需要聘用国外专家的,可依据聘用合同向市有关部门申请经费补贴。
第二十条 本市各级机关在采购活动中,在同等条件下,应当优先采购属于扶持发展产业的吸收与创新产品。
第二十一条 对吸收与创新作出重大贡献的企业经营者、项目负责人和科技人员,有关部门应当给予奖励。
对吸收与创新作出重大贡献的企业经营者、项目负责人和科技人员,企业应当在吸收与创新产品取得的收益中提取一定比例给予奖励,或者按照国家和本市有关规定将奖励额折算为股份或者出资比例,由受奖励人分享收益。
第二十二条 吸收与创新的成果或者产品,可以申请各级科技成果奖项。
第二十三条 创新服务中心应当根据市经委批准的吸收与创新项目和款额,与项目单位订立合同,并通过有关金融机构将款额及时足额地拨付给项目单位;项目单位应当按照合同约定的内容履行义务。
第二十四条 本市有关部门和创新服务中心的工作人员,在吸收与创新活动中违反本规定,疏于职守、弄虚作假、徇私舞弊,侵犯吸收与创新项目单位合法权益的,由其所在单位或者上级主管部门责令改正,给予行政处分;挪用、克扣、截留吸收与创新专项资金的,由其所在单位或者
上级主管部门责令限期归还,给予行政处分;构成犯罪的,依法追究刑事责任。
第二十五条 违反本规定第四条,侵犯他人知识产权的,依照相关法律、法规处理。
违反本规定第六条第三款,给企业造成损失的,企业有权要求赔偿,并依照相关法律的规定,追究其违法责任。
第二十六条 企业在吸收与创新活动中弄虚作假,骗取低息贷款、贷款贴息或者技术开发经费补贴等资助的,由市经委会同有关部门追回其所得的款额,并由市经委处以所骗款额一至三倍的罚款;骗取其他优惠待遇的,依照有关法律、法规的规定处理。
采取欺骗手段获得奖励的,由市经委及有关部门撤销其奖励,并责令其退回奖励所得。
第二十七条 本规定自2000年3月1日起施行。1987年6月20日上海市第八届人民代表大会常务委员会第二十九次会议批准的《上海市鼓励引进技术消化吸收暂行规定》同时废止。



2000年1月26日
刑事诉讼法的修改与公安侦查工作的调整

曹文安


[内容提要]1996年3月17日,八届全国人大四次会议通过了《关于修改(中华人民共和国刑事诉讼法)的决定》。修改后的《刑事诉讼法》对公安侦查工作提出了更高的要求。为了适应修改后的刑诉法的要求,公安侦查工作必须作出相应的调整。本文认为,这种调整应从侦查观念、侦查体制、侦查队伍素质等方面进行。
[关键词]刑诉法修改 公安侦查调整
1996年3月17日,八届全国人大四次会议通过了《关于修改(中华人民共和国刑事诉讼法)的决定》。这次刑事诉讼法的修改;在保持了原来的体例和原有的框架、结构的前提下,对刑事强制措施、诉讼当事人的诉讼权利的保障、以及对立案、侦查、起诉、审判、执行等程序中的相关问题,都进行了重大修改。公安机关是执行刑事诉讼法的主要机关之一,是刑事案件的主要侦查机关,刑事诉讼法的修改牵涉到公安侦查工作的方方面面,公安机关必须对公安侦查工作作出相应调整,方能适应修改后的刑事诉讼法的要求。
一、侦查观念的调整
此次刑事诉讼法的修改,对公安侦查工作影响较大的莫过于收容审查制度的废除,庭审方式的改革,以及律师可以介入侦查程序的崭新规定。
收容审查本是一项行政强制措施,但在司法实践中,却被公安机关广泛用来对付刑事犯罪分子,成了事实上的刑事强制措施。在长期的刑事司法实践中,公安机关已经很习惯于采用收容审查手段来办理刑事案件,从而形成了以审代侦、先讯问后取证的办案模式。由于是在缺乏证据后盾的情况下开展讯问,所以侦查人员较难通过合法手段获取口供,而只能借助于刑讯通供、诱供等非法手段来逼取、骗取口供。长此以往,侦查人员的讯问水平、取证能力便萎缩了,侦查素质也下了台阶。侦查人员长期遵循先讯问后取证的办案模式,其侦查水平、侦查能力的日益萎缩与刑事犯罪的日益智能化、集团化的反差愈益明显。而此次刑事诉讼法修改后,有关机关已明确宣布废除收容审查制度。对此,公安机关在较长的一段时期内,在办理刑事案件过程中,必然觉得难以适应。
评价一个国家诉讼制度的优劣,重要标志之一就是看其法庭的审判是否公正。我国原庭审方式由于实行卷宗移送主义,所以在实践中存在法官先入为主、先判后审的弊端,法庭审判成了“走过场”,在法庭上公诉人不承担举证责任,法庭开庭审理,如认为事实不清或证据不足,则退回检察院补充侦查,辩护人的辩护只不过是例行公事。这种庭审方式显然难以体现公正。为了充分保证诉讼公正,此次修改刑事诉讼法,确立了“辩论式”的庭审方式,即在法官的主持下,由控、辩双方交叉询问并开展辩论、质证,法官在充分听取了各方意见后,从容决定对证据的取舍和对案情的认定,最后依法作出具有权威性的判决。这就明确了控诉方的举证责任。如果控诉方所举证据无法证明指控的犯罪事实,则人民法院有权作出“证据不足,指控的犯罪不能成立的无罪判决。”这一改革,无疑对控诉方的取证能力提出了更高的要求,对公安侦查工作具有重大的影响。
修改后的刑事诉讼法规定律师可以介人侦查程序,这标志着我国的诉讼制度又向民主化迈进了一大步。律师介入公安侦查程序,无疑将对公安侦查活动起到有效的监督作用。律师的介入,必将遏制“警察暴力”,同时也能使犯罪嫌疑人的诉讼权利得到较好的保障。律师介人侦查程序后,其有权会见在押的犯罪嫌疑人,有权向犯罪嫌疑人了解案件有关情况,有权向犯罪嫌疑人提供法律咨询,对侦查人员侵犯犯罪嫌疑人诉讼权利的,律师有权代为控告。由此可见,律师的介入,对公安侦查工作提出了更高的要求。为保障侦查工作的顺利进行,侦查人员应当在律师介入之前就突破犯罪嫌疑人的口供,掌握犯罪的主要证据,以掌握进一步侦查的主动权。
不论是收容审查制度的废除,还是庭审方式的改革,抑或是律师介入侦查程序的规定,归根到底都要求侦查人员要转变侦查观念,明确侦查程序具有的惩罚犯罪与保障人权的双重功能,改变办案模式,变先讯问后取证为先取证后讯问再取证,同时,努力提高讯问水平和取证能力。唯有如此,才能做到依法侦查,才能圆满地完成侦查任务。
二、侦查体制的调整
体制不顺,机制不活,是制约侦查工作效益的重要因素。派出所承办大量刑事案件的机制导致防范薄弱,治安基层基础工作普遍被削弱;侦查与预审部门分立的体制,人为地割断了侦查破案工作的连续性,造成侦查与预审部门在工作衔接上的困难,同时还容易造成重复劳动,影响办案效率。修改后的刑事诉讼法对公安侦查办案时间和质量都提出了更高的要求,原来的侦防机制和侦审分立的体制已不能适应刑事诉讼法的要求,进行相应的调整势在必然。
改革侦防机制,刑侦部门承担绝大部分刑事案件的侦查任务,派出所不再承担破案指标,而是集中精力做好基层基础工作,这样,一方面加强了治安防范工作,对预防犯罪起到重要作用;另一方面,由于派出所加强了对重口、外口的管理,加强了基础建设,所以它就能利用群众基础好、人员熟、情况熟的优势,为刑侦部门提供破案线索和协助抓获犯罪嫌疑分子。这一改革目标的实现,就能为刑侦部门侦查刑事案件赢得时间,既可迅速破案,又能及时收集到有关的犯罪证据,为依法侦查打下扎实的基础。
实行侦审一体化,是对原侦审分立体制的重大改革。我国的公安预审部门在长期的侦查实践中,为严格办案,依法监管,深挖犯罪,作出了突出的贡献。但随着修改后的刑事诉讼法的贯彻实施,侦查与预审分设的体制弊端暴露得越来越明显。侦审分立究竟有无必要呢?其实,从侦查程序构造的理论看,侦审本来都属控方,是公安机关这一承担控诉职能的机构之下的两个部门,共同承担控诉之职,实无分立之必要。从公安机关与检察院在办理刑事案件时的相互关系看,我国的公、检关系与国外的不同。国外检察官与警察之间是一种支配与被支配的关系,相互间不存在互相制约的关系,侦查与检察是一体的;而我国的公安侦查与检察的关系是断开的,即公安机关与检察院之间在办理刑事案件时存在相互制约关系,检察院对公安机关办理的刑事案件有审查起诉权。这种公检关系也表明在公安内部不必另设一个部门来对侦查部门办理的刑事案件进行审查把关。因此,侦审一体化符合刑事诉讼目的。实行侦审一体化,就是要在侦查部门内实现立案、侦查、审讯、提请批捕、移送起诉一体化。这样,既可保证办案时效,提高办案效率和办案质量,又有利于明确责任,严格执法,更加有力地打击犯罪,同时还有利于侦查人员业务素质的全面提高。
为适应修改后的刑事诉讼法的要求,公安机关除了调整侦防机制和侦审体制外,还应建立侦查破案的快速反应机制。刑侦部门应当与指挥中心、交警、巡警和派出所紧密协作,接警后迅速出警,快速赶赴现场,抓获现行,掌握第一手材料。这一系列改革目标实现后,公安侦查工作方能迈上一个新台阶。
三、侦查队伍素质的调整
刑事侦查工作是一项专门性工作,专业性很强,对侦查人员的素质要求较高。侦查员不仅要有较高的政治素质、业务素质,而且要有较好的法律素质、文化素质、身体和心理素质,并不是什么人都可以当侦查员,只有优秀的人才能成为侦查员。目前在公安刑侦队伍中有“三个三分之一”:有三分之一的人能干,三分之一的人跟着干,三分之一的人只会送水送饭。这种队伍状况根本无法适应修改后的刑法和刑事诉讼法的要求,必须进行调整。笔者认为,对公安侦查队伍的调整可以从以下几方面进行:
首先,把好进人关。公安部应当尽快制定侦查人员任职资格标准,同时要将此标准法律化。各级公安机关在招警时,就应按此标准招收侦查人员。凡不依此标准者,所招人员清理出侦查队伍,对违反规定招警的公安机关负责人以及直接责任人员,应给予必要的纪律处分。
对侦查人员的任职资格标准,可考虑以下几点:政治上,应有一定的政治理论水平,最好是共产党员或者是共青团员;业务上,应经过正规的公安政法专业培训,凡从正规公安政法院校毕业的学生,侦查机关可以优先考虑录用,以改变当前一些地方公安政法院校正规毕业生进不了侦查队伍,而未经正规培训的人却大量涌入侦查队伍的状况;法律素质方面,侦查人员应具有良好的法律素质,特别要精通刑法和刑事诉讼法;文化素质方面,侦查人员至少应具有高中毕业文化水平,最好要有大专文化程度;另外,侦查人员还应具有良好的身体和心理素质。
其次,加强对现有侦查人员的培训和考核。现有的侦查人员中,大部分具有较好的政治和业务素质,但是,由于工作任务重,严打和专项斗争接二连三,侦查人员疲于奔命,没有得到休整和培训,业务素质停滞不前甚至下降,法律素质明显跟不上形势的发展,身体素质则根本没有提高的机会。对此,公安机关应加强对他们的培训,在此基础上,按照侦查人员任职资格标准进行考核。对经过培训考核后,不能达到侦查人员任职资格标准的,要转岗,不能再呆在侦查部门。
最后,要在侦查队伍中建立优胜劣汰的用人机制,奖勤罚懒的激励机制,能者上、庸者下、平者让的竞争机制。在当前的侦查队伍中,存在着松、散、懒的问题。一些侦查员不思进取,混时度日,无所作为。这种状况存在的根源在于侦查队伍中各种机制存在问题。侦查员干 干少一个样,干好干坏一个样。有能力的侦查员得不到重用,而平庸无能者由于会做“公关”工作,反而深得某些领导的赏识,升迁有门。虽然有些地方的公安机关已经意识到了这一问题,在侦查队伍的领导任用上,进行了竞争上岗的尝试,但这样仍然没有从根本上解决问题。竞争上岗制是能者上、庸者下、平者让的竞争机制的必然结果,但是,侦查队伍的领导岗位毕竟是有限的,不可能所有有能力、表现好的侦查员都能走上领导岗位。这就需要配套建立奖勤罚懒的激励机制,即建立侦查员等级晋升制,将侦查员划分一定的等级,规定晋级标准,定期进行目标考核,凡符合晋级标准者给予晋升;凡未达到晋级标准但仍符合所任级别标准者,保留原级;凡未达到晋级标准同时又末达到原级别标准者,降级使用。同时,对不同的级别,规定不同的政治、经济待遇。在建立竞争机制、激励机制的同时,还应建立优胜劣汰的用人机制,即对那些不思进取、无所作为、对任何考核都抱着无所谓、在侦查队伍里表现不死不活的人,应坚决予以淘汰;而对那些表现突出、积极进取、为侦查事业鞠躬尽瘁的人,则应予以重奖或者重用。这样,优秀的侦查员才会觉得自已的价值得到了承认,前途光明;一般的侦查员才会觉得有压力,才会知道继续混日子就有可能被淘汰;而劣质侦查员才有可能被清理出侦查队伍。而这样的侦查队伍用人机制才有可能充分调动每一个侦查人员的工作积极性和主观能动性,才有可能建成一支党和人民放心的、充满生机和活力的、具有很强攻坚能力的队伍。

本文发表于《福建公安高等专科学校学报》1999年第2期

中国加入工作组报告书(英文本)

世界贸易组织法律文件



REPORT OF THE WORKING PARTY

ON THE ACCESSION OF CHINA



TABLE OF CONTENTS
I. INTRODUCTION 1
1. Documentation Provided 1
2. Introductory Statements 1
II. ECONOMIC POLICIES 3
1. Non-Discrimination (including national treatment) 3
2. Monetary and Fiscal Policy 5
3. Foreign Exchange and Payments 5
4. Balance-of-Payments Measures 7
5. Investment Regime 8
6. State-Owned and State-Invested Enterprises 8
7. Pricing Policies 10
8. Competition Policy 12
III. FRAMEWORK FOR MAKING AND ENFORCING POLICIES 12
1. Structure and Powers of the Government 12
2. Authority of Sub-National Governments 13
3. Uniform Administration of the Trade Regime 14
4. Judicial Review 14
IV. POLICIES AFFECTING TRADE IN GOODS 15
A. TRADING RIGHTS 15
1. General 15
2. Designated Trading 17
B. IMPORT REGULATION 17
1. Ordinary Customs Duties 17
2. Other Duties and Charges 19
3. Rules of Origin 19
4. Fees and Charges for Services Rendered 19
5. Application of Internal Taxes to Imports 19
6. Tariff Exemptions 20
7. Tariff Rate Quotas 21
8. Quantitative Import Restrictions, including Prohibitions and Quotas 23
9. Import Licensing 26
10. Customs Valuation 27
11. Other Customs Formalities 28
12. Preshipment Inspection 28
13. Anti-Dumping, Countervailing Duties 29
14. Safeguards 31
C. EXPORT REGULATIONS 31
1. Customs Tariffs, Fees and Charges for Services Rendered, Application of Internal Taxes to Exports 31
2. Export Licensing and Export Restrictions 31
3. Export Subsidies 33
D. INTERNAL POLICIES AFFECTING FOREIGN TRADE IN GOODS 33
1. Taxes and Charges Levied on Imports and Exports 33
2. Industrial Policy, including Subsidies 33
3. Technical Barriers to Trade 35
4. Sanitary and Phytosanitary Measures 39
5. Trade-Related Investment Measures 40
6. State Trading Entities 40
7. Special Economic Areas 42
8. Transit 43
9. Agricultural Policies 43
10. Trade in Civil Aircraft 45
11. Textiles 45
12. Measures Maintained Against China 46
13. Transitional Safeguards 46
V. TRADE-RELATED INTELLECTUAL PROPERTY REGIME 48
A. GENERAL 48
1. Overview 48
2. Responsible agencies for policy formulation and implementation 52
3. Participation in international intellectual property agreements 53
4. Application of national and MFN treatment to foreign nationals 53
B. SUBSTANTIVE STANDARDS OF PROTECTION, INCLUDING PROCEDURES FOR THE ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS 54
1. Copyright protection 54
2. Trademarks, including service marks 54
3. Geographical indications, including appellations of origin 55
4. Industrial designs 55
5. Patents 56
6. Plant variety protection 58
7. Layout designs of integrated circuits 59
8. Requirements on undisclosed information, including trade secrets and test data 59
C. MEASURES TO CONTROL ABUSE OF INTELLECTUAL PROPERTY RIGHTS 60
D. ENFORCEMENT 60
1. General 60
2. Civil judicial procedures and remedies 61
3. Provisional measures 61
4. Administrative procedures and remedies 62
5. Special border measures 63
6. Criminal procedures 63
VI. POLICIES AFFECTING TRADE IN SERVICES 63
1. Licensing 63
2. Choice of Partner 66
3. Modification of the Equity Interest 67
4. Prior Experience Requirement for Establishment in Insurance Sector 67
5. Inspection Services 67
6. Market Research 67
7. Legal Services 67
8. Minority Shareholder Rights 67
9. Schedule of Specific Commitments 68
VII. OTHER ISSUES 68
1. Notifications 68
2. Special Trade Arrangements 68
3. Transparency 68
4. Government Procurement 70
VIII. CONCLUSIONS 71



I. INTRODUCTION
1. At its meeting on 4 March 1987, the Council established a Working Party to examine the request of the Government of the People's Republic of China ("China") (L/6017, submitted on 10 July 1986) for resumption of its status as a GATT contracting party, and to submit to the Council recommendations which may include a Protocol on the Status of China. In a communication dated 7 December 1995, the Government of China applied for accession to the Marrakesh Agreement Establishing the World Trade Organization ("WTO Agreement") pursuant to Article XII of the WTO Agreement. Following China's application and pursuant to the decision of the General Council on 31 January 1995, the existing Working Party on China's Status as a GATT 1947 Contracting Party was transformed into a WTO Accession Working Party, effective from 7 December 1995. The terms of reference and the membership of the Working Party are reproduced in document WT/ACC/CHN/2/Rev.11 and Corr.1.
2. The Working Party on China's Status as a Contracting Party met on 20 occasions between 1987 and 1995 under the Chairmanship of H.E. Mr. Pierre-Louis Girard (Switzerland). The Working Party on the Accession of China met on 22 March 1996, 1 November 1996, 6 March 1997, 23 May 1997, 1 August 1997, 5 December 1997, 8 April 1998, 24 July 1998, 21 March 2000, 23 June 2000, 27 July 2000, 28 September 2000, 9 November 2000, 8 December 2000, 17 January 2001, 4 July 2001, 20 July 2001 and 17 September 2001 under the same Chairman. At meetings held on 9 November 2000, 8 December 2000 and 17 January 2001, Mr. Paul-Henri Ravier, Deputy Director-General of the WTO, served as Acting Chairman.
1. Documentation Provided
3. The Working Party had before it, to serve as a basis for its discussion, a Memorandum on China's Foreign Trade Regime (L/6125) and questions posed by members of the Working Party on the foreign trade regime of China, together with replies of the Chinese authorities thereto. In addition, the Government of China made available to the Working Party a substantial amount of documentation, which is listed in document WT/ACC/CHN/23/Rev.1.
2. Introductory Statements
4. In statements to the GATT 1947 Working Party and subsequently to the Working Party on the Accession of China, the representative of China stated that China's consistent efforts to resume its status as a contracting party to GATT and accession to the WTO Agreement were in line with its objective of economic reform to establish a socialist market economy as well as its basic national policy of opening to the outside world. China's WTO accession would increase its economic growth and enhance its economic and trade relations with WTO Members.
5. Members of the Working Party welcomed China's accession to the WTO Agreement and considered that its accession would contribute to a strengthening of the multilateral trading system, enhancing the universality of the WTO, bringing mutual benefits to China and to the other Members of the WTO, and ensuring the steady development of the world economy.
6. The representative of China said that China had a territory of 9.6 million square kilometres and, at the end of 1998 a population of 1.25 billion. Since 1979, China had been progressively reforming its economic system, with the objective of establishing and improving the socialist market economy. The reform package introduced in 1994, covering the banking, finance, taxation, investment, foreign exchange ("forex") and foreign trade sectors, had brought about major breakthroughs in China's socialist market economy. State-owned enterprises had been reformed by a clear definition of property rights and responsibilities, a separation of government from enterprise, and scientific management. A modern enterprise system had been created for the state-owned sector, and the latter was gradually getting on the track of growth through independent operation, responsible for its own profits and losses. A nation-wide unified and open market system had been developed. An improved macroeconomic regulatory system used indirect means and market forces to play a central role in economic management and the allocation of resources. A new tax and financial system was functioning effectively. Financial policy had been separated from commercial operations of the central bank, which now focussed on financial regulation and supervision. The exchange rate of the Chinese currency Renminbi (also "RMB") had been unified and remained stable. The Renminbi had been made convertible on current account. Further liberalization of pricing policy had resulted in the majority of consumer and producer products being subject to market prices. The market now played a much more significant role in boosting supply and meeting demand.
7. The representative of China further noted that as a result, in 1999, the Gross Domestic Product ("GDP") of China totaled RMB 8.2054 trillion yuan (approximately US$ 990 billion). In 1998, the net per capita income for rural residents was RMB 2,160 yuan (approximately US$ 260), and the per capita dispensable income for urban dwellers was RMB 5,425 yuan (approximately US$ 655). In recent years, foreign trade had grown substantially. In 1999, total imports and exports of goods reached US$ 360.65 billion, of which exports stood at US$ 194.93 billion, and imports, US$ 165.72 billion. Exports from China in 1998 accounted for 3.4 per cent of the world's total.
8. The representative of China stated that although important achievements have been made in its economic development, China was still a developing country and therefore should have the right to enjoy all the differential and more favourable treatment accorded to developing country Members pursuant to the WTO Agreement.
9. Some members of the Working Party indicated that because of the significant size, rapid growth and transitional nature of the Chinese economy, a pragmatic approach should be taken in determining China's need for recourse to transitional periods and other special provisions in the WTO Agreement available to developing country WTO Members. Each agreement and China's situation should be carefully considered and specifically addressed. In this regard it was stressed that this pragmatic approach would be tailored to fit the specific cases of China's accession in a few areas, which were reflected in the relevant provisions set forth in China's Protocol and Working Party Report. Noting the preceding statements, Members reiterated that all commitments taken by China in her accession process were solely those of China and would prejudice neither existing rights and obligations of Members under the WTO Agreement nor on-going and future WTO negotiations and any other process of accession. While noting the pragmatic approach taken in China's case in a few areas, Members also recognized the importance of differential and more favourable treatment for developing countries embodied in the WTO Agreement.
10. At the request of interested members of the Working Party, the representative of China agreed that China would undertake bilateral market access negotiations with respect to industrial and agricultural products, and initial commitments in services.
11. Some members of the Working Party stated that in addition to undertaking market access negotiations in goods and services, close attention should also be paid to China's multilateral commitments, in particular China's future obligations under the Multilateral Agreements on Trade in Goods and the General Agreement on Trade in Services ("GATS"). This was of vital importance to ensure that China would be able to take full benefit of WTO membership as quickly as possible, as well as to ensure that the value of any market access conditions undertaken were not adversely affected by inconsistent measures such as some types of non-tariff measures.
12. The representative of China stated that the achievement of balance between rights and obligations was the basic principle in its negotiation of WTO accession.
13. Some members of the Working Party expressed concern over discrepancies in statistical information supplied by the Government of China on trade volume/value. Members and China pursued this issue separately in an Informal Group of Experts on Export Statistics.
14. The Working Party reviewed the foreign trade regime of China. The discussions and commitments resulting therefrom are contained in paragraphs 15-342 below and in the Protocol of Accession ("Protocol"), including the annexes.
II. ECONOMIC POLICIES
1. Non-Discrimination (including national treatment)
15. Some members expressed concern regarding the application of the principle of non-discrimination in relation to foreign individuals and enterprises (whether wholly or partly foreign funded). Those members stated that China should enter a commitment to accord non-discriminatory treatment to all foreign individuals and enterprises and foreign-funded enterprises in respect of the procurement of inputs and goods and services necessary for production of goods and the conditions under which their goods were produced, marketed or sold, in the domestic market and for export. In addition, those members said that China should also enter a commitment to guarantee non-discriminatory treatment in respect of the prices and availability of goods and services supplied by national and sub-national authorities and public or state enterprises, in areas including transportation, energy, basic telecommunications, other utilities and factors of production.
16. Some members of the Working Party also raised concerns over China's practice of conditioning or imposing restrictions upon participation in the Chinese economy based upon the nationality of the entity concerned. Those members in particular raised concerns over such practices in relation to the pricing and procurement of goods and services, and the distribution of import and export licences. Members of the Working Party requested that China enter into a commitment not to condition such practices on the nationality of the entity concerned.
17. In response, the representative of China emphasized the importance of the commitments that the government was undertaking on non-discrimination. The representative of China noted, however, that any commitment to provide non-discriminatory treatment to Chinese enterprises, including foreign-funded enterprises, and foreign enterprises and individuals in China, would be subject to other provisions of the Protocol and, in particular, would not prejudice China's rights under the GATS, China's Schedule of Specific Commitments or commitments undertaken in relation to trade-related investment measures.
18. The representative of China further confirmed that China would provide the same treatment to Chinese enterprises, including foreign-funded enterprises, and foreign enterprises and individuals in China. China would eliminate dual pricing practices as well as differences in treatment accorded to goods produced for sale in China in comparison to those produced for export. The Working Party took note of these commitments.
19. The representative of China confirmed that, consistent with China's rights and obligations under the WTO Agreement and the Protocol, China would provide non-discriminatory treatment to all WTO Members, including Members of the WTO that were separate customs territories. The Working Party took note of this commitment.
20. Some members of the Working Party expressed concern about certain provisions of Chinese laws, regulations, administrative notices and other requirements which could, directly or indirectly, result in less favourable treatment of imported products in contravention of Article III of the General Agreement on Tariffs and Trade ("GATT 1994"). Such requirements included product registration and certification, internal taxation, price and profit controls and all distinct forms of licensing for imports, and distribution or sale of imported goods. Even where such requirements existed in relation to domestically produced goods, those members reiterated that any de facto or de jure less favourable treatment of imported goods had to be eliminated in order to ensure full conformity with the principle of national treatment.
21. Some members of the Working Party drew China's attention to the variety of types of requirements which could contravene Article III of the GATT 1994. Specific reference was made to the procedures, charges and conditions for granting of business licences, whether to import, distribute, re-sell or retail goods of non-Chinese origin. Reference was also made to taxes and fiscal provisions whose impact depended, directly or indirectly, upon the Chinese or non-Chinese origin of the goods imported or traded. Those members drew the attention of China to its obligation to ensure that product testing and certification requirements, including procedures for in situ inspections, posed no greater burden - whether financial or practical - on goods of non-Chinese origin than on domestic goods. Those members underlined that conformity assessment procedures and standards, including safety and other compliance requirements, had to respect the terms of the WTO Agreement on Technical Barriers to Trade ("TBT Agreement") as well as Article III of the GATT 1994.
22. The representative of China confirmed that the full respect of all laws, regulations and administrative requirements with the principle of non-discrimination between domestically produced and imported products would be ensured and enforced by the date of China's accession unless otherwise provided in the Protocol or Report. The representative of China declared that, by accession, China would repeal and cease to apply all such existing laws, regulations and other measures whose effect was inconsistent with WTO rules on national treatment. This commitment was made in relation to final or interim laws, administrative measures, rules and notices, or any other form of stipulation or guideline. The Working Party took note of these commitments.
23. In particular, the representative of China confirmed that measures would be taken at national and sub-national level, including repeal or modification of legislation, to provide full GATT national treatment in respect of laws, regulations and other measures applying to internal sale, offering for sale, purchase, transportation, distribution or use of the following:
- After sales service (repair, maintenance and assistance), including any conditions applying to its provision, such as the MOFTEC third Decree of 6 September 1993, imposing mandatory licensing procedures for the supply of after-sales service on various imported products;
- Pharmaceutical products, including regulations, notices and measures which subjected imported pharmaceuticals to distinct procedures and formulas for pricing and classification, or which set limits on profit margins attainable and imports, or which created any other conditions regarding price or local content which could result in less favourable treatment of imported products;
- Cigarettes, including unification of the licensing requirements so that a single licence authorized the sale of all cigarettes, irrespective of their country of origin, and elimination of any other restrictions regarding points of sale for imported products, such as could be imposed by the China National Tobacco Corporation ("CNTC"). It was understood that in the case of cigarettes, China could avail itself of a transitional period of two years to fully unify the licensing requirements. Immediately upon accession, and during the two year transitional period, the number of retail outlets selling imported cigarettes would be substantially increased throughout the territory of China;
- Spirits, including requirements applied under China's "Administrative Measures on Imported Spirits in the Domestic Market", and other provisions which imposed distinct criteria and licensing for the distribution and sale of different categories of spirits, including unification of the licensing requirements so that a single licence authorized the sale of all spirits irrespective of their country of origin;
- Chemicals, including registration procedures applicable to imported products, such as those applied under China's "Provisions on the Environmental Administration of Initial Imports of Chemical Products and Imports and Exports of Toxic Chemical Products";
- Boilers and pressure vessels, including certification and inspection procedures which had to be no less favourable than those applied to goods of Chinese origin, and fees applied by the relevant agencies or administrative bodies, which had to be equitable in relation to those chargeable for like products of domestic origin.
The representative of China stated that in the cases of pharmaceuticals, spirits and chemicals cited above, China would reserve the right to use a transitional period of one year from the date of accession in order to amend or repeal the relevant legislation. The Working Party took note of these commitments.
2. Monetary and Fiscal Policy
24. The representative of China stated that through the reform and opening up in the last two decades, China had established a fiscal management system which was compatible with the principles of a market economy. With respect to fiscal revenue, a taxation system with a value-added tax as the main element had been established since the taxation reform in 1994. With respect to fiscal expenditure, over recent years the government had, in line with the public fiscal requirement generally exercised by market economies, strengthened its adjustment of the structure of expenditure and given priority to public needs so as to ensure the normal operations of the government.
25. The representative of China further stated that in recent years, while pursuing proactive fiscal policy, China had implemented proper monetary policy and had taken a series of adjusting and reform measures which included lowering the interest rate for loans from financial institutions, improving the system of required deposit reserves and lowering the ratio of required reserves, positively increasing the input of base money and encouraging the commercial banks to expand their credit.
26. In respect of future fiscal policy, the representative of China noted that the Government of China would further improve its taxation system and would continue to improve the efficiency of fiscal expenditure through implementing reform measures such as sectoral budget, centralized payment by the national treasury and zero base budget, as well as improving management of fiscal expenditure. With respect to future monetary policy, the central bank would continue to pursue a prudent policy, maintain the stability of RMB, promote interest rate liberalization and establish a modern commercial banking system.
3. Foreign Exchange and Payments
27. Some members of the Working Party raised concerns about China's use of forex controls to regulate the level and composition of trade in goods and services. In response, the representative of China stated that China was now a member of the International Monetary Fund ("IMF") and that recently its system of forex had undergone rapid change. Significant moves had been taken to reform, rationalize and liberalize the forex market. The practice of multiple exchange rates in swap centres had been abolished. China had already unified its forex market and removed many of the restrictions on the use of forex.
28. Outlining the historical development of China's forex reform, the representative of China stated that the purpose of China's forex reform was to reduce administrative intervention and increase the role of market forces. From 1979, a forex retention system was applied in China, although forex swap was gradually developing. In early 1994, official RMB exchange rates were unified with the market rates. The banking exchange system was adopted and a nationwide unified inter-bank forex market was established, with conditional convertibility of the Renminbi on current accounts. Since 1996, foreign invested enterprises ("FIEs") were also permitted into the banking exchange system, and the remaining exchange restrictions on current accounts were eliminated. On 1 December 1996, China had formally accepted the obligations of Article VIII of the IMF's Articles of Agreement, removing exchange restrictions on current account transactions. Accordingly, since then the Renminbi had been fully convertible on current accounts. It was confirmed by the IMF in its Staff Report on Article IV Consultations with China in 2000 that China had no existing forex restrictions for current account transactions.
29. The representative of China stated that the State Administration of Foreign Exchange ("SAFE") was under the auspices of the People's Bank of China ("PBC"), and was the administrative organ empowered to regulate forex. Its main functions were to monitor and advise on balance-of-payments and forex matters. SAFE was also required to draft appropriate regulations and monitor compliance. He further noted that domestic and foreign banks, and financial institutions could engage in forex business, with the approval of the PBC.
30. In response to requests from members of the Working Party for further information, the representative of China added that for forex payments under current accounts, domestic entities (including FIEs) could purchase forex at market exchange rates from designated banks or debit their forex accounts directly upon presentation of valid documents. For payments such as pre-payment, commission, etc., exceeding the proportion or limit, the entities could also purchase forex from the banks upon meeting the bona fide test administered by SAFE. Forex for personal use by individuals could be purchased directly from the banks upon presentation of valid documents (within a specified limit). For amounts exceeding the limit, individuals able to prove their need for additional forex could purchase it from the banks. He also noted that current account forex receipts owned by domestic entities had to be repatriated into China, some of which could be retained and some sold to the designated banks at market rates. A verification system for forex payment (imports) and forex receipt (exports) had also been adopted.
31. Concerning the exchange rate regime in particular, the representative of China noted that since the unification of exchange rates on 1 January 1994, China had adopted a single and managed floating exchange rate regime based on supply and demand. PBC published the reference rates of RMB against the US dollar, the HK dollar and Japanese yen based on the weighted average prices of forex transactions at the interbank forex market during the previous day's trading. The buying and selling rates of RMB against the US dollar on the inter-bank forex market could fluctuate within 0.3 per cent of the reference rate. For the HK dollar and Japanese yen, the permitted range was 1 per cent. Designated forex banks could deal with their clients at an agreed rate. Under such contracts the exchange rate of the US dollar was required to be within 0.15 per cent of the reference rate, whereas for the HK dollar and Japanese yen, the permitted range was 1 per cent. The exchange rates for other foreign currencies were based on the rates of RMB against the US dollar and cross-exchange rates of other foreign currency on the international market. The permitted margin between the buying and selling rate could not exceed 0.5 per cent.
32. The representative of China further noted that since 1 January 1994, designated forex banks had become major participants in forex transactions. On 1 April 1994, the China Foreign Exchange Trading System was set up in Shanghai and branches were opened in dozens of cities. The Foreign Exchange Trading System had adopted a system of membership, respective quotation, concentrated trading and forex market settlement. Designated forex banks dealt on the inter-bank market according to the turnover position limit on banking exchange stipulated by SAFE and covered the position on the market. Depending on its macro-economic objectives, the PBC could intervene in the forex open market in order to regulate market supply and demand, and maintain the stability of the RMB exchange rate.
33. The representative of China noted that since 1 July 1996, forex dealing of the FIEs was carried out through the banking exchange system. He further noted that to encourage foreign direct investment, China had granted national treatment to FIEs in exchange administration. Accordingly, FIEs were allowed to open and hold forex settlement accounts to retain receipts under current accounts, up to a maximum amount stipulated by SAFE. Receipts in excess of the maximum amount were required to be sold to designated forex banks. No restrictions were maintained on the payment and transfer of current transactions by FIEs, and FIEs could purchase forex from designated forex banks or debit their forex accounts for any payment under current transactions, upon the presentation of valid documents to the designated forex banks or SAFE for the bona fide test. FIEs could also open forex accounts to hold foreign-invested capital, and they could sell from these accounts upon the approval of SAFE. FIEs could also borrow forex directly from domestic and overseas banks, but were required to register with SAFE afterwards, and obtain approval by SAFE for debt repayment and services. FIEs could make payments from their forex accounts or in forex purchased from designated forex banks after liquidation, upon approval by SAFE according to law.
34. The representative of China further noted that the laws and regulations mentioned above were: Law of the People's Republic of China on Chinese-Foreign Equity Joint Venture; Law of the People's Republic of China on Chinese-Foreign Contractual Joint Venture; Regulations on the Exchange System of the People's Republic of China; and Regulations on the Sale and Purchase of and Payment in Foreign Exchange.
35. The representative of China stated that China would implement its obligations with respect to forex matters in accordance with the provisions of the WTO Agreement and related declarations and decisions of the WTO that concerned the IMF. The representative further recalled China's acceptance of Article VIII of the IMF's Articles of Agreement, which provided that "no member shall, without the approval of the Fund, impose restrictions on the making of payments and transfers for current international transactions". He stated that, in accordance with these obligations, and unless otherwise provided for in the IMF's Articles of Agreement, China would not resort to any laws, regulations or other measures, including any requirements with respect to contractual terms, that would restrict the availability to any individual or enterprise of forex for current international transactions within its customs territory to an amount related to the forex inflows attributable to that individual or enterprise. The Working Party took note of these commitments.
36. In addition, the representative of China stated that China would provide information on exchange measures as required under Article VIII, Section 5 of the IMF's Articles of Agreement, and such other information on its exchange measures as was deemed necessary in the context of the transitional review mechanism. The Working Party took note of this commitment.
4. Balance-of-Payments Measures
37. Some members of the Working Party stated that China should apply balance-of-payments ("BOPs") measures only under the circumstances provided for in the WTO Agreement and not as a justification for imposition of restrictions on imports for other protectionist purposes. Those members stated that measures taken for BOPs reasons should have the least trade disruptive effect possible and should be limited to temporary import surcharges, import deposit requirements or other equivalent price-based trade measures, and those measures should not be used to provide import protection for specific sectors, industries or products.
38. Those members of the Working Party further stated that any such measures should be notified pursuant to the Understanding on the Balance-of-Payments Provisions of the GATT 1994 ("BOPs Understanding") to the General Council not later than the imposition of the measures, together with a time schedule for their elimination and a programme of external and domestic policy measures to be used to restore BOPs equilibrium. Those members also stated that following deposit of such a notification, the Committee on Balance-of-Payments Restrictions ("BOPs Committee") should meet to examine the notification. It was noted that paragraph 4 of the BOPs Understanding would be available to China in the case of "essential products". Some members stated that the BOPs Committee should review the operation of any BOPs measures taken by China, if so requested by China or a WTO Member.
39. Some other members of the Working Party considered that, in respect of measures taken for BOP purposes, China should enjoy the same rights as those accorded to other developing country WTO Members, as provided in GATT Article XVIII:B and the BOPs Understanding.
40. In response, the representative of China stated that China considered that it should have the right to make full use of WTO BOPs provisions to protect, if necessary, its BOPs situation. He confirmed that China would fully comply with the provisions of the GATT 1994 and the BOPs Understanding. Further to such compliance, China would give preference to application of price-based measures as set forth in the BOPs Understanding. If China resorted to measures that were not price-based, it would transform such measures into price-based measures as soon as possible. Any measures taken would be maintained strictly in accordance with the GATT 1994 and the BOPs Understanding, and would not exceed what was necessary to address the particular BOPs situation. The representative of China also confirmed that measures taken for BOPs reasons would only be applied to control the general level of imports and not to protect specific sectors, industries or products, except as noted in paragraph 38. The Working Party took note of these commitments.
5. Investment Regime
41. The representative of China stated that since the inception of the reform and opening up policy in the late 1970's, China had carried out a series of reforms of its investment regime. The highly centralized investment administration under the planned economy had been progressively transformed into a new pattern of diversification of investors, multi-channelling of capital sources and diversification of investment modalities. The government encouraged foreign investment into the Chinese market and had uninterruptedly opened and expanded the scope for investment. At the same time, the Government of China also encouraged the development of the non-state-operated economy and was speeding up the opening of areas for non-state investment. With China's programme in the establishment of its market economy, the construction projects of various enterprises utilizing free capital and financed by the credit of the enterprise would be fully subject to the decision-making of the enterprise concerned and at their own risk. The commercial banks' credit activities to all kinds of investors would be based on their own evaluation and decision-making, and would be at their own risk. The business activities of intermediate investment agencies would be fully subject to the market and would provide service at the instruction of the investors. These agencies would break up their administrative relations with government agencies and the service activities financed by the government would also be subject to the terms and conditions agreed in the contracts concerned.
42. The representative of China further stated that China had promulgated investment guidelines and that the Government of China was in the process of revising and completing these guidelines. Responding to concerns raised by certain members of the Working Party, he confirmed that these investment guidelines and their implementation would be in full conformity with the WTO Agreement. The Working Party took note of this commitment.
6. State-Owned and State-Invested Enterprises
43. The representative of China stated that the state-owned enterprises of China basically operated in accordance with rules of market economy. The government would no longer directly administer the human, finance and material resources, and operational activities such as production, supply and marketing. The prices of commodities produced by state-owned enterprises were decided by the market and resources in operational areas were fundamentally allocated by the market. The state-owned banks had been commercialized and lending to state-owned enterprises took place exclusively under market conditions. China was furthering its reform of state-owned enterprises and establishing a modern enterprise system.
44. In light of the role that state-owned and state-invested enterprises played in China's economy, some members of the Working Party expressed concerns about the continuing governmental influence and guidance of the decisions and activities of such enterprises relating to the purchase and sale of goods and services. Such purchases and sales should be based solely on commercial considerations, without any governmental influence or application of discriminatory measures. In addition, those members indicated the need for China to clarify its understanding of the types of activities that would not come within the scope of Article III:8(a) of GATT 1994. For example, any measure relating to state-owned and state-invested enterprises importing materials and machinery used in the assembly of goods, which were then exported or otherwise made available for commercial sale or use or for non-governmental purposes, would not be considered to be a measure relating to government procurement.
45. The representative of China emphasized the evolving nature of China's economy and the significant role of FIEs and the private sector in the economy. Given the increasing need and desirability of competing with private enterprises in the market, decisions by state-owned and state-invested enterprises had to be based on commercial considerations as provided in the WTO Agreement.
46. The representative of China further confirmed that China would ensure that all state-owned and state-invested enterprises would make purchases and sales based solely on commercial considerations, e.g., price, quality, marketability and availability, and that the enterprises of other WTO Members would have an adequate opportunity to compete for sales to and purchases from these enterprises on non-discriminatory terms and conditions. In addition, the Government of China would not influence, directly or indirectly, commercial decisions on the part of state-owned or state-invested enterprises, including on the quantity, value or country of origin of any goods purchased or sold, except in a manner consistent with the WTO Agreement. The Working Party took note of these commitments.
47. The representative of China confirmed that, without prejudice to China's rights in future negotiations in the Government Procurement Agreement, all laws, regulations and measures relating to the procurement by state-owned and state-invested enterprises of goods and services for commercial sale, production of goods or supply of services for commercial sale, or for non-governmental purposes would not be considered to be laws, regulations and measures relating to government procurement. Thus, such purchases or sales would be subject to the provisions of Articles II, XVI and XVII of the GATS and Article III of the GATT 1994. The Working Party took note of this commitment.
48. Certain members of the Working Party expressed concern about laws, regulations and measures in China affecting the transfer of technology, in particular in the context of investment decisions. Moreover, these members expressed concern about measures conditioning the receipt of benefits, including investment approvals, upon technology transfer. In their view, the terms and conditions of technology transfer, particularly in the context of an investment, should be agreed between the parties to the investment without government interference. The government should not, for example, condition investment approval upon technology transfer.
49. The representative of China confirmed that China would only impose, apply or enforce laws, regulations or measures relating to the transfer of technology, production processes, or other proprietary knowledge to an individual or enterprise in its territory that were not inconsistent with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement") and the Agreement on Trade-Related Investment Measures ("TRIMs Agreement"). He confirmed that the terms and conditions of technology transfer, production processes or other proprietary knowledge, particularly in the context of an investment, would only require agreement between the parties to the investment. The Working Party took note of these commitments.
7. Pricing Policies
50. Some members of the Working Party noted that China had made extensive use of price controls, for example in the agricultural sector. Those members requested that China undertake specific commitments concerning its system of state pricing. In particular, those members stated that China should allow prices for traded goods and services in every sector to be determined by market forces, and multi-tier pricing practices for such goods and services should be eliminated. Those members noted, however, that China expected to maintain price controls on the goods and services listed in Annex 4 to the Protocol, and stated that any such controls should be maintained in a manner consistent with the WTO Agreement, in particular Article III of the GATT 1994 and Annex 2, paragraphs 3 and 4, of the Agreement on Agriculture. Those members noted that except in exceptional circumstances, and subject to notification to the WTO Secretariat, price controls should not be extended to goods or services beyond those listed in Annex 4, and China should make its best efforts to reduce and eliminate those controls. They also asked that China publish in the appropriate official journal the list of goods and services subject to state pricing and changes thereto.
51. Some members of the Working Party expressed the view that price controls and state pricing in China also encompassed "guidance pricing" and regulation of the range of profits that enterprises could enjoy. Such policies and practices would also be subject to China's commitments. In their view, price controls should be adopted only in extraordinary circumstances and should be removed as soon as the circumstances justifying their adoption were addressed.
52. The representative of China said that China currently applied a mechanism of market-based pricing under macro-economic adjustment. He noted that national treatment was applied in the areas of government pricing for all imported goods. There were presently three types of prices: government price, government guidance price and market-regulated price. The government price was set by price administration authorities and could not be changed without the approval of these authorities. Products and services subject to government pricing were those having a direct bearing on the national economy and the basic needs of the people's livelihood, including those products that were scarce in China.
53. The representative of China stated that when government prices or government guidance prices needed to be adjusted or reset, the agencies or operators concerned should apply or propose to the competent pricing authorities for that purpose. There was not a fixed time frame for the adjustment of government prices or government guidance prices. Competent agencies or operators could, in the light of market changes and according to relevant provisions of the Price Law, submit applications or proposals to the competent pricing authorities for pricing or adjustment of the original prices. The government pricing authorities would, in the light of such factors as market demand and supply, operational costs, effect on consumers as well as the quality of services, determine specific prices for the services concerned, or set guidance prices and floating ranges within which operators could determine specific prices. When setting prices for public utilities, important public welfare services and goods subject to natural monopolies and services which were of vital interest to the general public, government pricing authorities would hold public hearings and invite consumers, operators and other concerned parties to comment and debate on the necessity and impact of a price adjustment. The prices of important services were subject to the approval of the State Council. This mechanism had helped to significantly improve the rationality and transparency of government pricing. All enterprises, regardless of their nature and ownership, were free to participate in such hearings and voice their opinions and concerns which would be taken into consideration by the competent pricing authorities. Meanwhile, government pricing was product- or service-specific, regardless of the ownership of the enterprises concerned. All the enterprises and individuals enjoyed the same treatment in terms of participating in the process of setting government prices and government guidance prices.
54. The representative of China added that the government guidance price mechanism was a more flexible form of pricing. The price administration authorities stipulated either a basic price or floating ranges. The floating range of guidance pricing was generally 5 per cent to 15 per cent. Enterprises could, within the limits of the guidance and taking into account the market situation, make their own decisions on prices. With market-regulated prices, enterprises were free to set prices in accordance with supply and demand to the extent permitted by generally applicable laws, regulations and policies concerning prices.
55. The representative of China stated that in formulating government prices and government guidance prices, the following criteria were taken into account: normal production costs, supply and demand situation, relevant government policies and prices of related products. When fixing prices of consumer goods, consideration was given to the limits of consumers' purchasing power. He noted that due to the continued reform of China's price system, the share of government prices had dropped substantially and that of market-regulated prices had increased; of social retailing products, the share of government prices was about 4 per cent, that of government guidance prices 1.2 per cent, and that of market-regulated prices 94.7 per cent. For agricultural products, the share of government prices was 9.1 per cent, government guidance prices 7.1 per cent, and market-regulated 83.3 per cent. For production inputs, the share of government prices was 9.6 per cent, that of government guidance prices 4.4 per cent, and market-regulated prices 86 per cent. The share of directly government-controlled prices had been much reduced. China's price system was becoming increasingly rationalized, creating a relatively fair marketplace for all enterprises to compete on an equal footing.
56. The representative of China recalled that Annex 4 of the Protocol contained a comprehensive listing of all products and services presently subject to government guidance pricing and government pricing. He stated that the services subject to price controls were listed in Annex 4 by their respective CPC codes.
57. Some members of the Working Party requested additional information on the specific activities subject to government pricing or government guidance pricing. In particular, those members requested information on professional services, educational services, and charges for settlement clearing and transmission services of banks. In response, the representative of China stated that "The Administrative Rules on Intermediate Services" promulgated in 1999 by six central government agencies led by the State Development and Planning Commission ("SDPC") dealt with government pricing on intermediate services such as inspection authentication, notarization and arbitration and services which were in limited supply due to their special requirements. For legal services, the Interim Regulation on Charges and Fees of Legal Services, jointly promulgated by the SDPC and the Ministry of Justice stipulated that for law firms practising Chinese law, charges and fees for the following activities were subject to the approval of the SDPC: (1) representing a client in a civil case, including an appeal; (2) representing a client in a case contesting an administrative agency's decision; (3) providing legal advice to criminal suspects, acting for a client in connection with an appeal or prosecution, applying for bail, representing a defendant or victim in a criminal case; and (4) representing a client in an arbitration. For foreign legal service providers engaged in activities such as those listed in China's GATS schedule, the foreign legal service providers would determine the appropriate charges and fees which would not be subject to government pricing or guidance pricing.
58. The representative of China noted that regulations also existed for the other services included in Annex 4. Government pricing and guidance pricing covered auditing services. For architectural services, advisory and pre-design architectural services and contract administration activities were subject to government pricing or government guidance pricing. For engineering services, advisory and consultative services, engineering design services for the construction of foundations and building structures, design services for mechanical and electrical installations for buildings, construction of civil engineering works, and industrial processes and production were subject to government pricing or government guidance pricing. Primary, secondary and higher education services were subject to government pricing.
59. The representative of China further explained that charges for settlement, clearing and transmission services of banks referred to in Annex 4 related to the charges and fees collected by banks for the services provided to enterprises and individuals when the banks conducted currency payments and transmission and fund settlements by using clearance methods such as bills and notes, collections and acceptances. These mainly included commission charges of bills, cashier's cheques, cheques, remittances, entrusted collections of payment, and collections and acceptances of banks.
60. The representative of China confirmed that it would publish in the official journal the list of goods and services subject to state pricing and changes thereto, together with price-setting mechanisms and policies. The Working Party took note of these commitments.
61. The representative of China confirmed that the official journal providing price information was the Pricing Monthly of the People's Republic of China, published in Beijing. It was a monthly magazine listing all products and services priced by the State. He further stated that China would continue to further its price reform, adjusting the catalogue subject to state pricing and further liberalize its pricing policies.
62. The representative of China further confirmed that price controls would not be used for purposes of affording protection to domestic industries or services providers. The Working Party took note of this commitment.
63. Some members of the Working Party expressed a concern that China could maintain prices below market-based ones in order to limit imports.
64. In response, the representative of China confirmed that China would apply its current price controls and any other price controls upon accession in a WTO-consistent fashion, and would take account of the interests of exporting WTO Members as provided for in Article III:9 of the GATT 1994. He also confirmed that price controls would not have the effect of limiting or otherwise impairing China's market-access commitments on goods and services. The Working Party took note of these commitments.
8. Competition Policy
65. The representative of China noted that the Government of China encouraged fair competition and was against acts of unfair competition of all kinds. The Law of the People's Republic of China on Combating Unfair Competition, promulgated on 2 September 1993 and implemented on 1 December 1993, was the basic law to maintain the order of competition in the market. In addition, the Price Law, the Law on Tendering and Bidding, the Criminal Law and other relevant laws also contained provisions on anti-monopoly and unfair competition. China was now formulating the Law on Anti-Monopoly.
III. FRAMEWORK FOR MAKING AND ENFORCING POLICIES
1. Structure and Powers of the Government
66. The representative of China informed members of the Working Party that in accordance with the Constitution and the Law on Legislation of the People's Republic of China, the National People's Congress was the highest organ of state power. Its permanent body was its Standing Committee. The National People's Congress and its Standing Committee exercised the legislative power of the State. They had the power to formulate the Constitution and laws. The State Council, i.e., the Central People's Government of China, was the executive body of the highest organ of state power. The State Council, in accordance with the Constitution and relevant laws, was entrusted with the power to formulate administrative regulations. The ministries, commissions and other competent departments (collectively referred to as "departments'') of the State Council could issue departmental rules within the jurisdiction of their respective departments and in accordance with the laws and administrative regulations. The provincial people's congresses and their standing committees could adopt local regulations. The provincial governments had the power to make local government rules. The National People's Congress and its Standing Committee had the power to annul the administrative regulations that contradicted the Constitution and laws as well as the local regulations that contradicted the Constitution, laws and administrative regulations. The State Council had the power to annul departmental rules and local government rules that were inconsistent with the Constitution, laws or administrative regulations. These features of the Chinese legal system would ensure an effective and uniform implementation of the obligations after China's accession.
67. The representative of China stated that China had been consistently performing its international treaty obligations in good faith. According to the Constitution and the Law on the Procedures of Conclusion of Treaties, the WTO Agreement fell within the category of "important international agreements" subject to the ratification by the Standing Committee of the National People's Congress. China would ensure that its laws and regulations pertaining to or affecting trade were in conformity with the WTO Agreement and with its commitments so as to fully perform its international obligations. For this purpose, China had commenced a plan to systematically revise its relevant domestic laws. Therefore, the WTO Agreement would be implemented by China in an effective and uniform manner through revising its existing domestic laws and enacting new ones fully in compliance with the WTO Agreement.
68. The representative of China confirmed that administrative regulations, departmental rules and other central government measures would be promulgated in a timely manner so that China's commitments would be fully implemented within the relevant time frames. If administrative regulations, departmental rules or other measures were not in place within such time frames, authorities would still honour China's obligations under the WTO Agreement and Protocol. The representative of China further confirmed that the central government would undertake in a timely manner to revise or annul administrative regulations or departmental rules if they were inconsistent with China's obligations under the WTO Agreement and Protocol. The Working Party took note of these commitments.
2. Authority of Sub-National Governments
69. Several members of the Working Party raised concerns about the continued presence of multiple trade instruments used by different levels of government within China. Those members considered that this situation resulted in a lessening of the security and predictability of access to the Chinese market. These Members raised specific concerns regarding the authority of sub-national governments in the areas of fiscal, financial and budgetary activities, specifically with respect to subsidies, taxation, trade policy and other issues covered by the WTO Agreement and the Protocol. In addition, some members expressed concerns about whether the central government could effectively ensure that trade-related measures introduced at the sub-national level would conform to China's commitments in the WTO Agreement and the Protocol.
70. The representative of China stated that sub-national governments had no autonomous authority over issues of trade policy to the extent that they were related to the WTO Agreement and the Protocol. The representative of China confirmed that China would in a timely manner annul local regulations, government rules and other local measures that were inconsistent with China's obligations. The representative of China further confirmed that the central government would ensure that China's laws, regulations and other measures, including those of local governments at the sub-national level, conformed to China's obligations undertaken in the WTO Agreement and the Protocol. The Working Party took note of these commitments.
3. Uniform Administration of the Trade Regime
71. Some members of the Working Party stated that it should be made clear that China would apply the requirements of the WTO Agreement and its other accession commitments throughout China's entire customs territory, including border trade regions, minority autonomous areas, Special Economic Zones ("SEZs"), open coastal cities, economic and technical development zones and other special economic areas and at all levels of government.
72. Those members of the Working Party also raised concerns about whether China's central government would be sufficiently informed about non-uniform practices and would take necessary enforcement actions. Those members stated that China should establish a mechanism by which any concerned person could bring to the attention of the central government cases of non-uniform application of the trade regime and receive prompt and effective action to address situations in which non-uniform application was established.
73. The representative of China confirmed that the provisions of the WTO Agreement, including the Protocol, would be applied uniformly throughout its customs territory, including in SEZs and other areas where special regimes for tariffs, taxes and regulations were established and at all levels of government. The Working Party took note of this commitment.
74. In response to questions from certain members of the Working Party, the representative of China confirmed that laws, regulations and other measures included decrees, orders, directives, administrative guidance and provisional and interim measures. He stated that in China, local governments included provincial governments, including autonomous regions and municipalities directly under the central government, cities, counties and townships. The representative of China further stated that local regulations, rules and other measures were issued by local governments at the provincial, city and county levels acting within their respective constitutional powers and functions and applied at their corresponding local level. Townships were only authorized to implement measures. Special economic areas were also authorized to issue and implement local rules and regulations.
75. The representative of China further confirmed that the mechanism established pursuant to Section 2(A) of the Protocol would be operative upon accession. All individuals and entities could bring to the attention of central government authorities cases of non-uniform application of China's trade regime, including its commitments under the WTO Agreement and the Protocol. Such cases would be referred promptly to the responsible government agency, and when non-uniform application was established, the authorities would act promptly to address the situation utilizing the remedies available under China's laws, taking into consideration China's international obligations and the need to provide a meaningful remedy. The individual or entity notifying China's authorities would be informed promptly in writing of any decision and action taken. The Working Party took note of these commitments.
4. Judicial Review
76. Some members of the Working Party stated that China should designate independent tribunals, contact points, and procedures for the prompt review of all administrative actions relating to the implementation of laws, regulations, judicial decisions and administrative rulings of general application referred to in Article X:1 of the GATT 1994, including administrative actions relating to import or export licences, non-tariff measures and tariff-rate quota administration, conformity assessment procedures and other measures. These members sought explicit confirmation that certain types of measures, such as decisions relating to standards and chemical registration, would be subject to judicial review. Some members of the Working Party also stated that the administrative actions subject to review should also include any actions required to be reviewed under the relevant provisions of the TRIPS Agreement and the GATS. These members stated that such tribunals should be independent of the agencies entrusted with administrative enforcement of the matter and should not have any substantial interest in the outcome of the matter.
77. Those members of the Working Party stated that such review procedures should include the opportunity for appeal, without penalty, by individuals or enterprises affected by any administrative action subject to review. If an initial right of appeal were to an administrative body, there should be an opportunity to choose to make a further appeal to a judicial body. Any decision by any appellate body and the reasons therefore would be communicated in writing to the appellant, together with notification of any right to further appeal.
78. The representative of China confirmed that it would revise its relevant laws and regulations so that its relevant domestic laws and regulations would be consistent with the requirements of the WTO Agreement and the Protocol on procedures for judicial review of administrative actions. He further stated that the tribunals responsible for such reviews would be impartial and independent of the agency entrusted with administrative enforcement, and would not have any substantial interest in the outcome of the matter. The Working Party took note of these commitments.
79. In response to questions from certain members of the Working Party, the representative of China confirmed that administrative actions related to the implementation of laws, regulations, judicial decisions and administrative rulings of general application referred to in Article X:1 of the GATT 1994, Article VI of the GATS and the relevant provisions of the TRIPS Agreement included those relating to the implementation of national treatment, conformity assessment, the regulation, control, supply or promotion of a service, including the grant or denial of a licence to provide a service and other matters, and that such administrative actions would be subject to the procedures established for prompt review under Section 2(D)(2) of the Protocol, and information on such procedures would be a