LEGAL QUESTIONS IN CHINA

[Юридическая Компания Лидер]

Agreement between the Russian Federation and China

Treaty between the Russian Federation and China on legal assistance in civil and criminal matters (Beijing, June 19, 1992)
The Russian Federation and the People’s Republic of China, in order to cooperate in the field of legal relations on the basis of respect for sovereignty and reciprocity, decided to provide each other with legal assistance in civil and criminal matters and for this purpose agreed on the following:

Section I
General Provisions

Article 1
Legal defense

1. Citizens of one Contracting Party shall enjoy the same legal protection in respect of their personal property rights in the territory of the other Contracting Party as citizens of the other Contracting Party. They have the right to appeal to the courts and other institutions whose jurisdiction includes civil and criminal matters, and may initiate petitions and carry out other procedural actions on the same conditions as the citizens of the other Contracting Party.
2. The provisions of paragraph 1 shall also apply to legal entities established in the territory of one of the Contracting Parties in accordance with its legislation.
3. The term "civil affairs", as used in this Agreement, also includes trade, marriage, family and labor matters.

Article 2
Legal Relationship Procedure

1. When making requests and providing legal assistance in civil and criminal matters, the courts and other competent institutions of the Contracting Parties shall communicate with each other through their central institutions, unless otherwise provided by this Agreement.
2. The central institutions referred to in paragraph 1 of this article include: on the part of the Russian Federation - the Ministry of Justice of Russia and the General Prosecutor's Office of Russia; by the People’s Republic of China - the Ministry of Justice of the PRC and the Supreme People’s Procuratorate of the PRC.


Section 3
Languages

1. In correspondence, the headquarters of the Contracting Parties shall use the official language of their country with a translation into the official language of the other Party or into English.
2. Instructions for the provision of legal assistance and the attached documents shall be drawn up in the official language of the requesting Contracting Party with a certified translation into the official language of the requested Contracting Party or into English.
3. When executing a request for legal assistance, the competent institutions of the Contracting Parties shall apply the official language of their country.

Section 4
Guarantees for witnesses and experts

1. A witness or expert who has appeared upon a call from a court or other competent institutions of the requesting Contracting Party transferred through the requested Contracting Party, regardless of his nationality, cannot be prosecuted in the requesting state or deprived of his liberty in any form for an offense committed by him prior to crossing the state border, or in connection with his testimony, acting as an expert or other actions affecting the content of the proceedings.
2. The witness or expert shall lose the guarantees provided by paragraph 1 of this article if he does not leave the territory of the requesting Contracting Party after 15 days after receiving from her a notification that his presence is no longer necessary, unless he cannot timely leave the territory of the requesting Contracting Party due to circumstances beyond its control.
3. The call referred to in paragraph 1 of this article shall be transferred in the manner provided for in article 2 of this Agreement. The call should not contain a threat of coercive measures in case of failure to appear.

Section 5
Legal Aid Costs

1. The Contracting Parties provide legal assistance free of charge.
2. The costs of travel, meals and accommodation of a witness or expert who appeared on call to the territory of the requesting Contracting Party shall be borne by the requesting Contracting Party. The expert, in addition, has the right to remuneration for the examination. The call must indicate what payments the mentioned persons are entitled to receive. Upon their request, the competent authorities of the requesting Contracting Party shall pay an advance payment to cover the indicated expenses.

Section 6
Refusal of legal assistance

If the requested Contracting Party considers that the provision of legal assistance is detrimental to its sovereignty, security or public policy, it may refuse to provide legal assistance, however, informing the requesting Contracting Party of the reasons for the refusal.

Section 7
Legislation applicable in the provision of legal assistance

1. The requested institution, in providing legal assistance, shall apply the legislation of its country.
2. In providing legal assistance in civil matters, the requested institution may also apply, upon request, the procedural rules of the other Contracting Party, provided that they do not contradict the basic principles of the law of the requested Contracting Party.

Section II
Legal assistance in civil matters

Chapter 1
Court expenses

Section 8
Security Exemption
court costs

1. The court of a Contracting Party shall not oblige a citizen of the other Contracting Party to make a pledge to secure court expenses on the sole ground that he is a foreigner or does not have a residence or place of residence in the territory of that Contracting Party.
2. The provisions of paragraph 1 of this article shall also apply to legal entities established in the territory of one of the Contracting Parties in accordance with its legislation.

Section 9
Payment of legal expenses

1. A citizen of one of the Contracting Parties in the territory of the other Contracting Party shall pay legal expenses, including pre-paid amounts on equal terms and in equal amounts with the citizens of that Contracting Party.
2. The provisions of paragraph 1 of this article shall also apply to legal entities established in the territory of one of the Contracting Parties in accordance with its legislation.

Section 10
Court exemption

1. A citizen of one of the Contracting Parties in the territory of the other Contracting Party shall be exempted from legal expenses on equal terms and equal terms with the citizens of that Contracting Party.
2. A citizen of one of the Contracting Parties, applying for exemption from legal expenses, must submit documents issued by the competent authorities at the place of residence or place of residence proving his identity and property status; if the applicant does not have a residence or place of residence in the territory of the Contracting Parties, he may submit the indicated documents issued by the diplomatic or consular mission of his country.

Chapter 2
Presentation of documents and implementation of individual
legal proceedings

Section 11
Help Volume

The Contracting Parties will, on request, hand over judicial and extrajudicial documents upon request, interrogate case participants, witnesses and experts, conduct on-site examination and examination, and perform other procedural steps to gather evidence.

Section 12
Direction of the order

1. A request for the delivery of documents and the implementation of certain procedural actions is made out in the form of an order. The order must contain the following information: name of the requesting and requested institution; surname and name, citizenship, occupation, residence or location of the person concerned and other persons related to the assignment; last name and first name, address of the representative; name of the case in which assistance is requested; content of the request; the name of the documents to be served, as well as other information that may facilitate the execution of the order. Together with the order, other documents and materials that are necessary for its execution must be provided.
2. The order and documents must be signed by the requesting institution of the Contracting Party and certified by its seal.

Section 13
Order execution

1. If, in accordance with the legislation of the requested Contracting Party, the execution of an order is not within the competence of the courts and other competent institutions, the order may be returned with an explanation of the reasons for refusal.
2. In the event that the requested institution does not have the right to execute the order, it is obliged to send the specified order for execution to the competent institutions, as well as notify the requesting Party thereof.
3. If the requested institution is not able to fulfill the order due to the inaccuracy of the address indicated in the order, it is obliged to take appropriate measures to clarify the address or require the requesting institution to provide additional information.
4. If it is not possible to clarify the address or execute the order for other reasons, the requested institution must notify the requesting institution about this and state the reasons that impede the execution of the order, as well as return all the documents and materials sent.

Section 14
Performance Notification

1. The requested institution shall, in the manner provided for in Article 2 of this Agreement, notify the requesting institution in writing of the results of the execution of the order, as well as send documents confirming the execution.
2. The document confirming the execution must indicate the date of receipt and signature of the recipient, the seal of the requested institution that executed the order, and the signature of the person who executed the order. If the recipient refuses to receive, the reasons for refusing to receive must also be indicated.

Section 15
Presentation of documents and the implementation of certain procedural actions
through diplomatic missions or consular posts

The diplomatic missions or consular posts of each of the Contracting Parties accredited to the other Party may hand over judicial and extrajudicial documents to their own citizens, interrogate them as parties to the dispute or as witnesses in the case. These actions, however, cannot contain coercive measures and contradict the legislation of the host country.

Chapter 3
Recognition and enforcement of decisions

Section 16
Recognized and Enforced Decisions

1. The Contracting Parties shall be obliged, in accordance with the provisions of this Agreement, to recognize and, if this is required by the nature of the decision, to execute on their territory the following decisions made on the territory of the other Contracting Party after the entry into force of this Agreement:
1) court decisions in civil matters;
2) court decisions on compensation for damage in criminal matters;
3) decisions of the arbitration court.
2. The term "judicial decision" used in this Agreement means: in the Russian Federation - a decision, ruling, court order, amicable settlement approved by the court, as well as a judge’s ruling issued on the merits of a civil case; in the People's Republic of China - a court decision, determination, order and act of conciliation.

Section 17
Application for recognition and enforcement
court decision

1. An application for the recognition and enforcement of a court decision shall be submitted by the applicant to the court that made this decision and the latter shall be forwarded to the court of the other Contracting Party in the manner provided for in Article 2 of this Agreement. If the applicant has a residence or seat in the territory of the Contracting Party where the decision is enforceable, the application may also be submitted directly to the court of that Contracting Party.
2. The application must be in the form established by the requested Contracting Party. Attached to it:
1) a copy of the judgment, certified by the court; if the copy does not contain a clear indication that the decision has entered into force and can be enforced, one copy of the court’s certificate of this should also be attached;
2) a document certifying that the party that did not take part in the process was given a notice of submission to the court in the manner prescribed by law, and if it was incapable, that it had a proper representative;
3) a certified translation of the application referred to in this article and the relevant documents.

Section 18
Procedure for the recognition and enforcement of a judgment

1. Recognition and enforcement of a judicial decision shall be carried out in the Contracting Party to which the application is submitted in accordance with the procedure established by its legislation.
2. The competent institution to which the petition is requested shall consider the said decision with a view to its compliance with the requirements of this Agreement, but cannot verify it on the merits.

Section 19
Legal force of recognition and enforcement

Recognition or enforcement by a court of one Contracting Party of a judgment of a court of the other Contracting Party shall have the same effect as recognition or enforcement of a judgment of a court of that Party.

Section 20
Refusal to recognize and enforce a decision

Recognition and enforcement of a judgment may be refused in one of the following cases:
1) if, in accordance with the legislation of the Contracting Party where the decision is made, this decision has not entered into legal force or is not enforceable;
2) if, in accordance with the legislation of the Contracting Party to which the application for recognition and enforcement of the decision is requested, the case falls within the exclusive competence of the court of the requested Party;
3) if the party that did not take part in the process was not served in accordance with the legislation of the Contracting Party whose institution made the decision, a notice of summoning to the court or, if it was incapable, was not provided with a proper representative;
4) if, in the same legal dispute between the same parties, the court of the requested Contracting Party has already made a decision that has entered into legal force, or is pending there, or the decision of a third country in this case has entered into legal force;
5) if the recognition or enforcement of the decision may prejudice the sovereignty, security or public order of the Party to which the application is addressed.

Section 21
Recognition and enforcement of arbitral awards

The Contracting Parties will mutually recognize and execute arbitral awards of the other Contracting Party in accordance with the New York Convention on the Recognition and Enforcement of Arbitral Awards of June 10, 1958.

Section III
Legal assistance in criminal matters

Section 22
Help Volume

The Contracting Parties undertake to fulfill, at the request of the commission in criminal matters, the interrogation of witnesses, victims, experts, accused; search, examination, inspection and other procedural actions related to the collection of evidence; on the transfer of material evidence and documents, values obtained as a result of the crime, as well as on the delivery of documents related to criminal proceedings; inform each other about the results of criminal proceedings.

Section 23
Presentation of documents and implementation of individual
legal proceedings

1. The procedure for the delivery of documents and the implementation of certain procedural actions in criminal matters is determined by Articles 12-15 of this Agreement.
2. When sending the above instructions, the following shall be indicated: the qualification of the crime, the circumstances of the crime and the provisions of the relevant legislative acts.

Section 24
Transfer of money and material assets,
resulting from a crime

1. The Contracting Party shall, on the basis of the request of the other Contracting Party, transfer to this Contracting Party the money and material assets received by the criminal discovered on its territory as a result of a crime committed on the territory of the other Contracting Party. However, such a transfer should not infringe on the rights of third parties to these values.
2. In the event that the above money and valuables are necessary for the conduct of proceedings in the territory of the requested Contracting Party for other unresolved criminal cases, this Party may temporarily suspend their transfer.

Section 25
Refusal to provide legal assistance in criminal matters

The requested Contracting Party, in addition to the grounds provided for in Article 6 of this Treaty, may refuse to provide legal assistance in criminal matters on one of the following grounds:
1) the act specified in the order under the law of the requested Contracting Party is not a crime;
2) the suspect or criminal specified in the order is a citizen of the requested Contracting Party and is not in the territory of the requesting Contracting Party.

Section 26
Legal Notice
criminal proceedings

The Contracting Parties shall, on the basis of reciprocity, transmit to each other copies of the effective judgments handed down by their courts against citizens of the other Contracting Party.

Section 27
Information on previously committed crimes

The Contracting Parties shall provide each other, upon request, with free evidence of a criminal record necessary for them to consider a criminal case against a person who has previously been convicted by a court of the other Party.

Section IV
Other provisions

Section 28
Exchange of legal information

The Contracting Parties, upon request, provide each other with information on applicable or existing laws and judicial practice.

Section 29
Validity of documents

1. Documents drawn up or certified by a court or other competent institution of one Contracting Party are valid with a signature and an official seal. As such, they may be adopted by a court or other competent institution of the other Contracting Party without legalization.
2. Official documents drawn up in the territory of one Contracting Party shall use the evidentiary power of official documents in the territory of the other Contracting Party.

Section 30
Forwarding of civil documents
condition and other documents

In pursuance of this Agreement, the competent institutions of one Contracting Party, upon requests received through diplomatic channels, will send to the other Contracting Party free of charge extracts from civil registration books, certificates of education, seniority and other documents relating to the personal rights of citizens of the other Contracting Party Parties.

Section 31
Removal of things and money transfer

The provisions of this Agreement and its execution shall not impede the fulfillment by both Contracting Parties of their laws and regulations on the export of things and the transfer of monetary amounts abroad.

Section 32
Dispute Resolution

Disputes arising regarding the interpretation or execution of this Agreement shall be settled through diplomatic channels.

Section V
Final provisions

Section 33
Ratification and entry into force

This Agreement is subject to ratification; an exchange of instruments of ratification will take place in Moscow. This Agreement shall enter into force on the thirtieth day after the exchange of instruments of ratification.

The agreement was ratified by resolution of the RF Armed Forces of February 26, 1993 N 4560-1

Section 34
Termination

This Agreement is unlimited and will expire upon expiration of six months after any of the Contracting Parties has sent written notification through diplomatic channels of its termination.

This Agreement was signed in Beijing on June 19, 1992, in duplicate, each in Russian and Chinese, both texts being equally authentic.

For the Russian Federation For the People's Republic of China
/ signature / / signature /

 

[Юридическая Компания Лидер]

General information on registering a company in China

Forms of organizing business in China.
Currently, there are three main forms of business organization in China for foreign citizens and legal entities:

The first and simplest form is the registration in China of a representative office of a foreign company. The advantage of opening a representative office in China is that it requires less time and cost to register. Registration of a representative office lasts one to one and a half months. Also, registration of a representative office of a foreign company in China does not require the introduction of registered capital.

The second form of organization is the registration in China of joint ventures with Chinese partners. Part of the capital comes from a foreign investor, part from Chinese partner companies.

The third form of organization is the registration in China of companies with 100% foreign capital.

 

[Юридическая Компания Лидер]

Chinese company (LLC)

One of the fastest, most convenient and economical ways to do business in China is to indirectly invest in foreign companies in companies that are officially ordinary Chinese limited liability companies. Under such a scheme for organizing activities, the investors are officially the Chinese founders (nominees), and the actual foreign investor acts as the general director / legal representative.

On the basis of the Law on Companies, dated January 1, 2006, its legal representative is legally responsible for the activities of the company in China in accordance with the law of the People's Republic of China, but it cannot be a member of the Board of Directors, own shares or shares, or participate in the distribution of profits. However, in the scheme described by us, the founders are nominal and have no relation to the company besides the presence of their name in the registration documents. All activities of the company in China will be actually controlled by a legal representative - a foreign investor. The approximate cost of services of nominee founders in China will be from 300 to 500 US dollars per month (payment for 6 months in advance).

One of the main advantages of indirect investment in Chinese LLCs is the significantly lower requirements for the fixed capital of the company. Since 2006, the concept of "limited liability company of one shareholder" has been present in Chinese law. An individual (a citizen of mainland China) can independently establish a limited liability company, while the authorized capital paid at the time of registration of the company in China should be from 100 thousand yuan. If there are two or more founders, the size of the authorized capital is set at the lowest possible level - 30 thousand yuan. For comparison: for companies with one hundred percent foreign investment, the size of the authorized capital ranges from 140 to 200 thousand US dollars, depending on the field of activity. The size of the authorized capital is limited and the size of the liability of the company to creditors.

The most important advantage of indirect investment in a Chinese company is faster registration procedures for such companies. Companies in China are registered with the Office of the Commerce and Industry Administration. The main stages of registration and the timing of the procedures are indicated in the diagram below:

Stages of company registration in China:

Obtaining permission to name a future company
(5 business days)

Investment Verification
(3 business days)

Obtaining a “Certificate of the right to conduct business”
(5 business days)

Registration with statistics authorities
(5 business days)

Registration with tax authorities
(7 business days)

Opening a bank account
(10 working days)

After receiving the “Certificate of the right to conduct business activities”, the company is registered with the police, after which appropriate seals are issued (seal of the Chinese company, accounting seal, seal for contracts, seal of legal representative (personal)). In the event that a company in China has the right to export and import supplies, it must undergo appropriate registration with customs.

Company Taxes in China:
All companies registered in the territory of China pay a corporate income tax of 25%.
Business tax. The rate of this tax depends on the scope of the company. For example, an import-export company that receives income from the provision of services in the territory of the PRC, for example, commission payments, is obliged to pay 5% of the amount of all receipts indicated in the invoices (fapiao) for the payment of these services as a tax on economic activity.
Stamp duty. It is calculated depending on the area of the leased office of the company in China and the amount of the lease.
VAT. The basic rate of value added tax is 17%. If the company has successfully received the status of “ordinary taxpayer”, then VAT may be refunded when exporting goods from China. Based on the export declaration and other certificates, a taxpayer is entitled to apply to the tax authorities monthly with a request for a VAT refund. Return rates depend on the category of exported goods and in some cases up to 100% of the amount of tax paid.
A Chinese company / enterprise is also a tax agent for the payment of taxes on personal income for its employees, and is also obligated to make appropriate payments to state social funds as social insurance for its employees.

In addition to the above basic taxes, companies in China are required to pay taxes to support urban construction, payments in favor of the development of education, and irrigation. These are insignificant amounts paid in the amount of 1 to 5% of the amount of tax paid on business activities.

Tax returns must be submitted every month, regardless of whether the company is operating or not.

 

[Юридическая Компания Лидер]

Joint venture

Currently, a joint venture is a fairly common form of financing business projects in the world, which is created taking into account the interests and needs of its participants for long-term cooperation within the framework of a common business.

Joint ventures with equity participation of Chinese capital.
Registration of a company in China and activities within a joint venture with the participation of Chinese and foreign capital in China is carried out in accordance with the Law of the People's Republic of China "On Joint Ventures with Chinese and Foreign Capital" and the Regulation "On the Application of the Law of the People's Republic of China" on Joint Ventures with Chinese and Foreign capital. "
According to the laws of the People's Republic of China, a joint venture can be created in the following key industries:
energy, building materials industry, chemical, metallurgical industry;
mechanical engineering, instrument making, industry for the production of equipment for oil production on the seabed;
electronics, production of electronic computers, communications;
light, textile, food, pharmaceutical industries, production of medical equipment, packaging materials;
agriculture, animal husbandry, crop production;
tourism and services.

When making proposals on the establishment of joint ventures, registration authorities pay attention to economic efficiency and take into account at least one of the requirements listed below:

the use of advanced technology and scientific management methods, the possibility of increasing the range of products, improving the quality and volume of products, saving energy and materials;
benefits in terms of technical reconstruction of enterprises, the possibility of reducing investment, increasing efficiency and increasing income;
the possibility of expanding export production, increasing foreign exchange earnings;
the possibility of training technical and managerial personnel.

A joint venture will not be registered if at least one of the following circumstances occurs:
damage to China's sovereignty;
violation of the laws and regulations of doing business in China;
inconsistency with the development requirements of the Chinese national economy;
environmental pollution;
the apparent injustice of the conditions of the signed agreements, treaties, charters, damage to the rights and interests of one of the parties.

A joint venture may be established in the form of:
joint venture enterprises
joint venture enterprises

Joint venture enterprise.
The establishment of joint cooperation enterprises in China is allowed in the form of limited liability companies, or companies with the status of a non-legal entity, while the project partners bear full responsibility for the losses incurred by the companies. In most cases, joint venture enterprises are established as limited liability companies.
Joint venture.
These are limited liability companies, where the personal property and property of persons responsible are protected from the losses of companies, the very amount of losses incurred by a joint venture of this type is determined by the amount of the authorized capital transferred to the account of the company in China after obtaining a license for economic activity.