论我国外资准入制度的现状与重构
发布时间：2018-08-09 11:38
【摘要】：与国外很多发达国家相比,我国外资准入制度一直都比较保守,“三资企业法”、《外商投资产业指导目录》等法规、政策共同构建了我国外资准入制度体系。虽然,它们对于我国积极有效地利用外资发挥了重要的促进作用,但是,随着全球经济一体化的推进以及我国进一步对外开放需求的扩大,现行的外资准入制度出现了很多与时代需求不相符合的因素,如“逐案审批制”效率低下、“正面清单”模式缺乏透明度、国家安全审查制度缺乏可操作性等。随着美国与欧盟在世界范围内推行由其主导的国际贸易投资新规则,越来越多的国家开始采用“准入前国民待遇+负面清单”的外资管理模式。在中美BIT的谈判中,也是以这样的外资管理模式为前提和基础的。随着这种开放型的外资准入管理模式在上海自贸区的成功试点推行,下一步将有望在全国范围内推广。改革是场攻坚战,此次进行外资准入制度的改革与重构,必将涉及国内各项制度的重大调整。那么,为什么我们要推行“准入前国民待遇”以及“负面清单”的管理模式呢?在对外开放的同时,我们如何维护我们的国家安全呢?推行“准入前国民待遇”模式,将给予外资的国民待遇从以前的经营阶段提前至设立阶段,也就是说,外资进入国内市场将无需再向审批机构申请准入审批,只需备案即可。这将大大减少外资进入国内市场的时间和成本,提升外资进入的成功率,给予外资来我国投资以极大的激励。同时,简化行政审批,将市场能够自主调节的交给市场,政府不再过度干预,也与我国政府职能转变,建设服务型政府的目标相符。然而,对于资本输入国来说,外资的进入固然可以带来很多积极作用,但是,外资涌入对本国产业所带来的风险也不能忽视。对外资的引入不是越多越好,我们引入外资要重量,更要重质;我国在给予外资鼓励和保护的同时,对外资也要进行合理的限制和引导;我国在利用外资促进国内经济发展、产业结构优化升级的同时,也要注意对本国国家安全、经济安全的保护。因此,我们在推行“准入前国民待遇”时,应当制定“负面清单”以限制外资进入本国关键产业、薄弱产业。与我国现行的“正面清单”模式相比,“负面清单”模式更加透明,对外资的限制也比较少。政府将禁止和限制外商投资经营的行业、领域以清单的形式列出,在“负面清单”以内的领域,外资进入仍需向外国投资主管部门申请准入许可,在“负面清单”之外的领域,实行内外资一致的原则,外资进入国内市场一律取消准入审批,只需履行规定的备案和信息报告程序,这与“法无禁止即自由”的现代法治理念相符合,有利于充分发挥市场对资源的调配作用,并促进政府的简政放权。从“正面清单”模式向“负面清单”模式的转变,我国还有很多的工作要做。首先,“负面清单”的制定依据是国内的法律法规,因此,制定“负面清单”的前提和基础就是要对国内的法律法规进行统一的梳理,将确实需要对外资设置限制的措施整理出来,同时删除已经过时的规定,进而整理成一份列明不符措施的清单。同时我们需要注意到,“负面清单”中对外资准入的限制性措施,不是由当事国一方说了算的,其制定的背后是国家与国家之间的谈判、妥协和利益交换。“负面清单”一旦制定出来,中国在实施相关政策时就会受到约束。因此,为了不至于在今后的谈判中陷于被动,我们应当注意在“负面清单”中保留未来增添新的不符措施的权利。还要注意的是,在编排“负面清单”时,要注意提升透明度、可理解性和可操作性,主要就是将限制性措施所依据的法律法规列明,同时对限制性措施进行具体的描述。国家安全审查制度与“负面清单”一起,在吸引外资的同时对之予以一定的限制。我国外资法律、政策并不是从来不曾提及国家安全审查的内容,只是这些提及都只是原则性的规定,比如《反垄断法》第31条仅仅是提到涉及“国家安全”时要进行国家安全审查,但是审什么?如何审?都没有具体说明,从而导致这些法律、政策中的国家安全审查没有实际操作意义。美国的国家安全审查制度已经比较完善,它山之石,可以攻玉,我国在制定国家安全审查制度的具体操作规则时,也应当借鉴学习美国的经验。要对外商投资项目进行国家安全审查,首先涉及到的就是外资的界定标准问题,也即国家安全审查的对象问题。对外资的界定是采取缩小化的解释还是扩大化的解释,直接决定了我们国家安全审查的审查范围。我国在外资的界定上,通常采取的是设立地标准。这一标准会带来一系列的问题,在外国注册设立的企业,即使其最终为我国国民所控制,其也要被视作外资,并会引发国家安全审查。而相反,在我国国内注册设立的企业,即使其最终为国外资本所控制,也不会被视作外资,不会引发国家安全审查程序。而在美国,国家安全审查采取的是实际控制主义标准,在这一标准下,即使一家企业在国外注册并运营,但只要其最终是由美国国民或实体所控制,其就不会被视为外国实体,其在美国的投资当然也就不会涉及到国家安全审查程序。相反,即使一家企业是在美国注册并运营,但是其最终是由外国国民、政府、实体所控制,其就会被视为外国实体,其在美国的投资行为会引发国家安全审查。将设立地标准与实际控制主义标准进行比较,很明显实际控制主义这种对外资扩大化的解释更能维护我国国家安全。当然,由于我国设立地标准的传统存在,我国对外国人、外资的解释适宜采用设立地标准为主,同时兼顾实际控制主义标准。而实际控制主义标准又涉及到对“控制”的认定,在“控制”的认定上,不仅仅要看实际持股比例,更要看外资是否能够通过信托、合同等具体措施对企业重大事项实施决定性影响,也即更加倾向于“控制”的功能属性。其次是要确定安全审查的范围,我们应当注意“国家安全”的概念复杂且易变,因此建议采取列举并辅以弹性条款的方式,对安全审查的可审内容进行界定,这将有助于我国在国内外形势发生变化,或者国内出现新兴业态需要保护时,掌握主导权,为国家安全提供更周延的保护。第三是安全审查程序的构建问题,在构建安全审查程序时,应当注意引入预约商谈程序、风险缓和措施等柔性措施,不要动辄禁止外资的进入,这与我们对外开放的初衷不符。同时,要注意对安全审查机构的监督,防止安全审查机构利用职权进行权力寻租,滋生腐败。作为发展中大国,我们急需引入外资来推动国内产业结构的优化升级,但是也不能忽视外资引入可能带来的风险,需要对本国的关键产业、薄弱产业进行合理的保护,防止外资垄断市场。为了在对外开放与保护本国利益之间寻求平衡,我们应当在推行“准入前国民待遇”的同时,构建“负面清单”与“国家安全审查制度”,以实现对本国重大利益、国家安全的保护。外资准入制度的重构,任重而道远。笔者将在分析法理以及借鉴国内外先进经验的基础之上,对外资准入制度的重构提出建议。
[Abstract]:Compared with many developed countries in foreign countries, our foreign capital access system has always been relatively conservative, "three capital enterprises law", "foreign investment industry guidance catalogue >" and other laws and regulations. The policy has jointly constructed the system of China's foreign investment access system. Although they have played an important role in the active and effective use of foreign capital, however, along with the world The promotion of economic integration and the expansion of China's further opening to the outside world, there are many factors that are not in line with the demand of the times, such as the inefficiency of the "case by case approval system", the lack of transparency in the "positive list" model, the lack of operability of the national security review system, and so on. In the world, the new rules of international trade and investment are introduced, and more and more countries have begun to adopt the foreign management model of "national treatment before access + negative list". In the negotiations between China and the United States, the model of foreign capital management is the premise and foundation in the BIT negotiations between China and the United States. With this open type of foreign investment management model in Shanghai The successful pilot implementation of the FTA will be expected to be promoted throughout the country. The reform is a field attack. The reform and reconstruction of the foreign access system will involve major adjustment of the domestic system. Then why should we implement the management model of "national treatment before access" and "negative list"? At the same time, how do we maintain our national security? The implementation of the "national treatment before access" model will give the national treatment of foreign capital from the previous stage to the establishment stage, that is to say, the entry of foreign capital into the domestic market will not require further approval from the examination and approval authorities, only the record will be required. This will be greatly reduced. The time and cost of foreign investment into the domestic market, the promotion of the success rate of foreign investment and the great incentive to give foreign investment to China's investment. At the same time, to simplify administrative examination and approval and to transfer the market to the market, the government will no longer interfere with the government. It is also consistent with the transformation of our government functions and the goal of building a service-oriented government. In the input country, the entry of foreign capital can bring a lot of positive effects, but the risk of foreign capital influx can not be ignored. The introduction of foreign capital is not the more, the more the better, we should introduce foreign capital to the weight, more important; while China is giving foreign capital encouragement and protection, we should also make reasonable restrictions on foreign investment. When we use foreign capital to promote domestic economic development and optimize the industrial structure, we should also pay attention to the national security and economic security protection. Therefore, when we carry out the "national treatment before access", we should formulate a "negative list" to restrict foreign capital into the key industries in the country, the weak industry and the current China. Compared with the "positive list" model, the "negative list" model is more transparent and fewer restrictions on foreign investment. The government will prohibit and restrict the business of foreign investment. The field is listed in the form of a list. In the field within the "negative list", foreign investment still needs to apply to the foreign investment authorities to apply for permission, in the "negative". In the field outside the list, the principle of agreement between domestic and foreign capital is carried out, and the entry of foreign capital into the domestic market is to cancel the approval of access, only to fulfill the prescribed record and information reporting procedures. This is in line with the modern rule of law concept of "no prohibition of law is free", which is conducive to fully playing the role of the market in the allocation of resources and promoting the government's simple administration. Right. There is still a lot of work to be done from the "positive list" model to the "negative list" model in China. First, the formulation of "negative list" is based on domestic laws and regulations. Therefore, the premise and basis of formulating "negative list" is to make a unified combing of domestic legal laws and regulations, and it will really need foreign capital. At the same time, we need to note that the restrictive measures for admittance to foreign capital in the "negative list" are not considered by the parties concerned, and the formulation of the negotiations between the state and the state, compromise and profit has the final say. As soon as the "negative list" is formulated, China will be constrained when implementing relevant policies. So, in order not to be passive in future negotiations, we should pay attention to the right to retain the new incompatible measures in the "negative list". It is also important to note that in the formation of "negative list", we should pay attention to the fact. The promotion of transparency, comprehensibility and operability is mainly to specify the laws and regulations on which restrictive measures are based, and to give a specific description of the restrictive measures. The national security review system, together with a "negative list", gives some restrictions on attracting foreign investment. Once mentioned the contents of the national security review, only these references are only principles of principle, such as the "antitrust law", which only refers to the national security review when it refers to "national security". But what is the trial? How? No concrete explanation is made, which leads to these laws, and the national security review in the policy is not practical. The national security review system of the United States has been perfected, and its mountain stone can be used to attack jade. China should also learn from the experience of the United States in the formulation of the specific rules for the operation of the national security review system. The national security review of foreign investment projects should be carried out in the first place, and the first is the definition of foreign investment, that is, the country. The question of the object of home security review. The definition of the foreign investment is to adopt a narrowing explanation or an explanation of expansion, which directly determines the scope of the review of our national security review. In the end, it is controlled by our nationals, which will also be regarded as foreign capital and will lead to a national security review. On the contrary, the enterprises registered in our country, even if they are ultimately controlled by foreign capital, will not be regarded as foreign capital and will not lead to a national security review process. In the United States, the national security review takes the actual control doctrine. Under this standard, even if a company is registered and operated abroad, it will not be regarded as a foreign entity as long as it is ultimately controlled by a United States or entity, and its investment in the United States will certainly not involve a national security review process. On the contrary, it is a company that is registered and operated in the United States, but it is finally in the end. It is controlled by foreign nationals, governments and entities, which will be regarded as foreign entities, and their investment behavior in the United States will lead to national security review. Comparing the standard of establishment and the standard of actual control, it is obvious that the interpretation of the expansion of foreign capital is more effective to safeguard our national security. The tradition of site standard exists in our country, the interpretation of China's interpretation of foreign and foreign capital is suitable to adopt the standard of setting up land, while taking into account the standard of practical control. The actual control standard also involves the identification of "control". In the cognizance of "control", it is not only to see the proportion of the real stock, but also to see if the foreign capital can pass the trust, The specific measures such as contract and other specific measures have a decisive influence on the important matters of the enterprise, that is, more inclined to "control" functional properties. Secondly, to determine the scope of the security review, we should pay attention to the complexity and variability of the concept of "national security". Therefore, it is suggested to adopt a list and supplement the flexible terms to the content of the security review. To define it, this will help our country to change the situation at home and abroad, or when the domestic emerging industry needs to be protected, to master the dominant power and provide more extensive protection for the national security. Third is the construction of the security review procedure. In the construction of the security review procedure, we should pay attention to the introduction of the appointment negotiation procedure, the risk mitigation measures, and so on. At the same time, we should pay attention to the supervision of the security review institutions, prevent the security review institutions to use their powers to rent the power and create corruption. As a developing country, we need to introduce foreign capital to promote the optimization and upgrading of the domestic industrial structure. We should not ignore the possible risks brought by the introduction of foreign investment. We need to protect the key industries and weak industries in the country and prevent the monopoly of foreign capital. In order to seek a balance between opening up and protecting our own interests, we should build a "negative list" and "national security" while carrying out the "national treatment before access". The whole system of examination is to realize the great interests of the country and the protection of national security. The reconfiguration of the system of foreign investment access is a long way to go. On the basis of analyzing the jurisprudence and drawing on the advanced experience at home and abroad, the author puts forward some suggestions on the reconstruction of the system of foreign investment access.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.295
本文编号：2173956
[Abstract]:Compared with many developed countries in foreign countries, our foreign capital access system has always been relatively conservative, "three capital enterprises law", "foreign investment industry guidance catalogue >" and other laws and regulations. The policy has jointly constructed the system of China's foreign investment access system. Although they have played an important role in the active and effective use of foreign capital, however, along with the world The promotion of economic integration and the expansion of China's further opening to the outside world, there are many factors that are not in line with the demand of the times, such as the inefficiency of the "case by case approval system", the lack of transparency in the "positive list" model, the lack of operability of the national security review system, and so on. In the world, the new rules of international trade and investment are introduced, and more and more countries have begun to adopt the foreign management model of "national treatment before access + negative list". In the negotiations between China and the United States, the model of foreign capital management is the premise and foundation in the BIT negotiations between China and the United States. With this open type of foreign investment management model in Shanghai The successful pilot implementation of the FTA will be expected to be promoted throughout the country. The reform is a field attack. The reform and reconstruction of the foreign access system will involve major adjustment of the domestic system. Then why should we implement the management model of "national treatment before access" and "negative list"? At the same time, how do we maintain our national security? The implementation of the "national treatment before access" model will give the national treatment of foreign capital from the previous stage to the establishment stage, that is to say, the entry of foreign capital into the domestic market will not require further approval from the examination and approval authorities, only the record will be required. This will be greatly reduced. The time and cost of foreign investment into the domestic market, the promotion of the success rate of foreign investment and the great incentive to give foreign investment to China's investment. At the same time, to simplify administrative examination and approval and to transfer the market to the market, the government will no longer interfere with the government. It is also consistent with the transformation of our government functions and the goal of building a service-oriented government. In the input country, the entry of foreign capital can bring a lot of positive effects, but the risk of foreign capital influx can not be ignored. The introduction of foreign capital is not the more, the more the better, we should introduce foreign capital to the weight, more important; while China is giving foreign capital encouragement and protection, we should also make reasonable restrictions on foreign investment. When we use foreign capital to promote domestic economic development and optimize the industrial structure, we should also pay attention to the national security and economic security protection. Therefore, when we carry out the "national treatment before access", we should formulate a "negative list" to restrict foreign capital into the key industries in the country, the weak industry and the current China. Compared with the "positive list" model, the "negative list" model is more transparent and fewer restrictions on foreign investment. The government will prohibit and restrict the business of foreign investment. The field is listed in the form of a list. In the field within the "negative list", foreign investment still needs to apply to the foreign investment authorities to apply for permission, in the "negative". In the field outside the list, the principle of agreement between domestic and foreign capital is carried out, and the entry of foreign capital into the domestic market is to cancel the approval of access, only to fulfill the prescribed record and information reporting procedures. This is in line with the modern rule of law concept of "no prohibition of law is free", which is conducive to fully playing the role of the market in the allocation of resources and promoting the government's simple administration. Right. There is still a lot of work to be done from the "positive list" model to the "negative list" model in China. First, the formulation of "negative list" is based on domestic laws and regulations. Therefore, the premise and basis of formulating "negative list" is to make a unified combing of domestic legal laws and regulations, and it will really need foreign capital. At the same time, we need to note that the restrictive measures for admittance to foreign capital in the "negative list" are not considered by the parties concerned, and the formulation of the negotiations between the state and the state, compromise and profit has the final say. As soon as the "negative list" is formulated, China will be constrained when implementing relevant policies. So, in order not to be passive in future negotiations, we should pay attention to the right to retain the new incompatible measures in the "negative list". It is also important to note that in the formation of "negative list", we should pay attention to the fact. The promotion of transparency, comprehensibility and operability is mainly to specify the laws and regulations on which restrictive measures are based, and to give a specific description of the restrictive measures. The national security review system, together with a "negative list", gives some restrictions on attracting foreign investment. Once mentioned the contents of the national security review, only these references are only principles of principle, such as the "antitrust law", which only refers to the national security review when it refers to "national security". But what is the trial? How? No concrete explanation is made, which leads to these laws, and the national security review in the policy is not practical. The national security review system of the United States has been perfected, and its mountain stone can be used to attack jade. China should also learn from the experience of the United States in the formulation of the specific rules for the operation of the national security review system. The national security review of foreign investment projects should be carried out in the first place, and the first is the definition of foreign investment, that is, the country. The question of the object of home security review. The definition of the foreign investment is to adopt a narrowing explanation or an explanation of expansion, which directly determines the scope of the review of our national security review. In the end, it is controlled by our nationals, which will also be regarded as foreign capital and will lead to a national security review. On the contrary, the enterprises registered in our country, even if they are ultimately controlled by foreign capital, will not be regarded as foreign capital and will not lead to a national security review process. In the United States, the national security review takes the actual control doctrine. Under this standard, even if a company is registered and operated abroad, it will not be regarded as a foreign entity as long as it is ultimately controlled by a United States or entity, and its investment in the United States will certainly not involve a national security review process. On the contrary, it is a company that is registered and operated in the United States, but it is finally in the end. It is controlled by foreign nationals, governments and entities, which will be regarded as foreign entities, and their investment behavior in the United States will lead to national security review. Comparing the standard of establishment and the standard of actual control, it is obvious that the interpretation of the expansion of foreign capital is more effective to safeguard our national security. The tradition of site standard exists in our country, the interpretation of China's interpretation of foreign and foreign capital is suitable to adopt the standard of setting up land, while taking into account the standard of practical control. The actual control standard also involves the identification of "control". In the cognizance of "control", it is not only to see the proportion of the real stock, but also to see if the foreign capital can pass the trust, The specific measures such as contract and other specific measures have a decisive influence on the important matters of the enterprise, that is, more inclined to "control" functional properties. Secondly, to determine the scope of the security review, we should pay attention to the complexity and variability of the concept of "national security". Therefore, it is suggested to adopt a list and supplement the flexible terms to the content of the security review. To define it, this will help our country to change the situation at home and abroad, or when the domestic emerging industry needs to be protected, to master the dominant power and provide more extensive protection for the national security. Third is the construction of the security review procedure. In the construction of the security review procedure, we should pay attention to the introduction of the appointment negotiation procedure, the risk mitigation measures, and so on. At the same time, we should pay attention to the supervision of the security review institutions, prevent the security review institutions to use their powers to rent the power and create corruption. As a developing country, we need to introduce foreign capital to promote the optimization and upgrading of the domestic industrial structure. We should not ignore the possible risks brought by the introduction of foreign investment. We need to protect the key industries and weak industries in the country and prevent the monopoly of foreign capital. In order to seek a balance between opening up and protecting our own interests, we should build a "negative list" and "national security" while carrying out the "national treatment before access". The whole system of examination is to realize the great interests of the country and the protection of national security. The reconfiguration of the system of foreign investment access is a long way to go. On the basis of analyzing the jurisprudence and drawing on the advanced experience at home and abroad, the author puts forward some suggestions on the reconstruction of the system of foreign investment access.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.295
【参考文献】
相关期刊论文 前1条
1 聂平香;戴丽华;;美国负面清单管理模式探析及对我国的借鉴[J];国际贸易;2014年04期
，本文编号：2173956
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