论外资准入前国民待遇

发布时间：2018-12-13 06:25

【摘要】：现如今,由于国际投资自由化的发展,许多欠发达国家也逐渐接受了外资准入前国民待遇原则,但关于其内容、适用条件以及使用标准是有一定分歧的,故此接受这一原则的国家也常在所缔结的协议和国内立法中设定了各种限定。中国经过多年的奋斗,已经成为了全球吸收外资最多的国度之一。2013年夏天,在中美双边投资协议谈判也以中方同意适用准入前国民待遇和负面清单的形式为根基,与美国进行具体内容的谈判。同年底我国也以此原则作为外资准入的门槛,建设了的上海自由贸易试验区,其主要目标就是为了深入探究负面清单管理形式,推动更高程度的对外开放和更深入的外资管理改革,建立开放透明的外资准入体制和构建具有国际化、法治化的运营环境,为推进中美双边投资协议谈判进行试点,在实践中形成一套“可复制、可推广”的经验和制度。之后,在2015年建立的福建、广东、天津自贸区借鉴了上海的经验,此举表明我国之后终将全面在外国资本进入中国市场时给予外国投资者和外国资本的外资准入国民待遇将有现在的“准入后”提前至“准入前”,所以准入前国民待遇是否在我国境内运用以及如何运用是一个迫在眉睫的问题。现阶段,我国为了与新的国际经济形势保持一致,需要不断推进国内外改革、同时要联合我国引进来和走出去的概念,来减少外资的投资标准限定,减缩负面清单,加速我国自由贸易区的建设,不断完善外资立法。本文除引言和结论以外分为四个章节。第一部分主要写国民待遇以及外资准入前国民待遇的涵义,分析外资准入前与准入后的区别;第二部分主要剖析在国际各种多边、双边投资协议,以及区域投资协定中外资准入前国民待遇的实践及理论;第三部分主要探索了外资准入前国民待遇在我国的具体实践适用情况,包括在上海自贸区的适用情况以及存在问题,中美双边投资协议中关于准入阶段国民待遇的新尝试以及谈判的难点,最后是我国外资法草案关于国民待遇的规定。第四部分主要提出自贸试验区外资实施准入前国民待民遇的措施,以及进一步的立法和实践的意见,并提出相关的完善措施。同时提出了对中美双边投资协议中关于外资准阶段前国民待遇问题的策略,并且对我国国内在立法层面上对外资准入阶段国民待遇的完善措施。
[Abstract]:Nowadays, as a result of the development of international investment liberalization, many less developed countries have gradually accepted the principle of national treatment before the entry of foreign capital. Thus, countries that accept this principle often impose limitations in their agreements and domestic legislation. After years of struggle, China has become one of the largest foreign investment absorbers in the world. In the summer of 2013, negotiations on bilateral investment agreements between China and the United States were also based on China's agreement to apply pre-entry national treatment and negative lists. Engage in specific negotiations with the United States. At the end of the same year, China also used this principle as the threshold for foreign investment access. The main goal of the Shanghai Free Trade pilot Zone was to explore the form of negative list management in depth. To promote a higher degree of opening to the outside world and deeper reform of foreign capital management, to establish an open and transparent foreign investment access system and to build an international and legalized operating environment, and to conduct pilot projects for the promotion of bilateral investment treaty negotiations between China and the United States. In practice to form a set of "replicable, popularized" experience and system. Since then, the Fujian, Guangdong and Tianjin Free Trade zones, which were established in 2015, have learned from Shanghai's experience. The move shows that China will eventually give foreign investors and foreign capital the national treatment of foreign investors and foreign capital when foreign capital enters the Chinese market in a comprehensive way, with the current "after entry" being advanced to "before entry." So whether or not national treatment is applied in our country before admission and how to use it is an urgent problem. At the present stage, in order to keep up with the new international economic situation, China needs to continuously promote domestic and foreign reforms, and at the same time, it must combine the concepts of our country's introduction and going out to reduce the investment standards of foreign investment and reduce the negative list. Speed up the construction of China's free trade zone and constantly improve foreign investment legislation. In addition to the introduction and conclusions, this paper is divided into four chapters. The first part mainly describes the meaning of the national treatment and the national treatment before the admission of foreign capital, and analyzes the difference between before and after the admission of foreign capital; The second part mainly analyzes the practice and theory of the national treatment before the entry of foreign investment in various international multilateral, bilateral investment agreements and regional investment agreements. The third part mainly explores the practical application of the national treatment before the entry of foreign capital in China, including the application of the Shanghai Free Trade Zone and the existing problems. The new attempt and the difficulty of negotiation on the national treatment in the entry stage in the bilateral investment agreement between China and the United States, and finally the stipulation on the national treatment in the draft foreign investment law of our country. In the fourth part, the author puts forward the measures of treating the people before the entry of foreign capital in the FTAZ, as well as the suggestions of further legislation and practice, and puts forward the relevant consummation measures. At the same time, this paper puts forward the strategy of the national treatment in the bilateral investment agreement between China and the United States before the quasi-stage of foreign investment, and the measures to perfect the national treatment in the stage of foreign capital entry in our country at the legislative level.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.295;D996.4

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