1. Conflicts between the Company Law and the Law on Sino-foreign Joint Ventures
When there is a conflict between the foreign-capital enterprise law and the company law, Chinese and foreign joint stock companies should give priority to the provisions of the foreign-capital enterprise law rather than the company law.
Two. Legal procedures for establishing Chinese-foreign cooperative enterprises
(1) The Chinese partner shall submit relevant documents to the examination and approval authority.
These documents include: project proposal for establishing cooperative enterprises; Feasibility study report jointly prepared by all parties; The agreement, contract and articles of association of the contractual joint venture; Business licenses or registration certificates, credit certificates and valid certificates of legal representatives of all parties. If the foreign party is a natural person, it shall provide valid identity certificate, resume and credit certificate; A list of candidates for the chairman, vice-chairman and directors of the joint venture or the chairman, deputy directors and members of the joint management committee determined by the parties to the joint venture through consultation; Other documents required by the examination and approval authority.
(2) examination and approval by the examination and approval authority
The examination and approval authority shall decide whether to approve or not within 45 days from the date of receiving all the required documents. If the examination and approval authority considers the submitted documents incomplete or inappropriate, it has the right to require all parties to supplement or modify them within a specified time limit.
(3) industrial and commercial registration
An approved contractual joint venture shall apply to the administrative department for industry and commerce for registration and obtain a business license according to law. The date of issuance of the business license of the contractual joint venture is the date of establishment of the contractual joint venture.
The above-mentioned examination and approval authority refers to the Ministry of Commerce or the provincial competent commerce department.
Three. Types of Chinese-foreign cooperative enterprises
1, a contractual joint venture with legal personality.
A cooperative operation with legal personality refers to a cooperative operation entity jointly established by all parties who enjoy independent property rights and independent personality according to law and can exercise civil rights and litigation rights in their own names. In order to effectively realize cooperative development projects, such enterprises conclude articles of association through consultation among partners, establish an independent enterprise organization, set up a board of directors as the highest authority of the enterprise, and assume responsibility for their debts with all their property, while Chinese and foreign partners assume responsibility for the enterprise within the limits of their investment or cooperation conditions. Internationally, this cooperative management mode belongs to the category of partnership management; A limited partnership is one in which the partners assume responsibilities within the scope of the cooperation conditions provided. In China, considering the liability form of a cooperative enterprise with legal personality, it can be registered as a limited liability company as long as it meets the provisions of the company law.
2. unincorporated cooperative enterprise
Contrary to a contractual joint venture with legal personality, a contractual joint venture with legal personality has no independent property ownership, only the right to operate and use.
That's right. When a contractual joint venture has a lawsuit, all parties to the contractual joint venture shall bear legal responsibilities according to their respective capabilities.
Ren. All parties to a contractual joint venture without legal person status, whether contributing capital or providing other materials or industrial property rights as cooperation conditions; All of them are owned by the cooperative parties alone, or can be shared by mutual agreement (including partial ownership and partial sharing). Property accumulated by operating such enterprises; According to national laws and regulations, it belongs to both parties. The management of an enterprise can be a joint management organization jointly established by both parties, or it can take the form of entrustment, and the cooperative party is entrusted to be responsible. This kind of cooperative operation is usually an unlimited partnership in the world, and all parties to the cooperative operation bear civil liability in the form of unlimited liability.
According to this law, when there is a conflict between the foreign-capital enterprise law and the company law, Chinese and foreign joint stock companies should give priority to the provisions of the foreign-capital enterprise law rather than the company law.