甘肃省人民代表大会常务委员会关于修改《甘肃省水路交通管理条例》的决定

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甘肃省人民代表大会常务委员会关于修改《甘肃省水路交通管理条例》的决定

甘肃省人大常委会


甘肃省人民代表大会常务委员会关于修改《甘肃省水路交通管理条例》的决定

(2004年6月4日甘肃省第十届人民代表大会常务委员会第十次会议通过 自公布之日起施行)



甘肃省第十届人民代表大会常务委员会第十次会议决定对《甘肃省水路交通管理条例》作如下修改:

一、第六条第一款、第二款修改为“兴建临河、跨河、过河等与通航有关的设施,应符合航道技术等级标准和防洪标准,并事先征得河道主管机关和交通主管部门的同意。进行航道整治,应当事先征求交通主管部门的意见。”

二、第八条修改为“省交通行政主管部门负责编制本省重要港口的总体规划,由省人民政府征求国务院交通主管部门意见后批准,公布实施。其他港口的总体规划由港口所在地的市、县人民政府批准后公布实施,并报省人民政府备案。”

三、第九条第一款、第二款修改为“在港口总体规划区内建设港口设施,使用港口岸线的,由省交通行政主管部门批准。”

四、第十条修改为“港口建设应当符合港口总体规划。按照法律和法规规定须经有关部门批准的港口建设项目,应当按照有关规定办理审批手续,并符合国家有关标准和技术规范。”

五、删去第十一条。

六、第十三条修改为“水路运输和水路运输服务、港口经营者,应在核准的经营范围内从事经营活动,提供安全、优质、文明的服务,按期进行船舶年度审验,使用国家和省规定的水路运输票据和单证。”

七、删去第二十一条第二款。

本决定自公布之日起施行。

《甘肃省水路交通管理条例》根据本决定作相应修改,重新公布。



附:甘肃省水路交通管理条例(2004年修正本)

(1998年9月28日省九届人大常委会第六次会议通过 根据2004年6月4日省十届人大常委会第十次会议《关于修改〈甘肃省水路交通管理条例〉的决定》修正)

第一条 为加强水路交通管理,保障水路交通安全、畅通,促进水路交通运输生产的发展,根据《中华人民共和国水路运输管理条例》、《中华人民共和国内河交通安全管理条例》等国家有关法律、法规,结合本省实际,制定本条例。

第二条 本条例适用于本省行政区域内从事水路交通的单位和个人。

第三条 县级以上交通行政主管部门负责本行政区域内的水路交通管理工作。

交通行政主管部门及其设置的水路交通管理机构(水运管理、航道管理、港航监督、船舶检验)依其职责负责实施本条例。

各级人民政府有关部门,应当按照各自的职责,配合交通行政主管部门做好水路交通管理工作。

第四条 省交通行政主管部门根据国家内河通航标准、防洪标准和航运发展需要,编制全省航道发展规划和依照国家有关规定划定四级以下航道技术等级。

第五条 水路交通管理机构应加强对航道及其设施的管理和养护,过船设施的管理单位应加强维护工作,保持航道和航道设施处于良好的技术状态,保证船舶安全、便捷地通过。

水路交通管理机构应及时发布航道变迁、航标位移、航道尺度和水情以及航道施工作业的航道通告。

水路交通管理机构为保障航道畅通进行的航道施工作业,任何单位和个人不得非法阻挠或收取费用。

第六条 兴建临河、跨河、过河等与通航有关的设施,应符合航道技术等级标准和防洪标准,并事先征得河道主管机关和交通主管部门的同意。进行航道整治,应当事先征求交通主管部门的意见。

在黄河、洮河、白龙江等通航的河段上修建永久性拦河闸坝时,建设单位应当同步修建过船设施。

第七条 任何单位和个人不得侵占、损坏航道以及航道设施,不得向航道倾倒砂石、泥土和废弃物。

在航道范围内挖取砂石泥土、开采砂金、堆放材料,必须经县级以上交通行政主管部门同意后,报河道行政主管部门批准,并按批准的范围和作业方式开采,不得恶化通航条件。在城市规划区内航道上的上述活动,必须征得城市规划行政主管部门同意。

第八条 省交通行政主管部门负责编制本省重要港口的总体规划,由省人民政府征求国务院交通主管部门意见后批准,公布实施。其他港口的总体规划由港口所在地的市、县人民政府批准后公布实施,并报省人民政府备案。

第九条 在港口总体规划区内建设港口设施,使用港口岸线的,由省交通行政主管部门批准。

港口、航道及有关设施的建设用地,必须依法办理有关审批手续。

第十条 港口建设应当符合港口总体规划。按照法律和法规规定须经有关部门批准的港口建设项目,应当按照有关规定办理审批手续,并符合国家有关标准和技术规范。

第十一条 水路旅客运输和旅游运输经营者,应按水路交通管理机构批准的航线、停靠站点及班次从事营运,不得自行取消、转让或随意减少。需要取消或变更的,须经原批准机构批准,并在沿线各客运站点发布公告一个月后,方可取消或变更,因不可抗力需临时变更的除外。

第十二条 水路运输和水路运输服务、港口经营者,应在核准的经营范围内从事经营活动,提供安全、优质、文明的服务,按期进行船舶年度审验,使用国家和省规定的水路运输票据和单证。

第十三条 对县级以上人民政府下达的军事、抢险救灾物资的运输任务,交通行政主管部门应指令辖区内船舶承运,水运经营者必须保证完成。

第十四条 船舶在航行、停泊、作业过程中应当采取有效措施,防止污染水体,并不得停泊在水源取水口的禁泊区内。船舶航行产生的噪音不得超过国家和省规定的量值。船舶发生交通事故,可能造成水体污染的,应当及时报告当地环保部门。水路交通管理机构应当加强对船舶污染的监督管理。

第十五条 各级交通行政主管部门设置的港航监督机构对内河交通安全实施统一监督,对渡口(乡镇渡口、交通渡口、内部渡口)和乡镇船舶安全实施监督和业务指导。

县、乡(镇)人民政府,对本辖区内乡镇船舶及其渡口的安全管理负责,按照船舶、渡口的数量,应配备专职或兼职安全管理员,对辖区内水上安全进行管理,对船员、渡工进行安全教育。

交通渡口的主管部门,内部渡口的办渡单位,对渡口的安全管理负责。

第十六条 船舶必须配备消防、救生等安全设备及通讯、卫生、环保设备。

船舶、排筏、设施及其人员应当具有合法有效的航行、作业证书和证件,航行、停泊、作业必须遵守有关法律、法规以及交通管制、交通安全标志的规定。船舶、排筏进出港应办理签证。

对无证船舶航行、作业应当扣留查处。

第十七条 船舶所有权的取得、转让和灭失,应当按照国家规定办理登记手续。

船舶交易应当接受水路交通管理机构的监督管理,无合法证件的船舶不得进入市场交易。

第十八条 船舶应当以保障自身安全和不危及其他船舶和排筏、设施、堤防安全的速度航行,不得违反航速限制。船舶、排筏停泊和作业应当按照规定配备值班人员,不得妨碍其他船舶的正常航行和危及设施、堤防安全,不得停泊在涵闸警戒区内。

禁止船舶超载、超航区航行。禁止非载客船舶载客。禁止客船、旅游船客货混装和客船、渡船载客时装运危险物品。航道、船舶不具备夜航条件的,禁止夜间航行。

第十九条 船舶、排筏对交通安全、畅通造成严重危害的,港航监督机构可以采取必要措施紧急处置,费用和损失由船舶、排筏的所有者或者经营者承担。

第二十条 船舶设计、制造、维修必须符合船舶检验规范、规程、规定的技术标准。

第二十一条 未经水路交通管理机构检验或检验不合格的船舶、水上设施不得销售和使用。经检验合格的,应按规定签发相关的检验证书。

第二十二条 船舶、排筏、设施的所有者或经营者以及运输服务企业应当按照国家和省人民政府的规定缴纳水路交通规费。

水路交通管理机构负责水路交通规费的征收稽查工作。水路交通规费是用于水路交通基础设施建设的专项资金,必须专款专用,实行收支两条线管理。

第二十三条 违反本条例有下列行为之一的,由水路交通管理机构予以处罚:

(一)违反第七条规定的,责令其改正,限期清除,恢复原状;拒不清除的,采取强制措施予以清除,清除费用由违章单位或者个人承担。造成航道损坏的,应依法赔偿损失,并处以不超过航道损失40%的罚款。

(二)违反第十二条规定,未经水路交通管理机构批准而擅自进行客运及旅游航线营业的,责令其停止经营,没收违法所得,并处以违法所得1倍以下的罚款。未经批准擅自取消变更航线、停靠站点和班次的,责令其改正,并对拒不改正的,可处以100元以上2000元以下罚款。

(三)违反第十三条、第十七条第一款、第二款、第十八条、第十九条规定的,责令其改正,并处以100元以上3000元以下罚款。

(四)违反第二十三条第一款规定,逃避、拖欠水路交通规费的,责令其限期足额补缴,并按规定收取滞纳金。逾期不补缴的,除责令补缴所欠费款外,处欠缴费款1倍以上3倍以下的罚款;情节严重的可以暂扣船舶证书和船员证件。

本条例未作处罚规定的违法行为,国家法律、法规有规定的,从其规定。

第二十四条 水路交通管理机构的管理人员玩忽职守、滥用职权、乱收费、乱罚款、徇私舞弊的,由所在单位或者上级主管部门给予行政处分。构成犯罪的,由司法机关依法追究刑事责任。

第二十五条 水路交通事故处理办法,由省人民政府另行制定。

第二十六条 本条例实施中的具体应用问题,由省交通行政主管部门负责解释。

第二十七条 本条例自发布之日起施行。


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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

关于印发《鹰潭市市直企业国有资产监督管理暂行办法》的通知

江西省鹰潭市人民政府


关于印发《鹰潭市市直企业国有资产监督管理暂行办法》的通知


鹰府发〔2012〕24号



各县(市、区)人民政府,市龙虎山风景名胜区管委会,鹰潭高新技术产业园区管委会,市信江新区管委会,市政府各部门:

现将《鹰潭市市直企业国有资产监督管理暂行办法》印发给你们,请认真贯彻执行。




二〇一二年六月十日




鹰潭市市直企业国有资产监督管理暂行办法



第一章 总 则

第一条 为了规范企业国有资产监督管理,加强国有资本运营,实现国有资产保值增值,根据《中华人民共和国企业国有资产法》、《企业国有资产监督管理暂行条例》等法律法规,结合本市实际,制定本办法。

第二条 市直国有独资、控股、参股企业(以下简称所出资企业)的国有资产以及国有资产对外投资所形成的国有资产的监督管理,适用本办法。

第三条 市国有资产监督管理委员会(以下简称市国资委)根据市人民政府授权,代表市人民政府履行出资人职责和国有资产保值增值职责,享有国有资产所有者权益,依法对国有资产进行监督管理,并对县(市、区)人民政府和龙虎山景区管委会、鹰潭高新技术产业园区、信江新区企业国有资产监督管理工作进行指导和监督。

所出资企业的监管分为出资监管和国有资产保值增值监管两种模式,都按照管人、管事、管资产相结合的体制进行,出资监管即由市国资委按照管人、管事和管资产相结合的原则实施监管;国有资产保值增值监管即按照本办法规定的出资企业监管模式进行监管,但是,管人以主管部门为主(市国资委配合),管事、管资产以市国资委为主(企业主管部门配合)。出资监管企业和国有资产保值增值监管企业的划分以市政府授权文件为准。



第二章 国有资产监督管理机构

第四条 市国资委为市国有资产监督管理机构,代表市人民政府对所出资企业依法享有资产收益、参与重大决策和选择管理者等出资人权利。

第五条 市国资委对市人民政府负责,向市人民政府报告履行出资人职责和国有资产保值增值职责情况,接受市人民政府的监督和考核,对国有资产的保值增值负责,并向市人民政府报告国有资产总量、结构、变动、收益等汇总分析情况。

第六条 市国资委负责所出资企业的国有资产产权界定、产权登记、产权转让和资产评估监管、清产核资、资产统计、综合评价、国有资本经营预算等基础管理工作。

第七条 市国资委负责监管所出资企业国有资本收入的缴纳,其收入纳入市人民政府国有资本经营预算,主要用于国有经济发展,包括国有资产再投资、调整产业结构、补充国有企业资本金、股份公司国有股权增资扩股,解决国有企业改革等必要的支出,以及市人民政府确定的其他必要支出。

第八条 市国资委委派的股东代表参加国有控股、参股企业召开的股东会会议、股东大会会议,应当按照市国资委的要求提出提案、发表意见、行使表决权,并将其履行职责情况和结果七日内书面报告市国资委。



第三章 所出资企业管理者的选择、聘用与考核

第九条 市国资委依照法律、行政法规以及企业章程的规定,任免或建议任免所出资企业的下列人员:

(一)任免国有独资企业的董事长、副董事长、董事、总经理、副总经理、三总师、董事会秘书、监事会主席和监事等;

(二)向国有控股、参股企业的股东会、股东大会提出董事、监事人选,推荐国有控股企业的董事长、副董事长和监事会主席人选。

所出资企业中应当由职工代表出任的董事、监事,依照有关法律、行政法规的规定由职工民主选举产生。

(三)依法向国有独资、控股企业派出财务总监和法务总监。

本条第(一)项规定的企业管理者,由市委、市政府规定任免的,依照市委、市政府规定执行;本条第(一)、(二)项规定的管理者除市委、市政府规定以外的,有企业主管部门的由企业主管部门任免或推荐,没有企业主管部门的由市国资委任免或推荐。

第十条 市国资委任命或者建议任命的董事、监事、高级管理人员,应当具备下列条件:

(一)遵守宪法、法律,品行良好;

(二)有符合职位要求的专业知识和工作能力;

(三)有能够正常履行职责的身体条件;

(四)法律、行政法规规定的其他条件。

董事、监事、高级管理人员在任职期间出现不符合前款规定情形或者出现《中华人民共和国公司法》规定的不得担任董事、监事、高级管理人员情形的,由市国有资产监督管理机构依法予以免职或者提出免职建议。

第十一条 未经市国资委同意,国有独资企业的董事、高级管理人员不得在其他企业兼职,未经股东大会、股东会同意,国有控股、参股企业的董事、高级管理人员不得在经营同类业务的其他企业兼职。

董事、高级管理人员不得兼任监事。

第十二条 对国有独资、控股企业的管理者实行经营业绩考核制度。市国资委对企业管理者进行年度和任期考核,考核结果作为企业管理者奖惩和任用的主要依据。

对企业管理者的经营业绩考核主要侧重以下内容:

(一)年度利润总额和净资产收益率;

(二)任期内国有资产保值增值率和业务收入平均增长率;

(三)国有资本收入及时足额上缴国有资本收入财政专户情况;

(四)企业发展情况。

第十三条 由市国资委按照国家有关规定,确定国有独资、控股企业管理者的薪酬标准。

市国资委将经营业绩考核结果与企业管理者的薪酬挂钩。建立健全企业管理者薪酬与职工薪酬增长的协调联动机制,促进企业收入分配公平合理。



第四章 所出资企业事项的监管

第十四条 国有独资和国有控股企业下列事项应当报市国资委批准:

(一)企业制订的发展战略、发展规划及其实施办法;

(二)所出资企业或其重要子企业年度投融资计划;

(三)所出资企业或其重要子企业未列入年度投资计划的重大投资项目,拟进行新建、技改项目投资额达到注册资本10%以上,或数额100万元以上的:

(四)所出资企业或其重要子企业向境外投资或拟从事股票、期货、证券等高风险业务的;

(五)所出资企业或其重要子企业转移、转让主要盈利项目、主要业务销售渠道的;

(六)所出资企业及其重要子企业发生产权转让情况的;

(七)所出资企业或其重要子企业对外提供担保的;

(八)公司章程、年度职务消费方案、年度财务预算和决算方案、利润分配方案和弥补亏损方案以及重组、股份制改造方案、年度工资总额指标;

(九)所出资企业主要领导人员因公因私出国(境)的;

(十)所出资企业重要子企业的主要负责人发生变动的;

(十一)法律法规规定的,其他需要向出资人报告的事项。

第十五条 国有控股、参股企业的股东会、董事会在决定下列事项时,受市国资委委派的公司股东代表、董事应当依照本办法第八条的规定行使权利:

(一)公司的分立、合并、破产、解散、设立子公司;

(二)任免企业负责人;

(三)董事、监事报酬;

(四)年度财务预算方案、决算方案;

(五)利润分配方案和弥补亏损方案;

(六)增加或减少注册资本、发行债券;

(七)法律、行政法规规定的其他事项。

第十六条 国有独资、控股企业的合并、分立、解散、申请破产以及法律、行政法规和市人民政府规定应当报经市人民政府批准的重大事项,市国资委在作出决定或者向其委派参加国有控股企业股东会会议、股东大会会议的股东代表作出指示前,应当报请市人民政府批准。

第十七条 所出资企业的改制、资产评估、资产转让、关联交易等重大事项应当依照《中华人民共和国企业国有资产法》进行。

第十八条 国有独资、控股、参股企业依照《中华人民共和国公司法》的规定设立监事会。国有独资、控股企业由市国资委按照有关规定委派监事组成监事会。

所出资企业的监事会依照法律、行政法规以及企业章程的规定,对董事、高级管理人员执行职务的行为进行监督,对企业财务进行监督检查。

第十九条 国有独资、控股企业进行合并、分立、改制、上市、解散、申请破产、发行股票、公司债券、重大投融资、为他人提供大额担保、资产转让、大额捐赠等重大事项履行决策程序前,应当向市国资委报告并提供法律意见书,分析相关的法律风险,明确法律责任。

第二十条 国有独资、控股企业对其出资企业的重大事项依据法律法规和本章规定履行出资人职责,市国资委必要时可以深入企业进行检查指导。

第二十一条 市国资委依据国有资本经营管理的有关规定负责对国有资本收益进行管理,建立健全国有资产收益收缴制度,负责编制国有资本经营管理的预算草案并审定决算报告。

市财政局设立国有资产收益专户,用于收缴国有资产收益,支付相关支出。国有资产收益一般包括以下主要项目:

(一)国有独资企业上缴的利润;

(二)有限公司、股份有限公司中国有股权应分得的红利、股利;

(三)市本级国有企业处置国有资产、产权(股权)或清算所得收入;

(四)其他应上缴的国有资产收益。

国有资产收益应支付的相关支出一般包括以下主要项目:

(一)新设立企业或投资入股;

(二)国有企业扩大再生产;

(三)国有资产监管业务工作专项费用;

(四)国有资产管理的奖励和激励;

(五)处置企业改制过程中形成的对金融机构和金融资产管理公司的债务所发生的费用;

(六)市政府决定的其他事项。



第五章 法律责任

第二十二条 履行监管职责的机构有下列行为之一的,对其直接负责的主管人员和其他直接责任人员依法给予处分:

(一)不按照法定的任职条件,任命或者建议任命国家出资企业管理者的;

(二)侵占、截留、挪用国家出资企业的资金或者应当上缴的国有资本收入的;

(三)违反法定的权限、程序,决定国家出资企业重大事项,造成国有资产损失的;

(四)有其他不依法履行出资人职责的行为,造成国有资产损失的。

第二十三条 履行监管职责的机构的工作人员玩忽职守、滥用职权、徇私舞弊,尚不构成犯罪的,依法给予处分。

第二十四条 履行监管职责的机构委派的股东代表未按照委派机构的指示履行职责,造成国有资产损失的,依法承担赔偿责任;属于国家工作人员的,并依法给予处分。

第二十五条 国家出资企业的董事、监事、高级管理人员有下列行为之一,造成国有资产损失的,依法承担赔偿责任;属于国家工作人员的,并依法给予处分:

(一)利用职权收受贿赂或者取得其他非法收入和不当利益的;

(二)侵占、挪用企业资产的;

(三)在企业改制、财产转让等过程中,违反法律、行政法规和公平交易规则,将企业财产低价转让、低价折股的;

(四)违反本法规定与本企业进行交易的;

(五)不如实向资产评估机构、会计师事务所提供有关情况和资料,或者与资产评估机构、会计师事务所串通出具虚假资产评估报告、审计报告的;

(六)违反法律、行政法规和企业章程规定的决策程序,决定企业重大事项的;

(七)有其他违反法律、行政法规和企业章程执行职务行为的。

国家出资企业的董事、监事、高级管理人员因前款所列行为取得的收入,依法予以追缴或者归国家出资企业所有。

履行监管职责的机构任命或者建议任命的董事、监事、高级管理人员有本条第一款所列行为之一,造成国有资产重大损失的,由履行监管职责的机构依法予以免职或者提出免职建议。

第二十六条 在涉及关联方交易、国有资产转让等交易活动中,当事人恶意串通,损害国有资产权益的,该交易行为无效。

第二十七条 国有独资、控股企业的董事、监事、高级管理人员违反本法规定,造成国有资产重大损失,被免职的,自免职之日起五年内不得担任国有独资、控股企业的董事、监事、高级管理人员;造成国有资产特别重大损失,或者因贪污、贿赂、侵占财产、挪用财产或者破坏社会主义市场经济秩序被判处刑罚的,终身不得担任国有独资、控股企业的董事、监事、高级管理人员。

第二十八条 接受委托对国家出资企业进行资产评估、财务审计的资产评估机构、会计师事务所违反法律、行政法规的规定和执业准则,出具虚假的资产评估报告或者审计报告的,依照有关法律、行政法规的规定追究法律责任。

第二十九条 违反本办法规定,构成犯罪的,依法追究刑事责任。



第六章 附 则

第三十条 各县(市)、区人民政府和市龙虎山风景名胜区管委会、鹰潭经济技术开发区管委会、市信江新区管委会对依法履行出资人职责的国有资产,可参照本办法执行。

第三十一条 本办法实施中的具体问题由市国资委负责解释,自印发之日起施行。