(Adopted at the 46th Executive Meeting of the State Council on October 31, 2001, promulgated by Decree No. 331 of the State Council of the People's Republic of China on December 10, 2001, and effective as of January 1, 2002 )
Chapter I General Provisions
Article 1 These Regulations are formulated in accordance with the relevant provisions of the Foreign Trade Law of the People's Republic of China ("the Foreign Trade Law") and other relevant laws for the purposes of regulating the administration of technology import and export, maintaining the order of technology import and export, and promoting national economic and social development.
Article 2 The term " technology import and export", as used in these Regulations, means the acts of transferring technologies from overseas to China or from China to overseas in the form of trade, investment or nomu and technological cooperation.
The acts referred to in the preceding paragraph include the transfer of patent, transfer of right to apply for patents, license for exploitation of patents, transfer of technological know-how, technical service and technology transfer in other forms.
Article 3 The State instimtes a uniform administration system over techology import and export and maintains a fair and free order of technology and export according to law.
Article 4 Technoloav import and export shall conform to the policies of the State for industries, science and technologies and social development, benefit the promotion of China s scientific and technological progress and the development 01 foreign economic and technological cooperation, and benefit the safeguarding of . . pa's economic and technological rights and interests.
Article 5 The State allows free import and export of technologies, except otherwise provided for in laws and administrative regulations.
Article 6 The competent department in charge of foreign economic relations and trade of the State Council ("the State Council foreign trade department) shall be responsible for the administration of technology import and export throughout the country in accordance with the provisions of the Foreign Trade Law and these Regulations. The competent departments in charge of foreign trade and economic cooperation of the people's governments of the provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for the administration of technology import and export in their respective administrative areas on the basis of the authorization from the State Council foreign trade department.
The departments of the State Council concerned shall perform the relevant administrative duties in respect of technology import and export projects in accordance with the provisions of the State Council.
Chapter II Administration of Technology Import
Article 7 The State encourages the import of advanced and applicable technologies.
Article 8 The import of technologies that fall under one of the circumstances set forth in Articles 16 and 17 of the Foreign Trade Law shall he prohibited or restricted.
The State Council foreign trade department shall, jointly with the relevant departments of the State Council, formulate, readjust and publicize the catalogue of technologies under import prohibition or restrictions.
Article 9 Technologies under import prohibition shall not be imported.
Article 10 Technologies under import restrictions shall be administered by issuing licenses; and no technology of this kind may be imported without license.
Article 11 Where a technology under import restrictions is to be imported, an application for technology import shall be submitted to the State Council foreign trade department, and relevant documents attached thereto.
Where a technology import project is subject to the approval of relevant deparments, the document of approval from such departments shall also be submitted.
Article 12 Upon receipt of an application for technology import, the State Council foreign trade department shall, jointly with relevant departments of the State Council, examine the application and decide to approve or disapprove the application within 30 working days from the date of receipt of the application.
Article 13 Where an application for technology import is approved, the State Council foreign trade department shall issue a letter of intent for technology import licensing.
After having obtained the letter of intent for technology import licensing, import operators may sign technology import contracts with foreign parties.
Article 14 After having signed a technology import contract, an import operator shall submit a copy of the contract and relevant documents to the State Council foreign trade department and apply for a technology import license.
The State Council foreign trade department shall examine the authenticity of the technology import contract and decide whether or not to permit the technology import within 10 working days from the receipt of the documents referred to in the preceding paragraph.
Article 15 When submitting an application for technology import to the State Council foreign trade department in accordance with the provisions of Article l l of these Regulations, the applicant may concurrently submit a copy of the signed technology import contract.
The State Council foreign trade department shall examine both the application and the authenticity of the technology import contract in accordance with the provisions of Articles 12 and 14 of these Regulations and decide whether or not to permit the technology import within 40 working days from the date of receipt of the documents referred to in the preceding paragraph.
Article 16 If the technology import is permitted, the State Council foreign trade department shall issue a technology import license. The technology import contract shall enter into force from the date on which the technology import license is issued.
Article 17 A contract registration system shall be instituted for administration of technologies that may be freely imported.
For the import of technologies that may be freely imported, the contracts therefor shall enter into force when such contracts are legally executed, and the registration of the contracts is not a prerequisite for the entry into force of the contracts
Article 18 Where a technology that may be freely imported is imported, registration shall be made with the State Council foreign trade department and the following documents submitted thereto:
(1) an application for registration of the technology import contract;
(2) a copy of the technology import contract; and
(3) documents certifying the legal status of the contracting parties.
Article 19 The State Council foreign trade department shall register the technology import contract and issue the technology import contract registration certificate within 3 working days from the date of receipt of the documents referred to in Article 18 of these Regulations.
Article 20 The applicant shall go through the formalities of foreign exchange, banking, taxation, customs, etc. on the strength of the technology import license or the technology import contract registration certificate.
Article 21 Where the main contents of a permitted or registered technology import contract are changed in accordance with the provisions of these Regulations, the formalities for license or registration of such a technology import contract shall be renewed.
The termination of a permitted or registered technology import contract shall be promptly reported to the State Council foreign trade department for the record.
Article 22 Where a foreign investor uses technology as investment in the establishment of a foreign?invested enterprise, the import of such technology shall be examined or registered in accordance with the examination and approval procedure for the establishment of foreign?invested enterprises.
Article 23 The State Council foreign trade department and the relevant departments, and their staff as well, shall undertake the obligation to maintain in confidence the business secrets they have access to in performing their duties of technology import administration.
Article 24 The transferor in a technology import contract shall guarantee his legitimate ownership of the technology provided or guarantee that he is the person who has the right to transfer or license.
Where the transferee in a technology import contract exploits the technology provided by the transferor as agreed upon in the contract and such exploitation is accused of infringement by a third party, the transferee shall promptly notify the transteror, and the transferor shall, upon receipt of the notice, assist the transferee to remove the obstacles.
Where the transferee in a technology import contract exploits the technology provided by the transferor as agreed upon in the contract and such exploitation infringes upon the lawful rights and interests of other persons, the responsibility therefor shall be assumed by the transferor.
Article 25 The transferor in a technology import contract shall gurantee the technology provided to be complete, errorless, effective and capable of achieving the agreed technological target.
Article 26 The transferee and transferor in a technology import contract shall, within the agreed scope and period of time, maintain in confidence the parts of the technology provided by the transferor and not yet disclosed to the public.
When a technology is made public during the period of time of confidentiality for reasons not attributable to the party who undertakes the confidentiality obligation, such confidentiality obligation shall be terminated.
Article 27 During the term of validity of a technology import contract, the tights in the improvements to the technology shall belong to the party making the improvements.
Article 28 Upon the expiry of the term of a technology import contract, the transferor and transferee of the technology may, on the principle of fairness and reasonableness, consult on the continual exploitation of the technology.
Article 29 A technology import contract shall not contain any of tin following restrictive terms:
(1 ) requiring the transferee to accept attached conditions that are not indispensable for the import of the technology, including the purchase of technologies, raw materials, products, equipment or services that arc nor necessary;
(2) requiring the transferee to pay royalties ox to undertake relevant obli,,~auon,. for the technology the patent of which has expired or been declared invalid;
(3) restricting the transferee from making improvements to the technolog, provided by the transferor or restricting the transferee from using the improved technology;
(4) restricting the transferee from acquiring, from other sources, technologies similar to or competitive with the technology provided by the transferor;
(5) unreasonably restricting the channels or sources from which the transtcror buys raw materials, parts and components, products or equipment;
(6) unreasonably restricting the quantity, type or sale price of the prod; . manufactured by the transferee; or
(7) Unreasonably restricting the export charnels of the products manufacan:.:; by the transferee with the imported technology.
Chapter III Administration of Technology Export
Atrtidie 30 The State encourages the export of mature industrialized technologies.
Article 31 The export of technologies that fall under one of the circumstances set forth in Articles 16 and 17 of the Foreign Trade Law shall be prohibited or restricted.
The State Council foreign trade department shall, jointly with the relevant Departments of the State Council, formulate, readjust and publicize the catalogue of chnologies under export prohibition or restrictions.
Article 32 Technologies under export prohibition stall nut, be exported.
Article 33 An export licensing system shall be instituted in d administration for technologies under export restrictions, and no technology of this kind may be exported without license.
Amide 34 Where a technology under export restrictions is to be exported, an application therefor shall be submitted to the State Council foreign trade depamnent.
Article 35 Upon receipt of an application for technology export, the State Council foreign trade department shall, jointly with the administrative department of science and technology under the State Council, examine the technology applied for export and decide to approve or disapprove the application within 30 working days from the date of receipt of the application.
If a technology under export restrictions needs to be examined by relevant departments in respect of its confidentiality, such examination shall be conducted in accordance with the relevant provisions of the State.
Article 36 Where an application for technology export is approved, dm State Council foreign trade department shall issue a letter of intent for technology export licensing.
Only after having obtained the letter of intent for technology export licensing can the applicant carry out substantive negotiations and sign the technology export; contract with foreign parties.
Article 37 After having obtained the technology export contract, applicant shall submit the following documents to the State Council foreign trade department to apply for the technology export license:
(1) the letter of intent for technology export licensing;
(2) a copy of the technology export contract;
(3) the list of technology materials to be exported; and
(4) documents certifying the legal status of the contracting parties.
The State Council foreign trade department shall examine the authenticity of the technology export contract and decide to approve or disapprove such technoIogy export within 15 working days from date of the receipt of the documents referred to in the preceding paragraph.
Article 38 Where the technology export is permitted, the State Council foreign trade department shall issue a technology export license. The technolog export contract shall enter into force from the date on which the technology export license is issued.
Article 39 A contract registration system shall be instituted for the administration of technologies that may be freely exported.
For the export of technologies that may be freely exported, the contracts therefore shall enter into force when such contracts are legally executed, and the registration of the contracts shall not be a condition for the entry into force of the contracts.
Article 40 Where technologies that may be freely exported are exported, such export shall be registered with the State Council foreign trade department and the following documents submitted thereto:
(1) the application for the registration of the technology export contract;
(2) a copy of the technology export contract; and
(3) documents certifying the legal status of the contracting parties.
Article 41 The State Council foreign trade department shall register the technology export contract and issue the technology export contract registration certificate within 3 working days from the date of receipt o f the documents referred to in Article 40 of these Regulations.
Article 42 The applicant shall go through the formalities of foreign exchange, banking, taxation, customs, etc. on the strength of the technology export license or the technology export contract registration certificate.
Article 43 Where the main contents of a permitted or registered technology export contract are changed in accordance with the provisions of these Regulations, the formalities for the license or registration of such technology export
contract shall be renewed.
The termination of a permitted or registered technology export cona?act shall be promptly reported to the State Council foreign trade department for the record.
Article 44 The State Council foreign trade department and the relevant departments and their staff as well, shall undertake the obligation to maintain in confidence the business secrets they have access to in performing their duties of technology export administration.
Article 45 The export of any technology under export control such as nuclear technology, technology relating to nuclear dual?use items, manufacturing technology for controlled chennicals or military technology shall be handled in accordance with the provisions of relevant administrative regulations.
Chapter IV Legal Liability
Article 46 Those who import or export technologies under import or export prohibition, or, without permission, import or export technologies under import or export restrictions, shall be investigated for criminal liability in accordance with the provisions of the criminal law on the crime of smuggling, the crime of illegal business operations, the crime of divulging State secrets or other crimes; if such acts are not serious enough for criminal punishment, by distinguishing different circumstances, the offenders shall be punished in accordance with the relevant provisions of the Customs Law, or, be given a warning, confiscated of their illegal income, and fined not less than one time but not more than five times the illegal income by the State Council foreign trade department; the State Council foreign; trade department may concurrently invalidate their business licenses for f?oreym trade.
Article 47 Those who, beyond the scope of their licenses, import cexport technologies under import or export restrictions without authorization, shall be investigated for criminal liability in accordance with the provisions of the criminal law on the crime of illegal business operations or other crimes; if the such acts are not serious enough for criminal punishment, by distinguishing different circumstances, the offenders shall be punished in accordance with the relevant provisions of the Customs Law, or, be given a warning, confiscated of their illegal income, and fined not less than one time but not more than three times the illegal income by the State Council foreign trade department; the State Council foreign trade department may concurrently suspend or even invalidate their business licenses for foreign trade.
Article 48 Those who forge, alter, buy or sell licenses for technology import or export or registration certificates of technology import and export contracts, shall be investigated for criminal liability in accordance with the provisions of the criminal law on the crime of illegal business operations or the crime of forging, altering, buying or selling official documents, certificates or seals of a State organ; if such acts are not serious enough for criminal punishment, the offenders shall be punished in accordance with the relevant provisions of the Customs Law, and the State Council foreign trade department may concurrently invalidate their business licenses for foreign trade.
Article 49 Where the license for import or export of a technology is obtained by deceptive or other illegal means, the State Council foreign trade department shall revoke the technology import or export license therefor, and suspend or even invalidate the business license for foreign trade.
Article 50 Where the registration of a technology import or export contract is obtained by deceptive or other illegal means, the State Council foreign trade depart<r>ent shall revoke the technology import or export contract registration certificate therefor, and suspend or even invalidate the business license for foreign trade.
Article 51 Where the staff members administering technology import and export, in violation of these Regulations, divulge the State secrets or business secrets they have access to, they shall be investigated for criminal liability in accordance with the provisions of the criminal law on the crime of divulging the State secrets or the crime of infiingement on business secrets; if such acts are not serious enough for criminal punishment, the offenders shall be imposed administrative sanctions according to law.
Article 52 Where the staff member) of technology import and export abuse their powers, neglect their duties or accept or extort money or property from others by using advantages of their positions, they shall be investigated for criminal liability in accordance with the provisions of the criminal law on the crime of abuse of power, the crime of neglect of duties, the crime of accepting bribes or other crimes; if such acts are not serious enough for criminal punishment, the offenders shall be imposed administrative sanctions according to law.
Chapter V Supplementary Provisions
Article 53 Where any person is not satisfied with any approval, licensing, registration or administrative penalties made by the State Council foreign trade department, he may apply for administrative reconsideration or intiate legal proceedings in the people's court according to law.
Amide 54 In case of any inconsistency between these Regulation and the provisions formulated by the State Council on administration of technology import and export before the promulgation of these Regulations, these Regulations shall prevail.
Article 55 These Regulations shall be effective as of January 1, 2002 . The Regulations of the People's Republic of China on Administration of Technology introduction Contracts promulgated by the State Council on May 24, 1985, and the Rules for Implementation of the Regulations of the People's Republic of China on Administration of Technology Import Contracts approved by the State Council on December 30, 1987 and promulgated by the Ministry of Foreign Economic Relations and Trade on January 20, 1988 shall be repealed simultaneously.
