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▌ 文秘范本网 >> 法律论文 >> 英文法律 >> 正文 |
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| Detailed Rules and Regulations for the Implementation of the Regulation on Administration on Technology Import Contracts of Peoples Republic of China (2) | |||||
| 更新时间：2007-5-2 | |||||
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import contract, the ownership of an improved version of the imported technology including claims for patent rights shall belong to the party which undertakes the improvement work. When the recipient provides an improved version of the imported technology to the supplier, the terms shall be the same as that when the supplier provides an improved version to the recipient. @@ Article 13. The recipient shall undertake the obligation to keep confidential the technical secrets of a certain know-how and relevant information provided or imparted by the supplier in accordance with the scope and confidentiality duration stipulated in the technology import contract. The confidentiality duration shall not exceed the period of validity of the said contract. If it is necessary to go beyond the contract validity period due to some special conditions, specific provisions should be included in the said technology import contract and an explanation should be made to the Approval Authority when applying for examination and approval of the said contract. The recipient shall be relieved of all confidentiality obligations if the technical secrets of the imported technical know-how or relevant information are made public during the confidentiality duration not owing to the recipient. If it is specified in the technology import contract that the supplier is required to provide products developed by or improved version(s) of the imported technology to the recipient during the contract validity period, the recipient may continue to bear the obligation to keep confidential the technical secrets of the developed products or improved version(s) of the technology after the validity of the said contract has lapsed. However, the additional confidentiality duration (that overlaps the original duration) shall not be longer than the confidentiality duration previously approved in the technology import contract and the additional confidentiality duration shall become effective on the date the developed products or improved version(s) of the technology are provided to the recipient. @@ Article 14. No restrictive provision on the recipient who manufactures export products using the imported technology can be included in a technology import contract without the approval from the competent authority unless any one of the following situations apply: (1) In countries and regions where exclusive license contracts have been signed by supplier of the said technology; (2) In countries and regions where sole agent contracts have been signed by the supplier of the said technology. @@ Article 15. No prohibitive provision on the recipient to continue to use the imported technology after the validity of the technology import contract has lapsed shall be included in the said contract without the approval from the competent authority. In case the validity of the said contract has lapsed but not the patent relating to the imported technology, it may be handled according to the relevant stipulations of the "Patent Law of the People's Republic of China". @@ Article 16. The supplier shall pay taxes according to the stipulations of the Tax Law of the People's Republic of China. @@ Article 17. The recipient or company, enterprise which has been authorized to act as its agent to sign technology import contract on behalf of the recipient shall according to the stipulations of Article 6 of the present set of Regulations submit the following official documents to the competent authority within 30 days from the date the said contract is signed: (1) an approval application form including the contract's name, supplier's country and the company's name, contents and scope of the goal-directed to-be-imported technology, and the approval organ and the report number of the approved project's feasibility study, etc.; (2) a copy of the contract (enclosing a Chinese version if it is in a foreign language); (3) copy of documents evidencing the legal status of all contractual parties; (4) the approved feasibility study and a report on the arrangement of fund needed. In order to raise the efficiency of examination and approval, the recipient or company, enterprise which has been authorized to act as its agent to sign technology import contract on on behalf of the recipient may ask for comments or apply for pre-examination from the competent authority on the main contents or certain clauses of the technology import contract during or before the negotiation period. @@ Article 18. In accordance with the stipulations of Article 17 of the present set of Regulations, if any one of the following cases is applied to a technology import contract or other documents submitted, the competent authority may require for amendments within a certain time limit. If the parties concerned have failed to make the necessary amendments, the competent authority may reject the contract submitted: (1) That it is against the current laws and legislations of the State and is harmful to public interests of the society; (2) That it is against national sovereignty; (3) That the contents of the contract is inconsistent with the approved feasibility study of the project; (4) That the basic clauses and contents of the contract are imperfect; (5) That the contract contains no definite and rational stipulation concerning the res ponsibilities and solutions to possibly occurred disputes of property rights due to the transferred or licensed technology or other disputes that may occur in the course of implementation of the contract; (6) That the contract contains no rational stipulation on the technical level and economic efficiency which the transferred or licensed technology should attain as well as quality warranty for the products manufactured with the said technology; (7) That the price and/or way of payment for the imported technology is/are unreasonable; (8) That the stipulations on rights, responsibilities and obligations of the contractual parties are unclear, unequal and irrational; (9) That the contract contains preferential tax commitment without the consent from the Chinese tax authority. @@ Article 19. The competent authority shall determine whether to approve or reject a technology import contract within 60 days from the date when the application is received. If the competent authority requires an amendment in accordance with the stipulations of Article 18, the duration of examination and approval will be counted from the date when the amended contract or text is received by the competent authority. A contract submitted for examination and approval will be considered approved if the competent authority has failed to give a reply within the stipulated time limit. @@ Article 20. The approved technology import contract will come into force on the date of approval. The competent authority will issue an "Approval Certificate for Technology Import Contract" which is to be printed and numbered by the MOFERT in a unified manner. @@ Article 21. If a technology import contract exceeds the ten year validity period stipulated in Article 8 of the "Regulations" or includes restrictive provisions as listed in Article 9 of the "Regulations", the recipient shall submit together with the contract approval application a detailed explanation to the competent authority when going through the procedures for examination and approval in accordance with the stipulations of the present set of Regulations. @@ Article 22. To alter provisions relating to contents, prices, terms and confidentiality duration of an already approved goal-directed technology import contract, the contractual parties shall undergo consultations and reach a mutual agreement first. They shall then apply for a written consent from the original Approval Authority. If the alteration is found to be inconsistent with the contents of the already approved goal-directed technology import contract or it needs more foreign exchange than the amount previously approve d, the contractual parties shall go through a reexamination and reapproval procedure in accordance with the provisions of Article 4 and Article 11 of the "Regulations" and Article 6 of the present set of Regulations. @@ Article 23. All Approval Authority shall submit copies of "Approval Certificate of Technology Import Contract" and other relevant documents to the MOFERT for the record within 10 days from the date the technology import contract is approved. @@ Article 24. In going through such processes as acquiring bank guarantee, letters of credit, payment, account clearance, Customs declaration and tax payment, etc. when implementing a technology import contract, the "Approval Certificate of Technology Import Contract" or its duplicates must be presented to the related organs in accordance with the relevant stipulations. Banks, Customs offices and tax authorities may refuse to process an application if otherwise. @@ Article 25. The authority to interpret and revise the present set of Regulations resides in the MOFERT. @@ Article 26. The present set of Regulations will enter into force on the date of promulgation. The "Procedure for Examination and Approval of Technology Import Contracts" promulgated on September 18, 1985 by the MOFERT will cease to be in force simultaneously. the recipient to continue to use the imported technology after the validity of the technology import contract has lapsed shall be included in the said contract without the approval from the competent authority. In case the validity of the said contract has lapsed but not the patent relating to the imported technology, it may be handled according to the relevant stipulations of the "Patent Law of the People's Republic of China". @@ Article 16. The supplier shall pay taxes according to the stipulations of the Tax Law of the People's Republic of China. @@ Article 17. The recipient or company, enterprise which has been authorized to act as its agent to sign technology import contract on behalf of the recipient shall according to the stipulations of Article 6 of the present set of Regulations submit the following official documents to the competent authority within 30 days from the date the said contract is signed: (1) an approval application form including the contract's name, supplier's country and the company's name, contents and scope of the goal-directed to-be-imported technology, and the approval organ and the report number of the approved project's feasibility study, etc.; (2) a copy of the contract (enclosing a Chinese version if it is in a foreign language); (3) copy of documents evidencing the legal status of all contractual parties; (4) the approved feasibility study and a report on the arrangement of fund needed. In order to raise the efficiency of examination and approval, the recipient or company, enterprise which has been authorized to act as its agent to sign technology import contract on on behalf of the recipient may ask for comments or apply for pre-examination from the competent authority on the main contents or certain clauses of the technology import contract during or before the negotiation period. @@ Article 18. In accordance with the stipulations of Article 17 of the present set of Regulations, if any one of the following cases is applied to a technology import contract or other documents submitted, the competent authority may require for amendments within a certain time limit. If the parties concerned have failed to make the necessary amendments, the competent authority may reject the contract submitted: (1) That it is against the current laws and legislations of the State and is harmful to public interests of the society; (2) That it is against national sovereignty; (3) That the contents of the contract is inconsistent with the approved feasibility study of the project; (4) That the basic clauses and contents of the contract are imperfect; (5) That the contract contains no definite and rational stipulation concerning the res |
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