Chapter
II Administration of
Technology Import
Article
7. The
State encourages import of advanced and appropriate technology.
Article
8. Import
of any technology falling into the provisions of Articles 16 or
17 of the Foreign Trade Law shall be prohibited or restricted.
The competent foreign trade department under the State Council shall,
in conjunction with other relevant departments under the State Council,
formulate, regulate and publish catalogues of technologies the import
of which is prohibited or restricted.
Article
9. Technologies
prohibited from import shall not be imported.
Article
10. Technologies
restricted from import shall be subject to the license administration;
any technology for which no license is granted shall not be imported.
Article
11. In
respect of import of a technology restricted from import, an application
for technology import, together with relevant documents, shall be
filed with the competent foreign trade department under the State
Council.
Where a project of technology import needs to be approved by the
relevant department, the documents of approval thereby shall also
be submitted.
Article
12. The
competent foreign trade department under the State Council, upon
receipt of an application for technology import, shall conduct an
examination, in conjunction with relevant departments under the
State Council, of the application, and make a decision on approval
or disapproval within thirty working days from the date of receipt
of the application.
Article
13. Where
an application for technology import is approved, the competent
foreign trade department under the State Council shall issue an
letter of intent for licensing the technology import.
After being granted the letter of intent for licensing the technology
import, an import operator may sign a contract for technology import
with its overseas counterpart.
Article
14. After
signing a contract for technology import, an import operator shall
submit to the competent foreign trade department under the State
Council a copy of the contract for technology import and relevant
documents to apply for the technology import license.
The competent foreign trade department under the State Council examines
the authenticity of the contract for technology import, and makes
a decision, within ten working days from the date of receipt of
the documents provided for in the preceding provision, on the approval
or disapproval of the technology import.
Article
15. An
applicant, when applying to the competent foreign trade department
under the State Council according to the provision of Article 11
of these Regulations for technology import, may submit a copy of
the technology import contract concluded.
The competent foreign trade department under the State Council shall,
according to the provisions of Articles 12 and 14 of these Regulations,
examine the authenticity of the application and the technology import
contract, and decide, within forty working days from the date of
receipt of the documents provided for in the preceding provision,
on the approval or disapproval of the technology import.
Article
16. Where
the import of a technology is approved, the competent foreign trade
department under the State Council issues the technology import
license. The contract for technology import takes effect on the
date of issuance of the technology import license.
Article
17. Technologies
freely importable shall be subject to the contract registration
system. A contract for importing a freely importable technology
takes effect from the time when the contract is established according
to law, without taking the registration thereof as a condition for
the contract to be effective.
Article
18. When
a freely importable technology is to be imported, registration shall
be made with the competent foreign trade department under the State
Council, and the following documents submitted:
(1) an application for registration of the technology import contract;
(2) a copy of the technology import contract; and
(3) any regulatory document certifying the legal status of the two
parties to the contract.
Article
19. The
competent foreign trade department under the State Council shall
register the technology import contract and issue the certificate
of registration of the technology import contract within three working
days from the date of receipt of the documents provided for in Article
18 of these Regulations.
Article
20. Applicants
shall use the technology import license or certificate of registration
of technology import contract to go through the foreign exchange,
banking, taxation and customs formalities.
Article
21. Where
a technology import contract licensed or registered according to
the provisions of these Regulations is changed in terms of the main
contents thereof, the formalities shall be gone through once again
for the license or registration thereof.
Any licensed or registered technology import contract which has
terminated shall be submitted with the competent foreign trade department
under the State Council for filing.
Article
22. Where
an enterprise with foreign investment is set up in which the foreign
party puts in a technology as its investment, the import of the
technology shall be examined or registered in accordance with the
procedure for examination and approval of the establishment of the
enterprise with foreign investment.
Article
23. The
competent foreign trade department under the State Council, other
relevant departments and the employees thereof shall be under the
obligation to keep confidential any trade secret they get to know
when performing their functions and duties of technology import
and export administration.
Article
24. The
technology supplying party to a technology import contract shall
ensure that he or it is the legitimate owner of the technology supplied
or one who has the right to assign or license the technology.
Where the receiving party to a technology import contract is accused
of infringement by a third party for using the technology supplied
by the supplying party under the contract, the former shall immediately
notify the latter; the latter, upon receipt of the notification,
shall assist the former in removing the impediment.
Where the receiving party to a technology import contract infringes
another person's lawful rights and interests by using the technology
supplied by the supplying party, the supplying party shall bear
the liability therefore.
Article
25. The
supplying party to an technology import contract shall ensure the
technology it supplies is complete, accurate, effective and capable
of achieving the agreed technical object.
Article
26. The
receiving and supplying parties to a technology import contract
shall be under the obligation to keep confidential the undisclosed
part of the technology the supplying party has supplied within the
scope of confidentiality and time limit thereof as agreed in the
contract.
Within the time of confidentiality, the obligation of one party
to confidentiality shall terminate immediately after the confidential
technology is disclosed for reasons not of his or its own.
Article
27. Within
the term of validity of a contract for technology import, an achievement
made in improving the technology concerned belongs to the party
making the improvement.
Article
28. After
a technology import contract expires, the technology supplying and
receiving parties thereto may negotiate on the continued use of
the technology according to the principle of justice and equity.
Article
29. A
technology import contract shall not contain any of the following
restrictive clauses:
(1) requiring the receiving party to accept any additional condition
unnecessary for the technology import, including buying any unnecessary
technology, raw material, product, equipment or service;
(2) requiring the receiving party to pay exploitation fee for a
technology when the term of validity of the patent right in which
has expired or the patent right of which has been invalidated, or
to undertake other relevant obligations;
(3) restricting the receiving party from improving the technology
supplied by the supplying party, or restricting the receiving party
from using the improved technology;
(4) restricting the receiving party from obtaining technology similar
to that supplied by the supplying party from other sources or from
obtaining a competing technology;
(5) unduly restricting the receiving party from purchasing raw material,
parts and components, products or equipment from other channels
or sources;
(6) unduly restricting the quantity, variety, or sales price of
the products the receiving party produces; or
(7) unduly restricting the receiving party from utilizing the channel
for exporting products manufactured using the imported technology.
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Chapter
III Administration of
Technology Export
Article
30. The
State encourages exporting well-developed industrialized technology.
Article
31. Any
technology that falls under any of the provisions of Articles
16 or 17 of the Foreign Trade Law is prohibited or restricted
from export. The competent foreign trade department under the
State Council shall, in conjunction with other relevant departments
under the State Council, formulate, regulate and publish catalogues
of technologies which are prohibited or restricted from export.
Article
32. Technology
prohibited from export shall not be exported.
Article
33. Technology
restricted from export shall be subject to license administration;
and shall not be exported without a license.
Article
34. To
export any technology restricted from export, an application shall
be filed with the competent foreign trade department under the
State Council.
Article
35. The
competent foreign trade department under the State Council shall,
after receipt of a technology export application, examine the
technology in respect of which application for export is filed
in conjunction with the science and technology administrative
department under the State Council, and decide on approval or
disapproval within thirty working days from the date of receipt
of the application.
Where a technology restricted from export requires confidential
examination by the relevant department, the relevant regulations
of the State shall be complied with.
Article
36. Where
an application for technology export is approved, the competent
foreign trade department under the State Council shall issue a
letter of intent for licensing the technology export. After obtaining
the letter of intent for licensing the technology export, the
applicant may begin substantive negotiation, and conclude a contract
for the technology export.
Article
37. After
concluding a technology export contract, the applicant shall submit
to the competent foreign trade department under the State Council
the following documents in applying for a license for the exporting
technology:
(1) a letter of intent for licensing the technology export;
(2) a copy of the technology export contract;
(3) a list of technical information relating to the export; and
(4) any regulatory document certifying the legal status of the
two parties to the contract.
The competent foreign trade department under the State Council
examines the authenticity of the technology export contract, and
decides, within fifteen working days from the date of receipt
of the documents provided for in the preceding provision, on approval
or disapproval of the technology export.
Article
38. Where
a technology is licensed for export, the competent foreign trade
department under the State Council issues the technology export
license. The contract for technology export takes effect on the
date of issuance of the technology export license.
Article
39. Freely
exportable technology shall be subject to the contract registration
administration. A contract for exporting a technology takes effect
from the time when the contract is established according to law
without taking the registration thereof as a condition for the
contract to be effective.
Article
40. When
a freely exportable technology is to be imported, registration
shall be made with the competent foreign trade department under
the State Council, and the following documents submitted:
(1) an application for registration of the technology export contract;
(2) a copy of the technology export contract; and
(3) any regulatory document certifying the legal status of the
contracting parties.
Article
41. The
competent foreign trade department under the State Council shall,
within three working days from the date of receipt of the documents
provided for in Article 40 of these Regulations, register the
technology export contract, and issue the certificate of the registration
of technology export.
Article
42. Applicants
shall use the technology export license or certificate of registration
of the technology import contract to go through the foreign exchange,
banking, taxation and customs formalities.
Article
43. Where
a technology import contract licensed or registered according
to the provisions of these Regulations is changed in terms of
the main contents thereof, the formalities shall be gone through
once again for the license or registration thereof. Any licensed
or registered technology export contract which has terminated
shall be submitted to the competent foreign trade department under
the State Council for filing.
Article
44. The
competent foreign trade department under the State Council, other
relevant departments and the employees thereof shall be under
the obligation to keep confidential the trade secret they get
to know when performing their functions and duties of technology
import and export administration.
Article
45. Exporting
a nuclear technology, a relevant technology of nuclear products
for both military and civil purposes, a technology for supervising
or monitoring the manufacture of chemicals, a technology for military
purposes, or any other technology under export control shall be
conducted pursuant to the relevant administrative laws and regulations.
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Chapter
IV Legal Liabilities
Article
46. Where
a technology prohibited or restricted from import and export
is imported or exported without approval shall be prosecuted
for criminal liability according to the provisions for the crimes
of smuggling, illegal business operation, or divulging national
secrets or other crimes under the Criminal Law. Where such import
or export is not so serious as to be prosecuted for criminal
liability, penalty shall be imposed according to the circumstances
pursuant to the relevant provisions of the Customs Law, or the
competent foreign trade department under the State Council issues
a warning against it, confiscates illegal income and/or imposes
a fine one to five times the illegal income. The competent foreign
trade department under the State Council may revoke the foreign
trade business license.
Article
47. Any
act of importing or exporting technology restricted from import
or export by exceeding the scope of business licensed shall
be prosecuted for criminal liability according to the provisions
for the crime of illegal business operation, or other crimes
under the Criminal Law. Where the act of import or export is
not so serious as to be prosecuted for criminal liability, penalty
shall be imposed according to the circumstances pursuant to
the relevant provisions of the Customs Law, or the competent
foreign trade department under the State Council issues a warning
against it, confiscates illegal income and/or imposes a fine
one to three times the illegal income. The competent foreign
trade department under the State Council may suspend, and even
revoke, the foreign trade business license.
Article
48. Any
act of forging, mutilating, selling or buying technology import
and export licenses or certificates of registration of contract
for technology import and export shall be prosecuted for criminal
liability according to the provisions for the crime of illegal
business operation, or for the crimes of forging, mutilating,
selling or buying official documents, certificates, and seals
of State authority under the Criminal Law. Where the act of
import or export is not so serious as to be prosecuted for criminal
liability, penalty shall be imposed according to the circumstances
pursuant to the relevant provisions of the Customs Law. The
competent foreign trade department under the State Council may
revoke the foreign trade business license.
Article
49. Where
a technology import and export license is acquired by fraudulent
or any other illegal means, the competent foreign trade department
under the State Council shall cancel the technology import and
export license, and suspend and even revoke the business license
for foreign trade.
Article
50. Where
a contract for technology import and export is registered by
fraudulent or any other illegal means, the competent foreign
trade department under the State Council shall cancel the certificate
of registration of contract for technology import and export,
and suspend and even revoke business license for foreign trade.
Article
51. Any
employee of technology import and export administration acts
in violation of the provisions of these Regulations, divulges
any State secret or trade secret known to him shall be prosecuted
for criminal liability according to the provisions for the crime
of divulging State secret or infringing trade secret under the
Criminal Law. Where the act is not so serious as to be prosecuted
for criminal liability, he shall be imposed the administrative
penalty according to law.
Article
52. Any
employee of technology import and export administration who
abuses his official power, ignores his duty, or takes advantage
of his official position to seek or seize financial and property
gains from others shall be prosecuted for criminal liability
according to the provisions for the crime of abusing official
power, ignoring duty, taking bribe, or any other crime under
the Criminal Law. Where the act is not so serious as to be prosecuted
for criminal liability, he shall be imposed the administrative
penalty according to law.
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Chapter
V Supplementary Provisions
Article
53. Any
one who is dissatisfied with a decision made by the competent
foreign trade department under the State Council on a matter
of approval, license, registration of, or administrative penalty
in respect to, technology import and export may apply for
administrative reconsideration, or institute legal proceedings
in the People's Court according to law.
Article
54. Where
the provisions of the regulations on technology import and
export formulated by the State Council before the issuance
of these Regulations and those of these Regulations are not
consistent, these Regulations prevail.
Article
55. These
Regulations enter into force on 1 January 2002. The Regulations
of the People's Republic of China on Administration of Technology
Introduction Contracts issued by the State Council on 24 May
1985 and the Implementing Regulations of the Regulations of
the People's Republic of China on Administration of Technology
Introduction Contracts approved by the State Council on 30
December 1987 and issued by the Ministry of Foreign Trade
and Economic Cooperation on 20 January 1988 are simultaneously
abrogated.
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