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Chapter I General Principles
Article 1 These regulations are formulated in accordance with the Foreign Trade Law of the People's Republic of China (hereinafter "Foreign Trade Law") and other relevant laws and regulations in order to provide rules for the administration of import and export of technologies, safeguard the order of import and export of technologies and promote national economic and social development.
Article 2 Import and export of technologies in these Regulations refer to the transfer of technologies from outside of the People's Republic of China (hereinafter "PRC") into PRC or from inside of PRC to outside of PRC by way of foreign trade, investment, or economic or technological cooperation.
Such transfer includes assignment of patent rights or rights to apply for patents, licensing of rights to implement patents, assignment of technical know-how, technical service and etc.
Article 3 The State adopts a unified system for the administration of import and export of technologies in order to safeguard fairness and freedom of import and export of technologies.
Article 4 Import and export of technologies should be conducted in accordance with the industrial, technological and social development policies of the State and in the interest of the scientific and technological progress and the development of economic and technological cooperation between China and other countries, and of the protection of the economic and technological rights and interests of China.
Article 5 The State permits free import and export of technologies unless otherwise forbidden by laws and administrative regulations.
Article 6 The competent department of Foreign Trade and Economic Cooperation under the State Council (hereinafter "the competent department under the State Council") has the responsibility to administer the import and export of technologies of the whole country in accordance with the Foreign Trade Law and these Regulations. The competent departments in charge of foreign trade and economic cooperation under the People's Governments of provinces, autonomous regions, municipalities under the direct control of the Central Government have the responsibility to administer the import and export of technologies within their administrative areas.
Other relevant authorities under the State Council shall also have the responsibility to administer projects of importing and exporting of technologies in accordance with regulations of the State Council.
Chapter II Administration of Import of Technologies
Article 7 The State encourages the import of advanced and useful technologies.
Article 8 Import of technologies which fall within the scope of Article 16 of the Foreign Trade Law shall be prohibited or restricted.
The competent department under the State Council shall, together with other relevant authorities under the State Council, formulate, readjust and publish the Catalogue of Prohibited or Restricted Import Technologies.
Article 9 Technologies that are prohibited from being imported shall not be imported.
Article 10 Technologies that are subject to restricted importation can be imported only with licenses.
Article 11 To import technologies that are restricted in being imported, an application shall be submitted to the competent department under the State Council together with supportive documents.
In case a prior approval for import of technologies is needed, the approval documents of the relevant authorities shall also be submitted.
Article 12 Upon receiving the application, the competent department shall review the application together with the relevant authorities under the State Council, and shall decide to approve or disapprove the application within 30 working days of receiving the application.
Article 13 If the application is approved, the competent department under the State Council shall issue a Preliminary License for import of technologies.
The importer of the technologies may enter into contracts of import of technologies upon obtaining the Preliminary License.
Article 14 Upon signing the contract of import of technologies, the importer shall submit copies of the contract, together with other supportive documents, to the competent department under the State Council in order to apply for a License of Import of Technologies.
The competent department under the State Council shall, upon reviewing the authenticity of the contract, decide to grant or not to grant the License of Import of Technologies within 10 working days of receiving the above the documents.
Article 15 The importer may, when submitting the application to the competent department under the State Council in accordance with Article 11 of these Regulations, also submit copies of the contract of import of technologies which are already signed.
The competent department under the State Council shall review both the application and the authenticity of the contract, and shall decide to grant or not to grant the License within 40 working days of receiving the above documents.
Article 16 If deciding to grant the License, the competent department under the State Council shall issue the License of Import of Technologies. The contract of import of technologies shall be effective upon the date when the License is issued.
Article 17 Technologies that can be imported freely may be imported only by registering the import contracts.
The contracts of import of technologies that can be imported freely shall become effective in accordance with the law and shall not be subject to the registration of the contracts.
Article 18 To import technologies that can be imported freely, the following documents shall be submitted to the competent department under the State Council for purpose of registration of the contract of import of technologies:
(1) An application letter,
(2) Copies of the contracts of import of technologies,
(3) Documents evidencing the legal status of the contractual parties.
Article 19 The competent department under the State Council shall register the contract and issue registration certificate within 3 days of receiving the documents listed in Article 18.
Article 20 The importer shall present the License or the registration certificate in order to go through the formalities at the authorities of foreign exchange, banking, taxation and customs.
Article 21 In case revision is made to the main content of the contract of import of technologies for which a License or a registration certificate has been obtained, the importer is required to apply for a new License or a new registration certificate.
The termination of a contract of import of technologies for which a License or a registration certificate has been obtained shall be recorded at the competent department under the State Council.
Article 22 In case a technology is imported by the foreign party as investment in a foreign-invested enterprise, the contract of import of technologies shall be reviewed or registered in accordance with the procedure for approval of the establishment of foreign-invested enterprises.
Article 23 The competent department under the State Council and other relevant authorities under the state Council as well as their employees shall have the obligation to keep confidential the commercial secrets they have obtained in the process of handling applications for import of technologies.
Article 24 The assigner or licensor of a contract of import of technologies shall guarantee that it is the lawful owner of the said technologies and therefore has the right to assign or license the technologies.
The assignee or licensee of a contract of import of technologies shall use the technologies pursuant to the contract. Upon being charged for infringing upon the rights of a third party, it shall immediately notify the assigner or the licensor, who shall, upon being notified, assist the assignee or the licensee to remove the obstruction.
Article 25 The assignor or licensor of a contract of import of technologies shall guarantee that the technologies it provides are complete, correct, effective and meet the target agreed upon in the contract.
Article 26 The assignor or licensor and the assignee or licensee of a contract of import of technologies shall have the obligation to keep confidential the secret information concerning the technologies which has not been made public pursuant to the scope and term of confidentiality as agreed upon in the contract.
During the term of confidentiality, if the confidential information concerning the technologies is made known to the public not for the reason of the party who is obliged to keep such information confidential, the party's obligation of confidentiality shall immediately terminate.
Article 27 Upon expiration of a contract of import of technologies, the assignor or licensor and the assignee or licensee shall, in accordance with the principle of fairness and reasonableness, agree on the continued use of the technology.
Chapter III Administration of Export of Technologies
Article 28 The State encourages the export of mature technologies which are ready for industrialization.
Article 29 Export of technologies which fall within the scope of Article 16 of the Foreign Trade Law shall be prohibited or restricted.
The competent department under the State Council shall, together with other relevant authorities under the State Council, formulate, readjust and publish the Catalogue of Prohibited or Restricted Export Technologies.
Article 30 Technologies which are prohibited from being exported shall not be exported.
Article 31 Export technologies which are subject to restriction can be exported only with a license and shall not be exported without a license.
Article 32 To export technologies which are restricted to be exported, an application shall be submitted to the competent department under the State Council together with supportive documents.
Article 33 Upon receiving the application, the competent department under the State Council shall review the application together with the relevant authorities under the State Council in charge of scientific and technological work, and shall decide to approve or disapprove the application within 30 working days of receiving the application.
In case a confidentiality review by relevant authorities is needed for exporting a restricted technology, such a confidentiality review shall be made in accordance with relevant State regulations.
Article 34 If the application is approved, the competent department under the State Council shall issue a Preliminary License for export of technologies.
The exporter of the technologies may enter into substantive negotiation and sign contracts of export of technologies only upon obtaining the Preliminary License.
Article 35 Upon signing the contract of export of technologies, the exporter shall submit the following documents to the competent department of the State Council, to apply for a License of Export of Technologies.
(1) The Preliminary License for Export of Technologies;
(2) Copies of the contracts of export of technologies;
(3) List of technological documents to accompany the export;
(4) Documents evidencing the legal status of the contractual parties.
The competent department under the State Council shall, upon reviewing the authenticity of the contract, decide to grant or not to grant the license for export within 15 working days of receiving the above the documents.
Article 36 If deciding to grant a license of export, the competent department under the State Council shall issue a License of Export of Technologies. The contract of export of technologies shall be effective upon the date when the License is issued.
Article 37 Export of Technologies which can be exported freely shall only need registration of the export contracts.
The contracts of export of technologies which can be exported freely shall become effective in accordance with law and shall not be subject to the registration of the contracts.
Article 38 To export technologies which can be exported freely, the following documents shall be submitted to the competent department under the State Council for purpose of registration:
(1) An application letter;
(2) Copies of the contracts of import of technologies;
(3) Documents evidencing the legal status of the contractual parties.
Article 39 The foreign trade and economic cooperation department of the State Council shall register a technology export contract and issue the registration certificate for the technology export contract within three working days from the date of receipt of the documents listed in Article 38 of this Regulation.
Article 40 The exporter shall present the license or the registration certificate of export of technologies in order to go through the formalities at the authorities of foreign exchange, banking, taxation and customs.
Article 41 In case that revision should be made to the main content of the contract of export of technologies for which a license or a registration certificate has been obtained, the exporter is required to apply for a new license or a new registration certificate.
The termination of a contract of export of technologies for which a license or a registration certificate has been obtained shall be recorded at the competent department under the State Council.
Article 42 The competent department under the State Council and other relevant authorities under the state Council as well as their employees shall have the responsibility to keep confidential the State or commercial secrets they have obtained in the process of handling applications for export of technologies.
Article 43 Export of nuclear technologies, dual-use nuclear technologies, technologies concerning production of controlled chemicals, controlled military technologies for export shall be regulated by relevant administrative regulations.
Chapter IV Legal Responsibilities
Article 44 Persons or organizations that import or export technologies which fall within the Catalogues of Prohibited Import and Export Technologies, or that import or export the technologies which are restricted from import or export without licenses shall face criminal charges of smuggling, illegal business activities, divulgence of State secrets or other crimes . In case the illegal conduct is not serious enough to constitute a crime, the person or organization shall be sanctioned according to the Customs Laws and regulations or receive a warning from the competent department under the State Council and its illegal profits shall be confiscated and a fine of one to five times of the illegal profits be imposed. In addition, the competent department under the State Council may revoke the right of the person or the organization to engage in activities of foreign trade.
Article 45 Persons or organizations that import or export out of their licensed scope the technologies which are restricted from import or export shall face criminal charges of illegal business activities or other crimes . In case the illegal conduct is not serious enough to constitute a crime, the person or organization shall be sanctioned according to the customs laws and regulations or receive a warning from the competent department under the State Council and its illegal profits shall be confiscated and a fine of one to three times of the illegal profits be imposed. In addition, the competent department under the State Council may suspend or even revoke the right of the person or the organization to engage in activities of foreign trade.
Article 46 Persons or organizations that forge, alter, buy or sell licenses of import or export of technologies or registration certificates of contracts of import or export of technologies shall face criminal charges of illegal business activities or forgery, alteration or buying and selling of official documents, certificates, seals and stamps of State organs. In case the illegal conduct is not serious enough to constitute a crime , the person or organization shall be sanctioned according to the customs laws and regulations, or the competent department under the State Council may suspend or even revoke the right of the person or the organization to engage in activities of foreign trade.
Article 47 Persons or organizations that obtain licenses of import or export of technologies by cheating or by other illegal means shall have their licenses revoked by the competent department under the State Council and their rights to engage in activities in foreign trade may be suspended or even revoked.
Article 48 Persons or organizations that obtain registration certificates for contracts of import or export of technologies by cheating or by other illegal means shall have their certificates revoked by the competent department under the State Council and their rights to engage in activities of foreign trade may be suspended or even revoked.
Article 49 Employees in charge of the administration of import or export of technologies who violate these regulations by divulging State or commercial secrets shall face criminal charges of divulging State Secrets or encroaching upon commercial secrets. If the illegal activity is not serious enough to constitute a crime , the employees shall be subject to administrative disciplinary actions.
Article 50 Employees in charge of the administration of import or export of technologies who abuse or neglect their power, or accept or solicit bribes by taking advantage of their positions shall face criminal charges of abusing or neglecting power, bribery or other crimes. If the illegal activities are not serious enough to constitute a crime , the employees shall be subject to administrative disciplinary actions.
Chapter V Miscellaneous
Article 51 Persons or organizations who do not agree with the decision of the competent department under the State Council on the approval, granting of licenses, registration or administrative sanctions may apply for administrative reviews or raise litigation at the court in accordance with the law.
Article 52 In case there is any contradiction between these regulations and any provision previously formulated by the State Council concerning import or export of technologies, these Regulations shall prevail.
Article 53 These Regulations shall enter into force on January 1, 2002. The Regulations on the Administration of Contracts of Import of Technologies published by the State Council on May 24, 1985 and the Detailed Rules for the Implementation of the Regulations on the Administration of Contracts of Import of Technologies approved by the State Council on December 30, 1987 and published by the Ministry of Foreign Trade and Economic Cooperation on January 20, 1988 shall be abolished.
Source: MOFCOM
