Comments on the Amendments to the Administrative Measures for the Registration of Technology Import and Export Contracts (2009)

Author: Ni Jia [Shanghai Runhe Law Firm]

According to the Regulations of the People's Republic of China on Administration of Import and Export of Technologies, the Commerce Department promulgated the amended Administrative Measures for the Registration of Technology Import and Export Contracts (hereinafter referred to as Administrative Measures) by the 3rd Order of 2009 on February 1, 2009, which will come into effect in 30 days after it is promulgated. The Administrative Measures for the Registration of Technology Import and Export Contracts (Order No.17 [2001] of the former Ministry of Foreign Trade and Economic Cooperation) shall be abolished simultaneously.

The amended Administrative Measures is mainly modified on the following aspects:

1. About the Management System of the Registration of Technology Import and Export Contracts:
According to Article 4 and 5 of the old and new Administrative Measures, we find that the new Administrative Measures has deleted relevant regulations on major project which is replaced by regulations which designate the Commerce Department in charge of Investment Project List Which is Approved by the Government and the project invested by the government

2. About the Effectiveness and the Term of Registration of the Technology Import and Export Contract:
The effectiveness and the term of registration of the Technology Import and Export Contract have been specified by the amended Administrative Measures. For details: Contracts on freely imported and exported technologies shall become effective upon their legal formation.  A technology importer or exporter shall handle the contract registration formalities within 60 days after the contract becomes effective, unless the contract provides for drawing a percentage as the mode of payment. For a contract providing for drawing a percentage as the mode of payment, the technology importer or exporter shall handle the contract registration formalities within 60 days after the initial base amount for drawing a percentage is formed, and thereafter, shall handle the contract modification formalities each time after the base amount for drawing a percentage is formed.

3. About the on-line registration management to contracts on freely imported and exported technologies.
The amended Administrative Measures also modified the registration management to freely technology import and export contracts. According to Article 8 of the amended Administrative Measures: A technology importer or exporter shall log on the “Information Management System for Technology Import and Export Contracts” on the governmental website of the Ministry of Commerce (jsjckqy.fwmys.mofcom.gov.cn) to register its contract, and shall handle the contract registration formalities at the competent administrative department of commerce upon the strength of an application form for technology import or export contract registration, a duplicate of the technology import or export contract (including the Chinese version thereof) and the certificates on the legal status of both parties to the contract. The competent administrative department of commerce shall, within three workdays after receiving the above-mentioned documents, check the contract registration contents and issue a Technology Import Contract Registration Certificate or a Technology Export Contract Registration Certificate to the technology importer or exporter.

4. About the Formalities of the Contract Modifications:
The amended Administrative Measures has supplemented relevant regulations of handling alteration of the Contract. According to Article 12 of the amended Administrative Measures: to handle the contract modification formalities, the technology importer or exporter shall log on the “Information Management System of Technology Import and Export Contracts” to fill out a contract data modification record, and handle the modification formalities at the competent administrative department of commerce upon the strength of the contract modification agreement and the contract data modification record. The competent administrative department of commerce shall handle the contract modification formalities within three days after receiving complete application materials for modification.

Above all, the amendments on the Administration Regulations specified the administrative management system of technology import and export contract, the exercising of administrative power, the way of registration management and the operation of modification formalities, which is more perfect and operatable compared with the former Administrative Measures no matter from the aspect of administration management or practical operation.