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II The Restructure of Trade Legal System
The governing law on China’s foreign trade is PRC Foreign Trade Law, which was adopted in 1994 by the Standing Committee of NPC . This law stipulates the general principles, the import and export of goods and technologies and trade in services. However, because many provisions in the Foreign Trade Law are too general to be applied directly to specific cases, in practice China’s foreign trade is much regulated by a great deal of regulations, departmental rules and other regulatory documents which derive form the Foreign Trade Law. Due to the requirements of WTO agreements, and its desires to take full advantages of WTO rules to keep the normal trade order as well, the Chinese government revised a considerable number of existing regulations and rules, and promulgated a set of new ones concerning the import and export. To name several important ones here: regulations on the import and export of Goods, regulations on the import and export of technologies, regulations on antidumping, regulations on countervailing and regulations on safeguards, all of which came into force as of the same day: 1 January 2002 .These regulations played an important role in China’s import and export, and implied the development direction of the administration of international trade.
1. The administration of the import and export of goods.
In accordance with Foreign Trade Law, the State Council promulgated Regulations on the Import and Export of Goods (hereinafter referred to as the Goods Regulations). The Goods Regulations replaced the former Provisional Regulations on the License of Import Goods and other four administrative regulations and documents on import and export. The particulars of the Goods Regulations are as follows:
(1) According to the Goods Regulations, the administration of import consists of free import, restricted import, prohibited import and import subject to Tariff Rate Quota (“TRQ”). Generally, goods of free import are not restricted , but in need of monitoring, a part of commodities of free import should be subject to the administration of automatic import license, which means any application for such license is deemed to be approved. As to goods subject to quantitative limitation, quota is applied, while other restricted commodities are subject to license administration. Furthermore, there are clear rules on the promulgation of catalogues of goods subject to automatic import license, limited import and prohibited import, the application and distribution of quota, the application, distribution and recording of tariff-rate quota, etc.
The administration of export is classified into two parts: restricted and prohibited, which are similar to the administration of import in terms of procedures.
(2) The Goods Regulations prescribe state trading and designated trading. Competent departments shall promulgate the catalogues of commodities and enterprises engaged in state trading and designated trading. However, with regard to the commodities subject to state trading, the state shall allow non-state traders to engage in the import and export of that commodity up to a certain amount .
(3) The Goods Regulations stipulate that the state could take relevant provisional measures to restrict import under certain circumstances, such as in order to keep balance of international payments, or to establish or speed up the establishment of certain domestic industries, etc. The Chinese government believes that these provisions related with provisional measures comply with the WTO rules .
With regard to trading rights , the Chinese government promised to eliminate the system of examination and approval within three years after WTO accession. So in the Goods Regulations there is no provision concerning trading rights. After the elimination of the former system, China may adopt a system of registration for obtaining trading rights and it is said that MOFTEC is considering rules to regulate the registration procedures for obtaining trading rights.
What shall be mentioned here is that the Goods Regulations do not apply to the export of some special goods--such as goods for military purpose, nuclear-related products, missile-related products and other subjects under the special control of the state. These subjects concern the international anti-proliferation obligations and are much political-sensitive, so the state has special regulations on the export of these subjects. Any subjects within the mandate of these special regulations, no matter for military usage or for civil usage, must follow special approval formalities for exports.
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