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2. The administration of the Import and Export of Technologies
In the past, the import of technologies into China was regulated by Regulations on Administration of Contract of Technology Import and its implementing rules, and the export of technologies was governed mainly by some departmental rules and internal documents. Such administrative system was far behind the time in that China’s development asked for a uniform and convenient technology-transfer legal platform, so the government unified the administration of the import and export of technologies and promulgated Regulations on the Import and Export of Technologies (hereinafter as the Technologies Regulations) to replace numerous out-of-time rules.
The particulars may be summarized as follows:
(1) The Technologies Regulations unify the administration of import and export of technology and make it more integrated. According to Foreign Trade Law and Technologies Regulations, the administration of technology import and export is carried out in three categories: free, restricted and prohibited. With regard to technologies of free trade, no permission or approval is necessary as before , and although the registration of technology contracts is still required, such registration is not a requirement for the validity of contract. This seems convenient both for enterprises and information statistics . With respect to technologies subject to restricted trade, license applies. Also, the competent departments in charge of foreign trade (MOFTEC) together with other relevant competent departments shall formulate, adjust and promulgate the catalogue of technologies subject to restriction or prohibited trade administration.
(2) The Technologies Regulations stipulate some mandatory provisions concerning the import contract in Article 24, 25, 26 and 27, which put requirements on the technology endorser . At the same time, some former limitations were removed, such as:(a) the abolishment of the old stipulation that the period of technology contract shall be no longer than 10 years; (b) the replacement of technologies imported must be advanced technologies with the State encourages to import advanced technologies; and(c) the change of provisions in the former implementing rules that the period of keeping secret generally may not exceed the period of the contract with new provisions that parties have duty to keep secret the undisclosed part of the technologies provided by the endorser in accordance with the scope and period of keeping secret agreed in the contract.
In respect to a certain unreasonable clauses usually coming up in the Sino-foreign technology-transfer contracts, Article 29 of the Technologies Regulations provides that seven clauses are forbidden in contracts. Also the Technologies Regulations require the endorser of technology shall guarantee his lawful rights to transfer the technology and shall bear the liabilities once the transferred technology was accused to breach the legitimate rights of a third party although the Chinese endorsee has followed the technology-transfer contract.
The same as the Goods Regulations, the Technologies Regulations do not applied to technologies under export control.
3. New Anti-dumping Law System
On March 25, 1997, PRC Anti-dumping and Countervailing Regulations were finally promulgated . In order to meet the need of WTO accession and better protect the domestic industries against unfair trade practices, MOFTEC and SETC proposed to make amendments to the former regulations and enact regulations on antidumping and countervailing separately. The State Council accepted such proposal, and after necessary legislative works in the Office of Legal Affairs of the State Council the Regulations on Anti-dumping (hereinafter as the Antidumping Regulations) and Regulations on Countervailing (hereinafter as the Countervailing Regulations) came up.
The Antidumping Regulations generally comply with the WTO antidumping rules. Many practical methods in EU and US antidumping laws were introduced in the regulations, and in terms of its structure and provisions the Antidumping Regulations are similar to its overseas equivalents to great extent. The main features of changes to the former antidumping regulations exist in the following:
(1) The procedures of antidumping initiation, investigation and decision-making were improved and the procedure of judicial review was added. The former regulations did not contain judicial review procedure, and such absence suffered much criticismform home and aboard. The new provision on judicial review provides that parties not satisfied with the final ruling and order of anti-dumping tax imposition may file a lawsuit at the competent people’s courts.
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