(a) a enterprise with foreign investment within the territory of the borrower subject to qualification bank loan problems.

    According to the "loan general" provisions of article seventeenth, "the borrower shall be approved by the administrative department for Industry and commerce registration of enterprises (thing) with full civil capacity of natural persons, legal persons or other economic organizations industry, individual industrial and commercial households or the nationality of the people's republic." Thus,The identity of domestic commercial banks on corporate borrowers defined as long as is a legally registered legal person can be China.Enterprises with foreign investment properties also belongs to the China legal or non legal person, the borrower has the legal subject qualification.

    Foreign property of a enterprise with foreign investment itself whether there is any effect on its territory, to bank loans to enterprises with foreign investment at present, no special distinction or distinction policy of state-owned banks in this regard most. The workers and peasants in the construction of the four major state-owned banks, at present only Chinese Agricultural Bank of the introduction and implementation of the special lending policies - "China Agricultural Bank of enterprises with foreign investment of RMB loans management pilot scheme", according to the regulations, enterprises with foreign investment as the borrower shall have a business license, registered capital to pay, and the legal capital verification. Read through the bank loans, can find the special requirements of enterprises with foreign investment, are embodied in the requirements of foreign investment enterprises to pay the registered capital, the remaining requirements of enterprises with foreign investment itself little relevance. And several other large banks have abolished the special loan provisions, such as Chinese bank "China bank loans to foreign-invested enterprises" and "implementation rules", in2000Abolish. Other commercial banks also did not have such special measures and the most standard.

(two) of the foreign investment enterprise to the legal regulation of domestic bank borrowing purposes

   (1Enterprises with foreign investment) whether the loan can be used for equity investment    

    According to the "loan general" stipulated in article twentieth, the loan shall not be used for equity investment.That is to say whether it is domestic funded enterprises or enterprise with foreign investment are not bank loans for equity investment.Foreign invested enterprises, for equity investment funds, in addition to outside shareholders of the foreign capital, according to the relevant provisions of the law, but also the territory of foreign investment enterprises obtain the renminbi profits into share capital.

   (2Enterprises with foreign investment) whether the bank loans can be used as a source of funds to pay its share capital.

   According to the relevant provisions of the foreign funded enterprises, foreign-invested enterprises in foreign currency or monetary contribution must be legally acquired RMB yuan investment, investment, is currently limited to outside investment in the territory of China RMB profits, for advance recovery of investment, liquidation, equity transfer, capital reduction, RMB funds. So the name to the domestic bank loan to pay the registered capital, the law is difficult to break through. But Chinese investors obtain the name of loans should in principle can be used for the payment of registered capital, such as the Agricultural Bank of China "enterprises with foreign investment of RMB loans management pilot scheme," the provisions of article seventh, the Sino foreign joint ventures, cooperative enterprises Chinese shareholder loans, for its stake in registered capital shortage capital required. But the actual loan applications, respectively according to the fixed asset loans and liquidity loans have issued.

    (3) commercial loans, foreign investment company special legal provisions of.

   On the investment of foreign investment companies, according to the "on the further perfection of the relevant management measures of foreign investment companies notice" (capital letter [2011]1078The second regulation No.),"Domestic loans, foreign investment companies shall not be used for domestic investment again",That is to sayThe foreign company investment loans to domestic banks, not only for equity investment, nor any other form used in domestic investment.

(three) the legal feasibility and operation of enterprises with foreign investment of RMB loans of foreign guarantee

   Basis"The State Administration of foreign exchange on2005Notice on foreign bank short-term foreign debt quota of the approved work"(Huifa[2005]4No.)Regulations.The territory of the designated foreign exchange banks including Chinese funded banks and foreign banks to extend Renminbi loans to enterprises with foreign investment in China can accept overseas institutions to provide guarantee.Therefore, enterprises with foreign investment to domestic banks to borrow loans provide overseas guarantee is feasible in law.

   Need to pay attention to is, foreign investment enterprises with foreign guarantee domestic loans, requires registration, and included in the betting difference. According to the regulations of Huifa [2005] 4,Enterprises with foreign investment for overseas institutions to ensure the RMB loan need to go to the local foreign exchange bureau for"Overseas assurance under RMB loans or debt registration form"Hereinafter referred to as"Or debt registration form"And for the relevant registration procedures."The short-term foreign debt, foreign exchange bureau for examination by foreign investment enterprises borrow amount of medium and long-term external debts andForeign institutions guaranteed under the balance of RMB loans andDo not exceed the total amount of investment and the registered capital after the difference can be the formalities of registration. More than the total investment and the registered capital balance shall not register."

   On the registration, according to"Notice of the State Administration of foreign exchange on improving the administration of foreign debts"(Huifa[2005]74No.)Regulations,Under domestic loan guaranteed by the debtor shall accept overseas registration to creditors of registration at. Domestic financial institutions issuing the foreign currency loans to enterprises with foreign investment, such as accepting overseas institutions or individuals to provide security including the notice issued not yet due or extension of the warranty,In the beginning of each month10Working days to the local foreign exchange bureau reported "loans under external guarantees and the performance circumstance registration form".

   At the same time, according to the meeting[2005]74Hao WenRegulations.Under domestic loan guarantee by overseas according to contract volume changed to incorporate external debt management according to the contract amount. Accept overseas guarantee guarantee debtor shall occur in the future15The foreign exchange bureau for foreign debt registration in the foreign debt scale according to the following principles of management in enterprises accumulated amount of long-term debt, short-term foreign debt and foreign organizations and individuals according to the actual amount of guarantee performance of foreign debt balance calculation and shall not exceed the balance of capital and the total investment and registered to the days (i.e."Betting difference")."Notice of the State Administration of foreign exchange on RMB loans secured by foreign exchange related issues"Is to further clarify the enterprises with foreign investment foreign guarantee registration as well as the RMB loans"Betting difference"Review and possible legal liability of administrative punishment.

Practice due to confuse short-term liquidity loans for foreign-funded enterprises in China use not and project investment capital property, is the business and financing activities of normal, domestic or foreign banks are attractive. A common practice for bank loans is the borrower or its shareholders additional requirements issued by the commitment to properly resolve"Betting difference"The problem does not affect the rights of bank.

The authors practice unit: Guangdong Chinese law firm  

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