(Promulgated by the Ministry of Justice of the People's Republic of China, and put into force as of September 1, 2002.)
Chapter One General Principles
Article 1. These Rules have been formulated with a view to implementing the Administrative Regulations on Representative Offices of Foreign Law Firms in China (hereinafter referred to as "Regulations" and carrying out the administrative duties of the judicial and administrative departments over foreign law service activities in the Chinese territory.
Article 2. Foreign law firms as mentioned in these Rules refer to certified law offices that are established lawfully outside the Chinese territory, are composed of foreign certified lawyers, engage in law service activities other than Chinese law affairs, are independent externally, and have all or some of their members shoulder civil liabilities, except under the following circumstances:
(1)
Being law service departments of foreign governments, commercial organizations or other organizations;
(2)
Being certified united entities composed of two or more foreign certified lawyers or law offices that do not share profits and do not shoulder risks.
Article 3. Foreign certified lawyers as mentioned in these Rules refer to persons that have lawfully obtained foreign certified qualification as a lawyer and have a legal business license in the country where the certified qualification was obtained.
Chapter Two Establishment and Registration of Representative Offices
Article 4. "Having actual need of establishing a representative office in China to undertake law services"as provided in item (3) of Article 7 of the Regulations shall be certified according to the following factors:
(1)
Social and economic developments in the place where the representative office is to be established;
(2)
Development need for law service in the place where the representative office is to be established;
(3)
The scale, founding date, main business fields and professional specialties of the applicant, analysis of the business prospects of the representative office to be established, and plans for future business development;
(4)
Restrictive provisions of Chinese laws and regulations on engaging in special law service activities and affairs.
Article 5. "An application for establishment of the representative office and the representative to be sent that is signed by the chief of the said foreign law office"as provided by item (1) in the first paragraph of Article 8 of the Regulations shall include the following contents:
(1)
The name in Chinese and foreign language of the representative office to be established, and the name of the city where the representative office will be located;
(2)
The basic conditions of the applicant, including the time of opening, the number of lawyers, the number of partners, the business scope, main performances, the conditions about subsidiaries or representatives established in other countries or regions, the business activities related to China, the address of the head office, the method of communications, etc.;
(3)
The organizational form of the applicant and the form of shouldering legal liabilities;
(4)
The amount and scope of business risk insurance bought by the applicant;
(5)
Feasibility analysis of the business prospects of the representative office to be established and the development plans, and the scope of main business of the representative office to be established;
(6)
A commitment to shoulder all civil liabilities for the law service activities in the Chinese territory carried out by the representative office to be established and the representative to be sent;
(7)
A commitment to the genuineness, completeness and accuracy of the information and materials presented, and the consistency between the Chinese version and the original version;
(8)
A commitment to abiding by Chinese laws, regulations and rules after the application is approved;
(9)
A commitment of constantly buying required business risk insurance for the representative office and the representative to be sent after the application is approved.
Article 6. If it is really difficult to submit the partnership agreement or articles of association of the said foreign law office as provided by item (3) of Article 8 of the Regulations, documents signed by the principal leader that introduce contents including the signing time, initiators, organizational form and legal liability form covered in the partnership agreement, shareholder agreement or articles of association may be presented.
Article 7. The documents to be submitted as provided in item (3) of Article 8 of the Regulations shall be attached with Chinese text and prepared in triplicate in the forms of original and duplicate copies.
Article 8. The translated Chinese name of a foreign law office to establish a representative office may not use any name that is banned or restricted by Chinese laws, regulations and rules, and may not use characters that may cause public misunderstanding.
Article 9. The application for the establishment of a representative office shall have a chief representative to be sent and a certain number of representatives to be sent.
Article 10. In applying for establishment of any additional representative office, the following conditions shall be met:
(1)
The latest representative office established in China has operated for three consecutive years or more;
(2)
All representative offices already established and their representatives have abided by Chinese laws, regulations and rules, observed professional ethics and disciplines for lawyers, and not been prosecuted for taking any legal liability as provided by the Regulations.
The time of consecutive operation as provided in item (1) of the previous paragraph shall start from the day when the representative handles opening registration for the first time with the judicial department (bureau) of the local province, autonomous region or municipality.
Article 11. In applying for establishment of an additional representative office, aside from presentation of the documents as provided by Article 8 of the Regulations, the following documents shall also be presented:
(1)
The basic conditions about all representative offices already established;
(2)
Duplicates of the Business License for Representatives in China of Foreign law firms of all representative offices already established;
(3)
Certification documents complying with the provisions in items (1) and (2) of the first paragraph of Article 10 of these Rules that are issued by the judicial departments (bureaux) of the provinces, autonomous regions or municipalities where the representative offices already established are located.
The above documents shall be attached with Chinese versions and be prepared in triplicate in the forms of original and duplicate copies.
Article 12. After receiving the documents of application for the establishment of a representative office submitted by the applicant, the judicial department (bureau) of a province, autonomous region or municipality shall handle the application according to the following circumstances:
(1)
If the application documents are complete, it shall be handled according to the provisions of Article 9 of the Regulations;
(2)
If the application documents are incomplete, the applicant shall be asked to make up the documents within 15 days after receiving the application document. If the applicant makes up the documents within three months starting from the day when the application documents are submitted for the first time, the application shall be handled according to the provisions of the preceding paragraph; if the applicant fails to make up the documents within three months starting from the day when the application documents are submitted for the first time, a decision of no acceptance shall be made and the applicant will be informed in writing within 15 days.
Article 13. The Ministry of Justice shall make a decision within six months after receiving the application documents of the applicant and the examination opinion that are reported by the judicial department (bureau) of a province, autonomous region or municipality. If it permits the establishment of the representative office, it shall grant a business license and its duplicate, and also inform the judicial department (bureau) of the province, autonomous region or municipality to grant a business certificate to the representative of the representative office; if license is not granted, it shall inform the applicant in writing and also state the reason.
Article 14. Within 30 days after the business license is issued, the applicant shall handle the procedures for registration and visa for work of the representatives with the local technical supervision, public security, labour, bank and taxation departments where the representative office is located and the Chinese embassy or consulate abroad by presenting the duplicate.
Article 15. Within 30 days after handling the procedures as provided by Article 14 of these Rules, the applicant shall handle the opening registration and also pay the registration fee at the judicial department (bureau) of the local province, autonomous region or municipality.
In handling the opening registration procedures, it shall submit duplicates of the following materials:
(1)
Business License (duplicate) of the representative office in China of the foreign law office;
(2)
Business Certificates of the representatives of the representative office of the foreign law office;
(3)
Certificate of office place notarized, including certificate of property right and house rent agreement (the tenure shall be longer than one year).
If opening registration fails to be handled within the time limit provided by the first paragraph of this article, the business license of the representative office in China of the foreign law office and the Business Certificates of the representatives of the representative office of the foreign law office shall lose effect automatically.
Article 16. Without handling the opening registration procedures, a representative office is banned from engaging in law service.
Article 17. In handling annual examination registration, a representative office shall submit, aside from the materials as provided in Article 22 of the Regulations, the following documents and materials that have been notarized and certified and issued by the lawyers administration of the country where the appointed representative obtained the business qualification:
(1)
Certification materials to prove that the representatives of the representative office did not receive any criminal penalty and did not receive any penalty for violation of professional ethics of lawyers or professional disciplines in the previous year;
(2)
Duplicates of valid business liability risk insurance documents for the current year for the representative office and its representatives.
Article 18. If a representative office and its representatives pass the annual examination, the judicial department (bureau) of the province, autonomous region or municipality shall handle annual registration for the representative office and the appointed representatives, and also take the registration fee.
Chapter Three Change and Cancellation of Representative Office
Article 19. If any of the following circumstances apply to the foreign law office that establishes a representative office, the representative office shall put it on record with the judicial department (bureau) of the local province, autonomous region or municipality:
(1)
Change to the name of the law office, the residence of the head office, and the principal leaders;
(2)
Merger and separation of the law office.
Article 20. If a representative office changes its Chinese and English name, the foreign law office shall submit an application and related documents and materials signed by its principal leader to the judicial department (bureau) of the province, autonomous region or municipality where the representative office is located. The judicial department (bureau) shall put forward its opinion of examination and report it to the Ministry of Justice within 15 days starting from the day when the application materials are received. The Ministry of Justice shall handle the approval procedures within 15 days starting from the day when the opinion of examination is received.
The representative office shall handle the related change procedures at the judicial department (bureau) of the local province, autonomous region or municipality and related departments by presenting the notice of approval issued by the Ministry of Justice.
Article 21. If a foreign law office applies for cancellation of a representative office, it shall submit an application signed by its principal leader to the judicial department (bureau) of the province, autonomous region or municipality where the representative office is located.
The judicial department (bureau) shall report the opinion of examination to the Ministry of Justice within 30 days starting from the day when the application is received. The Ministry of Justice shall handle the approval procedures within 30 days starting from the day when the opinion of examination is received.
Article 22. Starting from the day when it receives the circular of approval for cancellation issued by the Ministry of Justice, it shall conduct liquidation according to law. The property may not be transferred before debts are fully repaid.
For a representative office which is cancelled, the business license and its duplicate as well as the business certificates of representatives shall be recalled, and an announcement shall be made by the judicial department (bureau) of the local province, autonomous region or municipality.
Article 23. After a representative office is cancelled, the creditors are empowered to recover the unpaid credits from the foreign law office.
Article 24. In any of the circumstances as stated in items (1) and (3) of Article 14 of the Regulations, the representative office shall make a report to the judicial department (bureau) of the local province, autonomous region or municipality within three months starting from the day when the law office to which the representative office belongs is dissolved or cancelled. The judicial department (bureau) shall make a report to the Ministry of Justice for cancellation of its business license and also handle the cancellation procedures according to these Rules.
Article 25. If a representative office needs to suspend business for special circumstances, the foreign law office to which it belongs shall submit an application signed by its principal leader to the judicial department (bureau) of the local province, autonomous region or municipality. An announcement of business suspension shall be made after ratification.
The term of business suspension of a representative office shall not exceed one year. If it exceeds one year, it is regarded as automatic cancellation.
Article 26. If a representative office is to be removed to another city, the said law office shall file an application with the judicial department (bureau) of the province, autonomous region or municipality at the designated location. After examination, the application shall be reported to the Ministry of Justice for ratification.
The representative office shall, as provided, handle related cancellation and registration procedures by presenting the notice of ratification.
Chapter Four Appointment and Change of Representatives
Article 27. The appointment or change of the chief representative and representatives of a representative office shall comply with the provisions set in item (2) of Article 7 of the Regulations.
Member of lawyers' association of the nation where the business qualification is granted refers to a member of a legal national or regional lawyer's association of the nation where the business qualification is granted. If a lawyer's association is unavailable, it may be a person registered with the lawyer's administration of the nation where the business qualification is granted.
Time of business outside the territory refers to the time of legal business registered at the legal lawyer registration authority in the nation where the lawyer business qualification is granted after the lawyer business license is granted, including the time of business at Chinese independent tariff zones. The time of business outside the territory may be added up.
Persons of identical position refer to licensed lawyers who have identical rights and obligations as partners in a law office in such aspects as management, profit sharing and risk shouldering.
Article 28. In appointing or changing a chief representative or representative, a foreign law office shall submit the following materials:
(1)
An application signed by the principal leader of the said foreign law office, which shall include the following contents:
a.
The basic conditions about the chief representative or representative to be appointed or changed;
b.
The post to be taken and the term of office;
c.
A commitment complying with the provisions in item (2) of Article 7 of the Regulations;
d.
A commitment to the genuineness, completeness and accuracy of the information and materials provided, as well as the consistency between the Chinese translation and the original version;
e.
A commitment to abiding by Chinese laws, regulations and rules once the application is approved;
f.
A commitment to constantly buying business risk insurance complying with the requirements for the appointed person after the application is approved.
(2)
All materials as provided in items (4) through (7) of Article 8 of the Regulations
(3)
Duplicate of business risk insurance documents of the representative to be appointed.
(4)
Credentials of the representative to be appointed.
The materials as provided in items (2) and (3) of the preceding paragraph shall be notarized and certified.
The above-mentioned application materials shall be attached with Chinese versions and be prepared in triplicate in the forms of original and duplicate copies.
Article 29. The judicial department (bureau) of a province, autonomous region or municipality shall handle the application materials for a representative to be appointed submitted by a foreign law office according to the following conditions:
(1)
If the application materials are complete, handle according to provisions of Article 9 of the Regulations;
(2)
If the application materials are incomplete, inform the applicant to make up the materials within 15 days starting from the day when the application materials are received. If the applicant makes up for the materials within three months after the first submission of the application materials, handle according to the provisions of the previous item; if the applicant fails to make up for the materials within three months after the first submission of the application materials, make a decision of no acceptance and also inform the applicant in writing within 15 days.
Article 30. The Ministry of Justice shall ratify within six months after receiving the application materials of the foreign law office and the examination opinion that are reported by the judicial department (bureau) of a province, autonomous region or municipality. If it does not ratify the materials, it shall inform the reason in writing.
The representative office shall take the business license for representatives of representative offices of foreign law firms to the judicial department (bureau) of the local province, autonomous region or municipality, and also handle procedures at related departments by presenting the circular of ratification.
Article 31. If the Ministry of Justice revokes the business license of a representative in any of the circumstances as provided by Article 13 of the Regulations, the judicial department of the province, autonomous region or municipality where the representative office is located shall recall the said business license, cancel the license registration and also make an announcement.
Chapter Five Business Stipulations
Article 32. The following acts shall be certified as"Chinese law affairs"as provided by Article 15 of the Regulations:
(1)
Provision of opinions or certificates on specific issues in contracts, agreements, articles of association or other written documents to which Chinese law applies;
(2)
Provision of opinions or certificates on acts or events to which Chinese law applies;
(3)
Expression in arbitration activities in the name of attorney, of attorney opinions or comments on application of Chinese law and facts involving Chinese law;
(4)
Handling registration, change, application, record and other procedures at Chinese government bodies or other organizations with administrative functions as empowered by laws and regulations on behalf of the consignor.
Article 33. When a representative office and its representatives provide information about the influence of the Chinese legislative environment as provided in item (5) in the first paragraph of Article 15 of the Regulations, they may not provide specific opinions or judgments on the application of Chinese law.
Article 34. As provided by Article 11 of the Regulations, a representative office shall open a Renminbi bank account and a foreign exchange bank account to receive inward remittances of clients in the territory.
A representative office shall, according to provisions of China's taxation laws and regulations, handle taxation registration, perform tax payment duties, and may apply for taking invoices at the local authority in charge of taxation.
Article 35. If a representative office employs assistants of Chinese nationality, it shall handle employment relations with the local department for service to foreign enterprises, and also take certificates for employees to the judicial department (bureau) of the local province, autonomous region or municipality.
Article 36. If a representative office employs assistants of foreign nationalities, it shall, according to relevant provisions on employment in China of foreigners, file an application with the judicial department (bureau) of the local province, autonomous region or municipality, and after permission, handle employment and residence procedures with the related departments.
Article 37. When publicizing itself, a representative office shall abide by the following rules:
(1)
If declaring to clients that it is permitted to engage in business in the Chinese territory, it shall also declare that it does not have the qualification, license or capacity to engage in China law services;
(2)
If declaring to clients that it has the qualification of Chinese lawyer or used to act as Chinese certified lawyer, it shall also disclose that it currently is not permitted to undertake business as a Chinese lawyer.
(3)
If the publicity is in the form of letters or name cards, the declaration as provided in items (1) and (2) of this article shall be available.
Article 38. Representatives and assistants of a representative office are not permitted to provide China law services in the name of "advisor of Chinese law".
Article 39. A representative office and the law office to which it belongs are not permitted to undertake any of the following:
(1)
Directly or indirectly invest in Chinese law offices;
(2)
Form certified joint entities share profits or risks jointly with Chinese law offices or Chinese lawyers;
(3)
Establish joint offices or send persons to Chinese law offices to engage in law service activities;
(4)
Manage, operate, control or enjoy equity income in Chinese law offices.
Article 40. In any of the following circumstances, it shall be regarded as employment of Chinese certified lawyer(s):
(1)
Reaching employment or labour service agreement(s) with Chinese certified lawyer(s);
(2)
Forming employment or labour service relationship in truth with Chinese certified lawyer(s);
(3)
Reaching agreement(s) of sharing profits or risks or taking part in management with Chinese certified lawyer(s);
(4)
Paying rewards or fees to or sharing revenues with individual Chinese certified lawyer(s);
(5)
Inviting Chinese certified lawyer(s) to engage in external business activities in the name of the representative office or the law office to which the representative office belongs.
Article 41. A representative office shall clear up or explain any complaint.
Chapter Six Supplementary Provisions
Article 42. A representative office shall hang, in a prominent position in its office, the Business License for Representative Office in China of Foreign Law Office.
A representative office shall erect at its office a plate on which its complete name is written in both Chinese and English.
Article 43. The Business License for Representative Office of Foreign Law Office shall be printed and issued by the Ministry of Justice.
The Business License for Representative of Representative Office of Foreign Law Office and the Certificate for Employee of a Representative Office of Foreign Law Office shall be printed by the Ministry of Justice and issued by the judicial departments (bureaux) of provinces, autonomous regions and municipalities.
Article 44. The Business License for Representative Office of Foreign Law Office, the Business License for Representative of Representative Office of Foreign Law Office and the Certificate for Employee of Representative Office of Foreign Law Office may not be confiscated, detained or damaged by any unit or individual except for the certificate issuing organ which may detain or revoke according to legal procedures.
Article 45. The Business License for a Representative Office of Foreign Law Office and its duplicate, the Business License for Representative of Representative Office of Foreign Law Office and the Certificate for Employee of Representative Office of Foreign Law Office may not be forged, altered, rented, lent, transferred or sold.
Any violator of the provisions in the preceding paragraph will be prosecuted for taking relevant legal responsibilities according to law.
Article 46. If any business license for representative office or business license for representative is lost, it may be made up after a public announcement is made.
Article 47. These Rules shall take effect on September 1, 2002.
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