中华人民共和国技术引进合同管理条例施行细则
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（Approved by the State Council on December 30， 1987 Promulgated by the Ministry of Foreign Economic Relations and Trade on January 20， 1988） Article 1 The Detailed Rules are formulated in accordance with the provisions of Article 12 of the Regulations on Administration of Technology Import Contracts of the People's Republic of China （hereinafter referred to as the “Regulations”）。 Article 2 Regardless of country or region of the supplier， source of funds and ways of payment of the recipient， technology import contracts hereunder listed concluded between the recipient and the supplier as specified in Article 2 of the Regulations shall apply for examination and approval from the competent authority in accordance with the Regulations and the Detailed Rules. 1. Contracts for assignment or licensing of industrial property rights： Contracts for assignment or licensing of industrial property rights refer to those for assignment or licensing of rights relating to invention patents， new utility model patents， exterior design patents as well as trademarks excluding those merely for assignment of rights of trademarks. 2. Contracts for licensing of know-how： Contracts for licensing of know-how refer to those for provision or impairment of technical knowledge for manufacturing a product or applying a technology as well as for product designs， technological processes， formulae， quality control and management， which is neither publicized nor under legal protection of industrial property rights. 3. Contracts for technical services： Contracts for technical services refer to those for providing services or consultations to the recipient by the supplier with his technology for achieving a specific goal， including those for feasibility study or engineering design undertaken by the supplier upon the entrustment of the recipient or by the recipient in cooperation with the supplier， those for providing technical services by foreign geological exploration or engineering teams that are employed and those for providing services or consultations by the supplier upon entrustment of the recipient for technical transformation of enterprise， improvement of production technology or product design and quality control as well as enterprise management （excluding those for employing aliens in China's enterprises）。 4. Contracts for co-production and co-design which contain any one of such contents as assignment or licensing of industrial property rights， licensing of know-how or technical services； 5. Contracts for importing complete set of equipment， production line and key equipment which contain any one of such contents as assignment or licensing of industrial property rights， licensing of know-how or technical services； 6. Other technology import contracts which need the fulfillment of the procedure for examination and approval in the view of the competent authority. Article 3 To import technology， companies， enterprises， institutions or individuals with no right to do technology import business with abroad shall， with a letter of commission， entrust those companies and enterprises with such rights to conclude technology import contracts. Article 4 Technology import contracts concluded by Chinese-foreign equity joint ventures， Chinese-foreign co-operative ventures and wholly foreign-owned enterprises （hereinafter referred to as “foreign investment enterprises”） established in the territory of the People's Republic of China for technology acquired from suppliers shall comply with the procedure of examination and approval in accordance with the provisions of the Detailed Rules. If the foreign investor in the foreign investment enterprise uses industrial property rights or know-how as his equity share， this will be dealt with in accordance with the relevant laws and regulations of the State for foreign investment enterprises. Article 5 The competent authorities for examining and approving technology import contracts are the Ministry of Foreign Economic Relations and Trade （hereinafter referred to as MFERT） and its authorized departments， commissions， bureau of foreign economic relations and trade and other administrative organs of provinces， autonomous regions， municipalities directly under jurisdiction of the central government， coastal open cities， special economic zones and cities under provinces with separate economic plans （hereinafter referred to as the “authorized examining and approving authorities”）。 Article 6 Technology import contracts are examined and approved at different levels in accordance with the following stipulations： 1. Technology import contracts for projects with feasibility study reports approved by the ministries/commissions of and departments under the State Council are to be examined and approved by MFERT. 2. Technology import contracts for projects with feasibility study reports approved by people's governments or their authorized responsible organs of provinces， autonomous regions， municipalities， coastal open cities， special economic zones and cities under provinces with separate economic plans are to be examined and approved by the authorized examining and approving authorities of the same levels； If the technology import contracts are concluded by other transregional companies through entrustment， they may be examined and approved by the authorized examining and approving authorities of the spot where the entrusters are located with the consent of the entrusters' local authorized examining and approving authorities. After approval， the on-the-spot authorized examining and approving authorities shall send a copy of the Approval Certificate to the local authorized examining and approving authorities for record. Nevertheless， technology import contracts concluded by companies located in Beijing pursuant to transregional entrustment （excluding those directly under Beijing municipality） are to be examined and approved by MFERT. 3. Technology import contracts concluded by foreign investment enterprises for acquiring technology from suppliers shall be examined and approved by MFERT if the foreign investment enterprises were established with the approval of ministries/commissions of and departments under the State Council， or be examined and approved by MFERT-authorized organs if the enterprises were not so established. Article 7 Technology import contracts shall specify in terms of the following items： 1. Name of contract； 2. Contents， scope and requirements of the goal directed technology imported； 3. Criteria， time-limits and measures for quality rectification of the imported technology and liabilities for risks； 4. Obligations of keeping-confidential for imported technology， ownership and sharing of the technology improvements； 5. Price or payment in total and breakdown and terms of payment； 6. Calculations for compensation in case of violation； 7. Means of settlement for disputes； 8. Interpretation of terms and phrases. Annex and data relating to implementation of the contract may constitute an integral part of the technology import contract in accordance with the agreement of the contracting parties. Article 8 With respect to technology import contracts involving assignment or licensing of patent or trademark rights obtained in China， relevant patent numbers or patent application numbers， trademark registration numbers together with trademark design shall be expressly specified. Contracts for assignment of patent rights shall be recorded with the Patent Office in accordance with provisions of the “Patent Law of the People's Republic of China”， and those for licensing of the trademarks shall be recorded with the Trademark Office in accordance with provisions of the “Trademark Law of the People's Republic of China”。 Article 9 The supplier shall ensure that the technology or data documents provided are complete， accurate， effective and capable of reaching the technology goal specified in the contract. The time-limits for the delivery of technology documents shall correspond with the engineering programmer of the recipient. Article 10 If the recipient requires the supplier to provide raw materials， spare parts or equipment for the imported technology， the price shall not be higher than that of the like product on international market. Article 11 The supplier shall ensure that he is the legal owner of the technology provided or that he has the right to assign or license the technology. If the recipient， in producing or selling products with the assigned or licensed technology， is accused of infringement by a third party， the supplier shall respond to the lawsuit. If the infringement charged by the third party is proved， all economic losses the recipient may suffer shall be compensated for by the supplier Article 12 Within the term of validity of the contract， the ownership of the improved technology including the right to apply for patents belongs to the party that has made the improvements. Where the recipient provides the improved technology to the supplier， the terms shall be the same as those when the supplier provides the improved technology to the recipient. Article 13 The recipient shall undertake the obligations to keep confidential for know-how and relevant information provided or imparted by the supplier in accordance with limits and duration as agreed in the contract. The duration of keeping-confidential shall not generally exceed the term of validity of the contract. If special circumstances demand that the duration shall exceed the term of the contract， it shall be expressly specified in the contract， and reasons shall be made when applying for examination and approval. Within the duration in which the recipient undertakes the obligation to keep confidential， if the technology is publicized not owing to the recipient， obligations to keep confidential undertaken by the recipient shall be immediately terminated. If it is specified in the contract that the supplier provides its developed and improved technology to the recipient within the term of validity of the contract， the recipient may continue to undertake the obligations of keeping-confidential after expiration of the contract. In that case， the duration for keeping confidential shall begin from the date when the supplier provides the technology but not exceed the duration specified in the original contract. Article 14 No provisions of restrictions on exportation of products manufactured by the recipient with the imported technology may be included in the contract without the approval of the competent authority， however， either of the following cases shall be excepted： 1. In countries and regions where exclusive license contracts have been concluded by the supplier； 2. In countries and regions where sole agent contracts have been concluded by the supplier. Article 15 No provision of prohibitions to be imposed on the recipient to continue using the imported technology after expiration of the contract maybe included in the contract without approval of the competent authority. Where the contract has expired but the duration of the patent relating to the imported technology has not expired， the relevant stipulations of the “Patent Law of the People's Republic of China” shall govern. Article 16 The supplier shall pay taxes in accordance with the provisions of the Tax Law of the People's Republic of China. Article 17 The recipient or companies， enterprises acting as its agents who have concluded the technology import contracts shall， in accordance with the provisions of Article 6 of the Detailed Rules， submit to the competent authority within thirty days from the date when the contract is concluded the following official documents： 1. Application for approval. The contents of the application shall include the name of the contract， country of the supplier and name of the firm， the contents and scope of the goal-directed technology imported， the approving organ and approved number of the feasibility study report of the project， etc. ； 2. Copy of the contract （enclosing a Chinese version if it is in a foreign language）； 3. Copy of documents evidencing the legal status of the contracting parties； 4. Approved feasibility study report and arrangement of the fund needed. To facilitate the examination and approval， the recipient or companies， enterprises acting as its agents may ask for comments or request for pre-examination from the competent authority on the main contents or certain clauses of the contract either before or during negotiations. Article 18 In case the technology import contracts and other documents submitted to the competent authority in accordance with the provisions of Article 17 of the Detailed Rules include any one of the following contents， the competent authority shall require amendments within a prescribed time-limits， and approval shall not be granted in case of failure to make amendments： 1. that it is against the current laws and legislation of the State and is harmful to public interests of the society； 2. that it is harmful to national sovereignty； 3. that the contents of the contract are inconsistent with the approved feasibility study report of the project； 4. that the basic clauses and contents of the contract are imperfect； 5. that the contract contains no definite and rational stipulation concerning the responsibilities and solutions to possibly-occurred disputes over property rights due to the assigned or licensed technology or other disputes that may occur in the course of implementation of the contract； 6. that the contract contains no rational stipulation on the technical level and economic efficiency which the assigned or licensed technology should attain including quality warranty for the products manufactured with the said technology； 7. that the price or ways of payment for the imported technology are unreasonable； 8. that the stipulations on rights， responsibilities and obligations of the contracting parties are unclear， unequal or irrational； 9. that the contract contains preferential tax commitment without the consent from the Chinese tax authority. Article 19 The competent authority shall decide whether or not to approve the contract within 60 days from the date when the application is received. If the competent authority requires amendments in accordance with the provisions of Article 18， the duration of examination and approval shall be counted from the date when the amended contract or text is received. If the competent authority makes no response within the specified time， the contract shall be deemed to have been approved. Article 20 The contract shall come into force on the date of approval and the competent authority shall issue a unified Approval Certificate for a Technology Import Contract printed and numbered by MFERT. Article 21 If the term of validity of the technology import contract exceeds the period of ten years stipulated in Article 8 or includes the restrictive provisions listed in Article 9 of the Regulations， the recipient shall submit the application with detailed explanations to the competent authority when going through the procedure for examination and approval in accordance with the stipulations of the Detailed Rules. Article 22 Amendments to the provisions relating to the goal-directed technology content， price， term and keeping-confidential time-limits of an approved technology import contract shall be made by consultations between contracting parties upon a written consent of the original competent authority for examination and approval. If amendments are inconsistent with the approved content of goal-directed technology or exceed the approved amount of foreign exchange， the procedure for reexamination and re-approval shall be gone through in accordance with the provisions of Article 4 and article 11 of the Regulations and Article 6 of the Detailed Rules. Article 23 The examining and approving organs other than MFERT shall submit copies of Approval Certificate for a Technology Import Contract and other relevant documents to MFERT for record within 10 days from the date the technology import contract is approved. Article 24 In the course of the implementation of the contract， the Approval Certificate for a Technology import Contract or its copy must be presented to the organs concerned in accordance with the relevant stipulations for purposes of bank guarantee， letter of credit， payment， exchange settlement， Customs declaration and tax payment， etc. In case of failure of presentation， refusals may be made by the banks， Customs and tax authorities. Article 25 The authority to interpret and revise the Detailed Rules resides in MFERT. Article 26 The Detailed Rules shall enter into force on the date of promulgation. The Procedure for Examination and Approval of Technology Import Contracts promulgated on September 18， 1985 by MFERT shall cease to be in force simultaneously |
