論中國大陸外資審批制度──以須經審批之合同效力為中心

The Foreign Investment Approval System of the People's Republic of China: Focus on the Effectiveness of Contract which Needed Approvals

中國大陸自一九七○年代起力行改革開放，為了吸引外國投資，先後制定了《中外合資經營企業法》、《中外合作經營企業法》和《外商投資企業法》。以上三部法律，亦即所謂外資三法，是在計畫經濟仍然相當強勢的背景下制定的，但相對來說，已經是當時比較前衛地取向於市場經濟了。但如今，隨著中國大陸加入世界貿易組織（WTO），並且陸續通過更為取向於市場經濟的公司法、合同法等重要法律，時移勢遷，外資三法反而顯得落後了。箇中落差除了導致外資三法與公司法、合同法間存有某些扞格，必須進行整合之外，其設下太多行政審批，對於私法自治恐有過度干預之嫌，再加上行政審批之性質、報批義務之歸屬乃至於未經審批之合同效力等問題向來不清不楚，給了有心人諾大空間待價而沽，選擇性地履行股權轉讓，終致紛爭四起。不僅如此，此等紛爭橫跨公法與私法，在訴訟途徑上也面臨抉擇。以上問題，都可能讓外資望之卻步。為此，最高人民法院於二○一○年八月五日公布了《最高人民法院關於審理外商投資企業糾紛案件若干問題的規定》，對於未經審批之合同效力、報批義務、黑白合同等問題作出解釋。儘管從結果來說，確實使得上述問題在相當程度上獲得緩解，但就論理過程來說，最高人民法院得否透過解釋論形成此等重大規範，尤其行政審批作為典型的公法行為，在依法行政以及法律保留原則的支配下，恐怕不是法院說了算，必須立法部門提供法律基礎。可見，最高人民法院此舉或許可以治標，但若欲治本，還須徹底檢討現行外資審批制度，並且從立法論著手，強化法律基礎。否則，為求立竿見影而扭曲公法法理，未來會有副作用的。就此，臺灣施行外國人投資條例以及華僑回國投資條例年代久遠，值得大陸借鑑。

China has launched reform since the end of 1970s and has promulgated Law of the People's Republic of China on Chinese Foreign Equity Joint Ventures, Law of the People's Republic of China on Chinese Foreign Contractual Joint Ventures and Law of the People's Republic of China on Foreign Capital Enterprises in this connection in order to attract foreign investments. These three laws were promulgated under a planned economy background, but were relatively modern and prone to market economy at that time. Throughout the time these three laws for foreign investment, however, have appeared to be out of date with China joining the World Trade Organization (WTO) and subsequently passing important laws that are more oriented at market economy, such as Company Law and Contract Law. Such differences have rendered certain conflicts among the three laws for foreign investments and Company Law and Contract Law that required reconciliation. Besides, such three laws set too many administrative approval requirements and might induce criticism of excessive inter- vention of autonomy of private law. In addition, the issues regarding the nature of administrative approvals, burden of obligations to make reports and obtain approvals, and the effectiveness of contracts without approvals have long been unclear. These have resulted in selective performance of share transfer and ultimately in various disputes. Moreover, one has to encounter choices of litigation channels as such disputes may across public and private laws. All of the aforementioned issues may hold foreign investors back. Therefore, the Supreme People's Court has announced the Rules on the Trial of Cases Related to Foreign Investment Enterprises' Disputes (I) on August 5, 2010 to interpret issues regarding the effectiveness of contracts without approvals, obligations to make reports and obtain approvals, and black-and-white contracts. This has at a certain degree relieved the above issues. Nevertheless, as far as the reasoning process goes, it is questionable whether the Supreme People's Court may form such important rules by interpretation. In particular, as administrative approval is a typical public law action, legal basis provided by legislative departments might still be required under the dominance of principles of administration by law and of law reservation. The judicial interpretation made by the Supreme People's Court only addressed the issues on the surface but did not solve the core problems. The current foreign investment approval systems need to be reviewed thoroughly. In this regard, Statute for Investment by Foreign Nationals and Statute for Investment by Overseas Chinese that have long been in force in Taiwan may be referenced by China.