外商投資企業投訴工作機制之檢討與形塑

The Review for the Complaint and Settlement Mechanism for the Foreign-invested Enterprise in Foreign Investment Law of the People’s Republic of China

近年來，由於中國大陸面臨了中美貿易戰、外資撤離等諸多挑戰，使其開始審視對外之經濟布局、檢討自身之制度闕漏，此外，其國內亦泛起全面深化改革、構建開放型經濟新體制之制度改革聲浪，遂使其政府開始重視外商投資制度之革新，啟動外商投資法之修法工程。 二○一九年，外商投資法終獲通過，該法除確立外商投資准入前國民待遇加負面清單等重要制度外，亦有為及時、有效解決外商投資糾紛而建立之「外商投資企業投訴工作機制」，惟其機制雖立意良善，但對其之法律規範甚少，不僅無明顯之程序進行規範，亦未明定該機制之處理方式，恐不利於實踐，故為完整形塑該機制之規範，實有一併審視既有投訴工作機制制度、新立投訴工作機制制度並加以比較、檢討之必要。

In recent years, due to many challenges such as the U.S.-China trade war and the withdrawal of foreign capital, the Mainland China has begun to examine the external economic layout and review its own sys-tematic flaws. And, China has also been undergoing comprehensively deepening reforms and developing a new system of open economy. The sound of institutional reform of the new system made its government begin to attach importance to the reform of the foreign investment sys-tem and start the amending project of the foreign investment law. In 2019, the Foreign Investment Law of the People’s Republic of China was finally passed. In addition to establishing important systems such as pre-entry national treatment plus a negative list management, the Foreign Investment Law has also a “the complaint and settlement mechanism for the foreign-invested enterprise” for timely and effective resolution of foreign investment disputes. However, although the mech-anism is well-intentioned, there are only a few norms in the Law. Not only is there no obvious procedure to regulate it, nor is it clear how to deal with disputes, which may not be conducive to practice. Therefore, in order to completely shape the standard and procedure of the mecha-nism, it is necessary to analyze problems of the existing mechanism, and compare the existing one with the new one.