Opinions of the State Council on Implementing a Market Access Negative List Regime

· Document Number：No. 55 [2015] of the State Council

· Area of Law： Industrial and Commercial Management

· Level of Authority： Regulatory Documents of the State Council

· Date issued：10-02-2015

· Effective Date：12-01-2015

· Status： Effective

· Issuing Authority： State Council

Opinions of the State Council on Implementing a Market Access Negative List Regime
(No. 55 [2015] of the State Council)
The people's governments of all provinces, autonomous regions, and municipalities directly under the Central Government; all ministries and commissions of the State Council; and all institutions directly under the State Council:
According to the requirements of the Decision of the CPC Central Committee on Several Significant Issues concerning Comprehensively Deepening Reform and the decisions and arrangements of the State Council, the following opinions on implementing a market access negative list regime are hereby offered.
I. Significance
1. Definition of the market access negative list regime.
"Market access negative list regime" means a series of institutional arrangements that the State Council explicitly sets forth the industries, fields, and business in which investment and operations are banned or restricted in the territory of the People's Republic of China, and the governments at all levels take corresponding administrative measures according to the law. Any industry, field, or business not on a market access negative list may be entered by various market participants in a lawful and equal manner.
2. Implementing the market access negative list regime is an important foundation to capitalize on the decisive role of the market in allocating resources.
Conferring more initiative on market participants by Implementing the market access negative list regime is useful for implementing the autonomy of market participants and triggering market dynamism, for building up a market environment in which various market participants use the factors of production in a lawful and equal manner and openly, equally, and fairly participate competition, and for forming a unified and open modern market system featuring orderly competition and will provide larger space for exploiting the decisive role of the market in allocating resources.
3. Implementing the market access negative list regime is an inherent requirement to better use the role of the government.
Specifying the duty limits within which the government plays its role by implementing the market access negative list regime is useful for further deepening the administrative approval system, significantly narrowing the scope of government approval, innovating in the modes of government regulation, promoting investment and trade facilitation, and continuing to raise the efficiency and effectiveness of government administration and for prompting the government to strengthen market regulation by law-based thinking and law-based modes, making market regulation more institutional, well-regulated, and procedural, and boosting the transformation of government functions.
4. Implementing the market access negative list regime is a necessary measure to build a new open economic system.
Implementing the market access negative list regime and the foreign investment negative list regime is useful for accelerating the building of a modern market system in compliance with internationally accepted rules and for creating a law-based business environment, promoting the orderly and free flow of domestic and international factors, efficient resource allocation, and deep integration of markets, and continuously improving the international competitiveness of China and is an effective path to promote reform with opening up and establish a high-level market economy mechanism.
II. General requirements and applicable conditions
5. General requirements.
The reform direction of the socialist market economy shall be adhered to, the exploitation of the decisive role of the market in allocating resources and the better use of the role of the government shall be unified, the transformation of government functions shall be combined with innovation on administrative modes, animating the market and strengthening market regulation shall be coordinated, market access shall be relaxed and regulated, administrative approval shall be simplified and optimized, market regulation shall be tightened and innovated in, and the building of a new market access administration system featuring an open, equitable, well-regulated and orderly market, autonomous decision making and fair competition by enterprises, and well-defined power and responsibilities of and effective regulation by the government shall be accelerated.
All regions and all departments shall conscientiously implement the market access negative list regime. With respect to the free investment and operations of market participants, for any field or link involving market access, a negative list regime shall be established and implemented; and at the happening of conditions, existing market access items under catalog-based management shall be put on market access negative lists in a unified manner.
6. Classifications.
Market access negative lists shall either ban or restrict access and apply to the free initial investment, expanded investment, investment in mergers and acquisitions, and other investment and operations and other conduct of entering markets of various market participants. For banned access items, market participants shall not enter, and administrative agencies shall neither grant approval or confirmation nor initiate relevant procedures; for restricted access items, administrative agencies shall decide to grant access in accordance with the laws and regulations at the application of market participants, or market participants may enter according to the access conditions and access modes as provided by the government; and for any industry, field, or business not on market access negative lists, various market participants may enter in a lawful and equal manner.
7. Application conditions.
With respect to the investment and operations and other conduct of entering markets of various market participants affecting the following fields, banned entry, or restricting market participants' qualifications, stake, scope of business, types of operations, business models, distribution, or land space development protection, or other administrative measures may be taken: relevant industries, fields, and business affecting the life and property safety of the people, political security, homeland security, military security, economic security, financial security, cultural security, social security, scientific and technological security, information security, ecological security, resource security, nuclear security, security of new fields, and other national security; relevant industries, fields, and business affecting significant national productivity distribution, exploitation of strategic resources, and significant public interests; relevant industries, fields, and business susceptible to administrative licensing as legally required and affecting the investment and operations of market participants; and the circumstances otherwise provided by any law, administrative regulation, or the decision of the State Council.
8. Major types and application of negative lists.
Negative lists shall be mainly on either market access or foreign investment. Market access negative lists are the administrative measures for consistency applicable to domestic investors and the unified requirements for the market access administration of various market participants; and foreign investment negative lists shall apply to the investment and operations of overseas investors in China and earmarked administrative measures for access for foreign investment. Foreign investment negative lists shall be developed taking into account negotiations on investment agenda with foreign countries, and the relevant work shall be separately provided. If any bilateral or multilateral agreement (protocol) entered into by China made separate provisions, the relevant bilateral or multilateral agreement (protocol) shall prevail.
III. Development, implementation, and amendment procedure
9. Principles for development.
The principle of the rule of law: In developing market access negative lists, the basic strategy of law-based governance shall be comprehensively implemented. For a new item on which any law, administrative regulation, or decision of the State Council is silent but which is required to be put on a market access negative list, a request shall be made on the basis of scientific assessments, according to statutory procedure, for the development or revision of the law, administrative regulation, or decision of the State Council. For a significant item affecting national economic and social development or an item of a demanding professional nature, the public participation, experts' justification, risk assessments, compliance review, collective discussion and decision, and other decision-making procedure shall be followed.
The principle of security: In developing and implementing market access negative lists, the holistic approach to national security must be adhered to, and laws and regulations maintaining national security and the regime system for the security in all fields issued by the state shall be observed. With the maintenance of economic security prioritized, the national basic economic system and the order of the socialist market economy shall be protected, the rules and mechanisms to prevent and resolve economic security risks shall be refined, and the security of important industries and critical fields related to the lifeline of the national economy, priority sectors, major infrastructure, major construction projects, and other major economic interests shall be guaranteed.
The principle of incremental progress. Market access negative lists shall be developed and implemented based on national conditions, incrementally, according to overall plans, by steps, and comprehensively promoted after the acquisition of experience susceptible of reproduction and promotion. For new technology, products, business types, and business models, among others, appearing on markets, the principles of encouraging innovation and lowering entrepreneurship threshold shall be followed to strengthen the supply of regimes and embed regulation in services, in no hurry to put them on market access negative lists.
The principle of necessity: Items on market access negative lists shall be simplified as much as possible and necessary. Items banned or restricted in any law, administrative regulation or decision of the State Council shall not be simply put on market access negative lists. The industries, fields, or business in which market participants are banned or restricted from investment and operations shall not be simply and literally put on market access negative lists. Non-market access items and post-access regulatory measures shall not be confused with administrative measures for market access. Registration, information collection, land use approval, and other measures commonly taken in relation to market participants shall not be put on market access negative lists. The application conditions of market access negative lists shall not be literally used to put items, which it is inappropriate to put under negative list administration, on market access negative lists.
The principle of openness. In the development and amendment of market access negative lists, the principles of openness, fairness, and equity shall be reflected, and stable, transparent, and expectable institutional arrangements shall take shape, so as to guarantee the right to know and right to participate of the public. Unless otherwise required by law, the items, basis, and results of the development and amendment of market access negative lists shall be disclosed and easily accessible to the public.
10. Development procedure.
Market access negative lists shall be developed and issued by the State Council in a unified manner; and if any local government needs to make amendment, the provincial people's government shall report to the State Council for approval. Any authority or entity charged with market access administration shall comprehensively review the industries, fields, and business in which market participants are banned or restricted from investment and operations and prepare its draft market access negative list according to the unified classification standards in the National Development and Reform Commission (with separate statements made if the list needs to apply to several categories in, or to any new business type not set forth by, the National Development and Reform Commission); the National Development and Reform Commission ("NDRC") and the Ministry of Commerce shall take the lead in conducting summarization and review, prepare a unified market access negative list, and implement it with the approval of the State Council.
For the administrative measures for market access established under any law, administrative regulation, or decision of the State Council, compliance review shall be conducted, and their reasonableness, feasibility, and controllability shall be assessed according to the requirements of exploiting the decisive role of the market in allocating resources. If there is necessity to put the administrative measures for market access established under any authority rule or regulatory document on the market access negative list, a law or administrative regulation shall be developed or revised according to statutory procedure, or a report shall be made upon conscientious justification to the State Council for decision according to the procedure as set forth in these Opinions.
A market access negative list shall be developed by fully taking into account the difference of regional development so as to enhance its operability and pertinence. Provincial people's governments shall be allowed, on the basis of the unified national market access negative list, to propose the amendment of the list based on local factor endowment, primary functions and orientations, comparative advantages in industries, industrial cooperation, logistics and marketing networks, ecological and environmental impact, and other factors and implement the amended list with the approval of the State Council. Without the authorization of the State Council, all regions and all authorities may neither release a market access negative list nor add any entry to or remove it from a market access negative list.
When a market access negative list is compiled, relevant authority shall improve the decision-making mechanism combining public participation, experts' justification, and government decisions, adequately hear the opinions of all regions and all other authorities, organize experts to conduct necessary justification of its necessity and feasibility, and request public comments. If national security is affected, a report shall be first made to the National Security Commission of the CPC Central Committee for review.
11. Implementation steps.
According to the principle of "conducting a pilot program before incremental promotion," a market access negative list regime shall be implemented in some regions on a trial basis from December 1, 2015 to December 31, 2017 to accumulate experience, make incremental improvements, and explore the formation of a unified national market access negative list regime and corresponding systems and mechanisms, and a unified national market access negative list regime shall be implemented in 2018. The NDRC and the Ministry of Commerce shall propose a draft market access negative list and the regions under the pilot program and organize the implementation of the pilot program with the approval of the CPC Central Committee and the State Council. A provincial people's government in the region under the pilot program shall put forward a proposal for the contemplated trial implementation of the market access negative list regime according to the draft market access negative list and implement the regime with the approval of the State Council. If the suspension of the implementation of any relevant law or administrative regulation, or any relevant provisions thereof, is required, the statutory procedure shall be followed.
The provincial people's governments in regions under the pilot program shall, as required by the Work Proposal for Launching the Pilot Program of the Market Access Negative List Regime (see Annex), strengthen organization, leadership, and overall coordination and refine process administration, early warning and forecast, feedback, dynamic performance evaluation, and other working mechanisms, so as to ensure substantial progress in the reform. Relevant authorities shall augment the connection with the work in the regions under the pilot program and pioneer reform measures optimizing market access administration in the regions under the pilot program. The NDRC, the Ministry of Commerce, and other authorities shall tighten guidance and urging inspection, discover and resolve all the problems in the course of reform in a timely manner, and promptly report significant matters to the State Council.
12. Amendment procedure.
Upon the implementation of the market access negative list regime, market access negative lists shall be amended in good time according to the principles of red tape cut, delegation of powers, combination of delegation and control, and optimization of services, based on the general progress in the reform, adjustment of economic structure, revision of laws and regulations, and other circumstances. As authorized by the State Council, the NDRC and the Ministry of Commerce shall take the lead in establishing an inter-authority consultation and coordination mechanism responsible for the routine work in relation to the implementation of the market access negative list regime and the organization of third-party assessments. The amendment of a significant item, or an increase in the administrative measures for market access, shall be reported to the State Council for approval. If any administrative measure for market access is amended according to the relevant provisions of any law, administrative regulation, or decision of the State Council, or the technical, expression, or other insubstantial content of administrative measures for market access is amended or reduced, the relevant authority shall propose such amendment or reduction and, upon the review and determination by the consultation and coordination mechanism, report to the State Council for recordation. If national security is affected, a report shall be first made to the National Security Commission of the CPC Central Committee for review.
IV. Recognition modes and connection with the regimes in force.
13. Effectively connecting market access negative lists with administrative approval items lists.
Market access negative lists shall be developed in connection with administrative approval items lists, and the measures on administrative approval items lists, restricting market participants from investing or operating in industries, fields, and business, shall all be put on market access negative lists in principle. Items involving market access not on the General List of Administrative Approval Items of All the Authorities of the State Council, or which have been canceled, shall not be put on market access negative lists, and the other items qualified as reviewed, subject to market access negative lists, shall be specified one by one on market access negative lists. Any future decision of the State Council to cancel, establish, or amend an administrative approval item shall directly apply to market access negative lists.
14. Effectively connecting market access negative lists with the Catalog for Guiding Industrial Restructuring.
The projects in the obsolete class and newly established projects in the restricted class in the Catalog for Guiding Industrial Restructuring shall be directly cited in access-banning lists, instead of being specified one by one, according to the requirements in the Decision of the State Council on Promulgating the “Interim Provisions on Promoting Industrial Structure Adjustment” for Implementation (No. 40 [2005], State Council): "investment in projects in the obsolete class shall be banned" and "investment in newly established projects in the restricted class shall be banned." Relevant authorities shall revise the Catalog for Guiding Industrial Restructuring in a timely manner in order to adapt to industrial restructuring, the springing up of new products and new technology, and other new conditions. Any future revision of the Catalog for Guiding Industrial Restructuring shall directly apply to market access negative lists.
15. Effectively connecting market access negative lists with the Catalog of Investment Projects Subject to Government Confirmation.
Any project subject to confirmation as specified in the Catalog of Investment Projects Subject to Government Confirmation (except in relation to foreign investment or outbound investment, which shall be separately provided) shall be directly cited in access-restricting lists, instead of being set out one by one. Relevant authorities shall, according to the general arrangements for comprehensively deepening the reform, accelerate the research and development of decisions and regulations on the administration of investment projects subject to government confirmation and recordation depending on the reform of investment and financing systems and amend the Catalog of Investment Projects Subject to Government Confirmation in good time. Any future decision of the State Council to revise the Catalog of Investment Projects Subject to Government Confirmation shall apply to market access negative lists.
16. Effectively connecting market access negative lists with market access administration items established by laws, administrative regulations, and the decisions of the State Council.
The administrative measures established by laws, administrative regulations, and the decisions of the State Council shall, upon review, be put on either access-banning lists or access-restricting lists. Relevant authorities shall make corresponding amendments to market access negative lists in a timely manner according to the development and revision of laws and administrative regulations, review of the documents of the State Council, and other circumstances. In particular, an ex-ante condition not explicitly provided in any law, administrative regulation, or decision of the State Council shall not be subject to ex-ante approval; and unless its retention is necessary, an ex-ante condition explicitly provided in any law, administrative regulation, or decision of the State Council shall cease to be subject to ex-ante approval by revising the law, administrative regulation, or decision of the State Council.
V. Supporting measures
17. Establishing and improving an access mechanism commensurate with the market access negative list regime.
Any industry, field, or business not on a market access negative list may be entered by various market participants in a lawful and equal manner without the approval of the government. Any power that is required to be delegated to enterprises shall be utterly and effectively delegated so that items not on the market access negative lists are lawfully and autonomously decided by market participants. The combination of delegation and control shall be adhered to, and relevant authorities shall take into account the factors in national security, ecology and environment, public interests, work safety, and other aspects, improve the comprehensive consideration indicator system, implement the first assumption of liability by enterprises, strengthen regulation by law, establish a security review and regulation accountability system, and build up a new pattern featuring government regulation, autonomy of enterprises, industry self-regulation, and social supervision. For items subject to market access negative lists, the adoption of undertaking-based access and other means may be researched according to different situations to further heighten the implementation of recordation by notification, publication of access information, and other supporting measures. "Undertaking-based access" means access which may be granted after various market participants have undertaken to perform statutory obligations, shoulder social responsibility, and act in good faith and submitted a written undertaking to the relevant authorities; "recordation by notification" means that various market participants discharge their obligation of recordation by notification toward relevant authorities immediately after investment or operations; and "publication of access information" means that various market participants shall discharge the obligations as provided in the Interim Regulation on Enterprise Information Disclosure in accordance with the law.
18. Improving the approval system commensurate with the market access negative list regime.
For restricted access items, the governments at all levels and their relevant departments shall regulate the power, duties, and standards of approval according to the limits of approval authority and simplify ex-ante approval as required by the Notice of the State Council on Regulating the Administrative Approval by the Authorities of the State Council and Improving the Work concerning Administrative Approval (No. 6 [2015], State Council) and the Notice of the General Office of the State Council on Issuing the Work Proposal of Reducing Examination and Approval Items, Standardizing Intermediary Services, and Implementing Online Parallel Approval for Enterprise Investment Projects (No. 59 [2014], General Office of the State Council), so as to achieve the optimization of approval process, well-regulated procedure, openness and transparency, and well-defined power and duties. In particular, ex-ante approval involving national security, work safety, and other links shall be regulated and strengthened according to the law. All regions shall be encouraged to promote lists for administrative approval of market access items (in restricted class) among governments at county, municipal, and provincial levels, specifying the titles of approval items, basis of establishment, scope of application, enforcers, application conditions, lists of and requirements for application materials, procedure, and time limits, among others. The building of an online joint approval and regulation platform featuring "unity and standardization, parallel operation, information sharing, efficiency and convenience, transparent operations, and whole-process regulation" shall be accelerated to achieve "notification, acceptance, handling, and regulation through one website" of all approval items.
19. Establishing and improving a regulatory mechanism commensurate with the market access negative list regime.
All regions and all authorities shall intensify the interim and ex-post regulation of the investment and operations of market participants according to the principles of attending to their respective duties and exercising regulation according to the law. The principles of red tape cut and delegation of powers, lawful regulation, equity and transparency, a match between power and duties, and joint social governance shall be followed to transform regulatory concepts, innovate in regulatory means, improve regulatory efficiency, optimize the regulation of post-access market conduct, and ensure that the items outside market access negative lists are susceptible of both delegation and regulation. Relevant authorities shall enhance the development, adjustment, and management of development strategies, development plans, industry policies, and standards and specifications, among others, strictly and lawfully draw "red lines," and tighten interim and ex-post regulation. All regions shall be encouraged to promote regulatory lists among governments at county, municipal, and provincial levels to specify regulatory items, regulatory basis, regulators, regulatory power, regulatory content, regulatory methodologies, regulatory procedure, and punitive measures and build a regulatory pattern organically combining legal binding force, administrative regulation, industry regulations, public participation, and honesty and self-regulation of enterprises. Industry associations and chambers of commerce shall establish and improve self-regulatory rules, pacts, and codes of professional ethics for operations in the industries and an industry self-regulation mechanism commensurate with the market access negative list regime.
20. Establishing and improving a social credit system and an incentive and punishment mechanism commensurate with the market access negative list regime.
The social credit system shall be improved, the enterprise credit information publication system shall be refined, and the credit records of market participants shall be included in the "Credit China" website and the unified national credit information sharing and exchange platform as an important basis for various market participants to engage in production, investment, circulation, consumption, and other economic activities. The establishment of a pre-access credit undertaking system of market participants shall be promoted, requiring them to give a public undertaking that they are willing to accept punishment and restrictions if operating in violation of the law or in bad faith. The credit undertakings shall be included in the credit records of market participants. The mechanism of incentives for honesty and punishment for dishonesty shall be improved, classification and dynamic administration shall be implemented based on the credit standing of market participants, the honest shall be supported and stimulated, and the dishonest shall be restricted in investment and financing, land supply, bidding, fiscal appropriation arrangements, and other aspects in accordance with the laws and regulations. Market participants in serious violation of market competition, disrupting the order of market economy, or infringing upon the lawful rights and interests of consumers, labors, and other businesses shall be "blacklisted," and one in serious violation of the law or committing dishonesty shall be banned from entering markets in accordance with the law.
21. Establishing and improving an information publication regime and an information sharing regime commensurate with the market access negative list regime.
The Enterprise Credit Information Publication System shall be depended on to improve the enterprises' annual filings and instantaneous information publication, random inspection of published information, abnormal businesses catalogs, lists of enterprises in serious violation of the law, and other regimes. The information arising over the course of enterprises engaging in production and operations and government agencies fulfilling their duties sufficient to reflect the status of enterprises shall be published in a timely manner according to the Interim Regulation on Enterprise Information Disclosure and other relevant provisions. Credit restraint measures shall be taken against enterprises failing in timely publication, concealing information, or making falsehood so as to ban or restrict them in government procurement, bidding for projects, assignment of state-owned land, and other aspects as legally required. All regions and all authorities shall, according to the general requirements of the state, boost the building of the credit information system in their respective administrative regions or fields and achieve the interconnection and sharing of information through the unified national credit information sharing and exchange platform.
22. Improving the system of laws and regulations corresponding to the market access negative list regime.
A market access negative list regime shall be implemented in adherence to paying equal attention to amending "old laws" and making "new laws". Relevant authorities shall review the laws, regulations, rules, regulatory documents, and various administrative approval relating to market access, investment, and operations comprehensively, according to the statutory procedure, and revise or repeal or propose the revision or repeal of what is required to be revised or repealed. In relation to items not on market access negative lists, the basis of establishment shall be repealed or amended in a timely manner. Any item in conflict with a law in force shall be disclosed to the public after the National People's Congress or its Standing Committee has amended or suspended the implementation of the relevant law at the request of the State Council; and any item in conflict with an administrative regulation in force shall be disclosed to the public after the State Council has amended or suspended the implementation of the relevant administrative regulation. Relevant legislation commensurate with the market access negative list regime shall be accelerated to ensure that the administrative measures for and power of market access are determined by law and that there are laws to abide by in relation to interim and ex-post regulation.
VI. Accelerating relevant system reform and regime building
23. Establishing an investment mechanism commensurate with the market access negative list regime.
The investment projects of enterprises other than projects relating to national security or ecological security, or affecting the national distribution of significant productivity, exploitation of strategic resources, or significant public interests shall all be decided by enterprises autonomously in accordance with the laws and regulations, without the approval of the government. The NDRC shall, as required by the State Council, reform the confirmation system for the investment projects of enterprises, revise, release and implement the Catalog of Investment Projects Subject to Government Confirmation according to procedure in good time, minimize the scope of confirmation of the investment projects of enterprises, and achieve online consolidated handling of project confirmation. The interaction among and regulation by planning, land and resources, environmental protection, technology, security regulation, and other authorities shall be strengthened, and access shall be controlled by environmental protection, resource conservation, technology, and security standards, among others. The fixed-asset investment projects invested in and established by foreign-funded enterprises shall be governed by the same confirmation or recordation procedure as Chinese-funded enterprises according to the principle of national treatment.
24. Establishing a business registration mechanism commensurate with the market access negative list regime.
The reform of the business system shall be deepened, the implementation of "integrating business license, organization code certificate, and certificate of taxation registration into one" and "one code for one business license" shall be accelerated, and a unified social credit code regime for legal persons and other organizations shall be promoted. Ex-ante approval items shall be simplified, qualification items shall be reduced, and if a market participant freely invests or operates, it shall not be restricted from entering any field unless such entry is banned or restricted by any law, administrative regulation, or the decision of the State Council. Existing administrative measures involving market access shall be reviewed, and any administrative measures in default of a basis in any law, administrative regulation, or decision of the State Council shall be canceled.
25. Establishing a foreign investment administration mechanism commensurate with the market access negative list regime.
Relevant authorities shall develop foreign investment negative lists without delay according to the pre-access national treatment plus negative list management mode. According to the requirements of a well-regulated approach and facilitation, the licensing procedure in the foreign investment field shall be incrementally simplified, the implementation of one-stop approval shall be explored, and licensing links shall be cut. As needed for the maintenance of national security, the well-regulated and strict foreign investment security review regime shall be improved without delay. If foreign investment affects national security, security review shall be conducted according to the national security review regime and relevant measures. Interim and ex-post regulation shall be tightened, and a foreign investment information reporting regime and a foreign investment information publication regime shall be established, so as to build up a regulatory system for the whole process of foreign investment featuring information sharing and collaborative regulation among government agencies and the public participation in supervision.
26. Creating a market environment of fair transactions and equal competition commensurate with the market access negative list regime.
Relevant authorities shall review and repeal as required various provisions and practices restricting the market from playing a decisive role in allocating resources and hindering the unified national market and fair competition, ban and punish various the conduct of implementing preferential treatment policies in violation of the law, combat regional protectionism, monopoly, and unfair competition, and prevent relevant policies from obstructing the unified national market and fair competition. A series of systems and mechanisms for the definition, operation, and protection of property rights shall be improved to protect real rights, claims, equities, intellectual property rights, and other various property rights in accordance with the law. Equality of rights, opportunities and rules shall be adhered to, unreasonable provisions in various forms on non-public economy shall be repealed, all invisible barriers shall be eliminated, and specific measures ensuring that various market participants lawfully and equally enter naturally monopolized and concessional fields shall be developed.
All regions and all authorities shall, from the perspective of boosting the modernization of the national governance system and governance capability, fully recognize the importance and urgency of implementing the market access negative list regime, effectively develop and implement the market access negative list regime, accelerate the advancement of relevant reform and the building of supporting regimes, and discover and resolve emerging, trend, and potential problems in a timely manner, so as to ensure the actual effect of the reform.
Annex: Work Proposal for Launching the Pilot Program of the Market Access Negative List Regime
State Council
October 2, 2015
(This document shall be disclosed to the public)
Annex
Work Proposal for Launching the Pilot Program of the Market Access Negative List Regime
Article 1 According to the requirements of the Decision of the CPC Central Committee on Several Significant Issues concerning Comprehensively Deepening Reform: "A unified market access regime shall be implemented, and on the basis of developing negative lists, various market participants may lawfully and equally enter fields outside the lists" and the Several Opinions of the State Council on Promoting Fair Market Competition and Maintaining the Normal Market Order (No. 20 [2014], State Council): "The market access regime shall be reformed," the State Council decided to elect a portion of regions to launch the pilot program of the market access negative list regime. To advance the reform in a correct, orderly, and coordinated manner, this Proposal is hereby developed.
Article 2 "Market access negative list regime" means a series of institutional arrangements that the State Council explicitly sets forth the industries, fields, and business in which investment and operations are banned or restricted in the territory of the People's Republic of China, and the governments at all levels take corresponding administrative measures according to the law. Any industry, field, or business not on a market access negative list may be entered by various market participants in a lawful and equal manner.
Article 3 This Proposal shall apply to regions conducting the pilot program of the market access negative list regime with the approval of the State Council. The other regions shall continue implementing the existing administrative mode.
Article 4 The pilot program shall follow the principles of red tape cut and delegation of powers, regulation by law, equity and transparency, a match between power and duties, and joint social governance, effectively handle the relation between the government and the market, and allow the market to play a decisive role in allocating resources and the government to play a better role. Market access negative lists shall be developed according the principles of the rule of law, safety, incremental progress, necessity, and openness.
The regions under the pilot program shall take institutional innovation as essential tasks and set the formation of institutional experience susceptible of reproduction and promotion as the basic requirement.
Article 5 A provincial people's government in the region under the pilot program shall put forward a proposal for the contemplated trial implementation of the market access negative list regime according to the draft market access negative list arising out of the summarization and review under the leadership of the NDRC and the Ministry of Commerce and implement the regime with the approval of the State Council.
While exploring the procedure for the development, implementation, and amendment of market access negative lists, regions under the pilot program shall continuously deepen the relevant reform, establish and improve access mechanisms, approval mechanisms, regulatory mechanisms, social credit system and incentive and punishment mechanisms, information publication regime and information sharing regime, investment systems, business registration regimes, and foreign investment administration mechanisms commensurate with the market access negative list regime, create a market environment of fair transactions and equal competition, and propose improving the system of laws and regulations corresponding to the market access negative list regime.
During the pilot program, various market participants may not invest or operate in any industry, field, or business as set out in access-banning lists; and various market participants interested in investing or operating in any industry, field, or business as set out in access-restricting lists may enter the industry, field, or business only with approval or otherwise administrative recognition according to the relevant provisions in any law, administrative regulation, or decision of the State Council. Any industry, field, or business not on a negative list may be entered by various market participants in a lawful and equal manner without the approval of the government. The combination of delegation and control shall be adhered to, and relevant authorities shall take into account the factors in national security, ecology and environment, public interests, work safety, and other aspects, improve the comprehensive consideration indicator system, implement the first assumption of liability by enterprises, strengthen regulation by law, establish a security review and regulation accountability system, and build up a new pattern featuring government regulation, autonomy of enterprises, industry self-regulation, and social supervision. For items subject to market access negative lists, the adoption of undertaking-based access and other means may be researched according to different situations to further heighten the implementation of recordation by notification, publication of access information, and other supporting measures.
During the pilot program, the provincial people's governments in regions under the pilot program shall propose amending market access negative lists based on the progress in the reform and the prominent problems reported by various market participants and implement the amendment with the approval of the State Council.
Article 6 During the pilot program, the provincial people's governments in regions under the pilot program may, as needed of implementing the market access negative list regime, with the authorization or consent of the State Council, provisionally amend the Catalog for Guiding Industrial Restructuring, the Catalog of Investment Projects Subject to Government Confirmation, and other relevant provisions. If the suspension of the implementation of any relevant law or administrative regulation, or any relevant provisions thereof, is required, the statutory procedure shall be followed.
Article 7 The provincial people's governments in regions under the pilot program shall strengthen organization, leadership, and overall coordination, establish process administration, early warning and forecast, feedback, dynamic performance evaluation, and other working mechanisms, and refine supporting policies and measures, so as to ensure substantial progress in the reform.
Article 8 The NDRC and the Ministry of Commerce shall take the lead in guidance, coordination, procurement, assessment, and other work of the pilot program of the market access negative list regime and report significant information and important problems to the State Council in a timely manner. Relevant authorities shall augment the connection with the work in the regions under the pilot program and pioneer reform measures optimizing market access administration in the regions under the pilot program.
Article 9 Regions under the pilot program shall summarize experience in a timely manner, be good at discovering emerging, trend, and potential problems, correct deviations and improving policies in a timely manner, and advance the work solidly, so as to ensure the accomplishment of reform tasks on schedule.
The provincial people's governments in regions under the pilot program shall regularly submit reform and pilot program reports to the State Council. Intermediate assessment reports shall be submitted within one month from the elapse of one year after the commencement of the pilot program; and summary reports shall be submitted within two months from the expiry of the pilot program.
During the pilot program, the NDRC and the Ministry of Commerce shall take the lead in organizing third-party assessment, objectively investigate and comprehensively assess the implementation of the reform, implementation effect, acquired experience, existing problems, and factors of influence, among others, and offer opinions on improvements. In intermediate assessments and summarization assessments, regions under the pilot program shall first adopt the mode of third-party assessment.
Article 10 This Proposal shall be subject to the interpretation of the NDRC and the Ministry of Commerce.
Article 11 This Proposal shall come into force on December 1, 2015 and remain in force until December 31, 2017.