내국민대우원칙에 따른 중국 외자기업법제 개편논의와 전망

다국어 초록 (Multilingual Abstract)

The WTO system made all membership countries to follow the international trade regulations system, and the fundamental measures of China on joining WTO is to complete its market economy law system to match the needs of market economy and WTO demands.
China's foreign investment law still includes articles that are contrary to national treatment and basic principles of WTO despite the revision in year 2000 and 2001. Also, there were no change or actual improvements done on the collision and contradiction between laws, and those with their superior ordinances as well as disharmony between foreigners investment enterprise and company laws, and other civil, mercantile laws. This situation is negatively and passively influencing China's politic issues called as creation of a healthy, clear foreign investment inducing environment.
However, in August 2006, the Standing Committee of the National People’s Congress commenced the discussion on the amendment of the Income Taxes Act that unifies the enterprise income taxes of domestic and foreign enterprises and this law is expected to take effect as of 2008. Such movement for unifying the income taxes of foreign and domestic capital corporations is directly related, in terms of depth and timing, to the long-debated topic of the amendment of China's foreign investment law system.
The concern with the China's foreign investment law is the fact that, rather than treating foreign investors with disadvantage and prejudice, the domestic enterprises are being held in unfavorable positions because the foreign investments are being granted with too much privilege. Therefore the process of the national treatment became essential in revolutionizing the China's foreign investment law system.
China, which has become the country in possession of the most foreign exchange, changed their attitude from what they used to passively and reluctantly seek for the need of amending the National Treatment as a mandatory WTO measure to what they now try to actively rationalize the need for an amendment that complies with the National Treatment while the academia is pursuing a balanced combination of the China's Transcendental National Treatment and the WTO's National Treatment.
Even if the Income Taxes Act that unifies the income taxes of foreign-domestic enterprises is introduced, considering the positive roles that foreign enterprises are responsible for and the priority that the WTO grants to developing countries in terms of their investment, a Unified Corporation Act that will effectively demonstrate the national treatment in a short period of time seems difficult.
Considering the fact that the WTO National Treatment is in gradual progress and that China is familiar with procedural unified law translation by disperse lawmaking, the Code of Foreign Investment Unification theory seems like a more reasonable and feasible amendment method than the mono-track system amendment theory or the standard corporation act amendment theory.
Taking into account WTO international trade regulations, world trends of economy globalization, and the Chinese macro-economy, China, hereafter, is expected to concentrate all efforts in improving the environment of hosting foreign capitals by heading towards the ‘national treatment for global convenience’ rather than the ‘ultimate treatment for the Chinese tradition.’ Meanwhile, the country is viewed to change from 'code system' to 'mono-track system' after changing its China's foreign investment law system from 'dual-track system' to 'code system'.

참고문헌 (Reference)

1 吳津, "論入世與我國外資立法的完善" (4) : 2004

2 肖, "論入世與我國外資立法的完善" (2) : 2004

3 문준조, "중국의 WTO가입과 법제정비에 관한 연구" 한국법제연구원 2001

4 윤상직, "외국인직접투자제도해설" 2005

5 조영정, "국제통상법의 이해" 무역경영사 1999

6 최승환, "국제경제법 제3판" 법영사 2006

7 鄭偉, "關于完善中國外商投資法的幾点建議" (6) : 2004

8 余塋, "經濟全球化背景下我國外資法的調整與走向" (9) : 2004

9 余塋, "經濟全球化背景下我國外資法的調整與走向" (9) : 2004

10 余先予, "涉外經濟法總論" 法律出版社 2004

11 解薇, "我國外資立法體系的現狀與重構" (11) : 2004

12 馬忠法李路根, "我國外商投資企業法存在的問題及其對策" 2004

13 陳安, "國際經濟法專論 下" 高等敎育出版社 2002

14 魏國君, "國際經濟法學" 北京大學出版社 2003

15 曾明强翁杰, "入世後中國外資立法若干問題探析" (6) : 2004

16 顧敏康, "以公司法爲本, 中國外資法體系" (4) : 2000

17 鐘立國, "中國 WTO法律制度的適用" 吉林人民出版社 2002

18 주중국 한국대사관, "htttp://www.koreaemb.org.cn"

19 WT0, "http://www.wto.org/"

20 WT0, "http://www.wto.org/"

21 中國 國家外換管理局, "http://www.safe.gov.cn/"

22 中國 商務部, "http://www.mofcom.gov.cn/"

23 中國 最高人民法院, "http://www.court.gov.cn/"

24 中國 法律法規信息系統, "http://law.npc.gov.cn:87/home"

25 安麗, "WTO規則與中國外資法重構" 89 (89): 2002

26 劉筍, "WTO法律規則體系對國際投資法的影向" 中國法制出版社 2001