Table of Contents
Chapter I: General Provisions
Article 1 These Regulations are formulated for the purposes of regulating the administration of technology import and export, safeguarding national security and public interests, promoting technological progress and foreign economic and technological cooperation, and maintaining the order of the technology import and export market.
Article 2 For the purposes of these Regulations, “technology import and export” means acts of transferring technology from outside the territory of the People’s Republic of China into the territory of the People’s Republic of China, or from within the territory of the People’s Republic of China to outside the territory of the People’s Republic of China, by means of trade, investment, or economic and technological cooperation. Such acts include the transfer of patent rights, the transfer of patent application rights, the licensing of patent exploitation, the transfer of proprietary technology, technology services, and other forms of technology transfer.
Article 3 The state shall implement a unified administration system for technology import and export, and shall adopt a categorized administration policy of encouraging, restricting, and prohibiting technology import and export in accordance with law.
Article 4 Technology import and export shall comply with the state’s industrial policy, scientific and technological policy, and development strategy, and shall be conducive to promoting scientific and technological progress and economic and social development in China, and to safeguarding national economic security and public interests.
Article 5 The state shall allow the free import and export of technologies. However, technologies whose import or export is prohibited or restricted by laws and administrative regulations shall be governed by such provisions.
Article 6 The competent department for foreign trade and economic cooperation under the State Council (hereinafter referred to as the “competent department for foreign trade”) shall, in accordance with the provisions of these Regulations, be responsible for the administration of technology import and export nationwide. The competent departments for foreign trade and economic cooperation of the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall, in accordance with the authorization of the competent department for foreign trade under the State Council, be responsible for the administration of technology import and export within their respective administrative areas. The relevant departments under the State Council shall, in accordance with the provisions of the State Council, perform their relevant duties in the administration of technology import and export.
Chapter II: Technology Import Administration
Article 7 The state shall encourage the import of advanced and applicable technologies. The provisions of Articles 8 and 9 of these Regulations shall not apply to the import of technologies that may be freely imported. Where technologies that may be freely imported are imported, the contract shall become effective upon its conclusion in accordance with law, and the contract shall be submitted to the competent department for foreign trade under the State Council or its authorized organ for filing for record purposes.
Article 8 The state shall impose quota or licensing administration on the import of restricted technologies. Where restricted technologies are imported, an application shall be submitted to the competent department for foreign trade under the State Council for a technology import license.
Article 9 The competent department for foreign trade under the State Council shall, within 30 working days from the date of receiving the application documents for technology import, make a decision on whether to approve the technology import application and notify the applicant. Where the technology import application is approved, a technology import license of intent shall be issued. After signing the technology import contract, the applicant shall apply to the competent department for foreign trade under the State Council for the issuance of a technology import license.
Article 10 The procedures for applying for a technology import license shall be prescribed by the competent department for foreign trade under the State Council.
Article 11 A technology import contract shall not contain any of the following restrictive clauses unless approved by the competent department for foreign trade: (1) requiring the technology import recipient to accept additional conditions not indispensable to the technology import, including purchasing unnecessary technology, raw materials, products, equipment, or services; (2) requiring the technology import recipient to pay for or undertake obligations relating to technology whose patent right term has expired or whose patent right has been declared invalid; (3) restricting the technology import recipient from improving the technology provided by the technology transferor, or restricting the technology import recipient from using the improved technology; (4) restricting the technology import recipient from sourcing raw materials, parts and components, products, or equipment from other channels; (5) restricting the quantity, variety, or sale price of the products produced using the imported technology; (6) unreasonably restricting the export channels of the products produced using the imported technology; or (7) requiring the technology import recipient to pay royalties for the technology that is not used.
Article 12 The parties to a technology import contract shall agree in the contract on the scope of the technology to be imported, the scope of exploitation of the technology, and the ownership of the improved technology. Where the technology import recipient improves the technology provided by the technology transferor within the scope of exploitation stipulated in the contract, the improved technology shall belong to the party that made the improvement, unless otherwise agreed in the contract.
Article 13 During the term of validity of the technology import contract, where the patent right of the technology licensed under the contract is declared invalid or the patent right term expires, the technology import recipient may request the technology transferor to modify the relevant clauses such as the royalty fees. The technology transferor shall not refuse without justifiable reasons.
Article 14 The technology transferor shall ensure that it is the lawful owner of the technology provided or has the right to transfer or license the technology. Where a third party accuses the technology import recipient of infringement, the technology transferor shall assist the technology import recipient in removing the impediment. Where the technology import recipient suffers losses due to the infringement of a third party’s rights, the technology transferor shall assume liability for compensation.
Article 15 The technology transferor and the technology import recipient shall agree in the contract on the confidentiality obligations and the duration of the confidentiality period for the proprietary technology and trade secrets involved in the technology provided. During the confidentiality period, the confidentiality obligations shall continue to be binding on both parties after the modification, rescission, or termination of the contract.
Article 16 Where the competent department for foreign trade does not approve the import of a technology within the prescribed time limit, the applicant may apply for administrative reconsideration or institute an administrative lawsuit in accordance with law.
Chapter III: Technology Export Administration
Article 17 The state shall encourage the export of mature industrialized technologies and supporting technologies. The provisions of Articles 18 and 19 of these Regulations shall not apply to the export of technologies that may be freely exported. Where technologies that may be freely exported are exported, the contract shall become effective upon its conclusion in accordance with law.
Article 18 The state shall impose quota or licensing administration on the export of restricted technologies. Where restricted technologies are exported, an application shall be submitted to the competent department for foreign trade under the State Council for a technology export license.
Article 19 The procedures for applying for a technology export license shall be prescribed by the competent department for foreign trade under the State Council.
Article 20 Technology export shall not endanger national security or public interests, and shall comply with the international obligations undertaken by China in the international treaties or agreements concluded or acceded to. The state shall implement export control on technologies relating to nuclear technology, nuclear dual-use items and related technologies, controlled chemicals, military products, and other sensitive items and technologies. The export of controlled technologies shall be subject to the relevant laws and administrative regulations.
Article 21 Where the competent department for foreign trade under the State Council does not approve the technology export license application within the prescribed time limit, the applicant may apply for administrative reconsideration or institute an administrative lawsuit in accordance with law.
Chapter IV: Legal Liability
Article 22 Where a person imports or exports technologies that are prohibited from import or export, or imports or exports restricted technologies without authorization, criminal liability shall be pursued in accordance with the provisions of the criminal law on the crime of smuggling, the crime of illegal business operations, the crime of divulging state secrets, or other crimes; where the circumstances are not serious enough for criminal punishment, customs penalties shall be imposed in accordance with law, or the competent department for foreign trade under the State Council shall give a warning, confiscate the illegal gains, and impose a fine of not less than one time and not more than five times the illegal gains; where there are no illegal gains or the illegal gains are less than RMB 50,000, a fine of not less than RMB 50,000 and not more than RMB 250,000 shall be imposed. The competent department for foreign trade under the State Council may also revoke its technology import and export business license.
Article 23 Where a person obtains a technology import or export license by fraud or other improper means, the competent department for foreign trade under the State Council shall revoke the technology import or export license and impose a fine of not less than one time and not more than five times the illegal gains; where there are no illegal gains or the illegal gains are less than RMB 50,000, a fine of not less than RMB 50,000 and not more than RMB 250,000 shall be imposed.
Article 24 Where a person forges, alters, or buys or sells a technology import or export license or certificate, criminal liability shall be pursued in accordance with the provisions of the criminal law on the crime of illegal business operations or the crime of forging, altering, or buying or selling official documents, certificates, or seals of state organs; where the circumstances are not serious enough for criminal punishment, customs penalties shall be imposed in accordance with law, or the competent department for foreign trade under the State Council shall give a warning, confiscate the illegal gains, and impose a fine of not less than one time and not more than five times the illegal gains; where there are no illegal gains or the illegal gains are less than RMB 50,000, a fine of not less than RMB 50,000 and not more than RMB 250,000 shall be imposed.
Article 25 Where the import or export of technologies is conducted by means of deception or other improper means to obtain tax preferences, penalties shall be imposed in accordance with the relevant laws and administrative regulations on taxation.
Article 26 Where any provisions of these Regulations are violated and a crime is constituted, criminal liability shall be pursued in accordance with law.
Chapter V: Supplementary Provisions
Article 27 Technology import and export conducted by foreign-invested enterprises within the territory of China shall be governed by these Regulations.
Article 28 The import and export of technology relating to military products shall be governed by the relevant laws and administrative regulations.
Article 29 Technology transfer conducted between the mainland and the Hong Kong Special Administrative Region, the Macao Special Administrative Region, and the Taiwan region shall be governed by these Regulations.
Article 30 These Regulations shall come into force on January 1, 2002. The Regulations of the People’s Republic of China on the Administration of Technology Import Contracts promulgated by the State Council on May 24, 1985, and the Administrative Measures for Technology Introduction Contracts and Their Approval Procedures promulgated by the State Council on January 21, 1988, shall be repealed simultaneously.
Translation note: This is an unofficial English translation for reference purposes. The original Chinese text shall prevail in all legal matters.
