Business and Life in China

A Brief Introduction to Chinese Visa and the Procedure for Visa Application


Chinese visa is a permit issued to a foreigner by the Chinese visa authorities for entry into, exit from or transit through the Chinese territory. The Chinese visa authorities may issue a diplomatic, courtesy, service or ordinary visa to a foreigner according to his identity, purpose of visit to China and passport type. Hereunder is an introduction to the ordinary visa and its application procedure:


The ordinary visas consist of eight sub-categories, which are marked with Chinese phonetic letters (D, Z, X, F, L, G, C, J-1 and J-2 respectively).


Visa D:issued to aliens who are to reside permanently in China. A permanent residence confirmation form shall be required for the application of Visa D. The applicant shall apply to obtain this form himself or through his designated relatives in China from the exit-and-entry department of the public security bureau in the city or county where he applies to reside.


Visa Z:Issued to aliens who are to take up posts or employment in China, and to their accompanying family members. To apply for a Visa Z, an Employment License of the People's Republic of China for Foreigners (which could be obtained by the employer in China from the provincial or municipal labor authorities) and a visa notification letter/telegram issued by an authorized organization or company are required.


Visa X:Issued to aliens who come to China for study, advanced studies or job-training for a period of six months or more. To apply for a Visa X, certificates from the receiving unit and the competent authority concerned are required, i.e., Application Form for Overseas Students to China (JW201 Form or JW202 Form), Admission Notice and Physical Examination Record for Foreigners.


Visa F:Issued to an applicant who is invited to China on a visit, on a study or lecture, business tour, for scientific-technological and cultural exchanges, for short-term refresher course or for job-training, for a period of no more than six months. To apply for a Visa F, the invitation letter from the inviting unit or the visa notification letter/telegram from the authorized unit is required.


Visa L:Issued to aliens who come to China for sightseeing, visiting relatives or other private purposes. For a tourist applicant, in principle he shall evidence his financial capability of covering the travelling expenses in China, and when necessary, provide the air, train or ship tickets to the heading country/region after leaving China. For the applicants who come to China to visit relatives, some are required to provide invitation letters from their relatives in China.


Visa G:Issued to aliens who transit through China. The applicants are required to show valid visas and on-going tickets to the heading countries/regions.


Visa C:Issued to train attendants, air crewmembers and seamen operating international services, and to their accompanying family members. To apply for a visa C, relevant documents are required to be provided in accordance with bilateral agreements or regulations of the Chinese side.


Visa J-1:Issued to foreign resident correspondents in China.


Visa J-2:Issued to foreign correspondents who make short trip to China on reporting tasks. The applicants for J-1 and J-2 visas are required to provide a certificate issued by the competent Chinese authorities.


In addition to providing the above-mentioned documents, an applicant is also required to answer relevant questions and go through the following formalities (with the exception of those stipulated otherwise by agreements):


Providing valid passport or a travel document in lieu of the passport


Filling out a visa application form, and providing a recent 2-inch, bareheaded and full-faced passport photo.



Paying the visa fee.


The overseas Chinese visa authorities are Chinese embassies, consulates, visa offices, the consular department of the Office of the Commissioner of the Ministry of Foreign Affairs in HKSAR, and other agencies abroad authorized by the Ministry of Foreign Affairs of China. If a foreigner intends to enter into, exit from or transit through the Chinese territory, he shall apply to the above-mentioned Chinese visa authorities for a Chinese visa. For further information, please consult the nearest Chinese visa authorities.

CHINA’S FRANCHISE LEGAL SYSTEM


by lawyer Erex Chen

V & T Law Firm

Shanghai China

erexcxl@yahoo.com.cn


Introduction


Franchises has a history of more than one hundred years in foreign countries, now it has developed to be a mature business mode, and it is widely used in many countries, especially the developed ones. Recently, franchises has been developing fast in China, covering more than sixty industries and trades such as catering, retailing, clothes-washing, indoor decorations and gym. However, the market order of franchises is chaotic in some industries and areas. There are also some illegal and criminal activities under the guise of franchises. Under such circumstances, several important laws have been promulgated to regulate the commercial franchising activities.


Applicable Legislation


The main legislative provisions governing the commercial franchising in the PRC are:

the Measures on Administration of Commercial Franchises; and

the Measures on Administration of Archival Filing of Commercial Franchises; and

the Measures on Administration of Information Disclosure of Commercial Franchises


Qualification for Franchisors


According to the laws, the franchisors as those enterprises who own such business sources as registered trademarks, enterprise logos, patents and proprietary technology, and license these business sources to franchisees.


Firstly, the franchisors shall be enterprises, excluding other economic organizations and individuals.


Secondly, the trademarks which can be licensed to franchisees shall be registered trademarks. According to the Trademark Law, the trademarks, whether registered or not, are protected under the laws, though there is difference in the vigor and extents of protection. It seems that the Ministry of Commerce has restrictions in recognizing trademarks, since it only provides “own trademarks to be licensed to others” at large, which causes chaos in practice. In the cases relevant to franchising disputes which we provided legal service to, all of them involve the situation that the franchisors granted licenses of non-registered trademarks or the trademarks which were in application to others, and when there was infringement on trademarks, the franchisors were unable to prevent infringement on trademarks. Then the interests of the franchisees could not be realized. What’s more, franchising activities with non-registered trademarks also, to some extent, encourage commercial frauds.


Thirdly, the logos, patents and proprietary technology of enterprises are included in the business sources to be licensed to others for the first time, which enlarges the application scope of franchises and will improve the development of franchises.

Requirements to be Met in Carrying on Franchising Activities


In addition to the condition that only the enterprises will be allowed to carry on franchising activities referred to above, the franchisors shall also have mature business modes, and are able to provide business guidance, technology support and training. The enterprises which copy the manuals, websites and enlisting documents of others, and have no service abilities for providing business guidance, technology support and training shall be excluded. What needs pointing out is that even these enterprises that are allowed to carry on business may face with the suits claiming them for unfair competition and infringements on intellectual properties. In addition, the Measures clearly request that the franchisors shall operate at least two directly operated shops, and the period of operation shall be more than 1 year, which aims to prevent frauds by the way of franchising.


Information Disclosure Requirements and Regulation on Franchisors


Information disclosure system is the core system of franchising. The laws provides that the franchisors shall establish and implement a perfect information disclosure system, and provide the relevant information and franchising contracts in written form, at least thirty days before execution of franchising contracts. It also sets out the specific provisions on the information which shall be provided by franchisors, including the basic conditions and commercial reputation records of the franchisors and their legal representatives, business sources owned by franchisors, abilities of franchisors to provide service to franchisees and management and supervision on business of franchisees, franchisee fees and the payments, and budgets for investment in franchising shops. To the franchisors that violate these provisions, the authorities in charge of commerce will order them to rectify, charge penalties and make public statements.


Archival Filing and Public Announcement Systems


To protect the franchisees’ lawful rights and interests, considering the asymmetric information between franchisors and franchisees, in addition to intensifying information disclosure requirements and regulating the activities of franchisors, the Measures also bring in the archival filing and public announcement systems. The Measures provides that the franchisors shall make a filing with the commerce administrative department within 15 days after the execution of franchising contracts for the first time. Anyone who intends to engage in any commercial franchise activities within a province, autonomous region, or municipality directly under the Central Government shall go through the archival filing formalities in the commerce administrative department of the people’s government of the province, autonomous region, or municipality directly under the Central Government where the franchisors are located. Anyone who intends to engage in any commercial franchise activities beyond a province, autonomous region, or municipality directly under the Central Government shall go through archival filing formalities in the commerce administrative department of the State Council. Any franchisor having been engaging in franchise activities before May 1, 2007 shall apply for archival filing at the commercial administrative department.


The Ministry of Commerce has established the national network for archival filing work relating to commercial franchise. Any franchisor shall go through the archival formalities through the government website. The general public may obtain the following information through the government website of the Ministry of Commerce: (1)The registered trademark(s), enterprise mark(s), patent(s), know-how and other business resources of the franchisor; (2)The franchisor’s archival filing date; (3)The location of the legal business place, contact information and name of the legal representative of the franchisor; and (4)The location of the business place of the franchisee(s) within China.


The authorities in charge of filing will cancel the archival filing if there is any following activities of franchisors, and make public announcement on the government website: (1) the business licenses of the franchisors have been withdrawn by the registration administrative authorities for illegal business; (2) the authorities in charge of filing receive judicial suggestion letter on cancellation of archival filing from the judiciary for illegal business by franchisors; (3) the franchisors conceal the relevant information or provide false information, which has been proved; (4) the franchisors carry on cancellation by themselves. In addition, the illegal activities of the franchisors will be announced to the public.