我国外资并购中的国家安全审查制度
慕亚平,肖小月我国外资并购中的国家安全审查制度
China's National Security Review System of ForeignC apital M&A
期刊名称：《法学研究》
期刊年份：
作者：慕亚平,肖小月
单位：中山大学法学院;中山大学国际法
中文关键词：外资并购;国家安全审查;经济安全审查
英文关键词：foreign capital M&A;national security review;economic security review
中文摘要：
我国对外资并购的监管在不断变化和调整过程中逐渐形成体系。但现行法律关于国家安全审查的规定相对简单，缺乏系统性和可操作性。国家安全审查有其独立性，行业审查和反垄断审查均不能代替国家安全审查。建议我国成立类似于反垄断委员会的国家安全审查委员会，专门处理外资并购的国家安全审查问题，并从审查对象、审查标准、审查机关、审查程序、救济途径等方面完善国家安全审查制度。
英文摘要：
China’s regulation policy on foreign capital M&A has gradually formed a system through constant change and adjustment. However, the existing legal provisions regarding the national security review are relatively simple, unsystematic and lacking of operability. In addition, due to the independence of the national security review, it can not be replaced by either the industry review or the anti-monopoly review. Therefore, to perfect China’s national security review system is of great significance. It is proposed by this thesis to set up a national security review committee (similar to the anti-monopoly committee) to deal with the national security review issues of foreign capital M&A specifically, to coordinate the related work of different ministers and to lead the national security review effectively. The standing organization of such committee may be set in the Ministry of Commerce or the National Development and Reform Commission, and “the related ministers” may consist of many national departments, such as the Ministry of National Defense, the Ministry of State Security, the National Development and Reform Commission, the Ministry of Finance, the Ministry of Commerce, the Ministry of Science and Technology, the State-owned Assets Supervision and Administration Commission of the State Council, the Ministry of Justice, and so on. It is also suggested that the committee should further improve the national security review system from several perspectives, such as the objects of review, its standards, its procedure, the relief methods, and so on. The objects of review should be clearly defined, especially the foreign capital. The nationality of investors should be judged by their establishing places as primary standard, as well as the actual control standard and the capital origin standard. The standard of national security review should be refined, including the control standard and security review standard. And the procedure of review can be divided into four stages: the Declaration (Intervention) stage, the First trial stage, the Investigation stage, and the Decision (Announcement) stage. It is also suggested that the concerned party or other interest-related persons can submit the decision to the Standing Committee of the NPC if they do not agree with the final decision made by the National Security Commission.
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