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笔者曾见到这样一家合资企业:在公司章程及合资经营合同中,一方面明确规定“合资期内,企业不得减少其注册资本”;另一方面又同时规定“生产的产品80％由合资乙方(即外资方)出口外销,全部以外汇结算,乙方除留存当年应留的折旧费(按乙方投资总额的10％留存),余额应以外汇汇入合资企业在国内开设的外汇帐户内,为企业发展时增加设备之用。”这显然是自相矛盾的。我国《中外合资经营企业财务管理规定》第10条明确规定:“合营企业在合营期内,合营各方不得以任何名义和方式抽回其注册资本。”这家企业的外资方每年按其投资额的10％“留存折旧”,是变相地抽回资本,明显违反了我国《中外合资企业财务管理规定》和该公司制订的公司章程及合同。同时,这样的合同实际上是一件“不平等条约”,外资方每年既可按其投资比例分配利润,又可每年按投资总额的10％抽回资本,而中方却不能享受同样的权利。奇怪的是:像这样显然不符合我国法规的公司章程竟为中方所接受,在企业
I have seen such a joint venture: In the company’s articles of association and joint venture contracts, it is clearly stated on the one hand that “in the joint venture period, the company must not reduce its registered capital”; on the other hand, it also stipulates that “80% of the products produced are from the joint venture B. (i.e., foreign investment) is exported for export, all of which are settled in foreign exchange, and Party B retains the depreciation expense (according to 10% of the total investment of Party B) in the current year, and the balance shall be remitted into the foreign exchange account opened by the joint venture in China for foreign exchange. When the company develops, it increases the use of equipment.“ This is obviously contradictory. Article 10 of China’s “Financial Management Regulations for Chinese-foreign Equity Joint Ventures” clearly stipulates: “In the joint venture period, joint venture parties must not withdraw their registered capital in any name or manner.” Foreign capital of this enterprise is invested annually according to its The 10% ”retention of depreciation“ is a withdrawal of capital in disguised form, which is a clear violation of China’s Financial Management Regulations for Sino-Foreign Joint Ventures and the company’s charter and contract. At the same time, such a contract is actually an ”unequal treaty." Foreign investors can distribute their profits each year according to the proportion of their investment, and they can withdraw capital every year according to 10% of the total investment, but the Chinese side cannot enjoy the same rights. The strange thing is: The articles of incorporation of companies that obviously do not comply with China’s laws and regulations are actually accepted by the Chinese government.