Article 1 These Regulations hereof are formulated in order to further the opening up to the outside and standardise the administration of foreign-invested construction and engineering design enterprises in accordance with such laws and regulations as the Construction Law of the People’s Republic of China, the Law of the People’s Republic of China on Sino-Foreign Equity Joint Ventures, the Law of the People’s Republic of China on Sino-Foreign Cooperative Joint Ventures, the Law of the People’s Republic of China on Wholly Foreign-Owned Enterprises, the Regulations on Administration of Construction Engineering Quality and the Regulations on Administration of Reconnoitring and Designing of Construction Projects.
Article 2 These Regulations shall apply to the establishment of foreign-invested construction and engineering design enterprises within the territory of the People’s Republic of China, the application for construction and engineering design enterprise qualifications and the administration and supervision of the foreign-invested construction and engineering design enterprises.
The term ‘foreign-invested construction and engineering design enterprise’ mentioned in these Regulations refers to a wholly foreign-owned construction and engineering design enterprise, or a Sino-foreign equity construction and engineering design joint venture or a Sino-foreign cooperatively construction and engineering design enterprise established within the territory of the People’s Republic of China in accordance with Chinese laws and regulations.
Article 3 A foreign investor, which intends to establish a foreign-invested construction and engineering design enterprise within the territory of the People’s Republic of China and carry out construction and engineering design business shall, in accordance with laws, obtain the foreign-invested enterprise approval certificate from the relevant foreign trade and economic cooperation administration department and register with the State Administration of Industry and Commerce or its authorised administration of industry and commerce at local levels, and also obtain the qualification certificate of construction and engineering design enterprise from the relevant construction administration department.
Article 4 Foreign-invested construction and engineering design enterprises shall abide by the laws, regulations and rules of the People’s Republic of China when carrying out construction and engineering design activities within the territory of the People’s Republic of China.
The lawful operation of foreign-invested construction and engineering design enterprises and their legal rights and interests within the territory of the People’s Republic of China shall be protected by Chinese laws, regulations and rules.
Article 5 The foreign trade and economic cooperation administration department of the State Council shall be responsible for the administration of establishing foreign-invested construction and engineering design enterprises. The construction administration department of the State Council shall be responsible for the administration of the qualifications of foreign-invested construction and engineering design enterprises.
The foreign trade and economic cooperation administration departments of the people’s government of provinces, autonomous regions or directly administered municipalities shall be responsible for the administration of establishment of foreign-invested construction and engineering design enterprises within their authorized jurisdiction ; the construction administration departments of the people’s government of provinces, autonomous regions or directly administered municipalities shall, in accordance with these regulations, be responsible for the administration of the qualifications of the foreign-invested construction and engineering design enterprises within their administrative region.
Article 6 The application for and the examination and approval of the establishment of a foreign-invested construction and engineering design enterprise and the qualifications shall be managed by a grading and categorization system.
Where an applicant is to apply for Grade A qualifications for construction and engineering design or other Grade A or Grade B qualifications for construction and engineering design, the establishment of the foreign-invested construction and engineering design enterprise shall be examined and approved by the foreign trade and economic cooperation administration department of the State Council and its qualifications shall be examined and approved by the construction administration department of the State Council. Where an applicant is to apply for Grade B qualifications for construction and engineering design or other Grade C or lower qualifications for construction and engineering design, the establishment of the foreign-invested construction and engineering design enterprise shall be examined and approved by the foreign trade and economic cooperation administration department of the people’s government of the province, the autonomous region or the directly administered municipality and its qualifications shall be examined and approved by the construction administration department of the people’s government of the province, the autonomous region or the directly administered municipality.
Article 7 The procedures for the establishment of a foreign-invested construction and engineering design enterprise and the application for construction and engineering design qualifications or other Grade A or B engineering design qualifications shall be:
(1) The applicant shall submit an application to the foreign trade and economic cooperation administration department of the people’s government of the province, the autonomous region or the directly administered municipality where the proposed foreign-invested construction and engineering design enterprise is to be established.
(2) The foreign trade and economic cooperation administration department of the people’s government of the province, or the autonomous region or the directly administered municipality shall complete the preliminary examination within 30 days of receiving the application, and shall, if it grants the preliminary approval, submit the application to the foreign trade and economic cooperation administration department of the State Council for further approval.
(3) Within 10 days of receiving the application for further approval, the foreign trade and economic cooperation administration department of the State Council shall forward the application to the construction administrative department of the State Council for review and comments. The construction administration department of the State Council shall provide its opinion in writing within 30 days of receiving the request. Within 30 days of receiving the response, the foreign trade and economic cooperation administration department of the State Council shall decide whether or not to approve the application and express such a decision in written form. If the application is approved, a foreign-invested enterprise certificate shall be granted; if the application is not approved, reasons for the disapproval shall be given in written form.
(4) Within 30 days of receiving the approval certificate, the applicant shall carry out enterprise registration with the relevant registration department.
(5) After obtaining business license for the legal entity, if the foreign-invested construction and engineering design enterprise is to apply for the construction and engineering design enterprise qualifications, the application shall be carried out in accordance with the Regulations on Administration of Construction and Engineering Design Enterprise Qualifications.
Article 8 The procedures for the establishment of a construction and engineering design enterprise and the application for Grade B qualifications and Grade C or lower qualifications for engineering design shall be administered by the construction administration department and the foreign trade and economic cooperation administration department of the people’s government of the province, or the autonomous region or the directly administered municipality based on local conditions with reference to Article 7 of these Regulations and Regulations on Administration of Construction and Engineering Design Enterprise Qualifications.
Examination and approval of the qualifications of foreign-invested construction and engineering design enterprises by the construction administration departments of the People’s government of provinces, autonomous regions or directly administered municipalities shall be put on file with the construction administration department of the State Council within 30 days after the approval is given.
Article 9 The application by a foreign-invested construction and engineering design enterprise to upgrade its qualifications or to add additional engineering qualifications shall be made to the relevant construction administration department in accordance with relevant regulations.
Article 10 An applicant which intends to establish a foreign-invested construction and engineering design enterprise shall submit the following documents to the relevant foreign trade and economic cooperation administration department:
(1) Application forms to establish a foreign-invested construction and engineering design enterprise signed by the investor’s legal representative;
(2) The feasibility study report prepared or accepted by the investor;
(3) The contract for establishment of foreign-invested construction and engineering design enterprise and the articles of association signed by the investor’s legal representative (only the the articles of association are required for the establishment of a wholly foreign-owned construction and engineering design enterprise);
(4) The notification of pre-verification of the name of the enterprise;
(5) Documentary evidence of legal entity registration of the investor to carry out construction and engineering design in its home country or region and its bank credential letter;
(6) Appointment letters and documentary evidence of the investor’s designated chairman and members of the board of directors, managers and technical managers etc.; and
(7) Balance sheets and profit and loss accounts of the investor over the past three years audited by a certified accountant or an accounting firm.
Article 11 The applicant applying for foreign-invested construction and engineering design enterprise qualifications shall submit the following documents to the relevant construction administration department:
(1) Application forms for the qualifications for a foreign-invested construction and engineering design enterprise;
(2) The approval certificate for the establishment of the foreign-invested construction and engineering design enterprise;
(3) The business license for the legal entity;
(4) Documentary evidence of legal entity registration of the investor to carry out construction and engineering design in its home country or region and its bank credential letter;
(5) Professional qualification certificate issued by his home country or region and the individual or enterprise construction and engineering design track record and documentary evidence of its reputation issued by the relevant governmental department or professional institution, association or notary public; and
(6) Other documents as required by Regulations on Administration of Construction and Engineering Design Enterprise Qualifications.
Article 12 All materials required to be submitted by an applicant under these Regulations shall be in Chinese. If the original documentary evidence is in a foreign language, a Chinese translation shall be provided.
Article 13 The foreign investor or the foreign service provider of a foreign-invested construction and engineering design enterprise shall be an enterprise engaged in construction and engineering design or a certified architect or a certified engineer in his or her home country.
Article 14 The total capital contribution of the Chinese party to a Sin-foreign equity construction and engineering design joint venture or a Sino-foreign cooperatively construction and engineering design joint venture shall not be less than 25% of the registered capital.
Article 15 The criteria of grading of qualifications of foreign-invested construction and engineering design enterprises shall be in accordance with the requirements of grading of qualifications of construction and engineering design enterprise issued by the construction administration department of the State Council.
Where a wholly foreign-owned construction and engineering design enterprise applies for the construction and engineering design enterprise qualifications, its foreign service providers who have been qualified as certified architects or certified engineers in China shall not be less than 1/4 of the total certified professionals required under the qualification grading criteria, and the foreign service providers who have the relevant design experience shall not be less than 1/4 of the total key technical personnel required under the qualification grading criteria.
Where a Sin-foreign equity construction and engineering design joint venture or a Sino-foreign cooperatively managed construction and engineering design enterprise applies for the construction and engineering design enterprise qualifications, its foreign service providers who have been qualified as certified architects or certified engineers in China shall not be less than 1/8 of the total registered professionals required under the qualification grading criteria, and its foreign service providers who have the relevant design experience shall not be less than 1/8 of the total key technical staff required under the qualification grading criteria.
Article 16 Each of the architects and engineers certified in China and the key technical personnel of the foreign service provider in a foreign-invested construction and engineering design enterprise shall reside within the territory of the People’s Republic of China for no less than a cumulative period of 6 months each year.
Article 17 Where a foreign-invested construction and engineering design enterprise carrying out construction and engineering design activities within the territory of the People’s Republic of China violates the Construction Law of the People’s Republic of China, Regulations on Administration of Construction Engineering Quality, Regulations on Administration of Prospecting and Designing of Construction Projects and Regulations on Administration of Construction Engineering Prospecting Design Enterprise Qualifications and other relevant laws, regulations and rules, it shall be penalized in accordance with relevant provisions.
Article 18 Investors from Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan shall establish construction and engineering design enterprises and carry out businesses in other provinces, autonomous regions or directly administered municipalities in accordance with these Regulations, unless it is otherwise provided by laws, regulations and the State Council.
Article 19 The timing for accepting and processing the application for establishment of foreign-invested construction and engineering design enterprises shall be determined by the construction administration department of the State Council and the foreign trade and economic cooperation administration department of the State Council.
Article 20 The construction administration department of the State Council and the foreign trade and economic cooperation administration department of the State Council shall be responsible for interpreting these Regulations in accordance with their functions.
Article 21 These Regulations shall go into force on 1 December 2002. Regulations on Administration of Establishment of Sino-Foreign Project Design Joint Venture (File No. 180, 1992) shall be repealed at the same time.
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杨春宝一级律师简介
杨春宝一级律师，大成上海高级合伙人、资本市场部主任、国资基金研究中心主任，大成中国区私募基金专业带头人、科技与文化法律研究中心联合牵头人。执业30余年，长期从事私募基金、投融资、并购重组法律服务，尤其对对赌研究颇深且具有非常丰富的实战经验，并专注于金融机构股权投资业务。2004年起多次入选The Legal 500"私募基金"和"公司与商业"等境内外各类律师榜单，代理的中国法院首例适用外国法律审理外国公司的董事损害小股东权益纠纷案入选上海高院发布的《上海法院域外法查明典型案例》和威科先行"要案头条"。入选上海涉外法律人才库、上海市司法局鼎新法治人才库、上海国有企业改制法律顾问团，具有上市公司独立董事任职资格，系多家知名高校的兼职教授或兼职研究生导师及上海市商务委跨国经营人才培训班讲师。出版《私募股权投资基金风险防控操作实务》等16本投融资法律专著。了解更多常见法律问题
外商投资建设工程设计企业有哪几种形式？
第一，从法律概念与规则解释角度看，外商投资建设工程设计企业是指依据中国法律在中国境内设立的外商独资建设工程设计企业、中外合资经营建设工程设计企业以及中外合作经营建设工程设计企业。三种形式均须符合中国外商投资法律体系关于企业组织形式、出资方式及治理结构的基本要求，并在批准的经营范围内从事建设工程设计活动。第二，从案件事实与实务场景引用角度看，本规定第二条明确将上述三类企业纳入调整范围，并规定其设立、资质申请及后续监督管理均适用本规定。这意味着无论是外国投资者单独投资设立企业，还是与中国投资者共同出资设立合资或合作企业，都必须遵循统一的市场准入和资质管理规则。第三，从实务指引与风险提示角度看，外国投资者在决定投资形式时，应结合项目规模、合作方资源及长期战略选择适当的企业形式。不同形式在利润分配、风险承担及决策机制上存在差异，合作企业尤其需要明确合作条件。实务中常见争议集中于出资比例、技术转让及管理权限分配，建议在合同中对决策机制和退出路径作出细致约定，避免因约定不明引发纠纷。
设立外商投资设计企业的核心审批程序是什么？
第一，从法律概念与规则解释角度看，设立外商投资建设工程设计企业实行审批与登记相结合的制度。申请人须先向拟设企业所在地的省级商务主管部门提出设立申请，经初审后报国务院商务主管部门审批，审批过程中需征求国务院建设主管部门意见。批准后取得外商投资企业批准证书，再办理工商登记，取得营业执照后依规申请设计资质。第二，从案件事实与实务场景引用角度看，本规定第七条详细列明了具体流程：省级商务主管部门在30日内完成初审；国务院商务主管部门收到后10日内送建设主管部门征求意见，建设主管部门30日内出具意见；商务主管部门在收到意见后30日内作出书面决定。申请人须在批准证书颁发后30日内完成企业注册。若涉及甲级资质，还需另行按照资质管理规定向建设主管部门申请。第三，从实务指引与风险提示角度看，整个审批流程涉及商务与建设两个系统，时间跨度较长，企业应预留充足筹备期。实务中常见因申请材料不齐、经营范围表述不准确或资质标准理解偏差导致审批延误。建议在提交申请前对照资质标准逐项核验人员、业绩和技术条件，并提前与审批机关沟通。同时注意批准证书与营业执照信息一致性，避免因登记信息变更引发后续资质核查问题。
外商投资设计企业的资质分级审批如何划分？
第一，从法律概念与规则解释角度看，外商投资建设工程设计企业资质实行分级分类管理，不同等级的资质对应不同的审批机关。根据规定，申请甲级设计资质以及其他甲级或乙级资质时，企业设立由国务院商务主管部门审批，资质由国务院建设主管部门审批；申请乙级及以下资质时，则由省级商务主管部门和省级建设主管部门分别审批。第二，从案件事实与实务场景引用角度看，本规定第六条明确了该分级体系，将资质等级与审批权限直接挂钩。例如，申请甲级资质的企业须经过省级初审、国务院商务部门复审、国务院建设部门技术审查等层层把关；而申请乙级或丙级资质的企业则在省级层面完成全流程审批。这一安排既体现了对高等级资质的严格管控，也为中小型外资企业提供了相对便利的行政通道。第三，从实务指引与风险提示角度看，企业在筹备设立时应根据拟承接工程的规模和复杂程度合理申报资质等级，避免盲目申请过高等级导致审批周期延长或失败。同时应关注不同等级资质对人员、业绩、技术装备的具体要求，确保申报材料的真实性和完整性。实务中常见问题包括中外方技术人员资历认定不足、境外业绩不被认可等，建议提前了解国内资质标准对境外经验的采信规则，必要时进行补充证明。
以上内容仅供参考，不构成法律意见。如需专业法律服务，请联系杨春宝一级律师：chambers.yang@dentons.cn
