【作者】 孙宇；

【导师】 韦经建；

【作者基本信息】 吉林大学 ， 国际法学， 2008， 硕士

【摘要】 近年来,返程投资现象不断攀升并引起各界的广泛关注。境内居民出于融资需要、政策寻租、转移财产等目的而实施返程投资,这引发境外投资管理、税收、外汇管理等一系列的问题,也对现行的返程投资监管体制提出了前所未有的挑战。本文拟通过对返程投资的所引发的境外投资管理、税收、外汇管理等问题的分析找到解决问题的基本路径、完善返程投资的监管体制。本文首先界定了返程投资的概念并对相关概念进行了分析,阐明了返程投资产生原因,简要归纳了实务中返程投资的类型。接着介绍了返程投资所引发主要问题,分析了境外投资管理问题、税收问题和外汇管理问题,并进行了相应的法律评价。最后本文对我国现行的与返程投资相关法律规范进行梳理并借鉴若干发达国家对返程投资的监管的先进经验,提出完善我国返程投资监管立法的建议。更多还原

【Abstract】 In recent years, the phenomenon of round-trip investment has been focused on. From the work experience of the author, the author attempts to analyze the round-trip investment and the problem it caused under the China’s current foreign legal system, and then the author tries to put forward his own proposal, the full text is divided into three chapters.In the ChapterⅠ, the author describes the definition of round-trip investment, reasons and the type of the round-trip investment. What is the round-trip investment? From the different perspective, there are different answers. This paper analyzed the definition from the academia’s view to the national legislation’s view. Both economic academics and law experts are concerned about the round-trip investment, but they attribute their concerns to different priorities: in the eyes of economics they focus on the capital and the capital cross-border flow. While in the view of legal experts, the round-trip investment is considered as that the interest held by the residents in the territory is moved from the off-shore territory to the on-shore, focusing on the subjective purpose and control to define the concept of the round-trip investment.The regulation that we called NO.75 awarded by the State Administration of Foreign Exchange, gives the definition of the round-trip investment and the concepts related to the round-trip investment. Then we use the comparative method, we can find that the definition of NO.75 is accurate and we adopt that definition the round-trip investment refers to that the resident give foreign investment to the territory by the means of special purpose vehicles (SPV).Despite of a variety of reasons that round-trip investment results from, nothing more than the following reasons: One is that in order to meet the need of capital, the residents list abroad to bring a great deal of money; The other reason is that residents search for Policy Tenants, residents in the realization of investment through round-trip investment and then becomes foreign-funded enterprises, which enjoys the preferential treatment on taxation; Except that, there are several reasons, such as cross-border restructuring, evasion of the policy on management buyouts of state-owned enterprises. As far as the round-trip investment is concerned, there are three types in the view of the actual operation: new foreign-invested enterprises, foreign mergers and acquisitions, agreements control.In the ChapterⅡ, we mainly talk about that round-trip investment results in three major problems: Overseas investment regulation, taxation, foreign exchange management. The round-trip investment result in capital return, and makes the investment from the Tax Heaven increase rapidly, triggering a management vacuum. Through the case that China Resource acquired the share of the HuaYuan Real Estate, we can see that residents use the round-trip investment to seek interest distorts the China’s foreign policy. At the same time, the government will make false judgement on the macroeconomic policy-making and some country will create the“China Threat Theory”to provide the pretext.Nowadays people focus on the taxation problem the round-trip investment causes. Residents use the round-trip investment in the form of transfer pricing to complete the transfer of assets to avoid taxes links, which results in the loss of state revenue and makes seriously damages to China’s tax sovereignty. Through the transformation of foreign-funded enterprises, the residents enjoy the preferential treatment in the area of income tax, land tax, customs duties, capital gains tax and other preferential treatment in taxation. This is a typical example of the original use of the loopholes in corporate income tax preferential policies for policy rent-seeking behavior, distorting the company’s business practices, resulting in the loss of state revenue. Given that the round-trip investment completes its capital operation in the offshore and escapes the supervision, it may trigger capital flight and put the international balance of payments on the burden. At the same time, through the round-trip investment residents complete identity transformation, and that creates the condition for the capital’s return. This may not lead to the country’s external liabilities increase, but also influence the effectiveness of monetary policy, and it may increase the difficulty of regulating international payments.In the ChapterⅢ, we try to introduce the advanced regulations on the round-trip investment, and list the regulations on the round-trip investment in China, then we put forward the proposal to regulate the round-trip investment. According to the advanced experience of other countries, we learn that in the respect of investment review, the Government of India makes regulations on the enterprises which make use of round-trip investment to evade the market accession. At the same time, India revised the definition of FDI and changed the standard of foreign capital in order to exclude the round-trip investment from scope of the FDI. In the taxation regulation, the United States, Japan, New Zealand and other countries establish "specific sense of the controlled foreign corporations" system, in which the United States focuses on the transaction respect, the Japan focuses on the definite areas, the New Zealand aims to abolish any given tax benefits. Despite the CFC is different, the idea of "actual control" that CFC reflects was accepted by the countries all over the world.Then, we list the regulation on the round-trip investment in China and highlight the“NO.75”, the new“Corporation Law”, the regulation on the“Foreign Acquisitions Provisions”, the new“Enterprise Income Tax Law”.“NO.75”gives the procedure for the SPV registration, the road for the fund raised through the cross-border listing to come back home and payment of capital between the SPV and residents. The new“Corporation Law”incorporate the definition of“controlling shareholder”,“actual control”,”association”and other terms related to the round-trip investment, which not only resolves the issues that controlling shareholders make use of the status of foreign-invested enterprise to evade the market accession, but also provides the“Foreign Acquisitions Provisions”with supersede law assumptions.According to the round-trip investment, the“Foreign Acquisitions Provisions”makes appropriate adjustments to the management of foreign direct investment, and realizes the idea of "actual control". When people submit the materials to the approval authority, which should be the MOFCOM., they should disclose the actual controller of the company .The“Foreign Acquisitions Provisions”reflects that the authority recognizes the status of the round-trip investment and shows us the clear treatment, which leads to the expectation of the individuals to come to nothing.The new "Enterprise Income Tax Law, which makes distinctions between "resident enterprises" and "non-resident enterprises,”adopts the criteria of“registration”and“actual control”to distinguish the taxpayer. According to the CFC, the new "Enterprise Income Tax Law" sets up a chapter named "Special Tax Adjustment,”which includes eight articles, to rebuild an anti-avoidance system.After that, we can organize the frame of regulations on the round-trip investment. And above all, the author put forward the proposal to regulate the round-trip investment, pointing out that we should change the idea to regulate the round-trip investment and make clear criteria; then we should strengthen the linkage between legal norms and its coordination; finally, we should formulate our legal system and make the regulations practical.更多还原