Draft Export Control Law of the People’s Republic of China

Posted 2021-04-27 贸易与合规

本文是环球律所海关与贸易合规团队对于中国出口管制法草案的翻译稿，便于跨国公司客户参考。我们将持续关注中国出口管制的动向。

（Translation for reference only）

Chapter I General Provisions

 

Article 1 This Law is formulated for purposes of fulfilling international obligations of nonproliferation,safeguarding national security and interest, and strengthening export control.

 

Article2 This Law shall apply to the State's export control of dual-useitems, military items, nuclear items, and other items such as goods,technologies, services that relate to fulfillment of international obligationsand maintenance of national security (hereinafter collectively referred to asthe "controlled items").

Export control of this Law refersto the prohibitive or restrictive measures taken by the State on the transfer of controlled items from within to outside the territory of the People's Republic of China, and the act performed by a citizen, legal person or other organizations of the People's Republic of China to provide any foreign natural person, legal person or other organizations with controlled items.

Dual-useitems of this Law refer to goods, technologies and services that can be used for both civil and military purposes or contribute to elevating military power potentials, especially those can be used to design, develop, produce or employ weapons of mass destruction.

Military items of this Law refer toequipment, special production facilities and other relevant goods, technologies and services used for military purposes.

Nuclear items of this Law refer torelevant nuclear materials, nuclear equipment, and non-nuclear materials used for reactors,and relevant technologies and services.

 

Article 3 Export control shall adhere to the holistic view of national security,safeguard international peace, coordinate security and developments, and improvethe administration and service of export control.

                                                                                       

Article 4 The State implements a unified export control regime administrated through formulating control lists and implementing export licenses.

 

Article 5 Departments of the State Council and the Central Military Commission that perform the function of export control(hereinafter referred to as the "State’sexport control administrative departments") shall undertake export control related functions according to their assigned responsibilities. Other relevant departments of the State Council and theCentral Military Commission shall discharge relevant functions in accordance with their assigned responsibilities.

The State shall establish a coordination mechanism for export control to coordinate major issues of export control. The State’sexport control administrative departments and relevant departments of the State Council shall closely cooperate to strengthen sharing of information.

The State’s export control administrative departments shall, inconjunction with relevant departments, establish an expert consultation mechanismto provide advice on export control.

The relevant departments of the people's governments of provinces, autonomous regions and municipalities directly under the central government shall carry out specific export control responsibilities in accordance with laws and administrative regulations.

 

Article 6 The State’s export control administrative departments shall, pursuant to the international treaties concluded or acceded to by the State, or according to the principle of equality and reciprocity,develop cooperation and exchanges with other countries, regions and international organizations and so forth, and take part in the formulation of international rules.

 

Article7 Exporting business operators may establish and join relevant chambers of commerce, associations or otherindustry self-regulatory organizations in accordance with law.

Relevant chambers of commerce,associations or other industry self-regulatory organizations shall abide by laws and administrative regulations, provide services related to export controlto their members according to their by laws, and play their roles in coordination and self-regulatory.

Exporting business operators of this Law refer to citizens, legal persons and other organizations engaged in the export of the controlled items in accordance with laws and administrative regulations.

 

Chapter II Control Policies and Lists

 

Article 8 The State’s export control administrative departments shall, in conjunction with relevant departments, formulate export control policies, the major ones of which shall be submitted to the State Council or both the State Council and the Central Military Commission for approval.

The State’s export control administrative departments may make assessment of the countries and regions asdestinations of the export of the controlled items to determine their risk levels and take corresponding control measures.

 

Article 9 The State shall formulate control lists in accordance with export controlpolicies.

The State’s export control administrativedepartments of dual-use items shall, in conjunction withrelevant departments, formulate and adjust the export control lists fordual-use items, and submit to the State Council or both the State Council andthe Central Military Commission for approval and then release and publicize the same.

The State’s export controladministrative departments of military items shall, in conjunction withrelevant departments, formulate and adjust the export control lists for militaryitems, and submit to the State Council and the Central Military Commission for approval and then releaseand publicize the same.

The State’s export control administrativedepartments of nuclear items shall, in conjunction with relevant departments, formulate,adjust and publish the export control lists for nuclear items in accordance with the procedures prescribed by the State Council.

 

Article 10 Pursuantto the need to fulfill international obligations or safeguard nationalsecurity, upon the approval of the State Council or both the State Council andthe Central Military Commission, the State’s export control administratived epartments, in conjunction with relevant departments, may prohibit the export ofrelevant controlled items, orprohibit the export of relevant controlled items

 to particular countries and regions, naturalpersons, legal persons or other organizations, and may impose temporary controlover goods, technologies and services not included in the control lists.The duration of temporary control shall be no longer than two years.

 

Article 11 The State’s export control administrative departments will timely issue exportcontrol guidelines for relevant industries, and provide compliance guidance tobusiness operations.

 

Chapter III Control Measures

 

Section 1 General Provisions

Article12 The State’s export control administrative departments may implement administration on exporting business operators through monopoly granting orbusiness filing requirements in accordance with laws and administrative regulations.

 

Article 13 TheState shall implement a licensing system for the export ofcontrolled items included in the control lists and items subject to temporary control.

The State’s export control administrative departments shall consider the following factors to review applications of exporting business operators for the export of controlled items,and make the decision to or not to grant the license:

1.    international obligations and externalcommitments;

2.    national security;

3.    export types;

4.    degree of sensitivity of the items;

5.    countries or regions as export destinations;

6.    end users and end uses;

7.    social credit records of exporting business operators;

8.    other factors stipulated by laws and administrative regulations.

 

Article 14 Exporting business operators shall establish an internal export control compliance review system.

For exporting business operators whose internal export control compliance review systems operate well and who have norecord of major violation of laws, the State’s export control administrative departments may provide them with corresponding licensing facilitation for theirexport of relevant controlled items. Specific provisionsshall be formulated by the State’s export control administrative departments.

 

Article 15 For goods, technologies and services not included in the export control lists, exporting businessoperators who know or should have known, or are notified by the State’s exportcontrol administrative departments that relevant goods, technologies andservices may have the following risks, shall apply for licenses to the State’s export control administrative departments in accordance with Article 13 of thisLaw:

1.    endanger national security;

2.    be used to design, develop, produceor employ weapons of mass destruction and their means of delivery; or

3.    be used for nuclear, biological orchemical terrorist purposes.

 

Article 16 Where exporting business operators are uncertain about whether the goods,technologies and services to be exported fall under the scope of the controlled items of this Law, and consult the State’s export control administrative departments, the State’s export control administrative departments shall replyin a timely manner.

 

Article 17 Exporting business operators shall submit end-user and end-use certifications to the State’sexport control administrative departments, which shall be issued by end usersor by the government of the end users’ countries or regions.

 

Article 18 Endusers of controlled items shall make commitments that, without the approval of the State’s export control administrative departments, they shall not alter theend uses of relevant controlled items or transfer them to any third party.

Exporting business operators orimporters who discover that end users or end uses are likely to be altered shall immediately report it to the State’s export control administrative departments.

 

Article 19 TheState’s export control administrative departments shall establish a risk management system for end-users and end-uses, and make assessments of end-user and end-use certifications submitted by exporting business operators.

 

Article 20 The State’s export control administrative departments shall establisha controlled party list which comprises those importers and end users that:

1.    breach their commitments of end-useror end-use;

2.    may endanger national security;

3.    use the controlled items forterrorist purposes.

Where the exporting business operators deal with the natural persons, legal persons or other organizations includedin the controlled party list, the State’s export control administrative departments may take necessary measures such as prohibiting and restricting thetransaction, ordering the suspension of the export of relevant controlled items, and not providing the export licensing facilitation.

 

Article 21 When exporting controlled goods, consignors or customs brokers shall submit the license granted or relevant licensing facilitation certificates issued by the State’s export control administrative departments to the customs for verification,and go through customs clearance in accordance with the relevant provisions ofthe State.

Where consignors fail to submit the license granted or relevant licensing facilitation certificates issued by the State’s export control administrative departments to the customs for verification, and the customs have evidence that the goods for export may fall within the scope of export control, the customs shall request classification from the State’sexport control administrative departments or raise queries to the consignors,and shall deal with it in accordance with the classification conclusion made by the State’s export control administrative departments or the conclusion ofqueries made by the customs. The customs shall not release the good for export pendingthe classification or query.

 

Section 2 Export Administration on Dual-use Items

Article22 Exporting business operators shall submit true materials prescribed by laws and administrative regulations to apply for the export of dual-use items to the State’s export control administrative departments of dual-useitems.

 

Article 23 The State’s export control administrative departments of dual-use items shall accept applications for the export of dual-use items, review the applications independently or in conjunction with relevant departments in accordance with law, and make the decision to or not to grant the license.Where the license is granted, it is the duty of the license issuing authoritiesto issue the export license.

 

Article 24 The State’s export control administrative departments of dual-use items shall, within 45 working days from the date of accepting the application for the export of dual-use items, make the decision to or not to grant the license;where the review of the application cannot be finished within 45 working days due to special circumstances, it can extend 15 working days with the approvalof the principles of the State’s export control administrative departments of dual-use items, and shall inform the applicant of the reason for extension.

For any export license that has substantial impacts on national security and needs to be reported to the State Council orthe State Council and the Central Military Commission, the provision of preceding subsection shall not apply.

 

Section 3 ExportAdministration on Military Items

Article 25 The State implements a monopoly system forthe export of military items.Operators engaged in the export of military items shall obtain the export business monopoly qualification of military items and conduct exporting business operations of military items within the permitted scope.

The export business monopoly qualification of military items shall be reviewed and granted by the State’s export control administrative departments of military items.

 

Article 26 Exporting business operators of military items shall,in accordance with control policies and product attributes, apply for reviewand approval of the export project proposal, program as well ascontract for military items to the State’s export control administrative departments of military items.

The major export project proposal, program as well as contract for military items shall be reviewed by the State’s export control administrative departments of military items in conjunction with relevant departments and be submitted to the State Council and the Central Military Commission for approval.

 

Article 27 Before the export of military items，exporting business operators of  military items shall apply to the State’s export control administrative departments of military items for the exportlicense of military items .

When exporting the military items, exporting business operation companies of military items shall submit the license issued by the State’s export control administrative departments of military items to the customs for verification,and go through customs clearance in accordance with the relevant provisions ofthe State.

Article 28 Exporting business operators of military items shall entrust approved military items export transportation companies to handlethe export, transportation and relevant operations of military items. Specificregulations shall be formulated by the State’s export control administrative departments of military items in conjunction with relevant departments.

Article 29 Exporting business operators or research institutes and manufacturers of military items who intend to participate in international military items exhibitions, shall go through the review and approval formalities of the State’s export control administrative departments of military items pursuant to procedures.

 

Chapter IV Supervision Administration

 

Article 30 The State’s export control administrative departments shall, in accordance with law, supervise and inspect the compliance of citizens, legal persons and other organizations engaged in the export of controlled items with the relevant laws and administrative regulations ofexport control.

The State’s export control administrative departments may take the following measures to investigate the suspected violations of this Law:

1.     enter the business premises of parties under investigation or other relevant places to carry out investigations;

2.     interview parties under investigations, interestedparties or other relevant units or individuals and request them to provideexplanations;

3.     access and copy relevant vouchers,agreements, accounting books, business correspondence and other documents and materials, and electronic data that can prove the real situation of export transactions of the parties under investigation, interested parties or other relevant units or individuals;

4.     check the means of transport used for the export, stopthe loading of suspicious items to be exported, and order the transport back of illegally exported items;

5.     seal up and detain relevant items involved in thecase; and

6.     investigate the bank accounts of parties under investigations.

It shall be approved in writing by principals of the State’s exportcontrol administrative departments to take the measures specified in Item 5 andItem 6 of the preceding subsection.

 

Article 31 The State’s export control administrative departments carry out supervision administration independentlyor in conjunction with relevant departments, and relevant citizens, legal persons, and other organizations shall cooperate with the supervision and administration, and shall not refuse or obstruct it.

The State's departments of public security under the State Council, national security, transportation, financial supervision and administration, market supervision and administration, postal administration, and local people's governments as well as their relevant departments, shall assist the supervision and administration within their own powers.

Relevant State authorities and their functionaries shall be obligated tomaintain the confidentiality of any State secret, commercial secret andpersonal privacy as learned during the investigation.

 

Article 32 The State’s export control administrative departments who learn about or find any activity or act that may have risks of violating export control during their supervision and administration, may issue a warning letter to, conduct a regulatory conversation with or take other measures to relevant citizens, legal persons and other organizations.

 

Article 33 A citizen, legal person or other organization has theright to report the suspected violation of this Law to the State’s exportcontrol administrative departments. The State’s export control administrativedepartments shall, in accordance with the law, promptly deal with the report afteracceptation, and shall keep the information of the reporting party confidential.Forreal-name reporting party who provides relevant facts and evidence, the State’sexport control administrative departments shall inform the same party of theresult of reported matter.

 

Chapter V Legal Liabilities

 

Article 34 Where exporting business operators export relevantcontrolled items in violation of the requirements of export monopoly qualification,the State’s export control administrative departments shall give a warning,order to stop the illegal act, and confiscate illegal gains, and where theillegal business amount is not less than RMB500,000, a penalty of not less thanfive times but not more than ten times the illegal business amount shall concurrentlybe imposed, and where no illegal business amount is involved or the illegalbusiness amount is less than RMB500,000, a penalty of not less than RMB500,000 but not more than RMB 5 million shall concurrently be imposed.

 

Article 35 Where exporting business operators commit any of thefollowing acts, the State’s export control administrativedepartments or the customs shall order to stop the illegal act, andconfiscate illegal gains, and where the illegal business amount is not lessthan RMB500,000, a penalty of not less than five times but not more than tentimes the illegal business amount shall concurrently be imposed, andwhere no illegal business amount is involved or the illegal business amount isless than RMB500,000, a penalty of not less than RMB500,000 but not more thanRMB 5 million shall concurrently be imposed; where the circumstances areserious, the State’s export control administrative departments shall order tosuspend business for rectification or even revoke the export monopoly qualification:

1.     export the controlled items without licenses;

2.     export the controlled items beyond the scope oflicenses;

3.     export the controlled items that are prohibited fromexport.

 

Article 36 Where any party obtains the export license ofcontrolled items by fraud, bribery or other illegal ways, or obliterate,resell, lease out, lend out or transfer the export license of controlled itemsin other illegal forms, the State’s export control administrative departmentsshall revoke the license, remand surrender of the export license, confiscatethe illegal gains, and where the illegal business amount is not less than RMB 200,000,a penalty of not less than five times but not more than ten times the illegalbusiness amount shall concurrently be imposed; where no illegal business amountis involved or the illegal business amount is less than RMB200,000, a penaltyof not less than RMB200,000 but not more than RMB 2 million shall concurrentlybe imposed.

Where any party forges, alters, or trade the export license of controlleditems, the State’s export control administrative departments shall confiscatethe illegal gains, and where the illegal business amount is not less thanRMB50,000, a penalty of not less than five times but not more than ten timesthe illegal business amount shall concurrently be imposed; where noillegal business amount is involved or the illegal business amount is less thanRMB50,000, a penalty of not less than RMB50,000 but not more than RMB500,000shall concurrently be imposed.

 

Article 37 Where any party knowingly provides agency, freight,delivery, customs clearance, third-party electronic trading platforms, financeand other services to violations of export control, the State’s export controladministrative departments or the customs shall give a warning, order to stopthe illegal act, confiscate the illegal gains, and where the illegal business amountis not less than RMB100,000, a penalty of not less than three times but notmore than five times the illegal business amount shall concurrently be imposed;where no illegal business amount is involved or the illegal business amount isless than RMB100,000, a penalty of not less than RMB100,000 but not more thanRMB500,000 shall concurrently be imposed.

 

Article 38 Where the exporting business operators violate therequirements of the measures specified in the subsection 2 of Article 20 ofthis Law, the State’s export control administrative departments shall give awarning, order to stop the illegal act, confiscate the illegal gains and wherethe illegal business amount is not less than RMB500,000, a penalty of not lessthan ten times but not more than twenty times the illegal business amount shallconcurrently be imposed; where no illegal business amount is involved or the illegalbusiness amount is less than RMB500,000, a penalty of not less than RMB500,000but not more than RMB 5 million shall concurrently be imposed; where thecircumstances are serious, the State’s export control administrativedepartments shall order to suspend business for rectification or even revokethe export monopoly qualification.

 

Article 39 Where exporting business operators refuse or obstructthe supervision and inspection, the State’s export control administrativedepartments or the customs shall give a warning, and a penalty of not less thanRMB100,000 but not more than RMB300,000 shall be imposed; where thecircumstances are serious, the State’s export control administrativedepartments or the customs shall order to suspend business for rectification oreven revoke the export monopoly qualification.

 

Article 40 For any exporting business operators who are penalizeddue to violations of this Law, their creditability information such asadministrative penalties shall be recorded on the National Credit InformationSharing Platform.From the effective date of the penalties, the State’s export controladministrative departments can refuse to accept their applications for exportlicenses in the subsequent five years; persons directly in charge of theviolations as well as other persons who are directly responsible for theviolations may be prohibited from engaging in the relevant export business operationsin the subsequent five years, and those who are convicted of criminal penaltiesdue to violations of export control shall not engage in relevant exportbusiness for lifetime.

 

Article 41Where the violation of this Law is discoveredby the customs and is within the powers of the customs, thecustoms shall launch investigations and impose penalties in accordance with this Law; where no provisions arestipulated in this Law, the customs shall launch investigations and impose penaltiesunder customs laws and customs administrative regulations.

 

Article 42 Any citizen, legal person or other organization thatdisagrees with the State’s export control administrative departments’ decision not to grant the license may apply for administrativereview in accordance with the law. The administrative review decision shall bethe final verdict.

 

Article 43 State functionaries of export control whoneglect their duties, play favoritism and commit irregularities, or abuse theirpowers, shall be subject to disciplinary measures in accordance with the law.

 

Article 44 Any party who violates the provisions of this Law andcommits a crime shall be subject to criminal liabilities in accordance with thelaw.

 

Chapter VI Supplementary Provisions

 

Article 45 Relevant provisions of this Law shall apply to thetransit, trans-shipment, thorough transport andre-export of controlled items, or the export of such controlleditems from customs special supervision areas such as bonded areas and exportprocessing zones, and bonded supervision places such as export supervision warehousesand bonded logistics centers.

 

Article 46 For the export of nuclear items and other controlled items,if no provisions are stipulated in this Law, provisions of relevant laws andadministration regulations shall apply.

 

Article 47 Provisions of relevant laws and regulations shallapply to the export of military items used in overseas militaryoperations, foreign military exchanges and military assistance.

 

Article 48 This Law shall enter into force as of MM/DD/YY.

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