Hamburger
  • Form of entity

    Independent legal entity. In terms of companies set up by or with foreign investors, they need to follow the general company law (and partnership law as applicable) pursuant to the new Foreign Investment Law which took effect from January 1, 2020. Therefore, depending on the foreign shareholding ratio in a limited liability company (LLC) or a company limited by shares as discussed below, it would still work to make reference to a wholly foreign owned enterprise (WFOE) or a Sino-foreign joint venture enterprise in an economic sense.  However, a WFOE or JV, including  an equity joint venture (EJV) or contractual joint venture (CJV), would no longer exist as a legal form.  All foreign invested enterprises (FIEs) in China will take the legal form of either a company (LLC or company listed by shares) or a partnership.

    Limited liability company (LLC)

    • Managed by board of directors or a single executive director (usually adopted by LLCs with a limited number of shareholders and relatively small size of operation), responsible for making major business decisions and overseeing general operations of an LLC.
    • The highest authority of an LLC is the shareholders’ meeting.
    • Director or the executive director is appointed/elected by the shareholder(s) of an LLC.
    • Senior management officers run the day-to-day operations of an LLC, as led by a general manger who usually is appointed by the board of directors or executive director.

    Company limited by shares

    • Independent legal entity.
    • Board of directors has overall management responsibility, making major business decisions and overseeing general operations of a company.
    • The highest authority of a company listed by shares is the shareholders’ assembly.
    • Director is appointed/elected by shareholders of a company.
    • Senior management officers run the day-to-day operations of a company limited by shares, as led by a general manger who usually is appointed by the board of directors

    Partnership enterprise

    • NOT a separate legal person entity.

    • Partnership agreement sets forth how the business is to be managed; one or several general partners can be designated to manage the business.

    Last modified 22 May 2023

  • Entity set up

    Limited liability company (LLC)

    • Up to 50 shareholders.
    • Generally no personal liability of shareholders.
    • Taxed at 2 levels (commonly referred to as double taxation). First, an LLC pays an enterprise income tax on its corporate income; then, the LLC distributes its after-tax profits as dividends to shareholders who then pay income tax on those dividends.
    • Typical charter documents include:
      • Articles of association, to be registered with the Administration for Market Regulation (AMR)
      • Business license
      • For foreign-invested LLCs, additional documents such as joint venture contract or shareholders’ agreement, which are not required for registration with the Administration of Market Regulation (AMR) under the current company law, plus record on certain foreign investment information, such as the information on each investor and its ultimate actual controller, that has been reported to the Ministry of Commerce (MOFCOM).
    • Shareholders typically subscribe and contribute to the registered capital of an LLC according to the articles of association.
    • An annual report should be filed with the AMR through the AMR’s online platform. For foreign-invested companies, a joint annual report should, in addition, be filed with various authorities through the same AMR’s online platform for the annual report.

    Company limited by shares

    • There must be 2 to 200 promoters, of whom more than half must have domiciles in China.
    • Generally no personal liability of shareholders.
    • Taxed on its earnings at a corporate level, and shareholders are taxed on any distributed dividends.
    • Typical charter documents include:
      • Promoters' agreement
      • Articles of association
      • Business license
      • For foreign-invested companies limited by shares, additional documents such as joint venture contract or shareholders’ agreement, which are not required for registration with the AMR under the current company law, plus record on certain foreign investment information, such as the information on each investor and its ultimate actual controller, that has been reported to the MOFCOM.
    • Shareholders typically purchase stock in company, but generally only 1 class of stock is allowed. China allows listed or non-listed public companies (with more than 200 shareholders) to issue preferred stock on a trial basis.
    • An annual report must be filed with the AMR and MOFCOM.

    Partnership enterprise

    • At least 2 partners; up to 50 partners for limited partnership unless otherwise provided by law.
    • General partners have unlimited joint and several liability for the debts of the partnership; limited partners have liability for the debts of the partnership to the extent of the capital contributions they have subscribed for.
    • Not taxed on earnings at partnership level, and profits and losses are passed through to the partners who are subject to taxes.
    • Typical charter documents include:
      • Partnership agreement
      • Business license.
    • Partners typically contribute money, property, intellectual property, land use right or other property right to the partnership. General partners may contribute labor services to the partnership. Partners receive an interest in profits and losses.
    • An annual report must be filed with the AMR

    Note: Because the LLC is the most common investment vehicle used by foreign investors, we only discuss the LLC in detail in the following sections and can provide information on other forms of entities upon request.

    Last modified 22 May 2023

  • Minimum capital requirement

    No minimum capital required unless otherwise provided under the relevant laws, regulations or decisions of the State Council.

    Last modified 22 May 2023

  • Legal liability

    Shareholders of an LLC are generally not liable for the debts of a company aside from their capital contribution to the company.

    Last modified 22 May 2023

  • Tax presence

    An LLC is taxed at 2 levels (commonly referred to as double taxation). First, the LLC pays an enterprise income tax on its corporate income; then, the LLC distributes its after-tax profits as dividends to shareholders who then pay individual/enterprise income tax on those dividends.

    Last modified 22 May 2023

  • Incorporation process

    The incorporation of a foreign-invested LLC typically consists of the following steps:

    1. File online application to register the name as well as for initial review by the AMR and information reporting to the MOFCOM through the AMR’s online system
    2. File paper application for registration of the establishment of an LLC with the AMR and
    3. File post-registration applications with various authorities such as tax, foreign exchange and customs.

    Last modified 22 May 2023

  • Business recognition

    The LLC is the most popular legal form for foreign investors to conduct business in China.

    Last modified 22 May 2023

  • Shareholder meeting requirements

    Not required to hold annual meeting of shareholders for foreign-invested LLCs.

    Last modified 22 May 2023

  • Board of director meeting requirements

    Annual meeting of directors is not required for the LLCs, though it is quite common.

    Last modified 22 May 2023

  • Annual company tax returns

    Must quarterly and annually file enterprise income tax returns with tax authorities. Other taxes such as value-added tax (VAT) require filings on monthly basis in general.

    Last modified 22 May 2023

  • Business registration filing requirements

    Registration with the AMR and information reporting to the MOFCOM are required for establishment of foreign-invested LLCs as well as subsequent changes of company particulars. In practice, filings to the MOFCOM are carried out through the same AMR online platform and become invisible in most cases.

    Last modified 22 May 2023

  • Business expansion

    No need to change registration as business expands unless the expansion requires increase of registered capital of an LLC or expansion of its business scope.

    Last modified 22 May 2023

  • Exit strategy

    Foreign investors may liquidate/early terminate or transfer the equity in the LLC.  In case of liquidation, the investor will need to go through a liquidation process  including applying for deregistration or registration with various government authorities as applicable and to complete a tax clearance before the LLC can be liquidated by cancelling its business license with the AMR.

    Last modified 22 May 2023

  • Annual corporate maintenance requirements

    Annual reports are required to be filed with the AMR and the MFOCOM.

    Last modified 22 May 2023

  • Director / officer requirements

    Directors (or an executive director), general manager, finance manager and supervisor(s) are required.

    For more information on directors’ duties, see our Global Guide to Directors’ Duties.

    Last modified 22 May 2023

  • Local corporate secretary requirement

    Not required.

    Last modified 22 May 2023

  • Local legal or admin representative requirement

    Legal representative is required, which must be either a chairman of the board of directors (or the executive director, as applicable) or a general manager pursuant to the articles of association of an LLC.

    An LLC may also need to record 1 or 2 contact persons for purposes of liaison with the tax authorities and the AMR when an LLC is established. Such contact person(s) should be individuals who usually reside within China and speak Chinese.

    Last modified 22 May 2023

  • Local office lease requirement

    Required for incorporation and ongoing business operation, if an LLC does not itself own office premises.

    Last modified 22 May 2023

  • Other physical presence requirements

    None.

    Last modified 22 May 2023

  • Sufficiency of virtual office

    Requirements and practice vary among different locations. In some cities, certain office premises approved by competent local authorities are allowed on a trial basis for "collective registration" of companies.  

    Last modified 22 May 2023

  • Provision of local registered address by law firm or third-party service provider

    Generally not permitted unless in certain pilot trial areas. For example, certain approved domestic law firms in the Shanghai free trade zone are permitted to provide registered address subject to restrictions.

    Last modified 22 May 2023

  • Provision of local director or corporate secretary by law firm or third-party service provider

    Generally not allowed for incorporation.

    Last modified 22 May 2023

  • Nationality or residency requirements for shareholders, directors and officers

    None.

    Last modified 22 May 2023

  • Restrictions regarding appointment of nominee shareholders or directors

    Appointment of nominee shareholders is generally not allowed, though a VIE (Variable Interest Enterprise) structure with nominee shareholders can be commonly seen in practice.  However, certain recent changes of the policy may create questions about whether the VIE structure is still sustainable.

    Last modified 22 May 2023

  • Summary of director's, officer's and shareholder's authority and limitations thereof

    Directors (or the executive director, as applicable) are appointed by the sole shareholder or the shareholders’ meeting and are responsible for the management of a company and govern the organization by establishing broad policies and objectives. In contrast, general manager is appointed by directors (or the executive director, as applicable) to oversee day-to-day operations of a company.

    Last modified 22 May 2023

  • Public disclosure of identity of directors, officers and shareholders

    Names of shareholders as well as directors and supervisor(s) are generally available for public search through the National Enterprise Credit Information Publicity System. Name of a general manager may also be available for search if a company has registered such information with the AMR.

    Last modified 22 May 2023

  • Minimum and maximum number of directors and shareholders

    There must be a minimum of 1 shareholder and a maximum of 50 shareholders for an LLC. For directors of a board of an LLC, the minimum number is 3 and the maximum number is 13. Or, if a company has an executive director instead of the board of directors, only 1 executive director is allowed.

    Last modified 22 May 2023

  • Minimum number of shareholders required

    An LLC may be established by a single shareholder.

    Last modified 22 May 2023

  • Removal of directors or officers

    Directors (or the executive director as applicable) may be removed by the sole shareholder or the shareholders’ meeting. General manager may be removed by the board of directors (or the executive director).

    Last modified 22 May 2023

  • Required and optional officers

    Typically a general manager and a finance manager are required; any other optional officer, such as the deputy general manager, is allowed.

    Last modified 22 May 2023

  • Board meeting requirements

    Typically 1 annual board meeting is required, and resolutions may also be adopted via written consent if necessary.

    Last modified 22 May 2023

  • Quorum requirements for shareholder and board meetings

    For foreign-invested LLCs, shareholders' meeting is only applicable when there are two or more shareholders. Usually a majority of shareholders must be present during the shareholder meeting or sign a written consent. However, certain matters such as amendment to the articles of association must be approved by shareholders representing more than two-thirds of the voting rights. In practice, AMR may require certain matters be approved by all shareholders if a shareholders' resolution is required by AMR for change of registration of the company. For directors, typically more than two-thirds of directors must be present during a board meeting.

    Last modified 22 May 2023

  • Must a bank account be opened prior to incorporation, and must the bank account be local?

    Not necessary in order to incorporate; however, a bank account must be opened after incorporation. A company may set up bank accounts within China, or outside of China in rare cases (which is subject to approval by the foreign exchange authority).

    Last modified 22 May 2023

  • Auditing of local financials. If so, must the auditor be located in local jurisdiction, and must the company's books be kept locally?

    An annual audit is required. The auditor must be located in local jurisdiction. Generally, corporate books, such as the minute book, should be kept with the company.

    Last modified 22 May 2023

  • Requirement regarding par value of stock

    Not applicable for the jurisdiction.

    Last modified 22 May 2023

  • Increasing of capitalization if needed

    Effectuated by amending the articles of association and joint venture contract/shareholders’ agreement (if applicable), which requires registration with the AMR. Among other application documents, the shareholder resolutions are required for application with the AMR.

    Last modified 22 May 2023

  • Summary of how funds can be repatriated from your jurisdiction (ie dividends or redemption)

    Funds can be repatriated abroad via dividends, reduction of registered capital or liquidation of a company.

    Last modified 22 May 2023

  • Restrictions on transferability of shares

    For foreign-invested LLCs, any transfer of shares is subject to the registration with the AMR and information reporting to the MOFCOM. Proposed transfer of shares by a shareholder to a third party should be subject to the consent of more than half of other shareholders and such other shareholders have the right of first refusal.

    Last modified 22 May 2023

  • Obtaining a name and naming requirements

    Proposed name must be reserved before incorporation or change of name.

    Last modified 22 May 2023

  • Summary of "know your client" requirements

    In connection with the information reporting to the  MOFCOM, information about an ultimate actual controller of the company as well as that of all the investors must be disclosed to MOFCOM. The disclosed information should generally allow the MOFCOM to trace the investment all the way up to either natural person, publicly listed company, foreign government (including government fund) or international organization owning or controlling 50 percent or more of the interest of a foreign investor. Practice of the local counterpart of the MOFCOM varies, but it may be possible to list only the largest shareholder, and to group multiple smaller shareholders together without specifying their names. Banks may have separate and different "know your client" or anti-money laundering requirements.

    Last modified 22 May 2023

  • Approval requirements for amending charter document

    For foreign-invested LLCs, amending charter document is subject to the registration with the AMR and information reporting to the MOFCOM (if applicable). Shareholder resolutions will be required for the applications.

    Last modified 22 May 2023

  • Licenses required to conduct business in jurisdiction

    Typically, the only license required would be a business license. Depending on the underlying business and operation, certain special license may be required from the competent industrial ministry.

    Last modified 22 May 2023

  • Process of purchasing and utilizing a shelf company

    Not common.

    Last modified 22 May 2023

  • Key contacts
    Peng Tao
    Peng Tao
    Partner DLA Piper [email protected] T +1 212 335 4875 View bio
Download PDF

Form of entity

Download PDF

China

Independent legal entity. In terms of companies set up by or with foreign investors, they need to follow the general company law (and partnership law as applicable) pursuant to the new Foreign Investment Law which took effect from January 1, 2020. Therefore, depending on the foreign shareholding ratio in a limited liability company (LLC) or a company limited by shares as discussed below, it would still work to make reference to a wholly foreign owned enterprise (WFOE) or a Sino-foreign joint venture enterprise in an economic sense.  However, a WFOE or JV, including  an equity joint venture (EJV) or contractual joint venture (CJV), would no longer exist as a legal form.  All foreign invested enterprises (FIEs) in China will take the legal form of either a company (LLC or company listed by shares) or a partnership.

Limited liability company (LLC)

  • Managed by board of directors or a single executive director (usually adopted by LLCs with a limited number of shareholders and relatively small size of operation), responsible for making major business decisions and overseeing general operations of an LLC.
  • The highest authority of an LLC is the shareholders’ meeting.
  • Director or the executive director is appointed/elected by the shareholder(s) of an LLC.
  • Senior management officers run the day-to-day operations of an LLC, as led by a general manger who usually is appointed by the board of directors or executive director.

Company limited by shares

  • Independent legal entity.
  • Board of directors has overall management responsibility, making major business decisions and overseeing general operations of a company.
  • The highest authority of a company listed by shares is the shareholders’ assembly.
  • Director is appointed/elected by shareholders of a company.
  • Senior management officers run the day-to-day operations of a company limited by shares, as led by a general manger who usually is appointed by the board of directors

Partnership enterprise

  • NOT a separate legal person entity.

  • Partnership agreement sets forth how the business is to be managed; one or several general partners can be designated to manage the business.

Last modified 22 May 2023

Download PDF