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商务部新规：所有中国涉外商务合同，都加上“中国出口管制合规”条款！New regulations of the Ministry of Commerce: all foreign business contracts in China will be added with the "China export control compliance" clause!
出口经营者拟定并发布由最高管理者或主要负责人签署的承诺性书面声明， 申明经营者将严格执行国家出口管制法律法规，高级管理层对内部合规机制的支持态度，以体现合法性原则 。政策声明对内应做到全员知晓，对外起到宣传作用。此外，这份声明还可以体现企业为此构建的工作原则、规则体系、组织权限、覆盖范围等内容。
出口经营者根据自身组织规模、所处行业、经营方式等情况， 对可能面临的出口管制风险进行全面评估 ，识别易发生违规风险的业务环节，根据风险等级匹配合规资源和审查内容，力求严谨缜密。评估内容主要包括：经营物项情况、客户情况、技术与研发情况、出口国家和地区情况、内部运作情况、第三方合作伙伴情况、风险防范措施等各方面。经营者可根据风险评估的结果有针对性地建立和更新适合自身特点的出口管制内部合规机制和相关组织管理体系，梳理分析可采取的风险防范措施。在风险评估中若有疑问，应及时向国家出口管制管理部门或外部专业机构咨询。
New regulations of the Ministry of Commerce: all foreign business contracts in China will be added with the "China export control compliance" clause!
Recently, the Ministry of Commerce officially issued the guidance of the Ministry of Commerce on the establishment of an internal compliance mechanism for export control of dual-use items (the "guidance") and attached a 37 page internal compliance guide for export control of dual-use items (the "compliance guide"), which serves as a reference for the national competent export control department to establish and implement the internal compliance mechanism for export control of China's dual-use items The operation of the internal compliance mechanism of export control provides a comprehensive, detailed and highly operational reference specification.
On December 1, 2020, the export control law of the people's Republic of China (the "export control law") will be formally implemented, making it clear that the State Administration of export control will issue export control guidelines to guide export operators to establish and improve the internal compliance system of export control and standardize their operation. If an exporter establishes an internal compliance system for export control and the system is in good operation, the state administrative department of export control may give general license and other convenient measures to the export of relevant controlled items. Based on this, in order to cooperate with the state's control of dual-use items and other export control work related to safeguarding national security and interests and fulfilling international obligations such as non-proliferation, export operators should attach great importance to and seriously study the guidance and compliance guide issued by the Ministry of Commerce, and actively establish a standardized and complete internal compliance mechanism according to the guidance, Do a good job in the compliance work under the export control law.
Based on the Ministry of Commerce's Guiding Opinions on the establishment of internal export control mechanism for dual-use items and technology business enterprises issued by the Ministry of Commerce in 2007, the guiding opinions further put forward the concept and detailed contents of "internal compliance mechanism for export control" of enterprises, and clearly pointed out that the internal compliance mechanism should have policy statement, organization, risk assessment, review procedures, and other functions Emergency measures, education and training, compliance audit, file retention, management manual and other nine basic elements《 The Guiding Opinions also emphasize that the administrative departments should carry out the promotion work, guide the export operators to establish the internal compliance mechanism of export control according to the guiding opinions, and according to the construction and operation of the internal compliance mechanism, the operators can be given the corresponding export licensing convenience or the subject meeting the conditions can be given lighter or mitigated administrative punishment according to law.
The compliance guide attached to the guidance provides specific reference for exporters to establish internal compliance mechanism of export control《 According to the nine elements of the compliance mechanism specified in the guidance, the compliance guide provides detailed guidance for enterprises, clarifies the main contents and implementation points of each element, and provides specific examples in various forms, such as lists, tables and charts, for the reference of export operators.
The full text of the guidance is as follows:
Announcement of the Ministry of Commerce
No. 10 of 2021
Guiding opinions of the Ministry of Commerce on the establishment of internal compliance mechanism for export control by exporters of dual use items
Safety and Control Bureau
Announcement No. 10, 2021 of the Ministry of Commerce
[date of issue] April 28, 2021
Effective export control measures are an important means to safeguard national sovereignty, security, development interests and fulfill international obligations. On December 1, 2020, the export control law of the people's Republic of China will be officially implemented, which provides a more powerful legal guarantee for the export control work in the new era. The export control law clearly stipulates that the State Administration of export control shall guide the export operators to establish and improve the internal compliance system. As a basic business entity, the exporter of dual-use items is an important link in the construction of national export control system. Strictly implementing the national export control laws and regulations is not only the responsibility and obligation of operators, but also helps operators to establish a responsible image and orderly carry out international economic and trade cooperation.
China's Ministry of Commerce, as the Department in charge of export control of dual-purpose items, guided by Xi Jinping's socialist ideology with Chinese characteristics in the new era, enhanced "Four Consciousnesses", "four confidence" and "two maintenances", implemented the overall national security concept, coordinated development and security, and continuously improved the export control system. According to the provisions of the export control law and relevant regulations, the Ministry of Commerce, in combination with the new characteristics of export control in the new era, revised and improved the Announcement No. 69 of 2007 "guiding opinions on the establishment of internal export control mechanism for exporters of dual-use items and technologies", Promote the establishment of the internal compliance mechanism of export control in line with their own actual situation by the dual-use items exporters and other entities (hereinafter referred to as the exporters) engaged in the relevant behaviors specified in the export control law. Specific suggestions are as follows:
Export operators consciously and strictly abide by the relevant laws and regulations of the state on export control, safeguard national security and development interests, establish and improve the internal compliance mechanism of export control in accordance with the policy of "improving the system, full participation, strict implementation and standardized operation", establish a good faith operation and responsible image, effectively avoid and reduce economic and trade risks, and constantly enhance competitiveness, To achieve sustainable development.
The establishment of an internal compliance mechanism for export control follows the following principles:
The principle of legality
Export operators should take strict enforcement of relevant laws and regulations of national export control as the fundamental principle of establishing internal compliance mechanism of export control, and fully understand the significance of legal compliance operation. The relevant behaviors of the operators must comply with the provisions of export control laws and regulations. In case of any illegal behavior, the operators will bear the corresponding legal responsibility.
Principle of independence
Internal compliance mechanism is an important part of the management system of export operators, which exists independently in the management system. Through the process control and system guarantee of the internal compliance mechanism, the export operators can regulate and supervise their own business behaviors. The internal compliance mechanism can exercise one vote veto power for the behaviors violating the national export control laws and regulations.
Principle of effectiveness
Export operators should establish an effective internal compliance mechanism of export control in combination with the actual business situation, and realize the operation system of high-level attention, full participation, full process control, regular evaluation and continuous improvement, so as to give full play to the role of internal compliance mechanism in the supervision and control of export business activities.
The internal compliance mechanism of export control has the following basic elements:
Formulation of policy statement
The export operator formulates and issues a commitment written statement signed by the top management or the main person in charge, stating that the operator will strictly implement the national export control laws and regulations, and that the senior management supports the internal compliance mechanism, so as to reflect the principle of legality. The policy statement should be known to all the staff and publicized to the outside world. In addition, the statement can also reflect the working principles, rule system, organizational authority, coverage and other contents of the enterprise.
Establishment of organization
Establish an organization for internal compliance mechanism of export control, and clarify the responsibilities of competent departments and personnel. The establishment of the organization should consider: the establishment of the organization system, the functions of the organization, the post responsibilities, authority and contact information of the full-time (Part-time) export control personnel, etc. The establishment of the organization should reflect the principle of independence, and authorize the responsible person to issue a ban on any export-related behavior or consult the government authorities. At the same time, it should be avoided that only one person is responsible for reviewing and judging whether some complex transactions are compliant, so as to ensure that the operators can effectively monitor all export related behaviors.
Comprehensive risk assessment
According to their own organizational scale, industry and mode of operation, export operators shall comprehensively assess the export control risks they may face, identify the business links prone to violation risks, match the compliance resources and review contents according to the risk level, and strive to be rigorous and meticulous. The evaluation contents mainly include: operating items, customers, technology and R & D, exporting countries and regions, internal operation, third-party partners, risk prevention measures, etc. According to the results of risk assessment, operators can establish and update the internal compliance mechanism of export control and relevant organization management system suitable for their own characteristics, and sort out and analyze the risk prevention measures that can be taken. In case of any doubt in the risk assessment, the State Administration of export control or external professional institutions shall be consulted in a timely manner.
Establish review procedures
Export business operators should establish export examination procedures, make clear which specific links in the business process need to implement internal compliance control, and prevent controlled items from being exported without internal examination through procedural and institutional management. The review points mainly include: whether the items operated are controlled by the national export control list; Whether the business activities conform to the national export control laws and regulations; Whether the country where the end user is located is a country subject to UN sanctions or other sensitive countries; Whether there are risks for end users and end uses; Whether the end use is reasonable; Whether the payment method of the customer conforms to the general business habits; Whether the export transportation route is reasonable.
Formulate emergency measures
Export operators encourage employees to improve their risk awareness, set up internal reporting channels and suspicious investigation procedures, and require employees to report to the internal compliance mechanism of export control in time after discovering suspicious orders, customers or behaviors, so that they can carry out investigation and make final decisions. If the export operator finds that the export license should be applied for but not applied for, or the end user and end use have changed or are inconsistent with the contract, it shall take emergency remedial measures and report to the government department in time.
When dealing with suspicious matters, illegal acts or emergencies, the export business operator knows or should know, or has been informed by the competent government department, that the items exported by the export business operator have the relevant risks stipulated by law, regardless of whether the items are included in the scope of the national export control list, They should apply for export license or carry out compliance control in accordance with the relevant provisions of national export control laws and regulations. Operators may, in combination with internal regulations, require employees engaged in relevant businesses to bear the responsibility of export control, and deal with violations of export control, so as to ensure the effective implementation of internal compliance mechanism.
Carry out education and training
Export operators should make regular or irregular training plans according to the actual situation, take various forms of training to achieve full staff training, and list export control training as an indicator of staff performance appraisal. The purpose of the training plan is that the staff can understand the national export control laws and regulations in time, effectively implement the requirements of the internal compliance mechanism, and the relevant personnel can properly handle the export control problems.
Improve compliance audit
Export operators regularly audit the rationality, feasibility and effectiveness of the internal compliance mechanism of export control, and evaluate the standardization of the compliance operation of specific business processes. The audit report should reflect the operation status of the internal compliance mechanism and the direction of rectification. The compliance audit can be carried out by a special person inside the enterprise or by an external third party. The audit content mainly includes whether the review process is followed, whether the organization is running smoothly, whether the investigation of suspicious matters is effective, and whether the compliance matters need to be improved.
Keep data files
Export operators shall keep complete and accurate documents related to export control, including export records, communication with government departments, customer information and communication documents, license application documents, license approval documents and export project implementation. The contact by telephone, fax, e-mail and other means shall also be recorded as appropriate, and the filing procedures and storage requirements of relevant trade documents shall be specified.
Preparation of management manual
The export operator shall prepare a management manual for the internal compliance mechanism of export control, which covers the contents of the above-mentioned basic elements, popularize the national export control laws and regulations and the compliance system, and enable the employees to timely understand and effectively implement the manual. The management manual can be in paper or electronic version, with complete content, easy to obtain and easy to implement.
In order to guide export operators to establish an internal compliance mechanism for export control in accordance with these guidelines, the Ministry of Commerce will strengthen the following promotion work with relevant parties:
（1） The internal compliance guide for export control of dual-use items was issued to provide specific reference for exporters.
（2） According to the construction and operation of the internal compliance mechanism, the export operators shall be given corresponding license facilities. Those who violate the regulations on export control of dual-use items but voluntarily eliminate or mitigate the harmful consequences of the illegal act shall be given a lighter or mitigated administrative punishment according to law.
（3） Strengthen export control compliance information services, timely publish export control related laws and regulations, policy documents, update domestic and foreign export control trends, etc.
（4） Organize or support the provincial commercial authorities and relevant industry organizations to carry out publicity and training, and guide the export operators to establish internal compliance mechanism.
（5） We will strengthen the construction of export control experts, and provide consulting services on policies, regulations, and internal compliance mechanisms.
（6） Organize relevant units and institutions to evaluate the construction of internal compliance mechanism of export operators.
（1） The operators applying for the "end user and end use instructions" in the Ministry of commerce can refer to the relevant principles and elements of these guidelines, establish an internal compliance mechanism including import process control, and strictly abide by the relevant commitments.
（2） Operators engaged in the import and export of commercial cipher products and precursor chemicals, as well as operators providing agency, freight, delivery, customs declaration, third-party e-commerce trading platform and financial services for the export of dual-use items, can refer to the relevant principles and elements of these guidelines to establish corresponding internal compliance mechanisms.
（3） Enterprises and scientific research institutes engaged in the R & D and production of dual-use items can establish corresponding internal compliance mechanisms according to the relevant principles and elements of the guidance.
（4） As of the date of promulgation of this announcement, Announcement No. 69 of the Ministry of Commerce in 2007 shall be invalid.
Ministry of Commerce of the people's Republic of China
April 28, 2021