外商投资安全审查制度的完善——以德国为借鉴

Improvement of Security Review System for Foreign Investment——Taking the German Mechanism as a Reference

党的十九届五中全会强调要统筹发展和安全,我国外商投资安全审查制度的完善对促进外商投资和防范安全风险具有重要作用。现行外商投资安全审查制度存在着制度体系内部紧张和审查标准不合理等问题。德国安全审查制度规则体系主干由《对外贸易法》—《对外贸易条例》双层结构组成。为落实欧盟2019年通过的新外资监管框架,《对外贸易法》进行了首次大修;同时,德国联邦政府为应对新冠肺炎的全球流行,对《对外贸易条例》进行了第十五次修订,将健康产业纳入安全审查适用范围并进一步澄清了相关程序规范。德国安全审查制度及其最新发展中所体现出的灵活性与稳定性相统一特点,能够为我国外商投资安全审查规则体系的更新,审查启动标准的重塑,以及规制范围的明确等方面提供有益借鉴。

The Fifth Plenary Session of the 19th CPC Central Committee emphasized the need to integrate development and security.The improvement of China’s foreign investment security review system can play an important role in promoting foreign investment and preventing security risks.The sources of law on China’s foreign investment review are constituted of Foreign Investment Law,measures for the Security Review of Foreign Investment and three other norms,in which there are problems such as internal tensions in the system and unreasonable review standards.The German foreign investment review mechanism can be used as a model for China in many respects.The backbone of the German foreign investment examination system consists of the two-tier structure of the AWG-AWV.To implement the framework for the screening of foreign direct investment sadopted by the EU in 2019,the AWG has been amended for the first time.The new version of AWG expands the range of interests protected by the law,tightens the substantive criteria,imposes strict procedural requirements and adopts new deadlines.Almost the same time,in response to the pandemic of COVID-19,German Federal Government made fifteenth amendment to the AWV,which expanded the scope of application of the cross-sectoral examination,added a list of investor-related factors and further clarified the procedural norms.With its recent development,German foreign investment examination system has shown the unity of flexibility and stability,which can provide a useful reference for the updating of China’s foreign investment review system.