Notice Concerning Matters Related to Implementing the “Provisional Sino-Foreign Joint Venture and Cooperation Radio and Television Programme Production Business Enterprise Management

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On 25 February 2005, SARFT issued the “Notice Concerning Matters Related to Implementing the “Provisional Sino-Foreign Joint Venture and Cooperation Radio and Television Programme Production Business Enterprise Management”, the “Notice” said that, the SARFT and the Ministry of Commerce “Provisional Sino-foreign Joint Venture and Cooperative Radio and Television Programme Production Business Enterprise Management Regulations” (SARFT Decree No. 44) was officially implemented on 28 November 2004. In order to further standardize Sino-foreign joint venture and cooperation radio and television programme production business enterprises (hereafter simply named “jointly-operated entities”) management work, the problems that should be paid attention to during concrete implementation work are notified as follows:

I, All levels must fully understand the importance of standardizing and strengthening jointly operated enterprise management, and administer strictly and according to the law. Permitting the establishment of jointly operated enterprises is an important requirement for deepening radio and television sector reform, further expanding our country’s programme production industry scale, raising programme production capacity and levels, and is also a requirement for further raising our country’s radio and television programme international market share and influence. At the same time, we must note that the radio and television programme production sector a very strong ideological nature, and at the same time as importing mature foreign programme production market business concepts and methods, we must realistically grasp content guidance of all sorts of products produced by jointly operated enterprises, understand the political inclination and background of foreign co-operators, prevent foreign harmful ideology and culture to enter our programme production sphere through joint venture or cooperation methods. It is necessary to strictly and according to the law, implement examination and inspection powers over the co-operators’ main body, funding and reputation, and long-term interests cannot be overlooked because of short-term interests.

 

II, Earnestly implementing preliminary examination powers over business enterprises, guaranteeing  standardized and orderly examination of business enterprises. It is necessary to strictly according to the provisions of Decree No. 44., conduct earnest examination and verification over conditions such as the applicant’s resources, funding, contracts, reputation, enterprise symbols, etc. Also, it is necessary to pay attention to grasping the following principles during concrete work:

(1) Foreign co-operators must be specialist radio and television enterprises, including radio stations, television stations or specialist film and television programme production organs. Among domestic co-operators, there shall also be a side that is a radio and television programme production business organ or a television drama production organ. Domestic broadcasting organs such as radio stations and television stations, etc. cannot establish business enterprises in cooperation with foreign enterprises.

(2) In view of business enterprises just having started, in order to avoid resource wastage, promoting jointly operated enterprises to speedily shape brands, according to the provisions of Article 6 Paragraph 1 of Decree No. 44, a foreign cooperating side and a SARFT-approved and established business in an approved and established jointly operated enterprise, may in principle not apply for establishment of a second jointly operated enterprise. Under exceptional circumstances, it shall pass through the provincial-level administrative radio, film and television management entity, explaining the particular reasons, and reported to SARFT for approval. Only with SARFT approval, may another joint operation application be put forward.

(3) According to the provisions of Article 6 Paragraph 7 of Decree No. 44, those among the Chinese side applicants holding a “Radio and Television Programme Production Business Permit” or a “Television Drama Production Permit (Level A)”, shall within three years before the date of application not have been subject to harmful records such as being warned, reported for criticism or having production qualifications provisionally stopped by provincial-level or higher radio, film and television management entities. Those among the applying organs having their “Radio and Television Programme Production Business Permit” or a “Television Drama Production Permit (Level A)” for less than three years, may only put forward applications for joint operation after they complete the three years.

Those among the Chinese side applying organs not having a “Radio and Television Programme Production Business Permit” or a “Television Drama Production Permit (Level A)”, shall within three years before the date of applications, have no record of violating laws or regulations with local entities such as industry and commerce, taxation, etc. Those having their legal person registration with the industry and commerce entity for less than three years, may only put forward applications for joint operation after they complete the three years.

Foreign side cooperating organs shall not have a record of being unfriendly to us within three years before the date of application.

(4) Jointly operated enterprises, when producing television dramas, must according to the procedures provided by the “Radio and Television Programme Production Business Management Regulations” (SARFT Decree No. 34) apply for a “Television Drama Production Permit (Level B)”. Where the Chinese side of a jointly operated enterprise is an organ holding a “Television Drama Production Permit (Level A)”, if producing television dramas under the name of the jointly operated enterprise, a “Television Drama Production Permit (Level B)” must be applied for separately as well.

(5) Where change such as cancellation or revocation happens in the original legal person organs of any cooperating side in a jointly operated enterprise, and change of the original cooperating subject or modification of shareholding is required, it shall be according to the provisions of Article 10 of Decree No. 44, be reported to the jointly operated enterprise examination and approval organ for examination and approval; where no change to the cooperation subject or shareholding is required, jointly operated enterprise termination formalities shall be conducted.

(6) Where all other sorts of Sino-foreign joint venture or cooperative culture enterprises already established before SARFT Decree NO. 44 took effect, or jointly operated film production companies already approved by SARFT and established, engage in radio and television programme production or business work, they must conduct examination and approval formalities according to SARFT Decree No. 44.

(7) Domestic organs already having obtained a “Radio and Television Programme Production Business Permit” or “Television Drama Production Permit (Level A)”, where they transfer shares or equity rights to foreign organs or shareholding change occurs in foreign capital, examination and approval formalities must be conducted with reference to SARFT Decree No. 44.

 

III, Strengthening daily management over jointly operated enterprises, guaranteeing the healthy development of jointly operated enterprises. During work, it is necessary to especially pay attention to the following points:

(1) SARFT or SARFT-authorized provincial-level radio, film and television management entities must strengthen examination of jointly operated enterprise programme production themes and content, earnestly supervise whether or not jointly operated enterprises develop all kinds of professional activity within their approved business scope. All sorts of programmes produced by jointly operated enterprises are managed as domestic programmes. It is strictly prohibited to make use of jointly operated enterprise production names to import foreign channels and all kinds of programmes.

(2) The situation of the annual programme production and distribution of jointly operated enterprises (including distribution abroad), etc., shall be reported before 31 January of the next year to the provincial-level radio, film and television management entity for filing. If in the production amount of that year, Chinese-themed radio and television programmes do not reach the required 2/3, a warning shall be issued; there the statutory requirements are still not reached for three years running, their programme production business qualifications may e provisionally revoked, and they will be required to adopt realistic measures to conduct rectification. When their programme theme, production planning, fees, etc., are satisfactory for producing more than 2/3 Chinese-themed programmes, their business qualifications will be restored. All provincial-level radio, film and television management entities shall before 15 February of every year, examine and verify the situations of jointly operated enterprise business achievements under their control, and report it to the SARFT social management department for filing.

(3) Jointly operated enterprises may not participate in domestic radio stations and television stations channel and frequency operation work. If it is discovered that domestic radio and television broadcast organs, under the name of jointly operated enterprises, have handed over channels or frequencies for operation by foreign organs, or jointly operate them with foreign organs, provincial-level or higher radio, film and television management entities shall determinedly put an end to it. Where circumstances are grave, according to the “Radio and Television Management Regulations”, the necessary administrative punishment shall be imposed on the organ concerned.

(4) Jointly operated enterprise operation and management must be mainly led by the Chinese side, the rights and powers belonging to the Chinese side may not be entrusted or conferred to the foreign side for implementation.

 

IV, Developing management over jointly operated enterprises is a completely new work for radio, film and television management entities. During concrete management work, work responsibility content must such as management duties, concretely accepted entities, work procedures, examination and approval periods and supervision mechanisms, etc., must be clearly announced to society, achieving government openness. New circumstances run into during work, shall be timely communicated to SARFT, asking for instructions, determinedly preventing phenomena such as sloppy policies and each entity acting on its own. It is necessary to manage earnestly and strictly, incessantly raise management work levels, establish the beneficial image of a rule of law government and a well-reputed government.

 

2005年2月25日,国家广电总局向各省、自治区、直辖市广播影视局(厅)发出《关于实施《中外合资、合作广播电视节目制作经营企业管理暂行规定》有关事宜的通知》,《通知》说,国家广电总局和商务部关于《中外合资、合作广播电视节目制作经营企业管理暂行规定》(总局44号令)已于2004年11月28日正式实施。为进一步规范中外合资、合作广播电视节目制作经营企业(以下简称“合营企业”)管理工作,现将具体实施工作中应注意的问题通知如下:

一、各地要充分认识规范和强化合营企业管理的重要性,严格依法行政。允许设立合营企业,是深化广播电视行业改革,进一步扩大我国节目制作产业规模,提升节目制作能力和水平的需要,也是进一步提高我国广播电视节目在国际市场占有率和影响力的需要。同时要看到,广播电视节目制作业有很强的意识形态属性,我们在引进境外节目制作市场成熟的运作理念和方法的同时,要切实把握好合营企业所生产各类产品的内容导向,了解境外合作者的政治倾向和背景,防止境外不良思想文化通过合资合作的方式进入我们的节目制作领域。要严格依法依规履行对合作者的主体、资金和信誉的审核审查权,不能因短期利益而忽视长远的利益。

二、认真执行对合营企业的初审权,确保合营企业审批规范有序。要严格按照总局44号令的规定,对申请者资质、资金、合约、信誉、企业标志等条件进行认真审核。并在具体工作中要注意掌握以下原则:

(1)境外合作者必须是专业广播电视企业,包括电台、电视台或专业的影视节目制作机构。境内合作者中也应有一方为广播电视节目制作经营机构或电视剧制作机构。境内电台、电视台等播出机构不能与境外机构合作设立合营企业。

(2)鉴于合营企业刚刚起步,为避免出现资源浪费,推动合营企业迅速形成品牌,根据44号令第六条第一款的规定,经批准已经设立了合营企业中的境外合作方和广电总局已批准设立的合营企业,原则上不得再申请设立第二家合营企业。情况特殊的,应事先经当地省级广播电视行政管理部门说明特殊理由,报总局审查。经总局同意后方可再提出合营申请。

(3)根据44号令第六条第七款的规定,中方申请机构中持《广播电视节目制作经营许可证》或《电视剧制作许可证(甲种)》的,应自申请之日起的前三年内没有被省级以上广播电视行政管理部门处以警告、通报批评和暂停制作资格等不良记录。该申请机构所持《广播电视节目制作经营许可证》或《电视剧制作许可证(甲种)》未满三年的,应在满三年后,方可提出有关合资申请。

中方申请机构不具备《广播电视节目制作经营许可证》或《电视剧制作许可证(甲种)》资格的,应在申请之日起的前三年内,在当地工商、税务等部门中无违法违规记录。其法人机构在工商部门注册未满三年的,应在满三年后,方可提出有关合资申请。

外方合作机构应自申请之日起的前三年内没有对我不友好的记录。

(4)合营企业制作电视剧时需按《广播电视节目制作经营管理规定》(总局34号令)规定的程序,申领《电视剧制作许可证(乙种)》。合营企业中的中方合作者为《电视剧制作许可证(甲种)》机构的,如以合营企业的名义制作电视剧,也需按规定另行申请《电视剧制作许可证(乙种)》。

(5)合营企业中的合作各方其原有法人机构如发生注销、撤销等变化,需变更原有合作主体或重新变更股权的,应按44号令第十条的规定,报合营企业的审批机关审批;如不变更合作主体或股权的,则应办理合营企业的注销手续。

(6)在总局44号令颁布实施前,已经设立的其他各类中外合资、合作文化企业或已经总局批准设立的合营电影制片公司,如从事广播电视节目制作、经营业务,须按总局44号令规定办理审批手续。

(7)已经取得《广播电视节目制作经营许可证》或《电视剧制作许可证(甲种)》的境内机构,如向境外机构转让股份、股权或向境外融资发生股权变化的,须参照总局44号令规定办理审批手续。

三、加强对合营企业的日常管理,确保合营企业健康发展。工作中特别要注意以下几点:

(1)总局或由总局授权的省级广播电视行政管理部门要加强对合营企业节目制作选题内容的审查,认真监督合营企业是否按批准的经营范围开展各项业务活动。合营企业生产的各类节目按国产节目进行管理。严禁假借合营企业制作的名义引进境外频道和各类节目。

(2)合营企业每年的节目制作、发行(包括向境外发行)等情况应在第二年的1月31日前报当地省级广播电视部门备案。如其当年节目制作总量中,中国题材的广播电视节目达不到2/3要求的,应给予警告;连续三年仍达不到规定要求的,可暂停其节目制作经营资格,并要求其采取切实措施进行整改。待其节目选题、制作计划、经费等条件满足生产2/3以上的中国题材节目时,再恢复其经营资格。各省级广播电视管理部门应在每年的2月1 5日前将所掌握的合营企业制作业绩审核情况,上报国家广电总局社会管理司备案。

(3)合营企业不得参与境内电台、电视台的频率、频道经营业务。如发现境内广播电视播出机构以合营企业的名义,将本台的频率、频道交予境外机构经营,或与境外机构合作经营的,省级以上广播电视管理部门应坚决制止。情节严重的,应根据《广播电视管理条例》,对当事机构给予必要的行政处罚。

(4)合营企业要由中方为主导进行经营和管理,属中方的权力和权利不得委托、授予外方行使。

四、开展对合营企业管理是广播电视管理部门一项全新的工作。在具体管理工作中,必须明确向社会公告管理职责、具体受理部门、办事程序、审批时限和监督机制等工作职责内容,做到政务公开。对于工作中遇到的新情况,应及时向总局沟通请示,坚决防止政策的随意性或政出多门等现象。要通过认真、严格管理,不断提高管理工作水平,树立法治政府和信誉政府的良好形象。

 

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