Desde Mayo del 2007 entraron en vigencia normas para regular a las Franquicias en la República Popular China. Estas normas coinciden con la corriente de establecer obligaciones de información previa a los potenciales franquiciados. También incluye la obligacion de los franquiciadores de contar con al menos dos locales funcionando por el tiempo de un año, para poder franquiciar, y además establece multas de 100,000 a 500,000 yenes a aquellas personas que otorgan franquicias fuera de la ley. ( en US$ aprox desde 16,000 hasta 83,000 dólares )
A continuación, para quienes deseen estudiar más sobre el tema, el decreto del Consejo de Estado de la República Popular China.
Decree of the State Council of the People's Republic of China
No. 485
The Regulations on Administration of Commercial Franchise have been passed by the
167th regular meeting of the State Council held on January 31, 2007, and are hereby
promulgated, coming into effect as of May 1, 2007.
Premier Wen Jiabao
February 6, 2007
Regulations on Administration of Commercial Franchise
Chapter I General Provisions
Article 1. These Regulations are formulated with the aims of regulating commercial
franchising activities, promoting the healthy and orderly development of
commercial franchise, and safeguarding market order.
Article 2. Those who engage in commercial franchising activities within the territory
of the People's Republic of China shall comply with these Regulations.
Article 3 Commercial franchise (hereinafter referred to as "franchise") referred to in
these Regulations means the business activities whereby the franchisor
(hereinafter referred to as "franchisor"), through executing contracts,
allows the franchisee (hereinafter referred to as "franchisee") the use of
the operational resources, such as registered trademark, enterprise logo,
patent, know-how, etc., that the franchisor owns, and the franchisee
undertakes business under the unified business format in accordance with
the provisions of such contracts, and pays franchise fees to the franchisor.
No entities other than enterprises or individuals may engage in franchising
activities as franchisors.
Article 4 Franchising activities shall be conducted in compliance with the principles
of free will, fair dealing, honesty, and good faith.
Article 5 The competent commercial authority of the State Council is in charge of
the supervision and administration of nationwide franchising activities in
accordance with these Regulations. The competent commercial
authorities of the people's government of each province, autonomous
region, and municipality directly under the Central Government, and the
competent commercial authorities of the people's government of each city
with districts are in charge of supervision and administration of franchising
activities within their respective administrative divisions in accordance with
these Regulations.
Article 6 Any entity or individual shall have the right to report to the competent
commercial authority acts in violation of these Regulations. Upon
receiving the report, the competent commercial authority shall deal with
such acts in a timely manner in accordance with the law.
Chapter II Franchising Activities
Article 7 A franchisor engaged in franchising activities shall own a well-developed
business format and has the capabilities to continuously provide
operational guidance, technical support, business training, and other
services to the franchisee.
A franchisor engaged in franchising activities shall own at least 2 directly
operated outlets, and shall be in operation for more than 1 year.
Article 8 Within 15 days after the execution of the initial franchise contract, a
franchisor shall file with the competent commercial authority for record in
accordance with the provisions of these Regulations. Where the
franchisor engages in franchising activities within the territorial scope of a
province, autonomous region, or municipality directly under the Central
Government, it shall file with the competent commercial authority of the
people's government of the concerned province, autonomous region, or
municipality directly under the Central Government where it is located; and
where the franchisor engages in franchising activities across the territorial
scope of a province, autonomous region, or municipality directly under the
Central Government, it shall file with the competent commercial authority
of the State Council for record.
When filing with the competent commercial authority for record, a
franchisor shall submit the following documents and materials:
(1) A duplicate copy of its Business License or of its enterprise
registration (filing) certificate;
(2) A sample franchise contract;
(3) Franchise operation manuals;
(4) A marketing plan;
(5) A written undertaking and relevant substantiating materials showing
that the franchisor meets the requirements set forth in Article 7
hereof;
(6) Other documents and materials as stipulated by the competent
commercial authority of the State Council.
Where the products or services offered by the franchised business are
subject to approval as required by law, the franchisor shall also submit the
relevant approval documents.
Article 9 Within 10 days after the competent commercial authority has received the
documents and materials submitted by the franchisor which comply with
the provisions in Article 8 of these Regulations, it shall make such filing for
record and notify the franchisor of such record. Where the documents and
materials submitted by the franchisor are incomplete, the competent
commercial authority may request the franchisor to submit supplementary
documents and materials within seven days.
Article 10 The competent commercial authority shall publish the name list of the
franchisors already filed for record on the government website and keep it
updated in a timely manner.
Article 11 A written franchise contract shall be entered into by the franchisor and the
franchisee for engaging in franchising activities.
A franchise contract shall include the following main contents:
1) basic information of the franchisor and the franchisee;
2) contents and duration of the franchise;
3) types, amounts, and payment methods of the franchise fees;
4) specific contents and provision methods of the operational
guidance, technical support, business training, and other services;
5) quality and standards requirements, as well as guarantee
measures, for the products or services offered by the franchised
business;
6) promotion and advertisement of the products or services offered by
the franchised business;
7) arrangements for protection of consumer rights/interests and
undertaking of liability for compensation in the franchising activities;
8) amendments, rescission, and termination of the franchise contract;
9) liability for breach of contract;
10) methods of dispute resolution; and
11) other matters as agreed upon by the franchisor and the franchisee.
Article 12 The franchisor and the franchisee shall set forth in the franchise contract
that the franchisee is entitled to unilaterally rescind the franchise contract
within a certain period after the contract is signed.
Article 13 The term of the franchise as stipulated in the franchise contract shall not
be less than 3 years, unless otherwise agreed to by the franchisee.
The provision in the preceding paragraph shall not apply when franchisor
and franchisee extend the term of the franchise contract.
Article 14 The franchisor shall provide the franchise operation manual to the
franchisee, and continuously provide operational guidance, technical
support, business training, and other services to the franchisee according
to the contents and methods as agreed upon.
Article 15 The quality and standards of the products or services offered by the
franchised business shall comply with the laws, administrative regulations
and the provisions of the relevant requirements of the State.
Article 16 Where the franchisor requires the franchisee to pay fees before the
franchise contract is signed, it shall explain in writing to the franchisee the
purpose of such fees and the conditions and manner for refund of the
same.
Article 17 The promotion and advertisement fees collected by the franchisor from the
franchisee shall be used for the purposes as agreed upon in the contract.
The status pertaining to the use of the promotion and advertisement fees
shall be disclosed to the franchisee in a timely manner.
The franchisor shall not conduct the advertisement and promotions in a
fraudulent or misleading manner, and the advertisement published by it
shall not contain information publicizing the profits of the franchisees from
their franchising activities.
Article 18 Without the consent of the franchisor, the franchisee may not transfer its
franchise to others.
The franchisee may not divulge or permit others to use the trade secrets
of the franchisor of which it becomes aware.
Article 19 In the first quarter of each year, the franchisor shall report to the
competent commercial authority the situation of its franchise contract(s)
signed during the preceding year.
Chapter III Information Disclosure
Article 20 The franchisor shall establish and implement a complete information
disclosure system pursuant to the stipulations of the competent
commercial authority of the State Council.
Article 21 The franchisor shall provide the franchisee with the information as
required in Article 22 hereof in writing, and the text of the franchise
contract, at least 30 days before the franchise contract is signed.
Article 22 The franchisor shall disclose to the franchisee the following information:
1) Franchisor's name, domicile, legal representative, registered
capital, business scope, and the basic situations of its franchising
activities;
2) The basic situations of the franchisor's registered trademark,
enterprise logo, patent, know-how, and business format;
3) Types, amounts, and payment methods of the franchise fees
(including whether a deposit is required and the conditions and
methods for its refund);
4) Prices and conditions for the provision of products, services, or
equipment to the franchisee;
5) Specific contents, provision methods and implementation plan in
respect of the continuous provision of operational guidance,
technical support, business training, and other services to the
franchisee;
6) Specific measures in respect of the guidance and supervision over
the operational activities of the franchisee;
7) Investment budget for the franchised business;
8) The number, geographic distribution and evaluation of the
operational status of the existing franchisees in China;
9) Summary of the financial accounting reports audited by an
accounting firm and summary of the audit reports both pertaining to
the preceding 2 years;
10) Situations of the litigations and arbitrations in connection with the
franchising activities in the preceding 5 years;
11) Existence or non-existence of material illegal operation track record
of the franchisor and its legal representative;
12) Other information as required by the competent commercial
authority of the State Council.
Article 23 The information provided by the franchisor to the franchisee shall be true,
accurate, and complete; and the franchisor shall not conceal the relevant
information or provide any false information.
Where any material changes occur with respect to information provided by
the franchisor to the franchisee, the franchisor shall inform the franchisee
of the same in a timely manner.
Where the franchisor concealed the relevant information or provided false
information, the franchisee may rescind the franchise contract.
Chapter IV Legal Liabilities
Article 24 Where an franchisor does not satisfy the conditions set forth in the second
paragraph of Article 7 of these Regulations but nonetheless engages in
franchising activities, the competent commercial authority shall order a
correction to the violation, confiscate the illegal income, and impose a fine
of more than RMB 100,000 yuan and less than RMB 500,000 yuan, and
publicly announce the same.
Where an entity other than an enterprise, or an individual, engages in
franchising activities in the capacity of a franchisor, the competent
commercial authority shall order cease and desist of the illegal business
activities, confiscate the illegal income, and impose a fine of more than
RMB 100,000 yuan and less than RMB 500,000 yuan.
Article 25 Where a franchisor fails to file with the competent commercial authority for
record in violation of the provisions in Article 8 of these Regulations but
engages in franchising activities, the competent commercial authority shall
order a time limit for rectification in terms of filing for record and may
impose a fine of more than RMB 10,000 yuan and less than RMB 50,000
yuan; and where the franchisor fails to file for record within such time limit,
a fine of more than RMB 50,000 yuan and less than RMB 100,000 yuan
may be imposed and it shall be publicly announced.
Article 26 Where a franchisor is in violation of the provisions in Articles 16 or 19 of
these Regulations, the competent commercial authority shall order a
correction to the violation and may impose a fine of less than RMB 10,000
yuan; and where the facts and circumstances of the concerned violation
are serious, a fine of more than RMB 10,000 yuan and less than RMB
50,000 yuan may be imposed and it may be publicly announced.
Article 27 Where a franchisor is in violation of the provisions in the second
paragraph of Article 17 of these Regulations, the authority in charge of
administration for industry and commerce shall order a correction to the
violation and may impose a fine of more than RMB 30,000 yuan and less
than RMB 100,000 yuan; where the facts and circumstances of the
concerned violation are serious, a fine of more than RMB 100,000 yuan
and less than RMB 300,000 yuan may be imposed and it may be publicly
announced, and it may be ordered to suspend the franchising activities;
and where a criminal offense is constituted, the criminal liabilities shall be
investigated according to law.
The franchisor's fraudulent or misleading activities in advertising shall be
handled and penalized pursuant to the relevant provisions of the
advertisement laws.
Article 28 Where a franchisor is in violation of the provisions in Articles 21 or 23 of
these Regulations, and where the franchisee reports the violation to the
competent commercial authority and such report has been verified, the
competent commercial authority shall order a correction to the violation
and may impose a fine of more than RMB 10,000 yuan and less than RMB
50,000 yuan; and where the facts and circumstances of the concerned
violation are serious, a fine of more than RMB 50,000 yuan and less than
RMB 100,000 yuan may be imposed and it may be publicly announced.
Article 29 When money or property is defrauded in the name of franchising, if it
constitutes a criminal offense, the criminal liabilities shall be investigated
according to law; and where it does not constitute criminal offense, it shall
be subject to punishment by the authority in charge of public security in
accordance with the provisions of the Law of the People's Republic of
China on Public Security Administration Punishments.
When pyramid sales are conducted in the name of franchising, these shall
be subject to punishment in accordance with the relevant provisions of the
Regulations on Prohibition of Pyramid Sales.
Article 30 When the personnel of the competent commercial authority abuse their
power, neglect their duties, show favoritism, or commit irregularities, if
such constitutes a criminal offense, they shall be penalized according to
criminal law; where such does not constitute a criminal offense, they shall
be punished pursuant to the relevant law.
Chapter V Supplementary Provisions
Article 31 When franchising activities involve trademark license or patent license,
they shall be administered in accordance with the relevant provisions of
the laws and administrative regulations in respect of trademark or patent.
Article 32 The relevant associations and institutions shall formulate the code of
conduct for franchising activities, strengthen industrial self-discipline, and
provide related services to the parties involved in franchising activities
under the guidance of the competent commercial authority of the State
Council in accordance with the provisions of these Regulations.
Article 33 The franchisors that have been engaging in franchising activities before
these Regulations take effect shall file with the competent commercial
authority for record in accordance with the provisions of these Regulations
within 1 year after these Regulations take effect; and if they do not make
such filing within such time limit, they shall be subject to penalties in
accordance with the provisions in Article 25 of these Regulations.
The provisions in the second paragraph of Article 7 of these Regulations
shall not apply to the franchisors mentioned in the preceding paragraph of
this Article 33.
Article 34 These Regulations shall take effect as of May 1, 2007.
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