商業(yè)特許經(jīng)營(yíng)管理辦法+Administration+of+Commercial+Franchise+Procedures

1、用心整理可以編輯的word文檔商業(yè)特許經(jīng)營(yíng)管理辦法Administration of Commercial FranchiseProcedures商業(yè)特許經(jīng)營(yíng)管理辦法Administration ofCommercial Fran chise Procedures(Promulgated by the Mini stry of Commerce on 30 December 2004 and effective as of 1February 2005.)頒布日期:20041230實(shí)施日期:20050201頒布單位：商務(wù)部PART ONE GENERAL PROVISIONSArticle 1

2、 These Procedures are formulated in order to sta ndardize commercialfranchising ， to safeguard the lawful rights and interests of the parties， and topromote the healthy and orderly developme nt of commercial fran chise.Article 2 For the purposes of these Procedures， the term “ commercialfranchising

3、” (hereafter ， franchising) shall refer to the arrangementwhereby a fran chisor， through the con clusi on of a con tract， authorizesa fran chisee to use bus in ess resources such as the trademark， trade n ameand bus in ess model of which it has the right to authorize the use thereof by otherparties.

4、 The fran chisee shall con duct bus in ess activities in accorda nee with thestipulati ons of the con tract un der a un iform bus in ess system and pay the fran chise fees to the fran chisor.Article 3 These Procedures shall apply to the en gageme nt in fran chis ing activitieswith in the People s Re

5、public of China.Article 4 A fran chisor may， in accorda nee with the stipulatio ns of thecon tract ， directly grant fran chise rights to a fran chisee. The fran chisee mayinv est in and establish fran chise outlets and en gage in bus in ess activities， but maynot grant sub-fra nchises. If a fran chi

6、see has bee n gran ted exclusive fran chise rights within a particular area ， it may furthergrant sub-fra nchise to ano ther applica nt and may establish its own fran chise outlets within that area.Article 5 The operatio n of fran chise bus in ess shall abide by the laws and regulatio ns of the Peop

7、le s Republic of China and t he prin ciples ofvolun tari ness , fair ness , hon esty and trustworth in ess , and shall notharm the lawful rights and in terests of con sumers.A fran chisor shall not use a fran chise un der false prete nces to illegally en gagein direct selling activities.A fran chiso

8、r that en gages in commercial activities in the form of fran chis ing may not create market mon opoly or obstruct fair competiti on.Article 6 The Min istry of Commerce shall impleme nt regulati on of fran chis ing activities throughout China. Departme nts in charge of commerce at all levels shall im

9、plement regulation of franchising activities within their area of jurisdiction.PART TWO FRANCHISING PARTIESArticle 7 A franchisor shall have the following qualifications:1. it shall be an enterprise or other economic organization establishedaccordi ng to law;2. it shall have the bus in ess resources

10、 such as trademark, trade n ameand bus in ess model of which it has the right to authorize the use thereof by ano ther party;3. it shall have the capability to provide Ion g-term bus in ess guida nee andtrai ning services to the fran chisees;4. it shall have at least two directly-r un stores with in

11、 China that have bee n operated for at least one year , or directly run stores set up by itssubsidiaries or companies in which it has a controlling share;5. where the fran chisor is required to provide goods for fran chis ing, itshall have a goods supply system that is stable and that can guara ntee

12、 thequality , and shall be able to provide releva nt services; and6. it shall have good reputatio n and no record of fraudule nt activities in the form of fran chisi ng.Article 8 A franchisee shall have the following qualifications:1. it shall be an enterprise or other economic organization establis

13、hed accordingto law; and2. it shall have the funds , fixed premises and personnel, etc. thatcomme nsurate with fran chis ing.Article 9 A franchisor shall enjoy the following rights:1. to supervise the bus in ess activities of the fran chisee in accorda nce with thestipulati ons of the con tract in o

14、rder to en sure un iformity of the fran chis ing system and the con siste ncy of the quality ofthe products and services provided;2. to revoke the franchising qualifications in accordance with the stipulations ofthe con tract of a fran chisee that violates the fran chise con tract, infrin ges thelaw

15、ful rights and in terests of the fran chisor, ordamages the fran chis ing system;3. to collect fran chise fees and deposits in accorda nce with the stipulati ons ofthe con tract; and4. other rights stipulated in the con tract.Article 10 A franchisor shall perform the following obligations:1. to disc

16、lose in formatio n accord ing to the releva nt provisi ons hereof in a timely manner;2. to grant the franchise rights for the use of the franchisee, and toprovide bus in ess symbols and operati on manual that represe nt the fran chis ing system;3. to provide to the fran chisee sales, bus in ess or t

17、ech ni cal guida nce ,trai ning and other services n ecessary for the operati on of the fran chise;4. to supply goods to the fran chisee in accorda nce with the stipulati ons of thecon tract. Except in the case of exclusive commodities or goods that must be provided by the fran chisor or a supplier

18、desig nated by the fran chisor to en sure the quality of franchising , the franchisor shall notcompel the franchisee to accept goods supplied by itself, but it maystipulate that the goods must reach the quality standard, or suggestseveral suppliers for the fran chisee to select;5. the fran chisor sh

19、all be resp on sible for guara ntee ing the quality of goods supplied by the suppliers it desig nates;6. sales promoti on and advertis ing stipulated in the con tract; and7. other obligati ons stipulated in the con tract.Article 11 A franchisee shall enjoy the following rights:1. bus in ess resource

20、s such as trademark , trade n ame and bus in essmodel the use of which are authorized by the fran chisor;2. training and guida nee provided by the fran chisor;3. timely supply of goods provided or arran ged by the fran chisor at the price stipulated in the con tract;4. sales promoti on support unifo

21、rmly provided by the fran chisor; and5. other rights stipulated in the con tract.Article 12 A franchisee shall perform the following obligations:1. to en gage in bus in ess activities in accorda nce with the stipulati ons of thecon tract;2. to pay the fran chise fees and the deposit;3. to safeguard

22、the uniformity of the franchising system, and may notgrant sub-fra nchises without the permissi on of the fran chisor;4. to provide to the franchisor in a timely manner true informationstipulated in the con tract such as bus in ess con diti ons and finan cial status;5. to accept guida nce and superv

23、isi on of the fran chisor;6. to mai ntai n the con fide ntiality of the trade secrets of the fran chisor;and7. other obligati ons stipulated in the con tract.PART THREE FRANCHISE CONTRACTSArticle 13 The particulars of fran chise con tracts shall be agreed by theparties and shall in gen eral in clude

24、 the follow ing:1. the n ames and domiciles of the parties;,and2. the particulars , term and place of the grant of use of franchise rights whether or not it is exclusive;3. the type , amount and method of payment of franchise fees , and the methods of collect ion and refund of deposit;4. con fide nt

25、iality clauses;5. con trol of and resp on sibility for the quality of fran chised goods andservices;6. training and guida nee;7. use of trade n ame;8. use of in tellectual property rights such as trademark;9. compla ints of con sumers;10. promoti on and advertis ing;11. modificati on and term in ati

26、 on of con tract;12. liability for breach of con tract;13. clauses on resoluti on ofdisputes; and14. other clauses agreed by both parties.Article 14 Fran chise fees shall refer to the fees paid by the fran chisee forobtaining the franchise rights, which shall include the followingtypes:1. initial fe

27、e: a lump sum payment by the franchisee to the franchisor for fran chise rights;2. usage fee: a fee paid periodically by the fran chisee to the fran chisor in thecourse of use of fran chise rights accordi ng to a certa in sta ndard or ratio; and3. other stipulated fees: other fees paid by the fran c

28、hisee to thefran chisor in accorda nee with the stipulati ons of the con tract for releva nt goods or services provided by the fran chisor.Deposit shall refer to certa in fees collected by the fran chisor from thefran chisee to en sure that the fran chisee performs the fran chise con tract. The depo

29、sit shall be refu nded to the fran chisee upon expirati on of the con tract.Both parties to a fran chise con tract shall n egotiate and determ ine fran chise feesand deposit in accordance with the principles of fairnessand reas on able ness.Article 15 The term of fran chise con tracts shall in gen e

30、ral be no less tha n three years.Upon expirati on of a fran chise con tract, the fran chisor and thefran chisee may determ ine upon con sultatio n the con diti ons for ren ewal of thefran chise con tract based on the prin ciples of fair ness and reas on able ness.Article 16 After a fran chise con tr

31、act has termi nated, the orig inalfranchisee may not continue to use the registered trademark, trade nameor other marks of the fran chisor without the consent of the fran chisor;apply to register the registered trademark of the fran chisor as the trademark of commodities or services of similar上一篇英語：

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33、f CommercialFran chise Procedurestype; register an en terprise trade n ame withwordings that are identical or similar to the registered trademark of the，tradefranchisor; or use a mark identical or similar to the registered trademarkn ame or shop decorati on of the fran chisor for ide ntical or simil

34、ar commodities or services.PART FOUR INFORMATION DISCLOSUREArticle 17 The fran chisor and fran chisee shall disclose the releva nt in formatio nin a timely manner prior to the con clusi on of the fran chise con tract and in the course of fran chis ing.Article 18 The fran chisor shall provide to the

35、applica nt true and accurate basic in formatio n related to fran chis ing in writi ng and the text of the fran chise con tract 20 days prior to the formal con clusi on of the con tract.Article 19 The basic information to be disclosed by the franchisor shall include:1. the n ame ， domicile ， register

36、ed capital ， scope of bus in ess and theterm of franchise of the franchisor， and basic details such as the contentsof financial reports audited by an accounting firm and details of taxpayme nts;2. the nu mber ， locatio n ， bus in ess status and budget for inv estme nt in thefranchise outlets of the

37、franchisee， and the ratio of franchisees thathave dissolved the fran chise con tract to the total nu mber of fran chisees;3. registrati on， use of lice nee and litigati on concerning the trademarkand releva nt details of other bus in ess resources such as the trade n ame andbus in ess model;4. type

38、, amount and method of collect ion of fran chise fees, andmethod of refund of deposit;5. details of any litigation in which it has been involved during the most recentfive years;6. various goods supply or services that can be provided to the fran chisee, aswell as the suppleme ntary con diti ons and

39、 restrict ions,etc.;7. proof of ability to provide training and guida nee to the fran chisee,and the actual details of training or guida nee provided;8. basic details of the legal represe ntative and other prin cipal resp on siblepersons , and whether they have been subject to criminal penalty or ha

40、ve bornepers on al liability for ban kruptcy of en terprise,etc.; and9. other information and details that the franchisee is required to disclose by thefran chisor.If the in formatio n disclosed is in complete or false, thereby caus ingecono mic loss to the fran chisee , the fran chisor shall bear t

41、he liability forcompe nsati on.Article 20 The fran chisee shall truthfully provide in formatio n on its bus in esscapabilities in accorda nee with the requireme nts of the fran chisor, in cludi ng proofof prin cipal qualificatio n, creditworth in ess,property rights , etc. In the course of franchisi

42、ng, it shall provide in atimely manner in formatio n stipulated in the con tract such as the true details ofthe bus in ess status in accorda nee with the requireme nts of the fran chisor.Article 21 In the course of fran chis ing and after a fran chise con tract has,without theterminated , the franch

43、isee and its employees may notconsent of the fran chisordisclose , use or permit others to use the tradesecrets of the fran chisor that have come to their kno wledge.s t radeArticle 22 Pers ons and applica nts that have not yet verified a fran chise con tract with the fran chisor but have kno wledge

44、 of the fran chisor,theysecrets through in formati on disclosure of the fran chisor shall be obliged to maintain con fide ntiality. Without the consent of the fran chisormay not reveal , disclose or transfer the trade secrets of the franchisor to ano ther party.PART FIVE ADVERTISING AND PROMOTIONArt

45、icle 23 The advertis ing and promoti on in formati on provided by fran chisorsduri ng promoti on , sales promoti on or sale of fran chise rights shall be accurate,truthful and lawful , and there may not be fabricati onor omission of important facts, or statements that may possibly bemisleadi ng.Arti

46、cle 24 Records and figures of bus in ess in come and profits of the fran chisor orother releva nt in formatio n referred to directly or in directly in the advertis ing andpromotio n materials of the fran chisors and fran chisees shall be true, and the areaand time invo Ived shall bespecified.Article

47、 25 Fran chisors and fran chisees may not imitate the trademark,advertis ing sce nes and terms , or other disti nguish ing marks of ano ther party byany method that may be mislead ing, fraudule nt or createcon fusi on.Article 26 In franchising promotion activities, a franchisor may notexaggerate the

48、 profits from fran chis ing or deliberately con ceal circumsta nces that may objectively affect the profits of others.PART SIX SUPERVISION AND ADMINISTRATIONArticle 27 Departme nts in charge of commerce at all levels shall stre ngthe n admi nistrati on and coordi nati on of fran chis ing activities

49、within their admi nistrative area , and shall guide the work of localin dustry associati ons (or chambers of commerce)。Departments in charge of commerce at all levels shall establish credit files for franchisors and franchisees, and shall announce the names ofenterprises in violation of regulations

50、in a timely manner.Article 28 Fran chise in dustry associati ons (or chambers of commerce)shall formulate in dustry sta ndards in accorda nee with these Procedures and exercise self-regulatio n to provide releva nt services to fran chis ing parties and promote the developme nt of the in dustry.Artic

51、le 29 Fran chisors shall , in January each year , submit thefran chise con tracts con cluded in the previous year to their local departme nt in charge of commerce and the departme nt in charge of commerce at the place where the fran chisee is located for record fili ng. Local departme nts in charge

52、of commerce shall report the details of record fili ng to the departme nt in charge of commerce at one level above.Article 30 Where fran chis ing activities invo Ives pate nt lice nsing, apate nt lice nsing con tract shall be con cluded in accorda nee with the provisi ons of the PRC, Trademark Law a

53、nd its implementing rules , andrecord filing matters shall be handled in accordance with the Administration of the Record Filing of Pate nt Lice nsing Con tracts Procedures.Article 31 Prior to en gageme nt in fran chise activities, the fran chisorshall han dle record fili ng of the trademark lice ns

54、ing con tract in accorda nce with the provisi ons of the PRC , Trademark Law and itsimpleme nting rules.PART SEVEN SPECIAL PROVISIONS GOVERNINGFOREIGN-INVESTED ENTERPRISESArticle 32 Foreig n-i nv ested en terprises shall not en gage in the types of bus in essprohibited un der the Foreig n In vestme

55、nt In dustrial Guida nee Catalogue in the form of fran ehis ing.Article 33 Foreig n-i nv ested en terprises en gagi ng in commercial activities in theform of fran chis ing shall apply to the orig inal exam in atio n and approval authorityfor addition of“engagement in commercial activities in the for

56、m of franchising” tothe scope of bus in ess, and shall submit the follow ing materials:1. application form and resolution of the board of directors;2. en terprise bus in ess lice nce and approval certificate for foreig n-i nv esteden terprises (photocopy);3. ame ndme nt agreeme nt for the con tract

57、and articles of associati on (in the caseof foreign-invested enterprises, only amendments toarticles of association shall be submitted);4. docume ntary materials in support of complia nce with Article 7 hereof ;5. basic information and details that reflect the provisions of Article 19hereof;6. a sam

58、ple of the fran chise con tract; and7. fran chise operati on manu al.The exam in ati on and approval authority shall issue a writte n decisi on on whetheror not to approve the applicati on with in 30 days of the date of receipt of all theaforementioned application materials.After an applica nt has obta ined approval, it shall han dle