II.Compliance of Performance Host
2.1 Establishment
2.1.1 Performance Brokerage Institution
According to the provision of Chinese law, a performance brokerage institution may engage in the activities such as performance organization, production, and marketing, intermediary, agency and brokerage for commercial stage performances, and actor contracting, promotion,and agency activities.To set up a performance brokerage institution,it is necessary to go through two steps: first to obtain a business license through the examination and approval of the Administration for Market Regulation, and then to obtain a Commercial Performance License through the examination and approval of the administrative department of culture and tourism of the government.
2.1.1.1 Obtaining a Business License
To establish a performance brokerage institution as a Legal entity,one must refer to relevant laws and regulations of the Company Law.As an enterprise legal person, the company has independent legal person property and enjoys legal person property rights.It shall be liable for its debts with all its property.Companies under Chinese law are divided into limited liability companies and companies limited by shares.The shareholders of a limited liability company shall be liable for the company based on the capital contributions they have paid, while the shareholders of a company limited by shares are liable for the company based on the shares they have subscribed to.To establish a company, an application for establishment registration shall be filed with the company registration authority.For a lawfully established company, the company registration authority shall issue a company business license to the company.According to the State Council Institutional Reform Plan (2018),the State Administration for Market Regulation has been established to take charge of the unif ied registration of market entities, and the State Administration for Industry and Commerce is no longer retained.
A limited liability company shall be established by no more than 50 shareholders that make capital contributions.The establishment of a limited liability company shall meet the following requirements: (1)the number of shareholders meets the quorum; (2) the amount of capital contributions paid by all shareholders is in compliance with the bylaw of the company; (3) the shareholders jointly work out the bylaw;(4) the company has a name and its organizational structure meets the requirements of a limited liability company; and (5) the company has a domicile.
A company limited by shares may be established by ways of initiation or stock floatation.Initiation refers to a way of establishing a company that the promoters subscribe to all of the shares that should be issued by the company.Stock floatation refers to the other way of establishing a company that the promoters subscribe to some of the shares that should be issued by the company and the remaining shares are publicly raised by the general public or to a group of specified people.To establish a company limited by shares, there shall not be less than 2 but not more than 200 promoters, of whom half or more shall have domiciles within the territory of China.For the establishment of a company limited by shares, the following requirements shall be met: (1) The number of promoters meets the quorum; (2) The total number of shares subscribed by the promoters or the total amount of shares received is in compliance with the provisions of the company’s bylaw; (3) The issuance and preparatory work are in compliance with the law; (4) The bylaw is formulated by the promoters, and is adopted at the establishment meeting if the company is launched by stock floatation; (5) The company has a name and its organizational structure meets the requirements of a company limited by shares; (6) The company has a domicile.
2.1.1.2 Obtaining a Commercial Performance License
After obtaining a business license in accordance with the law, the unit that intends to establish a performance brokerage institution shall apply to the administrative department of culture and tourism for approval.Performance brokerage institution’s application can be divided into: domestic application, Hong Kong-related application, Macau-related application, Taiwan-related application and foreign-related application.This article focuses on the application of domestic and foreign-related performance brokerage institutes.Regardless of whether it is a domestic-funded performance brokerage institution or a foreign-related performance brokerage institution, the prerequisite for the performance brokerage institutions applying for business activities of commercial stage performance is that they shall have three or more full-time performance brokers and funds suitable for their business; they must apply for approval and obtain a Commercial Performance License to engage in commercial stage performance activities.
The establishment of domestic-funded and foreign-related performance brokerage institutes has different approval processes and materials.
2.1.1.2.1 Examination and Approval of Establishment of Domestic-Funded Performance Brokerage Institution
To apply for the establishment of a domestic-funded performance brokerage institution, one shall apply to the administrative department of culture and tourism of the people’s governments of the province, autonomous region, and municipality directly under the Central Government.The administrative department of culture and tourism shall make a decision within 20 days from the date of accepting the application.If it is approved, the administrative department of culture and tourism shall issue a Commercial Performance License to the applicant.If it is not approved, the administrative department of culture and tourism shall notify the applicant in writing with reason(s).
The performance brokerage institution shall, at the same time, submit the following documents to the culture administrative department:(1) an application form; (2) a business license; (3) the identity certificate of the legal representative or principal in charge; (4) the qualification certificates of performer brokers.If any other legal person or organization intends to apply for the establishment of a performance brokerage institution for business operation, it shall submit an application and qualification certificates of performer brokers.
2.1.1.2.2 Examination and Approval of Establishment of Foreign-related Performance Brokerage Institution(https://www.daowen.com)
The National Development and Reform Commission and the Ministry of Commerce issued the Special Administrative Measures (Negative List)for the Access of Foreign Investment (2019) (Order No.25 of the National Development and Reform Commission of the People’s Republic of China and the Ministry of Commerce of the People’s Republic of China) in June 30, 2019, which loosens the restriction that the performance brokerage institutions must be controlled by the Chinese side.This action means that foreign investors can set up performance brokerage institutions on their own in China from then on.The restriction for foreign investors to set up cultural and artistic performance group has not been loosened up in general, but there is new special policy which applies to Free Trade Zones: foreign investors are permitted to cooperate with Chinese parties to establish cultural and artistic performance groups together in Free Trade Zones, of which the Chinese party has to hold the controlling share, according to the Special Administrative Measures (Negative List) for the Access of Foreign Investment in Pilot Free Trade Zones (2019) (Order No.26 of the National Development and Reform Commission of the People’s Republic of China and the Ministry of Commerce of the People’s Republic of China) issued by the National Development and Reform Commission and the Ministry of Commerce at the same June 30, 2019.
If a foreign-related performance brokerage institution applies for business activities of commercial stage performances, it shall apply to the administrative department of culture and tourism of the State Council through the administrative department of culture and tourism of the people’s government of the province, autonomous region or municipality directly under the Central Government.The administrative department of culture and tourism of the people’s government of the province, autonomous region or municipality directly under the Central Government shall give an examination opinion and submit it to the administrative department of culture and tourism of the State Council within 20 days after receiving the application.The administrative department of culture and tourism of the State Council shall make a decision within 20 days of receipt of the examination opinion from the administrative department of culture and tourism of the people’s government of the province, autonomous region or municipality directly under the Central Government.If it is approved, the relevant department shall issue a Commercial Performance License.If it is not approved, the relevant department shall notify the applicant in writing with reason(s).
For a foreign-related performance brokerage institute to apply for commercial stage performance business activities, it shall submit the following documents in addition to the above-mentioned domestic performance brokerage institute: (1) a feasibility study report, a contract, and the bylaws; (2) the Approval Certificate for a Foreign-Funded Enterprise;(3) a name list of the candidates for the chairman, deputy chairman or directors of the board of directors, or the director, deputy director, and members of the joint managerial committee as determined through consultation by all parties to the performance brokerage institution in the form of an equity or contractual joint venture, and the identity certificates thereof; and (4) other documents legally required to be submitted.
2.1.2 The Cultural and Artistic Stage Performance Groups
Cultural and artistic stage performance groups may apply for engaging in commercial stage performances, but they must have full-time actors and equipment suitable for their business, and apply to the administrative department of culture and tourism of the county-level people’s government.The cultural and artistic stage performance group registered in accordance with the law applying to engage in commercial performances shall submit the following documents to the administrative department of culture and tourism: (1) an application form; (2) a business license and the type of art engaged; (3) the identity certificate of the legal representative or principal in charge; (4) Certificates of actors’ artistic performance ability; (5) a written statement of stage performance equipment suitable for the business.
2.1.3 Individual Actors
An individual, who may become an individual actor engaging in the professional commercial stage performance, shall go to the administrative department of market regulation to register and obtain a business license according to the law.The above-mentioned subject shall file the archival filing with local administrative department of culture and tourism of the county-level people’s government within 20 days from the date of obtaining the business license.As for the archival filing, individual actors may hold their personal identity certificates and certificates of artistic performance ability, applying for the archival filing to the county-level administrative department of culture and tourism in the place of their registered permanent residence or actual permanent residence.The administrative department of culture and tourism shall issue the archival filing certification.
2.1.4 Individual Brokers
In addition, there is also a category of “individual brokers” in the performance management body.However, it should be noted that individual brokers cannot hold performances and can only engage in intermediary and agency activities for commercial performances.An individual, who may become an individual performance broker engaging in intermediary and agency activities, shall go to the administrative department of market regulation to register and obtain a business license according to the law.The above-mentioned subject shall file the archival filing with local administrative department of culture and tourism of the county-level people’s government within 20 days from the date of obtaining the business license.As for the archival filing, individual performance brokers may hold their personal identity certificates and qualification certificates of performance broker, applying for the archival filing to the county-level administrative department of culture and tourism in the place of their registered permanent residence or actual permanent residence.The administrative department of culture and tourism shall issue the certification.
2.2 Operation
In addition to the administrative approval of the performance itself,the performance entity should also handle relevant administrative approvals (if any) in accordance with laws and regulations related to safety and fire protection, and take measures to ensure the safety and order of the performance.
When hosting commercial performances in a public place, the hosting entity shall go through the examination and approval formalities in accordance with the laws, administrative regulations and provisions of the state on safety and fire prevention.The performance venue shall be equipped with emergency broadcasting and lighting devices, shall set up obvious marks at the safe entries and exits and shall ensure the smoothness of the safe entries and exits.
When holding a commercial stage performance that needs to put up a temporary stage or stand, the hosting entity shall submit, in addition to the documents required by Section Ⅲ of this chapter, the following documents to the administrative department of culture and tourism:(1) the conformity certification for the performance place upon check and acceptance; (2) the security protection plan and emergency evacuation plan;and (3) the lawfully obtained safety and fire protection approval documents.
In addition, commercial stage performance operating entities that hold commercial stage performances shall perform the following obligations: (1) handling the declaration procedures (that is, the above-mentioned administrative approval); (2) arranging the performance process and specific program content; (3) arranging the performance venue and be responsible for maintaining the safety and order of the stage performance site; (4) determining the ticket price of performances and be responsible for the settlement of income and expenditure of performances;(5) paying or withholding relevant taxes according to law; (6) accepting the supervision and management of the administrative department of culture and tourism, etc.