关键词: VIE架构; 负面清单; 国家安全; 《外商投资法》; 外资准入

Abstract: The ultimate reason for Chinese enterprises to set up the VIE structure is to achieve the purpose of overseas financing. For a long time， Chinese legislators have been hesitant about how to supervise the VIE structure which is in fact in violation of the domestic foreign investment restrictions. This has caused the legislation of clearing concepts under the VIE structure to fail repeatedly; therefore， the structure has been recognized as “ostensibly legitimate” in China. However， after China entered the era of negative lists， the domestic financing channels have been greatly expanded， the threat of foreign investment control has been increasing， and the foreign investment restrictions have been unprecedentedly eased. Given all these factors， it seems that instead of keeping silent on VIE structure supervision， the legislators should clarify the core concept of “control” of VIE structure supervision. When clarifying this concept， the legislators should avoid rigidly equating “control agreement” with “foreign investment” and should consider introducing such flexible concepts as “substantive control”， so as to reserve the discretionary power on the VIE structure issues. At the same time， in order to reduce the motivation of using the VIE structure， improving negative lists and domestic financing procedures will also be an important method for the legislators to solve the regulatory problems of the VIE structure.

Key words: VIE structure; negative list; national security; Foreign Investment Law; foreign investment access