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金融机构衍生产品交易业务管理暂行办法 Order of the China Banking Regulatory Commission

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中国银行业监督管理委员会令[2004]年第1号

颁布日期:20040204  实施日期:20040301  颁布单位:中国银行业监督管理委员会

  [2004] No. 1

  Interim Measures for the Management of the Dealings of Derivative Products of Financial Institutions have been adopted at the chairman meeting of China Banking Regulatory Commission and are hereby promulgated. The present Measures shall come into effect as of March 1, 2004.

  Liu Mingkang, Chairman

  February 4, 2004

  Interim Measures for the Management of the Dealings of Derivative Products of Financial Institutions

  Chapter I General Provisions

  Article 1 With a view to regulating the dealings of derivative products of banking institutions, effectively controlling the risk of banking institutions in the transaction of derivative products, the present Measures are formulated in accordance with Banking Supervision Law of People's Republic of China and Commercial Bank Law of People's Republic of China and other relevant laws and regulations.

  Article 2 The term of financial institutions as mentioned in the present Measures refers to the banks, trust and investment companies, finance companies, financial leasing companies, legal person of auto financing companies and branches of foreign banks established within the territory of People's Republic of China (hereinafter referred to as branches of foreign banks)。

  Article 3 The term of derivative products as mentioned in the present Measures refers to a certain type of financing contract the value of which subjects to one or more than one basic assets or index. Basic types of these contracts are futures, transaction at usance, swap transaction and futures rights. Derivative products also including structural financial tools that have one or more characteristic of futures, transaction at usance, swap transaction and futures rights.

  Article 4 The dealings of derivation products of financial institutions referred to in the present Measures can be divided into two categories as followed:

  (1) The derivative product transactions for the purpose of making profit or avoiding risk of their own capital and debt. The financial institutions are regarded as the final customer of derivative product.

  (2) Financial institutions provide the derivative product transactions to clients (including financial institutions)。 Financial institutions are regarded as the broker of the derivative product transactions and those brokers who provide quoting service and negotiable service to other brokers and clients are regarded as the market manipulators of derivative products.

  Article 5 China Banking Regulating Commission (hereinafter referred as to CBRC) shall be responsible for supervision over the derivative product transactions of financial institutions. Financial institutions shall pass the examination and approval of CBRC and accept the supervising and administration of CBRC in operating the derivative product transactions.

  Any non-financial entity shall not provide the dealing services of derivative product to the clients.

  Article 6 Financial institutions shall observe the provisions on foreign exchange and other relevant provisions in operating the derivative product transactions related with the foreign exchange, stocks and commodities and derivative product transactions on exchange.

  Chapter II Administration of Market Access

  Article 7 Financial institutions that apply for the operation of the derivative product transactions shall meet the following requirements

  (1) Having a perfect risk control system and internal controlling system of the derivative product transactions;

  (2) Having a operating system of auto-connection of the derivative product transactions and real-time risk control system;

  (3) Operating staff of the derivative product transactions shall has an experience of directly operating the derivative product transactions and risk control for more than 5 years, and shall not have any defective record;

  (4) Having at least 2 operating staff that has over 2 years experience of the derivative product transactions and related derivative product transactions and over half a year experience of special training of operating skill of the derivative product transactions, 1 executive of risk control, 1 staff for risk model research or analyses. The mentioned staff shall be sole duty person and shall not hold a concurrent post or have any defective record;

  (5) Having appropriate trading floor and equipment;

  (6) If the branches of foreign banks plan to run the derivative product transactions, the registered country shall have a legal system of supervising and regulating the derivative product transactions and the competent authority of the country shall have the capability of supervising and regulating;

  (7) Other requirements of CBRC.

  The branches of foreign banks plans to run the derivative product transactions that can not meet the requirements of Item 1 to Item 5 shall conforms with Item 6, Item 7 of the preceding Paragraph and following requirements:

  (1) Having formal authorization concerning type and quota of the derivative product transactions and other matters from its headquarter,

  (2) Except definite provisions of its headquarter, all the derivative product transactions of the branches shall be operated through the real-time system of the authorized headquarter, and the inventory adjusting, risk exposure operation and risk control shall be operated by the headquarter.

  Article 8 The Policy banks, Chinese-funded commercial banks (except the city commercial banks, rural commercial banks and rural cooperative banks), trust and investment banks, finance companies, finance leasing companies, auto-financing companies shall, if they operate transactions of derivative products, apply for certificate from CBRC by their legal representatives and be examined and approved by CBRC.

  City commercial banks, rural commercial banks and rural cooperative banks shall, if they operate transactions of derivative products, submit the application materials to the local Banking Regulatory Bureau by their legal representatives and shall be examined and approved by CBRC after the approval of local departments.

  Foreign-funded financial institutions shall, if they operate the transactions of derivative products, submit application materials signed by the authorized signer to the local Banking Regulatory Bureau and shall be examined and approved by CBRC after the approval of local departments. Foreign-funded bank institutions that plan to operate the derivative product transactions in more than two branches in the territory of China may submit the application materials to the local Banking Regulatory Bureau by their headquarters or the main reporting bank of the foreign bank and shall be examined and approved by CBRC after the approval of local departments.

  Article 9 Where financial institutions apply for the operation of the derivative product transactions, they shall submit the following documents and materials in triplicate to CBRC or its agencies,

  (1) Application report, feasibility report, operation program or the derivative product transactions acquisition plan;

  (2) Internal executive regulation of the derivative product transactions;

  (3) Accounting system of the derivative product transactions;

  (4) List and resume of the governor and main derivative product transactions staff;

  (5) Authorized administrative system of risk exposure qualification or limitation;

  (6) Security testing report of trading floor, equipment and system;

  (7) Other documents and materials required by CBRC.

  Branches of foreign banks operating the derivative product transactions that do not satisfy criteria listed in Item 1 to Item 5 of Article 7 shall submit following documents to the local Banking Regulatory Bureau at the time of application,

  (1) Documents of formal written authorization from the headquarter to the branches of operating the derivative product transactions,

  (2) Promising letter from the headquarter of insuring the real-time derivative product transactions of all the derivative product transactions of its branches through the system of the headquarters and taking charge of inventory adjusting, risk exposure operation and risk control.

  Article 10 Internal executive regulations of the financial institutions that operate the derivative product transactions shall essentially involve following contents,

  (1) Rudder, operational procedure that shall reflect the principle of separation of pre-phase, middle-phase and after-phase, emergency solution of the derivative product transactions;

  (2) Risk model index and qualification operation index;

  (3) Type of derivative product transactions and correspondent risk control system;

  (4) Risk report and internal audit system;

  (5) Executive and evaluation system of research and development of the derivative product transactions;

  (6) Rules of brokers;

  (7) Job responsibility system of derivative product transactions governors and questioning mechanism and prompting and restricting mechanism of the governor at all level and traders;

  (8) Training program for the persons-in-charge and workers;

  (9) Other contents required by CBRC.

  Article 11 CBRC shall give response within 60 days after the reception of all application materials submitted by the financial institutions according to the present Measures.

  Article 12 Legal person in the territory of China shall strictly examine the capability of risk control of its agencies in authorizing them to operate the derivative product transactions and make formal written documents of authorization concerning type of derivative product transactions and limitation. The agencies shall operate the derivative product transactions unifiedly through their headquarters' real-time system, and their headquarters shall run inventory adjusting, risk exposure operation and risk control as a whole.

  The aforesaid agencies shall report to the local Banking Regulatory Bureau within 30 days after the receipt of authorization or authorization-altering documents from headquarter with aforesaid documents.

  Chapter III Risk Management

  Article 13 Financial institutions shall, according to its own characteristic of operating target, assets scale, managing ability and risk of the derivative product transactions, make sure the capability of running the derivative product transactions and confirm the type and scale of the derivative product transactions.

  Article 14 Financial institutions shall, according to the classification of Article 4, set up the sound systems of risk control, internal control and operation corresponding to the type, scale and complexity of the operating derivative product transactions.

  Article 15 Higher executives of financial institutions shall know the risk of the derivative product transactions, comprehensive management framework involving principles, procedure, organization and power limitation of auditing, approving and evaluating the operation and risk control of the derivative product transactions and shall be capable of acquiring information on the derivative product transactions through independent risk control departments and sound examining and reporting system and giving corresponding supervision and guidance.

  Article 16 Higher executives of the financial institutions shall decide the calculating method and index of risk exposure of the derivative product transactions that is adaptive to the operation of their institutions, and shall make, regularly checkup and update the system of risk exposure limit, loss limit and emergency solution according to the comprehensive ability, owned assets, profitability, operation policy and estimation of market. Higher executive also shall make supervision and control procedure of limitations. Higher executives of the financial institutions in charge of operating the derivative product transactions and of risk control shall be divided separately.

  Article 17 Financial institutions shall make clear criteria of working certificate of traders, analyzers and other staff and arrange training for the salesman and other operating staff according to the complexity of the derivative product transactions so as to ensure they have efficient skill and competency.

  Article 18 Financial institutions shall make sound policy of evaluating the other party of the derivative product transactions, including whether the other party thoroughly understand the contract and the responsibility of perform it, whether the derivative product transactions meet the real target of the other party and the evaluation of credit risk of the other party.

  Financial institutions shall make special provisions on the qualification of the other party under the circumstance of high-risk derivative product transactions type.

  Financial institutions may reasonably rely on the formal written documents provided by the other party according to the principle of good faith in performing the present Article.

  Article 19 Financial institution shall explain the risk of the derivative product transactions to the institution or individual in operating the derivative product transactions for them and shall get the confirmation letter from them so as to confirm that they have understand and have the ability to bear the risk.

  The information exposed to the institution or individual by the banking institution shall at least involve following contents,

  (1) Content and risk summary of the contract on the derivative product transactions,

  (2) Important factors influencing potential loss of the derivative product.

  Article 20 Financial institutions shall appropriately and reasonably use all kinds of risk buffer measures like guarantee to reduce the credit risk of the other party of the derivative product transactions, evaluate the credit risk by using appropriate method and model and apply corresponding risk control measures.

  Article 21 Financial institutions shall evaluate market risk of the derivative product transactions by using appropriate evaluation method or model, handle the market risk according to the price principles, and adjust the operation scale, type and risk exposure level.

  Article 22 Financial institutions shall make sound fluidity arrangements according to the scale and type of the derivative product transactions in order to ensure the sufficient performing ability under the unusual market circumstances.

  Article 23 Financial institutions shall establish and amplify sound systems and mechanisms of operating risk control so as to strictly control the derivative product transactions risk.

  Article 24 Financial institutions shall establish and amplify sound systems and mechanisms of legal risk control so as to strictly examine the transacting qualification and legal status. Financial institutions shall, in signing the contract of the derivative product transactions consult, refer to the legal documents world widely adapted, thoroughly consider factors like feasibility of demanding and saving from damage on account of breaking a contract by using legal measures and take effective means to prevent legal risk in drafting out transactions contract, negotiating and concluding, etc.

  Article 25 Financial institutions shall submit accounting statement, statistic statement and other related reports of the derivative product transactions to CBRC according to the provisions promulgated by CBRC.

  Financial institutions shall disclose risk situation, loss situation, profit change and other unusual situation of the derivative product transactions according to the provisions on information exposing promulgated by CBRC.

  Article 26 CBRC have the privilege of inspecting materials and statements of the derivative product transactions from financial institutions at any time and of inspecting regularly whether the risk control system, internal control system and operation system of the financial institutions adapt the type of derivative product transactions they operate.

  Article 27 Financial institutions shall timely and actively report to CBRC and submit corresponding solution under the circumstance of existing big operation risk or tremendous loss in running the derivative product transactions.

  Financial institutions shall timely and actively report detailed information to CBRC under the circumstance of important change of operation, executive system or risk control of the derivative product transactions.

  Financial institutions shall simultaneously send a copy to the State Administration of Foreign Exchange in the case that the aforesaid matters related to the foreign exchange administration and external payment.

  Article 28 Financial institutions shall properly conserve all the operation documents and documents, accounting books, original evidences, telephone record and other materials of the derivative product transactions. Telephone record shall be conserved for more than half one year, and other materials shall be reserved for 3 years after the maturity of the contract for the purpose of examination. The special provisions of accounting prevail.

  Chapter IV Penalty Provisions

  Article 29 Where the traders of the derivative product transactions in the financial institutions violate these Measures or relevant provisions of the institution resulting in heavy economic losses to the institution or the clients, financial institutions thereof shall give the directly responsible higher executives and other governor and directly liable persons the penalty of demerit to expel. Those who violate the Criminal law shall be transmitted to judiciary departments to investigate and affix criminal responsibility.

  Article 30 Financial institutions that operate the derivative product transactions without permission of CBRC shall be given penalty by CBRC according to Measures on Punishing Illegal Activity in Financing.

  Non-financing institutions that violate these Measures and provide service of the derivative product transactions to the clients shall be clamped down by CBRC and the illegal profit shall be confiscated by CBRC. Those violate criminal law shall be transmitted to judiciary departments to investigate and affix criminal responsibility.

  Article 31 CBRC shall respectively give penalty to the financial institutions that do not submit relevant statements, materials or that do not expose related information according to the character of the institutions and Banking Supervision Law of People's Republic of China, Commercial Bank Law of People's Republic of China, Regulations on Administration of Foreign-funded Financial institutions of People's Republic of China and other relevant laws, regulations and financial regulations.

  CBRC shall give penalty to the financial institutions that provide fake information of the derivative product transactions or disguise important information of the derivative product transactions according to Measures on Punishing Illegal Activity in Financing.

  Article 32 CBRC can suspend or revoke the qualification of operating the derivative product transactions of the financial institutions under the circumstance of finding the institutions did not effectively execute essential risk management and internal management system of the derivative product transactions.

  Chapter V Supplementary Provisions

  Article 33 The power to interpret the present Measures shall remain with CBRC.

  Article 34 The present Measures shall enter into effect as of March 1, 2004. If any provisions governing the derivative product transactions of financial institutions issued previously are in conflict with the present Measures, the present Measures shall prevail

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