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关于规范上市公司与关联方资金往来及上市公司对外担保若干问题的通知 Several Issues Concerning the Regulation of Transactions of Funds Between Listed Companies and Their Affiliates and the Provision of Security to External Parties by Listed Companies Circular

2006-05-13 01:04   我要纠错 | 打印 | 收藏 | | |

证监发[2003]56号

(Issued by the China Securities Regulatory Commission and the State-owned Assets Supervision and Administration Commission of the State Council on 28 August 2003 and effective as of the date of issue.)

颁布日期:20030828  实施日期:20030828  颁布单位:中国证券监督管理委员会、 国务院国有资产监督管理委员会

  To all listed companies and their controlling shareholders:

  In order to further standardize the transactions of funds between listed companies and their controlling shareholders and other affiliates, effectively control the risks involved in the provision of security to external parties by listed companies and protect the lawful rights and interests of investors, we hereby issue the following circular on the relevant issues in accordance with the Company Law, the Securities Law and the Supervision and Administration of State-owned Assets of Enterprises Tentative Regulations:

  1. Further standardizing transactions of funds between listed companies and their controlling shareholders and other affiliates

  Transactions of funds between a listed company and its controlling shareholder and other affiliate(s) shall comply with the following provisions:

  (1) In a business transaction of funds that occurs between a controlling shareholder or other affiliate(s) and the listed company, the appropriation of funds of the listed company shall be strictly limited. The controlling shareholder and other affiliate(s) may not require the listed company to pay for their periodic expenses such as wages, welfare benefits, insurance and advertisements, which they will repay later, nor may they bear each other's costs and other expenditures;

  (2) The listed company may not directly or indirectly provide funds to a controlling shareholder and other affiliate(s) in the following manners:

  1) lend the funds of the company to the controlling shareholder and other affiliate(s) with or without compensation;

  2) provide entrusted loans to its affiliate(s) through a bank or non-bank financial institution;

  3) appoint the controlling shareholder and other affiliate(s) to carry out investment activities on its behalf;

  4) issue commercial acceptance bills of exchange without a real transaction background for its controlling shareholder and other affiliate(s);

  5) repay debts for its controlling shareholder and other affiliate(s); or

  6) other manners recognized by the China Securities Regulatory Commission.

  (3) When auditing the annual financial and accounting report of the listed company, the certified public accountant shall issue a special explanation on the status of the appropriation of funds of the listed company by the controlling shareholder and other affiliate(s) according to the above provisions, and the company shall make a public announcement of the special explanation.

  2. Strictly controlling the risks of listed companies in providing security to external parties

  All directors of a listed company shall prudently handle and strictly control the debt risks arising from the provision of security to external parties, and shall assume joint and several liability for losses arising from illegal or inappropriate provision of security according to law. The controlling shareholder and other affiliate(s) may not force the listed company to provide security to another party.

  Listed companies shall comply with the following provisions in providing security to external parties:

  (1) Listed companies may not provide security to a controlling shareholder or other affiliate in which the company holds less than 50% of the shares, or non-legal person work unit or individual.

  (2) The total amount of the security provided by a listed company to external parties may not exceed 50% of the net assets in the consolidated accounting statement of the most recent fiscal year.

  (3) The articles of association of listed companies shall provide for the examination and approval procedures for providing security to external parties and the standards of creditworthiness of the parties for whom security is provided. To provide security to external parties, the consent of at least two-thirds of all directors by signatures or the approval of the shareholders' general meeting shall be obtained. Debt security may not be provided directly or indirectly to secured party whose assets-liability ratio exceeds 70%.

  (4) Where a listed company provides security to an external party, it must require the other party to provide counter-security, and the party providing counter-security shall have the actual capacity to do so.

  (5) Listed companies must conscientiously perform information disclosure obligations in relation to the details of security provided to external parties in strict compliance with the relevant provisions of the Listing Rules and the articles of association of the company, and must truthfully provide all the items of security provided to external parties by the company to a certified public accountant according to provisions.

  (6) The independent directors of a listed company shall provide in the annual report a special explanation on the status of the accumulative and current security provided to external parties by, and the status of implementation of the afore-mentioned provisions of, the listed company, and shall issue an independent opinion thereon.

  3. Enhance the strength in screening illegal appropriation of funds and security items that have already occurred

  (1) Within one month of the date of issue of this Circular, listed companies shall, in accordance with the provisions hereof, carry out a self-examination on the status of transactions of funds, appropriation of funds and security to external parties between the listed company and its controlling shareholder and other affiliate(s) that have already occurred.

  The self-examination report shall be submitted to the office of the China Securities Regulatory Commission at the place where the company is located within the stipulated time limit, and shall be disclosed as a major matter in the annual report for the most recent period after it has been examined, verified or inspected by the local office.

  (2) The State-owned assets supervision and administration authority shall guide and coordinate State-controlled listed companies in solving the problems of illegal appropriation of funds and provision of security to affiliates, require the relevant controlling shareholders to respect and safeguard the business autonomy and lawful rights and interests of listed companies, promote lawful operation and management of listed companies, improve legal person governance structure and boost the market competitiveness of listed companies.

  (3) The board of directors of listed companies shall formulate feasible measures to solve the historical problems of appropriation of funds and provision of security to external parties and ensure that the contingent debts arising from appropriation of funds and provision of security to external parties in violation of the provisions hereof will be reduced by at least 30% per fiscal year.

  (4) Funds of listed companies appropriated by an affiliate shall in principle be repaid in cash. Provided that the existing laws and regulations are complied with, financially innovative ways may be explored to repay the debts, but they must be submitted to the relevant authorities for approval according to statutory procedures.

  (5) The repayment of funds of a listed company appropriated by an affiliate with non-cash assets shall be strictly controlled. If an affiliate intends to use non-cash assets to repay the appropriated funds of a listed company, it shall comply with the following provisions:

  1)The assets to be used as repayment must belong to the same business system of the listed company, be conducive to the enhancement of independence and core competitiveness of the listed company, reduce affiliated transactions, and may not be assets that are not yet put into use or that have no objectively specified net book value.

  2) The listed company shall hire an intermediary institution with relevant securities and futures business qualifications to carry out an appraisal of the assets that satisfy the conditions for debt repayment by assets. The appraised asset value or audited net book value shall be the basis for pricing the debt repayment by assets. However, the final price shall not prejudice the interests of the listed company and shall be discounted with full consideration of the current value of the appropriated funds.

  The audit report and appraisal report shall be announced to the public.

  3) Independent directors shall issue an independent opinion on the proposal for debt repayment by assets of the affiliate of the listed company, or hire an intermediary institution with relevant securities and futures business qualifications to issue an independent financial advisory report.

  4) The proposal for debt repayment by assets of the affiliate of the listed company shall be submitted to the China Securities Regulatory Commission for approval. If the China Securities Regulatory Commission considers that the proposal for debt repayment by assets does not comply with the provisions hereof or it clearly prejudices the interests of the company and small and medium investors, it may halt the implementation of such proposal.

  5) The proposal for debt repayment by assets of the affiliate of the listed company shall be deliberated and approved by the shareholders' general meeting, and the shareholders of the affiliate shall withdraw from voting.

  4. Pursuing liability for acts of illegal appropriation of funds and provision of security to external parties in accordance with the law

  (1) The China Securities Regulatory Commission and the State-owned Assets Supervision and Administration Commission of the State Council (SASAC) shall strengthen regulatory cooperation, jointly establish a regulatory cooperation mechanism for regulating the acts of State-owned controlling shareholders, enhance the strength in investigating and handling acts of illegal appropriation of funds and provision of security to external parties, and pursue the legal liability of the relevant parties in accordance with the law.

  (2) If a listed company and its senior management personnel such as directors, supervisors, managers violate the provisions hereof, the China Securities Regulatory Commission will order rectification and impose penalties in accordance with the law, and shall not accept any application of the listed company for refinancing within 12 months of the discovery of the listed company's violation of the provisions hereof.

  (3) If a controlling shareholder of a listed company violates the provisions hereof or fails to repay the illegally appropriated funds of the listed company in a timely manner, the China Securities Regulatory Commission shall not accept its application for public offering of securities or other item for examination and approval, and shall circulate a notice to SASAC, China Banking Regulatory Commission and the relevant local governments regarding its bad credit record.

  If a State-owned controlling shareholder violates the provisions hereof, the State-owned assets supervision and administration authority shall impose disciplinary penalties up to dismissal on the directly responsible persons in charge and directly responsible persons. If damage is caused to the interests of the listed company or other shareholders, it shall bear the corresponding liability for compensation. If the directly responsible persons in charge and directly responsible persons of a non-State-owned controlling shareholder violate the provisions hereof, causing losses to the listed company or serious damage to the interests of other shareholders, they shall bear the liability for compensation, and shall be punished by the relevant authority in accordance with the law. If a criminal offence is constituted, criminal liability shall be pursued in accordance with the law.

  5. Miscellaneous

  For the purposes of this Circular, the term “affiliate” shall follow the provisions of the Ministry of Finance, Enterprise Accounting Guidelines - Disclosure of Relationship and Transactions Between Affiliated Parties. The provisions hereof shall apply to the provision of security to external parties by, and the transaction of funds with affiliates of, subsidiaries that fall within the scope of the consolidated accounting statements of a listed company.

  6. This Circular shall be implemented as of the date of issue.

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