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金融机构管理规定 People's Bank of China, Administration of Financial Institutions Provisions

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(Promulgated by the Head Office of the People's Bank of China on, and effective as of, 5 August 1994.)
颁布日期:19940805  实施日期:19940805  颁布单位:中国人民银行

  PART ONE GENERAL PROVISIONS

  Article 1 These Provisions are formulated in accordance with relevant laws and regulations of the State in order to maintain the stability of the financial order, regulate the administration of financial institutions, safeguard the lawful rights and interests of the public and promote the development of the socialist market economy.

  Article 2 The People's Bank of China and its branches shall be the authorities in charge of financial institutions. They shall independently exercise their duties of the examination and approval of the establishment, termination and changes in respect of all kinds of financial institutions according to law and be responsible for the supervision and control of financial institutions. No local government, work unit or department may engage in its own examination and approval or interfere with such examination and approval.

  No financial institution may provide services such as account opening, credit, settlement and cash for any financial institution that has been established or any entity that engages in financial business without the approval of the People's Bank of China.

  Article 3 For the purposes of these Provisions, the term “financial institutions” shall refer to the following institutions that are established in the People's Republic of China pursuant to statutory procedures and that engage in financial business:

  1. policy banks, commercial banks and their branches, cooperative banks, urban or rural credit cooperatives, joint entities of urban or rural credit cooperatives, and outlets of the postal savings network;

  2. insurance companies and their branches, insurance brokerages and agencies;

  3. securities companies and their branches, securities trading centres, investment fund management companies and securities registrars;

  4. trust and investment companies, financial companies and lease-financing companies and their branches, financing companies, financing centres, financial futures companies, credit guarantee companies, pawn shops and credit card companies; and

  5. other institutions engaged in financial business that are recognized by the People's Bank of China.

  Article 4 The term “fnancial business” shall refer to depositing, lending, settlement, insurance, trust, lease-financing, bill discounting, financing security, sale and purchase of foreign exchange, financial futures, acting as an agency for the issue and trading of negotiable securities and other financial business recognized by the People's Bank of China.

  Article 5 The name of a financial institution shall be preceded by the special name of a financial institution as set forth in Article 3 hereof. The name of a non-financial institution may not be preceded by any such special name or any similar name.

  Article 6 The People's Bank of China shall implement a system for the licensing of financial institutions. Financial institutions with the status of a legal person shall be issued with a “Permit of a Financial Institution With the Status of a Legal Person” and financial institutions without the status of a legal person shall be issued with a “Business Permit of a Financial Institution”。 No entity may engage in the financial business without having obtained such a permit.

  PART TWO PRINCIPLES OF, AND CONDITIONS FOR, THE ESTABLISHMENT OF A FINANCIAL INSTITUTION

  Article 7 Financial institutions shall be established on the basis of the following principles:

  1. meeting the needs of the development of national economy;

  2. complying with the policies and direction of development of the financial industry;

  3. complying with the principles of engagement in and administration of banking, trust, insurance and securities as separate industries;

  4. complying with the principles of rational distribution of, and fair competition among, financial institutions; and

  5. complying with the principles of economic accounting.

  Article 8 To apply for approval to establish a financial institution, the following conditions shall be met:

  1. it shall possess at least the minimum amount of renminbi monetary capital or operating funds, and such capital or funds conform to the regulations of the People's Bank of China; where the institution is to engage in foreign exchange business, it shall additionally possess foreign currency capital or operating funds that conform to the regulations; the specific limits shall be determined by the People's Bank of China;

  2. its legal representative, chairman and vice chairman of the board, bank president, deputy bank president, general manager, deputy general manager, director and deputy director (hereafter, “primary responsible persons” shall possess the qualifications for their positions as determined by the People's Bank of China, and at least 60 percent of its employees have previous work experience in the financial business or are graduates of universities, colleges or specialized schools in finance;

  3. it shall have a business site that meets the conditions determined by the People's Bank of China, and be equipped with complete anti-theft, alarm, communication and fire fighting facilities, etc.; and

  4. other conditions that are required by the People's Bank of China to be met.

  PART THREE LIMITS OF AUTHORITY AND PROCEDURES FOR THE EXAMINATION AND APPROVAL OF A FINANCIAL INSTITUTION

  Article 9 National financial institutions whose names are not preceded by the word “China” or “Chinese” shall be examined and approved by the Head Office of the People's Bank of China.

  Article 10 The establishment of any of the following financial institutions shall be examined and approved by the local People's Bank of China branch of the province, autonomous region, centrally-governed municipality or municipality with independent development plans, and shall be subsequently submitted to the Head Office of the People's Bank of China for approval:

  1. all types of non-national banks, finance companies and joint entities of urban credit cooperatives that have the status of a legal person;

  2. bank branches;

  3. branches of insurance companies and other finance companies;

  4. financial institutions to be established on a trial basis that are not mentioned in Article 3 hereof; and

  5. provincial and prefectural branches of regional financial institutions.

  Article 11 The establishment of any of the following financial institutions in the administrative area of a province, autonomous region, centrally-governed municipality or municipality with independent development plans shall be examined and approved by the local People's Bank of China branch of such province, autonomous region or municipality; however, prior to approval of the preparation of establishment, such establishment shall be reported to the Head Office of the People's Bank of China for the record, and the Head Office of the People's Bank of China shall be deemed to have granted approval where it does not raise objections within 30 days of receiving the documents submitted for the record:

  1. subbranches and offices to be established by a bank branch; and

  2. subbranches to be established by the branches of an insurance company and offices to be established by other finance companies.

  Article 12 The establishment of an urban credit cooperative shall be examined and approved, within the quota imposed by the Head Office of the People's Bank of China, by the local People's Bank of China branch of the province, autonomous region, centrally-governed municipality or municipality with independent development plans, and a copy of the establishment plans shall be sent to the Head Office for the record.

  Article 13 The establishment of a financial institution other than those referred to in Articles 9, 10, 11 and 12 hereof shall be examined and approved by the local People's Bank of China branch of the province, autonomous region, centrally-governed municipality or municipality with independent development plans, or by a People's Bank of China at a lower level authorized thereby.

  Article 14 In its approval of documents for the establishment of a financial institution, the People's Bank of China shall specify which authority is to be responsible for the day-to-day supervision and control of the institution.

  Article 15 Financial institutions shall be established in two phases: preparations for establishment and commencement of business.

  Article 16 To apply for approval for preparing the establishment of a financial institution, the following materials shall be submitted in triplicate to the People's Bank of China:

  1. an application for approval of preparations for and establishment;

  2. a feasibility study on the preparations for establishment;

  3. a proposal on the preparations for establishment;

  4. the names and resumes of the personnel for the preparations for establishment; and

  5. other materials that the People's Bank of China requires to be submitted.

  Article 17 The People's Bank of China shall respond to applications for approval of preparing the establishment of a financial institution within three months. Applicants that do not obtain approval within such period may not submit the same application within six months from the expiration of such period.

  Article 18 Preparations for the establishment of a financial institution may be made only after the application for preparations for the establishment has been approved. The time limit for preparations for establishment shall be six months. The original approval documents shall automatically become void where the standards for commencement of business are not met within the time limit for preparations for establishment. Under special circumstances, the time limit may be appropriately extended by up to one year, subject to the approval of the People's Bank of China. No financial business activities may be engaged in during the period of preparations for establishment.

  Article 19 After preparations for the establishment of a financial institution have been completed, an application for approval of commencement of business shall be submitted to the People's Bank of China, together with three copies of the following materials:

  1. an application for approval of the commencement of business;

  2. an investment verification certificate issued by an accounting firm or relevant work unit recognized by the People's Bank of China, a photocopy of the original voucher for entry into the account of the capital or operating funds, background information on the investors, a balance sheet and an accountant's report;

  3. the names and resumes of the legal representative and primary responsible persons to be appointed;

  4. documents on the ownership of or the right to use the business site;

  5. the Articles of association, which shall cover the name and business address of the institution, the type, purposes of business, amount of registered capital or operating funds, scope of business, form of organization, operation, management, termination and liquidation of the institution; and

  6. other materials that the People's Bank of China requires to be submitted.

  Article 20 Within 30 days of receiving documents concerning an application for approval of the commencement of business, the People's Bank of China shall notify the applicant in writing of whether or not its application has been approved. Where the application is not approved, the reason therefor shall be stated in the written notification.

  Article 21 A financial institution that has obtained approval for commencement of business shall carry out registration procedures with the administration for industry and commerce on the strength of the approval documents and obtain a Permit of a Financial Institution With the Status of a Legal Person or a Business Permit of a Financial Institution on the strength of the business license issued by the administration for industry and commerce and the approval documents issued by the People's Bank of China; financial institutions that are to engage in foreign exchange business shall additionally apply for and obtain a Permit for Engaging in Foreign Exchange Business in accordance with regulations. Business may be commenced only after the above-mentioned procedures have been completed.

  Article 22 Financial institutions must commence business within 90 days of obtaining a permit. Where business is not commenced within such time limit, the original approval documents shall automatically become void and the People's Bank of China shall recover the permit, except in the case that business is commenced after expiration of the time limit as a result of force majeure, subject to approval of the People's Bank of China.

  Article 23 The establishment of financial institutions upon approval shall be exclusively announced to the public by the People's Bank of China in a designated newspaper. The costs of announcements shall be borne by the financial institutions that are the subject of such announcements.

  PART FOUR ADMINISTRATION OF PERMITS

  Article 24 The Permit of a Financial Institution With the Status of a Legal Person or the Business Permit of a Financial Institution shall be the legal supporting document for a financial institution's engagement in financial business. Such permit may be issued, confiscated or revoked by the People's Bank of China according to law, but may not be issued, confiscated or revoked by any other work unit or by any individual.

  Article 25 Permits of a Financial Institution With the Status of a Legal Person and Business Permits of a Financial Institution shall be exclusively designed and printed by the Head Office of the People's Bank of China.

  Article 26 Permits of a Financial Institution With the Status of a Legal Person and Business Permits of a Financial Institution shall consist of an original and a duplicate and shall specify the name, number, type and form of enterprise, amount of registered capital or operating funds, legal representative, primary responsible persons and scope of business of the financial institution, the date of issuance, the term of validity, etc.

  Article 27 Financial institutions shall place the originals of their Permits of a Financial Institution With the Status of a Legal Person and Business Permits of a Financial Institution in a conspicuous place at their business sites and shall properly keep and take proper care of the duplicates thereof for future inspection. Forgery, alteration, leasing, lending, assignment or sale of permits is prohibited. Permits may not be photocopied without the approval of the People's Bank of China.

  Article 28 The People's Bank of China shall charge financial institutions a certain fee for the issuance or replacement of permits in accordance with regulations.

  Article 29 A Permit of a Financial Institution With the Status of a Legal Person or a Business Permit of a Financial Institution shall be renewed once every three years. Where a permit is lost or seriously damaged, it shall be declared void in a national newspaper within 15 days of discovery, and an application for a new permit shall be made to the People's Bank of China on the strength of an inspection report and the announcement published in a newspaper.

  PART FIVE ADMINISTRATION OF CAPITAL OR OPERATING FUNDS

  Article 30 The monetary capital of a financial institution must be entered into the account and paid up in accordance with the regulations of the People's Bank of China.

  Article 31 The qualifications and number of shareholders as well as shareholding structure of financial institutions shall comply with the regulations of the People's Bank of China.

  Article 32 The source of the capital or operating funds of a financial institution shall be the self-owned funds whose investors have the right to control them. Financial institutions may not use borrowed funds or creditor's rights as capital.

  Article 33 No branch established by a financial institution may have the status of a legal person. A branch shall possess the prescribed amount of operating funds. The operating funds of a branch shall be allocated by its head office from its capital or common reserves. The total amount of cumulative allocation may not exceed 60 per cent of the capital of the head office.

  Article 34 The capital or operating funds of financial institutions must be genuine and sufficient.

  PART SIX INSPECTION OF THE QUALIFICATIONS OF LEGAL REPRESENTATIVES AND PRIMARY RESPONSIBLE PERSONS FOR THEIR POSITIONS

  Article 35 The People's Bank of China shall implement a system of inspection of the qualifications of the legal representatives and primary responsible persons of financial institutions for their positions.

  Article 36 The appointment or removal of or changes in respect of the legal representatives and primary responsible persons of a financial institution shall be reported in advance to the People's Bank of China for inspection of the qualifications for their positions in accordance with the limits of authority to examine and approve financial institutions.

  The board of directors or executive department of a financial institution may not carry out appointment or removal procedures for anyone whose qualifications for his position have not been inspected by the People's Bank of China or who has failed an inspection.

  Article 37 The methods of inspection by the People's Bank of China of the qualifications of the legal representatives and primary responsible persons of a financial institution for their positions shall include the following:

  1. inspection of their résumés and relevant materials;

  2. interview; and

  3. acquisition of an understanding of the relevant circumstances.

  Article 38 The qualifications of the legal representatives and primary responsible persons of a financial institution for their positions shall be determined by the Head Office of the People's Bank of China.

  PART SEVEN CHANGES IN RESPECT OF A FINANCIAL INSTITUTION

  Article 39 Any of the following changes in respect of a financial institution shall be reported in advance to the People's Bank of China for approval and amendment procedures shall be carried out:

  1. an increase or reduction in the amount of registered capital or operating funds, adjustment of the shareholding structure and form of equity, and assignment of equity;

  2. restructuring into a limited liability company or a company limited by shares;

  3. adjustment of the scope of business;

  4. replacement of the legal representative or primary responsible persons;

  5. a change of the name;

  6. division or merger of the organization;

  7. amendment of the articles of association;

  8. a change in the business address; or

  9. any other change that must be submitted for approval as determined by the People's Bank of China.

  Article 40 For the procedures and limits of authority for examination and inspection of changes in respect of a financial institution, reference shall be made to the relevant provisions of Part Three hereof. The original examination and approval authorities may authorize the People's Bank of China at a lower level to examine and approve changes in respect of business address, legal representative or primary responsible persons; upon such approval, amendment procedures shall be carried out with the original examination and approval authorities.

  Article 41 Response to applications for approval of changes in respect of a financial institution shall be made within 60 days. Applicants that do not obtain approval within such period may not submit the same application within 90 days from the expiration of such period.

  PART EIGHT TERMINATION OF A FINANCIAL INSTITUTION

  Article 42 A financial institution may be ordered by the People's Bank of China to close and to hand over its permit for cancellation under any of the following circumstances:

  1. where it has seriously violated State laws, regulations or policies;

  2. where it has not commenced business within 90 days of obtaining its Permit of a Financial Institution With the Status of a Legal Person or Business Permit of a Financial Institution;

  3. where it no longer meets the conditions required under Article 8 hereof;

  4. where it has ceased business for six consecutive months or an aggregate period of one year;

  5. where it has been acquired by or has merged with another financial institution;

  6. where the amount of losses suffered by it during the three consecutive years accounts for 10 per cent of its capital or where the amount of its losses accounts for 15 per cent or more of its capital;

  7. where it has failed in an annual inspection and rectification and alteration are unsuccessful or where it has failed in two consecutive annual inspections;

  8. where it provided false materials or did something improper in the course of its application for approval of establishment; or

  9. other circumstances under which it is required to close as determined by the People's Bank of China.

  Article 43 Applications by financial institutions for approval of termination of business, bankruptcy or dissolution shall be submitted to and approved by the People's Bank of China in accordance with the procedures under which its application of establishment was made.

  Article 44 When a financial institution is terminated, acquired, merged, bankrupt, dissolved or ordered to close, it shall be liquidated according to law under the supervision of the People's Bank of China and relevant authorities. Following liquidation, the institution shall return its Permit of a Financial Institution With the Status of a Legal Person or Business Permit of a Financial Institution, cancel its registration with the administration for industry and commerce on the strength of a notice from the People's Bank of China and publish an announcement in a newspaper designated by the People's Bank of China.

  PART NINE ANNUAL AND ROUTINE INSPECTION

  Article 45 The People's Bank of China and its branches shall have the right to carry out a routine inspection of financial institutions at any time and an annual inspection of the industry.

  Annual and routine inspection of the head offices of national financial institutions shall be organized by the Head Office of the People's Bank of China or local branches of the People's Bank of China upon authorization by the Head Office of the People's Bank of China. The local People's Bank of China branches of the provinces, autonomous regions, centrally-governed municipalities and municipalities with independent development plans shall be responsible for the annual and routine inspection of financial institutions within their jurisdictions.

  Article 46 Personnel of the People's Bank of China shall present Financial Inspection Cards that were exclusively issued by the Head Office of the People's Bank of China when they exercise their functions and powers of inspection of financial institutions according to law.

  Article 47 Annual and routine inspection of financial institutions shall include the following:

  1. whether or not all procedures for the examination and approval of establishment or changes have been completed;

  2. whether or not all the contents of submitted materials are in accordance with the actual circumstances;

  3. whether or not their capital or operating funds are genuine and sufficient;

  4. whether or not they engage in business beyond their scope of business;

  5. whether or not all procedures for changes in respect of their legal representatives or primary responsible persons have been completed;

  6. whether or not they engage in business in violation of laws or regulations;

  7. whether or not their business operation is sound;

  8. whether or not their business sites and security facilities meet the requirements; and

  9. other matters that the People's Bank of China considers requiring inspection.

  Article 48 Annual inspection of financial institutions shall be carried out during the first quarter of each year. Financial institutions shall submit the following documents and statements to the People's Bank of China within 15 days of receiving an annual inspection notice:

  1. the annual inspection report;

  2. the balance sheet and profit and loss statement;

  3. the report on the annual final accounts;

  4. the duplicates of their Permits of a Financial Institution With the Status of a Legal Person or Business Permits of a Financial Institution; and

  5. other information that the People's Bank of China requires to be submitted.

  Article 49 After a financial institution has passed an annual inspection, the People's Bank of China shall affix a seal of successful inspection to the duplicate of its Permit of a Financial Institution With the Status of a Legal Person or Business Permit of a Financial Institution, and make a public announcement.

  Relevant information on, and conclusions of, annual and routine inspection of financial institutions shall be entered by the People's Bank of China into the files of such institutions.

  PART TEN PENALTIES

  Article 50 The People's Bank of China shall have the right to investigate and deal with violators of these Provisions according to law.

  Article 51 Where any entity violates these Provisions in any of the following ways, the People's Bank of China shall have the right to freeze its account, confiscate its illegal income and additionally impose a fine of between Rmb 1 million and Rmb 10 million; serious violations that constitute a criminal offence shall be turned over to the judicial authorities for prosecution of the relevant persons according to law:

  1. the establishment of a financial institution without the approval of the People's Bank of China;

  2. engagement in the financial business without a Permit of a Financial Institution With the Status of a Legal Person or Business Permit of a Financial Institution; or

  3. forgery of a Permit of a Financial Institution With the Status of a Legal Person or Business Permit of a Financial Institution.

  Article 52 Where a financial institution practices fraud or deceit in the course of its establishment, its Permit of a Financial Institution With the Status of a Legal Person or Business Permit of a Financial Institution shall be revoked and its illegal income confiscated and, in addition, it shall be subjected to a fine of between Rmb 500,000 and Rmb 5 million, and the persons directly responsible shall be subjected to a fine of between Rmb 10,000 and Rmb 100,000.

  Article 53 Where a financial institution engages on its own authority in the financial business during the period of preparing establishment, its illegal income shall be confiscated and it shall be subjected to a fine of 0.05 per cent of the amount involved in the violation. Where the circumstances are serious, it shall be disqualified from preparations for the establishment.

  Article 54 Where any entity refuses or obstructs an annual or routine inspection of a financial institution by the People's Bank of China, it shall be subjected to a fine of between Rmb 100,000 and Rmb 1 million and additionally punished by issuance of a warning, circulation of a notice of criticism or suspension of business for rectification; in addition, the liability of its legal representative or primary responsible persons shall be investigated.

  Article 55 Where information, documents or statements submitted by a financial institution to the People's Bank of China are fraudulent, the institution shall be subjected to a fine of between Rmb 50,000 and Rmb 500,000 and a notice of criticism shall be circulated. Where the circumstances are serious, it shall be ordered to replace its legal representative or primary responsible persons.

  Article 56 Where a financial institution loses or alters its Permit of a Financial Institution With the Status of a Legal Person or Business Permit of a Financial Institution, it shall be subjected to a fine of between Rmb 10,000 and Rmb 100,000. Where the circumstances are serious, it shall additionally be punished by circulation of a notice of criticism or being ordered to suspend business for rectification.

  Article 57 Where a financial institution fails in an annual inspection, the People's Bank of China shall punish it by:

  1. setting a time limit by which corrections shall be made;

  2. postponing the registration of the annual inspection and requiring it to carry out rectification;

  3. proposing replacement of its legal representative or primary responsible persons; and/or

  4. ordering it to suspend business for rectification and make a public announcement.

  The above-mentioned penalties may be imposed simultaneously.

  Article 58 Violations of other provisions hereof by any entity may be punished as follows by the People's Bank of China, depending on the circumstances:

  1. issuance of a warning;

  2. circulation of a notice of criticism;

  3. imposition of a time limit by which corrections shall be made;

  4. confiscation of illegal income;

  5. imposition of a fine of between Rmb 500,000 and Rmb 5 million;

  6. ordering of the suspension of part of the business;

  7. suspension of business for rectification;

  8. ordering of the replacement of the legal representative or primary responsible persons;

  9. appointment of personnel to take over it;

  10. freezing of the account of the financial institution; and/or

  11. ordering of the closure of the financial institution and cancellation of its Permit of a Financial Institution With the Status of a Legal Person or Business Permit of a Financial Institution.

  The above-mentioned penalties may be imposed simultaneously.

  Article 59 Where a party is dissatisfied with a penalty decision made by the People's Bank of China, it may, within 15 days of receiving a written penalty notice, apply to the People's Bank of China at a higher level for review according to law. Where a party is dissatisfied with a decision made upon a review, it may institute proceedings at the local People's Court within 15 days of receiving such written decision made upon the review. Penalty decisions shall become effective upon expiration of the time limit where review is not applied for and proceedings are not instituted by that time. Where a penalty decision is not complied with, the authorities that made the decision shall enforce it according to law or apply to a People's Court for enforcement.

  Compliance with the original decision shall not be suspended while such decision is being reviewed or tried by a People's Court unless laws or regulations provide otherwise.

  PART ELEVEN SUPPLEMENTARY PROVISIONS

  Article 60 The Head Office of the People's Bank of China shall be responsible for the interpretation of these Provisions and any amendments hereto as well.

  Article 61 Implementing rules for these Provisions may be formulated by People's Bank of China branches in each province, autonomous region, centrally-governed municipality and municipality with independent development plans on the basis of these Provisions and in the light of the actual local circumstances. Such implementing rules shall be submitted to the Head Office of the People's Bank of China for the record.

  Article 62 In the case of any conflict between these Provisions and normative documents promulgated by the People's Bank of China prior to the implementation of these Provisions, these Provisions shall prevail.

  Article 63 Relevant regulations for the administration of foreign financial institutions shall be formulated separately.

  Article 64 These Provisions shall be effective as of date of promulgation.

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