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中华人民共和国外资金融机构管理条例实施细则(一)

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中华人民共和国外资金融机构管理条例实施细则 PRC Administration of Foreign-funded Financial Institutions Regulations Implementing Rules

中国银行业监督管理委员会令2004年第4号

(Promulgated by the China Banking Regulatory Commission on 26 July 2004 and effective as of 1 September 2004.)

颁布日期:20040726  实施日期:20040901  颁布单位:中国银行业监督管理委员会

  PART ONE GENERAL PROVISIONS

  Article 1 These Rules are formulated in accordance with the PRC, Banking Regulation Law, the PRC, Commercial Banking Law and the PRC, Administration of Foreign-funded Financial Institutions Regulations (the Regulations)。

  Article 2 “Foreign capital” referred to in Items (1) and (4) of Article 2 of the Regulations shall mean the capital provided by institutions registered outside the People's Republic of China.

  “Foreign banks” referred to in Item (2) shall mean commercial banks registered outside the People's Republic of China and approved or recognized by the financial regulatory authorities of the countries or regions in which they are located.

  “Foreign financial institutions” referred to in Items (3) and (5) shall mean financial institutions registered outside the People's Republic of China and approved or recognized by the financial regulatory authorities of the countries or regions in which they are located.

  Article 3 “Foreign-funded legal person institutions” referred herein shall mean wholly foreign-owned banks, joint venture banks, wholly foreign-owned finance companies and joint venture finance companies under the Regulations.

  Article 4 The China Banking Regulatory Commission (CBRC) shall be the authority in charge of the administration and supervision of foreign-funded financial institutions. The agencies of the CBRC shall carry out daily supervision and administration of foreign-funded financial institutions within their jurisdiction.

  PART TWO ESTABLISHMENT AND REGISTRATION

  Article 5 “Prudential conditions” referred to in Articles 6, 7 and 8 of the Regulations shall include at least the following:

  1. a reasonable legal person governance structure;

  2. good performance in continuous operation;

  3. formulation of financial reports according to prudential accounting principle, and an unqualified opinion has been issued by an accounting firm on the financial reports for the three years prior to the application;

  4. no record of major violation or breach of laws or regulations and no record of poor credit;

  5. good reputation in the industry and social image;

  6. for establishment of foreign bank branches, the country or region in which the applicant is located shall be politically and economically stable, and the financial regulatory authority has established good communication mechanisms with the CBRC; and

  7. compliance with other relevant requirements of laws and regulations on investors in the finance industry.

  Article 6 The sole shareholder or the largest shareholder of wholly foreign-owned banks established in accordance with Article 6 of the Regulations must be a commercial bank.

  The sole shareholder or the largest shareholder of wholly foreign-owned finance companies established in accordance with Article 6 of the Regulations must be a commercial bank or finance company.

  The capital adequacy ratio of commercial banks referred to in this article shall not be lower than 8%.

  Items (2) and (3) of Article 6 of the Regulations shall apply to the sole shareholder or the largest shareholder.

  Article 7 The sole foreign shareholder or the largest foreign shareholder of joint venture banks established in accordance with Article 8 of the Regulations must be a commercial bank.

  The sole foreign shareholder or the largest foreign shareholder of joint venture finance companies established in accordance with Article 8 of the Regulations must be a commercial bank or a finance company.

  The capital adequacy ratio of commercial banks referred to in this article shall not be lower than 8%.

  Items (2) and (3) of Article 8 of the Regulations shall apply to the sole foreign shareholder or the largest foreign shareholder.

  Article 8 A “representative office” already established in China by an applicant or by a foreign party to a joint venture referred to in Articles 6, 7 and 8 of the Regulations shall mean a representative office regulated by the CBRC. References to “the end of the year prior to an establishment application” shall mean the end of the fiscal year prior to the date of such application.

  Article 9 “Prudential conditions” referred to in Article 20 of the Regulations and Articles 16, 17 and 40 hereof shall include at least the following:

  1. a reasonable legal person governance structure;

  2. a stable risk management system;

  3. a sound internal control system;

  4. an effective management information system;

  5. the management shall be of good professional quality and have good management ability;

  6. the applicant shall have good performance in continuous operation and good asset quality;

  7. no record of major violation or breach of laws or regulations; and

  8. effective anti money-laundering measures.

  Article 10 The “feasibility study report” referred to in Articles 9, 10 and 11 of the Regulations and Article 18 hereof shall include at least the following: the basic details of the applicant, an analysis of the market prospects of the institution to be established; plans for future business development of the institution to be established; the organizational and administrative structure of the institution to be established and a forecast of the amount of assets and liabilities and profits for the first three years of its operation.

  The “names of foreign bank branches to be established” referred to in Item (1) of Article 10 of the Regulations shall include the name in Chinese and in foreign language. The Chinese name shall indicate the nationality and form of liability of the foreign bank.

  Article 11 A “business licence (copy)” referred to in the Regulations and these Rules shall mean a photocopy of the business licence or any other approval document for the operation of financial business. With the exception of business licences (copies) issued by the administration authorities for industry and commerce, the business licence (copy), powers of attorney, a guarantee issued by the foreign bank undertaking liability for tax and debt obligations of its branch office established in China, etc. shall be notarized by an institution recognized by the country or region in which the applicant is located or certified by the Chinese embassy or consulate in that country or region.

  Article 12 “Relevant information in respect of the Chinese party to the joint venture” referred to in Item (6) of Article 11 of the Regulations shall mean the business licence (copy) of the Chinese party to the joint venture and its annual reports for the last three years.

  Article 13 The “annual reports” referred to in the Regulations and these Rules shall have been audited and audit reports issued by an accounting firm recognized in the country or region in which the applicant is located shall be attached to such annual reports. Any annual report prepared in a language other than Chinese or English shall include a Chinese or English translation.

  Article 14 “Other materials” referred to in Articles 9, 10 and 11 of the Regulations shall include at least the following:

  1. applicants that apply to establish foreign-funded financial institutions for the first time shall submit information on the financial system and the relevant provisions of laws and regulations on financial regulation of the country or region in which the applicant is located;

  2. the applicant's articles of association;

  3. a chart of the organizational structure, a list of major shareholders, overseas branch offices and associated companies of the applicant and the group of companies to which it belongs; and

  4. the applicant's anti money-laundering system or provisions.

  Article 15 All application materials required to be submitted under these Rules shall, except for annual reports, include the Chinese translation if they are prepared in a foreign language.

  Article 16 Where a foreign bank seeks to establish additional branches in China, apart from satisfaction of the conditions set out in Items (2), (3), (4) and (5) of Article 7 of the Regulations, its existing branches in China shall satisfy the prudential conditions stipulated by the CBRC.

  Article 17 A wholly foreign-owned bank or joint venture bank that applies for the establishment of a branch shall satisfy the following conditions:

  1. it has been in operation in China for three years or more, and it has been profitable for two consecutive fiscal years prior to the application;

  2. it has a capital adequacy ratio of not less than 8%;

  3. with the establishment of each additional branch, the applicant shall allocate not less than the equivalent of Rmb 100 million in freely convertible currencies as operating capital for the branch to be established. The total amount of operating capital allocated by the applicant to its branches in China, including any allocation made to the branch to be established, shall not exceed 60% of its registered capital; and

  4. other prudential conditions stipulated by the CBRC.

  Article 18 Where a wholly foreign-owned bank or joint venture bank applies to establish a branch, it shall submit the following materials (in triplicate) to the agency of the CBRC at the place where it is located. Upon the issue of opinion on preliminary examination by the local agency of the CBRC, the materials shall be directly submitted to the CBRC for examination and approval, and at the same time be submitted through progressive levels to the agency of the CBRC at the upper level:

  1. a letter of application signed by the applicant's chairman of the board or president (chief executive officer or general manager), the contents of which shall include: the name of the branch to be established, the amount of operating capital to be allocated and the types of business applied to be engaged in;

  2. a board resolution approving the application for the establishment of a branch;

  3. a feasibility study report;

  4. the business licence (copy);

  5. annual reports for the last three years;

  6. the applicant's articles of association; and

  7. other materials required for submission by the CBRC.

  Article 19 The letter of application to be addressed to the Chairman of the CBRC for the establishment of a foreign-funded legal person institution shall be jointly signed by the chairman of the board or president (chief executive officer or general manager) of each investor. The letter of application to be addressed to the Chairman of the CBRC for the establishment of a foreign bank branch shall be signed by the chairman of the board or the president (chief executive officer or general manager) of the applicant.

  Article 20 An applicant seeking to establish a foreign-funded financial institution shall submit the application documents specified in Articles 9, 10 and 11 of the Regulations (in duplicate) to the CBRC, and at the same time submit a set of application materials to the agency of the CBRC at the place where the institution is to be established.

  Article 21 Within six months from the date on which all the application materials in relation to the establishment of a foreign-funded financial institution are received, the CBRC shall decide whether or not to accept the application and notify the applicant in writing.

  An applicant that receives an acceptance notification shall, within 15 days of receipt of the notification, obtain an official application form from the agency of the CBRC at the place where the institution is to be established and commence preparatory work. The applicant shall set up a preparatory committee during the preparatory period, which shall be responsible for the preparatory work and submit the list of responsible personnel of the preparatory committee to the local agency of the CBRC. Upon the completion of preparatory work, the preparatory committee shall be dissolved automatically. The preparatory period shall be six months.

  An applicant that fails to obtain the official application form within the specified period shall not be allowed to apply for the establishment of any business institution in the same city within one year from the date of receipt of the notification.

  An applicant that receives a refusal notification may submit an application for establishment of institution again upon satisfaction of the conditions for the establishment of a foreign-funded financial institution.

  Article 22 The “principal persons in charge” referred to in Article 14 of the Regulations shall mean the chairman of the board or president (chief executive officer or general manager) of the foreign-funded legal person institution or the head (general manager) of the foreign bank branch.

  Article 23 An applicant shall, during the preparatory period, complete the following work:

  1. the establishment of an internal control system, including control policies and operational procedures for an internal organizational structure, authorization and grant of credit, credit fund management, fund trading, accounting and auditing, and computer system, and submission of the internal control system and operational procedures to the local agency of the CBRC;

  2. provision of a suitable number of personnel necessary for its business development that have received relevant training regarding policies and rules, and business knowledge, in order to meet the requirements on efficient monitoring and controlling of major business risks, on graded examination, approval and review of business, on division of labour among key positions and on check and balance, etc.;

  3. the printing of important business vouchers and receipts for external use, and submission of the sample to the local agency of the CBRC;

  4. provision of security and precautionary measures recognized by the relevant departments, and submission of the relevant proofs to the local agency of the CBRC; and

  5. the conduct of an audit on the internal control system, accounting system and computer system by an accounting firm recognized by the local agency of the CBRC prior to commencement of operation, and submission of the audit report to the local agency of the CBRC.

  Article 24 Applicants that seek to apply for an extension of the preparatory period shall apply to the agency of the CBRC at the place where they are located one month prior to the expiry of the preparatory period. The letter of application shall be signed by the responsible person of the preparatory committee of the institution to be established.

  The agency of the CBRC shall not accept any application for extension of the preparatory period if the applicant fails to apply for the extension within the specified period.

  The local agency of the CBRC shall decide whether or not to approve the application for extension within 15 days of receipt of the application materials for extension of the preparatory period. In the event that an application is rejected, it shall notify the applicant in writing of the reasons for rejection and report through progressive levels to the CBRC.

  Article 25 Upon completion of the preparatory work, the applicant shall submit a letter of application signed by the responsible person of the preparatory committee of the institution to be established, a completed application form together with the documents specified in Article 14 of the Regulations to the agency of the CBRC at the location where the institution is to be established. Upon the issue of opinion on preliminary examination by the agency of the CBRC at the location where the institution is to be established, the application form and documents shall be directly submitted to the CBRC for examination and approval, and at the same time be submitted through progressive levels to the agency of the CBRC at the upper level.

  Article 26 The CBRC shall, within two months of receipt of a complete set of application form and related materials for the establishment of a foreign-funded financial institution, decide whether or not to approve the application. The applicant shall, within 15 days of receipt of the notification from the CBRC, obtain the approval document for establishment of the foreign-funded financial institution from the CBRC. An applicant that receives the refusal to grant approval document may submit an application for establishment of institution again upon satisfaction of the conditions for establishment of a foreign-funded financial institution.

  Article 27 An applicant that has been approved to establish a foreign-funded financial institution shall, upon receipt of the approval document for establishment of the foreign-funded financial institution from the CBRC, submit its application for inspection of the commencement of operation to the agency of the CBRC at the place where it is located. The letter of application shall be signed by the chairman of the board or president (chief executive officer or general manager) of the foreign-funded legal person institution or the head or general manager of the foreign bank branch. Upon the passing of inspection by the local agency of the CBRC, the applicant shall obtain the permit to conduct financial business from the CBRC on the strength of the opinion on the passing of inspection. If the foreign-funded financial institution fails the inspection, it may, within 10 days of receipt of the notification of inspection, apply to the inspection authorities for re-inspection.

  Article 28 Prior to the commencement of operation, a foreign-funded financial institution shall issue public notices in national newspapers designated by the CBRC, as well as local newspapers designated by the agency of the CBRC at the place where it is located. Before commencing operation, the foreign-funded financial institution shall report the date of commencement of operations in writing to the agency of the CBRC at the place where it is located.

  Article 29 Within three months from the date on which the CBRC approves the establishment of institution, the foreign-funded financial institution shall commence operation, except in special circumstances in which the agency of the CBRC at the place where it is located approves the postponement of the commencement of operation.

  A foreign-funded financial institution that wishes to apply for postponement of commencement of operation shall submit an application to the agency of the CBRC at the place where it is located within two months from the date on which the approval for establishment is granted. The letter of application shall be signed by the chairman of the board or president (chief executive officer or general manager) of the foreign-funded legal person institution or the head (general manager) of the foreign bank branch.

  The local agency of the CBRC shall decide whether or not to approve the postponement application within 15 days of receipt of the application materials. If it decides not to approve the application, it shall notify the foreign-funded financial institution in writing of the reasons for disapproval and report through progressive levels to the CBRC.

  Agencies of the CBRC shall not accept any application for postponement if a foreign-funded financial institution fails to apply for postponement of the commencement of operation within the specified period.

  The maximum period for postponement of the commencement of operation shall be three months. In the event that any foreign-funded financial institution fails to commence operation at the expiry of the specified period, the original approval for establishment shall automatically become void. The foreign-funded financial institution shall surrender the permit to conduct financial business to the CBRC. The applicant may not submit an application for the establishment of a business institution in the same city again within one year from the date on which the original approval for the establishment becomes void.

  Article 30 Where a foreign bank branch is restructured into a foreign-funded legal person institution, or vice versa, it shall abide by the principles of lawfulness, prudence and continuous operation.

  Where a foreign bank branch is restructured into a foreign-funded legal person institution, it shall submit an application to the agency of the CBRC at the place where it is located with reference to the conditions and procedure for the establishment of foreign-funded legal person institutions. Where a foreign-funded legal person institution is restructured into a foreign bank branch, it shall submit an application to the agency of the CBRC at the place where it is located with reference to the conditions and procedure for the establishment of foreign bank branches. The applications shall be directly submitted from the local agency of the CBRC at the place where the institution is located to the CBRC for examination and approval, and at the same time be submitted through progressive levels to the agency of the CBRC at the upper level. The application materials shall include a proposal for disposing claims and debts in the restructuring process.

  PART THREE SCOPE OF BUSINESS

  Article 31 In respect of foreign-funded financial institutions that operate within the business scopes stipulated in Article 17 or 18 of the Regulations, if it conducts foreign exchange business with institutions outside China, foreign-invested enterprises, foreign representative offices resident in China, mainland representative offices of Hong Kong, Macao and Taiwan companies, and foreigners and Hong Kong, Macao and Taiwan compatriots or if it conducts partial foreign exchange business with non-foreign-invested enterprises, the following conditions must be satisfied respectively:

  1. the operating capital of a foreign bank branch shall be no less than the equivalent of Rmb 100 million in freely convertible currencies;

  2. the registered capital of a wholly foreign-owned bank or joint venture bank shall be no less than the equivalent of Rmb 300 million in freely convertible currencies;

  3. the operating capital of the branch of a wholly foreign-owned bank or joint venture bank in China shall be no less than the equivalent of Rmb 100 million in freely convertible currencies; and

  4. the registered capital of a wholly foreign-owned finance company or joint venture finance company shall be no less than the equivalent of Rmb 200 million in freely convertible currencies.

  Article 32 In respect of foreign-funded financial institutions that operate within the business scopes stipulated in Article 17 or 18 of the Regulations, if it conducts foreign exchange business with all types of customers, the following conditions must be satisfied respectively:

  1. the operating capital of a foreign bank branch shall be no less than the equivalent of Rmb 200 million in freely convertible currencies;

  2. the registered capital of a wholly foreign-owned bank or joint venture bank shall be no less than the equivalent of Rmb 400 million in freely convertible currencies;

  3. the operating capital of the branch of a wholly foreign-owned bank or joint venture bank in China shall be no less than the equivalent of Rmb 100 million in freely convertible currencies; and

  4. the registered capital of a wholly foreign-owned finance company or joint venture finance company shall be no less than the equivalent of Rmb 300 million in freely convertible currencies.

  Article 33 In respect of foreign-funded financial institutions that satisfy the conditions under Article 20 of the Regulations and that have been approved to operate within the business scopes stipulated in Article 17 or 18 of the Regulations, if it conducts foreign exchange business with institutions outside China or if it conducts foreign exchange business and Renminbi business with foreign-invested enterprises, foreign representative offices resident in China, mainland representative offices of Hong Kong, Macao and Taiwan companies, and foreigners and Hong Kong, Macao and Taiwan compatriots or if it conducts partial foreign exchange business and partial Renminbi business with non-foreign-invested enterprises, the following conditions must be satisfied respectively:

  1. the operating capital of a foreign bank branch shall be no less than Rmb 200 million, of which the Renminbi operating capital shall be no less than Rmb 100 million and the foreign exchange operating capital shall be no less than the equivalent of Rmb 100 million in freely convertible currencies;

  2. the registered capital of a wholly foreign-owned bank or joint venture bank shall be no less than Rmb 400 million, of which the Renminbi capital shall be no less than Rmb 100 million and the foreign exchange capital shall be no less than the equivalent of Rmb 300 million in freely convertible currencies;

  3. the operating capital of the branch of a wholly foreign-owned bank or joint venture bank in China shall be no less than Rmb 200 million, of which the Renminbi operating capital shall be no less than Rmb 100 million and the foreign exchange operating capital shall be no less than the equivalent of Rmb 100 million in freely convertible currencies; and

  4. the registered capital of wholly foreign-owned finance company or joint venture finance company shall be no less than Rmb 300 million, of which the Renminbi capital shall be no less than Rmb 100 million and the foreign exchange capital shall be no less than the equivalent of Rmb 200 million in freely convertible currencies.

  Article 34 In respect of foreign-funded financial institutions that satisfy the conditions under Article 20 of the Regulations and that have been approved to operate within the business scopes stipulated in Article 17 or 18 of the Regulations, if it conducts foreign exchange business with all types of customers or if it conducts Renminbi business with foreign-invested enterprises, foreign representative offices resident in China, mainland representative offices of Hong Kong, Macao and Taiwan companies, and foreigners and Hong Kong, Macao and Taiwan compatriots or if it conducts partial Renminbi business with non-foreign-invested enterprises, the following conditions must be satisfied respectively:

  1. the operating capital of a foreign bank branch shall be no less than Rmb 300 million, of which its Renminbi operating capital shall be no less than Rmb 100 million and its foreign exchange operating capital shall be no less than the equivalent of Rmb 200 million in freely convertible currencies;

  2. the registered capital of a wholly foreign-owned bank or joint venture bank shall be no less than Rmb 500 million, of which its Renminbi capital shall be no less than Rmb 100 million and its foreign exchange capital shall be no less than the equivalent of Rmb 400 million in freely convertible currencies;

  3. the operating capital of the branch of a wholly foreign-owned bank or joint venture bank in China shall be no less than Rmb 200 million, of which the Renminbi operating capital shall be no less than Rmb 100 million and the foreign exchange operating capital shall be no less than the equivalent of Rmb 100 million in freely convertible currencies; and

  4. the registered capital of a wholly foreign-owned finance company or joint venture finance company shall be no less than Rmb 400 million, of which the Renminbi capital shall be no less than Rmb 100 million and the foreign exchange capital shall be no less than the equivalent of Rmb 300 million in freely convertible currencies.

  Article 35 In respect of foreign-funded financial institutions that satisfy the conditions under Article 20 of the Regulations and that have been approved to operate within the business scopes stipulated in Article 17 or 18 of the Regulations, if it conducts foreign exchange business with all types of customers, and if it conducts Renminbi business with foreign-invested enterprises, foreign representative offices resident in China, mainland representative offices of Hong Kong, Macao and Taiwan companies, foreigners and Hong Kong, Macao and Taiwan compatriots, and non-foreign-invested enterprises, the following conditions must be satisfied respectively:

  1. the operating capital of a foreign bank branch shall be no less than Rmb 300 million, of which the Renminbi operating capital shall be no less than Rmb 100 million and the foreign exchange operating capital shall be no less than the equivalent of Rmb 200 million in freely convertible currencies;

  2. the registered capital of a wholly foreign-owned bank or joint venture bank shall be no less than Rmb 600 million, of which its Renminbi capital shall be no less than Rmb 200 million and its foreign exchange capital shall be no less than the equivalent of Rmb 400 million in freely convertible currencies; and

  3. the operating capital of the branch of a wholly foreign-owned bank or joint venture bank in China shall be no less than Rmb 200 million, of which the Renminbi operating capital shall be no less than Rmb 100 million and the foreign exchange operating capital shall be no less than the equivalent of Rmb 100 million in freely convertible currencies; and

  4. the registered capital of a wholly foreign-owned finance company or joint venture finance company shall be no less than Rmb 500 million, of which the Renminbi capital shall be no less than Rmb 200 million and the foreign exchange capital shall be no less than the equivalent of Rmb 300 million in freely convertible currencies.

  Article 36 In respect of foreign-funded financial institutions that satisfy the conditions under Article 20 of the Regulations and that have been approved to operate within the business scopes stipulated in Article 17 or 18 of the Regulations, if it conducts foreign exchange business and Renminbi business with all types of customers, the following conditions must be satisfied respectively:

  1. the operating capital of a foreign bank branch shall not be less than Rmb 500 million, of which its Renminbi operating capital shall be no less than Rmb 300 million and its foreign exchange operating capital shall be no less than the equivalent of Rmb 200 million in freely convertible currencies;

  2. the registered capital of a wholly foreign-owned bank or joint venture bank shall be no less than Rmb 1 billion, of which its Renminbi capital shall be no less than Rmb 600 million and its foreign exchange capital shall be no less than the equivalent of Rmb 400 million in freely convertible currencies;

  3. the operating capital of the branch of a wholly foreign-owned bank or joint venture bank in China shall be no less than Rmb 300 million, of which the Renminbi operating capital shall be no less than Rmb 200 million and the foreign operating capital shall be no less than the equivalent of Rmb 100 million in freely convertible currencies; and

  4. the registered capital of a wholly foreign-owned finance company or joint venture finance company shall be no less than Rmb 700 million, of which its Renminbi capital shall be no less than Rmb 400 million and its foreign exchange capital shall be no less than the equivalent of Rmb 300 million in freely convertible currencies.

  Article 37 The term “buying and selling government bonds, financial bonds and negotiable securities denominated in foreign currency other than shares” referred to in Item (4) of Article 17 and Item (4) of Article 18 of the Regulations shall include but not limited to the following foreign exchange investment businesses: the Chinese and foreign government bonds issued outside China, bonds of Chinese financial institutions and bonds of Chinese non-financial institutions.

  Article 38 The “creditworthiness investigations and consultancy services” referred to in Item (12) of Article 17 and Item (8) of Article 18 of the Regulations shall mean the creditworthiness investigations and consultancy services relating to the banking business.

  Article 39 “Partial foreign exchange business with non-foreign-invested enterprises” referred to in Articles 31 and 33 hereof shall mean the re-deposits of foreign exchange loans, export settlement, import settlement of loans and remittances from overseas conducted with non-foreign-invested enterprises.

  “Partial Renminbi business of non-foreign-invested enterprises” referred to in Articles 33 and 34 hereof shall mean the ancillary Renminbi loans and re-deposits thereof, and security to non-foreign-invested enterprises that receive foreign exchange loans from the foreign-funded financial institution.

  Article 40 Article 20 of the Regulations shall mean that the conditions to be satisfied by foreign-funded financial institutions that apply to conduct Renminbi business for the first time, of which Items (1) and (2) shall mean that a foreign-funded financial institution that seeks to apply to conduct Renminbi business shall have been in operation for three years or more, and that such an institution has been profitable for two consecutive years prior to the application.

  A foreign-funded financial institution already approved to conduct Renminbi business that applies to enlarge the scope of its target customers of Renminbi business shall fulfil the following conditions:

  1. has been profitable for two consecutive years prior to the application; and

  2. other prudential conditions stipulated by the CBRC.

  The phrase “has been in operation for three years” referred to in this Article shall mean three years from the day on which the establishment of the foreign-funded financial institution is approved to the date of application. The phrase “has been profitable for two consecutive years prior to the application” shall mean that the audited financial report of the foreign-funded financial institution for the two fiscal years prior to the date of application shows a profit.

  Article 41 A foreign-funded financial institution applying to conduct Renminbi business for the first time or enlarge the scope of its target customers of Renminbi business shall submit the following materials (in triplicate) to the agency of the CBRC at the place where it is located. Upon the issue of opinion on preliminary examination by the agency of the CBRC at the place where it is located, the materials shall be directly submitted to the CBRC for examination and approval, and at the same time be submitted through progressive levels to the agency of the CBRC at the upper level:

  1. a letter of application addressed to the Chairman of the CBRC signed by the applicant's director or president (chief executive officer or general manager), the contents of which shall include: specific details on conducting Renminbi business or the enlargement of the scope of target customers, and proposed increase in registered capital or allocation of operating capital;

  2. a feasibility study report;

  3. the proposed amendments to the articles of association (applicable to foreign-funded legal person institutions only);

  4. the operational procedures and internal control system of the business to be conducted;

  5. audited balance sheet and profit and loss statement for the two fiscal years prior to the application; and

  6. other materials required for submission by the CBRC.

  Article 42 A foreign-funded financial institution shall complete the following preparatory work within four months of receipt of the preparation notification issued by the CBRC for the approval for conducting Renminbi business or enlargement of the scope of its target customers:

  1. remittance of the increased capital or operating capital into China, and submission of the capital verification certificate to the local agency of the CBRC following verification by an accounting firm recognized by the local agency of the CBRC;

  2. provision of a suitable number of personnel necessary for business development;

  3. printing of important business vouchers and receipts for external use, and submission of the sample to the local agency of the CBRC;

  4. provision of security and precautionary measures recognized by the relevant departments, and submission of the relevant proof to the local agency of the CBRC; and

  5. establishment of internal control system and operational procedures for conducting Renminbi business, and submission of the same to the local agency of the CBRC.

  If the foreign-funded financial institution fails to complete the preparatory work within the four months' period, the original approval issued by the CBRC shall be automatically void.

  Article 43 Upon completion of the preparatory work, the foreign-funded financial institution shall submit an inspection application to the agency of the CBRC at the place where it is located. Such inspection application shall be signed by the director or president (chief executive officer or general manager) of a foreign-funded legal person institution or by the head or general manager of a foreign bank branch. Upon passing the inspection, the foreign-funded financial institution shall obtain an approval document from the CBRC on the strength of the opinion on the passing of inspection and capital verification certificate. If the foreign-funded financial institution fails the inspection, it may, within 10 days of the receipt of the notification of inspection, apply to the inspection authorities for re-inspection.

  Article 44 Prior to conducting the Renminbi business set out in the approval document, the foreign-funded financial institution shall issue a public notice in national newspapers designated by the CBRC, as well as local newspapers designated by the agency of the CBRC at the place where it is located.

  Article 45 The geographic area where foreign-funded financial institutions can conduct Renminbi business shall be the cities in which foreign-funded financial institutions have been permitted to conduct Renminbi business.

  Article 46 “New types of business” referred to in Article 21 of the Regulations shall mean types of financial business that are not provided by any bank or finance company in China, or those that are being provided by banks or finance companies in China but that bear relatively high operational risks.

  A foreign-funded financial institution applying to conduct a new type of business shall submit the following materials (in triplicate) to the agency of the CBRC at the place where it is located. Upon the issue of opinion on preliminary examination by the local agency of the CBRC, the application shall be directly submitted to the CBRC for examination and approval, and at the same time be submitted through progressive levels to the agency of the CBRC at the upper level:

  1. a letter of application signed by the authorized signatory of the head office of the foreign-funded financial institution;

  2. a detailed introduction of the business to be conducted and the preparation necessary for conducting such business, including any operational procedures, risks/profits analysis, control measures, specialist personnel and equipment of computer system; and

  3. other materials required for submission by the CBRC.

  The CBRC shall decide whether or not to approve the application within 60 days of receipt of a complete set of application materials from the foreign-funded financial institution.

  Article 47 If a foreign-funded financial institution wishes to apply to conduct new types of business at two or more branches in China, the head office of the foreign-funded legal person institution or the chief reporting branch of the foreign bank may consolidate the application materials and submit them to the agency of the CBRC at the place where the chief reporting branch is located. Upon the issue of opinion on preliminary examination by the local agency of the CBRC, the application materials shall be submitted directly to the CBRC for examination and approval, and at the same time be submitted through progressive levels to the agency of the CBRC at the upper level. A foreign-funded financial institution and its branches shall, upon obtaining approval, report in writing to the local agency of the CBRC within five days after commencement of business.

  Article 48 The application procedures stipulated in Articles 46 and 47 hereof shall apply to foreign-funded financial institutions that seek to apply to conduct “other business” stipulated under Item (13) of Article 17 and Item (10) of Article 18 of the Regulations.

  Article 49 A foreign-funded financial institution and its branch(es) that operate a product or service within its approved business scope and type shall, within five days of commencement of business, report in writing to the agency of the CBRC at the place where they are located.

  Article 50 Foreign-funded financial institutions may conduct the sale and reconciliation of foreign exchange in accordance with relevant provisions.

  Article 51 Wholly foreign-owned banks, joint venture banks and foreign bank branches that have been approved to conduct Renminbi business may conduct Renminbi interbank borrowing business in accordance with relevant provisions.

  PART FOUR ADMINISTRATION OF QUALIFICATIONS

  Article 52 The senior management personnel of a foreign-funded financial institution shall satisfy the following basic conditions:

  1. they must be familiar and comply with China's laws and regulations on financial regulation;

  2. they shall possess professional knowledge, work experience, organization and management abilities that correspond to the position; and

  3. they shall have no record of improper conduct.

  Article 53 The following persons shall not hold any senior management position in a foreign-funded financial institution:

  1. persons having any criminal record;

  2. persons having been seriously penalized due to violation of the law;

  3. persons having taken major responsibility for or having been the person directly responsible for the bankruptcy, serious violation of regulations or revocation of the permit to conduct financial business or the business licence of any financial institution, enterprise or company in which he was employed, in each case within the last five years; and

  4. persons having caused heavy losses to the financial institution or any other enterprise or company in which he was employed as a result of his material error in the past five years.

  Article 54 The CBRC shall apply two systems: the verification and approval system and the record filing system in examining senior management personnel of foreign-funded financial institutions.

  Article 55 A verification and approval system shall apply to the examination of senior management personnel of foreign-funded financial institutions that assume the following positions. Such personnel shall satisfy the following conditions:

  1. in respect of persons that assume the position of the chairman of the board or president (general manager) of a foreign-funded legal person institution, such persons shall have 10 years or more of experience in the financial industry or 15 years or more of related work experience in the economic sector (of which five years or more of such experience shall be in the financial industry), and shall have been in the position of a business department manager or the equivalent of a higher position for three years or more;

  2. in respect of persons that assume the position of vice chairman of the board or vice president (deputy general manager) of a foreign-funded legal person institution or the head (general manager) of a foreign bank branch, such persons shall have five years or more of experience in the financial industry or 10 years or more of related work experience in the economic sector (of which three years or more of such experience shall be in the financial industry), and shall have been in the position of a business department manager or the equivalent of a higher position for two years or more;

  3. in respect of persons that assume the position of deputy head (deputy general manager) of a foreign bank branch or the head of a sub-branch, such person shall have four years or more of experience in the financial industry or six years or more of related work experience in the economic sector (of which two years or more of such experience shall be in the financial industry); and

  4. possess a bachelor's degree or above; if such person does not hold a bachelor's degree, such person shall correspondingly be required to possess an additional six years or more of experience in the financial industry or eight years or more of related work experience in the economic sector (of which four years or more shall be in the financial industry)。

  Article 56 The CBRC shall be responsible for the verification and approval of or revocation of qualifications in respect of the following positions:

  1. the chairman of the board or president (general manager) of a foreign-funded legal person institution; and

  2. the head (general manager) of a foreign bank branch.

  The CBRC shall authorize the banking regulatory authority at the place where the foreign-funded financial institution is located to verify and approve the qualification of the head (general manager) of a foreign bank branch to be replaced.

  Banking regulatory authorities shall be responsible for the verification and approval of or revocation of qualification in their jurisdictions in respect of the following positions:

  1. the vice chairman of the board or vice president (deputy general manager) of a foreign-funded legal person institution; and

  2. the deputy head (deputy general manager) of a foreign bank branch and the head of a sub-branch.

  Article 57 If the qualifications of senior management personnel are subject to the verification and approval system, the applicant shall submit the following materials (in triplicate) to the agency of the CBRC at the place where it is located:

  1. a letter of application addressed to the CBRC signed by the authorized signatory of the applicant. If the application needs to be verified by the CBRC, the letter of application shall be addressed to the Chairman of the CBRC. If the application needs to be verified by an agency of the CBRC, it shall be addressed to the responsible person of the relevant agency of the CBRC;

  2. a power of attorney in respect of the authorization by the foreign bank to the signatory to sign on its behalf for authorization of head (general manager) of a foreign bank branch, the deputy head (deputy general manager) and the head of a sub-branch, and the power of attorney of the signatory;

  3. résumé of the candidate;

  4. copies of the identification certificate and academic certificate of the candidate;

  5. resolution of the board of directors or shareholders' general meetings if meetings of the board of directors or shareholders' general meetings are required to be convened in the articles of association of the foreign-funded legal person institution;

  6. statement signed by the candidate stating that he has no record of improper conduct; and

  7. other materials required by the CBRC.

  Article 58 After an applicant has submitted the application materials for the position of the president (general manager) of a foreign-funded financial institution, the CBRC may arrange an interview with the proposed president (general manager) of the foreign-funded financial institution prior to employment. Agencies of the CBRC may arrange an interview with other senior management personnel prior to employment.

  Article 59 The term of office of any senior management personnel to which the verification and approval system applies shall be two years or more. During the term, the president (general manager) and the vice-president (deputy general manager) of a foreign-funded financial institution shall not concurrently hold any position of daily operation and management that deals with daily operation at any other business institution. Senior management personnel of foreign-funded financial institutions shall not concurrently hold any position in a representative office in China.

  Article 60 “Senior management personnel” referred to in Item (7) of Article 33 of the Regulations shall mean those senior management personnel to which the verification and approval system ap

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