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外债管理暂行办法 Administration of Foreign Debts Tentative Procedures

2006-05-13 09:38   我要纠错 | 打印 | 收藏 | | |

国家发展计划委员会、财政部、国家外汇管理局令第28号

(Promulgated jointly by the State Development Planning Commission, the Ministry of Finance and the State Administration of Foreign Exchange on 8 January 2003 and effective as of 1 March 2003.)

颁布日期:20030108  实施日期:20030301  颁布单位:国家发展计划委员会、 财政部、 国家外汇管理局

  PART ONE GENERAL PROVISIONS

  Article 1 These Procedures have been formulated in order to strengthen the administration of foreign debts, regulate the acts of borrowing foreign debts, enhance the benefit of utilization of foreign debt funds, and guarding against the risk from foreign debts.

  Article 2 For the purposes of these Procedures, the term “foreign debts” shall refer to the debts denominated in foreign currencies for which domestic institutions are liable to non-residents.

  Article 3 For the purposes of these Procedures, the term “domestic institutions” shall refer to permanent organizations established within China according to law, including but not limited to government authorities, domestic financial institutions, enterprises, institutions and social organizations.

  Article 4 For the purposes of these Procedures, the term “non-residents” shall refer to institutions and natural persons outside China, and their non-permanent organizations established within China according to law.

  Article 5 Based on the types of debts, foreign debts shall be classified into loans from foreign governments, loans from international financial institutions and international commercial loans.

  1. Loans from foreign governments refer to the official credits borrowed by the Chinese government from foreign governments;

  2. Loans from international financial organizations refer to non-commercial credits borrowed by the Chinese government from the World Bank, Asian Development Bank, Agricultural Development Foundation of the United Nations and other international and regional financial institutions;

  3. International commercial loans refer to the commercial credits borrowed by domestic institutions from non-residents, including:

  (1) loans from banks and other financial institutions outside China;

  (2) loans from enterprises, other institutions and natural persons outside China;

  (3) medium and long-term bonds (including convertible bonds) and short-term bonds (including commercial paper, large-denomination transferable certificates of deposit, etc.) issued outside China;

  (4) buyer's credit, deferred payments and other forms of trade financing;

  (5) international lease financing;

  (6) foreign currency deposits of non-residents;

  (7) debts repaid with spot exchange in compensation trade; and

  (8) other kinds of international commercial loans.

  Article 6 Based on repayment liability, foreign debts shall be classified into sovereign foreign debts and non-sovereign foreign debts.

  1. Sovereign foreign debts refer to the foreign debts borrowed by institutions authorized by the State Council on behalf of the State, where repayment is guaranteed by State credit.

  2. Non-sovereign foreign debts refer to foreign debts other than sovereign foreign debts.

  Article 7 For the purposes of these Procedures, the term “provision of security to foreign entities” shall refer to security provided by domestic institutions to non-residents in the form of guarantee, mortgage or pledge in accordance with the PRC, Security Law.

  Potential repayment obligations to foreign entities arising from provision of security to foreign entities shall be contingent foreign debts.

  Article 8 The State shall implement unified administration on various types of foreign debts and contingent foreign debts. Borrowing of foreign debts, provision of security to foreign entities, and the utilization and repayment of foreign debt funds shall comply with the provisions of the relevant laws and regulations of the State and these Procedures.

  Article 9 The State Development Planning Commission, the Ministry of Finance and the State Administration of Foreign Exchange shall be the administrative departments of foreign debt.

  PART TWO BORROWING OF FOREIGN DEBTS AND PROVISION OF SECURITY TO FOREIGN ENTITIES

  Article 10 The State Development Planning Commission shall, in conjunction with relevant departments, formulate the State planning on borrowing of foreign debts and reasonably determine the total amount of all foreign debts and target of structural regulation, according to the needs of the national economy and social development, the balance of international payment position and capability of bearing for foreign debts.

  Article 11 The State shall implement categorized administration on borrowing of foreign debts based on the type of foreign debt, repayment liability and the nature of the debtor.

  Article 12 Loans from international financial organizations and foreign governments shall be taken out by the State from outside uniformly.

  The State Development Planning Commission shall, in conjunction with the Ministry of Finance and other relevant departments, formulate the plan on proposed projects for loans from the World Bank, Asian Development Bank, Agricultural Development Foundation of the United Nations and foreign governments. The Ministry of Finance shall, in accordance with the plan, organize external negotiations and discussions, sign loan agreements and on-lend the loans to domestic debtors directly or through relevant financial institutions. Among them, the plan on proposed projects for loans from the World Bank, Asian Development Bank, Agricultural Development Foundation of the United Nations and foreign government of key countries shall be approved by the State Council.

  Article 13 The issuance of bonds abroad by the Ministry of Finance on behalf of the State shall be reported to the State Council by the Ministry of Finance for examination and approval, and shall be incorporated in the State planning on borrowing of foreign debts. The issuance of medium- and long-term bonds abroad by other domestic institutions shall be reported to the State Council for examination and approval upon examination and verification by the State Development Planning Commission in conjunction with the State Administration of Foreign Exchange. The issuance of short-term bonds abroad shall be examined and approved by the State Administration of Foreign Exchange, of which issuance on a rolling basis shall be examined and approved by the State Administration of Foreign Exchange in conjunction with the State Development Planning Commission.

  Article 14 The State shall implement administration of balance of the taking out of medium- and long-term international commercial loans by State-owned commercial banks. The balance shall be reported to the State Council for examination and approval upon examination and verification by the State Development Planning Commission in conjunction with the relevant departments.

  Article 15 The taking out of medium- and long-term international commercial loans by institutions such as domestic Chinese-invested enterprises shall be approved by the State Development Planning Commission.

  Article 16 The State shall implement administration of balance on the taking out of short-term international commercial loans by domestic Chinese-invested institutions. The balance shall be verified by the State Administration of Foreign Exchange.

  Article 17 The State shall implement control over the total amount of foreign debts borrowed by domestic foreign-invested financial institutions. Specific procedures in this regard shall be formulated separately.

  Article 18 The sum of the cumulative amount of medium- and long-term foreign debts and the balance of short-term foreign debts borrowed by foreign-invested enterprises shall be controlled within the difference between the total amount of investment for the project as approved by the examination and approval authority and the registered capital.

  Foreign-invested enterprises may borrow foreign debts on their own within the scope of the said difference. If it exceeds the difference, the total amount of investment for the project shall be verified by the original examination and approval authority anew.

  Article 19 Domestic institutions that provide security to foreign entities shall comply with the laws and regulations of the State and the relevant provisions of the foreign exchange control authorities.

  Article 20 Domestic institutions may not provide security for foreign institutions of a non-business nature.

  Article 21 No government authorities, social organizations or institutions may borrow foreign debts or provide security to foreign entities without the approval of the State Council.

  Article 22 After signing loan contracts or security contracts with foreign entities, domestic institutions shall handle registration procedures with the foreign exchange control authorities according to the relevant provisions. Contracts of international commercial loan or security contracts shall become effective only upon registration.

  PART THREE UTILIZATION OF FOREIGN DEBT FUNDS

  Article 23 Foreign debt funds shall mainly be used for economic development and structural adjustment of the balance of foreign debts.

  Article 24 Utilization of medium- and long-term foreign preferential loans such as loans from international financial organizations and loans from foreign governments shall be focused on infrastructure and public welfare construction projects, with priority for central and western regions.

  Article 25 Utilization of medium- and long-term international commercial loans shall be focused on imports of advanced technology and equipment, and the adjustment of industrial structure and foreign debt structure.

  Article 26 Medium- and long-term foreign debt funds borrowed by domestic enterprises shall be used reasonably strictly in compliance with the approved purposes, and shall not be appropriated for other purposes. If it is indeed necessary to change the purposes, approval shall be obtained according to the original procedures.

  Article 27 Short-term foreign debt funds borrowed by domestic enterprises shall mainly be used as working capital and may not be used for medium- and long-term purposes such as fixed assets investment.

  Article 28 The responsibility system for project legal person shall be implemented for fixed assets investment projects that utilize foreign debt funds. Project legal persons shall be responsible for the beneficial utilization of foreign debt funds.

  Where procurement by invitation of bids is required according to the PRC, Invitation and Submission of Bids Law and other relevant provisions concerning foreign loan institutions, it shall be carried out strictly in compliance with the provisions.

  Article 29 The administrative department of foreign debt shall be responsible for the administration and supervision of utilization of foreign debt funds.

  Article 30 The State Development Planning Commission shall, in accordance with the provisions of the Auditing Major State Construction Projects Procedures, designate special inspectors for major State construction projects that utilize foreign debt funds to conduct audit on the implementation of the projects and utilization of funds.

  PART FOUR REPAYMENT OF FOREIGN DEBTS AND RISK MANAGEMENT

  Article 31 The State shall repay sovereign foreign debts uniformly. If the funds of the sovereign foreign debts have been on-lent to domestic debtors by the Ministry of Finance directly or through financial institutions, the domestic debtors shall undertake the liability for repayment to the Ministry of Finance or the financial institutions that on-lent the loan.

  Article 32 Debtors of non-sovereign foreign debts shall undertake the risk and repay the debts on their own.

  Article 33 Debtors may repay foreign debts with their own foreign exchange funds, or by purchasing foreign exchange with Renminbi to repay foreign debts upon approval of the foreign exchange control authorities.

  Article 34 If a debtor, who has a guarantor, is unable to repay foreign debts, the guarantor shall be responsible for the repayment.

  Article 35 When a guarantor is required to fulfil the obligations of security provided to foreign entities based on the provisions of the security contract, he shall handle the procedures for verification and approval of fulfilling the provision of security to foreign entities at the foreign exchange control authority.

  Article 36 Debtors shall strengthen risk management on foreign debts, and appropriately adjust and optimize the debt structure.

  Under the pre-requisite of not expanding the scale of the original foreign debt, a debtor may reduce the cost of the foreign debt and optimize the debt structure by way of borrowing low-cost foreign debts to repay high-cost foreign debts upon approval of the State Development Planning Commission. Where it involves a sovereign foreign debt, the approval of the Ministry of Finance shall be required.

  Article 37 For the purposes of maintaining value and avoiding risks, debtors may entrust financial institutions with relevant qualifications to utilize the financial vehicles to avoid the exchange rate and interest rate risks of foreign debts.

  PART FIVE REGULATION OF FOREIGN DEBTS

  Article 38 The administrative department of foreign debt shall implement regulation of foreign debts and provision of security to foreign entities according to the laws and regulations of the State, and the relevant provisions herein.

  Article 39 When the administrative department of foreign debt performs its duties of regulation, it shall have the right to request the debtor and the relevant work unit to provide relevant information and check the relevant accounts and assets.

  Article 40 Where a domestic institution fails to handle the required examination and approval procedures or register according to provisions when it borrows foreign debts or provides security to foreign entities, the loan contract or security contract it signed with foreign entities shall not have any legally binding force.

  Article 41 An external loan or security that does not appear in the form of loan contract or security contract but in fact constitutes repayment obligation or potential repayment obligation to foreign entities shall be included in the regulation of foreign debts according to these Procedures.

  Article 42 Violation of the principles of profit and risk sharing in order to borrow foreign debts in such disguised form as guaranteeing fixed return for direct investment of foreign investors shall be prohibited.

  Article 43 Chinese-invested enterprises outside China may not transfer the debt risk and repayment liability undertaken by themselves into China without the approval of the administrative departments of foreign debt.

  Article 44 When a financial institution engaged in foreign exchange business discovers an act that violates the provisions hereof in the course of opening foreign exchange and foreign debt accounts for domestic institutions and handling foreign exchange fund transactions, it shall report to the relevant administrative department of foreign debt in a timely manner and assist the department in investigation.

  Article 45 The administrative departments of foreign debt shall keep abreast of the development of the foreign debts, establish and perfect the overall foreign debt monitoring and alarming mechanism.

  Article 46 The State Administration of Foreign Exchange shall be responsible for the statistical monitoring of foreign debts, and shall periodically announce the foreign debt statistics.

  Article 47 If a domestic institution, in violation of these Procedures, borrows foreign debts or provides security to foreign entities, the department in charge shall impose the relevant administrative penalty on the personnel directly in charge and other directly responsible personnel according to law. If a criminal offence is constituted, its criminal liability shall be pursued according to law.

  Article 48 If personnel of the administrative departments of foreign debt practises graft, abuses his power or is derelict in his duties, he shall be subjected to administrative penalty by the department in which he works according to law. If a criminal offence is constituted, his criminal liability shall be pursued according to law.

  PART SIX SUPPLEMENTARY PROVISIONS

  Article 49 The borrowing of debts from or provision of security for institutions in Hong Kong and Macao Special Administrative Regions, and Taiwan region by domestic institutions shall, mutatis mutandis, be handled in accordance with these Procedures.

  Article 50 The administrative departments of foreign debt shall formulate and perfect the relevant implementing rules according to these Procedures.

  Article 51 The State Development Planning Commission, the Ministry of Finance and the State Administration of Foreign Exchange are in charge of interpreting these Procedures.

  Article 52 These Procedures shall be implemented as of 1 March 2003.

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