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证券投资基金托管资格管理办法 Order of President of China Banking Regulatory Commission and President of China Securities Regulatory Commission

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中国证券监督管理委员会、中国银行业监督管理委员会令第26号

颁布日期:20041129  实施日期:20050101  颁布单位:中国证券监督管理委员会、 中国银行业监督管理委员会

  [2004] No. 26

  Measures Governing the Qualification for Securities Investment Fund Custodian are hereby promulgated and shall come into force as of January 1, 2005.

  President of China Securities Regulatory Commission Shang Fulin

  President of China Banking Regulatory Commission Liu Mingkang

  November 29, 2004

  Measures Governing the Qualification for Securities Investment Fund Custodian

  Article 1 The present Measures are formulated according to the Law on Securities Investment Funds, Law on Banking Regulation and other relevant laws and regulations with a view to standardizing the management of the qualifications as a securities investment fund custodian, maintaining the competitive order in the securities investment fund custody sector, protecting the legitimate rights and interests of investors and parties concerned and promoting the healthy development of securities investment funds.

  Article 2 To undertake the business of securities investment fund (hereinafter referred to as the “fund”) custody, a commercial bank must obtain the qualification to perform as a fund custodian after verification and approval by China Securities Regulatory Commission (CSRC) and China Banking Regulatory Commission (CBRC)。

  No commercial bank without the qualification as a fund custodian may engage in the business of fund custody.

  Article 3 A commercial bank, which applies for the qualification as a fund custodian (hereinafter referred to as “applicant”) must meet the following requirements:

  (1) during the last three fiscal years, its net assets at the end of the year shall not be lower than 2 billion Yuan and its capital adequacy ratios shall all be up to the standard as provided for by the regulatory authority;

  (2) having a special fund custody department which shall be independent of its other business departments;

  (3) the person to perform as a senior officer of the fund custody department shall meet the statutory requirements; and there shall be at least five persons to engage in fund liquidation, accounting, investment supervision, information disclosure and internal auditing and control, who shall have the qualifications of being employed in the fund sector;

  (4) having the conditions to keep the safety of fund property under it custody;

  (5) having a highly effective clearing and accounting system;

  (6) The fund custody department shall have a fixed place necessary for the conducting of business of and is equipped with an independent security monitoring system ;

  (7) the fund custody department shall be equipped with an independent technical system for custody business including of network system, application system and systems for security and protection and data back-up;

  (8) having a sound internal auditing and monitoring system and a risk control system;

  (9) having no record of major illegal or irregular acts during the last three years; and

  (10) other requirements as may be provided for by laws or regulations or by CSRC or CBRC with the approval of the State Council.

  Article 4 An applicant, to ensure the safety of the fund property under its custody, must have the following conditions and abilities:

  (1) equipments and facilities required for conducting the fund custody business;

  (2) to open separate account books for each fund and to keep fund assets under its custody integrated and independent;

  (3) to strictly separate and keep its owned assets and fund assets under its custody;

  (4) to supervise the investment operation of fund managers according to law;

  (5) to carry out the instructions of fund managers in disposing of and distributing fund assets according to law;

  (6) to lawfully check and examine the net assets, net value of a fund unit and prices for fund subscription and repurchase as determined by a fund manager;

  (7) to properly keep the records, account books, statements and other materials concerning its fund custody business; and

  (8) to have a sound internal custody system.

  Article 5 The applicant must have a sound clearing and accounting system, which must accord with the following provisions:

  (1) funds involved in the securities transactions occurring in the system must be able to be transferred within two hours;

  (2) it must be able to receive data from relevant stock exchanges in a safe manner;

  (3) it must be able to be connected with the systems of the relevant institutions in a safety manner, such as systems of fund managers, fund registration institutions and securities registration and clearing institutions; and

  (4) in such system, the liquidation and accounting must be able to be conducted in time through proper implementing of the investment instructions of the fund managers according to law.

  Article 6 The applicant shall have its place, security and precaution facilities and other facilities and relevant systems for its fund custody business accord with the following provisions:

  (1) the business place of the fund custody department must be relatively independent with an entrance guarding system equipped;

  (2) there must be separate rooms for the posts with access to fund transaction data, where no unconcerned person may enter without permission;

  (3) there must be a sound secret-keeping system for fund transaction data;

  (4) there must be a reliable fund custody data back-up system; and

  (5) there must be a fund custody emergency program to cope with emergencies.

  Article 7 The applicant shall submit to CSRC the following application documents with copies thereof to CBRC simultaneously:

  (1) an application;

  (2) special capital verification reports on its net assets and capital adequacy ratio as rendered by an accounting firm with qualifications for conducting securities-related business;

  (3) a certificate certifying the establishment of a fund custody department;

  (4) provisions concerning the internal structure establishment and post responsibilities;

  (5) basic information of the persons to assume senior officers and staff members of the fund custody department, including the application materials for assuming senior officers of the persons to assume senior officers , the names, career records, copies of certificates certifying the qualification of being an employee in the fund sector, professional training and posts of the persons to be the staff members;

  (6) a report on the conditions for the safety of the fund property under its custody;

  (7) a report on the test of its fund clearing and accounting system;

  (8) a plan for the business place, a design blue print for the security and monitoring system and a report on the installation and test;

  (9) a design blue print for the fund custody business back-up system, an emergency-disposing plan and a report on the test of the ability to meet emergencies;

  (10) its relevant business rules and regulations, including rules and regulations concerning business management, operation procedures, fund accounting and auditing, fund liquidation management, information disclosure, internal auditing and monitoring, internal control and risk management, information system management, security and file management, reporting of major suspicious transactions and emergency measures and other rules and regulations as may be required for a fund custodian;

  (11) a commercial plan for the development of its fund custody business; and

  (12) other documents as may be required by CSRC and CBRC.

  Article 8 CSRC shall, within five working days from the receipt of application documents, make a decision on whether or not to accept the application. If all application documents have been submitted completely and accord with the legal forms, a certificate of acceptance shall be issued to the applicant. Otherwise, the applicant shall be notified once for all of those required to be added or corrected.

  Article 9 CSRC shall, within 20 working days from acceptance of the application, make a decision on whether or not to grant an administrative license. In the case of a decision of granting, CSRC shall send the decision to CBRC for its permission; or else, the applicant shall be notified of the decision accompanied with the reasons explained for such decision indicated, upon which the administrative licensing procedure shall be terminated.

  CBRC shall, within 20 working days from the receipt of the decision sent for its permission, make a decision on whether or not to permit. In the case of permission, CSRC and CBRC shall jointly sign an approval document and CSRC shall issue a fund custody business license; or else, the applicant shall be notified of the decision with reasons indicated, upon which the administrative licensing procedure shall be terminated.

  Article 10 Before making a decision to grant an administrative license, CSRC and CBRC shall jointly make a verification on the spot of the preparations for the establishment of a fund custody department of the applicant.

  The verification on the spot shall be carried out by at least two persons.

  The time taken for the verification on the spot shall not be calculated into the period of the time mentioned in the preceding article.

  Article 11 A commercial bank, which has obtained the qualification as a fund custodian, shall be a fund custodian.

  Every fund custodian shall promptly apply for the qualification of being a senior officer for persons to be senior officers of its fund custody department and the qualification of being employed in the fund sector for persons to be staff members of its fund custody department, and go through corresponding employment formalities.

  Article 12 Every fund custodian shall, in conducting business , keep lawful, honesty and faithful, diligent and devoted, and effectively perform its statutory and contractual functions and duties.

  Article 13 Every fund custodian shall take proper measures according to law to ensure that its fund custody business and selling business on a commission basis shall be independent of each other and effectively safeguard the integrity and independence of fund assets under its custody.

  Article 14 Fund custodians shall communicate with each other and may not engage in any unfair competition or monopolize the market;

  Article 15 Where an applicant conceals relevant facts or provides false application materials, CSRC and CBRC shall not accept its application or grant any administrative license, and shall give the applicant a warning; and the applicant may not apply for the qualification as a fund custodian during the period of a year.

  Where any applicant has obtained the qualification as a fund custodian by means of fraud or bribery or any other unwarrantable methods, CSRC shall, in consultation with CBRC, revoke the applicant's qualification as a fund custodian, and give the applicant a warning and a fine with its fund custody business license nullified by CSRC; CBRC may, pursuant to different circumstances, charge the applicant to give a disciplinary sanction to the person in charge who is directly responsible and other persons directly responsible, or give such persons warnings or fines, or prohibit them from employment in the banking sector for a specified period of time or for their lifetime; the applicant may not again apply for the qualification as a fund custodian in three years; those suspected of committing a crime shall be transferred to the judicial organ for investigation for the criminal liabilities.

  Article 16 CSRC and CBRC shall make supervision and administration on the fund custody business commercial banksaccording to law.

  Article 17 In the case of non-compliance with the requirements as provided for in Articles 3 to 6 of the present Measures, the fund custodian concerned must promptly report it to CSRC and CBRC and make corrections within a specified time limit.

  If the fund custodian fails to report such non-compliance in time, CSRC and CBRC shall charge it to make corrections and give a warning and fine to the person in charge who is directly responsible and other persons directly responsible; CBRC may charge the fund custodian to give disciplinary sanctions to the person in charge who is directly responsible and other persons directly responsible; if the consequences are serious, CSRC may, in addition, suspend or revoke such persons' qualifications of being senior officers or being employed in the fund sector, and CBRC may, in addition, prohibit such persons from employment in the banking sector for a specified period of time or for their lifetime.

  Article 18 In the case of non-compliance with the requirements as provided for in Articles 3 to 6 of the present Measures, if the fund custodian concerned fails to correct such non-compliance, CSRC shall, in consultation with CBRC, suspend or revoke its qualification as a fund custodian and shall nullify its fund custody business license; as to the person in charge who is directly responsible and other persons directly responsible, CSRC shall, in consultation with CBRC, give them fines, and may suspend or revoke such persons' qualifications of being senior officers or being employed in the fund sector in addition; and CBRC may, in addition, prohibit such persons from employment in the banking sector for a specified period of time or for their lifetime; those suspected of committing a crime shall be transferred to the judicial organ for investigation of their criminal liabilities.

  Article 19 The present Measures shall be applicable to domestic Chinese-funded commercial banks not to any foreign-funded commercial bank.

  Article 20 The present Measures shall come into force as of January 1, 2005.

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