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金融机构撤销条例 Shutting Down of Financial Institutions Regulations

2006-05-13 15:29   我要纠错 | 打印 | 收藏 | | |

国务院令第324号
(Issued by the State Council on 23 November 2001, and effective as of 15 December 2001.)
颁布日期:20011123  实施日期:20011215  颁布单位:国务院

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in order to strengthen the supervision and administration of financial activity, to safeguard the financial order, and to protect the interests of the State and of society and the public.

  Article 2 The People's Bank of China shall follow these Regulations when shutting down financial institutions.

  The term "shutting down" as used in these Regulations shall refer to the adoption of administrative enforcement measures by the People's Bank of China in accordance with the law towards financial institutions with the status of legal persons, the establishment of which it has approved, in order to terminate their operations and dissolve them.

  Article 3 The People's Bank of China, its staff, and other relevant personnel shall carry out their duties in accordance with these Regulations and shall maintain confidentiality in accordance with the law with regard to financial institutions that have been shut down.

  Article 4 The local people's government of the place in which financial institutions being shut down are located shall organize the relevant departments to carry out properly work related to their shutting down.

  PART TWO DECISION ON SHUTTING DOWN

  Article 5 Financial institutions that operate in violation of laws and regulations, or which are poorly managed, and that will if not shut down seriously harm the financial order or the interests of society and the public, shall be shut down in accordance with the law.

  Article 6 When the People's Bank of China decides to shut down a financial institution, it shall draw up a written decision to shut down.

  The decision to shut down shall be effective from the date of promulgation by the People's Bank of China.

  The decision to shut down shall be published in newspapers and posted in the place of operation of the financial institution that is being shut down.

  Article 7 The financial institution that has been shut down must cease operations immediately from the date on which the decision to shut down becomes effective and hand in its permit for a financial institution legal person and the business licences of its branches. Its senior management personnel, board of directors and shareholders' general meeting must immediately cease to carry out their duties.

  PART THREE LIQUIDATION ON SHUTTING DOWN

  Article 8 The People's Bank of China shall set up a liquidation committee for commercial banks that have been shut down in accordance with the law. The People's Bank of China or the relevant local people's government entrusted by the People's Bank of China shall set up a liquidation committee for non-banking financial institutions that have been shut down in accordance with the law. Liquidation shall begin as of the date on which the decision to shut down becomes effective. The liquidation committee shall be responsible to and report to the People's Bank of China.

  The liquidation committee shall be composed of representatives from the People's Bank of China, the relevant financial and auditing departments and the local people's government, representatives of the shareholders of the financial institution that has been shut down, and relevant professionals. The head and members of the liquidation committee shall be designated by or agreed by the People's Bank of China.

  During liquidation, the liquidation committee shall exercise administrative power over the financial institution that has been shut down. The head of the liquidation committee shall act as the statutory representative of the financial institution that has been shut down.

  Article 9 Once the liquidation committee is established, the statutory representatives and the relevant responsible persons of the financial institution that has been shut down shall hand over to the liquidation committee all chops, account books, letters of credit, negotiable instruments, documents, materials, etc. of the financial institution that has been shut down, and shall assist the liquidation committee in carrying out the liquidation.

  Article 10 During liquidation, the statutory representatives, board of directors, members of the supervisory board, senior managers, financial personnel and other relevant personnel at levels above the department heads of the financial institution that has been shut down shall work in accordance with the requirements of the liquidation committee, and shall not desert their posts or leave the country without authorization.

  Article 11 During liquidation, the liquidation committee shall carry out the following duties:

  1. custody and inventory of the property of the financial institution that has been shut down, and preparing of balance sheets and detailed lists of property;

  2. notification and publication of depositors and other creditors, and confirmation of financial claims;

  3. handling and settlement of the outstanding business of the financial institution that has been shut down;

  4. inventory of financial claims and debts, calling in of financial claims, and disposal of assets;

  5. drawing up of liquidation plan and repayment of debts in accordance with the approved liquidation plan;

  6. settlement of tax owed;

  7. disposal of property remaining of the financial institution that has been shut down after the repayment of the debts;

  8. representation of the financial institution that has been shut down in litigation and arbitration;

  9. proposal to the relevant departments to pursue the legal liability of the senior management personnel directly responsible and other relevant personnel of the financial institution that has been shut down; and

  10. other liquidation matters.

  Article 12 During liquidation, the liquidation committee may appoint a financial institution designated by the People's Bank of China (Entrusted Institution(s)) to deal with the liquidation.

  The Entrusted Institution shall not take on the debts of the financial institution that has been shut down, shall not finance it, and shall not be responsible for finding placements for the personnel of the financial institution that has been shut down. Entrustment expenses shall be included in the liquidation expenses of the financial institution that has been shut down.

  Article 13 The local people's government of the place in which the financial institution that has been shut down is located shall set up a small leading group for shutting down, which shall be headed by a senior official of the local people's government.

  The small leading group for shutting down shall support and coordinate with the calling in of financial claims and other liquidation matters by the liquidation committee, and shall organize the relevant departments to safeguard social order, deal with issues that suddenly arise, investigate and prosecute illegal acts, and pursue the legal liability of the relevant responsible persons in accordance with the law.

  Article 14 The liquidation committee shall within 10 days of its establishment notify creditors in writing to submit their financial claims, and shall publish such notification in newspapers at least three times within 60 days.

  Creditors shall, within 30 days of the date of receipt of notification, submit their financial claims to the liquidation committee. Those who have not received notification shall submit their financial claims within 90 days of the date of the first publication.

  The liquidation committee may decide that depositors of small amounts need not submit a financial claim and that the liquidation committee shall recognize and register these deposits on the basis of the account books and relevant vouchers of the financial institution that has been shut down.

  Article 15 Creditors submitting financial claims shall state the nature of the claim, the amount, and the time it occurred, and shall provide the related proof. The liquidation committee shall investigate the proof of claims submitted, confirm whether the claim is secured by property and the amount of the security, and register secured and unsecured claims separately.

  Article 16 Creditors who fail to submit claims within the stipulated time limit shall be handled as follows:

  1. the claims of those already known shall be included in the liquidation; and

  2. in the case of claims by creditors not already known, the creditors may ask for repayment before the liquidated property of the financial institution being shut down is distributed; once the liquidated property of the financial institution being shut down has been distributed, they shall not be repaid.

  Article 17 The debts of the financial institution that has been shut down shall cease to accrue interests from the date on which the decision to shut down becomes effective.

  Article 18 The following property of the financial institution that has been shut down shall be liquidated property for repayment of debts:

  1. all the property held by the financial institution that has been shut down on the date liquidation commences, including capital contributions and other rights and interests of shareholders, the property of wholly-owned subsidiaries of the institution, and the shares in which it has invested;

  2. property acquired in accordance with the law during the liquidation by the financial institution that has been shut down; and

  3. other property of the financial institution that has been shut down.

  Deliberate or covert transfer of property by the financial institution that has been shut down before the date on which the decision to shut down becomes effective shall be void. The property so transferred or covertly transferred shall be recovered by the liquidation committee, and shall be included in the liquidated property.

  Article 19 When listing the property of the financial institution that has been shut down, the liquidation committee shall estimate its actual value in accordance with the law. Where there is a loss on the property, the amount of loss shall be verified.

  Article 20 The liquidation committee may sell off in accordance with the law the valid assets of the financial institution that has been shut down. The reserve price of valid assets of the financial institution that has been shut down which are auctioned off shall be set in accordance with the estimate issued by a qualified asset valuation intermediary institution.

  "Valid assets" as referred to in the previous paragraph shall be the property of the financial institution being shut down that is ascertained to have real value after listing and verification.

  Article 21 The listing and disposal of the property of the financial institution that has been shut down shall be exempt from tax and administrative charges.

  Article 22 Once the property of the financial institution that has been shut down has been listed and verified, the liquidation committee shall formulate a liquidation plan.

  The liquidation plan shall include details of creditors, size of debts, amount of property to be liquidated, amount of capital and legal interest to be repaid to individual depositors, repayment of other debts, etc. It shall have appended to it materials such as balance sheets, property inventory and asset valuation report.

  Once the liquidation plan has been negotiated between the liquidation committee and the creditors, it shall be reported to the People's Bank of China for confirmation.

  PART FOUR REPAYMENT OF DEBT

  Article 23 The liquidated property of the financial institution that has been shut down shall be used to repay the capital and legal interest of individual depositors first.

  Article 24 Property remaining from the liquidated property of the financial institution that has been shut down after the capital and legal interest of individual depositors has been repaid shall be used to repay debts to legal persons and other organizations.

  Article 25 Property remaining from the liquidated property of the financial institution that has been shut down after its debts have been repaid shall be allocated in accordance with the ratio of capital contributions by shareholders or the ratio of shares held.

  PART FIVE DEREGISTRATION

  Article 26 After the completion of liquidation, the liquidation committee shall draw up a liquidation report, a report of revenue and expenditure during the liquidation period, and other accounts books and submit them to the People's Bank of China for confirmation.

  Article 27 After the completion of liquidation, the liquidation committee shall complete the deregistration procedure with the administration authority for industry and commerce. Termination of the shareholding status of the financial institution that has been shut down, and its dissolution, shall be announced by the People's Bank of China.

  Article 28 All materials such as the accounts vouchers, accounts books and accounts statements of the financial institution that has been shut down, and important documents concerning its operations and liquidation shall, after its deregistration, be deposited with an institution designated by the People's Bank of China.

  Article 29 An auditing organization shall audit the responsible persons of the financial institution that has been shut down.

  PART SIX LEGAL LIABILITY

  Article 30 Where the senior management or other relevant personnel of the financial institution that has been shut down takes advantage of his position to accept the property of others, to issue loans illegally, to issue financial instruments illegally, or practise graft, so causing the shutting down of the financial institution, his criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of accepting bribes, illegally issuing loans, illegally issuing financial instruments, causing bankruptcy and incurring losses through practising graft or other crimes. If the offence is not serious enough for the imposition of criminal penalties, he shall be subjected to disciplinary sanctions ranging from removal from his post to dismissal, and shall be banned for life from holding a senior management position or one equivalent to his original position in any financial institution.

  Article 31 If a People's Bank of China personnel illegally examines and approves a financial institution, fails to supervise or regulate a financial institution in accordance with the law, or fails to investigate and prosecute illegal activities in accordance with the law, where the circumstances are serious, leading to the shutting down of the financial institution, his criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of abuse of authority, dereliction of duties or other crimes. If the offence is not serious enough for the imposition of criminal penalties, he shall be subjected to administrative penalties such as the recording of a major demerit, demotion or removal from his post.

  Article 32 If any personnel working for a State authority illegally interferes with the normal operations of a financial institution and becomes directly responsible for the shutting down of that financial institution, his criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of abuse of authority or other crimes. If the offence is not serious enough for the imposition of criminal penalties, he shall be subjected to administrative penalties such as the recording of a major demerit, demotion or removal from his post.

  Article 33 If a personnel of a financial institution that has been shut down commits any of the following acts during the process of shutting down and liquidation, his criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of jeopardizing public affairs, jeopardizing liquidation, or other crimes. If the offence is not serious enough for the imposition of criminal penalties, he shall be subjected to disciplinary sanctions ranging from removal from his post to dismissal:

  1. obstruction of the liquidation committee in carrying out its duties in accordance with the law;

  2. refusal to provide information or the provision of false information;

  3. removal of funds, concealment of property or debt evasion; or

  4. deliberate or covert transfer of the property of the financial institution that has been shut down.

  Article 34 If a financial institution that has been shut down operates illegally once the decision to shut down becomes effective, it shall be banned by the People's Bank of China in accordance with the Banning of Illegal Financial Institutions and Illegal Financial Business Activities Procedures, and the criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of illegally taking deposits from the public or other crimes. If the offence is not serious enough for the imposition of criminal penalties, it shall be subjected to administrative penalties.

  Article 35 Where a personnel of liquidation committees in the course of liquidation abuses his authority, derelict in his duties or practises graft, causing loss of property or damage to creditors' interests, his criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of abuse of authority, dereliction of duty or other crimes. If the offence is not serious enough for the imposition of criminal penalties, he shall be subjected to administrative penalties or disciplinary sanctions ranging from demotion to dismissal.

  Article 36 In the case of a disclosure of State secrets or trade secrets by a personnel of the People's Bank of China or other relevant personnel in the course of his duties in accordance with these Regulations, criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of disclosure of State secrets, infringement on trade secrets or other crimes. If the offence is not serious enough for the imposition of criminal penalties, he shall be subjected to administrative penalties or disciplinary sanctions ranging from demotion to dismissal.

  Article 37 Entrusted Institutions that fail to carry out their duties and cause loss of property of the financial institution that has been shut down shall bear civil liability in accordance with the law. Those in charge who are responsible and other directly responsible persons shall be subjected to disciplinary sanctions in accordance with the law.

  PART SEVEN SUPPLEMENTARY PROVISIONS

  Article 38 These Regulations shall be effective as of 15 December 2001.

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