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设立境外中国产业投资基金管理办法 MEASURES FOR CONTROLLING THE ESTABLISHMENT OF OVERSEAS FUNDS FOR INVESTMENT IN CHINESE INDUSTRY

2006-05-16 15:16   我要纠错 | 打印 | 收藏 | | |

(Approved by the State Council on August 11, 1995, and promulgated by Decree No. 1 of the People's Bank of China on September 6, 1995)
颁布日期:19950906  实施日期:19950906  颁布单位:中国人民银行

  Article 1 These measures are enacted to meet the needs of opening-up to the outside world and economic development, and to strengthen and improve control over the establishment of overseas funds for investment in Chinese industry.

  Article 2 The overseas funds for investment in Chinese industry as referred to in these Measures (hereinafter referred to as overseas investment funds) denote investment funds inside China whose promoters are financial institutions which are not banks or institutions which are not financial, as well as investment funds whose promoters are overseas institutions holding Chinese funds (hereinafter referred to as Chinese funded institutions), these funds shall be established by these promoters on their own or together with other overseas institutions, and shall be registered and raise money overseas, their main investment is to be in industrial programmes inside China. The promoter in these Measures refers to Chinese funded institutions who establish overseas investment funds and who bear legal responsibility for the truthfulness, accuracy and comprehensiveness of the contents of their prospectuses.

  Article 3 The business activities of overseas investment funds inside China must abide by the provisions of the laws and administrative regulations of the People's Republic of China and may not harm the social public interests of the People's Republic of China. The legitimate business activities and lawful rights and interests of the overseas investment funds shall be protected by the laws of the People's Republic of China.

  Article 4 The establishment of overseas investment funds shall be examined and approved by the People's Bank of China together with the relevant departments of the State Council.

  The People's Bank of China, together with the relevant departments of the State Council, shall exercise supervision over the business activities within China of overseas investment institutions.

  Article 5 Chinese funded institutions, as the promoters of overseas investment funds, must include at least one promoter which is a financial institution which is not a bank and which meets the following conditions:

  (1) A total capital of not less than 1000 million RMB Yuan at the end of the year prior to that in which the application was made;

  (2) Good creditworthiness and a steady management, not having had any serious punishments imposed by the financial supervisory and management organs or by the judicial organs in the three years prior to the application;

  (3) Possessing professional personnel who are familiar with international finance and fund management.

  Article 6 Chinese funded non-financial institution which are among the promoters of overseas investment funds shall meet the following conditions:

  (1) A total capital of not less than 500 million RMB Yuan at the end of the year prior to that in which the application is made;

  (2) The projects it manages shall be supported by state industrial policies;

  (3) Good creditworthiness and a steady management, not having had any serious punishments imposed by the financial supervisory and management organs or by the judicial organs in the three years prior to the application;

  Article 7 In establishing an overseas investment fund, the Chinese funded institution shall select an overseas institution with which to cooperate which has good creditworthiness, a steady management and experience in establishing investment funds, furthermore located in a place with good financial control systems.

  Article 8 In establishing an overseas investment fund, the promoter shall submit the following documents and materials to the People's Bank of China:

  (1) An application for establishing an overseas investment fund;

  (2) A feasibility study;

  (3) A copy of the business licence of the enterprise;

  (4) The promoters' agreements to cooperate;

  (5) The annual reports from the last three years;

  (6) The relevant laws and regulations from the place where the overseas investment fund is to be established, trusted, listed and trading;

  (7) A copy of any documents from the relevant departments examining and approving the project in which the fund plans to invest;

  (8) The valuation report of the project in which the fund plans to invest;

  (9) The project proposals of the parties to the contractual or equity joint venture concerning the project in which the fund plans to invest;

  (10) The draft prospectus of the fund;

  (11) The proposals signed by the underwriters, trustees, administrators and all those cooperating with the overseas investment fund;

  (12) The credit rating of all those cooperating with the establishment, underwriting and trusteeship of the overseas investment fund.

  Article 9 The People's Bank of China shall investigate applications to establish an overseas investment fund within 90 days of receiving all the documents and materials for the application as submitted by the applicant; if it believes the applicant meets the conditions stipulated by these Measures, together with the relevant department of the State Council, the People's Bank of China shall grant approval and shall issue a document of approval.

  Article 10 The total issuing sum of the overseas investment fund to be established shall be no less than 50 million U.S. dollars.

  Article 11 The overseas investment fund to be established shall be a closed fund, whose fund evidence may not be redeemed with an existing term of no less than 10 years.

  Article 12 The Chinese funded institution shall select a country or region with good financial control systems in which to list the planned overseas investment fund.

  Article 13 The Chinese funded institution shall select a fund management company, in which the Chinese party shall hold more than 25% of the shares, to manage the planned overseas investment fund.

  Article 14 The total number of shares subscribed to by the Chinese funded institution as the promoter may not be more than 10% of the total number of shares issued by the fund.

  Article 15 When subscribing to shares, the Chinese funded institution may only use their own money and may not use credit.

  Article 16 The money with which promoters within China subscribe to the fund's shares must be deposited in banks which have been approved by the People's Bank of China, it may not be remitted overseas.

  Article 17 Overseas investment funds may not raise funds on Chinese territory.

  Article 18 For the purpose of managing the planned overseas investment fund, the Chinese funded institution may apply to establish a company to manage the overseas investment fund.

  The application for the establishment of a company to manage the overseas investment fund shall be submitted together with the application to establish an overseas over seas investment fund to the People's Bank of China for examination and approval in accordance with the provisions of Procedures for Administration of Chinese Financial Institutions Abroad.

  When applying to establish a company to manage the overseas investment fund, a country or region with good financial management systems shall be selected as the place where the main operational activities of the company will take place.

  Article 19 When an overseas investment fund management company establishes a representative office within Chinese territory, it shall report to the People's Bank of China for examination and approval according to the provisions of Measures for the People's Bank of China Regarding the Administration of Foreign Funded Financial Institutions Establishing Permanent Representative Offices in China.

  Article 20 Overseas investment funds shall mainly invest in industrial projects on Chinese territory supported by national industrial policy, the amount invested should be no less than seventy percent of the fund.

  Overseas investment funds may not be used as loans on Chinese territory.

  Overseas investment funds may not be used to buy ordinary RMB shares or RMB valued governmental bonds on public offer.

  Article 21 Evidence of overseas investment funds may not be used on Chinese territory as loans, mortgages or guarantees when issuing bonds.

  Article 22 Overseas investment funds must abide by state provisions regarding the management of foreign currencies on being remitted into or out of Chinese territory, when opening a bank account or exchanging currency in China.

  Article 23 The promoters and investors in China of overseas investment funds and overseas investment fund management companies shall submit the previous years' balance sheets, statements of profit and loss and the annual report of the overseas investment fund and the fund management company to the People's Bank of China prior to March 31 each year.

  Article 24 The issuance of bonds and stocks by those overseas projects whose investment comes from overseas investment funds shall be examined and approved in accordance with the provisions of the State Council.

  Article 25 In cases where an overseas investment company or an overseas investment fund management company is established without approval or without authorization, the People's Bank of China shall impose a fine of between 500,000 and 2,000,000 RMB Yuan on the promoters or investors in China, shall order them to withdraw from the established institution and shall punish the directly responsible person in charge and other directly responsible person with disciplinary sanctions; if the case is so serious that it constitutes a crime, criminal responsibility shall be investigated in accordance with the law.

  Article 26 When the relevant statements or reports are not submitted or false statements or reports are submitted in violation of the provisions of Article 23 of these Measures and the case is serious, the People's Bank of China shall order that the situation be remedied, and shall impose a fine of between 200,000 and 500,000 RMB Yuan on the promoters or investors in China.

  Article 27 Overseas investment funds and overseas investment fund management companies established prior to these Measures coming into force shall implement the examination and approval procedures within the time limit prescribed by the People's Bank of China; if they have implemented these within the given time, the People's Bank of China shall fine them in accordance with the provisions of Article 25 of these Measures.

  Article 28 These Measures shall enter into force as of the day of promulgation.

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