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信托投资公司管理办法 Administration of Trust and Investment Corporations Procedures

2006-05-13 11:49   我要纠错 | 打印 | 收藏 | | |

(Promulgated by the People's Bank of China on, and effective as of, 5 June 2002.)

颁布日期:20020605  实施日期:20020605  颁布单位:中国人民银行

  PART ONE GENERAL PROVISIONS

  Article 1 These Procedures have been formulated pursuant to such laws as the PRC, Trust Law and the PRC, People's Bank of China Law and the relevant regulations of the State Council, in order to strengthen the supervision and administration of trust and investment corporations, regulate the business activities of trust and investment corporations and promote the healthy development of the trust industry.

  Article 2 For the purposes of these Procedures, the term “trust and investment corporation” means a financial institution, established pursuant to the PRC, Company Law and these Procedures, that primarily engages in trust business.

  Article 3 For the purposes of these Procedures, the term “trust” means the acts whereby the settlor, based on his trust in the trustee, entrusts the rights in his property to the trustee and the trustee manages or disposes of such property in its own name in accordance with the wishes of the settlor for the benefit of the beneficiary or for a specified objective.

  A settlor shall be a natural person or a legal person or other legally established organization that has full civil capacity. A beneficiary shall be the natural person or the legal person or other legally established organization that enjoys the right to benefit from the trust. The beneficiary and the settlor may be the same person or different persons. The trustee may be the beneficiary, but may not be the sole beneficiary of the same trust.

  Article 4 For the purposes of these Procedures, the term “trust business” means the business activity whereby a trust and investment corporation, for the purposes of business and obtaining remuneration, accepts a trust and handles trust affairs as a trustee.

  Article 5 For the purposes of these Procedures, the term “trust property” means the property obtained by the trust and investment corporation due to its acceptance of a trust. Other property obtained by the trust and investment corporation due to its management, use or disposal of the trust property or otherwise is also included in trust property. Property whose circulation is prohibited by laws or administrative regulations may not be used as trust property. Property whose circulation is restricted by laws or administrative regulations may be used as trust property subject to the approval of the relevant competent authority in accordance with the law.

  Trust property is not a part of the trust and investment corporation's own property and does not constitute a liability of the trust and investment corporation towards the beneficiary. When a trust and investment corporation is terminated, trust property shall not be part of its property subject to liquidation.

  Article 6 A trust shall not terminate upon the termination of a trust and investment corporation by legal dissolution, by being declared bankrupt or by being legally shut down nor shall it terminate if the trust and investment corporation resigns, unless otherwise provided in law or the trust document.

  Article 7 A trust and investment corporation engaging in trust activities shall comply with laws, administrative regulations and the trust document and may not harm the interests of the State or the public or the legal rights and interests of third parties.

  Article 8 Where a trust and investment corporation manages or disposes of trust property, it must scrupulously carry out its responsibilities and perform its obligation of honest, trustworthy, prudent and efficient management.

  Article 9 Trust and investment corporations may not engage in deposit business, issue bonds or take out foreign loans.

  Article 10 The People's Bank of China supervises and administers trust and investment corporations and their business in accordance with laws, administrative regulations and these Procedures.

  PART TWO ESTABLISHMENT, MODIFICATION AND TERMINATION OF AN ORGANIZATION

  Article 11 A trust and investment corporation shall be established in the form of a limited liability company or a company limited by shares.

  Article 12 The establishment of a trust and investment corporation shall be subject to the approval of the People's Bank of China and shall require the obtaining of a Licence for a Legal Person Trust Institution.

  No work unit or individual may engage in trust business and no business work unit may use the words “trust and investment” in its name without the approval of the People's Bank of China, unless otherwise provided in laws or administrative regulations.

  Article 13 The establishment of a trust and investment corporation shall satisfy the following conditions:

  1. having articles of association that comply with the PRC, Company Law and the regulations of the People's Bank of China;

  2. having shareholders that possess the shareholder qualifications stipulated by the People's Bank of China;

  3. having the minimum registered capital stipulated herein;

  4. having senior management personnel with the position qualifications stipulated by the People's Bank of China and the trust staff suitable for its business;

  5. having a sound organizational structure, trust business operational rules and risk management system;

  6. having a place of business, security precautions and other business-related facilities that meet requirements; and

  7. other conditions stipulated by the People's Bank of China.

  The People's Bank of China may examine applications for the establishment of trust and investment corporations based on the needs of economic development and the circumstances of the trust market.

  Article 14 A trust and investment corporation may not have registered capital of less than Rmb 300 million.

  A trust and investment corporation engaging in foreign exchange business shall have not less than the equivalent of US$15 million in foreign exchange as part of its registered capital.

  Depending on the development needs of the trust and investment corporation industry, the People's Bank of China may adjust the minimum registered capital required to establish a trust and investment corporation.

  Article 15 A trust and investment corporation shall obtain the approval of the People's Bank of China to:

  1. change its name;

  2. change its registered capital;

  3. change its domicile;

  4. change its organizational structure;

  5. adjust its scope of business;

  6. make a change in its senior management;

  7. make a change in its main shareholders or adjust its equity structure, unless the traded shares of the listed company it holds is less than 10% of the total shares of the company;

  8. amend its articles of association;

  9. merge or divide; or

  10. make other changes stipulated by the People's Bank of China.

  Article 16 If a trust and investment corporation applies for dissolution due to a division, merger or the materialization of grounds for dissolution stipulated in its articles of association, it shall be dissolved after approval by the People's Bank of China and shall organize a liquidation committee in accordance with the law to carry out liquidation.

  Article 17 If a trust and investment corporation is unable to pay due debts due to illegal operations, mismanagement, etc. and the failure to shut it down would severely harm the public interest and threaten to disrupt the financial system, the People's Bank of China shall shut it down pursuant to the Shutting Down of Financial Institutions Regulations.

  Article 18 If a trust and investment corporation is unable to pay its due debts, it may, with the consent of the People's Bank of China, apply to a people's court for bankruptcy.

  Article 19 The examination and approval procedures for the establishment, modification and termination of a trust and investment corporation shall be handled in accordance with the regulations of the People's Bank of China.

  PART THREE SCOPE OF BUSINESS

  Article 20 A trust and investment corporation may apply to engage in all or some of the following Renminbi and foreign exchange business:

  1. business of engaging in the holding of funds in trust upon entrustment, that is the settlor entrusts funds that he owns legally to the trust and investment corporation to manage, use or dispose of in accordance with the agreed upon conditions and objectives;

  2. business of engaging in the holding of movables, immovables and other property in trust upon entrustment, that is the settlor entrusts such of his property and property rights as movables, immovables, intellectual property, etc. to the trust and investment corporation to manage, use or dispose of in accordance with the agreed upon conditions and objectives;

  3. business of engaging in investment fund business permitted by the laws and administrative regulations and engaging in investment fund business as the sponsor of an investment fund or a fund management company;

  4. engaging in such intermediary business as the restructuring and acquisition of corporate assets, project financing, corporate financial management, financial consulting, etc.;

  5. business of engaging in the distribution of bonds such as sovereign bonds, policy bank bonds and corporate bonds as approved by the relevant State Council authority, upon entrustment;

  6. acting as an agent in the management, use and disposal of property;

  7. business of keeping custody on the behalf of others;

  8. business of credit certification, investigations of creditworthiness and economic consultancy;

  9. using its own property to provide security for third parties; and

  10. other business approved by the People's Bank of China.

  Article 21 Trust and investment corporations may, in accordance with the relevant provisions of the PRC, Trust Law, accept charitable trusts established for the following charitable objectives:

  1. aiding the poor;

  2. assisting the victims of disasters;

  3. supporting the disabled;

  4. developing education, science and technology, culture, the arts and sports;

  5. developing medical and public health care;

  6. developing environmental protection and safeguarding the natural environment; and

  7. developing other charitable causes.

  Article 22 A trust and investment corporation may manage or use trust property by leasing it, selling it, lending it, investing it, lending it on the inter-institutional market, etc. in accordance with the stipulations of the trust document.

  Article 23 Trust and investment corporations may create trust business products in accordance with market needs based on trust objectives, types of trust property or different methods of managing trust property.

  Article 24 The funds under the trust and investment corporation's owner's equity that may be used in accordance with regulations may be deposited in a bank or used for inter-institutional lending, loans, lease financing or investment, provided that the self-used fixed assets and the equity investment balance does not exceed 80% of the net assets.

  Article 25 Subject to the approval of the People's Bank of China, a trust and investment corporation may engage in inter-institutional lending.

  Article 26 A trust and investment corporation's scope of business shall be stipulated in its articles of association and submitted to the People's Bank of China for its approval.

  PART FOUR RULES OF OPERATION

  Article 27 The establishment of a trust shall be effected in written form. Written forms shall include trust contracts, wills and other written documents stipulated in laws or administrative regulations.

  Article 28 When a trust is established in the form of a trust contract, the trust contract shall specify the following particulars:

  1. the objective of the trust;

  2. the names and domiciles of the settlor and trustee;

  3. the beneficiary or the class of beneficiaries;

  4. the scope, type and state of the trust property;

  5. the rights and obligations of the parties to the trust;

  6. the disclosure and assumption of risks during management of the trust property;

  7. the method of managing the trust property and the limits of operation of the trustee;

  8. the format and method of calculating the benefits of the trust and of paying the benefits of the trust to the beneficiary;

  9. the calculation and payment of the remuneration of the trust and investment corporation;

  10. the assumption of taxes and fees on the trust property and the calculation of other fees;

  11. the term and termination of the trust;

  12. ownership of the trust property upon the termination of the trust;

  13. the reporting of trust affairs;

  14. liability for breach of contract by the parties to the trust and the method of arbitrating disputes;

  15. the method of appointing new trustee; and

  16. other particulars that the settlor and the trustee consider necessary to be specified.

  When a trust is established by a written document other than a trust contract, the particulars to be specified in the written document shall comply with the provisions of the relevant laws and administrative regulations.

  Article 29 A trust and investment corporation shall act in the best interest of the beneficiary when carrying out trust affairs and it shall prudently manage the trust property.

  Article 30 Trust and investment corporations may not take in deposits under the guise of engaging in fund trust business or other business.

  Article 31 When engaging in trust business, a trust and investment corporation may not:

  1. use its position as trustee to seek inappropriate benefits;

  2. divert trust property for non-trust purposes;

  3. promise that no loss will be incurred in respect of the trust property or guarantee minimum earnings;

  4. use trust property as security;

  5. invest trust funds in negotiable instruments issued by itself or by a connected person;

  6. lend trust funds to itself or to a connected person;

  7. trade trust property in different trust accounts against each other;

  8. trade its own property and trust property against each other; or

  9. carry out any other act prohibited in laws or administrative regulations or by the People's Bank of China.

  A trust and investment corporation shall not be subject to the restrictions of Items (4) to (8) above if it carries out the transaction in accordance with the provisions of the trust document and at a fair market price.

  Article 32 For the purposes of the preceding Article, the term “Connected Person” refers to:

  1. a shareholder that holds not less than 10% of the equity in the trust and investment corporation;

  2. the enterprise that holds a controlling interest in the trust and investment corporation;

  3. any of the trust and investment corporation's directors, supervisors, general manager, trust business personnel and their close relatives;

  4. any company, enterprise or other economic organization in which any of the afore-mentioned persons has invested and holds 5% or more of its shares, or holds a senior management position.

  Article 33 A trust and investment corporation shall manage trust affairs itself, unless otherwise specified in the trust document, or in circumstances where there is no alternative, in which case it may entrust a third party to handle the trust affairs on its behalf.

  Article 34 A trust and investment corporation shall maintain the confidentiality of the settlor, the beneficiary, its handling of trust affairs and information thereon, unless otherwise provided in laws, administrative regulations or the trust document.

  Article 35 A trust and investment corporation shall separately manage and keep separate accounts for trust property and its own property, and shall separately manage and keep separate accounts for the trust property of different settlors.

  Article 36 A trust and investment corporation shall duly keep complete records of its handling of trust affairs and shall report regularly (at least once a year) on the trust property and its management, use and disposal thereof, and the details of receipts and expenditures connected therewith to the settlor and the beneficiary.

  The settlor and the beneficiary have the right to seek information from the trust and investment corporation on the management, use and disposal of its trust property, and the details of receipts and expenditures connected therewith at any time, and demand that the trust and investment corporation provide an explanation thereof.

  Article 37 When engaging in trust business, a trust and investment corporation shall receive remuneration in the form of a handling fee or a commission in accordance with the agreed upon provisions.

  The standard for the remuneration received by the trust and investment corporation may be determined through consultation with the settlor, unless otherwise specified by the People's Bank of China.

  Article 38 If the trust and investment corporation's disposal of trust property runs counter to the trust objective, or loss is incurred in respect of the trust property due to a breach of its management responsibilities or improper handling of trust affairs, the trust and investment corporation may not seek the payment of its remuneration before it returns the trust property to its original state or before it effects compensation.

  Article 39 The expenses paid and the debts borne by a trust and investment corporation in the handling of trust affairs shall be borne from the trust property, but the trust and investment corporation shall specify it in the trust contract or clearly notify the settlor. If the trust and investment corporation advances the payment of such expenses and debts from its own property, it shall be entitled to priority repayment from the trust property. The debts borne and damage incurred by a trust and investment corporation due to a breach of its management responsibilities or mismanagement of trust affairs shall be borne from its own property.

  Article 40 If the trust and investment corporation's disposal of trust property runs counter to the trust objective, or its management, use or disposal of trust property is grossly negligent, the settlor has the right to dismiss the trust and investment corporation in accordance with the provisions of the trust document, or petition to the people's court to dismiss the trust and investment corporation.

  Article 41 When a trust and investment corporation is terminated, its responsibilities for managing trust affairs also terminate. The liquidation committee shall duly safeguard the trust property, prepare a report on the handling of trust affairs and, in conjunction with the settlors and the beneficiaries, transfer the trust property to the new trustee, unless otherwise provided in the trust document, in which case the provisions thereof shall prevail.

  Article 42 If a trust and investment corporation terminates its trustee responsibilities in accordance with the law, the new trustee shall be appointed in accordance with the provisions of the trust document. If the trust document is silent on such point, the settlor shall make the appointment. If the settlor is unable to make the appointment, the appointment shall be made by the beneficiary. If the beneficiary has no or limited civil capacity, his guardian shall appoint the trustee on his behalf in accordance with the law.

  Article 43 The trust of a trust and investment corporation engaged in trust business shall terminate if:

  1. a ground for termination stipulated in the trust document arises;

  2. the continued existence of the trust runs counter to the trust objectives;

  3. the trust objectives have been realized or are impossible to realize;

  4. the parties to the trust have agreed thereon after consultations;

  5. the trust term has expired;

  6. the trust is terminated;

  7. the trust is nullified; or

  8. all the beneficiaries of the trust waive their rights to benefit from the trust.

  Article 44 When a trust terminates, the trust and investment corporation shall prepare a liquidation report on the handling of trust affairs. If the beneficiary or the owner of the rights in the trust property does not have any objections to the liquidation report, the trust and investment corporation shall be released from liability for the matters mentioned therein, with the exception of liability for any improper acts committed by it.

  Article 45 When a trust and investment corporation accepts trust funds whose method of management will be decided by itself on behalf of the settlor, it shall comply with the following regulations:

  1. the trust term may not be less than one year; and

  2. single trust funds may not amount to less than Rmb 50,000.

  Article 46 As need for purposes of managing financial risk, the People's Bank of China may formulate procedures for the administration of those trust funds whose method of management is to be decided by trust and investment corporations themselves on behalf of the settlors.

  Article 47 If a trust and investment corporation engages in foreign exchange trust business, it shall comply with relevant State foreign exchange control regulations and submit itself to the inspection and supervision of the competent foreign exchange authority.

  Article 48 The balance of security provided to third parties by, and inter-institutional loans taken out by, a trust and investment corporation may not exceed its registered capital.

  Article 49 If a trust and investment corporation uses its own funds and trust funds to engage in inter-institutional lending, it shall comply with the relevant regulations of the People's Bank of China.

  Article 50 Each year trust and investment corporations shall allocate 5% of their after-tax profits to a trust compensation reserve. However, a trust and investment corporation may discontinue allocations to its compensation fund once the accumulated amount therein reaches 20% of its registered capital.

  A trust and investment corporation's compensation reserve shall be deposited in a Chinese-funded commercial bank within China with stable operations and certain strength or used to purchase sovereign bonds.

  PART FIVE SUPERVISION, ADMINISTRATION AND SELF-REGULATION

  Article 51 A trust and investment corporation shall formulate the rules for its trust business and other business, establish and develop sound management systems for all of its businesses and sound internal control systems in accordance with regulations and submit the same to the People's Bank of China for its records.

  A trust and investment corporation shall establish an internal auditing department to audit and supervise the company's business activities. The internal auditing department shall submit an internal audit report to the board of directors at least once every six months and submit a duplicate of the afore-mentioned report to the People's Bank of China.

  Article 52 A trust and investment corporation shall set up accounts in accordance with the law, keep separate accounts for its trust business and non-trust business and keep independent accounts for each item of trust business. The specific financial and accounting systems shall comply with the relevant provisions by the Ministry of Finance.

  Article 53 A trust and investment corporation shall, in accordance with the relevant State regulations, establish and develop its own sound financial and accounting systems that truthfully record and comprehensively reflect its business activities and financial position. The company's annual financial and accounting statements shall be audited by a certified accountant with the appropriate qualifications.

  A trust and investment corporation shall submit such relevant materials as business reports, financial and accounting statements on its trust business and non-trust business, trust account list, etc. to the People's Bank of China and other relevant authorities in accordance with regulations.

  Article 54 A trust and investment corporation's trust business department shall, in terms of its business, be independent from the corporation's other departments, its personnel may not hold concurrent posts in other departments of the corporation and its specific business information may not be shared with the corporation's other departments.

  Article 55 The People's Bank of China may periodically or sporadically inspect trust and investment corporations' business activities. When the People's Bank of China considers it necessary, it may order a trust and investment corporation to engage an intermediary organization with the appropriate qualifications to carry out an audit of its business and financial position.

  Trust and investment corporations shall submit the relevant business and financial statements and materials and truthfully explain the relevant business details in accordance with the requirements of the People's Bank of China.

  Article 56 The People's Bank of China submits the senior management personnel of trust and investment corporations to a system for examining their qualifications for their positions. A person who has not had his qualifications for his position examined by the People's Bank of China or who is found not to be qualified after examination and evaluation may not take up his position.

  A trust and investment corporation shall carry out departure audit on a person in a senior management position that plans to leave office, and the results of such audit shall be submitted to the People's Bank of China for its records. When there is a change to the legal representative of a trust and investment corporation, the incumbent legal representative may not leave his position until the new legal representative has had his qualifications for the position verified and approved by the People's Bank of China.

  Article 57 The People's Bank of China implements a trust business qualification examination system for the trust staff of trust and investment corporations. Persons who pass such examination will be issued a trust staff qualification certificate by the People's Bank of China. Persons who have not taken or have failed the examination may not engage in trust business. The specific examination procedures will be formulated separately by the People's Bank of China.

  Article 58 In the event that a member of the senior management or a member of the trust staff of a trust and investment corporation violates laws, administrative regulations or the relevant provisions of the People's Bank of China, the People's Bank of China has the right to revoke his qualifications for his position or his trust business qualifications.

  Article 59 If the People's Bank of China discovers a major shortcoming when overseeing a trust and investment corporation, it has the right to question the trust and investment corporation's senior management personnel and order them to take effective procedures and to rectify the matter within a specified time limit.

  Article 60 If a trust and investment corporation is poorly managed and its business is in trouble, the People's Bank of China will order it to take procedures to rectify the situation or restructure and propose that its senior management personnel be replaced. If the People's Bank of China considers it necessary, it may assume control over the trust and investment corporation.

  Article 61 Trust and investment corporations may establish an industry association so as to carry out self-regulation.

  When the trust and investment corporation association conducts activities, it shall accept the guidance and supervision of the People's Bank of China.

  PART SIX PENAL PROVISIONS

  Article 62 If a trust and investment corporation is established or trust business is engaged in without the approval of the People's Bank of China, such trust and investment corporation or trust business shall be closed down in accordance with the Banning of Illegal Financial Institutions and Illegal Financial Business Activities Procedures and the perpetrators shall be punished.

  Article 63 If, after it has approved the establishment, modification and termination of a trust and investment corporation, the People's Bank of China discovers that facts were concealed or fraud was perpetrated in the application particulars, it may order rectification or revoke its approval.

  Article 64 If a trust and investment corporation handles fund trusts in violation of Article 30 hereof, the People's Bank of China will order it to refund the deposits within a specified time limit and to suspend part or all of its business. The persons in charge who are directly responsible and the other personnel directly responsible shall be subjected to disciplinary punishment in accordance with the law and the People's Bank of China will revoke the qualifications of the senior management personnel for their positions and the business qualifications of staff. If a crime is constituted, the case shall be handed over to the judicial authorities for the pursuance of the criminal liability of the perpetrators.

  Article 65 If a trust and investment corporation violates Article 31 hereof, it shall be punished in accordance with Article 28 of the Penalties for Illegal Financial Acts Procedures.

  Article 66 The People's Bank of China will punish trust and investment corporations that violate other provisions hereof in accordance with the Penalties for Illegal Financial Acts Procedures and relevant regulations.

  Article 67 If a trust and investment corporation is dissatisfied with the punishment decision of the People's Bank of China, it may apply for administrative review in accordance with the law or institute an administrative action in the people's court.

  PART SEVEN SUPPLEMENTARY PROVISIONS

  Article 68 The People's Bank of China shall be responsible for interpreting these Procedures.

  Article 69 These Procedures shall be implemented as of the date of promulgation. The Administration of Trust and Investment Corporations Procedures promulgated by the People's Bank of China on 10 January 2001 are simultaneously repealed.

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