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关于证券公司开展集合资产管理业务有关问题的通知 Issues Relevant to the Engagement in Collective Asset Management Business by Securities Companies Circular

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(Issued by the China Securities Regulatory Commission on 21 October 2004.)

颁布日期:20041021  实施日期:20041021  颁布单位:证券监督管理委员会

  To the CSRC's Regulatory Bureaux of provinces, autonomous regions, municipalities directly under the central government and cities with independent development plans, Shanghai Stock Exchange, Shenzhen Stock Exchange, China Securities Depository and Clearing Corporation Limited, Securities Association of China and all securities companies:

  To standardize the collective asset management business of securities companies, we hereby issue the following Circular on the issues relevant to the establishment of collective asset management schemes and engagement in collective asset management business in accordance with the Client Asset Management Business of Securities Companies Trial Procedures (CSRC Order No. 17, hereafter the “Trial Procedures”), the Issues Relevant to Promoting Innovative Activities in the Securities Industry Circular (Zheng Jian Zi Gou Zi [2004] No. 96) and other regulations:

  1. Principle for the Pilot Project for Engagement in Collective Asset Management Business

  Collective asset management business is a new form of client asset management business for securities companies. At the moment, there is no mature practice and experience for such business to follow. In order to promote the development of such business in a steady and proper way and to safeguard against potential risks, the CSRC will adopt the principle of “trial first and promotion afterwards” towards the establishment of collective asset management schemes and the engagement in collective asset management business by securities companies. During the pilot stage, the CSRC will stringently restrict the scope of securities companies that may engage in collective asset management business and will allow only securities companies that have passed the evaluation and are eligible to engage in the relevant innovative activities to handle such business on a trial basis. As experience is accumulated, this business will be promoted gradually.

  Screening of collective asset management businesses already conducted by securities companies prior to the date hereof shall be carried out in accordance with the Trial Procedures and other relevant provisions and requirements.

  2. Basic Standards for Engaging in Collective Asset Management Business

  To engage in collective asset management business, a securities company shall comply with the following business standards in accordance with the provisions of the Trial Procedures:

  (1) Internal Control System

  1) Collective asset management business shall be subject to centralized and uniform management, and a rigorous business segregation system shall be set up. The company's senior management personnel in charge of client asset management business and the company's own account shall not be the same person. Branches are strictly forbidden to independently conduct collective asset management business for outside parties.

  2) A system for personnel in charge of investment shall be set up for collective asset management schemes, i.e. dedicated personnel shall be designated to be responsible for the investment and management matters of each collective asset management scheme. Personnel in charge of investment shall have three or more years of experience in securities business on own account, asset management business or securities investment fund business, good professional ethics and no record of misconduct. During the term of a collective asset management scheme, its personnel in charge of investment may not manage any other collective asset management schemes.

  3) The requirements of the relevant accounting system shall be rigorously complied with. Independent and complete bookkeeping, accounting, reporting, auditing and file administration systems shall be set up for collective asset management schemes. Clear settlement paths and fund transfer channels shall be established. Effective supervision and control over the operation and management of collective asset management schemes by the risk control department and supervisory and inspection department shall be ensured. Off-balance-sheet operation, misappropriation of the assets of collective asset management schemes and other acts in violation of laws and regulations shall be conscientiously prevented.

  (2) Promotion Arrangements

  1) A securities company may promote a collective asset management scheme by itself or appoint a commercial bank or securities company with securities investment fund sales agency qualifications to carry out promotion on its behalf, in which case a written promotion agency agreement shall be signed. The securities company has the obligation to supervise and inspect the promotional activities of its promotion agency. If it finds that a promotion agency acts in violation of the Trial Procedures, it shall stop such act. If the case is serious, it shall terminate the promotion agency agreement according to the stipulations and report the case to the CSRC and the CSRC agency at its place of registration.

  2) The securities company and the promotion institution shall promote the collective asset management scheme in strict compliance with the approved prospectus of the collective asset management scheme and the collective asset management contract.

  3) Promotion of collective asset management schemes through radio broadcast, television, newspapers and periodicals, and other mass media is strictly forbidden.

  4) The securities company and the promotion institution shall ensure that the amount of each collective asset management contract is not lower than the minimum amount stipulated in the Trial Procedures, and shall prevent the clients from illegally pooling the funds of other parties to participate in the collective asset management scheme.

  5) During the period of promotion of the collective asset management scheme, all accounts and funds relating to the promotion of collective asset management scheme shall be taken into the custody by the custodian bank. The securities company and the promotion institution shall deposit the client funds received during the promotion period into a special account opened with the custodian bank. No one shall use the funds of the collective asset management scheme before the complete establishment and commencement of investment operation of the collective asset management scheme.

  6) After the promotional activities for a collective asset management scheme have ended, the securities company shall employ an accounting firm with securities-related qualifications to conduct capital verification on the collective asset management scheme and issue a capital verification report.

  7) The securities company, custodian bank and promotion institution shall have a clear division of labour in regard to the post-promotion client services, and shall set up a sound file administration system to properly keep safe documents and information such as the contracts, agreements, client details, and transaction records related to collective asset management schemes.

  (3) Undertaking of Investment Risks and Fund Participation by Securities Companies

  A securities company shall issue clear risk alert to investors in the relevant materials such as the prospectus of the collective asset management scheme and the collective asset management contract, stating that the investment risks of the collective asset management scheme shall be borne by investors.

  If a securities company uses its own funds to participate in a collective asset management scheme established by itself, it shall obtain approval from the board of directors or the shareholders' meeting or through other internal authorization procedure in accordance with the provisions of the company's articles of association and, when calculating the company's net capital, the funds it invests shall be truthfully deducted according to the liability borne by it.

  (4) Registration, Custody and Clearing

  During the pilot stage, a securities company shall select a commercial bank with the qualifications for securities investment fund custodian business to take custody of the assets of the collective asset management scheme.

  A securities company shall handle clearing business of collective asset management schemes in accordance with the clearing mode of securities investment funds. If rigorous and independent custody of client transaction clearing funds is achieved and approval of the CSRC is obtained, it may handle clearing business of collective asset management schemes in accordance with the clearing mode of brokerage business. The securities company and the custodian bank shall assume the responsibility for final delivery for transaction and clearing of collective asset management schemes in accordance with the relevant regulations of the securities registration and clearing institution.

  The custodian bank shall, in accordance with the provisions of the Trial Procedures, open a dedicated fund account for each collective asset management scheme. The name of the account shall be the name of the collective asset management scheme. At the same time, it shall open a dedicated securities account on behalf of each collective asset management scheme at the securities registration and clearing institution (Shanghai or Shenzhen branch)。 The name of the securities account shall be in the format of “Securities Company – Custodian Bank – Name of the Collective Asset Management Scheme”。

  A securities company shall be responsible for accounting operations such as valuation of the net asset value of the collective asset management scheme, and verification thereon shall be carried out by the custodian bank.

  (5) Seat

  The investment and trading activities of a collective asset management scheme at the stock exchange shall be centrally conducted from a dedicated seat, and shall be submitted to the stock exchange and the securities registration and clearing institution for record filing.

  The bonds in the assets of a collective asset management scheme shall not be used for repurchase.

  (6) Investment Portfolio

  The investment scope and investment portfolio of a collective asset management shall comply with the provisions of the Trial Procedures and the stipulations in the prospectus of the collective asset management scheme and the collective asset management contract. The securities company shall make the investment portfolio ratio consistent with that stipulated in the collective asset management contract within six months of the commencement of investment operation of the collective asset management scheme. Where the investment portfolio ratio is inconsistent with that stipulated in the collective asset management contract due to external factors such as fluctuation in the stock market, merger of investment targets and change of the scale of the collective asset management scheme, the securities company shall make adjustment within 10 working days.

  There is no upper limit on new share purchase by a collective asset management scheme provided that the amount applied for does not exceed the total assets of the scheme and that the number of shares applied for does not exceed the total number of shares to be issued by the share issuing company in the current issue. Investment by the collective asset management scheme in shares for which the securities company is a sponsor organization (lead underwriter) shall comply with the restrictive provisions in the Trial Procedures on affiliated transactions.

  Custodian banks and stock exchanges shall supervise and control the investment scope and investment portfolio of collective asset management schemes, and shall report to the CSRC in a timely manner any act of major violation of regulations discovered.

  (7) Liquidity Requirement

  1) A securities company shall maintain a necessary amount of cash or government bonds with a maturity date within one year in light of the status of the collective asset management scheme to prepare for payment of client dividends or withdrawals;

  2) It may be stipulated in the collective asset management contract that when the amount of withdrawal applied for by clients on a single opening day exceeds a certain percentage of the assets of the collective asset management scheme, the securities company may handle the withdrawal applications on a pro-rata basis and suspend accepting withdrawal applications in excess of that percentage or postpone making payments, provided that the period of such suspension or postponement does not exceed 20 working days.

  3) A securities company and its promotion agency shall not handle assignment of collective asset management contract for its clients unless otherwise stipulated by laws or administrative regulations.

  (8) Information Disclosure

  After a collective asset management scheme has commenced investment operation, the securities company and the custodian bank shall provide the clients with a management report and a custodian report of the collective asset management scheme at least once every three months, and shall submit the same to the CSRC and the CSRC agency at their place of registration for record filing.

  The securities company shall separately carry out an annual audit on the operation of the collective asset management scheme in accordance with the provisions of the Trial Procedures and provide the audit opinion to its clients and the custodian bank, and shall submit the same to the CSRC and the CSRC agency at its place of registration for record filing.

  (9) Expenses

  Expenses incurred during the promotion period of a collective asset management scheme shall not be paid as expenses from the assets of the collective asset management scheme.

  Expenses incurred during the operation of a collective asset management scheme may be paid as expenses from the collective asset management scheme, but explicit stipulations shall be made in the collective asset management contract.

  Securities companies, custodian banks and promotion institutions shall not engage in unfair competition by such means as charging below cost.

  3. Record Filing or Approval Procedure for Establishment of Collective Asset Management Schemes

  (1) Application

  To apply for establishment of a collective asset management scheme, a securities company shall prepare the record filing materials or application materials (Application Materials) in accordance with the Trial Procedures and the contents and format specified in the appendices hereto, and shall employ a law firm to issue a legal opinion on the regulatory compliance of the proposed collective asset management scheme and the truthfulness, accuracy and completeness of the Application Materials. Such Application Materials shall be in quadruplicate (at least one shall be the original)。 Three copies shall be submitted to the CSRC and one to the CSRC agency at the place of registration of the securities company.

  If the securities company has already established according to law a collective asset management scheme that is still in existence, when it applies for establishment of a new collective asset management scheme, it shall conduct comparison between the proposed collective asset management scheme and the one currently under its management, and explain their differences.

  (2) Acceptance

  The CSRC shall examine the completeness of Application Materials upon receipt thereof and notify the securities company in writing whether its application is accepted.

  The CSRC agency at the place of registration of the securities company shall examine the Application Materials in accordance with the provisions of the Trial Procedures and this Circular, and shall submit a written opinion on the Application Materials to the CSRC within 10 working days after the CSRC has decided to accept the Application Materials.

  Applications for establishment of new collective asset management scheme of a securities company shall not be accepted while a collective asset management scheme it applied for is still under examination and verification or before an approved collective asset management scheme has commenced operation.

  (3) Examination and Verification

  After accepting the Application Materials, the CSRC shall examine and verify the proposed collective asset management scheme in light of the regulatory compliance of the client asset management business of the securities company.

  The CSRC shall render a decision of no objection or approval on the Application Materials for establishing collective asset management scheme of the securities company if they are deemed as fulfilling the criteria upon examination and verification, or a decision of objection or disapproval if they are deemed as failing to fulfil the criteria upon examination and verification.

  The custodian bank shall open a securities account of the collective asset management scheme with the securities registration and clearing institution (Shanghai or Shenzhen branch) on the strength of the no objection or approval decision issued by the CSRC.

  4. Follow-up Regulation of the Collective Asset Management Business of Securities Companies

  (1) Reports on the Promotion and Establishment of Collective Asset Management Schemes

  A securities company and its promotion agency shall carry out promotional activities of a collective asset management scheme only after an official reply or no objection letter has been issued by the CSRC.

  The securities company shall submit the official promotion documents such as the collective asset management contract and the prospectus of the collective asset management scheme to the CSRC agency at its place of registration for record filing, and shall complete the promotion and establishment work within the time period stipulated in the contract. The official promotion documents of the collective asset management scheme shall be consistent in substance with the texts verified and approved by the CSRC.

  Within five working days of the establishment of the collective asset management scheme, the securities company shall submit the details of the promotion and establishment of the collective asset management scheme and the capital verification report to the CSRC and the CSRC agency at its place of registration for record filing. The CSRC and the relevant agency may conduct on-site verification and inspection on the promotion and establishment of the collective asset management scheme and on the technical system.

  (2) Investment Operation and Information Disclosure of Collective Asset Management Schemes

  After a collective asset management scheme is established, the securities company, the custodian bank and the promotion agency shall perform their investment, custody and promotion responsibilities and handle matters such as client participation in and withdrawal from the collective asset management scheme, and distribution of dividends, in accordance with laws, regulations, the provisions of the Trial Procedures and this Circular and the stipulations in the collective asset management contract, the custody agreement and the promotion agency agreement.

  The securities company and the custodian bank shall perform information disclosure obligations in accordance with the provisions of the Trial Procedures and this Circular. If, in the course of operation of the collective asset management scheme, there is a change in the personnel in charge of investment or promotion agency, large amount of withdrawal or other event that may have a significant impact on the continued operation of the collective asset management scheme, the securities company shall report the relevant details to the CSRC and the CSRC agency at its place of registration in a timely manner, and disclose the same to its clients.

  (3) Extension, Dissolution or Termination of Collective Asset Management Schemes

  If a securities company intends to extend the term of a collective asset management scheme upon expiration, it shall, at least three months prior to the expiration of the term, submit an extension application to the CSRC and the CSRC agency at its place of registration with the application materials as those required for application for establishment of collective asset management schemes, and provide a statement on the operation status of the collective asset management scheme for which an application for extension of term is applied since its establishment. If the collective asset management scheme has been operating well with no violation of laws or regulations, and still fulfils the criteria for establishment of collective asset management schemes, the term may be extended upon the verification and approval of the CSRC.

  If a securities company intends to terminate or dissolve a collective asset management scheme, it shall report the matter to the CSRC and the CSRC agency at its place of registration at least one month in advance, and shall report the relevant details to the CSRC and the CSRC agency at its place of registration within five working days of the termination or dissolution of the collective asset management scheme.

  (4) Daily Regulation

  The CSRC agencies shall strengthen supervision and inspection on the establishment, promotion and operation of collective asset management schemes within their jurisdiction, and shall be responsible for setting up special files for collective asset management schemes established by the securities companies within their jurisdiction, urging the relevant securities companies and custodian banks to submit quarterly client asset management business reports according to schedule, maintaining on-going regulation of the matters of collective asset management schemes such as investment operation, information disclosure and client services. In the event of a major occurrence, the matter shall be reported to the CSRC and circulated to the relevant CSRC agencies in a timely manner.

  The CSRC agency at the place of registration of a securities company shall communicate and coordinate on the relevant regulatory matters in a timely manner with the CSRC agency at the place of promotion of the relevant collective asset management scheme.

  The CSRC agencies shall handle in accordance with the law unauthorized collective money management activities or other activities in violation of the provisions of the Trial Procedures or this Circular conducted by securities institutions within their jurisdiction, and shall report the relevant details to the CSRC in a timely manner.

  5. Responsibilities of Stock Exchanges, Securities Registration and Clearing Institutions and the Securities Association

  Stock exchanges and securities registration and clearing institutions shall supplement and improve the business rules for collective asset management business of securities companies in accordance with the provisions of the Trial Procedures and this Circular, strengthen regulation of the collective asset management business activities of securities companies on matters such as account opening, investment transaction, repurchase business, information disclosure, and custody and clearing, and shall conscientiously safeguard against potential risks in the operation of such business. In the event of a major occurrence, the matter shall be reported to the CSRC and circulated to the CSRC agency at the place of registration of the securities company in a timely manner. The securities company and the custodian bank shall submit the relevant materials as required by stock exchanges and securities registration and clearing institutions.

  The Securities Association shall, in accordance with the provisions of the Trial Procedures and this Circular, strengthen self-regulation and industry guidance on engagement in collective asset management business by securities companies, stop acts of unfair competition in the collective asset management business activities of securities companies, and track and record the operation of collective asset management business of securities companies.

  21 October 2004

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