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劳动和社会保障部、中国证券监督管理委员会关于企业年金基金证券投资有关问题的通知 Circular of the Ministry of Labor and Social Security and China Securities Regulatory Commission on the Relevant Issues concerning Securities Investment of Enterprise Annuity Fund

2006-05-12 20:57   我要纠错 | 打印 | 收藏 | | |

劳社部发[2004]25号

颁布日期:20040929  实施日期:20040929  颁布单位:劳动和社会保障部、 中国证券监督管理委员会

  Lao She Bu Fa [2004] No. 25

  The labor and social security offices or bureaus of all the provinces, autonomous regions, and municipalities directly under the Central Government, and the regulatory bureaus under China Securities Regulatory Commission of all the provinces, autonomous regions, municipalities directly under the Central Government, and cities specifically designated in the state plan, the Shanghai and Shenzhen Stock exchanges, the China Securities Depository and Clearing Corporation Limited, and the Securities Association of China,

  For the purpose of implementing the Several Opinions of the State Council on Pushing forward the Reform and Opening and Stable Development of Capital Market, ensuring the safety of enterprise annuity fund, maintaining the legitimate rights and interests of the parties of the enterprise annuity fund management, and promoting the healthy development of enterprise annuity fund, The Circular on the relevant issues concerning the securities investment of enterprise annuity fund is hereby issued as follows:

  I. The fiduciaries, trustees, and investment custodians shall, in accordance with the Trial Measures for Enterprise Annuity Fund Management, manage the enterprise annuity fund and engage in securities investment activities.

  II. A trustee shall apply for opening securities account for enterprise annuity fund upon the entrustment of a fiduciary. In light of each portfolio that is managed by the investment custodian of enterprise annuity fund, the securities account shall be opened in the joint name of the enterprise annuity plan and the trustee.

  III. A trustee shall be responsible for the clearing and settlement of the capital of enterprise annuity fund entrusted to it. An investment custodian shall ensure the ordinary operation of the securities transaction of enterprise annuity fund, and assume the settlement responsibilities for its acts of overbuying and short selling in the course of investment.

  IV. A trustee shall apply for opening a settlement reserve account in its own name in the China Securities Depository and Clearing Corporation Limited (hereinafter referred to as the China Clearing Corporation) for clearing and settling the capital of all the funds (including enterprise annuity fund) entrusted to it.

  V. An investment custodian shall lease or arrange special seats for securities transaction of enterprise annuity fund for different trustees.

  VI. A trustee and an investment custodian shall timely obtain the settlement data of securities transaction of enterprise annuity fund from the stock exchange and the China Clearing Corporation, and shall check with the stock exchange and the China Clearing Corporation in time if any mistake is discovered in the data.

  VII. As a contact person for information disclosure of a stock exchange, a trustee shall, in accordance with the requirements of the business rules of a stock exchange, report the relevant materials and remind the fiduciary of fulfilling the obligation of information disclosure in time.

  VIII. A fiduciary, trustee, and investment custodian shall, in accordance with the Business Guide for the Depository and Clearing of Securities Investment of Enterprise Annuity Fund (See the Annex), carry out management on securities account concerning enterprise annuity fund and the relevant businesses of securities depository, custody and settlement, etc.

  IX. The Ministry of Labor and Social Security shall regularly or irregularly conduct supervision over and inspection on fiduciaries, trustees and investment custodians for their implementation of the aforesaid provisions.

  X. The present Circular shall be applicable to other social securities funds that may be used for securities investment as prescribed in other regulations as of the date of its promulgation.

  Annex: Business Guide for the Depository and Clearing of Securities Investment of Enterprise Annuity Fund

  Ministry of Labor and Social Security and China Securities Regulatory Commission

  September 29, 2004

  Annex:

  Business Guide for the Depository and Clearing of Securities Investment of Enterprise Annuity Fund

  Article 1 For the purpose of facilitating the participation of enterprise annuity fund in the investment activities in the securities market, ensuring the safety of fund assets, and protecting the legal rights and interests of employees, the present Business Guide is formulated in accordance with the state laws and regulations, the Trial Measures on Enterprise Annuity, the Trial Measures on Enterprise Annuity Fund Management, and in light of the relevant provisions of China Securities Regulatory Commission (hereinafter referred to as the CSRC) and the relevant business rules of the China Securities Depository and Clearing Corporation Limited (hereinafter referred to as the China Clearing Corporation)。

  Article 2 The present Business Guide shall be applicable to the management on securities accounts concerning the investment of enterprise annuity fund and the relevant securities depository, custody and clearing, and other businesses.

  Article 3 The securities account of enterprise annuity fund shall be opened by the trustee of enterprise annuity plan (hereinafter referred to as the “trustee”) directly at the Shanghai and Shenzhen branches of the China Clearing Corporation (hereinafter referred to as the China Clearing Corporation uniformly)。

  Article 4 When opening a securities account of enterprise annuity fund, a trustee shall provide the following materials:

  1. The application Form for Registration of Securities Account of an Institution;

  2. The original copy and photocopy of the letter of confirmation (including registration number) on enterprise annuity plan as issued by the regulatory institutions of enterprise annuity fund under the labor security department;

  3. The power of attorney from the fiduciary of the enterprise annuity plan to the trustee (hereinafter referred to as the “fiduciary”);

  4. The photocopies of the certificate of the legal representative of the trustee and the valid identification document of the legal representative;

  5. The power of attorney of the legal representative or the documents of approval of the parent bank on the qualification of its branch bank for their launching enterprise annuity fund custody business;

  6. The photocopy of the business license of the trustee with his/its seal of authorization;

  7. The original copy of the trusteeship agreement concluded between the fiduciary and the trustee;

  8. The original copy and photocopy of the valid identification documents of the handling agent; and

  9. Other materials as required by the China Clearing Corporation.

  Article 5 A trustee shall, when filling in the Application Form for Registration of Securities Account of an Institution, fill in the item of “name of the holder” with “**enterprise annuity plan plus the name of the trustee and the item of ”number of identification documents“ with ”registration number in the letter of confirmation of enterprise annuity plan as issued by the regulatory institution of enterprise annuity fund under the labor security department“。 The name of enterprise annuity plan and the registration number shall be filled in according to item (2) of Article 4 of the present Business Guide. Ten securities accounts may be opened separately in different markets for a single enterprise annuity fund, except the case that any more securities account is approved by the CSRC and the Ministry of Labor and Social Security.

  Article 6 The China Clearing Corporation may open an account after examining the materials as prescribed in Article 4 of the present Business Guide and if there is no mistake in them, and shall keep the original copy or photocopy of the prescribed documents.

  Article 7 In case a trustee applies for inquiring about the registration materials of a securities account, alteration, reporting the loss of account card and its makeup, writing off the account or for other businesses, it shall handle it with reference to the relevant provisions of the Rules of the China Securities Depository and Clearing Corporation Limited for Securities Account Management. Articles 8 and 9 of the present Business Guide shall be followed for the alteration of the trustee of enterprise annuity plan.

  Article 8 After a trustee of an enterprise annuity plan is altered, a new trustee shall be entrusted to apply for handling the alteration of registration materials of securities account. An applicant shall submit the following materials:

  1. The application Form for Alteration of Registration Materials of Securities Accounts;

  2. The power of attorney from a fiduciary to a trustee;

  3. The photocopy of the certificate of legal representative of a trustee and the valid identification document of the legal representative;

  4. The power of attorney of the legal representative of a trustee or documents of approval of the parent bank for the qualification of its branch bank for its launching enterprise annuity fund trusteeship business;

  5. The photocopy of the business license of a trustee with its seal of authorization;

  6. The original copy of the trusteeship agreement concluded by a fiduciary and a new trustee;

  7. The securities account card;

  8. The letter of confirmation for rescinding trusteeship relations as issued by the former trustee;

  9. The original copy and photocopy of the valid identification documents of the handling agent; and

  10. Other materials as required by the China Clearing Corporation.

  Article 9 In case the trustee for enterprise annuity plan is altered, the China Clearing Corporation may alter the registration materials of the securities account after examining the materials as prescribed in Article 8 of the present Business guide and if there is no mistake in them, and shall keep the original copy or photocopy of the prescribed documents.

  Article 10 When applying for handling the relevant account business, a trustee shall pay the corresponding fees according to the charging standard for the account of relevant institutions of the China Clearing Corporation.

  Article 11 As a participant in the clearing of the China Clearing Corporation (hereinafter referred to as the “clearing participant”), a trustee shall complete capital clearing and settlement with a net amount of such securities transactions under its trusteeship as the total enterprise annuity funds. For acts of overbuying and short selling occurred during the investment operation of enterprise annuity fund, a trustee shall be responsible for prosecuting the relevant responsible person for the corresponding settlement liabilities, and report to the relevant regulatory departments.

  Article 12 Before handling the clearing business, a clearing participant shall conclude a clearing agreement with the China Clearing Corporation, specifying the rights and obligations of each party.

  Article 13 A clearing participant shall open a sole settlement reserve account in its own name at the China Clearing Corporation, and through the account complete the capital clearing business of all the funds under its trusteeship (excluding QFII) with a net amount. As one part of the trust fund, the enterprise annuity fund shall be brought into the settlement reserve account of the clearing participant for clearing with a single net amount.

  Article 14 A clearing participant shall preserve the designated fee-collection account at the China Clearing Corporation and receive the fund transferred from the settlement reserve account through the account. The name of the designated fee-collection account shall be in conformity with that of the clearing participant.

  Article 15 In case there is any alteration on the name of the clearing participant, the designated gathering account, the entrusted enterprise annuity fund and other information, the clearing participant shall provide the corresponding materials to the China Clearing Corporation in time and handle formalities for alteration of clearing account.

  Article 16 In case any clearing participant who has opened the settlement reserve account newly increases entrusted enterprise annuity fund, it shall submit to the China Clearing Corporation the power of attorney from a fiduciary. The newly increased enterprise annuity fund of a trustee and other fund under his/its trusteeship shall participate in the clearing of single net amount of the settlement reserve account of the clearing participant together.

  Article 17 After a fiduciary alters a trustee, the newly appointed trustee shall open a settlement reserve account in the China Clearing Corporation in accordance with the provisions of Articles 11, 12, 13 of the present Business guide, or implement according to Article 16 of the present Business guide.

  Article 18 For the enterprise annuity fund under the trusteeship of a clearing participant, the China Clearing Corporation shall check and ratify the corresponding minimum clearing reserve in accordance with the relevant provisions on the management of clearing reserve. The balance at the end of a day in the clearing reserve account of a clearing participant shall not be lower than the minimum amount of clearing reserve as checked and ratified by the China Clearing Corporation.

  Article 19 The securities transactions on enterprise annuity fund shall be carried out through special transaction seats. After the market is closed in each transaction day (T day), the China Clearing Corporation shall compute the amount of securities receivable and payable in the securities account of enterprise annuity fund, and produce the securities clearing data on the basis of the amount of transactions and other data of the securities account of special transaction seat of enterprise annuity fund of stock exchange in the T day; and compute the net amount of capital receivable or payable by the clearing participant on the basis of the transaction amount and other data of all the funds under the trusteeship of the clearing participant in the T day to determine the relevant settlement liabilities.

  Article 20 After completing the clearing in T day, the China Clearing Corporation shall store the securities and capital clearing data in the current day into the clearing system as the basis and instructions for settlement of securities and capital of the clearing participant, and the clearing participant shall obtain such data from the system of the China Clearing Corporation timely.

  The China Clearing Corporation shall be regarded as having notified the clearing participant of the settlement instruction unless when a clearing participant is unable to obtain the relevant data due to the reason of the system of the China Clearing Corporation.

  Article 21 A clearing participant shall perform the settlement obligations in a timely manner in light of the instruction of the China Clearing Corporation for settlement of securities and capital. If a clearing participant has any objection to the clearing data provided by the China Clearing Corporation, it shall represent it to the China Clearing Corporation in a timely manner. If there is a real clearing error after being checked by the China Clearing Corporation, the China Clearing Corporation shall correct it, but the clearing participant may not refuse to perform or delay the performance of the settlement obligations of the current day because of this.

  Article 22 The China Clearing Corporation shall, in light of the current business regulations and on the basis of the clearing data at the T day, complete the settlement of securities and capital that are finally irrevocable with the clearing participant on the T+1 day.

  Article 23 A clearing participant shall pay clearing mutual insurance fund as required in light of the principle of bearing risk together in order to prevent the clearing risk. The provisions of the China Clearing Corporation shall be followed for the payment and deposit, adjustment, management and use of the clearing mutual insurance fund.

  Article 24 The China Clearing Corporation shall collect securities clearing risk fund from the clearing participants as an agent in accordance with the provisions of the Interim Measures for the Management of Securities Clearing Risk Fund as promulgated by the CSRC and the Ministry of Finance.

  Article 25 Any overdraft occurred in the settlement reserve account of a clearing participant shall be deemed as breach of contract in capital settlement. The China Clearing Corporation may take the following measures against its breach of contract in capital settlement:

  1. According to the amount of overdraft of the clearing participant, computing the interests on the overdraft and the fine for breach of contract in light of the relevant provisions of the China Clearing Corporation.

  2. The clearing participant may, before 15:00 o'clock of the transaction date (T+1 day), file an application with the China Clearing Corporation for detaining the securities for overdraft, and specify the overdraft fund securities account entrusted by it and the amount of overdraft. The China Clearing Corporation shall detain the securities by turn from the back to the front according to the order of buying the securities as designated by it in the overdraft fund securities account, until the market value of the securities detained has reached 120% of the amount of overdraft (the market value of the securities shall be computed at the closing price of the day, the same hereinafter)。 In case the value of all the securities in the fund securities account is less than 120% of the amount of overdraft, all the securities in the fund securities account shall be detained.

  In case the clearing participant fails to designate the overdraft fund, the China Clearing Corporation shall have be entitled to determine by itself not to deliver the securities that are equal to 120% market value of the amount of overdraft.

  3. Any overdraft of capital settlement caused by the clearing participant shall be registered as the bad business record of the clearing participant by the China Clearing Corporation;

  4. Reporting the overdraft of capital settlement to the CSRC in a timely manner. And

  5. Asking the stock exchange to restrict or suspend the buying of securities in the overdraft fund securities account as designated by the clearing participant.

  Article 26 In case any short selling occurs in the fund securities account entrusted by a clearing participant, it shall be deemed as breach of contract by the clearing participant in securities settlement. The China Clearing Corporation may not pay the capital equivalent to the short selling price temporarily on the T+ 1 day, and shall compute and collect the fine for breach of contract on the basis of the short selling price in accordance with the relevant provisions of the China Clearing Corporation. If the short selling securities have been made up within two transaction days, the China Clearing Corporation may rescind the temporary detainment on the short selling price. Or else, the China Clearing Corporation shall buy securities equal to the amount of short selling with the capital detained temporarily, and the gains and losses occurred thereby shall be traced back by the clearing participant to the party liable or returned by the clearing participant.

  Article 27 The China Clearing Corporation shall have the right to make special monitoring on the clearing participants with higher clearing risks, and may take measures to raise the amount of payment of clearing mutual insurance fund, if necessary, and adjust the proportion and time of payment and deposit of minimum clearing reserve, so as to prevent the relevant risks effectively.

  Article 28 In case a clearing participant applies for writing off its settlement reserve account, he/it may, after settling the creditor's rights and debts related to securities depository and clearing with the China Clearing Corporation, apply to the China Clearing Corporation for transferring and paying the balance of clearing reserve and the balance of clearing mutual insurance fund.

  Article 29 The power to interpret the present Business Guide shall remain with the China Clearing Corporation.

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