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境内机构借用国际商业贷款管理办法 Administration of Taking Out of International Commercial Loans by Organizations in China Procedures

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[97]汇政发字第06号
(Promulgated by the the State Administration of Foreign Exchange on 24 September 1997 and effective from 1 January 1998.)
颁布日期:19970924  实施日期:19980101  颁布单位:国家外汇管理局

  PART ONE GENERAL PROVISIONS

  Article 1 The Procedures are formulated in accordance with the PRC, Foreign Exchange Control Regulations and the relevant regulations of the State Council in order to improve administration of international commercial loans.

  Article 2 The term "international commercial loans" as used in the Procedures refers to loans, contractually obligated to be repayable in foreign currencies, taken out by organizations in China from financial institutions, enterprises, individuals or economic organizations outside the People's Republic of China (hereafter, the "PRC") and foreign-owned financial institutions inside the PRC.

  Export credit, international financing lease, compensation trade repayable in the form of foreign exchange, foreign exchange deposits of organizations and individuals outside of the PRC (excluding foreign exchange deposits in banks that have been granted approval to engage in offshore business), project financing, trade financing for over 90 days and foreign exchange loans in other forms shall be administered as international commercial loans.

  Article 3 The People's Bank of China is the examination and approval authority for the taking out of international commercial loans by organizations in China.

  The People's Bank of China authorizes the State Administration of Foreign Exchange (hereafter, the "SAFE") and its branch offices to take actual responsibility for the examination, approval, supervision and administration of the taking out of international commercial loans by organizations in China.

  Article 4 The taking out of international commercial loans by organizations in China shall be subject to approval by the SAFE. Without its approval, any international commercial loan agreements concluded with foreign entities shall not come into effect. The SAFE shall not administer foreign debt registration for the loans, nor shall banks open a special foreign debt account. No principal and interest of the loans shall be remitted abroad.

  Article 5 Organizations in China that are allowed to take out international commercial loans shall be restricted to:

  1. Chinese-funded financial institutions approved by the SAFE to engage in foreign exchange borrowing business;

  2. non-financial enterprise legal persons approved by authorities authorized by the State Council.

  Article 6 Taking out of international commercial loans by financial institutions shall be in line with the regulations of the People's Bank of China on administration of foreign exchange assets and liabilities ratio of financial institutions.

  Article 7 Non-financial enterprise legal persons taking out international commercial loans directly from foreign entities shall meet the following requirements:

  1. having gained profits successively for the past three years, having been granted permission for import and export business and being in a line of business that is encouraged by the State;

  2. applying a sound financial management system;

  3. the ratio between net assets and total assets of trade-orientated non-financial enterprise legal persons shall not be lower than 15%; the ratio between net assets and total assets of non-trade-orientated non-financial enterprise legal persons shall not be lower than 30%;

  4. the sum of international commercial loans taken out and the balance of guarantees provided to foreign entities shall not exceed 50% of its net assets equivalent in foreign exchange;

  5. the sum of the loans in foreign exchange and the balance of guarantees in foreign exchange provided to foreign entities shall not exceed the amount of foreign exchange it has generated in the previous year.

  Article 8 Organizations in China shall take out international commercial loans from foreign entities by virtue of their own credit standing and shall undertake repayment liability on its own.

  Article 9 Organizations in China shall strengthen their cost control in taking out international commercial loans from foreign entities. Their total loan cost shall not be higher than the total loan cost of the same period of borrowing organizations of the same grade of credit in the international financial market.

  The SAFE shall supervise and guide organizations in China for their cost control in taking out international commercial loans.

  Article 10 Organizations in China taking out international commercial loans shall submit to the SAFE statements on their loan situation in the previous quarter within the first ten days of each quarter, as well as annual report on the use of international commercial loans, in accordance with SAFE regulations.

  Article 11 The SAFE shall have the right to examine the raising, using and repaying of international commercial loans by organizations in China. The borrowing organizations shall co-operate and submit the necessary documents and information.

  Article 12 Without the SAFE's approval, organizations in China are not allowed to deposit abroad the international commercial loans they take out, to effect direct payment outside China or to convert them to Renminbi (hereafter, "Rmb") for use.

  PART TWO MEDIUM-TERM AND LONG-TERM INTERNATIONAL COMMERCIAL LOANS

  Article 13 The term "medium-term and long-term international commercial loans" as used in the Procedures refers to international commercial loans with terms of over one year, including usance letters of credit with terms of over one year.

  Article 14 Medium-term and long-term international commercial loans taken out by organizations in China shall be included in the State plan for using foreign funds.

  Article 15 Organizations in China taking out medium-term and long-term international commercial loans shall apply to the SAFE and submit all or part of the following information:

  1. documents evidencing that the loan has been included in the State plan for using foreign funds;

  2. certificate of approval relating to the establishment of the loan project;

  3. letters of intent on loan conditions, including the names of creditors, loan currencies and amounts, loan periods and grace periods, interest rates, expenses, intent of pre-payment and other financial terms;

  4. sources of funds for repayment, repayment schedules and details of foreign exchange guarantees;

  5. balance sheets and other financial statements in foreign exchange or Renminbi of the last three years verified by an accountant firm;

  6. other information that the SAFE considers necessary to be provided.

  In cases where branch offices of financial institutions need to take out medium-term or long-term international commercial loans from foreign entities, they shall provide, in addition to the information stipulated in the previous article, the relevant documents of authorization by their head offices.

  Article 16 National organizations located in Beijing taking out international commercial loans from foreign entities shall report directly to the SAFE for examination and approval. National organizations not located in Beijing and local organizations taking out loans from foreign entities shall first be examined by the local SAFE branches, which shall then report to the SAFE for examination and approval.

  Branch offices of national or local financial institutions may seek approval in accordance with the above procedures only if they have been authorized by their head offices.

  PART THREE SHORT-TERM INTERNATIONAL COMMERCIAL LOANS

  Article 17 The term "short-term international commercial loans" as used in the Procedures refers to international commercial loans with terms within one year (including those of one year), including interbank loans in foreign exchange, outward documentary bills, packing credit and usance letters of credit with terms of over 90 days and under 365 days and others.

  Article 18 Short-term international commercial loans are not allowed to be used for long-term project investment, loans for fixed assets or other improper uses.

  Article 19 The SAFE shall implement control of the outstanding balance of short-term international commercial loans taken out by organizations in China.

  Article 20 The controlled quota of the outstanding balance of short-term international commercial loans (hereafter, "short-term loan quota") shall be annually determined by the SAFE.

  The outstanding balance of short-term international commercial loans taken out by organizations in China must not exceed the approved quota.

  Article 21 The short-term loan quotas of national financial institutions and non-financial enterprise legal persons shall be notified by the SAFE after examination and determination.

  The short-term loan quotas of local financial institutions and non-financial enterprise legal persons shall be examined and approved by the local SAFE branches within the short-term loan quotas determined by the SAFE.

  Article 22 Chinese-funded financial institutions which have been approved by the SAFE to engage in international settlement business shall formulate procedures on administration of usance letters of credit and submit the same to the SAFE for approval.

  Chinese-funded financial institutions shall open usance letters of credit in accordance with the Procedures on administration of usance letters of credit approved by the SAFE.

  Usance letters of credit with terms of over 90 days and under 365 days opened by Chinese-funded financial institutions in favour of foreign entities shall not count towards their short-term loan quotas.

  Article 23 Usance letters of credit with terms of over 90 days and under 365 days applied for by non-financial enterprise legal persons to foreign-funded financial institutions within the PRC shall count towards their short-term quotas.

  Article 24 In applying to the SAFE for short-term quotas, organizations in China shall submit all or part of the following information:

  1. a written application (including contents such as the amount of the demand for funds, credit standing, purposes of the loan, etc.);

  2. balance sheets and statements of profit and loss of the previous year verified by an accountant firm;

  3. letter of intent for loan commitment issued by a credit institution;

  4. foreign exchange revenue and expenditures in the previous year;

  5. other information that the SAFE considers necessary to be provided.

  Article 25 Those short-term international commercial loans taken out by non-financial enterprise legal persons which are not subject to control of outstanding balance of short-term quota shall be reported to the SAFE for approval on a case-by-case basis, and shall count towards the local short-term loan quotas.

  PART FOUR PROJECT FINANCING

  Article 26 The term "project financing" as used in the Procedures refers to the financing method pursuant to which foreign exchange funds are raised outside China in the name of a construction project in China, and where the debt payment liability to the foreign entity is limited to the expected revenue from and the assets of the project itself. Such financing method shall have the following characteristics:

  1. The creditors have no recourse against assets or revenue other than those of the construction project;

  2. It is not necessary for organizations in China to effect any mortgage, pledge or debt payment with assets, rights, interests and revenue other than those of or in the construction project;

  3. It is not necessary for organizations in China to provide financing guarantees in any form.

  Article 27 The foreign financing scale of project financing shall be included in the State's guiding plan for the taking out and use of international commercial loans.

  Article 28 Conditions for project financing shall be competitive and subject to examination and approval or examination and verification by the SAFE. Conditions for project financing submitted by local authorities shall be subject to preliminary examination by the local branch of SAFE and subsequently be submitted to the SAFE for examination and approval or examination and verification.

  Article 29 When submitting the project financing conditions to the foreign exchange administration authorities for examination and approval or examination and verification, the project company is required to present the following documents:

  1. a written application, including method, amount and market of the project financing and financing conditions such as the term and interest rate of, and fees related to, the loan;

  2. the feasibility study report or other document approved by the State Planning Commission;

  3. a document to evidence that the project financing has been included in the State's guiding plan for the taking out and use of international commercial loans;

  4. the project financing agreement;

  5. documents related to the project financing that are in the nature of a guarantee; and

  6. other necessary documents.

  PART FIVE TAKING OUT OF INTERNATIONAL COMMERCIAL LOANS BY OVERSEAS BRANCH OFFICES OF ORGANIZATIONS IN CHINA

  Article 30 The term "overseas branch offices of Chinese-funded financial institutions" (hereafter, "overseas branches") as used in the Procedures refers to branch offices having a non-independent legal person status established abroad by Chinese-funded financial institutions in accordance with the local law.

  Article 31 Chinese-funded financial institutions shall decide the total amount of financing abroad of each of their overseas branches based on such indices as its operating capital, assets liabilities ratio and volume of business of the current year, and report the same to the SAFE for the record before the end of February every year. In cases where an overseas branch needs to take out an international commercial loan of the equivalent value of US$50,000,000 or over on a lump-sum basis, a report shall be submitted in advance by its head office to the SAFE for approval.

  Article 32 Funds financed abroad by an overseas branch shall be put under the control of the assets-liabilities ratio of its head office.

  Funds raised abroad by overseas branches shall be used only for developing business abroad, and are not allowed to be transferred for use within the PRC without approval from the SAFE.

  Article 33 Non-business establishments such as administrative or representative offices established abroad by Chinese-funded enterprises are not allowed to finance funds abroad.

  Article 34 Loans taken out from foreign entities by a branch or other business organization established abroad by a Chinese-funded enterprise in the name of and authorized by its head office (parent company) shall be regarded as loans take-out by the head office (parent company). The head office (parent company) shall carry out the necessary formalities of submitting reports for approval within the PRC in accordance with the relevant provisions hereof.

  PART SIX LEGAL LIABILITY

  Article 35 Where organizations in China take out international commercial loans without approval or carry out hedging business other than in accordance with Article 42 of the Procedures, the SAFE will give them a warning, circulate a notice of criticism and impose on them a fine of Rmb 100,000 or thereabove to Rmb 500,000 or thereunder. Where a criminal offence is constituted, criminal liability shall be pursued in accordance with the law.

  Article 36 Where organizations in China deposit abroad the international commercial loans they take out or effect direct payment abroad without approval, or convert the international commercial loans they take out into Renminbi without approval, the SAFE will order them to rectify the matter, give them a warning, circulate a notice of criticism and impose on them a Renminbi fine of 30% or thereabove to fivefold or thereunder of the amount involved in the violation. Where a criminal offence is constituted, criminal liability shall be pursued in accordance with the law.

  Article 37 Where overseas branches of organizations in China finance funds abroad without approval, violating the provisions of Article 31, 33 or 34 of the Procedures, the SAFE will give the organizations in China a warning, circulate a notice of criticism and impose on them a fine of Rmb 100,000 or thereabove to Rmb 500,000 or thereunder.

  Article 38 Where overseas branches of Chinese-funded financial institutions in China transfer the funds they take out abroad for domestic use without approval, violating the provisions of Article 32 of the Procedures, the SAFE will order them to rectify the matter and give the Chinese-funded financial institutions in China a warning, circulate a notice of criticism and impose on them a fine of Rmb 100,000 or thereabove to Rmb 500,000 or thereunder.

  Article 39 Where organizations in China submit to the SAFE false or invalid documents and information with the intention of obtaining SAFE approval by cheating, the SAFE will recover the approval document and impose penalty on them in accordance with the provisions of Article 35. Where a criminal offence is constituted, criminal liability shall be pursued.

  Article 40 Where organizations in China fail to submit statements and information in accordance with the provisions of the Procedures, or refuse to accept and co-operate with the SAFE's examination, the SAFE will give them a warning, circulate a notice of criticism, and impose on them a fine of Rmb 10,000 or thereabove to Rmb 30,000 or thereunder.

  PART SEVEN SUPPLEMENTARY

  Article 41 After an organization in China has entered into an international commercial loan agreement, it shall carry out foreign debt registration with the SAFE in accordance with regulations on statistical monitoring of foreign debt, as well as formalities of repayment in accordance with the relevant regulations.

  Article 42 Organizations in China taking out loans from foreign entities shall follow the principles stated below and act properly to guard against foreign debt risk in accordance with the changes of exchange rates and interest rates in the international market and provided that the scale of foreign debt is not expanded and the terms of the foreign loans are not extended:

  1. Borrowing at low rates but repaying at high rates shall be reported to the SAFE for examination and approval;

  2. Chinese-funded financial institutions which have been approved to deal in foreign exchange for themselves or for their clients may carry out hedging business of international commercial loans for their own debts or agree to be entrusted by other organizations in China to do the same;

  3. Where other Chinese-funded organizations entrust financial institutions outside China or foreign-funded financial institutions in China to hedge the international commercial loans they have taken out, approval from the SAFE shall be obtained;

  4. Enterprises with foreign investment may entrust by themselves financial institutions outside China or foreign-funded financial institutions in China to carry out hedging business for their international commercial loans.

  Article 43 After organizations in China having hedged their international commercial loans, they shall carry out the formalities for changing registration of foreign debt in accordance with regulations on statistical monitoring of foreign debt.

  Article 44 Regulations on administration of foreign exchange accounts shall be applicable to the administration of accounts relating to the taking out of international commercial loans.

  Article 45 The Procedures are applicable to the taking out of foreign exchange loans by organizations in China from overseas branches of Chinese-funded financial institutions.

  Article 46 The Procedures are applicable to aircraft finance leasing and effecting advance payment of aircraft finance leasing by taking out international commercial loans.

  Article 47 Provisions on the administration of project financing in the Procedures are applicable to assignment by organizations in China to assignees abroad of the operation right or usufruct of completed project at a fixed cost.

  Article 48 Provisions on the administration of overseas branches in the Procedures shall be implemented in the taking out of international commercial loans by Chinese-funded banks in the course of offshore business.

  Article 49 Foreign exchange loans taken out by organizations in China from offshore business departments of Chinese-funded banks shall be administered as international commercial loans.

  Article 50 The provisions of Articles 1, 2, 3, 8, 9, 10, 11, 12, 13, 17, 18, 35, 36, 37, 39, 40,41, 42(4), 43, 44, 45, 46, 47, 49, 51, 52 and those of Part 4 hereof are applicable to enterprises with foreign investment. Other articles are not applicable to such enterprises.

  Article 51 The SAFE shall be responsible for the interpretation of the Procedures.

  Article 52 The Procedures shall come into effect as of 1 January 1998. The Administration of Borrowing of International Commercial Loans by Domestic Organizations Procedures approved by the People's Bank of China and promulgated by the SAFE on 26 September 1991, the Relevant Matters Concerning Project Financing Carried Out by Organizations in China Circular promulgated by the People's Bank of China on 14 July 1995, the Administration of Financing Outside China by Overseas Branches of Banks with Chinese Capital Operating Foreign Exchange Business Provisions promulgated by the SAFE on 17 April 1996 and the Strengthening Administration of Financing by Overseas Establishments of Chinese-funded Enterprises Circular promulgated by the SAFE on 16 January 1997 shall be repealed simultaneously.

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