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非银行金融机构外汇业务管理规定(二)

2006-05-17 13:33   我要纠错 | 打印 | 收藏 | | |

  PART FIVE : MANAGEMENT OF FOREIGN EXCHANGE BUSINESS

  Article 32 Non-banking financial institutions engaging in foreign exchange business shall implement the principles of carrying out autonomous operation, assuming sole responsibility for their own profits and losses, bearing their own risks, seeking their own balance, guaranteeing payment and achieving good circulation. Except where they carry out trust loans or investment at the request of trustors, no individuals may violate operational principles by accepting instructions from other departments or individuals to carry out foreign exchange financing of a specific project.

  Article 33 Non-banking financial institutions shall keep separate accounts and separately calculate profits and losses for their foreign exchange business.

  Article 34 Non-banking financial institutions shall formulate appropriate business rules, regulations and measures, in accordance with these Provisions, other relevant regulations and their approved business scope, and submit them to the SAEC for the record.

  Article 35 When non-banking financial institution handle foreign exchange trust business they shall establish specialized organizations. Separate accounts must to kept for the sources and application of the trust capital of such specialized organizations and their profits and losses shall be calculated separately. When preparing statements they must prepare balance sheets and profit and loss statements for their foreign exchange trust business. The balance sheets and profit and losses statements for foreign exchange trust business may be included in their consolidated statements.

  Article 36 When handling foreign exchange trust business a non-banking financial institutions shall conclude a contract with the trustor which specifies such items as the trust capital's purpose, management, term, interest rate, rate of charges, rights and obligations, and liability for risks. If a non-banking financial institution obtains a trustor's deposit without concluding a contract with the trustor, it shall be deemed to have obtained an ordinary deposit, and shall be treated as having engaged in foreign exchange business exceeding its scope of business.

  Article 37 When handling foreign currency share capital investment, non-banking financial institutions shall reduce their own foreign exchange funds according to the balance of investment. However, if a non-banking financial institution's office equipment and real property for its own use purchased with foreign exchange funds do not exceed 25 per cent of its own foreign exchange funds, it shall not be required to reduce its own foreign exchange funds.

  Article 38 Non-banking financial institutions may independently establish agent non-banking financial institution relations with financial institutions in and outside the PRC.

  Article 39 Non-banking financial institutions may open foreign currency accounts with wholly Chinese-owned financial institutions within the PRC as needed.

  Article 40 Non-banking financial institutions may, due to business requirements and following approval by the SAEC, open foreign currency accounts with financial institutions outside the PRC.

  Article 41 When applying for approval to open a foreign currency accounts outside the PRC, a non-banking financial institution shall submit the following documents and information to the SAEC:

  1. a written application for approval to open the account (including such items as the name of the bank with which the account is to be opened, the place where such bank is located, the credit worthiness of such bank, the currency and nature of the account and the scope and term of use of the account);

  2. a document evidencing the purpose of the account;

  3. a report on the development of the foreign exchange business involved in the account outside the PRC; and

  4. any other documents and information required by the SAEC.

  Article 42 The scope of use of foreign currency accounts opened with financial institutions outside the PRC by non-banking financial institutions shall be limited to:

  1. temporary deposit outside the PRC of proceeds from the issuance of bonds and taking out of loans outside the PRC;

  2. temporary deposit outside the PRC of debt payment funds prior to paying foreign debts;

  3. inter-bank outside the PRC;

  4. handling purchase and sale of foreign exchange and valuable securities denominated in foreign currency on its own account or on behalf of clients; and

  5. any other purposes specified by the SAEC.

  Article 43 Accounts opened outside the PRC by non-banking financial institutions must be used within the scope and term of use examined and approved by the SAEC. Details of the payments into and out of accounts opened outside the PRC shall be reflected in account books kept within the PRC.

  Foreign currency accounts opened by non-banking financial institutions with wholly foreign-owned or Sino-foreign equity joint venture financial organizations inside the PRC shall be deemed to be foreign currency accounts opened with financial organizations outside the PRC.

  If a non-banking financial institution violates regulations in opening or using foreign currency accounts outside the PRC, the SAEC may issue a warning, circulate a notice of criticism, order suspension of use or closure of the foreign currency account opened outside the PRC and transfer of the foreign exchange funds back into the PRC within a time limit, or suspend such non-banking financial institution's foreign exchange business for three to six months. In addition, the SAEC may impose a fine of Rmb 10,000 to 50,000. If exchange control is wilfully evaded through accounts opened outside the PRC or if such accounts are not used in accordance with the regulations, causing loss of funds, the liability of the parties concerned shall be pursued as well.

  Article 44 The SAEC shall be responsible for administration of the foreign exchange interbank loan market, for administration and supervision of the depositing of foreign exchange deposit reserves by non-banking financial institutions in accordance with regulations, for administration and supervision of foreign exchange deposit and loan interest rates of non-banking financial institutions, and for prescribing and adjusting the maximum amounts or rates of the commissions charged by non-banking financial institutions for their various kinds of foreign exchange business.

  Article 45 In handling business such as trading or non-trading settlement and conversion between Renminbi and foreign exchange, the foreign exchange earned by non-banking financial institutions which belongs to the State shall be turned over in accordance with the relevant regulations and the foreign exchange required by non-banking financial institutions shall be obtained in accordance with the relevant regulations.

  If a non-banking financial institution violates the provisions of the preceding paragraph, the SAEC may, in addition to ordering it to make up the foreign exchange deficiency within a time limit, issue a warning, circulating a notice of criticism and impose a fine of Rmb 10,000 to 50,000.

  Article 46 The SAEC shall administer the foreign exchange debt-equity ratio of non-banking financial institutions.

  Article 47 The foreign exchange assets to liabilities ratio of non-banking financial institutions shall include:

  1. the ratio of self-owned foreign exchange funds (including: paid-up foreign exchange capital, foreign exchange reserve and undistributed foreign exchange profits) to total foreign exchange risk assets;

  2. the maximum multiple of self-owned foreign exchange capital constituted by the sum of foreign exchange liabilities and foreign exchange guarantees;

  3. the minimum ratio of foreign exchange liquid assets to foreign exchange liquid liabilities;

  4. the minimum ratio of foreign exchange liquid assets to total foreign exchange assets;

  5. the minimum ratio of the sum of foreign exchange funds used for domestic and foreign interbank deposits and loans cashable within three months, monies used for the purchase of negotiable valuable securities denominated in foreign currency, foreign exchange funds deposited with the central bank and cash foreign currency to total foreign exchange assets;

  6. the maximum ratio of the sum of the foreign exchange loans to, investments in, guarantees on behalf of (converted at the rate of 50 per cent of the amounts outstanding under the guarantees), one legal person unit to the self-owned foreign exchange funds of the non-banking financial institution;

  7. the maximum ratio of foreign exchange investment (with the exception of trust investment);

  8. the maximum ratio of the sum of the foreign exchange loans to, investments in, leases to and guarantees on behalf of (converted at the rate of 50 per cent of the amounts outstanding under the guarantees), any shareholding unit to the foreign exchange shares in the non-banking financial institution held by the shareholding unit;

  9. the maximum ratio of the net foreign exchange funds deposited with and lent to a domestic financial institution to the non-banking financial institution's self-owned foreign exchange funds;

  10. the maximum ratio of the net foreign exchange funds deposited with and lent to a financial institution outside the PRC or a wholly foreign-owned or Sino-foreign equity joint venture financial institution within the PRC to the non-banking financial institution's self-owned foreign exchange funds;

  11. the maximum ratio of monies in valuable securities denominated in foreign currency to total foreign exchange assets;

  12. the maximum ratio of foreign exchange financing of real property to total foreign exchange assets; and

  13. any other ratios determined by the SAEC.

  The actual level of the foreign exchange assets to liabilities ratio shall be determined and adjusted by the SAEC according to need. The SAEC may determine a special or temporary foreign exchange assets to liabilities ratio of individual non-banking financial institutions or different types of non-banking financial institutions on the basis of a non-banking financial institution's foreign exchange assets and liabilities situation.

  Article 48 Non-banking financial institutions must strictly implement all regulations concerning the foreign exchange assets to liabilities ratios. If a non-banking financial institution violates such regulations, the SAEC may, in addition to ordering the adjustment of its foreign exchange assets to liabilities ratio within a time limit, punish it by issuing a warning, circulating a notice of criticism, or suspending or restricting its engagement in relevant foreign exchange business, and may also impose a Rmb 10,000 to 50,000 fine.

  Article 49 If the SAEC considers it necessary, it may require non-banking financial institutions, when they handle certain foreign exchange business, to apply for approval on a sum-by-sum basis, or to give prior notice or to report for the record following such business. If a non-banking financial institution does not handle such business in accordance with such requirement, the SAEC may, in addition to ordering it to return the full amount of or to recover the foreign exchange funds concerned, punish it by issuing a warning, circulating a notice of criticism and suspending its engagement in relevant foreign exchange business, and may impose a fine of Rmb 10,000 to 50,000.

  Foreign exchange business requiring application for approval on a sum-by-sum basis, prior notification or reporting for the record afterward, shall be determined and adjusted by the SAEC.

  Article 50 Non-banking financial institutions shall establish sound foreign exchange financial and accounting systems, and implement a system of separate foreign currency ledgers in accordance with the accrual basis of accounting and the debit-credit method of bookkeeping.

  Article 51 Non-banking financial institutions shall truthfully calculate foreign exchange profits and losses. They may not include interest on overdue loans, gains from leases, etc., in their foreign exchange revenue, nor may they include interest on overdue loans, earnings from leases, etc., in the principal and include the corresponding sums in their foreign exchange revenue.

  Article 52 Non-banking financial institutions must submit financial reports, and statistical statements on their foreign exchange business, and warrant the completeness, accuracy and authenticity of such reports and statistics.

  Article 53 Types of report shall include:

  1. financial statements;

  (1) foreign exchange balance sheets (quarterly reports) drawn up by combining the balance sheets for each foreign currency with each foreign currency converted to US Dollars;

  (2) balance sheets (annual reports) drawn up by combining the foreign exchange assets and liabilities converted to the standard currency with standard currency assets and liabilities;

  (3) foreign exchange profit and loss statements (quarterly reports) drawn up by combining the profit and loss statements for each foreign currency with the profits and losses in each foreign currency converted to US Dollars; and

  (4) profit and loss statements (annual reports) drawn up by combining foreign exchange profits and losses converted to the standard currency with standard currency profits and losses.

  2. statistical statements on foreign exchange business

  Statistical statements on foreign exchange business shall be divided into semi-annual, quarterly and monthly statements.

  The specific formats of the various statements shall be determined by the SAEC.

  Article 54 The foreign exchange assets and liabilities and foreign exchange business profit and loss situation of wholly-owned subsidiaries established outside the PRC by non-banking financial institutions shall be reflected in their foreign exchange business statements.

  Article 55 Annual, semi-annual and quarterly statements shall be submitted prior to the end of the first month after the end of every year, semester and quarter. Monthly statements shall be submitted within the first 10 days of the following month. Annual foreign exchange balance sheets and profit and loss statements examined, signed and sealed by a registered accountant shall be submitted prior to the end of the first quarter of the following year.

  Article 56 The SAEC may, according to need, increase or decrease the types and adjust the contents of financial statements and statistical statements.

  Article 57 Non-banking financial institutions shall use the following exchange rates in drawing up statements:

  1. conversions between foreign currencies shall be effected according to the unified conversion rates announced by the SAEC on the date of the statement; or

  2. conversions between Renminbi and US Dollars shall be effected according to the median rate of the conversion rates announced by the SAEC on the date of the statement.

  Article 58 If a non-banking financial institution fails to submit statements in accordance with the regulations, the SAEC may impose penalties in accordance with circumstances. A warning shall be issued if within one year one statement is not submitted on schedule. If within one year statements are twice not submitted on schedule, a notice of criticism shall be circulated and a fine of Rmb 1,000 per day overdue imposed. If within one year statements are three times not submitted on schedule, the non-banking financial institution's foreign exchange business shall be suspended for six months. If reports are not filled out as required or are incomplete, a warning shall be issued and a fine of Rmb 5,000 imposed. If accounts are wilfully falsified or not kept, leading to statements being false or containing major omissions, a notice of criticism shall be circulated, the non-banking financial institution's foreign exchange business shall be suspended for six months to one year, and a fine of Rmb 50,000 to 100,000 shall be imposed.

  PART SEVEN INSPECTION AND EVALUATION OF FOREIGN EXCHANGE BUSINESS

  Article 59 The SAEC may conduct itself, or designate a firm of accountants to conduct, a comprehensive or selective investigation of the foreign exchange business of a non-banking financial institution. The non-banking financial institution under investigation shall accept and co-operate with such investigation.

  Article 60 The SAEC shall carry out comprehensive investigation of a non-banking financial institution at least once every three years. The content and date of such investigation shall be determined by the SAEC.

  The SAEC shall notify a national non-banking financial institution 30 days in advance of a comprehensive investigation of such non-banking financial institution.

  When giving a non-banking financial institution notice of a comprehensive investigation, the SAEC shall simultaneously furnish such non-banking financial institution with an investigation form and a list of the information required. Non-banking financial institutions must return the completed form and list of information to the SAEC within 15 days of the date of receiving the notice.

  Upon the conclusion of an investigation, the investigation report compiled by the SAEC or firm of accountants shall be delivered to the board of directors of the non-banking financial institution investigated and the relevant financial administration department.

  Article 61 The SAEC may carry out selective investigation of the foreign exchange business of non-banking financial institutions at any time, according to need. The content of such investigation shall be determined by the SAEC.

  Prior notice of selective investigation may or may not be given.

  The SAEC may require relevant materials from non-banking financial institutions under investigation, as required for the investigation.

  Upon the conclusion of an investigation, the investigation, the investigation report compiled by the SAEC shall be delivered to the board of directors of the non-banking financial institution investigated and the relevant financial administration department.

  Article 62 If a non-banking financial institution under investigation fails to co-operate with the investigation and to furnish information as required, the SAEC may punish it by issuing a warning, circulating a notice of criticism and suspending its foreign exchange business for three to six months, and may also impose a fine of Rmb 5,000.

  Article 63 The SAEC shall periodically evaluate the foreign exchange business of non-banking financial institutions.

  Article 64 The contents of periodic evaluation of the foreign exchange business of non-banking financial institutions shall include:

  1. the quality of foreign exchange assets;

  2. the foreign exchange capital;

  3. the structure and liquidity of foreign exchange assets;

  4. the gains from foreign exchange business;

  5. the ability to operate and manage foreign exchange business; and

  6. the implementation of policies, laws and regulations.

  Article 65 The SAEC shall evaluate the foreign exchange business of a non-banking financial institution once every two years. Specific assessment norms, calculation methods, information to be provided for evaluation and dates of evaluation shall be determined by the SAEC. When the SAEC considers if necessary, it may decide to conduct an interim evaluation of a non-banking financial institution's foreign exchange business.

  Article 66 Upon the conclusion of an evaluation, the SAEC shall deliver the conclusions from the evaluation to the non-banking financial institution evaluated and the non-banking financial institution's departments in charge and board of directors.

  The SAEC shall not publicly announce the conclusions from an evaluation or furnish the same to other departments. Non-banking financial institutions evaluated may not, without the approval of the SAEC, publicly announce the conclusions from their evaluation or furnish the same to other departments.

  Article 67 If a non-banking financial institution to be evaluated does not co-operate with the SAEC's evaluation, thereby making evaluation impossible, the SAEC may punish it by circulating a notice of criticism or suspending part or all of its foreign exchange business for three months.

  Article 68 If the SAEC through investigation, supervision and evaluation discovers problems in the operation and management of a non-banking financial institution's foreign exchange business, it may impose penalties in accordance with the circumstances:

  1. if operation and management are poor, time limits are exceeded comparatively often, or the structure of funds is irrational, adjustment of the structure of foreign exchange assets within a time limit shall be ordered and the development of the non-banking financial institution's relevant foreign exchange business may be restricted.

  2. if time limits are exceeded excessively often and losses have been incurred, such problems shall be rectified within a time limit and part or all of the non-banking financial institution's foreign exchange business suspended; or

  3. if losses from foreign exchange business are so serious as to cause insolvency, the non-banking financial institution's foreign exchange business shall be terminated.

  PART EIGHT SUPPLEMENTARY

  Article 69 The SAEC may formulate specific measures for administration of the foreign exchange business of non-banking financial institutions. The SAEC may formulate supplementary regulations for matters not covered herein, which shall be implemented following submission to and approval by the People's Bank of China.

  Article 70 A non-banking financial institution that is dissatisfied with a penalty imposed by the SAEC pursuant to these Provisions may apply for reconsideration to the authorities one level higher than those that imposed such penalty. If a non-banking financial institution is dissatisfied with the decision made upon reconsideration, it may institute an action in a People's Court.

  Article 71 These Provisions are promulgated on 1 January 1993 and shall be effective as of 1 July 1993. The SAEC shall be responsible for interpretation of these Provisions. The Non-Bank Financial Institutions Foreign Exchange Control Procedures promulgated on 1 October 1987 shall be repealed on the date on which these Provisions are effective.

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