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境内及境外证券经营机构从事外资股业务资格管理暂行规定 Administration of Qualifications of Domestic and Foreign Securities Trading Institutions for Engagement in Foreign Investment Shares Business Tentative Provisions

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证监[1996]5号
(Promulgated by the China Securities Regulatory Commission on 15 November 1996 and effective as of 1 December 1996.)
颁布日期:19961023  实施日期:19961201  颁布单位:证监会

  PART ONE GENERAL PROVISIONS

  Article 1 These Provisions are formulated with a view to standardizing the engagement in foreign investment shares activities by domestic and foreign securities trading institutions, and to protect the legal rights and interests of investors, in accordance with the relevant laws and regulations of the State.

  Article 2 Domestic and foreign securities trading institutions engaging in the trading of foreign investment shares shall, in accordance with these Provisions, obtain a Qualification Certificate for Engagement in Foreign Investment Shares Business (hereafter, qualification certificate) issued by the China Securities Regulatory Commission (hereafter, Securities Regulatory Commission)。

  The term “foreign investment shares” as mentioned in the above clauses shall refer to foreign investment shares listed both inside and outside China.

  Article 3 The term “domestic securities trading institutions' in these Provisions shall refer to securities companies and trust and investment companies which are independent legal persons registered inside China, and who are approved by the authority in charge of examination and approval of business establishment to conduct securities business in accordance with the law.

  The term “specialized securities trading institutions” in these Provisions shall refer to securities companies as specified in the above clause. The term “general securities trading institutions” shall refer to trust and investment companies as specified in the above clause.

  Article 4 The term “foreign securities trading institutions” in these Provisions shall refer to investment banks, securities companies and other financial institutions which are independent legal persons registered outside China, who may engage in securities business in accordance with that laws of the place in which It is located.

  PART TWO REQUIREMENTS FOR QUALIFICATION TO ENGAGE IN THE TRADING OF FOREIGN INVESTMENT SHARES

  Article 5 Where a domestic securities trading institution wishes to apply for the right to engage in the trading of foreign investment shares management business, it shall fulfil the following conditions:

  1. A specialized securities trading institution shall have net assets of not less than Rmb 50,000,000. A general securities trading institution shall have a working capital of not less than Rmb 50,000,000;

  2. The State Administration of Foreign Exchange has already granted it the right to engage in the trading of foreign exchange;

  3. It has technical means such as communication facilities, a place of operation and equipment, which is necessary to guarantee the normal operations of any foreign-related businesses;

  4. It employs more than five professional staff who are able to handle trading of foreign securities;

  5. It has complied with the laws and regulations of the State, and has not been given penalties such as nullification of its qualification certificate over the past two years;

  6. Where the institution is a general securities trading institution, its securities business and other business shall be run separately, and a separate ledger shall be kept for each; and

  7. Other conditions as specified by the Securities Regulatory Commission.

  Article 6 A foreign securities trading institution that acts as broker for foreign investment shares listed inside China shall execute an agency agreement with a domestic securities trading institution, or shall apply in accordance with other methods as stipulated by the securities exchange, and shall fulfil the following conditions:

  1. It is granted the right to engage in brokerage in accordance with the laws of the place where it is located;

  2. It is effectively monitored by the securities regulatory department of the host country;

  3. It has net assets equivalent to more than Rmb 50,000,000 or a corresponding guarantee issued by an institution which may issue guarantees in accordance with foreign laws and which is recognized by the Securities Regulatory Commission;

  4. It has more than two years' experience in the trading of international securities;

  5. The state of its financial affairs of the past two years meets the required targets of risk control as stipulated by the [securities] control department of the place in which it is located;

  6. It has access to a vast trading network;

  7. Its managing director and other senior management staff have more than five years of experience in securities trading and have a good professional reputation;

  8. It has not seriously breached any relevant laws and regulations as to cause a securities control department outside China to impose a penalty on it within the last two years;

  9. It complies with the relevant laws and regulations of the People's Republic of China;

  10. It employ more than two professional staff who are well-versed in the China securities market and its relevant policies and laws; and

  11. Other conditions required by the Securities Regulatory Commission.

  Article 7 A domestic securities trading institutions that applies to engage in the underwriting of foreign investment shares shall fulfil the following conditions:

  1. Where the institution is a specialized securities trading institution, it shall have net assets of not less than Rmb 80,000,000. A general securities trading institution shall have a working capital for securities business of not less than Rmb 80,000,000;

  2. It has already obtained the qualification to underwrite shares in accordance with the Administration of Share Distribution by Securities Firms Procedures;

  3. It is approved and granted the right to engage in foreign exchange business by the State department in charge of the administration of foreign exchange;

  4. It has technical means such as communication facilities, a place of operation and equipment which is necessary to guarantee the normal operations of any foreign-related business;

  5. It employs more than 10 professional staff who are well-experienced in securities underwriting of which at least one member shall be proficient and a specialist in international finance, accounting and the relevant laws;

  6. It shall have more than one year's experience in securities underwriting, or have actually engaged in the underwriting of shares more than once; and

  7. Other conditions required by the Securities Regulatory Commission.

  Article 8 A domestic securities trading institutions that applies to be chief underwriter or a domestic co-ordinator of foreign investment shares shall fulfil the following conditions in addition to fulfilling the conditions specified in Article 7:

  1. A specialized securities trading institution shall have net assets of no less than Rmb 120,000,000. A general securities trading institution shall have a working capital for securities business of not less than Rmb 120,000,000;

  2. It has already obtained the qualification of chief underwriter in accordance with the Administration of Share Distribution by Securities Firms Procedures;

  3. It employs more than 20 professional staff specializing in securities underwriting of which at least two professional staff shall be well-versed and specialist in international finance, accounting and the relevant laws;

  4. It is experienced in underwriting foreign investment shares; and

  5. Other conditions required by the Securities Regulatory Commission.

  Article 9 A foreign securities trading institution that becomes chief or associate underwriter and an international co-ordinator of foreign investment shares listed inside China shall fulfil the following conditions in addition to fulfilling the conditions specified in Article 7 of these Provisions:

  1. It may engage in the underwriting of shares in accordance with the laws of the place in which it is located;

  2. It has net assets equivalent to more than Rmb 120,000,000 or, a guarantee issued by an institution that may provide guarantees in accordance with foreign laws and which is recognized by the Securities Regulatory Commission;

  3. Two years previous to the application, the foreign securities trading institution concerned has continuously been in operation without suspending at any one time its securities underwriting business in the international market;

  4. It employs more than three professional staff who are well-versed in the China securities market and its relevant policies and laws; and

  5. Other conditions required by the Securities Regulatory Commission.

  Article 10 Where a foreign securities trading institution becomes chief underwriter of foreign investment shares listed outside China, it may appoint a domestic securities trading institution to act as its co-ordinator inside China.

  PART THREE APPLICATION FOR AND MAINTENANCE OF QUALIFICATION

  Article 11 Where a domestic securities trading institution applies to obtain a qualification certificate it must submit the following documents to the Securities Regulatory Commission:

  1. The Qualification for Engagement in the Trading of Foreign Investment Shares Business Application Form printed under the central authority of the Securities Regulatory Commission;

  2. The Financial Institution Business Licence (copy) issued by the authority in charge of examination and approval of business establishment and the Foreign Exchange Business Permit (copy) issued by the department in charge of the administration of foreign exchange;

  3. An Enterprise Legal Person Business Licence (copy) issued by the administrative department in charge of industry and commerce;

  4. The articles of association examined and approved by the authority in charge of examination and approval of business establishment;

  5. A statement of assets and liabilities, profit and loss statement and financial statements of the previous two years already audited by an accounting firm which is qualified for securities trading business;

  6. The Qualification for Engagement in Securities Trading Business Certificate or resume, or professional certificates of its legal representative, chief responsible person and the key brokers;

  7. A statement stating clearly its business concerns of the previous two years in respect of securities trading; and

  8. Other documents required by the Securities Regulatory Commission.

  Article 12 Where a foreign securities trading institution applies for a qualification certificate it must submit the following documents to the Securities Regulatory Commission:

  1. The Qualification for Engagement in the Trading of Foreign Investment Shares Business Application Form printed under the central authority of the Securities Regulatory Commission;

  2. The business licence issued by the securities control department of the place where it is located;

  3. The company articles of association;

  4. The resumes, brokerage certificates and other relevant professional certificates of senior management staff and the key brokers;

  5. A capital certificate provided by a registered accountant;

  6. A financial report of the previous two years already audited by a registered accountant;

  7. An overview of its underwriting business of the previous two years;

  8. A statement stating clearly its past experience in the trading of China securities; and

  9. Other documents required by the Securities Regulatory Commission.

  The Securities Regulatory Commission may, in the light of the actual circumstances, request a foreign securities trading institution to provide any documents issued by the securities control department from the place where it is located.

  Article 13 The Securities Regulatory Commission shall, following receipt of the complete set of documents for application, commence to examine such documents in accordance with these Provisions. Where the requirements are met following examination, the Securities Regulatory Commission will issue a qualification certificate. Where the requirements are not met following examination, no qualification certificate will be issued, and no further application from such institution shall be processed within half a year.

  Article 14 The qualification certificate shall become effective from the date of issue of such certificate by the Securities Regulatory Commission and will expire automatically two years from that date. Where a securities trading institution wish to maintain its qualification to trade foreign investment shares it shall, three months prior to the expiry of the qualification certificate, make an application with and submit to the Securities Regulatory Commission its financial statements for the previous two years, a statement clearly stating its business development and other documents required by the Securities Regulatory Commission. The Securities Regulatory Commission may issue a new qualification certificate to replace the old certificate following examination.

  Article 15 Domestic and foreign securities trading institutions having obtained a qualification certificate shall engage only in the business which is specified in the qualification certificate. Institutions which have not yet obtained a qualification certificate or whose qualification certificate is already invalid, shall not engage in the trading of foreign investment shares as specified in these Provisions.

  Article 16 Domestic and foreign securities trading institutions which obtain a qualification certificate shall submit to the Securities Regulatory Commission a report, each year before 31 January, on their underwriting of foreign investment shares and brokerage business of the previous year.

  Foreign securities trading institutions which underwrite foreign investment shares listed outside China shall, within 30 days following the completion of each underwriting, submit a business report to the Securities Regulatory Commission.

  Article 17 Domestic and foreign securities trading institutions which engage in the trading of foreign investment shares, shall keep the original vouchers, transaction records, relevant business documents, materials, ledgers, statements and other necessary materials in safe custody for at least seven years.

  Article 18 The Securities Regulatory Commission may undertake examinations at regular or irregular intervals on domestic and foreign securities trading institutions with respect to their trading of foreign investment shares. The Securities Regulatory Commission may also request domestic and foreign securities trading institutions to submit relevant business materials where necessary.

  PART FOUR PENALTY PROVISIONS

  Article 19 Where a domestic or a foreign securities trading institution engages in any of the following activities, the institution may be penalized on a single case or collectively with reference to other cases. Penalties such as confiscation of illegal income, fines, suspension from trading in foreign investment shares business from half a year to one year, or nullification of its qualification certificate shall be imposed, in accordance with the severity of the circumstances. The amount of a fine to be imposed shall be decided in accordance with the Administration of Share Distribution by Securities Firms Procedures:

  1. Obtaining a qualification certificate by deceit or other improper means;

  2. Engagement in the trading of foreign investment shares business openly or incognito either without, or after the expiry of, a qualification certificate;

  3. Failure to submit reports on the trading of foreign investment shares business in accordance with provisions;

  4. Refusal to accept investigation by or refusal to co-operate with the Securities Regulatory Commission during investigation; and

  5. Perpetration of any acts which are in breach of the relevant State laws and these Provisions.

  PART FIVE SUPPLEMENTARY PROVISIONS

  Article 20 Domestic securities trading institutions engaging in the underwriting of foreign investment shares shall, in addition to complying with these Provisions, also comply with the relevant provisions of the Administration of Share Distribution by Securities Firms Procedures.

  Article 21 The power of interpretation of these Provisions is vested with the Securities Regulatory Commission.

  Article 22 These Provisions shall become effective as of 1 December 1996.

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