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证券投资基金行业高级管理人员任职管理办法 Order of China Securities Regulatory Commission

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中国证券监督管理委员会令第23号

颁布日期:20040922  实施日期:20041001  颁布单位:中国证券监督管理委员会

  No. 23

  The Measures for the Administration of Post-holding of Senior Managers of Securities Investment Fund Industry, adopted at the 98th executive meeting of the chairman of China Securities Regulatory Commission on June 29, 2004, are hereby promulgated and shall come into force as of October 1, 2004.

  Chairman, Shang Fulin

  September 22, 2004

  Measures for the Administration of Post-holding of Senior Managers of Securities Investment Fund Industry

  Chapter I General Provisions

  Article 1 With the view of standardizing the administration of post-holding of senior managers in the securities investment fund industry and protecting the legitimate rights and interests of the investors and other related parties and the public benefits, the present Measures are formulated in accordance with the Law on Securities Investment Funds, the Company Law and other relevant laws and administrative regulations.

  Article 2 Senior managers in the securities investment fund industry (hereinafter referred to as “senior mangers”) as referred to herein mean the chairman of the board of directors, general managers, deputy general managers, chairmen of the supervisory committees and other personnel actually performing the duties of such posts in securities investment fund management companies, and the general managers, deputy general managers and other personnel actually performing the duties of such posts in the fund trusteeship departments of fund trusteeship banks.

  Article 3 The selection and appointment and the change of posts of senior managers shall be subject to the examination and approval of China Securities Regulatory Commission (hereinafter referred to as the “CSRC”)。

  Without approval of the CSRC, no fund management company or fund trusteeship bank may select and appoint or change the post of any senior manager or determine any person to perform the duty as a senior manager by violating the relevant provisions.

  Article 4 Every senior manager shall observe laws, administrative regulations and provisions of the CSRC, comply with the relevant articles of association and the industrial standards, scrupulously abide by good faith, keep prudent and diligent in his work, faithfully perform his duties, and safeguard the legitimate rights and interests of fund unit holders.

  Article 5 The CSRC shall conduct supervision and control over the senior managers according to law and formulate specific provisions on the administration of senior managers, directors and fund managers.

  The appointment and removal of any director and fund manager of a fund management company shall be reported to the CSRC.

  Chapter II Qualification for Holding a Post of a Senior Manager and the Procedures of Examination and Approval

  Article 6 To apply for qualification for holding the post of a senior manager, one must meet the following requirements:

  (1) being qualified for practice in the fund management industry;

  (2) having passed the examination on knowledge of laws concerning securities investment for senior managers as organized by the CSRC or any agency authorized by it;

  (3) having experienced in finance-related fields such as fund management, securities and banking for three years or more and experienced in management on the corresponding post that he is to hold ; and in the case of a chairman of a supervisory commission, having experienced in the fields of law, accounting, supervision and audit in addition;

  (4) being not involved in any circumstance that would prevent one from being a director, supervisor, manager or person qualified for practice in the fund management industry pursuant to laws and administrative regulations such as the Company Law and the Law on Securities Investment Funds; and

  (5) being not subject to any administrative penalty imposed by the administrative authority departments of securities, banking, industry and commerce or taxation in the last three years.

  Article 7 To apply for the qualification of a senior manager in a fund management company, the following materials shall be submitted to the CSRC by the fund management company:

  (1) an application form for examining and approving the qualifications of the person proposed to be a senior manager (hereinafter referred to as the “candidate”) and an application form for holding the post;

  (2) the resolutions of relevant meetings;

  (3) the certificate certifying the candidate's experiences as specified in Item (3) of the preceding article;

  (4) the post-leaving audit report, the post-leaving inspection report or the appraisal opinion given by the work units of the candidate in the last three years;

  (5) review comments on the candidate;

  (6) copies of the ID, academic certificates and degree certificates of the candidate;

  (7) the copy of the candidate's certificate of qualifications for practice in the fund management industry;

  (8) the copy of the certificate showing that the candidate has passed the examination on the knowledge of laws concerning securities investment for senior managers;

  (9) a legal position paper confirming that the conditions of the candidate for holding the post and the appointment procedure accord with laws, administrative regulations, provisions of the CSRC and the relevant articles of association; and

  (10) other materials as required by the CSRC.

  To apply for the qualification for holding a post of a senior manager of a fund trusteeship department, materials as provided in the preceding paragraph except those in Items (2) and (9) shall be submitted to CSRC by the fund trusteeship bank.

  All the above-mentioned materials shall be in Chinese and triplicate. If the original of any of such materials is in foreign language, a Chinese translation of it shall be attached together.

  Article 8 The CSRC shall accept and censor the application materials in accordance with law.

  The CSRC may censor the candidates through tests or interviews, which shall be held by two functionaries. A record shall be made for the interview with the signatures of both the examiner and the candidate thereon.

  Article 9 The applying institution shall make a decision on the selection and appointment or on the change of posts of senior managers and go through the relevant formalities according to the constitution of the institution within 20 working days after receipt of the approval letter issued by the CSRC.

  Article 10 Where any candidate fails to perform his duties as required by the appointed institution within 20 working days from the date when he obtains the practice qualification, his practice qualification shall automatically become invalid except with warrants.

  In case any senior manager leaves his post, his practice qualification for such a post shall automatically become invalid as of the date of leave.

  Article 11 Where any fund management company is to remove any of its senior managers, appoint or remove the chairman of the board of directors or its fund manager, or any fund trusteeship bank is to remove any of its senior managers of its fund trusteeship department, they shall report that to the CSRC by submitting the reporting materials concerning appointment or removal within three working days from the decision thereon.

  Article 12 The director of a fund management company shall meet the requirements as prescribed in Items (4) and (5) of Article 6 hereof.

  An independent director shall meet the following requirements in addition:

  (1) having experienced in the fields of banking, law or financial affairs for five years or more;

  (2) having adequate time to perform his duty;

  (3) having not held any post in the appointed fund management companies, any shareholder entity of such companies, or in any institution having business relationship or benefit relationships with such companies;

  (4) having no relations of interests with any senior manager, other director, supervisor, fund manager, person in charge of the financial affairs of the fund management company for which he is to hold a post as an independent director; and

  (5) none of his lineal relatives holding any post in the fund management company for which he is to hold a post as an independent director.

  Article 13 Reporting materials on holding a post of a director of a fund management company shall include:

  (1) the report on the appointment of the director and the appointment registration form;

  (2) the resolution of relevant meetings; and

  (3) materials as provided for in Items (4) – (6) and (9) of Article 7 hereof.

  The reporting materials of an independent director shall also include a certificate proving the person's five-year experience in fields of banking, law or financial affaires and a letter of undertaking given by the person for his compliance with the provisions of Items (2) – (5) of Paragraph 2 of the preceding article.

  Article 14 The fund manager of a fund management company shall have three-year experience in securities investment management and meet the requirements as prescribed in Items (1), (2), (4) and (5) of Article 6 hereof.

  Article 15 Reporting materials concerning the appointment of a fund manager shall include:

  (1) a report on the appointment of the fund manager and an appointment registration form;

  (2) the resolution of relevant meetings;

  (3) a certificate certifying the person's three-year experience in securities investment management; and

  (4) materials as prescribed in Items (4) – (7) of Article 7 hereof.

  Article 16 Where any fund management company is to remove any of its senior managers or directors, or any trusteeship bank is to remove any of its senior managers of its fund trusteeship department, they shall hand in to the CSRC the following reporting materials concerning such removal:

  (1) a report on the removal;

  (2) the resolution of relevant meetings; and

  (3) a legal position paper confirming the compliance of the removal with laws, administrative regulations, provisions of the CSRC and the articles of association of the company or bank.

  Where the fund management company is to remove its fund manager, it shall submit to the CSRC the reporting materials concerning the removal as prescribed in Items (1) and (2) of the preceding paragraph.

  Article 17 The CSRC shall censor the reporting materials concerning the removal of senior managers according to law. If it finds any noncompliance of any removal procedure with the relevant provisions, the CSRC shall charge the relevant institution to make corrections.

  Article 18 The CSRC shall censor according to law the reporting materials concerning the appointment and removal of directors and fund managers of fund management companies.

  Where any director or fund manager fails to meet the statutory requirements for holding the post, the CSRC shall charge the relevant fund management company to make replacement according to the relevant provisions. In the case of any noncompliance of any appointment or removal procedure with the relevant provisions, the CSRC shall order the relevant fund management company to make corrections.

  Chapter III Fundamental Code of Conduct

  Article 19 Every senior manager and every fund manager of a fund management company shall safeguard the legal benefits of the fund under his management. And they shall abide by the principle of the priority of the interests of fund unit holders when there is any conflict between the interests of fund unit holders and the fund management company or the fund trusteeship bank.

  No senior managers or fund managers of any fund management company may conduct or be cooperative in any activity that impair the interests of the fund unit holders, or conduct any activity contrary to the legitimate interests of the fund management company or the fund trusteeship bank for which he works.

  Article 20 Every senior officer and every fund manager of a fund management company shall possess fine professional ethics, keep diligent in his work and devoted to his duties and effectively perform his duties as prescribed in fund contracts, articles of association and the rules and regulations of the company concerned. They may not abuse his power or authority, delegate his duty to another person in violation of the relevant provisions, enlist private gains by taking advantage of his power or leave his post without going through the statutory procedure.

  Article 21 Every director of a fund management company shall attend board meetings, participate in the activities of the company and effectively perform his duties in accordance with the articles of association of the company.

  Any independent director shall give independent opinions objectively and prudently and effectively protect the legitimate rights and interests of the fund unit holders.

  Article 22 The general manager of a fund management company shall conscientiously execute the resolution of the board of directors, effectively implement the systems of the company, prevent and eliminate management risks, promote the efficiency of the operation and management, ensure the stable operation of the managed business and the safety and integrity of the fund property under the management so as to speed up the continuous, stable and healthy development of the company.

  The deputy general manager of a fund management company shall assist the general manager and faithfully perform his duties.

  Article 23 The general manager of a fund management company shall conscientiously perform his duties and conduct the supervision and audit over various systems, the legality and regularity of the business and the implementation of the internal control system of the company.

  Article 24 The fund manager of a fund management company shall strictly abide by the relevant fund contracts and the provision the company concerning the investment system, keep prudent and diligent in his work, fully bring into play his ability to make professional judgment without interference from others and independently exercise his investment decision-making power within his authority.

  Article 25 The general manager and deputy general manager of the fund trusteeship department of a fund trusteeship bank shall set up and perfect various businesses and management systems of the department, ensure the effective performance of duties of the department as a trustee, supervise the investment operation by the manager of the fund and maintain the independence and integrity of the fund property.

  Article 26 The senior managers and the director and fund manager of a fund management company shall strengthen their operation study, run after the development of the industry, participate in the operation training according to the relevant provisions of the CSRC and steadily raise their management level and professional ability.

  Chapter IV Supervision and Administration

  Article 27 Where any candidate cheats in the examination on knowledge of laws concerning securities investment for senior managers or submits false materials on the qualification for holding a post of a senior manager, the CSRC shall not be accept his application for holding the post of a senior manager within three years.

  Article 28 The fund management company and the fund trusteeship bank shall set up a senior officer assessment system, conduct periodic assessments of senior managers and set up assessment archives.

  The CSRC shall conduct periodic or aperiodic inspections on the archives of senior managers and make assessment of the compliance of senior managers with laws and regulations.

  Article 29 The CSRC shall set up the management information system of senior managers and put on records the relevant circumstances of senior managers in fund business operation.

  The fund management company and the fund trusteeship bank shall disclose the alternation of its senior managers according to law.

  Article 30 In case the chairman of the board of a fund management company is to concurrently hold another post, he shall be subject to the approval of the board of directors of the company and report it to the CSRC within three working days from the date of such approval. Other senior managers may not hold another post concurrently in any operational agency.

  No directors of any fund management company may hold any post in any fund trusteeship bank or any other fund management company. In the case that any director holds another post in such a bank or company as a part-time job, the fund management company shall report it to the CSRC within three working days from the date when the director starts the part-time job.

  Article 31 In case any senior manager of a fund management company is under any of the following circumstances, the chairman of the supervisory committee shall report it to the CSRC within three working days from the date when he knows the information

  (1) being investigated or dealt with by the relevant departments due to being suspected of involvement in any violation of laws or disciplines;

  (2) resigning, leaving office or being unable to perform his duties due to the loss of capacity for civil conduct or any other reasons;

  (3) planning to leave the country for any personal purpose for at least one month or having not returned from abroad within the specified time limit;

  (4) having any lineal relative who is to reside or has resided abroad;

  (5) holding another post concurrently in any non operational institutions; or

  (6) any other circumstances that may influence senior managers to perform their duties.

  Where the chairman of the supervisory committee is involved in any of the above-mentioned circumstances, the general manager or any other senor manager of the company shall report it to the CSRC.

  Article 32 Where a fund management company is imposed on disciplinary punishment by self-discipline organizations such as the trade association and the stock exchange or is put on record for investigation and given administrative punishment by administrative management departments such as the industry and commerce, taxation and audit department, the company shall report it and submit a list of senior managers responsible to the CSRC within three working days after it has come to its notice.

  Article 33 Where the chairman of the board of directors, the general manager or the chairman of the supervisory committee of a fund management company is unable to perform his duties for some reasons, the board of directors of the company shall, within 15 working days, make a decision on the person qualified for being a senior manager to perform the duties as a representative and report such decision to the CSRC within three working days from the date of the decision.

  In case the person selected by the board of directors to perform the duties as a representative does not meet the requirements for being a senior manager, the CSRC shall charge the board of directors to select another qualified person to perform the duties as a representative within a specified time limit.

  The period during which the person performs the duties as a representative shall not exceed 90 days except for other circumstances provided by laws or administrative regulations.

  Article 34 Where both the chairman of the board of directors and the general manager of a fund management company are unable to perform their duties and the board of directors is unable to make a decision according to the preceding article, the major shareholders shall hold a temporary shareholders' meeting for making such a decision.

  Article 35 Where the fund management company, the fund trusteeship department of any fund trusteeship bank or any senior manager is involved in any of the following circumstances, the CSRC shall issue a warning letter to or make a supervisory conversation with the relevant senior manager:

  (1) The business activities may cause serious damage to the fund property or to the interests of fund unit holders;

  (2) The governance structure or the internal control system of the fund management company or the internal control system of the fund trusteeship department of the fund trusteeship bank has not been well established or effectively implemented, which has brought about or may bring about grave hidden troubles and may influence the performance of duties as a fund manager or a fund trustee;

  (3) It or he is in a violation of its or his obligation of good faith, prudence, diligence or devotion to duties; or

  (4) It or he has been involved in any other circumstances prescribed by the CSRC according to the principle of prudent supervision.

  Article 36 The CSRC may suggest that the institution concerned suspend or remove the duty of its senior manager, if he has one of the following circumstances:

  (1) having received at least two warning letters or supervisory conversations from the CSRC in a year or failed to make corrections as ordered after receipt of the warning letter or the supervisory conversation;

  (2) having been twice subject to a disciplinary sanction by the trade association or to public censure by the stock exchange in a year;

  (3) being absent without permission;

  (4) having provided false information to or concealing important facts from the CSRC, or refused to be cooperative in CSRC's supervision; or

  (5) having been involved in any other circumstances prescribed by the CSRC.

  Article 37 The CSRC shall notify the institution in which the relevant senior manager holds a post before making a proposal in accordance with the preceding article. The relevant senior manager may make a statement to the institution within three working days. If the institution disagrees to the proposal to be made by the CSRC, it shall report such disagreement to the CSRC within ten working days.

  The institution shall, within 20 working days from receipt of the proposal of the CSRC, make a decision on whether or not to suspend or remove the duty of the relevant senior manager and report it to the CSRC within three working days form the date of such decision.

  No persons with their duties removed in accordance with the preceding paragraph may be employed to be a senior manager by any fund management company or fund trusteeship bank before it has been two years since such removal.

  Article 38 The fund management company shall set up a post-leaving system for its senior managers, directors and fund managers and make provisions on proceedings such as the audits and the examinations on their departures.

  The fund trusteeship bank shall set up a post-leaving system for its senior managers of the fund trusteeship department and make provisions concerning the examinations on their departures.

  Article 39 Where the chairman of the board or the general manager of a fund management company leaves his post, the company shall immediately retain an accounting firm qualified for securities-related business to make a post-leaving audit and submit the audit report to the CSRC within 30 working days from the departure.

  The audit report shall be attached with the written opinion of the audited person; if the audited person refuses to give such an opinion, it shall be indicated.

  Article 40 Where the deputy general manager, the chairman of the supervisory committee or the fund manager of a fund management company leaves his post, the company shall immediately conduct a post-leaving examination on him and shall submit the examination report to the CSRC within 30 working days from the departure.

  In case any senior manager leaves his post, the fund trusteeship bank shall immediately conduct a post-leaving examination on him and, within 30 working days, submit the examination report to the CSRC.

  The examination report shall be attached with the written opinion of the examined person; it shall be indicated if the person refuses to give such an opinion.

  Article 41 Where any senior manager or the fund manager is to leave the institution he works in, he shall cooperate with the institution to complete the handover of work and accept a post-leaving audit or examination during which they may not hold any post in any other fund management company or the fund trusteeship department of any fund trusteeship bank.

  Article 42 After departure, no senior managers or fund managers may disclose any non-open information of the institution in which he has held the post or enlist gains for himself or any others by using such non-open information.

  No fund management companies may employ any person to conduct securities investment business, if it has not been three months since this person left his post as a senior manager or fund manager.

  Chapter V Legal Liability

  Article 43 Any senior manager or any director or fund manager of a fund management company, who has violated laws, administrative regulations or provisions of the CSRC and is imposed on administrative punishment according to law, shall be subject to penalty according to the relevant provisions. In the case of any suspected crime, they be transferred to the judicial organ according to law for the investigation of his criminal responsibility.

  Article 44 Where the fund management company or the fund trusteeship bank has selected and appointed or has changed the post of any senior manager without examination and approval of the CSRC, they shall be charged to make corrections, and the directly responsible governor and other personnel directly responsible shall be given warnings and fines.

  Where the fund management company violates provisions of the present Measures and makes a decision to perform the duty as a representative, it shall be ordered to make corrections, and the directly responsible governor and other personnel directly responsible shall be given warnings and fines.

  Article 45 In case any fund management company or fund trusteeship bank is involved in any of the following circumstances, it shall be charged to make corrections and the directly responsible governor and other personnel directly responsible shall be given warnings and fines:

  (1) failing to perform its reporting obligation according to the present Measures or providing any false reporting materials;

  (2) removing the duty of any senior manager or appointing and removing any director or fund manager of the fund management company in violation of the statutory procedures;

  (3) failing to properly respond to any proposal of the CSRC for the suspension or removal of the duty of any senior manager;

  (4) employing any person conducting investment business, in case that the company or the bank violates Paragraph 2 of Article 42 hereof; or

  (5) failing to conduct a post-leaving audit or examination on any leaving person according to the present Measures.

  Article 46 Any senior manager or any director of a fund management company holding a concurrent post in violation of the present Measures shall be charged to make corrections with a warning and a fine imposed.

  Article 47 Where any senior manager violates any law, administrative regulations or any provisions of the CSRC and the circumstance is serious, their qualification for a senior manager shall be suspended or revoked according to law.

  Where any manager of fund or fund trustee violates the Law on Securities Investment Funds or any other laws, administrative regulations or any provisions of the CSRC and the circumstance is serious, its senior manager directly responsible shall have his qualification of a senior manager suspended or revoked according to law.

  Chapter VI Supplementary Provisions

  Article 48 The present Measures shall come into force as of October 1, 2004. The Interim Provisions on Measures for the Administration of Qualification of Personnel Engaging in Fund Business (No. 53 [1999] of the CSRC) as issued by the CSRC shall be abolished simultaneously.

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