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非法金融机构和非法金融业务活动取缔办法 Measures for the Banning of Illegal Financial Institutions and Illegal Financial Business Operations

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国务院令第247号
(Promulgated by Decree No. 247 of the State Council of the People's Republic of China on July 13, 1998)
颁布日期:19980713  实施日期:19980713  颁布单位:国务院

  Chapter 1 General Provisions

  Article 1 These Measures are formulated for the purposes of banning illegal financial institutions and illegal financial business operations, maintaining financial order and protecting public interest of society.

  Article 2 All illegal financial institutions and illegal financial business operations must be banned.

  Article 3 The illegal financial institutions referred to in these Measures mean those institutions established on their own without the approval of the People's Bank of China for engaging in or mainly engaging in such financial business operations as attraction of deposits, granting of loans, handling of settlements, note discount, call loans, trust investment, financial leasing, financing guaranty and foreign exchange buying and selling.

  The preparatory organization of an illegal financial institution shall be construed as an illegal financial institution.

  Article 4 The illegal financial business operations referred to in these Measures mean the engagement on their own without the approval of the People's Bank of China in the following operations:

  (1)illegal attraction of public deposits or attraction in disguised forms of public deposits;

  (2)illegal fund-raising from non-specified objects of society in any name without approval in accordance with law;

  (3)illegal granting of loans, handling of settlements, note discount, fund calling, trust investment, financial leasing, fund accomodation guaranty and foreign exchange buying and selling; and

  (4)other illegal financial business operations determined by the People's Bank of China.

  Illegal attraction of public deposits referred to in the preceding paragraph means operations without the approval of the People's Bank of China of attraction of funds from non-specified objects of society, issuance of vouchers and commitment to pay the principal and interest within a specified time period; attraction of public deposits in disguised forms referred to means operations without the approval of the People's Bank of China of attraction of funds from non-specified objects of society not in the name of attraction of public deposits however with the commitment to the fulfilment of obligations identical in nature to those of attraction of public deposits.

  Article 5 No unit or individual shall, without the approval of the People's Bank of China in accordance with law, establish on its/his/her own a financial institution or engage on its/his/her own in financial business operations.

  Organs of industry and commerce administration shall not process the registration of illegal financial institutions and illegal financial business operations.

  Financial institutions shall not open accounts, handle settlements and provide loans for illegal financial institutions and illegal financial business operations.

  Article 6 Illegal financial institutions and illegal financial business operations shall be banned by the People's Bank of China.

  Local people's governments of the localities wherein the illegal financial institutions have been established or wherein illegal financial business operations have taken place shall be responsible for the work related to organization, coordination, supervision and banning.

  Article 7 No unit or individual shall interfere with, reject and obstruct the banning by the People's Bank of China in accordance with law of illegal financial institutions and illegal financial business operations.

  Article 8 Functionaries of the People's Bank of China should, in the fulfilment of duties and responsibilities in banning illegal financial institutions and illegal financial business operations, keep secrets in accordance with law.

  Chapter II Procedures for the Imposition of Ban

  Article 9 The People's Bank of China should, upon uncovering, investigate and verify forthwith an illegal financial institution, illegal attraction of public deposits or attraction of public deposits in disguised forms as well as illegal fund-raising; and should, upon preliminary determination, ask the public security organ in time to establish a case for detection and investigation in accordance with law.

  Article 10 The People's Bank of China and public security organ should cooperate with each other in the process of investigation and detection of illegal financial institutions and illegal financial business operations.

  Article 11 The public security organ shall take compulsory measures against the criminal suspect(s), funds and assets involved in the case of the illegal financial institution and illegal financial business operations to guard against the escape of criminal suspect(s) and transfer of funds and assets.

  Article 12 The People's Bank of China shall, upon determination through investigation, take a decision on the banning of the illegal financial institution and illegal financial business operations and declare the said financial institution and financial business operations illegal, order it to stop all business operations, and make a public announcement.

  Article 13 The People's Bank of China should, upon uncovering of a financial institution opening an account, handling settlements and providing loans for an illegal financial institution or illegal financial business operations, order the said financial institution to stop forthwith the business operations concerned. No unit or individual shall take down the funds concerned on its/his/her own.

  The organ of industry and commerce administration should, upon uncovering, nullify the registration or effect a change in the registration forthwith of the registration of the organ of industry and commerce administration for the establishment of the illegal financial institution or engagement in illegal financial business operations obtained through deceit.

  Article 14 During the investigation conducted by the People's Bank of China on an illegal financial institution and illegal financial business operations, the unit or individual under investigation must accept the investigation conducted by the People's Bank of China in accordance with law, report on the situation truthfully and provide relevant materials, and must not refuse or conceal.

  Article 15 The People's Bank of China may, during investigation on an illegal financial institution and illegal financial business operations, employ such means as taking notes, copying and tape recording of the information and materials related to the case to obtain evidences.

  The People's Bank of China may, under circumstances that the evidences may be destroyed or lost or difficult to obtain later, enter into registration and put it(them) in safekeeping beforehand, the interested party and persons concerned shall not destroy or transfer the evidence(s).

  Chapter III Consolidation and Settlement of Financial Claims and Debts

  Article 16 The institution engaging in illegal financial business operations shall be responsible for the consolidation and settlement of the financial clam is and debts formed as a result of illegal financial business operations.

  Article 17 For an illegal financial institution that has the approval department, competent unit or founding unit, once declared banned by the People's Bank of China, the approval department, competent unit or founding unit shall be responsible for the organization of consolidation and settlement of financial claims and debts; for an institution that has no approval department, competent unit or founding unit, the local people's government of the locality wherein it is located shall be responsible for the organization of consolidation and settlement of financial claims and debts.

  Article 18 The participant(s) shall bear by himself/herself(themselves)the loss suffered as a result of participating in illegal financial business operations.

  Article 19 The debts and risks formed by illegal financial business operations shall not be passed onto state-owned banks and other financial institutions as well as any other units that have not participated in illegal financial business operations.

  Article 20 Any remaining illegal property(properties) after the consolidation and settlement of financial claims and debts shall be confiscated and delivered to the central treasury on the spot.

  Article 21 Dispute(s) arising from consolidation and settlement shall be resolved by the parties interested through consultation; in the event of failure of consultation, resolution shall be sought through judicial procedures.

  Chapter IV Penalty Provisions

  Article 22 Criminal liability shall be investigated in accordance with law for the establishment of an illegal financial institution or engagement in illegal financial business operations constituting a crime; where a crime has not been constituted, the People's Bank of China shall confisticate its illegal gains and concurrently impose a fine of more than 100% less than five times of the amount of illegal gains; where there are no illegal gains, a fine of more than RMB 100000 Yuan less than RMB 500000 Yuan shall be imposed.

  Article 23 For the approval without authorization of the establishment of an illegal financial institution or the approval without authorization of engagement in illegal financial business operations, the person-in-charge held directly responsible and other personnel directly responsible shall be imposed administrative sanctions in accordance with law; where a crime has been constituted, criminal liability shall be investigated.

  Article 24 Any financial institution that opens an account, handles settlements and provides loans for illegal financial institutions or illegal financial business operations in contravention of provisions, shall be ordered by the People's Bank of China to make a rectification, confisticated of the illegal gains, and concurrently imposed a fine of more than 100% less than five times of the amount of the illegal gains; where there are no illegal gains, a fine of more than RMB 100000 Yuan less than RMB 500000 Yuan shall be imposed; disciplinary sanctions shall be imposed on the person-in-charge held directly responsible and other personnel directly responsible; where a crime has been constituted, criminal liability shall be investigated in accordance with law.

  Article 25 Whoever refuses or obstructs the People's Bank of China in the implementation of its functions constituting a crime shall be investigated of criminal liability in accordance with law; where a crime has not been constituted, penalty for public security administration shall be imposed by the public security organ in accordance with law.

  Article 26 Any functionary of the People's Bank of China who divulges secrets in fulfilling responsibilities of banning the illegal financial institution and illegal financial business operations shall be imposed administrative sanctions in accordance with law; where a crime has been constituted, criminal liability shall be investigated in accordance with law.

  Article 27 Functionaries of the People's Bank of China, public security organs and organs of industry and commerce administration whose neglect of duty, abuse of power and malpractises for selfish gains constitute a crime shall be investigated of criminal liability in accordance with law; where a crime has not been constituted, administrative sanctions shall be imposed in accordance with law.

  Any functionary of the People's Bank of China who should have transferred the case of the illegal financial institution and illegal financial business operations to the public security organ but has failed to do so constituting a crime shall be investigated of criminal liability in accordance with law; where a crime has not been constituted, administrative sanctions shall be imposed in accordance with law.

  Chapter V Supplementary Provisions

  Article 28 Reference shall be made to these Measures in banning illegal securities agencies and illegal securities business operations. China Securities Supervision and Control Commission shall be responsible for the implementation thereof and may formulate specific measures for implementation in accordance with the principles of these Measures.

  Reference shall be made to these Measures in banning illegal commercial insurance agencies and illegal commercial insurance business operations. The department of commercial insurance supervision and control under the State Council shall be responsible for the implementation thereof and may formulate specific measures for implementation in accordance with the principles of these Measures.

  Article 29 All kinds of foundations, mutual aid societies, savings societies, capital service departments, share service departments, settlement centers and investment corporations that engage in illegal financial business operations exceeding the scope of the state policy prior to the coming into effect of these Measures should be sorted out and consolidated within the specified time period pursuant to the provisions of the State Council. Any institution that continues to engage in illegal financial business operations beyond the specified time period shall be banned pursuant to these Measures; where the circumstances are serious and a crime has been constituted, criminal liability shall be investigated in accordance with law.

  Article 30 These Measures shall come into force as of the date of promulgation.

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