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国家外汇管理局关于加强资本项目外汇管理若干问题的通知 State Administration of Foreign Exchange, Several Questions on Strengthening the Administration of Foreign Exchange for Capital Account Items Circular

2006-05-14 16:50   我要纠错 | 打印 | 收藏 | | |

汇发[1998]21号
(Promulgated by the State Administration of Foreign Exchange on 15 September 1998.)
颁布日期:19980915  实施日期:19980915  颁布单位:国家外汇管理局

  To State Administration of Foreign Exchange branch bureaus of all provinces, autonomous regions and directly-governed municipalities, to the Shenzhen branch bureau and to all Chinese designated foreign exchange banks:

  The People's Bank of China and the State Administration of Foreign Exchange (SAFE) have recently issued several documents aimed at new circumstances and problems that have arisen in the administration of capital accounts. In order to implement the spirit of these documents, to further perfect the administration of foreign exchange for capital accounts and to strengthen operability, the relevant policies are reiterated below. Please abide by and implement them.

  1. Examination and approval of foreign debt and foreign guarantees

  (1) Chinese designated foreign exchange banks within China may not issue term credit which is not connected with trade. The opening of foreign term credit exceeding one year must be reported to the SAFE for approval before the credit is opened.

  Applications by Chinese organizations within China to financial institutions within China or overseas to open trade finance business such as term credit, and the handling of packing loans and bills drawn on letters of credit, must be approved beforehand by the SAFE and its branch bureaus (hereafter referred to as "foreign exchange bureaus"). Applications by Chinese organizations within China to financial institutions overseas to open trade finance business such as term credit and bills drawn on letters of credit must be approved beforehand by the SAFE.

  Chinese designated foreign exchange banks within China should further strengthen administration of term credit , formulate and perfect internal administrative procedures to be reported to the SAFE before 31 October 1998 for approval.

  (2) The provision by Chinese designated foreign exchange banks within China of rental reimbursement guarantees to airline companies within China for aircraft operating leases exceeding one year (including extensions to over one year) must be approved beforehand by the SAFE.

  Lease-back business by airline companies within China should be regarded as foreign capital leases and examined and approved in the same way.

  Rebates from foreign capital leases by airline companies within China shall be administered in special accounts. The funds should be transferred to China in total, apart from the sum used for that capital lease.

  Financing and guarantees for aircraft leasing by organizations within China must be reported for approval to the SAFE 30 days before the foreign agreement is signed.

  (3) Foreign exchange bureaus should be rigorous about examination and approval standards for foreign guarantees. They must not approve the provision of foreign guarantees to guarantors and those being guaranteed who do not reach the stipulated requirements on asset-liability ratios.

  When providing guarantees for companies abroad, guarantors should monitor where the finance under the guarantee is invested and ensure that the funds raised are not misused.

  Organizations within China providing foreign guarantees exceeding one year (including extensions) to foreign enterprises should report these to the SAFE for examination and approval.

  (4) It is forbidden to use any form of covert financing such as barter trade, financial derivatives, or guaranteeing a fixed rate of return for the foreign partner in a foreign investment enterprise.

  (5) All unauthorized foreign loans or guarantees by organizations within China in violation of the regulations are acts in violation of the regulations. The loan or guarantee agreement shall be invalid. The discharge of debts which are in violation of the regulations shall be reported to the SAFE for examination and approval.

  2. Registration and records

  (1) All foreign debts, foreign debts converted into loans, self-administered foreign exchange loans and foreign guarantees must be registered with the foreign exchange bureaus in accordance with the regulations.

  (2) The method of registration of self-administered foreign exchange loans shall be set by the branch bureau in accordance with local conditions.

  (3) The foreign debt registration procedures for non-bank financial institutions and foreign investment leasing companies shall be changed from regular registration to registration as such debts occur.

  (4) When handling foreign debt registration for debtors, foreign exchange bureaus should examine carefully the loan contract provided by the debtor. In the case of loans with a limit of under six months the debtor should be asked to provide an acknowledgement of the loan from a lawyers' office and a legal opinion on the truth about how the loan was used.

  When handling foreign debt registration for foreign investment enterprises, foreign exchange bureaus should ask for the investment contract, identification of funds from an accountancy firm, and a legal opinion from a lawyers' office on the loan contract. They should request that registered capital is fully paid up in accordance with the contract. The amount of medium and long-term foreign debts accumulated may not exceed the difference between total investment as stipulated in the contract or articles, and registered capital. In principle the interest rate on foreign loans may not be higher than the interest rate on similar loans in the international financial market. If the above requirements are not met, foreign exchange bureaus can refuse to handle the foreign debt registration.

  If a debtor applies for supplementary foreign debt registration, foreign exchange bureaus should handles such supplementary foreign debt registration in accordance with the circumstances once the debtor has been fined for violation of the regulations in accordance with the relevant foreign exchange administration laws and regulations. They should ask the debtor to provide an identification of the loan funds from an accountancy firm and a legal opinion on the loan contract from a lawyers' office.

  If, having registered a foreign debt, the debtor does not provide the funds in accordance with the regulations of the contract, the "Foreign Debt Registration Certificate" examined and issued by the foreign exchange bureau shall become invalid automatically three months after the day it was signed and issued.

  3. Administration of capital account foreign exchange revenue and expenditure and of conversion of foreign exchange

  (1) Capital account settlement, purchase and payment of foreign exchange, and transfer business within China and the opening of special accounts, must be examined and approved by foreign exchange bureaus.

  All designated foreign exchange banks must handle capital account settlement, purchase and payment of foreign exchange, and transfer business within China and the opening of special accounts, in accordance with foreign exchange bureaus' approval documents or examination and approval documents. County branches, and sub-branches below county level, of designated foreign exchange banks may not in future handle capital account foreign exchange settlement, purchase and payment, transfer business within China, the opening of special accounts, and revenue and expenditure business. Those already handling such business must hand this over to the organization at the level above by 30 September 1998.

  (2) Foreign exchange income of capital accounts of organizations within China should be transferred to China in a timely fashion in accordance with the regulations. Enterprises which have foreign debt, have rebates from financial leasing or have issued shares outside China should transfer the funds back to China before 1 October 1998. Those which do not transfer funds on time shall be dealt with as foreign exchange evaders.

  All capital account foreign exchange expenditure must be approved by foreign exchange bureaus. The account holder's own foreign exchange funds shall be utilized first and account holders may only buy foreign exchange if these are insufficient. Transfer of funds between special foreign exchange capital accounts within China must be approved by foreign exchange bureaus.

  (3) In the case of foreign capital accounts requiring foreign exchange settlement (including issue of B shares within China and issue of shares outside China), account work units shall register a foreign exchange settlement file record for projects above the limit with the SAFE for examination and approval within 30 days of the approval of the feasibility study. For projects below the limit, account work units shall register a foreign exchange settlement file record with a first level foreign exchange bureau for examination and approval. Foreign exchange bureaus shall not approve settlement of foreign exchange for projects not filed and registered.

  When the account work unit conducts foreign exchange settlement, it must submit in sequence the foreign exchange settlement file record registration, the expenditure bill and contract, and the identification of capital funds or foreign debt registration certificate, or certificate of conversion of foreign debt to loan, to the foreign exchange bureau for handling step by step the examination and approval procedure for foreign exchange settlement.

  The settlement of foreign exchange funds raised from share offerings outside China and B-share offerings inside China shall be subject to examination and approval by the branches of the State Administration of Foreign Exchange.

  (4) Repayment of capital and interest on self-administered foreign loans must be examined and approved at each step by the foreign exchange bureaus.

  (5) Repayment of capital and interest by non-bank financial institutions and foreign investment leasing companies must be approved step by step by the foreign exchange bureau.

  (6) When examining and approving repayment of capital and interest on foreign loans and foreign exchange (conversion) loans, foreign exchange bureaus shall ask the debtor to provide, apart from the data originally stipulated, the notification of that part of the loan entering the account and the current foreign currency account statement.

  Loans may not be repaid early in the case of any loan contract-type [does not have] early repayment clauses. If the loan contract has an early repayment clause, the debtor may repay the loan with its own foreign exchange with the approval of the foreign exchange bureau, but may not purchase foreign exchange to repay the debt.

  It is currently forbidden to use Renminbi to buy foreign exchange to make early repayment of a foreign debt, foreign debt converted to loan or self-administered foreign loan. Prior to 31 December 1998 it is forbidden to use Renminbi to buy foreign exchange to repay an overdue self-administered foreign loan. It is forbidden to purchase foreign exchange elsewhere to repay loans.

  (7) It is forbidden to buy foreign exchange to invest in stock rights and creditor's rights outside China. It is forbidden to buy foreign exchange to buy back foreign currency shares and securities. Other foreign currency buy-backs must be approved by the foreign currency bureau.

  Bureaus which have carried out foreign currency risk investigations and accepted overseas investment projects with overseas enterprise approval certificates shall report to headquarters the risk assessment evidence and the foreign economic co-operation and trade department's overseas enterprise approval certificate. The procedure for purchase of foreign exchange may only be carried out once these have been confirmed.

  (8) County-level branches of the SAFE may not in future examine and approve purchase of foreign currency to repay loans.

  (9) [According to Paragraph 4 of the Authorizing the Branches of the State Administration of Foreign Exchange to Handle Foreign Exchange Business for Equity Transfer or Liquidation of Foreign Investment Enterprises Circular issued on 22 December 1999 by the State Administration of Foreign Exchange, this paragraph was repealed.]

  (10) Capital account purchase of foreign currency for expenditure in excess of the equivalent of US$10 million (including US$10 million) shall be approved by the SAFE.

  4. Investigation, sorting out and statistics of capital account foreign currency business

  (1) All branches shall follow up repayments for purchase of foreign currency in excess of the equivalent of US$1 million (including US$1 million). They shall reinvestigate, item by item, capital account foreign currency expenditure examined and approved in 1998 and shall report important circumstances in a timely fashion.

  (2) All Chinese designated foreign currency banks shall, in accordance with the relevant laws and regulations and with the provisions of this Circular, investigate on their own the circumstances of clients' repayment of foreign debt, conversion of foreign debt into loans and self-administered foreign loans between January and July 1998, and submit a report to the SAFE before 30 September 1998.

  (3) All organizations within China issuing shares outside China (Appendix 1) (not published) shall report the relevant circumstances to the SAFE and its bureaus before 1 October 1998 in accordance with Appendix 2 (not published).

  (4) All organizations within China shall sort out their overseas stock rights and in accordance with Appendix 3 (not published) report to the SAFE and its bureaus before 31 December 1998.

  (5) All branch bureaus shall report the previous month's "capital account foreign exchange statistics monitoring form" (Appendix 4) (not published) before the 8th of every month, monitor statistics properly, and report the data and very unusual circumstances to our capital account administration department in a timely, accurate and complete fashion.

  Violations of the capital account administration regulations shall be punished by foreign exchange bureaus in accordance with the PRC, Foreign Exchange Control Regulations and other laws and regulations. Those in charge directly responsible and others directly responsible shall be given administrative penalties. If a crime has been committed they shall be prosecuted in accordance with the law.

  This Circular shall be effective as of date of promulgation. It shall take precedence over all other regulations not in accord with the spirit of this Circular. Once branch bureaus receive this Circular they should communicate it as quickly as possible to the sub-branches and related work units under their jurisdiction. The headquarters of all Chinese designated foreign exchange banks should communicate it as quickly as possible to their branches. If problems are encountered in its implementation please reflect these to our capital accounts administration department in a timely way.

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