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合格境外机构投资者境内证券投资外汇管理暂行规定 Announcement of the State Administration of Foreign Exchange (SAFE) on the Promulgation of the Interim Provisions on Foreign Exchange Administration of Domestic Securities Investment by Qualified Foreign Institutional Investors

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颁布日期:20021128  实施日期:20021201  颁布单位:国家外汇管理局

  [2002] No.2

  November 28, 2002

  In compliance with the Interim Measures on the Administration of Domestic Securities Investment by Qualified Foreign Institutional Investors promulgated as Decree No. 12 by the China Securities Regulatory Commission and the People's Bank of China, the State Administration of Foreign Exchange has formulated the Interim Provisions on Foreign Exchange Administration of Domestic Securities Investment by Qualified Foreign Institutional Investors, which is hereby promulgated and shall take effect as from December 1, 2002.

  Attachment:

  Interim Provisions on Foreign Exchange Administration of Domestic Securities Investment by Qualified Foreign Institutional Investors

  Chapter I General Provisions

  Article 1 Pursuant to the Regulations on the Exchange System of the People's Republic of China and the Interim Measures on the Administration of Domestic Securities Investment by Qualified Foreign Institutional Investors (hereinafter referred to as Interim Measures), the Provisions is enacted to regulate the investment activities of the qualified foreign institutional investors (hereinafter referred to as QFIIs) in the PRC securities market and to maintain the stability of China's foreign exchange market and balance of payments.

  Article 2 A QFII shall entrust its custodian to go through all procedures stipulated in the Provisions on its behalf.

  Article 3 A QFII and its custodian shall comply with relevant regulations and rules on foreign exchange administration in China.

  Article 4 The State Administration of Foreign Exchange (hereinafter referred to as the SAFE) shall implement according to law the foreign exchange administration of domestic securities investment by QFIIs.

  Chapter II Administration of the Custodian

  Article 5 In addition to the documents prescribed in Article 14 of the Interim Measures, a domestic commercial bank applying for the qualification as a QFII custodian shall submit to the SAFE a report on the management of its foreign exchange business for the previous 3 years and other documents required by the SAFE.

  Article 6 A QFII custodian shall fulfill the following responsibilities with regard to foreign exchange administration:

  1. Handle QFII-related foreign exchange settlement and sale, receipt and payment, and RMB settlement business;

  2. Supervise the investment operations of the QFII, and report in a timely manner to the SAFE if it discovers that the QFII's investment instructions violate foreign exchange regulations;

  3. Open a special RMB account for the QFII, and record accurately in the QFII's foreign exchange registration certificate (hereinafter referred to as Foreign Exchange Registration Certificate) any remittance of investment principal or proceeds by the QFII in or out of China;

  4. Report to the SAFE on any remittance of investment principal or proceeds by a QFII in or out of China within two business days after the remittance is made;

  5. Report to the SAFE on the receipts to and payments from the special RMB account of the QFII and the investment return or loss of such account for the previous month within the first five business days of each month;

  6. Prepare an annual financial report on the domestic securities investments of the QFII for the preceding year and submit it to the SAFE after it has been audited by a Chinese certified public accountant, within the first three months of each fiscal year;

  7. Preserve such materials as records of the remittance of funds in or out of China, conversion, receipts and payments of Renminbi funds of the QFII for no less than fifteen years;

  8. Prepare statistical report on the balance of payments according to relevant foreign exchange regulations; and

  9. Other responsibilities stipulated by the SAFE according to the principles of prudential supervision.

  Chapter III Administration of the Investment Quota

  Article 7 In addition to documents prescribed in the Article 8 of the Interim Measures, the QFII applying for investment quota shall submit a photocopy of the Securities Investment License issued by the CSRC along with other documents required by the SAFE.

  Article 8 The investment quota in Renminbi applied for by a single QFII shall be no less than the equivalent of USD50 million and no more than the equivalent of USD800 million.

  The SAFE may adjust the above ceiling and floor level in accordance with the capital market conditions and balance of payments.

  Article 9 A QFII that fails to remit in the full amount of approved principal within three months after obtaining the Foreign Exchange Registration Certificate and therefore needs to make up the difference between the actually remitted amount and the approved investment quota, or needs to make another inward remittance of investment principal after part of the principal has been remitted abroad, or needs to increase its investment quota, shall apply to the SAFE with the following documents:

  1. A written application (including proposed investment quota, investment plan, etc.);

  2. The Foreign Exchange Registration Certificate;

  3. An explanation of the source of funds and a commitment letter of no repatriation of investment during the approval period;

  4. A power of attorney issued by the applicant;

  5. A report on the applicant's domestic securities investment activities; and

  6. Other documents required by the SAFE

  Within seven business days after receipt of the complete set of application documents, the SAFE will decide whether to approve or not to approve the application. If approved, the SAFE will issue an approval document, and send it to the applicant through its custodian; if not, a written notification thereof shall be sent to the applicant through its custodian.

  Article 10 The lockup period of a QFII's investment funds shall be calculated from the date when its first inward remittance of investment principal is made.

  Article 11 A QFII that has remitted in principal for more than three months but less than one year, may, with the approvals of the CSRC and the SAFE, transfer its investment quota to other QFIIs or other applicants that qualify under Article 6 of the Interim Measures.

  Article 12 In the event that a QFII transfers all or part of its investment quota to another QFII, the transferor and the transferee shall apply to the SAFE for the transfer with the following documents:

  1. A written transfer application;

  2. A transfer agreement;

  3. The Foreign Exchange Registration Certificate; and

  4. Other documents required by the SAFE.

  After consulting with the CSRC, the SAFE shall make a decision on whether to approve or not to approve the application within seven business days after receipt of the complete application documents from both the transferor and the transferee. If approved, an approval document shall be issued to the transferor and to the transferee through their respective custodians; if not, a written notification thereof shall be sent to them in the same way.

  Article 13 If the SAFE approves a QFII to transfer its entire investment quota to another QFII, it shall adjust the investment quota of the transferee accordingly. Within five business days after the completion of the transfer, the transferor shall close its special RMB account at its custodian's place of business and return to the SAFE its Foreign Exchange Registration Certificate.

  If the SAFE approves a QFII to transfer part of its investment quota to another QFII, it shall adjust the investment quotas of the transferor and of the transferee accordingly.

  Article 14 In the event that a QFII needs to transfer all or part of its investment quota to another applicant that qualify under Article 6 of the Interim Measures, the transferee shall obtain the securities investment license from the CSRC and the investment quota from the SAFE before it can apply for the transfer according to Articles 12 and 13 of the Provisions.

  Chapter IV Administration of the Account

  Article 15 With the approval of the SAFE, a QFII shall open only one special RMB account at the place of business of its custodian.

  For opening the special RMB account, the QFII shall apply to the SAFE with the following documents:

  1. A written application for opening a special RMB account;

  2. The Foreign Exchange Registration Certificate;

  3. The official custodianship agreement signed with its custodian;

  4. A written commitment by the custodian to supervise the use of funds in the special RMB account; and

  5. Other materials required by the SAFE.

  The SAFE shall issue an approval document within five business days after the receipt of the complete application documents. The custodian may open a special RMB account for the QFII with the approval document, and report relevant information to the SAFE for record within five business days after the opening of the account.

  Article 16 The receipts and payments of the special RMB account of the QFII shall comply with Article 24 of the Interim Measures. The funds in that account shall not be used for other purposes.

  Article 17 The QFII shall close its special RMB account at the place of business of the custodian and return the Foreign Exchange Registration Certificate to the SAFE in any of the following circumstances:

  1. All of the principal and proceeds have been remitted abroad;

  2. All of the investment quota has been transferred;

  3. The legal entity has been dissolved or entered into bankruptcy and completed liquidation procedures;

  4. Its assets have been taken over by a trustee;

  5. The securities investment license has become invalid automatically or has been returned to the CSRC; and

  6. Other circumstances stipulated by the SAFE.

  Chapter V Administration of Remittance

  Article 18 If a QFII needs to remit in in a single day an amount of investment principal that equals or exceeds the equivalent of USD50 million, it shall inform the SAFE three business days before the remittance.

  The SAFE may, in accordance with the conditions of the balance of payments, suggest that the QFII adjust its schedule for inward remittance of principal within the validity period of its investment quota.

  Article 19 If the principal remitted in is in freely convertible currencies other than the US dollar, the exchange rates shall be calculated with reference to the base rates published by the PBC on the day of the remittance or the middle rate quoted by the custodian on the day of the remittance.

  Article 20 A QFII that needs to remit its principal abroad shall apply to the SAFE with the following documents five business days in advance:

  1. A written application for the repatriation;

  2. The Foreign Exchange Registration Certificate; and

  3. Other documents required by the SAFE.

  Within five business days after receiving the complete application documents, the SAFE shall issue an approval document if it approves such a remittance, and shall reduce the investment quota of the QFII accordingly. The custodian shall go through the procedures of purchase of foreign exchange and remittance of the principal for the QFII with the approval document.

  Article 21 If a QFII needs to purchase foreign exchange in order to repatriate its realized after-tax gains that has been audited by a Chinese certified public accountant, it shall submit, in addition to the documents prescribed in Article 29 of the Interim Measures, its Foreign Exchange Registration Certificate and other documents required by the SAFE.

  Within fifteen business days after the receipt of the complete application documents, the SAFE shall issue an approval document if it approves the remittance. The custodian shall go through the procedures of purchase of foreign exchange and repatriation of gains for the QFII with the approval document.

  The fiscal year for the calculation of a QFII's realized gains shall comply with the Chinese fiscal year.

  Chapter VI Supervision and Administration

  Article 22 The SAFE shall exercise annual review over the Foreign Exchange Registration Certificate held by the QFII.

  The annual review shall be conducted from April 1 to April 30 each year. The main contents of the annual review shall include:

  1. The receipt and payment of the special RMB account;

  2. The inward/outward remittances by the QFII;

  3. The foreign exchange sale, purchase and payment of the QFII; and

  4. The QFII's compliance with relevant foreign exchange regulations.

  Article 23 During the annual review, the QFII shall submit to the SAFE the following documents:

  1. A report on the investment activities by the QFII for the previous year;

  2. An annual financial statement of the QFII's domestic securities investment for the previous year as prepared by its custodian and audited by a Chinese certified public accountant;

  3. The Foreign Exchange Registration Certificate; and

  4. Other documents required by the SAFE.

  The SAFE shall inform the PBC and the CSRC of the results of the annual review of the Foreign Exchange Registration Certificate.

  Article 24 If the SAFE discovers any of the following situations on the part of the QFII during the annual review, the SAFE shall impose punishment on the QFII in accordance with the Provisions. If the QFII does not redress the situation or refuses to execute the punishment before the deadline, its Foreign Exchange Registration Certificate shall not pass the annual review:

  1. The inward remittance of principal exceeds the investment quota approved by the SAFE, or is made after the investment quota has expired;

  2. Outward remittance of principal or proceeds has been made without the SAFE's approval;

  3. The receipts and payments of the special RMB account go beyond the scope stipulated in Article 24 of the Interim Measures; and

  4. The QFII has violated China's laws or regulations or other relevant provisions.

  The SAFE shall consult with the PBC and the CSRC to decide on a funds-exit plan for the QFII whose Foreign Exchange Registration Certificate has not passed the annual review.

  Article 25 The SAFE may conduct on-site inspections on QFIIs, custodians, securities companies, stock exchanges, and securities registration and settlement institutions. The inspected shall accept the inspection and be cooperative during the inspection.

  The SAFE shall inform the PBC and the CSRC of the results of on-site inspections.

  Article 26 If the inward remittance of principal by the QFII exceeds the investment quota approved by the SAFE, or is made after the investment quota has expired, or if its custodian handles inward remittance of principal for the QFII that exceeds the investment quota approved by the SAFE, or is made after the investment quota has expired, the SAFE shall give a warning to the QFII or its custodian, require it to redress the situation within a specified period of time, and to impose on it a fine of no more than RMB30,000.

  Article 27 If a QFII has remitted abroad principal or proceeds without the SAFE's approval, or if a custodian has gone through the procedures of outward remittance of principal or gains for a QFII without the SAFE's approval, the SAFE shall command it to redress the situation, and impose on it a fine in Renminbi of 30 percent to five times of the evaded amount.

  Article 28 If a QFII or a custodian has opened a special RMB account without the SAFE's approval, or has opened several special RMB accounts, or has used the special RMB account beyond the scope prescribed in Article 24 of the Interim Measures, the SAFE shall order it to correct, circulate a notice of criticism, and impose on it a fine of no less than RMB 50,000 and no more than RMB300,000.

  Article 29 If a custodian has failed to submit to the SAFE reports or relevant materials as required, the SAFE shall order it to correct, circulate a notice of criticism, and impose on it a fine of no less than RMB50,000 and no more than RMB300,000.

  Article 30 If a custodian refuses to correct its illegal behavior, or the illegal behavior is a serious one, its qualification as custodian shall be rescinded by a joint decision of the SAFE, the PBC and the CSRC.

  Article 31 A QFII or custodian that has violated other foreign exchange regulations shall be punished by the SAFE in accordance with relevant foreign exchange regulations.

  Chapter VII Supplementary Provisions

  Article 32 All documentation and materials stipulated in the Provisions shall be prepared in Chinese. If both English and Chinese versions are available, the Chinese version shall prevail.

  Article 33 The SAFE shall be responsible for the interpretation of the Provisions.

  Article 34 The Provisions shall enter into force as of December 1, 2002.

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