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中华人民共和国外资金融机构管理条例 PRC Administration of Foreign-funded Financial Institutions Regulations

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国务院令第340号
(Promulgated by the State Council on 20 December 2001 and effective as of 1 February 2002.)
颁布日期:20011220  实施日期:20020201  颁布单位:国务院

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in order to meet the needs of opening up to the outside world and economic development, to strengthen and improve the administration of foreign-funded financial institutions, and to promote the stable and sound operation of the banking industry.

  Article 2 For the purposes of these Regulations, the term "foreign-funded financial institutions" shall refer to the following financial institutions that are approved to be established and operated in the People's Republic of China in accordance with the relevant laws and regulations of the People's Republic of China:

  1. banks with foreign capital whose head offices are located within the People's Republic of China (Wholly Foreign-owned Bank(s));

  2. branches of foreign banks in the People's Republic of China (Foreign Bank Branch(es));

  3. banks in the People's Republic of China that are equity joint ventures between foreign financial institutions and Chinese companies or enterprises (Joint Venture Bank(s));

  4. finance companies with foreign capital whose head offices are located in the People's Republic of China (Wholly Foreign-owned Finance Company/Companies); and

  5. finance companies in the People's Republic of China that are equity joint ventures between foreign financial institutions and Chinese companies or enterprises (Joint Venture Finance Company/Companies).

  Article 3 Foreign-funded financial institutions must abide by the laws and regulations of the People's Republic of China and may not harm the public interests of the People's Republic of China.

  The normal business activities and lawful rights and interests of foreign-funded financial institutions shall be protected by the laws of the People's Republic of China.

  Article 4 The People's Bank of China shall be the authority in charge of the administration and supervision of foreign-funded financial institutions. The branches of the People's Bank of China shall exercise day-to-day supervision and administration of the foreign-funded financial institutions in their regions.

  PART TWO ESTABLISHMENT AND REGISTRATION

  Article 5 The minimum registered capital of a Wholly Foreign-owned Bank or a Joint Venture Bank shall be freely convertible currencies equivalent to Rmb 300 million in value; the minimum registered capital of a Wholly Foreign-owned Finance Company or a Joint Venture Finance Company shall be freely convertible currencies equivalent to Rmb 200 million in value. The registered capital shall be the paid-up capital.

  A Foreign Bank Branch shall be allocated without consideration by its head office freely convertible currencies equivalent to Rmb 100 million in value as its operating capital.

  The People's Bank of China may, in accordance with the business scope of the financial institution and the need for prudential supervision, raise the minimum amount of its registered capital or operating capital, and stipulate the Renminbi proportion thereof.

  Article 6 An applicant shall meet the following conditions for the establishment of a Wholly Foreign-owned Bank or Wholly Foreign-owned Finance Company:

  1. the applicant is a financial institution;

  2. the applicant has maintained a representative office in the People's Republic of China for more than two years;

  3. the applicant possesses assets totalling not less than US$10 billion at the end of the year prior to the year of submitting the application;

  4. the country or region where the applicant is located possesses a sound financial supervisory and administrative system, and the applicant is under the effective supervision of the relevant authorities in charge in the country or region where it is located;

  5. the relevant authorities in charge in the country or region where the applicant is located consent to its application; and

  6. other prudential conditions stipulated by the People's Bank of China.

  Article 7 An applicant shall meet the following conditions for the establishment of a Foreign Bank Branch:

  1. the applicant has maintained a representative office in the People's Republic of China for more than two years;

  2. the applicant possesses assets totalling not less than US$20 billion at the end of the year prior to the year of submitting the application, and the capital adequacy ratio shall not be less than 8%;

  3. the country or region where the applicant is located possesses a sound financial supervisory and administrative system, and the applicant is under the effective supervision of the relevant authorities in charge in the country or region where it is located;

  4. the relevant authorities in charge in the country or region where the applicant is located consent to its application; and

  5. other prudential conditions stipulated by the People's Bank of China.

  Article 8 An applicant shall meet the following conditions for the establishment of a Joint Venture Bank or Joint Venture Finance Company:

  1. the foreign party in the joint venture is a financial institution;

  2. the foreign party in the joint venture has established a representative office in the People's Republic of China;

  3. the foreign party in the joint venture possesses assets totalling not less than US$10 billion at the end of the year prior to the year of submitting the application;

  4. the country or region where the foreign party in the joint venture is located possesses a sound financial supervisory and administrative system, and the foreign party in the joint venture is under the effective supervision of the relevant authorities in charge in the country or region where it is located;

  5. the relevant authorities in charge in the country or region where the foreign party in the joint venture is located consent to its application; and

  6. other prudential conditions stipulated by the People's Bank of China.

  Article 9 To establish a Wholly Foreign-owned Bank or Wholly Foreign-owned Finance Company, an applicant shall apply in writing to the People's Bank of China and submit the following information:

  1. an application for the establishment of a Wholly Foreign-owned Bank or Wholly Foreign-owned Finance Company. Such application shall include the name of the Wholly Foreign-owned Bank or Wholly Foreign-owned Finance Company to be established, the amount of registered capital, types of business operations applied for and so on;

  2. a feasibility study;

  3. the articles of association of the Wholly Foreign-owned Bank or Wholly Foreign-owned Finance Company to be established;

  4. a copy of the business licence and an opinion regarding the application issued by the relevant authorities in charge in the country or region where the applicant is located;

  5. the annual reports of the applicant for the most recent three years; and

  6. other information required for submission by the People's Bank of China.

  Article 10 To establish a Foreign Bank Branch, the head office of such foreign bank shall apply in writing to the People's Bank of China and submit the following information:

  1. an application signed by legal representatives. Such application shall include the name of the Foreign Bank Branch to be established, the amount of operating capital allocated without consideration by its head office, types of business operations applied for and so on;

  2. a feasibility study;

  3. a copy of the business licence and an opinion regarding the application issued by the relevant authorities in charge in the country or region where the applicant is located;

  4. the annual reports of the applicant for the most recent three years; and

  5. other information required for submission by the People's Bank of China.

  Article 11 To establish a Joint Venture Bank or Joint Venture Finance Company, parties in the joint venture shall jointly apply in writing to the People's Bank of China and submit the following information:

  1. an application for the establishment of a Joint Venture Bank or Joint Venture Finance Company. Such application shall include the name of the Joint Venture Bank or Joint Venture Finance Company to be established, the names of the parties in the joint venture, the amount of registered capital, the ratio of capital contributions by the parties and the types of business operations applied for and so on;

  2. a feasibility study;

  3. a joint venture contract and the articles of association of the Joint Venture Bank or Joint Venture Finance Company to be established;

  4. a copy of the business licence and an opinion regarding the application issued by the relevant authorities in charge in the country or region where the foreign party in the joint venture is located;

  5. the annual reports of the foreign party in the joint venture for the most recent three years;

  6. the relevant information regarding the Chinese party in the joint venture; and

  7. other information required for submission by the People's Bank of China.

  Article 12 Except for annual reports, any of the information listed in Articles 9, 10 and 11 hereof that is written in a foreign language shall be accompanied by a Chinese translation.

  Article 13 The People's Bank of China shall carry out a preliminary examination on the application for establishing a foreign-funded financial institution, and shall render a decision on whether to accept the application within six months of the date of receipt of a complete set of application documents. In the case of a decision to accept, it shall issue an official application form to the applicant. In the case of a decision to deny, it shall notify the applicant in writing and state the reasons.

  In special circumstances where the People's Bank of China fails to complete preliminary examination and render a decision on whether to accept the application within the time period stipulated in the preceding paragraph, it may extend the time period and notify the applicant. However, the extension of the time period may not exceed three months.

  Article 14 An applicant shall, within six months of the date of receipt of an official application form, complete preparations for establishment. Where it fails to complete the preparations for establishment within the stipulated time period and there are legitimate reasons, the time period may be extended for three months with the approval of the People's Bank of China. Where it still fails to complete the preparations for establishment within the extended period, the decision of the People's Bank of China to accept shall automatically become void. After the completion of preparations for establishment, the applicant shall submit to the People's Bank of China the duly completed application form together with the following documents for examination and approval:

  1. a list and résumés of the key persons in charge of the foreign-funded financial institution to be established;

  2. the powers of attorney for the persons in charge that are to take up key positions at such foreign-funded financial institution;

  3. proof of capital verification issued by a statutory capital verification institution;

  4. information on the security and precautionary measures and other facilities related to business;

  5. where a Foreign Bank Branch is to be established, a liability guarantee by its head office for the tax and debt liability of such branch; and

  6. other documents required for submission by the People's Bank of China.

  Article 15 The People's Bank of China shall, within two months of the date of receipt of a complete set of formal application documents from the foreign-funded financial institutions to be established, make a decision on whether to approve. In the case of a decision to approve, it shall grant a permit to conduct financial business. In the case of a decision to disapprove, it shall notify the applicant in writing and state the reasons.

  Article 16 After the establishment of the foreign-funded financial institution is approved, the applicant shall register with the administration authorities for industry and commerce on the strength of the permit to conduct financial business and obtain a business permit.

  PART THREE SCOPE OF BUSINESS

  Article 17 A Wholly Foreign-owned Bank, a Foreign Bank Branch or a Joint Venture Bank may operate part or all of the following types of business in line with the business scope approved by the People's Bank of China in accordance with the law:

  1. taking deposits from the public;

  2. granting short-term, medium-term and long-term loans;

  3. handling the acceptance and discounting of negotiable instruments;

  4. buying and selling government bonds, financial bonds and negotiable securities denominated in foreign currency other than shares;

  5. providing letter of credit services and guarantees;

  6. handling settlements for the domestic and foreign markets;

  7. buying and selling foreign exchange, and acting as an agent for the purchase and sale of foreign exchange;

  8. engaging in foreign exchange conversion;

  9. engaging in interbank lending;

  10. engaging in bank card business;

  11. providing safe deposit box services;

  12. providing creditworthiness investigations and consultancy services; and

  13. other business approved by the People's Bank of China.

  Article 18 A Wholly Foreign-owned Finance Company or Joint Venture Finance Company may operate part or all of the following types of business in line with the business scope approved by the People's Bank of China in accordance with the law:

  1. taking deposits of freely convertible currencies with each deposit being no less than Rmb 1 million and having a term of no less than three months;

  2. granting short-term, medium-term and long-term loans;

  3. handling the acceptance and discounting of negotiable instruments;

  4. buying and selling government bonds, financial bonds and negotiable securities denominated in foreign currency other than shares;

  5. providing guarantees;

  6. buying and selling foreign exchange, and acting as an agent for the purchase and sale of foreign exchange;

  7. engaging in interbank lending;

  8. providing creditworthiness investigations and consultancy services;

  9. providing foreign exchange trust services; and

  10. other business approved by the People's Bank of China.

  Article 19 The geographical restriction and client limitation of the Renminbi business of foreign-funded financial institutions shall be set out by the People's Bank of China in accordance with the relevant provisions.

  Article 20 To engage in a Renminbi business, foreign-funded financial institutions shall possess the following requirements:

  1. it has been in business operation in China for over three years prior to the application;

  2. it has been in profits for two consecutive years prior to the application; and

  3. other prudential conditions stipulated by the People's Bank of China.

  Article 21 Before a foreign-funded financial institution opens a new type of business within the business scope approved by the People's Bank of China, it shall submit an application in writing to the People's Bank of China. The People's Bank of China shall, within 60 days of the date of receipt of written application documents, render a decision on whether to approve the application. Where the People's Bank of China decide to deny, it shall notify the applicant in writing and state the reasons.

  PART FOUR SUPERVISION AND ADMINISTRATION

  Article 22 The deposit and lending interest rates as well as handling charge rates of foreign-funded financial institutions shall be determined by foreign-funded financial institutions in accordance with the relevant regulations of the People's Bank of China.

  Article 23 A foreign-funded financial institution engaging in deposit business must place a deposit reserve with a local branch office of the People's Bank of China at the place where it is located. The ratio of such deposit reserve shall be determined and adjusted according to the needs by the People's Bank of China.

  Article 24 30% of the operating capital of a Foreign Bank Branch must exist in the form of interest-generating assets designated by the People's Bank of China. Such interest-generating assets shall include deposits at a bank designated by the People's Bank of China.

  Article 25 The capital adequacy ratio of a Wholly Foreign-owned Bank, Joint Venture Bank, Wholly Foreign-owned Finance Company or Joint Venture Finance Company shall not be less than 8%.

  Article 26 The credit amount to an enterprise and its affiliated enterprises by a Wholly Foreign-owned Bank, Joint Venture Bank, Wholly Foreign-owned Finance Company or Joint Venture Finance Company shall not exceed 25% of its capital, except for that specially approved by the People's Bank of China.

  Article 27 The fixed assets of a Wholly Foreign-owned Bank, Joint Venture Bank, Wholly Foreign-owned Finance Company or Joint Venture Finance Company shall not exceed 40% of its owner's equity.

  Article 28 The Renminbi proportion of the capital and the risk assets of a Wholly Foreign-owned Bank, Joint Venture Bank, Wholly Foreign-owned Finance Company or Joint Venture Finance Company shall not be less than 8%.

  The ratio of the Renminbi proportion of the sum of the operating capital and reserve of a Foreign Bank Branch to that of its risk assets shall not be less than 8%.

  The People's Bank of China shall adjust the ratio stipulated in the previous two paragraphs in accordance with the relevant provisions progressively.

  Article 29 Foreign-funded financial institutions shall ensure the liquidity of their assets. The ratio of the liquid asset balance to the liquid liabilities balance shall not be less than 25%.

  Article 30 The total amount of foreign exchange deposits taken up in China by a foreign-funded financial institution shall not exceed 70% of its total foreign exchange assets in China.

  The People's Bank of China shall adjust the ratio stipulated in the preceding paragraph in accordance with the relevant provisions progressively.

  Article 31 Foreign-funded financial institutions must calculate and set reserves for idle (bad) debts in accordance with regulations.

  Article 32 A foreign-funded financial institution shall employ certified accountants in China that are also approved by a branch of the People's Bank of China at the place where it is located.

  Article 33 A foreign-funded financial institution must obtain approval of the People's Bank of China and handle relevant registration with the administration authorities for industry and commerce in accordance with the law for any of the following activities:

  1. establishment of a branch;

  2. adjustment or assignment of registered capital and increase or decrease of working capital;

  3. change of the name or place of business of the institution;

  4. adjust the scope of business;

  5. change of shareholders who hold more than 10% of the total capital or of the equity interest;

  6. amend the articles of association;

  7. change of senior management personnel; or

  8. other circumstances stipulated by the People's Bank of China.

  Article 34 Foreign-funded financial institutions must report and submit financial statements and relevant information to the People's Bank of China and its local branches in accordance with regulations.

  Article 35 The People's Bank of China and its local branches shall have the right to examine or inspect the deposits, loans, settlements and doubtful accounts of foreign-funded financial institutions periodically or at any time, to request the foreign-funded financial institutions to submit the relevant documents, information and written reports within the stipulated time period, and to penalize and handle the acts of foreign-funded financial institutions that violate laws and regulations.

  Article 36 The People's Bank of China and its local branches shall have the right to request foreign-funded financial institutions to formulate business rules, and establish and improve business administration, cash management and security and precautionary measures.

  Article 37 Foreign-funded financial institutions shall accept the supervision and inspection of the People's Bank of China and its local branches that is carried out in accordance with the law, submit the relevant documents, information and written reports truthfully, and may not refuse, obstruct or withhold.

  PART FIVE DISSOLUTION AND LIQUIDATION

  Article 38 A foreign-funded financial institution that terminates its business activities of its own accord shall submit a written application to the People's Bank of China 30 days prior to the date of termination, and shall be dissolved and liquidated upon examination and approval by the People's Bank of China.

  Article 39 Where a foreign-funded financial institution is unable to repay its debts in full at maturity, the People's Bank of China may order it to suspend business and to clear up the debts within a specific period. Where repayment capability is restored during the period of clearing up the debts and business needs to be resumed, an application for business resumption must be submitted to the People's Bank of China. Where repayment capability is not yet restored within such period, liquidation must be conducted.

  Article 40 Where a foreign-funded financial institution terminates its business because of dissolution, being closed down or declared insolvent in accordance with the law, specific matters concerning its liquidation shall be handled by reference to the relevant laws and regulations of China.

  Article 41 Upon completion of liquidation, a foreign-funded financial institution shall cancel its registration with the original registration authority within the statutory time period.

  PART SIX LEGAL LIABILITY

  Article 42 Where, without the approval of the People's Bank of China, a foreign-funded financial institution is established without authorization or engages in financial business operations illegally, it shall be banned by the People's Bank of China, and criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of establishing financial institutions without authorization, illegally taking deposits from the public or other crimes. If the offence is not serious enough for the imposition of criminal penalties, the People's Bank of China shall confiscate its illegal income, and a fine of not less than one time and not more than five times of the illegal income shall be imposed. If there is no illegal income or if it is less than Rmb 100,000, a fine of not less than Rmb 100,000 and not more than Rmb 500,000 shall be imposed.

  Article 43 Where a foreign-funded financial institution engages in financial business operations beyond the approved scope of business, area of business or scope of those to whom they may offer services, criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of illegal operation or other crimes. If the offence is not serious enough for the imposition of criminal penalties, the People's Bank of China shall issue a warning, confiscate its illegal income, and a fine of not less than one time and not more than five times of the illegal income shall be imposed. If there is no illegal income or if it is less than Rmb 100,000, a fine of not less than Rmb 100,000 and not more than Rmb 500,000 shall be imposed.

  Article 44 Where a foreign-funded financial institution, within the scope of business approved by the People's Bank of China, engages in a new type of business that has not been approved, the People's Bank of China shall order it to cease the operation of the new type of business that has not been approved, confiscate its illegal income, and a fine of not less than one time and not more than three times of the illegal income shall be imposed. If there is no illegal income or if it is less than Rmb 50,000, a fine of not less than Rmb 50,000 and not more than Rmb 300,000 shall be imposed.

  Article 45 Where a foreign-funded financial institution engages in business operation in violation of the relevant provisions of Part Four hereof, the People's Bank of China shall issue a warning, confiscate its illegal income, and a fine of not less than one time and not more than three times of the illegal income shall be imposed. If there is no illegal income or if it is less than Rmb 50,000, a fine of not less than Rmb 50,000 and not more than Rmb 300,000 shall be imposed.

  Article 46 Where a foreign-funded financial institution refuses or obstructs lawful supervision and inspection or submits false documents, information or written reports in violation of the relevant provisions of these Regulations, the People's Bank of China shall issue a warning, and a fine of not less than Rmb 100,000 and not more than Rmb 500,000 shall be imposed.

  Article 47 Where a foreign-funded financial institution, in violation of the relevant provisions of these Regulations, fails to submit financial statements and the relevant documents, information and written reports, or fails to formulate business rules and establish and improve the relevant business administration in accordance with the provisions, the People's Bank of China shall issue a warning, order rectification within a specified time period, and a fine of not less than Rmb 10,000 and not more than Rmb 100,000 shall be imposed.

  Article 48 In addition to the penalties imposed in accordance with the relevant provisions of Articles 43, 44, 45, 46 and 47 of this Part on a foreign-funded financial institution in violation of these Regulations, the People's Bank of China may order such institution to suspend its business for reorganization or revoke its business permit where the situation is serious, and cancel the business qualification of the senior management personnel of such foreign-funded financial institution for a period ranging from a specified duration to life.

  Article 49 A foreign-funded financial institution that violates other laws and regulations of the People's Republic of China shall be handled by the relevant authorities in charge in accordance with the law.

  PART SEVEN SUPPLEMENTARY PROVISIONS

  Article 50 These Regulations shall apply, by comparison, to financial institutions established and operated in the People's Republic of China by Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan financial institutions.

  Article 51 Administrative procedures for representative offices of foreign financial institutions in the People's Republic of China shall be formulated separately by the People's Bank of China.

  Article 52 These Regulations shall be effective as of 1 February 2002. The PRC, Administration of Foreign-funded Financial Institutions Regulations promulgated by the State Council on 25 February 1994 shall be repealed simultaneously.

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