Recently, approved by the State Council, the China Banking Regulatory Commission, the National Development and Reform Commission, the Ministry of Industry and Information Technology, the Ministry of Finance, the Ministry of Commerce, the People's Bank of China, and the State Administration for Industry and Commerce jointly issued the Interim Measures for the Administration of Financing Guarantee Companies (hereinafter referred to as the "Measures").
The Measures are based on the requirements of the Notice on Further Clarifying the Supervisory Responsibilities for the Financing Guarantee Business (Guo Ban Fa [2009] No. 7) of the General Office of the State Council, and were researched and drafted by the Inter-Ministerial Joint Conference on the Supervision of the Financing Guarantee Business established by the State Council based on in-depth research and repeated demonstrations. The Measures *** seven chapters, 54 articles. Among them, Chapter I, General Provisions, mainly stipulates the purpose and basis for the formulation of the Measures, operating principles, regulatory system and related interpretations; Chapter II, Establishment, Change and Termination, focuses on establishing the establishment approval system for financial guarantee companies and their branches and the conditions for the establishment of; Chapter III, Scope of Business, stipulates the scope of business of the financial guarantee company and prohibited behaviors; Chapter IV, Rules of Operation and Risk Control, provides an explanation on the internal control system, risk concentration management, risk indicator management, reserve accruals, management of guarantees for related parties, and information management and disclosure of information, etc., and makes principle provisions on corporate governance, professional staffing, financial system, principles of charging and sharing of responsibilities, etc.; Chapter V Supervision and Administration, which provides for off-site supervision, capital supervision, on-site inspection and reporting of significant matters, Chapter V Supervision and Administration, which makes corresponding provisions on off-site supervision, capital supervision, on-site inspection and reporting of major events, response to emergencies, audit supervision, industry self-regulation and credit management; Chapter VI Legal Liability, which stipulates the legal liabilities of the supervisory authorities, the financial guarantee companies and other market entities operating financial guarantee business without authorization within the limits of the existing laws and regulations; and Chapter VII Supplementary Provisions, which stipulates the scope of the Measures, the authorization for the formulation of relevant measures, and standardization of the rectification .
The Measures regulate mainly corporate financial guarantee institutions, i.e., limited liability companies and joint stock companies established in accordance with the law and operating financial guarantee business.
According to the relevant person in charge of the Office of the Inter-Ministerial Joint Conference on the Supervision of Financing Guarantee Business (Financing Guarantee Business Department of the CBRC), in recent years, China's financing guarantee industry for small and medium-sized enterprises, especially small enterprises, micro-enterprises, to provide financing services and to promote the development of the local economy, the ability and role of the increasing, especially in the aftermath of the outbreak of the international financial crisis, the guarantee institutions to alleviate the difficulties of small and medium-sized enterprises to borrow money, Promoting the development of SMEs has played an important role and achieved better social benefits. However, at the same time, the guarantee industry has also revealed the problems of inadequate relevant laws and regulations and social credit system, lack of effective supervision, irregular operation of guarantee institutions, lax internal management, weak risk identification and control ability, illegal and irregular capital evasion, and illegal operation of financial business. The formulation and release of the Measures will further strengthen the standardization and management of the financial guarantee business, prevent and resolve the risks of the financial guarantee industry, and promote the healthy development of the financial guarantee industry.
The person in charge said that the formulation and implementation of the Measures will have a realistic and long-term positive impact on the standardization and development of the financial guarantee industry, especially through the implementation of the relevant prudential rules of the Measures and the standardization and rectification of the existing guarantee institutions, which is expected to make the financial guarantee institutions and even the entire guarantee industry gradually embark on the track of prudent operation in accordance with the law, and this is important for the improvement of the society, especially the banking industry, the financial institutions and other creditors of the financial guarantee industry, the financial institutions and other creditors of the financial guarantee industry. This will play a positive role in improving the recognition of the financial guarantee industry by the society, especially the creditors such as financial institutions, and will be conducive to the long-term development of the financial guarantee industry and better support and promote the development of the majority of small and medium-sized enterprises.
China Banking Regulatory Commission
National Development and Reform Commission of the People's Republic of China
Ministry of Industry and Information Technology of the People's Republic of China
Ministry of Finance of the People's Republic of China
Ministry of Commerce of the People's Republic of China
People's Bank of China
State Administration for Industry and Commerce
No. 3 of 2010
In order to strengthen the supervision and management of financial guarantee companies, standardize the behavior of financial guarantees, and promote the healthy development of the financial guarantee industry, in accordance with the Company Law of the People's Republic of China, the Guarantee Law of the People's Republic of China, the Contract Law of the People's Republic of China, the China Banking Supervision and Administration Commission of the People's Republic of China, the National Development and Reform Commission of the People's Republic of China, the Ministry of Industry and Information Technology of the People's Republic of China, the Ministry of Finance of the People's Republic of China, the Ministry of Commerce of the People's Republic of China, the People's Bank of China, and the State Administration for Industry and Commerce have formulated the Interim Measures for the Administration of Financing Guarantee Companies, which is approved by the State Council and is hereby promulgated. They shall come into force on the date of publication.
Liu Mingkang, chairman of the China Banking Regulatory Commission
Zhang Ping, director of the National Development and Reform Commission of the People's Republic of China
Li Yizhong, minister of the Ministry of Industry and Information Technology of the People's Republic of China
Xie Xuren, minister of finance of the People's Republic of China
Chen Deming, minister of the Ministry of Commerce of the People's Republic of China
Chinese Minister of Industry and Information Technology of the People's Republic of China
Zhou Xiaochuan, Governor of the People's Bank of China
Zhou Bohua, Director General of the State Administration for Industry and Commerce (SAIC)
March 8, 2010
Interim Measures for the Administration of Financial Guarantee Companies
Chapter I General Principles
Article 1 In order to strengthen the supervision and administration of financial guarantee companies, standardize the behavior of financial guarantees and promote the healthy development of the financial guarantee industry, according to the "Interim Measures for the Administration of Financial Guarantee Industry, in accordance with the Company Law of the People's Republic of China, the Guarantee Law of the People's Republic of China, the Contract Law of the People's Republic of China and other laws and regulations, the formulation of these Measures.
Second Article The financing guarantee referred to in these Measures refers to the guarantor and the banking financial institutions and other creditors agreed that when the guaranteed person fails to fulfill the financing debt owed to the creditor, the guarantor shall assume the contractual guarantee responsibility according to law.
The financial guarantee company referred to in these measures refers to the limited liability companies and joint-stock companies established in accordance with the law and operating financial guarantee business.
The supervisory department referred to in these Measures refers to the department determined by the people's governments of provinces, autonomous regions and municipalities directly under the central government responsible for supervising and overseeing the financial guarantee companies under its jurisdiction.
Article 3 The financial guarantee company shall take safety, liquidity and profitability as its operating principles, and establish a sustainable and prudent business model with market-oriented operation.
Financial guarantee companies shall follow the principle of honesty and trustworthiness in their business dealings with enterprises, banking and financial institutions and other customers, and abide by the agreements in the contracts.
Article 4 The financial guarantee company shall carry out its business in accordance with the law and shall not be subject to the interference of any organ, unit or individual.
Article 5 A financial guarantee company shall conduct its business in compliance with the laws, regulations and the provisions of these Measures, and shall not jeopardize the interests of the State and the public **** interests of the society.
Financial guarantee companies shall maintain the confidentiality of their clients and shall not utilize the information provided by their clients to engage in any activities unrelated to the guarantee business or detrimental to the interests of their clients.
Article 6 A financial guarantee company shall observe the principle of fair competition in conducting its business and shall not engage in unfair competition.
Article 7 Financial guarantee companies shall be subject to local management by the people's governments of provinces, autonomous regions and municipalities directly under the central government. The supervisory departments determined by the people's governments of the provinces, autonomous regions and municipalities directly under the Central Government shall be specifically responsible for the admission, withdrawal, daily supervision and risk disposal of the financial guarantee companies in their respective jurisdictions, and shall report their work to the inter-ministerial joint conference on the supervision of the financial guarantee business established by the State Council.
Chapter II Establishment, Change and Termination
Article 8 The establishment of a financial guarantee company and its branches shall be examined and approved by the supervisory department.
Financial guarantee companies and their branches that have been approved for establishment shall be issued an operating license by the regulatory authorities and shall apply for registration with the administration for industry and commerce on the basis of such license.
No unit or individual may operate a financial guarantee business without the approval of the supervisory department, and may not use the word financial guarantee in its name, except as otherwise provided by laws and administrative regulations.
Article 9 The establishment of a financial guarantee company shall be subject to the following conditions:
(1) There is a charter that conforms to the provisions of the Company Law of the People's Republic of China*** and the State.
(2) There are shareholders with the ability to continue to contribute.
(C) have a registered capital in line with the provisions of these measures.
(d) There are directors, supervisors, senior management and qualified practitioners who meet the qualifications.
(v) It has a sound organizational structure, internal control and risk management system.
(vi) Have business premises that meet the requirements.
(vii) Other prudential conditions stipulated by the regulatory authorities.
The qualification management measures for directors, supervisors, senior managers and practitioners shall be separately formulated by the Inter-Ministerial Joint Conference on the Supervision of Financial Guarantee Business.
Article 10 The supervisory authority shall prescribe the minimum registered capital of a financial guarantee company according to the local actual situation, but it shall not be less than RMB 5 million.
The registered capital shall be paid-in monetary capital.
Article 11 The establishment of a financial guarantee company shall submit the following documents and information to the regulatory authorities:
(1) Application. It shall contain such matters as the name, residence, registered capital and business scope of the financial guarantee company to be established.
(ii) Feasibility study report.
(C) draft charter.
(iv) Register of shareholders and their capital contribution and shareholding structure.
(E) proof of capital verification of the shareholders' capital contribution and proof of creditworthiness of shareholders holding more than 5% of the registered capital and related information.
(vi) Proof of the qualifications of the proposed directors, supervisors and senior management.
(vii) Business development strategies and plans.
(viii) Proof of business premises.
(ix) Other documents and information required by the regulatory authorities.
Article 12 The financial guarantee company shall be examined and approved by the supervisory department for one of the following changes:
(1) Change of name.
(ii) Change of organizational form.
(C) Change of registered capital.
(iv) Change of company residence.
(v) Adjustment of the scope of business.
(vi) Change of directors, supervisors and senior management.
(vii) Change of shareholders holding more than 5% of the shares.
(viii) Separation or merger.
(ix) Amendment of the Articles of Association.
(j) Other changes prescribed by the regulatory authorities.
Financial guarantee companies change matters related to company registration, the regulatory authorities review and approval, in accordance with the provisions of the administrative departments for industry and commerce to apply for registration of changes.
Article XIII of the financial guarantee company across the provinces, autonomous regions and municipalities directly under the Central Government to set up branches, shall obtain the consent of the supervisory department where the financial guarantee company, and by the proposed establishment of the branch of the local regulatory review and approval.
Article XIV of the financial guarantee company due to separation, merger or dissolution of the articles of association of the company needs to be dissolved, shall be examined and approved by the supervisory department, and with the approval of the documents in a timely manner to the administration for industry and commerce to apply for cancellation of registration.
Article 15 of the financial guarantee company has a major illegal business practices, not to be revoked will seriously jeopardize the market order and harm the public interest, the regulatory authorities shall be revoked. Except as otherwise provided by laws and administrative regulations.
Article XVI of the financial guarantee company dissolved or revoked, should be set up in accordance with the law to liquidate the liquidation group, in accordance with the debt settlement plan to repay the debt in a timely manner. The supervisory department supervises its liquidation process.
The shareholders of the company shall not distribute the company's property or obtain any benefits from the company before the release of the guarantee liability.
Article 17 If a financial guarantee company is unable to settle its debts as they fall due, and its assets are insufficient to settle all the debts or it obviously lacks the ability to do so, it shall implement bankruptcy according to law.
Chapter III Scope of Business
Article 18 A financial guarantee company may, subject to the approval of the supervisory authorities, operate some or all of the following financial guarantee businesses:
(1) Loan guarantee.
(2) Bill acceptance guarantee.
(3) Trade finance guarantee.
(iv) Project financing guarantee.
(v) Letter of credit guarantee.
(vi) Other financial guarantee business.
Article 19 A financial guarantee company may, with the approval of the supervisory authority, engage in some or all of the following businesses:
(1) Litigation preservation guarantee.
(2) Performance guarantee business such as bidding guarantee, advance payment guarantee, project performance guarantee, and guarantee for timely repayment of final payment.
(3) intermediary services such as financing consulting and financial consulting related to the guarantee business.
(d) Investment of own funds.
(v) Other businesses prescribed by the regulatory authorities.
Article 20 A financial guarantee company may provide re-guarantees for the guarantee liabilities of other financial guarantee companies and handle bond issuance guarantee business, but it shall at the same time comply with the following conditions:
(1) No violation of laws or regulations in the past two years.
(ii) Other prudential conditions stipulated by the regulatory authorities.
Financial guarantee companies engaging in re-guarantee business shall, in addition to meeting the conditions set forth in the preceding paragraph, have a registered capital of not less than RMB 100 million and have been in continuous operation for more than two years.
Article 21 A financial guarantee company shall not engage in the following activities:
(1) Deposit taking.
(2) Granting loans.
(3) Entrusted with the issuance of loans.
(iv) Fiduciary investment.
(v) Other activities prohibited by the regulator.
Financial guarantee companies engaged in illegal fund-raising activities shall be investigated and dealt with by the relevant authorities in accordance with the law.
Chapter IV Business Rules and Risk Control
Article 22 A financial guarantee company shall establish and improve its corporate governance structure in accordance with the law, improve its rules of procedure, decision-making procedures and internal audit system, and maintain the effectiveness of corporate governance.
The financial guarantee companies that set up branches across provinces, autonomous regions and municipalities directly under the Central Government shall have more than two independent directors.
Article 23 A financial guarantee company shall establish a guarantee assessment system, decision-making procedures, after-the-fact recovery and disposal system, risk early warning mechanism and emergency response mechanism in accordance with the principle of prudent management, and formulate strict and standardized business operation procedures to strengthen the risk assessment and management of guarantee projects.
Article 24 A financial guarantee company shall be equipped with or employ professionals with relevant qualifications in economics, finance, law and technology.
The financial guarantee company that establishes branches across provinces, autonomous regions and municipalities directly under the Central Government shall establish a chief compliance officer and a chief risk officer. Chief compliance officer, chief risk officer should be obtained by lawyers or certified public accountants and other relevant qualifications, and has financial guarantee or financial experience as a person.
Article 25 A financial guarantee company shall establish a sound financial accounting system in accordance with the financial rules of financial enterprises and enterprise accounting standards and other requirements, and truly record and reflect the financial status, operating results and cash flow of the enterprise.
Article 26 The guarantee fee charged by a financial guarantee company may be determined by the independent negotiation between the financial guarantee company and the guaranteed person according to the degree of risk of the guaranteed project, but it shall not violate the relevant state regulations.
Article 27 The balance of the financial guarantee liability provided by a financial guarantee company to a single guaranteed person shall not exceed 10% of its net assets, the balance of the financial guarantee liability provided to a single guaranteed person and its related parties shall not exceed 15% of its net assets, and the balance of the guarantee liability provided to a single guaranteed person's bond issue shall not exceed 30% of its net assets.
Article 28 The balance of the financial guarantee liability of a financial guarantee company shall not exceed 10 times its net assets.
Article 29 Investments made by a financial guarantee company with its own funds shall be limited to fixed-income financial products with high credit ratings such as treasury bonds, financial bonds and debt financing instruments of large-scale enterprises, as well as other investments where there is no conflict of interest and where the total amount is not more than 20% of its net assets.
Article 30 A financial guarantee company shall not provide financial guarantees for its parent company or subsidiaries.
Article 31 A financial guarantee company shall withdraw a reserve for outstanding liabilities in accordance with 50% of the guarantee fee income of the year, and withdraw a reserve for guarantee indemnity in the proportion of not less than 1% of the balance of guarantee liability at the end of the year. If the reserve for guarantee indemnity reaches 10% of the balance of the current year's guarantee liability, the difference shall be extracted. The method of differential withdrawal and the utilization and management of the guarantee indemnity reserve shall be separately formulated by the regulatory authority.
The supervisory authority may, in accordance with the liability risk situation of the financial guarantee company and the needs of prudential supervision, put forward the request to increase the ratio of the guarantee indemnity reserve.
Financial guarantee companies shall implement risk classification management of guarantee liability and accurately measure the risk of guarantee liability.
Article 32 The financial guarantee company and the creditor shall establish a business relationship in accordance with the principle of consensus, and clearly agree in the contract on the way to assume the guarantee liability.
Article 33 A financial guarantee company shall, in handling financial guarantee business, agree with the guaranteed person that it shall have continuous access to the relevant information during the guarantee period and shall have the right to verify the relevant situation.
Article 34 The financial guarantee company and the creditor shall establish a mechanism for the exchange of relevant information of the guaranteed person during the guarantee period, strengthen the credit counseling and supervision of the guaranteed person, and ****together safeguard the lawful rights and interests of both parties.
Article 35 A financial guarantee company shall, in accordance with the provisions of the supervisory authorities, inform the relevant creditors of information on corporate governance, financial and accounting reports, risk management status, composition and utilization of capital, and the overall situation of the guarantee business.
Chapter V Supervision and Management
Article 36 The supervisory department shall establish and improve the system of collecting, organizing and statistically analyzing the information and data of the financial guarantee company and the supervisory score system, continuously monitor the operation and risk situation, and complete the institutional overview report of the supervised financial guarantee company for the previous year before the end of June each year.
Article 37 The financial guarantee company shall, in accordance with the provisions of the timely submission of operating reports, financial accounting reports, legal compliance reports and other documents and information to the regulatory authorities.
The various documents and information submitted by a financial guarantee company to the regulatory authorities shall be true, accurate and complete.
Article 38 A financial guarantee company shall report to the supervisory authority on the utilization of capital on a quarterly basis.
The supervisory authorities shall, in accordance with the needs of prudential supervision, put forward the capital quality and capital adequacy requirements of the financial guarantee company in due course.
Article 39 The supervisory authorities, according to the needs of supervision, have the right to require a financial guarantee company to provide special information, or to interview its directors, supervisors and senior management personnel for a supervisory conversation, and to require explanations or necessary rectification of the situation.
The supervisory authority may, when it deems necessary, notify creditors of irregularities or risks of the relevant financial guarantee company under its supervision.
Article 40 The supervisory authorities may, according to the supervisory needs, carry out on-site inspections of the financial guarantee company, and the financial guarantee company shall cooperate and provide relevant documents and information in accordance with the requirements of the supervisory authorities.
During the on-site inspection, the inspectors shall not be less than two persons and show the inspection notice and relevant documents to the financial guarantee company.
Article 41 In the event that a financial guarantee company incurs guarantee fraud, guarantee payment in lieu of compensation or investment loss the amount of which may amount to more than 5 percent of its net assets, as well as when directors, supervisors and senior management personnel are involved in serious violations of laws and regulations and other major events, it shall immediately take emergency measures and report to the supervisory authorities.
Article 42 A financial guarantee company shall promptly report to the supervisory authorities the important resolutions of the general meeting of shareholders or the shareholders' meeting, the board of directors and other meetings.
Article 43 The financial guarantee company shall hire a social intermediary organization to conduct an annual audit and report the audit report to the supervisory authority in a timely manner.
Article 44 The supervisory department shall, together with the relevant departments, establish a system for the discovery, reporting and disposal of emergencies in the financial guarantee industry, formulate a plan for the disposal of emergencies in the financial guarantee industry, clearly define the disposal organization and its duties, disposal measures and disposal procedures, and dispose of emergencies in the financial guarantee industry in a timely and effective manner.
Article 45 The supervisory department shall comprehensively analyze and assess the annual development and supervision of the financial guarantee industry in the jurisdiction at the end of each year, and report to the inter-ministerial joint conference on the supervision of financial guarantee business and the people's government of the province, autonomous region or municipality directly under the central government on the development of the financial guarantee industry in the jurisdiction in the previous year and the supervision of the situation before the end of February each year.
Supervisory departments shall promptly report to the inter-ministerial joint conference on the supervision of financial guarantee business and the people's governments of provinces, autonomous regions and municipalities directly under the central government on the major risk events and dispositions of the financial guarantee industry under their jurisdictions.
Article 46 The financial guarantee industry establishes an industry self-regulatory organization to perform the duties of self-regulation, rights protection and service.
The national self-regulatory organizations of the financial guarantee industry accept the guidance of the Inter-Ministerial Joint Conference on the Supervision of Financial Guarantee Business.
Article 47 The credit management department shall incorporate the relevant information of the financial guarantee company into the credit management system and provide services for the financial guarantee company to inquire the relevant information.
Chapter VI Legal Liability
Article 48 Personnel of the supervisory department engaged in supervisory and management work in one of the following cases shall be given administrative sanctions in accordance with the law; in case of constituting a crime, they shall be investigated for criminal liability in accordance with the law:
(1) Approval of the establishment, alteration, termination, and the scope of business of a financial guarantee company in violation of the provisions of the law.
(ii) Conducting on-site inspections of financial guarantee companies in violation of regulations.
(3) Failure to report major risk events and dispositions in accordance with the provisions of Article 45 of these Measures.
(D) Other violations of laws and regulations and the provisions of these Measures.
Article 49 If a financial guarantee company violates the laws, regulations and the provisions of these Measures, and the relevant laws and regulations provide for penalties, it shall be punished in accordance with the provisions thereof; and if the relevant laws and regulations do not provide for penalties, the supervisory authority shall order rectification, and may issue a warning or a fine; and if the violation constitutes a crime, it shall be held criminally liable in accordance with the law.
Article 50 Violation of the provisions of Article 8, paragraph 3 of these measures, unauthorized operation of the financial guarantee business, by the relevant departments shall be banned and punished; unauthorized use of financial guarantee in the name of the word, the supervisory department shall order correction, shall be punished according to law.
Chapter VII Supplementary Provisions
Article 51 The financial guarantee institutions other than those under the corporate system shall carry out the financial guarantee business with reference to the relevant provisions of these Measures, and the specific implementation measures shall be formulated by the people's governments of the provinces, autonomous regions, and municipalities directly under the central government, and shall be reported to the Inter-ministerial Joint Conference on the Supervision of Financial Guarantee Business for the record.
Foreign-invested financial guarantee companies shall be subject to these Measures, and laws and administrative regulations shall be applied in accordance with their provisions.
Methods for the administration of financial re-guarantee institutions shall be separately formulated by the people's governments of provinces, autonomous regions and municipalities directly under the central government, and reported to the Inter-ministerial Joint Conference on the Supervision of Financial Guarantee Business for the record.
Article 52 The people's governments of provinces, autonomous regions and municipalities directly under the central government may, in accordance with the provisions of these Measures, formulate implementing rules and report them to the Inter-ministerial Joint Conference on the Supervision of Financial Guarantee Business for the record.
Article 53 If a financial guarantee company that has been established before the implementation of these Measures does not comply with the provisions of these Measures, it shall, before March 31, 2011, meet the requirements set forth in these Measures. Specific standardization and rectification programs shall be formulated by the people's governments of provinces, autonomous regions and municipalities directly under the central government.
Article 54 These Measures shall come into force on the date of promulgation.