证券投资基金管理暂行办法
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(Approved by the State Council on November 5, 1997 and promulgated by the Securities Commission under the State Council on November 14, 1997) Chapter I General Provisions Article 1 These Measures are formulated with a view to strengthening the administration of securities investment funds, protecting the legitimate rights and interests of the parties interested and promoting sound and steady development of the securities market. Article 2 The securities investment funds (hereinafter referred to as the funds) referred to in these Measures mean an interest-sharing, risk-sharing collective securities investment mode, namely concentration of investors' funds through fund issuing units under the trusteeship of the fund trustees, funds administered and employed by fund administrators for engaging in investment in such financial tools as stocks and bonds. Article 3 Fund assets shall be independent of the assets of the fund trustees and fund administrators. Article 4 Whoever engages in fund operations and natural persons, legal persons and other organizations related to such operations within the territory of China shall abide by these Measures. Chapter II Fund Establishment, Raising and Transactions Article 5 Establishment of a fund shall be subject to the examination and approval of China Securities Supervisory and Control Commission (hereinafter referred to as CSSCC). Article 6 A fund sponsor may apply for the establishment of an open fund or may apply for the establishment of a closed fund. Article 7 The following terms shall be met for an application for the establishment of a fund: (1) its main sponsors are securities firms, trust and investment companies and fund administering companies established in accordance with relevant state provisions; (2) the actual capital of each sponsor shall not be less than RMB 300 million Yuan, and the main sponsors shall have experiences in securities investment and a record of consecutive profits for over three years. However, the fund administering companies are excluded; (3) the sponsors, fund trustees and fund administrators shall have sound organizational institutions and management system with good financial status and standardized acts of operations; (4) the fund trustees and fund administrators shall have a site for business operations, facilities for security and precaution and other business-related facilities commensurate with requirements; and (5) other terms prescribed by CSSCC. An applicant for the establishment of an open fund must also be able to ensure in qualified personnel and technical facilities the announcement at least once a week for the investors with respect to the net value of the fund assets and the bid price and the redemption price. Article 8 A fund sponsor applying for the establishment of a fund shall present the following documents to CSSCC: (1) an application report; (2) a list of sponsors and the agreement; (3) the fund deed and the trusteeship agreement; (4) the prospectus; (5) in the case of a securities company or a trust and investment company serving as the sponsor, financial reports of the sponsor in the past three years audited by an accountant firm; (6) legal opinion letter issued by a law firm; (7) a fund-raising proposal; and (8) other documents the presentation of which is required by CSSCC. The contents and formats of the fund deed, trusteeship agreement and prospectus of the preceding paragraph shall be prescribed by CSSCC. Article 9 The percentage of the fund sponsors' subscription of fund units in the total amount of the fund and the percentage of holding fund units in the total amount of the fund during the fund's existence shall be determined by CSSCC. Article 10 The existence of a closed fund shall not be less than five years and the minimum amount raised shall not be less than RMB 200 million Yuan. Article 11 Expansion of fund-raising and extension of a closed fund shall have the following qualifications and be subject to the examination and approval of CSSCC: (1) annual rate of returns is higher than the average rate of returns nationwide; (2) the fund trustee and the fund administrator have committed no major acts in violation of laws and regulations in the past three years; (3) the fund holders' meeting and the fund trustee's agreement on the expansion of fund-raising or extension; and (4) other qualifications prescribed by CSSCC. Relevant documents shall be presented in accordance with the requirements of CSSCC for application for expansion of fund-raising or extension. Article 12 The fund sponsors shall, three days prior to the fund-raising, publish the prospectus in the newspaper designated by CSSCC. Article 13 The duration of fund-raising of a closed fund shall be three months, which is to be calculated from the date of approval of the said fund. A closed fund can only be established when the fund raised within three months from the date of approval of the said fund exceeds 80% of the approved scale of the said fund. An open fund can only be established when the net sales within three months from the date of approval of the said fund exceed RMB 200 million Yuan. A closed fund shall not be established when the fund raised is less than 80% of the approved scale of the said fund on expiry of the duration of fund-raising of the said fund. An open fund shall not be established when the net sales within three months from the date of approval of the said fund are less than RMB 200 million Yuan. The fund sponsors must bear expenses for the fund-raising and the fund raised with additional calculation of bank current deposit interest must be refunded to fund subscribers within 30 days. Article 14 Bidding and redemption of an open fund can only be conducted in sites in conformity with the state provisions. The fund administrator and the fund trustee may, upon establishment of a closed fund, apply to CSSCC and securities exchanges for listing of the fund. Rules for fund listing shall be formulated by securities exchanges and submitted to CSSCC for approval. Chapter III The Fund Trustee and the Fund Administrator Article 15 The fund established upon approval shall entrust a commercial bank as the fund trustee for trusteeship of the fund assets and entrust a fund administering company as the fund administrator for administration and employment of the fund assets. Article 16 The fund trustee must be subject to the examination and approval of CSSCC and the People's Bank of China. Article 17 The fund trustee and the fund administrator shall be independent of each other administratively and financially, and their high-ranking administrative staff shall not take up concurrent positions of the other party. Article 18 The fund trustee shall have the following qualifications: (1) has a special fund trusteeship department; (2) has an actual capital not less than RMB 8 billion Yuan; (3) has adequate specialized staff conversant with trusteeship business; (4) has facilities for the safekeeping of the total assets of the fund; and (5) has capabilities of secure and high-efficiency settlement and delivery. Article 19 The fund trustee shall fulfil the following functions and responsibilities: (1) safekeeping of the total assets of the fund; (2) execution of the investment directives of the fund administrator and responsibility for the handling of fund transactions under the name of the fund; (3) supervision over the investment operations of the fund administrator, non-execution of the investment directives in violation of laws and regulations upon discovery and a report submitted to CSSCC; (4) reverification and examination of the net value of the fund assets and the fund price calculated by the fund administrator; (5) safekeeping of the account books and records of the fund for more than 15 years; (6) issuance of a report on the achievements of the fund, provision of information on the fund trusteeship and a report submitted to CSSCC and the People's Bank of China; and (7) other functions and responsibilities prescribed by the fund deed and the trusteeship agreement. Article 20 The fund trustee must strictly separate the fund assets under its trusteeship from the fund trustee's own assets, establish separate accounts for different funds and conduct the administration according to separate accounts. Article 21 The fund trustee having any of the following circumstances must, upon approval of CSSCC and the People's Bank of China, retire from office: (1) disbandment of the fund trustee, revocation and bankruptcy in accordance with law or its assets taken over by the person taking over; (2) the fund administrator has ample reasons to hold that change of the fund trustee is in the interests of the fund holders; (3) fund holders representing over 50% of the fund units demand the retirement from office of the fund trustee; and (4) the People's Bank of China has ample reasons to hold that the fund trustee is unable to continue to fulfil the functions and responsibilities of fund trusteeship. Article 22 The new fund trustee shall be subject to the examination and approval of CSSCC and the People's Bank of China; upon approval, the former fund trustee may retire from office. The fund under the trusteeship of the former fund trustee without being taken over by a new fund trustee shall terminate. Article 23 An application for the establishment of a fund administering company shall be subject to the examination and approval of CSSCC. Article 24 Establishment of a fund administering company shall have the following qualifications: (1) the main sponsors shall be a securities company and a trust and investment company established in accordance with relevant state provisions; (2) the operating status of the main sponsors has been good with consecutive profits in the last three years; (3) the actual capital of each sponsor shall be no less than RMB 300 million Yuan; (4) the minimum actual capital of the fund administering company proposed to be established shall be RMB 10 million Yuan; (5) has a clear-cut and feasible fund administration plan; (6) has qualified personnel for fund administration; and (7) other qualifications prescribed by CSSCC. Relevant documents shall be presented in accordance with the requirements of CSSCC for an application for the establishment of a fund administering company. Article 25 A fund administering company may, upon approval, engage in the following businesses: (1) business of fund administration; and (2) sponsorship for the establishment of funds. Article 26 A fund administrator shall fulfil the following functions and responsibilities: (1) employment of the fund assets in investment and administration of the fund assets in accordance with the fund deed; (2) payment of fund benefits to the fund holders in time and in full amount; (3) safekeeping of the account books and records of the fund for more than 15 years; (4) compilation of the financial report of the fund, making an announcement in time and submitting a report to CSSCC; (5) calculation and announcement of the net value of the fund and the net value of each fund unit asset; and (6) other functions and responsibilities prescribed by the fund deed. The administrator of an open fund shall also, in accordance with the relevant state provisions and the provisions of the fund deed, handle timely and accurately the bidding and redemption of the fund. Article 27 The fund administrator having any of the following circumstances must retire from office upon approval of CSSCC: (1) disbandment of the fund administrator, revocation and bankruptcy in accordance with law or its assets being taken over by the person taking over; (2) the fund trustee has ample reasons to hold that change of the fund administrator is in the interests of the fund holders; (3) the fund holders representing more than 50% of the fund units demand the retirement from office of the fund administrator; and (4) CSSCC has ample reasons to believe that the fund administrator is unable to continue to fulfil the functions and responsibilities of fund administration. Article 28 The new fund administrator shall be subject to the examination and approval of CSSCC; upon approval, the former fund administrator may retire from office. The fund under the administration of the former fund administrator without being taken over by a new fund administrator shall terminate. Chapter IV Fund Holders' Rights and Obligations Article 29 Fund holders have the following rights: (1) to attend or to entrust a representative to attend the fund holders' meeting; (2) to obtain fund benefits; (3) to oversee the fund management and obtain information on the status of the fund business and finances; (4) to bid, redeem or transfer fund units; (5) to obtain the surplus assets of the fund after settlements; and (6) other rights provided for in the fund deed. Article 30 A fund holders' meeting shall be convened in the event of any of the following circumstances: (1) revision of the fund deed; (2) termination of the fund ahead of time; (3) change of the fund trustee; (4) change of the fund administrator; and (5) other circumstances prescribed by CSSCC. Matters of the preceding paragraph shall, upon resolutions being adopted by the fund holders' meeting, be subject to the approval of CSSCC. Article 31 Fund holders shall fulfil the following obligations: (1) to abide by the fund deed; (2) to pay the amount subscribed to the fund and the prescribed fees; (3) to bear limited liabilities for the losses or termination of the fund; and (4) not to engage in any activity detrimental to the interests of the fund and other fund holders. Chapter V Investment Operations, Supervision and Administration Article 32 Prior to the establishment of a fund, the amount subscribed by the investors shall only be deposited in a commercial bank and shall not be used. Article 33 The investment combination of a fund shall conform to the following provisions: (1) the percentage of investment in stocks and bonds of a fund shall not be less than 80% of the total value of the assets of the said fund; (2) the stocks of a listed company held by a fund shall not exceed 10% of the net value of the assets of the said fund; (3) the securities distributed by a company held by the entire fund under the administration of the same fund administrator shall not exceed 10% of the said securities; (4) the percentage of investment in state bonds by a fund shall not be less than 20% of the net value of the assets of the said fund; and (5) other restrictions on percentage provided for by CSSCC. Article 34 Engagement in the following acts shall be prohibited: (1) mutual investment among funds; (2) engagement by fund trustees and commercial banks in fund investment; (3) buying and selling of securities by fund administrators in the name of funds by using funds not under the name of the funds; (4) engagement by fund administrators in any form in underwriting securities or engagement in other independently operated business of securities in addition to state bonds; (5) engagement by fund administrators in call loan business; (6) engagement in fund investment by using bank credit funds; (7) fund scalping by state-owned enterprises in violation of relevant state provisions; (8) fund assets used for mortgage, guarantee, call loans or loans; (9) engagement in securities credit transactions; (10) engagement in real estate investment with fund assets; (11) engagement in investment which might cause the fund assets to bear unlimited liabilities; (12) investment of fund assets in securities distributed by companies having relations of interests with the fund trustees or fund administrators; and (13) other acts prohibited by the provisions of CSSCC. Article 35 An open fund must keep adequate cash or state bonds to pay for the redemption. Article 36 The trusteeship fee of fund trustees, the remuneration for fund administrators and other expenses which may be deducted from the fund assets shall be handled pursuant to the relevant state provisions and made clear in the fund deeds and trusteeship agreements. Article 37 Fund trustees and fund administrators shall implement the financial accounting rules of the State and pay taxes in accordance with law. Article 38 Distribution of fund benefits shall take the form of cash at least once a year. The percentage of distribution of fund benefits shall not be less than 90% of the net returns of the fund. Article 39 CSSCC and the People's Bank of China shall, pursuant to their respective functions and powers, carry out inspection and audit from time to time over fund-raising, transactions, investment operations and related business activities and financial and accounting material. Fund trustees, fund administrators and related agencies and personnel shall provide the relevant information and material in time and shall not refuse and obstruct. Article 40 A fund shall terminate in the event of any of the following circumstances: (1) expiry of the duration of closure of a fund and extension has not been approved; (2) approval has been granted for the termination of a fund ahead of time; and (3) a fund which has been ordered by CSSCC to terminate due to major acts in violation of laws and regulations. Article 41 A settlement team must be formed to carry out settlement of the fund assets at the time of termination of a fund; the settlement results shall be submitted to CSSCC for approval and announced. CSSCC shall oversee the settlement process of a fund. Article 42 All surplus assets after settlement of a fund shall be distributed to fund holders according to the percentage of the fund units held by the fund holders in the fund assets. Chapter VI Penalty Provisions Article 43 Whoever establishes, raises or raises in disguised form a fund on one's own without approval shall be banned by CSSCC and ordered to refund the funds raised as well as their interests; where there are illegal gains, they shall be confiscated, and a fine more than 100% less than ten times of the amount of the illegal gains concurrently imposed; where there are no illegal gains, a fine under RMB 1 million Yuan shall be imposed. Article 44 Whoever lists for trading of a fund on one's own without approval shall be ordered by CSSCC to stop the trading and imposed a fine under RMB 1 million Yuan. Article 45 Whoever establishes a fund administering company on one's own or engages in business of fund administration on one's own without approval shall be banned by CSSCC; where there are illegal gains, they shall be confiscated and a fine more than 100% less than ten times of the amount of the illegal gains concurrently imposed; where there are no illegal gains, a fine under RMB 1 million Yuan shall be imposed. Article 46 Whoever engages in fund trusteeship business on one's own without approval shall be ordered to stop the fund trusteeship business, the illegal gains shall be confiscated and a fine under RMB 500,000 Yuan concurrently imposed. The fund trustee who fails to separate the fund assets under its trusteeship from the trustee's own assets in accordance with provisions, or fails to conduct separate-account administration of the fund assets shall be ordered to make a rectification, his/her illegal gains shall be confiscated and concurrently imposed a fine more than 100% less than five times of the amount of the illegal gains. Article 47 Any fund administrator who violates the provisions of Article 32 of these Measures shall be ordered to make a rectification; where there are illegal gains, they shall be confiscated and a fine more than 100% less than five times the amount of the illegal gains shall be concurrently imposed; where there are no illegal gains, a fine of less than RMB 500,000 Yuan shall be imposed. Article 48 Any fund administrator who violates the provisions of Article 33 of these Measures shall be ordered by CSSCC to make a rectification; where there are illegal gains, they shall be confiscated and a fine more than 100% less than three times of the amount of the illegal gains shall be concurrently imposed; where there are no illegal gains, a fine of under RMB 300,000 Yuan shall be imposed. Article 49 Whoever has committed any of the acts listed in Article 34 of these Measures shall be ordered to make a rectification; where there are illegal gains, they shall be confiscated and a fine more than 100% less than five times of the amount of the illegal gains shall be concurrently imposed; where there are no illegal gains, a fine of under RMB 500,000 Yuan shall be imposed. Article 50 Any fund administrator or fund trustee who indulges in self-seeking misconduct, operates in violation of regulations and fails to perform its functions and responsibilities in fund administration or fund trusteeship, or seriously neglects its duties resulting in bad fund management or major losses, shall be suspended and revoked of its fund administration business qualifications or fund trusteeship business qualifications in addition to penalty according to law. Article 51 Any fund administrator or fund trustee who, in violation of the provisions of Article 39 of these Measures, fails to provide or delays in providing relevant information and material, or refuses and hinders inspection and audit conducted according to law shall be ordered to make a rectification, administered a warning and concurrently imposed a fine of under RMB 50,000 Yuan. Article 52 Decisions on penalties prescribed in Articles 46, 47, 49, 50 and 51 of these Measures shall be made by CSSCC and the People's Bank of China pursuant to their respective functions and powers; however, no more than two penalties shall be imposed with respect to the same illegal act. Article 53 Whoever commits the securities fraudulent acts of manipulating the market price, inside trading or false statement shall be imposed penalties by CSSCC in accordance with law. Article 54 The person-in-charge held directly responsible and other persons directly responsible in violation of the provisions of these Measures, shall be temporarily suspended and revoked of its qualifications for operations in addition to imposing administrative sanctions according to law. Whoever causes losses to others in violation of the provisions of these Measures shall bear civil liability for compensation. Whoever constitutes a crime in violation of the provisions of these Measures shall be investigated of the criminal liability. Chapter VII Supplementary Provisions Article 55 The implications of the following terms in these Measures are: (1) "Fund unit" means the voucher the fund sponsor issues to unspecified investors indicating that the holder has asset ownership and right of distribution of benefits of the fund and other related rights and assumes corresponding obligations. (2) "An open fund" means a fund that the total amount of its fund issuance is not fixed, that the total number of fund units increases or decreases from time to time, that investors may bid or redeem the fund unit in accordance with the offering of the fund at business sites prescribed by the State. (3) "A closed fund" means a fund the total amount of its issuance is predetermined, the total number of fund units during closure remains unchanged and investors may transfer or buy and sell its fund units through securities markets after the fund is listed. (4) "Total value of fund assets" includes the aggregate of the value of all types of securities purchased by the fund, the principal and interests of bank deposits as well as the value formed by other investments. (5) "Net value of fund assets" means the value of the total value of fund assets minus the expenses which may be deducted from the fund assets pursuant to relevant state provisions. (6) "Net value of fund assets per unit" means the value of the net value of fund assets on the date of calculation divided by the total number of fund units on the date of calculation. (7) "Returns on the fund" include dividends, share interests, bond interests acquired through fund investment, difference in the buying and selling price of securities, interests from deposits as well as other revenues. (8) "Net returns on the fund" mean the balance of returns on the fund minus the expenses which may be deducted from the returns on the fund pursuant to relevant state provisions. Article 56 CSSCC shall organize the implementation of these Measures. Article 57 These Measures shall enter into force as of the date of promulgation. |
