离岸银行业务管理办法 Administration of Offshore Banking Proc
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(Promulgated by the People's Bank of China on 23 October 1997, and effective as of 1 January 1998.) PART ONE GENERAL PROVISIONS Article 1 These Procedures are formulated in accordance with the PRC, Foreign Exchange Control Regulations in order to standardize offshore banking by banks. Article 2 For the purposes of these Procedures the term "banks" shall refer to Chinese banks and their branches which have been approved by the State Administration of Foreign Exchange to conduct foreign exchange business. Article 3 For the purposes of these Procedures the term "offshore banking" shall refer to non-residents' capital absorbed by the banks and to financial services provided to non-residents. Article 4 For the purposes of these Procedures the term "non-residents" shall refer to natural persons, legal persons (including Chinese overseas investment enterprises), government organizations, international organizations and other economic organizations outside China (including Hong Kong, Macao and Taiwan), and including the overseas branches of Chinese financial institutions but not including the representative organizations and offices outside China of organizations inside China. Article 5 The currency in which offshore banking is conducted shall be limited to freely exchangeable currencies. Article 6 The State Administration of Foreign Exchange and its branches (hereafter referred to as "foreign exchange administrations" shall be the authority supervising the conduct of offshore banking by banks and shall be responsible for examination, approval, administration, supervision and investigation of offshore banking. Article 7 Banks should conduct offshore banking in accordance with these Procedures and provide services to clients in accordance with international practices. PART TWO APPLICATIONS TO CONDUCT OFFSHORE BANKING Article 8 The conduct of offshore banking by banks should be approved by the State Administration of Foreign Exchange and remain within the scope of type of business approved. Unauthorized offshore banking, or unauthorized offshore banking outside the limits approved, may not be engaged in. Article 9 Banks which fulfil the following criteria may apply to conduct offshore banking: 1. adherence to State laws and regulations with no major violations of these for the past three years; 2. possession of the stipulated size of foreign exchange assets and good conduct of foreign exchange business; 3. possession of foreign exchange business personnel of the appropriate quality with no bad record in previous business activities. Senior personnel should have accumulated over five years experience in foreign exchange business and at least 50 per cent of other personnel should have accumulated over three years experience in foreign exchange business; 4. possession of a good internal administration and regulation system and risk control system; 5. possession of appropriate location and facilities to conduct offshore banking; and 6. other conditions required by the State Administration of Foreign Exchange. Article 10 Banks applying to conduct offshore banking should supply the following documents and information to foreign exchange administrations: 1. application to engage in offshore banking; 2. conduct of offshore banking feasibility study: 3. copy of the original licence to engage in foreign exchange business; 4. internal administration, regulation and risk control systems for offshore banking; 5. asset-liability and profit-loss forms for the past three years (consolidated foreign currency statement and consolidated Renminbi and foreign currency statement); 6. names and curriculum vitae of personnel in charge of offshore banking and of other personnel involved, plus their certificates of qualification to engage in foreign currency business issued by foreign exchange administrations; 7. information on location and facilities for the conduct of offshore banking; and 8. other documents and information required by the State Administration of Foreign Exchange. As well as supplying the above documents and information, bank branches applying to conduct offshore banking should also provide a document from their headquarters agreeing that they should engage in offshore banking, authorization from their headquarters to engage in offshore banking and a report checking and accepting their preparations for offshore banking issued by their headquarters. Article 11 Applications by bank headquarters to conduct offshore banking shall be examined and approved by the State Administration of Foreign Exchange. Applications by bank branches to conduct offshore banking shall be examined and approved by the State Administration of Foreign Exchange after initial examination by the local foreign exchange administration. Article 12 Once the State Administration of Foreign Exchange has received a bank's application to conduct offshore banking it should check and verify this and give a written reply within four months of the date of receipt of the application. If a bank does not fulfil the criteria to conduct offshore banking the State Administration of Foreign Exchange will return the application. Banks may not resubmit an identical application within six months of the application being returned. Article 13 A bank which does not start operations within six months of the date of receiving approval shall be regarded as having voluntarily stopped conduct of offshore banking. The State Administration of Foreign Exchange has the power to revoke the bank's qualification to conduct offshore banking. Article 14 Banks applying to halt conduct of offshore banking should submit the following documents and information to foreign exchange administrations: 1. application to halt offshore banking; 2. detailed explanation of halting of offshore banking (including reason for stopping offshore banking and measures and steps for clearing up creditor's rights and debts once offshore banking has been halted); and 3. other documents and information required by the State Administration of Foreign Exchange. As well as supplying the above documents and information, bank branches applying to halt offshore banking should provide a document from their headquarters agreeing to their halting of offshore banking. Article 15 Once the State Administration of Foreign Exchange has received an application to halt offshore banking it should give a written reply within four months of the date of receipt of the application. Banks may halt offshore banking once the application has been examined and approved by the State Administration of Foreign Exchange. Article 16 Banks may apply to conduct some or all of the following types of offshore banking business: 1. foreign exchange deposits; 2. foreign exchange loans; 3. interbank foreign exchange lending; 4. international settlements; 5. issue of wholesale transferable certificates of deposit: 6. foreign exchange guarantees; 7. consultancy and witness services; and 8. other business approved by the State Administration of Foreign Exchange. Article 17 For the purposes of these Procedures the term "foreign exchange deposits" is limited to the following: 1. a minimum deposit of the equivalent of US$ 50,000 in freely convertible currency by non-resident legal persons or a minimum deposit of the equivalent of US$ 10,000 in freely convertible currency by non-resident natural persons; and 2. non-cash deposits. For the purposes of these Procedures the term "inter-bank foreign exchange lending" refers to interbank lending between the bank and the international financial market or the offshore capital of another bank within China. For the purposes of these Procedures the term "issue of wholesale transferable certificates of deposit" refers to the issue of wholesale transferable certificates of deposit in the name of the bank's headquarters. Article 18 The State Administration of Foreign Exchange shall implement a system of face-to-face interviews before examination and approval of banks applying to conduct offshore banking. PART THREE ADMINISTRATION OF OFFSHORE BANKING Article 19 Banks should implement separate administration of offshore banking from on-record banking, set up independent offshore banking departments, deploy specialist personnel, set up independent offshore banking accounts, and use special offshore banking certificates and seals. Article 20 Banks conducting offshore banking should establish and perfect offshore banking finance and accounting systems. Offshore business shall be administered in separate accounts from onshore business, with year-end offshore assets-liabilities and profit-loss reported with after-tax onshore business. Article 21 Banks should monitor offshore banking risk independently. Foreign exchange administrations will enter offshore banking assets and liabilities on the foreign exchange assets and liabilities form and check these together. Article 22 Interest rates for offshore banking foreign exchange deposits and loans can be set in accordance with interest rates on the international financial market. Article 23 Banks attracting offshore deposits are exempt from paying the deposit reserve. Article 24 Banks issuing wholesale transferable certificates of deposit should report to the State Administration of Foreign Exchange for examination and approval. The State Administration of Foreign Exchange shall appraise and decide the scale and marketing conditions. Article 25 Offshore accounts shall be clearly marked "OSA" (Offshore Account). Article 26 Non-residents' remittances of funds to offshore accounts, from offshore accounts to accounts outside China and between offshore accounts shall move freely. Banks should move funds between offshore accounts and onshore accounts in accordance with the following provisions: 1. When funds are remitted from onshore accounts to offshore accounts the remitting bank should rigorously examine the valid business papers and valid certificates in accordance with the provisions on administration of settlement, sale and payment of exchange and with the provisions on regulation of payment of exchange and cancellation after verification for trade imports, and shall declare this in accordance with the International Payments Statistics Declaration Procedures. 2. When funds are remitted from offshore accounts to onshore accounts the remitting bank should rigorously examine the valid business papers and valid certificates in accordance with the provisions on administration of settlement, sale and payment of exchange and with the provisions on administration of cancellation after verification for export revenue, and shall declare this in accordance with the International Payments Statistics Declaration Procedures. Article 27 Limitations on size and time limits on compensation between the cash positions of offshore and onshore accounts shall be appraised and decided by the State Administration of Foreign Exchange. Without approval banks must not exceed the limits set. Article 28 Banks conducting offshore banking should send offshore banking financial reports and statistics reports to the foreign exchange administrations in accordance with the regulations. Article 29 If banks conducting offshore banking discover the following situations they should take the initiative in reporting to the foreign exchange administration within one working day and rectify matters in a timely fashion: 1. compensation between the cash positions of offshore account and onshore accounts exceeds the amount stipulated; 2. major losses in offshore banking operations; 3. other important and unusual circumstances in offshore banking; or 4. other circumstances the bank believes should be reported. Article 30 Foreign exchange administration shall conduct regular inspections and assessments of banks conducting offshore banking. The inspections and assessments shall cover: 1. quality of offshore banking assets; 2. offshore banking revenue; 3. implementation of internal offshore banking administration, regulation and risk control systems; and 4. other circumstances stipulated by the State Administration of Foreign Exchange. PART FOUR SUPPLEMENTARY PROVISIONS Article 31 Unauthorized conduct of offshore banking and conduct of offshore banking in excess of the limits set without the approval of the State Administration of Foreign Exchange shall be penalized by the foreign exchange administrations in accordance with the provisions of Article 41 of the PRC, Foreign Exchange Control Regulations. Instances that constitute crimes shall be prosecuted in accordance with the law. Article 32 Banks in violation of Article 22 of these Procedures shall be penalized by the foreign exchange administrations in accordance with Article 43 of the PRC, Foreign Exchange Control Regulations. Article 33 Banks in violation of Articles 24 or 27 of these Procedures shall be penalized by the foreign exchange administrations in accordance with Article 44 of the PRC, Foreign Exchange Control Regulations. Instances that constitute crimes shall be prosecuted in accordance with the law. Article 34 Banks in violation of Article 26 of these Procedures shall be penalized by the foreign exchange administrations in accordance with Articles 39, 40 and 48 of the PRC, Foreign Exchange Control Regulations. Instances that constitute crimes shall be prosecuted in accordance with the law. Article 35 Banks in violation of Articles 28 or 29 of these Procedures, or which do not co-operate with the foreign exchanges administrations' inspections and appraisals, shall be penalized by the foreign trade administrations in accordance with Article 49 of the PRC, Foreign Exchange Control Regulations. Article 36 These regulations do not apply to offshore banking conducted by foreign financial institutions. Article 37 The State Administration of Foreign Exchange is responsible for interpreting these Procedures. Article 38 These Procedures shall be effective as of 1 January 1998. |
