境内机构对外担保管理办法
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中国人民银行令[1996]年3号 Article 1 These Procedures are formulated in accordance with the PRC， Security Law （the “Security Law”） and other State administrative laws and regulations relating to foreign exchange control in order to promote foreign economic and technological co-operation， support foreign trade development， promote the export of labour， introduce foreign advanced technology， equipment and capital， facilitate the development of financial activities as well as to standardize and strengthen the administration of the provision of security to foreign entities. Article 2 For the purposes of these Procedures， the term “provision of security to foreign entities” shall refer to the provision of security to foreign entities by domestic institutions （hereinafter referred to as the “Security Provider”） except foreign-invested financial institutions inside China， in the form of letters of guarantee， standby letters of credit， promissory notes and bills of exchange， of mortgages to foreign parties of property stipulated under Article 34 of the Security Law， and of pledges to foreign parties of moveable property stipulated under Section One of Part Four of the Security Law and of the rights stipulated under Article 75 of Section Two of Part Four of the Security Law， as undertakings to organizations outside China or foreign-invested financial institutions within China （creditor or beneficiary， hereinafter referred to as the “Creditor”） that when the debtor （hereinafter referred to as the “Secured Party”） fails to repay its debts as provided for in a contract， the Security Provider will perform its obligation to repay the debts. Security to foreign parties includes： 1. finance security； 2. finance lease security； 3. security under compensation trade arrangements； 4. security in connection with contracted projects outside China； 5. other security with a foreign debt nature. The Security Party shall not provide any security to foreign entities in the form of a lien or cash deposit. Security provided to financial institutions with foreign capital inside China shall be regarded as provision of security to foreign entities. Article 3 The State Administration of Exchange Control and its local offices （hereinafter referred to as the “SAEC”） are the administration authorized by the People's Bank of China to regulate the provision of security to foreign entities， and take charge of the examination， approval， control and registration， of such provision of security. Article 4 These Procedures shall govern the following Security Providers： 1. Financial institutions authorized to operate the business of providing security to foreign entities （other than foreign financial institutions）； 2. Non-financial enterprise legal persons， including domestic enterprises or foreign investment enterprises， with the ability to repay debts and discharge liabilities on behalf of other persons. Government organisations and institutions shall not provide security to foreign entities， except for utilizing loans provided by foreign governments or international economic organisations for on-lending as authorized by the State Council. Article 5 The aggregate liability of outstanding balances under security provided to foreign entities， internal foreign exchange security and foreign exchange debts of any financial institution shall not exceed 20 times the amount of its own foreign exchange funds. The outstanding balance of security given to foreign entities provided by any non-financial enterprise legal person shall not exceed 50 per cent of its net assets and shall not exceed the amount of its foreign exchange earnings of the previous year. Article 6 Domestic enterprises shall only provide security to foreign entities for their direct subsidiaries or for a proportionate share of the external debt of the enterprise in which it has invested as the Chinese Party. When a domestic non-trading enterprise is to provide security to foreign entities， the value of its net assets shall， in principle， be not less than 15 per cent of its total assets. When the provision of security to foreign entities is offered by a non-trading enterprise using domestic investment， the value of its net assets shall， in principle， be not less than 30 per cent of its total assets. Article 7 A Security Provider shall not provide any security to foreign entities for any enterprise that is suffering from business losses. Article 8 The party that provides security to foreign entities for foreign investment enterprises （not including wholly owned foreign enterprises） shall uphold the principle of shared risks and shared benefits and， at the same time， the proceeds of the foreign loan obtained by the Obligor shall be directed towards investment which are in line with the industrial policies of the Government. The foreign loan so obtained shall not be converted into Renminbi without approval. The Security Party shall not provide any security for the registered capital of a foreign investment enterprise. A party that provides security shall not do so for that proportionate share of a foreign debt taken up by the foreign party to a foreign investment enterprise， except where the said party providing security is a foreign investment enterprise. Article 9 In its examination and approval of the provision of security to foreign entities for a trading enterprise established outside China， the SAEC shall examine the scope of trading business， the ratio of assets to liabilities， and the profits and losses， of the Secured Party in order to determine the maximum value of the security to foreign entities that should be provided for the benefit of that Secured Party. In its examination and approval of the provision of security to foreign entities for an enterprise established outside China engaged in the performance of contracts for construction or engineering works， the SAEC shall examine the quantity of engineering and construction works under contract， the risks involved， the ratio of assets to liabilities， and the profits and losses， of the Secured Party in order to determine the maximum value of the security to foreign entities that should be provided for the benefit of that Secured Party. Article 10 Limits of authority for examination and approval of the provision of security to foreign entities： 1. Security to foreign entities to be provided for domestic enterprises， or security to foreign entities covering a period of one year （inclusive of one year） to be provided for foreign investment enterprises， shall be presented by the party that provides the security to the local SAEC of the relevant province， autonomous region， centrally-governed municipality， municipality under State planning or special economic zone for examination and approval； 2. Security to foreign entities covering a period of over one year （exclusive of one year） to be provided for foreign investment enterprises， or for any institution outside China， shall be presented to the local SAEC of the relevant province， autonomous region， centrally-governed municipality， municipality under State planning or special economic zone for preliminary examination， and， thereafter， for its submission to the State Administration of Exchange Control （Head Office） for final examination and approval. Article 11 The following information or a part thereof shall be submitted to SAEC by the party that wishes to provide the security for examination and approval： 1. approval and other relevant documents in respect of the Feasibility Study Report of the project for which security is to be provided； 2. the balance sheet of the party providing the security as audited by a registered accountant （in the case of a Security Provider belonging to a group of companies， the consolidated balance sheet of such group in addition to its individual balance sheet should be provided）； 3. the balance sheet of the Secured Party audited by a registered accountant； 4. letter of intent setting out an intention to provide security to foreign entities； 5. the principal contract for which security to foreign entities is to be provided， or the letter of intent or other relevant documents； 6. the information specified in Articles 8 and 9 hereof； 7. other information required by SAEC. Article 12 The party that wishes to provide security to foreign entities shall do so only after approval is granted by SAEC. Article 13 For the purpose of providing security to foreign entities， a written contract providing for the following rights and obligations of the Security Provider， the Creditor and the Secured Party shall be entered into by the parties concerned： 1. the Security Provider shall be entitled to supervise the capital and property of the Secured Party； 2. upon provision of security to foreign entities， any amendment to be made by the Creditor and the Secured Party to the principal contract which is being secured， shall require the consent of the Security Provider and the submission of such amendment to SAEC by the Security Provider for examination and approval； any amendment without the consent of the Security Provider and without approval by SAEC shall result in the automatic discharge of the obligations of the Security Provider （under the security contract）； 3. upon the provision of security to foreign entities， the Security Provider shall perform its obligations as laid down in the security contract during the effective term of the principal contract for which security is provided for. Upon the performance by the Security Provider of its obligations， the Security Provider shall be entitled to claim indemnification from the Secured Party； 4. after the provision of security， the Security Provider shall be discharged automatically from its obligations in the event of the Creditor defaulting in the performance of its obligations under the loan contract during the term of the security contract； 5. the Security Provider shall be entitled to require the Secured Party to perform or implement the terms and conditions of the counter-indemnity given by the Secured Party or to provide corresponding property for mortgage to the Security Provider； 6. the Security Provider shall be entitled to charge the agreed security fees. Article 14 Upon provision of security to foreign entities， the Security Provider shall handle procedures for the registration of the provision of security to foreign entities at the local SAEC. A non-financial institution shall， upon provision of security to foreign entities， complete an “External Security Registration Form” at the local SAEC within 15 days upon conclusion of the security contract， collect an “External Security Registration Certificate”。 The necessary amount of foreign exchange required for the performance of the security contract shall be paid or remitted after approval or verification is granted by the local SAEC， and the amount so remitted shall be deducted from the security and debt balances. A financial institution shall carry out periodic registration on a monthly basis and， within the first 15 days of each month， complete an “External Security Feedback Form” to report on the amount and particulars of the debt for which it has provided security in the previous month. Article 15 When an extension is required upon the expiry of any security term， the Security Party shall， 30 days prior to the maturity of the indebtedness， handle procedures for such extension with the local SAEC， which shall effect examination and approval within its terms of reference as set out in Article 10 hereof. Article 16 Where a Security Party is a non-financial institution， it shall， within 15 days after the maturity of the indebtedness secured by the security contract and the complete satisfaction of the security obligations， or the occurrence of other relevant circumstances leading to termination of the security contract， return the “External Security Registration Certificate” to the original issuing SAEC for the cancellation of the registration. Financial institutions shall handle such cancellation procedures on a monthly basis. Article 17 Any external security provided by a Security Party without the required approval shall render the relevant security contract null and void. Should a Security Party provide any external security without approval or should it fail to handle procedures for registration after providing an external security， SAEC shall， in the light of actual circumstances， give a warning， circulate a notice of criticism， suspend or cancel the business operation of the Security Party for the provision of external security. Article 18 These Procedures shall be applicable to the provision of external counter-indemnities. Article 19 These Procedures shall be effective as of 1 October 1996； and the Administration of Domestic Organizations Providing Foreign Exchange Guarantees to Foreign Entities Procedures， promulgated on the 26 September 1991 shall be repealed at the same time. The State Administration of Exchange Control shall be responsible for the interpretation of these Procedures. |
