|
the Ministry of Commerce
Order of the Ministry of Commerce of the People’s Republic of China
No.28
The Measures for the Administration of Licenses for the Export of Goods, which were adopted at the 17th executive meeting of the Ministry
of Commerce on December 9th, 2004, are hereby promulgated and shall go into effect as of January 1st, 2005.
Minister Bo Xilai
December 10, 2004
Measures for the Administration of Licenses for the Export of Goods
Chapter I General Provisions
Article 1
With a view to reasonably allocating the resources, regulating the order of export business, constructing a fair and transparent trade
environment, performing international conventions and treaties promised by our country, and maintaining the economic interests of
the state and the national security, the present Measures are formulated according to the Foreign Trade Law of the People’s Republic
of China and the Regulation of the People’s Republic of China on Administration of the Import and Export of Goods.
Article 2
The state shall adopts a uniform system of licenses for the export of goods. The state shall adopts the export license administration
to the export goods under restriction.
Article 3
The Ministry of Commerce shall be the department of centralized administration of export licenses of the whole country, and shall
be responsible for formulating the rules and regulations on the administration of export licenses, supervising and inspecting the
implementation of the measures for the administration of export licenses and punishing the rule-breaking acts.
The Ministry of Commerce shall, together with the General Administration of the Customs, formulate, regulate, and promulgate the annual
Catalogue for Goods Subject to the Administration of Export Licenses. The Ministry of Commerce shall be responsible for formulating,
regulating and promulgating the annual Catalogue for Graded License Issuance of Goods Subject to the Administration of Export Licenses.
The Catalogue for Goods Subject to the Administration of Export Licenses and the Catalogue for Graded License Issuance of Goods Subject
to the Administration of Export Licenses shall be promulgated by the Ministry of Commerce in the form of public notice.
Article 4
The Ministry of Commerce shall authorize the Quota License Affaires Bureau (hereinafter referred to as the License Bureau) to be in
uniform charge and guide the work for the issuance of export licenses by the license-issuing agencies of the whole country. The License
Bureau shall be responsible to the Ministry of Commerce.
Article 5
The License Bureau, the special commissioner’s offices of the Ministry of Commerce in all localities (hereafter referred to as the
local special commissioner’s offices) and the commerce offices or bureaus and the commissions, offices or bureaus of foreign trade
and economic cooperation of all the provinces, autonomous regions, municipalities directly under the Central Government, cities directly
under state planning and other provincial capital cities authorized by the Ministry of Commerce shall be the export license issuing
agencies, and shall, under the uniform administration of the Licenses Bureau, be responsible for the work of issuance of licenses
within their respective authorized purview.
Article 6
The export licenses as referred to in the present Measures shall include export quota licenses and export licenses. For all the goods
subject to the administration of export quota licenses and export licenses, a foreign trade operator (hereinafter referred to as
an operator) shall apply for the export license to the designated license-issuing agency before export in light of provisions. The
customs house shall accept the declaration and release the goods on the basis of the export license.
Article 7
No export license may be sold, transferred, altered, forged or changed.
Chapter II Application Documents To Be Submitted for Export Licenses
Article 8
When applying for an export license, the operator shall carefully fill in one application form (the original) for the export license
according to the facts, and stamp on it with his seal. If the application is filed online, he shall carefully fill in the online
electronic application form according to the facts and send it to the corresponding license-issuing agency.
Article 9
When applying for an export license, the operator shall submit the relevant export quota of goods or other relevant approval documents
to the license-issuing agency.
Article 10
When applying for an export license, the operator shall submit to the license-issuing agency the Form for Archival Filing and Registration
of a Foreign Trade Operator annexed with the special seal for archival filing and registration of the foreign trade operator or the
Qualification Certificate of the Import and Export Enterprises of the People’s Republic of China or the approval certificate for
foreign-funded enterprises (the photocopy).
Chapter III Basis for Issuance of Export Licenses
Article 11
Every license-issuing agency shall issue export licenses pursuant to the following provisions on the basis of the scope in the Catalogue
for Goods Subject to the Administration of Export Licenses and the Catalogue for Graded License Issuance of Goods Subject to the
Administration of Export Licenses as formulated by the Ministry of Commerce:
1.
For the export goods subject to the quota license administration, the export license shall be issued on the strength of the documents
on quotas distributed by the Ministry of Commerce or the commerce offices (or bureaus), commissions (offices or bureaus) of foreign
trade and economic cooperation of all the provinces, autonomous regions, municipalities directly under the Central Government, cities
directly under state planning and other provincial capital cities authorized by the Ministry of Commerce (hereinafter referred to
as the local competent departments of commerce) and the export contract of the operator (a photocopy of the original);
2.
For the export goods applying quota bidding, the export license shall be issued on the strength of the name list of the bid-winning
operators and the quantity of bid-winning promulgated by the Ministry of Commerce, the Certificate for the Application of an Export
License of Goods Applying Quota Bidding or the Certificate for the Transfer and Acceptance of Commodities Applying Quota Bidding,
and the export contracts (a photocopy of the original) of the bid-winning operators.
3.
For the export of chemicals liable to produce drugs, the export license shall be issued on the strength of the Reply of the Ministry
of Commerce on the Export of Chemicals Liable To Produce Drugs and the export contracts (a photocopy of the original) of the export
operators.
4.
For the export of computers, the export license shall be issued on the strength of the Examination Form of Export Computer Technologies
approved by the Ministry of Commerce and the export contracts (a photocopy of the original) of the export operators.
5.
For the export of chemicals under supervision and control, the export license shall be issued on the strength of the approval documents
of the Office of State Leading Group for Performance of the Convention on Prohibition of Chemical Weapons and the export contracts
(a photocopy of the original) of the export operators.
6.
For the export of ozonosphere-consuming materials, the export license shall be issued on the strength of the approval documents distributed
by the Office of Import and Export Administration of Ozonosphere-consuming Materials of the state and the export contracts (a photocopy
of the original) of the operators. And
7.
For other export goods subject to the export license administration, the export license shall be issued on the strength of the approval
documents of the Ministry of Commerce and the export contracts (a photocopy of the original) of the operators.
Article 12
For goods under processing trade that are subject to export license administration, the license-issuing agency shall issue the export
license pursuant to the Catalogue for Goods Subject to the Administration of Export Licenses and the Catalogue for Graded License
Issuance of Goods Subject to the Administration of Export Licenses formulated by the Ministry of Commerce and on the strength of
the Approval Certificate for Processing Trades issued by the department for examination and approval of processing trades authorized
by the Ministry of Commerce and the approval documents for export (Goods subject to the administration of export quotas without using
the quantity of quotas shall be based on the approval documents of the Ministry of Commerce) as prescribed in Article 11 of the
present Measures, the customs declarations of import on processing trades and the export contracts (a photocopy of the original)
of operators.
For the export of chemicals under supervision and control, chemicals liable to produce drugs, ozonosphere-consuming materials and
other goods subject to the administration of international conventions in the form of processing trade, the export license shall
be issued in pursuance of Article 11 of the present Measures.
Article 13
When exporting self-produced goods subject to export license administration (including goods produced with imported materials and
exported again), the foreign-funded enterprise shall be treated according to the following provisions:
1.
For the export by a foreign-funded enterprise that has been approved, the license-issuing agency shall issue the export license on
the strength of the quantity of export quotas for foreign-funded enterprises granted by the Ministry of Commerce. If the goods are
subject to export quota bidding, the relevant approval documents as prescribed in Article 11 shall also be attached.
2.
For a foreign-funded enterprise that has been approved before the adjustment of the Catalogue for Goods Subject to the Administration
of Export Licenses, if its export products become new goods subject to export license administration due to the adjustment, the Ministry
of Commerce may check and ratify the export quotas for the foreign-funded enterprise on the strength of the approved business scope
and export scale of production. And the license-issuing agency shall issue the export license on the strength of the quantity of
export quotas of foreign-funded enterprises distributed by the Ministry of Commerce; and
3.
Where any investment project of a foreign-funded enterprise involves the export of goods subject to export license administration,
the examination and approval may be made according to the procedures for examination and approval only after having been approved
by the Ministry of Commerce in the phase of project initiation. For the projects failed to obtain the aforesaid approval, the Ministry
of Commerce shall not grant export quotas, and the license-issuing agency shall not issue the export license.
Article 14
Where any solely -owned enterprise, joint venture enterprise or contractual joint venture enterprise of China established overseas
or in Hong Kong and Macao needs the supply of domestic goods subject to export license administration, the license-issuing agency
shall issue the export license in pursuance of Article 11 of the present Measures on the strength of the approval documents of the
Ministry of Commerce and the approval certificate for overseas enterprises of the Ministry of Commerce or the approval certificate
for processing and assembling enterprises with overseas materials of the Ministry of Commerce.
Article 15
Where any enterprise, which has the qualification to manage the foreign economic and technological cooperation upon the approval of
the Ministry of Commerce, for the purpose of performing such project contracts as overseas contract engineering, labor service cooperation,
design and consultation, and etc., exports equipments (including a whole set of equipments), materials, construction appliances and
life materials for self-use of its personnel, which are part of the goods subject to the export license administration, the export
license shall be issued in according to Article 11 of the present Measures.
Article 16
For goods subject to export license administration for self-use and needed to be transported out of China in the export of complete
sets of equipments, the export license shall be issued according to Article 11 of the present Measures.
Article 17
For goods subject to export license administration for repayment of foreign loans or trade compensation, the license-issuing agency
shall issue the export license according to the Catalogue for Goods Subject to the Administration of Export Licenses and the Catalogue
for Graded License Issuance of Goods Subject to the Administration of Export Licenses on the strength of the export quotas granted
by the Ministry of Commerce for repayment of foreign loans or that of the trade compensation. Where any juridical person, other organization
or individual, which fails to go through procedures for archival filing and registration, undertakes the business of repayment of
foreign loans or trade compensation, he shall do the export business by entrusting an operator as an agent who shall apply for the
export license.
Article 18
When applying for export licenses, the operator shall declare faithfully in light of the present Measures, and may not falsify, or
cheat to obtain the export license by means of false contract or fake documents.
Chapter IV Issuance of Export Licenses
Article 19
Every license-issuing agency shall issue the export licenses for the relevant export goods strictly according to the requirements
in the annual Catalogue for Goods Subject to the Administration of Export Licenses and the Catalogue for Graded License Issuance
of Goods Subject to the Administration of Export Licenses within 3 workdays as of the date of receiving the application coincident
with the requirements. And no licenses may be issued in violation of the provisions. When exporting goods in the Catalogue for Goods
Subject to the Administration of Export Licenses, the operator shall apply for an export license to the license-issuing agency as
designated by the Catalogue for Graded License Issuance of Goods Subject to the Administration of Export Licenses.
Article 20
The License Bureau, all local special commissioner’s offices and local license-issuing agencies shall issue export licenses strictly
according to the Catalogue for Graded License Issuance of Goods Subject to the Administration of Export Licenses as promulgated by
the Ministry of Commerce. If online application for export licenses is carried out, the certificate issuance shall be made in light
of the relevant procedures and provisions.
1.
The scope of licenses to be issued by the License Bureau:
(1)
according to the Catalogue for Graded License Issuance of Goods Subject to the Administration of Export Licenses as prescribed by
the Ministry of Commerce, the export licenses within the scope of authorization of the Catalogue for Graded License Issuance of Goods
Subject to the Administration of Export Licenses; and
(2)
the export licenses of enterprises under the Central Government in Beijing.
2.
The scope of licenses to be issued by each local special commissioner’s office:
(1)
according to the Catalogue for Graded License Issuance of Goods Subject to the Administration of Export Licenses as prescribed by
the Ministry of Commerce, the export licenses to the operators within the contact area, the enterprises under the Central Government
within the contact area, and the subsidiary companies of the enterprises under the Central Government in Beijing whose quotas are
controlled by the local regions ;
(2)
according to the Catalogue for Graded License Issuance of Goods Subject to the Administration of Export Licenses as prescribed by
the Ministry of Commerce, the export licenses for quota bidding goods of any operator within the contact area; and
(3)
the export licenses for other goods as prescribed by the Ministry of Commerce.
3.
The scope of licenses to be issued by each local license-issuing agency:
(1)
the export licenses to local operators according to the Catalogue for Graded License Issuance of Goods Subject to the Administration
of Export Licenses as prescribed by the Ministry of Commerce; and
(2)
the export licenses for other goods as prescribed by the Ministry of Commerce.
4.
Goods whose licenses are issued by the designated license-issuing agencies:
For all the goods whose licenses are issued by the license-issuing agencies as designated by the Catalogue for Graded License Issuance
of Goods Subject to the Administration of Export Licenses, all operators shall apply export licenses to the designated license-issuing
agency without exceptions.
Article 21
No license-issuing agency may issue any export license without quota, or exceeding quota, or exceeding the authority or the scope
of license issuance. No staff member of any license-issuing agency may neglect his duty, seek private gains or misuse his authority
during the performance of his duty, and may not seek for the property of other people by taking advantage of the convenience of his
post or take the property of other people illegally for seeking interests for others.
Article 22
The administration of export licenses shall adopt the system of “one license for one customs house”, “one batch, one license” and
“non-one batch, one license”. The “one license for one customs house” shall mean that one export license may only be declared at
one customs house; and the “one batch, one license” shall mean that one export license may be used for customs declaration for once
within the period of validity.
Under the following circumstances, the system of “non-one batch, one license” shall be implemented, and the “non-one batch, one license”
shall be indicated in the remark column when issuing the export license:
1.
goods under export license administration of foreign-funded enterprises;
2.
goods under export license administration in compensation trade; and
3.
other goods under export license administration that adopts the system of “non-one batch, one license” as prescribed by the Catalogue
for Goods Subject to the Administration of Export Licenses.
The “non-one batch, one license” shall mean that one export license may be used for customs declaration for many times within the
period of validity but for twelve times at most. And the customs shall indicate in the column of “endorsement of customs examination
and release” the times for export of the goods batch by batch.
Chapter V Handling of Exceptions
Article 23
The overloaded goods shall be large goods in bulk. The amount of overload shall be handled according to the international trade convention,
that is, the amount of overload of large goods in bulk exported after customs declaration shall not exceed 5% of the amount of export
as listed in the export license. In the case of large goods in bulk which do not adopt the system of “one batch, one license”, the
amount shall be deducted after checking according to the actual export amount when each batch of the goods is exported, and the amount
of overload shall be calculated on the basis of the actual surplus export amount of the license and within 5% of the prescribed upper
limit of the overload when the final batch of goods is exported.
The license-issuing agency shall issue the license for export of goods of this kind strictly according to the amount of export quota
and the amount checked by the approval documents, verify and deduct the amount of quota according to the actual amount of the licenses
issued, and shall not issue licenses on the basis of the amount of export quota or the amount checked by the approval documents plus
the amount of overload allowed by international trade convention.
Article 24
Export licenses shall be exempted for goods subject to export license administration for projects of foreign economic aid. The relevant
provisions on the certificate for examination and release shall be formulated and promulgated by the Ministry of Commerce, the General
Administration of Customs and the State General Administration for Quality Inspection, Supervision and Quarantine.
Article 25
Provisions on exhibition articles, exhibition articles for sale and small articles for sale that are taken abroad (or out of the territory)
to take part in or for holding exhibitions are as follows:
1.
The export licenses shall be exempted for not-for-sale exhibition articles under export license administration, which are taken abroad
(or out of the territory) to take part in or for holding exhibitions. And the customs shall supervise, examine and release these
articles after examination on the basis of the approval documents for the exhibitions by the department of examination and approval
and the customs declaration on export goods. The entities participating in the exhibition shall, within 6 months after the end of
the exhibition, carry back exactly the amount of the not-for-sale exhibition articles for cancellation by the customs after verification.
Under special circumstances, the period may be postponed upon the approval of the customs.
2.
Where the exhibition articles for sale and the small articles for sale that are taken abroad (or out of the territory) for taking
part in or holding exhibitions are subject to the export license administration, the entities taking part in the exhibitions shall
apply to the license-issuing agencies as prescribed in the Graded License Issuance Catalogue for the export licenses without taking
the export quotas on the strength of the approval documents by the department for examination and approval of foreign economic and
trade exhibitions and the exhibition participation certificates by exhibition-holding institutions of foreign economic and trade
exhibitions. And
3.
For the chemicals under supervision and control, chemicals liable to produce drugs, ozonosphere-consuming materials and other goods
governed by international conventions, the export licenses shall be handled as normal export, and the provisions of items (1) and
(2) of this Article shall not be applied.
Article 26
Provisions on the samples of export goods and on samples of goods under export license administration that need to be provided for
cultural exchange and technology exchange are as follows:
1.
For the samples of goods or samples for experiment use, which are subject to the export license administration and shipped abroad
(out of the territory) by an operator, if the value of each batch of goods are RMB 30,000 Yuan or less, the export license shall
be exempted, and the customs shall check and release the goods on the strength of the customs declaration of the export samples filled
in by the operator; if the value exceeds RMB 30,000 Yuan, the goods shall be regarded as being exported normally, and the operator
may apply for an export license as required. The words “samples of goods” shall be indicated in the remark column of the export license.
And
2.
For the chemicals under supervision and control, chemicals liable to produce drugs, ozonosphere-consuming materials and other goods
governed by international conventions, the export licenses shall be transacted as normal export, and the provisions of item (1) of
this Article shall not be applied.
Article 27
If the donations provided by the Chinese government to foreign countries in light of the agreement or temporary decision between the
two governments, or the materials presented by the Chinese government or organization to the government or organization of the other
country based on the friendship, are subject to the export license administration, the export license shall be issued on the strength
of the relevant agreements or decisions without taking export quotas.
For other donations subject to export license administration, the export license shall be issued according to Article 11 of the present
Measures.
Chapter VI The Periods of Validity of Export Licenses
Article 28
The period of validity of export quota shall be before December 31 of the current year (including December 31), unless it is otherwise
specified. The operator shall apply for an export license to the license-issuing agency within the period of validity of the quota.
Article 29
Every license-issuing agency may issue export licenses of the next year in light of the export quotas granted by the Ministry of Commerce
or every local competent department of commerce from December 16 of the current year.
Article 30
The period of validity of an export license shall not exceed 6 months. If it is necessary to use an export license crossing years,
the deadline for the period of validity of the export license shall not exceed the end of February of the next year.
Where any goods under quota license administration is exported in the form of processing trade, the period of validity of the export
license shall be determined pursuant to the time limit for the export as checked and ratified by the Approval Certificate for the
Business of Processing Trade, but shall not exceed the end of February of the next year. If the time limit for export checked and
ratified pursuant to the Approval Certificate for the Business of Processing Trade exceeds the end of February of the next year,
the operator shall apply for extension to the original license-issuing agency before the end of February. The license-issuing agency
shall take back the original certificate and write off it in the license-issuing system, reissue the export license within the time
limit for export as determined pursuant to the Approval Certificate for the Business of Processing Trade after deducting the amount
that has been used, and indicate in the remark column the extension for use and the number of the original certificate.
The Ministry of Commerce may adjust the period of validity and the application time of export licenses of certain goods according
to the specific circumstances.
The export license shall be used within the period of validity; and if it exceeds the time limit, it shall be invalidated automatically,
and the customs shall not release the goods.
Article 31
In case an export license fails to be used within the period of validity due to some reasons, the operator shall apply for extension
to the original license-issuing agency within the period of validity of the export license. The license-issuing agency shall take
back the original license, write it off in the license-issuing computer management system, reissue an export license and indicate
in the remark column the extension for use and the number of the original license.
In case an export license is not fully used within the period of validity due to some reasons, the operator shall apply for extension
for the unused part to the original license-issuing agency within the period of validity of the export license. The license-issuing
agency shall take back the original license and cancel it after verification in the license-issuing system, then reissue an export
license after deducting the amount that has been used, and indicate in the remark column the extension for use and the number of
the original license.
Where an extension for any export license is handled by using the export quota of the current year, the extension period shall not
exceed the end of February of the next year of the period of validity of the export quota of the current year. If the period of validity
has been the end of February of the next year of the period of validity of the export quotas of the current year, the extension shall
not be permitted.
In case an application for extension fails to be filed within the period of validity of an export license, the export license shall
be invalidated automatically after expiration of the time limit. The license-issuing agency shall not go through the formalities
for extension of the license any longer. And the amount of goods under the export license shall be regarded as being automatically
given up by the quota holder.
Article 32
After an export license is issued, no entity or individual may alter the contents on the face of the license without approval. Where
it is necessity to alter the contents on the face of the license, the operator shall return the export license to the original license-issuing
agency within the period of validity of the export license, and reapply for an export license.
Article 33
In case an export license that has been received is lost, the operator shall report it in written form to the customs house at the
export port as indicated on the face of the license and the relevant license-issuing agencies at once, and publish an “Announcement
of Loss ” in national economic newspapers and periodicals. The license-issuing agency may, after verifying that the license really
has not passed through the customs, write off the license on the strength of the Announcement of Loss and issue a new license.
Article 34
If such entities as the customs, industry and commerce, public security, disciplinary inspection or the court need to make inquiry
about or investigation into any export license to any license-issuing agency, it shall show the relevant certificate according to
law, and then may the license-issuing agency accept the inquiry or investigation.
Article 35
Where the license-issuing agency is adjusted for any goods subject to the administration of export license administration, the original
license-issuing agency shall not reissue the export license for the goods as of the date of adjustment, and shall report the application
conditions of the operator before the adjustment to the license-issuing agency. The license applied for and received by the operator
before the adjustment shall be effective continuously within the period of validity. If the license is not used or not fully used
within the period of validity, the operator shall go through the formalities for extension to the adjusted license-issuing agency
as required.
Chapter VII Inspection and Punishment
Article 36
The Ministry of Commerce shall authorize the License Bureau to make regular inspections on each license-issuing agency. The inspection
shall involve the implementation of the present Measures by the license-issuing agency, and shall focus on whether there are issues
on issuing license by exceeding quotas, without quotas or exceeding the authority or grades in violation of regulations and other
issues in violation of the present Measures. The method of combining regular or irregular self-inspection of each license-issuing
agency with the spot check of the License Bureau shall be applied as the ways of inspection.
The License Bureau shall report the inspection conditions to the Ministry of Commerce.
Article 37
Every license-issuing agency shall transmit in time the data on license issuing pursuant to the provisions of the Ministry of Commerce
on online checking of licenses to ensure that the operators may successfully declare and ensure the checking of the customs. It shall
carefully check up the checked data fed back by the customs, and inspect in time the conditions for use of the licenses and find
out the current problems. The License Bureau shall report th
|
Standing Committee of the National People’s Congress of the People’s Republic of China
Order of the President of the People’s Republic of China
No. 31
The Law of the People’s Republic of China on the Prevention and Control of Environmental Pollution by Solid Wastes was amended and
adopted at the 13th session of the Standing Committee of the Tenth National People’s Congress of the People’s Republic of China on
December 29, 2004, and the amended Law of the People’s Republic of China on the Prevention and Control of Environmental Pollution
by Solid Wastes is hereby promulgated and shall come into force as of April 1, 2005.
President of the People’s Republic of China: Hu Jintao
December 29, 2004
Law of the People’s Republic of China on the Prevention and Control of Environmental Pollution by Solid Wastes
Chapter I General Provisions
Article 1
This Law is formulated for the purpose of preventing and controlling environmental pollution by solid wastes, safeguarding human health,
maintaining the ecological safety and promoting the sustainable development of economy and society.
Article 2
This Law shall be applicable to the prevention and control of environmental pollution by solid wastes within the territory of the
People’s Republic of China.
This Law shall not be applicable to the prevention and control of marine environmental pollution by solid wastes or of environmental
pollution by radioactive solid wastes.
Article 3
The State shall, in preventing and controlling environmental pollution by solid wastes, implement the principles of reducing the discharge
amount and harmfulness of solid wastes, fully and rationally utilizing solid wastes and making them through non-hazard treatment
so as to promote cleaner production and the development of recycling economy.
The State shall adopt economic and technical policies and measures in favor of the comprehensive use of solid wastes, and carry out
the fully recovery and rationally utilize to the solid wastes.
The State shall encourage and support to adopt the beneficial measures in favor of the environmental protection by centralized treatment
of solid wastes and promote the industrial development of prevention and control of environmental pollution by solid wastes.
Article 4
The people’s governments at or above the county level shall incorporate the prevention and control of environmental pollution by solid
wastes into national economy and the social development plan and adopt economic and technical policies and measures to facilitate
the prevention and control of environmental pollution by solid wastes.
When relevant departments of the State Council, the people’s governments at or above the county level and the relevant departments
thereof formulate plans regarding urban-rural construction, land use, regional development and industrial development, they shall
plan as a whole to take such factors into account to reduce the discharge amount and harmfulness of solid wastes and to promote
comprehensive use and non-harm treatment of solid wastes.
Article 5
For the prevention and control of environmental pollution by solid wastes, the State implements the principle that any entity or individual
causing the pollution shall be responsible for it in accordance with law.
The manufacturers, sellers, importers and users shall be responsible for the pollution prevention and control to solid wastes produced
by them .
Article 6
The State shall encourage and support scientific research on prevention and control of environmental pollution by solid wastes, technological
development and the promotion of advanced prevention and control technologies as well as dissemination of scientific knowledge in
the field of prevention and control of environmental pollution by solid wastes.
The people’s governments at all levels shall strength the publicity and education on the prevention and control of environmental pollution
by solid wastes and advocate favorable production methods and living styles in favor of the environmental protection.
Article 7
The State shall encourage the entities and individuals to purchase and use reproduced products and reusable products.
Article 8
The people’s governments at all levels shall give awards to the entities and individuals that have achieved outstanding successes
in the prevention and control of environmental pollution by solid wastes and in relevant activities of comprehensive use.
Article 9
All entities and individuals shall have the obligation to protect the environment and shall have the right to report or file charges
against those entities or individuals that cause environmental pollution by solid wastes.
Article 10
The administrative competent department of environmental protection of the State Council shall conduct unified supervision and management
of the prevention and control of environmental pollution by solid wastes throughout the country. The relevant departments of the
State Council shall be responsible for supervising and managing the prevention and control of environmental pollution by solid wastes
within their respective functions.
The administrative competent departments of environmental protection of the local people’s governments at or above the county level
shall conduct unified supervision and management to the prevention and control work on environmental pollution by solid wastes
within their own administrative areas. The relevant departments of local people’s governments at or above the county level shall
be responsible for supervision and management of the prevention and control of environmental pollution by solid wastes within their
respective functions.
The administrative competent department of construction of the State Council and the administrative competent departments of environmental
sanitation of the local people’s governments at or above the county level shall be responsible for supervising and administering
the cleaning, collection, storage, transportation and disposal of living wastes.
Chapter II Supervision and Administration of the Prevention and Control of Environmental Pollution by Solid Wastes
Article 11
The administrative competent department of environmental protection of the State Council shall, pursuant to state environmental quality
standards and state economic and technical conditions, formulate state technical standards on the prevention and control of environmental
pollution by solid wastes in collaboration with the relevant administrative competent departments of the State Council.
Article 12
The administrative competent department of environmental protection of the State Council shall establish a system for monitoring environmental
pollution by solid wastes, formulate unified monitoring standards and, in conjunction with relevant departments, set up a monitoring
network.
The administrative competent departments of environmental protection of people’s government in large and medium-sized cities shall
regularly issue the types, discharging amount, disposal conditions and other information regarding the solid wastes.
Article 13
The construction of projects which discharge solid wastes and the construction of projects for storage, use and treatment of solid
wastes shall be carried out the appraisal regarding their effects on environment according to law and in compliance with the relevant
state regulations concerning the management of environmental protection in respect of construction projects.
Article 14
The necessary supporting facilities for the prevention and control of environmental pollution by solid wastes as specified in the
appraisal document on the environmental effect of the construction project shall be designed, built and put into operation simultaneously
with the main part of the project. The construction project may be put into production or use, only after the facilities for the
prevention and control of environmental pollution by solid wastes are qualified upon examination to meet the standards by the administrative
competent department of environmental protection that has originally examined and approved the appraisal document on the environmental
effects . The facilities for the prevention and control of environmental pollution by solid wastes shall be checked and accepted
at the same time with the main part of the project is checked and accepted.
Article 15
The administrative competent department of environmental protection of the people’s government at or above the county level and other
supervisory and administrative departments for the prevention and control of environmental pollution by solid wastes shall, in accordance
with their respective functions, have the right to conduct on-site inspection of the entities related to the prevention and control
of environmental pollution by solid wastes within their jurisdictions. The entities under inspection shall faithfully report the
situation and provide necessary materials. The inspection organ shall keep confidential the know-how and business secrets of the
entities that is inspected.
When conducting on-site inspections, the inspection organ may adopt such measures as monitoring on the spot, collecting samples and
consulting or printing materials relating to the prevention and control of environmental pollution by solid wastes. The inspector
shall show their certificate when they conduct the on-site inspections.
Chapter III Prevention and Control of Environmental Pollution by Solid Wastes
Section I General Provisions
Article 16
Entities and individuals that discharge solid wastes shall adopt measures to prevent or reduce the environmental pollution by solid
wastes.
Article 17
Entities and individuals that collect, store, transport, utilize or dispose of solid wastes shall take measures to prevent the scattering,
run-off and leakage of solid wastes, as well as other measures against environmental pollution. Entities and individuals shall not
pour out, pile up, discard and perfuse over ground the solid waste without permission.
No entity or individual may dump solid wastes into or pile them up at rivers, lakes, ditches, reservoirs, bottomlands, banks or slopes
under the highest waterline or other places where the waste isn’t allowed to be dumped or piled up according to laws and regulations.
Article 18
Any entity shall abide by state rules about the cleaner production for designing and manufacturing products and packages. The administrative
competent department of standardization of the State Council shall, pursuant to state economic and technical conditions, prevention
and control situation of environmental pollution by solid wastes and technical requirements of products, formulate relevant standards
to prevent environmental pollution by over-package.
The enterprises producing, selling or importing products and packages that have been listed in the catalogue subject to mandatory
recycling shall reclaim the said products and packages according to state provisions.
Article 19
The State encourages scientific research and production institutions to do research on and manufacture plastic-sheet covering and
packages of commodities that are easy to be recycled and used, easy to be treated, or easy to be degraded in the environment.
Entities and individuals that use agricultural films shall take measures like the recycling for utilization so as to prevent or reduce
the environmental pollution by agricultural films.
Article 20
The engagement in the scale breeding of livestock and birds shall, according to relevant rules of the State, collect, store, utilize
and dispose dung of livestock and birds produced in the breeding so as to prevent environmental pollution.
No straw or stalk may be burnt in the open air of population-centralized districts, surroundings of airports, neighboring districts
of main communication arteries and districts as prescribed by the local people’s governments.
Article 21
Management and maintenance of facilities, equipments and places for collecting, storing, transporting and treating solid wastes shall
be strengthened so as to ensure their normal operation and function.
Article 22
No installation or site for centralized storage and treatment of industrial solid wastes or landfill of consumer wastes may be built
in the nature reserves, scenic resorts, conservation areas of drinking water and basic farmlands and other areas requiring special
protection that are prescribed by the State Council, relevant competent departments of the State Council and the provinces, autonomous
regions and municipalities directly under the Central Government.
Article 23
To transport any solid waste out of the administrative region of a province, autonomous region or municipality directly under the
Central Government for storage or treatment, one shall apply to the administrative competent department of environmental protection
of the people’s government of the province, autonomous region or municipality directly under the Central Government where the solid
waste is to be moved out for approval, which shall grant its approval after consulting with and obtaining permission from the administrative
competent department of environmental protection of the province, autonomous region or municipality directly under the Central Government
where the solid waste is to be accepted. No transfer may be carried out without approval.
Article 24
It is forbidden to dump, pile up or treat any solid waste from abroad within the territory of China.
Article 25
The State forbids the import of solid wastes that cannot be used as raw material and those that can’t be utilized through non-harm
treatment, and restricts the import of the solid wastes that can be used as raw materials and implements the classification management
of automatic licensing import thereto.
The administrative competent department of environmental protection of the State Council shall, in conjunction with the competent
department of foreign trade and the economic comprehensive macro-control department of the State Council, the General Administration
of Customs and the department of quality supervision, inspection and quarantine of the State Council, formulate, adjust and publish
solid waste catalogues of import-forbidden, import-restricted and automatic licensing import.
The import of solid wastes as listed in the catalogue of import-forbidden shall be forbidden. The import of solid wastes as listed
in the catalogue of import-restricted shall be examined and approved by the administrative competent department of environmental
protection of the State Council in collaboration with the competent department of foreign trade of the State Council. For any import
of solid wastes as listed in the catalog of automatic licensing import, formalities on the automatic licensing import shall be gone
through according to law.
The imported solid wastes shall comply with state environmental protection standards and be inspected to be qualified by the quality
supervision, inspection and quarantine department.
The specific measures for the administration of the import of solid wastes shall be formulated by the administrative competent department
of environmental protection of the State Council in collaboration with the competent department of foreign trade of the State Council,
the economic comprehensive macro-control department of the State Council, the General Administration of Customs and the quality supervision,
inspection and quarantine department of the State Council.
Article 26
Any importer that holds objections to the incorporation of his imported wastes into the administrative scope of solid wastes by the
customs may file an administrative reconsideration according to law or lodge an administrative suit to a people’s court.
Section II Prevention and Control of Environmental Pollution by Industrial Solid Wastes
Article 27
The administrative competent department of environmental protection of the State Council shall, jointly with the economic comprehensive
macro-control department of the State Council and other relevant departments, define boundaries of the pollution by industrial solid
wastes to the environmental, work out technical policies regarding the prevention and control thereof, and organize and promote
advanced production techniques and equipments for the prevention and control of environmental pollution by industrial solid wastes.
Article 28
The economic comprehensive macro-control department of the State Council shall, jointly with other relevant departments of the State
Council, organize the research, development and promotion of the production techniques and equipments that will reduce the discharge
amount and harmfulness of industrial solid wastes, and promulgate the list of backward production techniques and equipments that
cause severe environmental pollution by industrial solid wastes and thus should be eliminated within the time limit.
Producers, sellers, importers or users shall stop producing, selling, importing or using those equipments as included in the list
stipulated in the preceding paragraph within the time limit which are specified by the economic comprehensive macro-control department
of the State Council together with other relevant departments of the State Council. The users of such production techniques shall
stop using such techniques as included in the list stipulated in the preceding paragraph within the time limit as specified by the
economic comprehensive macro-control department of the State Council jointly with other relevant departments of the State Council.
Eliminated equipments included in the catalogue of equipments to be eliminated within a time limit shall not be transferred to any
other for use.
Article 29
The relevant departments of the people’s governments at or above the county level shall formulate a work plan for the prevention and
control of environmental pollution by industrial solid wastes, popularize the advanced production techniques and equipments which
can reduce the discharge amount and harmfulness of industrial solid wastes and promote the work on prevention and control of environmental
pollution by industrial solid wastes.
Article 30
Entities discharging industrial solid wastes shall establish and improve the responsibility system for the prevention and control
of environmental pollution and adopt measures for the prevention and control of environmental pollution by industrial solid wastes.
Article 31
Enterprises and public institutions shall rationally select and utilize the raw materials, energies and other resources, and adopt
advanced production techniques and equipments, so as to reduce the discharge amount and depress the harmfulness of industrial solid
wastes.
Article 32
The State institutes a system of declaration and registration for industrial solid wastes.
The entities discharging industrial solid wastes shall, in accordance with the regulations enacted by the administrative competent
department of environmental protection of the State Council, provide information about the categories, discharging amount, flow direction,
storage, treatment and other materials concerning industrial solid wastes to the administrative competent department of environmental
protection of the local people’s government at or above the county level where such entities are located.
Any significant modification of the declaration matters as prescribed in the preceding paragraph shall be declared in a timely manner.
Article 33
Enterprises and public institutions shall make use of industrial solid wastes produced thereby pursuant to economic and technical
conditions; for those industrial solid wastes that will not or can’t be utilized temporarily, enterprises and public institutions
shall, in accordance with the regulations of the administrative competent department of environmental protection of the State Council,
build facilities and sites for their safe and classified storage or carry out the non-harm treatment for them.
The construction of facilities and sites for storing and treating industrial solid wastes shall comply with state standards on environmental
protection.
Article 34
It is forbidden to close down, leave idle or dismantle, without approval, facilities or places for the prevention and control of environmental
pollution by industrial solid wastes. Where it is necessary to do so, prior verification and approval shall be obtained from the
administrative competent department of environmental protection of the local people’s government at or above the county level, and
measures shall be taken to prevent environmental pollution.
Article 35
Where it is necessary for the entities discharging industrial solid wastes to be terminated, measures for preventing and controlling
pollution shall be taken in advance to the facilities and sites for storing and treating industrial solid wastes, and the untreated
industrial solid wastes shall be disposed properly to prevent environmental pollution.
If an entity discharging industrial solid wastes has been altered, the altered entity shall, pursuant to state provisions about the
environmental protection, carry out the safety treatment or take measures for untreated industrial solid wastes and the storage and
treatment facilities and sites thereof so as to ensure the safe function of such facilities and sites. Where the parties concerned
have, prior to the alteration, otherwise stipulated the assumption of responsibilities for preventing and controlling pollution by
industrial solid wastes and the facilities and sites for storage and treatment, such stipulations shall prevail. However, the responsibilities
of the parties concerned to prevent and control pollution shall not be exempted.
The expenses, incurred from the safety treatment of untreated industrial solid wastes and the storage and treatment facilities and
sites of the entities that have been terminated prior to the implementation of the present Law, shall be borne by the relevant people’s
governments, however if the land use right of the said entity has been transferred according to law, the transferee thereof shall
undertake the expenses for the treatment. Where the parties concerned have other stipulations, such stipulations shall prevail. However,
the responsibilities of the parties concerned to prevent and control pollution shall not be exempted.
Article 36
A mining enterprise shall adopt scientific mining methods and techniques for mineral separation so as to reduce the production and
storage of gangues, waste rocks, mullocks and other mining solid wastes.
After the facilities for storing gangues, waste rocks, mullocks and other mining solid wastes aren’t used any more, a mining enterprise
shall, according to state provisions on environmental protection, close the fields to prevent environmental pollution and ecological
destroy.
Article 37
When dismantling, utilizing or disposing abandoned electronic appliances and motor vehicles and vessels, measures shall be taken to
prevent environmental pollution according to relevant laws and regulations.
Section III Prevention and Control of Environmental Pollution by living Wastes
Article 38
The people’s governments at or above the county level shall plan, as a whole, to build facilities for collecting, transporting and
treating urban-rural living wastes, improve the ratio of utilization and non-harm treatment of living wastes, promote industrial
development of collecting and treating living wastes, and progressively establish and perfect social service system for preventing
and controlling environmental pollution by living wastes.
Article 39
The administrative competent departments of environmental protection of the people’s governments at or above the county level shall
organize to clear, collect, transport and treat urban living wastes and may, by the way of bidding, choose qualified entities to
engage in the clearing, collection, transport and treatment of urban living wastes.
Article 40
Urban living wastes shall be placed at designated sites according to provisions as prescribed by the competent administrative departments
of environmental and sanitation, and shall not be dumped, cast or piled up at discretion.
Article 41
The clearing, collection, transportation and treatment of urban consumer wastes shall be conducted according to state provisions about
the environmental protection and environmental sanitation to prevent environmental protection.
Article 42
Urban living wastes shall be timely cleared and transported, progressively be collected and transported by different types, and be
reasonably utilized and be effected with non-harm treatment.
Article 43
Urban people’s governments shall, in a planned way, improve the composition of fuel, and develop coal gas, natural gas, liquefied
gas and other clean energy sources for use in urban areas.
Relevant departments of an urban people’s government shall arrange for the supply of clean vegetables to cities and towns so as to
reduce urban living wastes.
Relevant departments of an urban people’s government shall make an overall plan, rationally arrange for collecting and purchasing
networks, so as to promote the recycling of living wastes.
Article 44
The construction of facilities and sites for disposing living wastes shall comply with the standards on environmental protection and
environmental sanitation as prescribed by the administrative competent department of environmental protection of the State Council
and the administrative department of construction of the State Council.
It is forbidden to close down, leave idle or dismantle facilities and sites for disposing consumer wastes without approval. If it
is really necessary to close, leave idle or dismantle such facilities and sites, it shall be subject to the verification and approval
of the administrative competent department of environmental and sanitation and the administrative competent department of environmental
protection of the local people’s government at or above the county level, and measures shall be taken to prevent environmental pollution.
Article 45
The recycled substances from the living wastes shall be utilized pursuant to the uses and standards as set by the State, and shall
not be used to produce products that may do harm to human health.
Article 46
Entities undertaking constructions shall promptly clear and transport the solid wastes produced in the course of construction, and
utilize or dispose them pursuant to the provisions of the administrative competent departments of environmental and sanitation.
Article 47
An entity engaged in public transportation shall, pursuant to state regulations, clear up and collect the living wastes produced
in the course of transportation.
Article 48
Entities engaged in the development of new urban areas, the reconstruction of old areas and construction of residential quarters,
and operational and management entities located at airports, docks, stations, parks, stores and other public facilities and sites
shall build supporting equipments for collecting living wastes according to state regulations on environmental sanitation.
Article 49
The specific measures for the prevention and control of rural living wastes shall be prescribed by local regulations.
Chapter IV Special Provisions on the Prevention and Control of Environmental Pollution by Hazardous Wastes
Article 50
The provisions of this Chapter shall be applicable to the prevention and control of environmental pollution by hazardous wastes. Where
it is not covered by this Chapter, other relevant provisions of this Law shall be applicable.
Article 51
The administrative competent department of environmental protection of the State Council shall, jointly with other relevant departments
of the State Council, formulate a national catalog of hazardous wastes, lay down unified criteria and methods for identifying hazardous
wastes and recognizing symbol.
Article 52
A recognizing symbol of hazardous wastes shall be put on the containers and packages of hazardous wastes as well as on the facilities
and sites for collection, storage, transportation and treatment of hazardous wastes.
Article 53
An entity discharging hazardous wastes shall, pursuant to state provisions, work out a plan for managing hazardous wastes, and declare
the types, production quantity, flow direction, storage, treatment and other relevant materials to the administrative competent departments
of environmental protection of the local people’s governments at or above the county level.
The plan for managing hazardous wastes as mentioned in the preceding paragraph shall contain measures for reducing the discharge amount
and harmfulness of hazardous wastes and measures for storing, utilizing and treating hazardous wastes. The said plan shall report
to the local administrative competent department of environmental protection of the local people’s government at or above the county
level for archival filing where the entity is located.
Any significant modification of declaration matters as prescribed by this Article or the plan for managing hazardous wastes shall
be declared in a timely manner.
Article 54
The administrative competent department of environmental protection of the State Council shall, jointly with the economic comprehensive
macro-control department of the State Council, formulate the plan for constructing facilities and sites for centralized treatment
of hazardous wastes, which shall be implemented after being reported to the State Council for approval.
The people’s governments at or above the county level shall organize to build facilities and sites for centralized treatment of hazardous
wastes on the strength of the plans thereon.
Article 55
An entity that discharges hazardous wastes shall dispose hazardous wastes according to relevant provisions of the State, and shall
not dump or pile up them without approval; those that don’t treat hazardous wastes shall be ordered to correct within the time limit
by the e administrative competent departments of environmental protection of the people’s governments at or above the county level;
if an entity fails to treat within the time limit or in accordance with relevant provisions of the State, another entity shall be
commissioned to carry out the treatment by the administrative competent departments of environmental protection of the people’s governments
at or above the county level, and the expenses incurred therefrom shall be undertaken by the entity that discharges hazardous wastes.
Article 56
Where the treatment of hazardous wastes by the way of landfill doesn’t comply with the provisions as set by the administrative competent
department of environmental protection of the State Council, it shall pay discharging fees for hazardous wastes. The specific measures
for levying discharging fees of hazardous wastes shall be formulated by the State Council.
The discharging fees for hazardous wastes shall be used for the prevention and control of environmental pollution and shall not be
appropriated.
Article 57
Entities engaged in the collection, storage and treatment of hazardous wastes shall apply to the administrative competent department
of environmental protection of the people’s government at or above the county level for business licenses. Entities engaged in businesses
of utilizing hazardous wastes shall apply to the administrative competent department of environmental protection of the State Council
or the administrative competent department of environmental protection of the people’s government of a province, autonomous region
and municipality directly under the Central Government for business licenses. Specific measures for the administration thereof shall
be prescribed by the State Council.
It is forbidden to collect, store, utilize or treat hazardous wastes without a business license or against the provisions of the business
license.
It is forbidden to supply hazardous wastes to or
|
State Administration of Taxation
Notice of the State Administration of Taxation on Dealing with Tax Issues in Respect of Bad Debt Losses Incurred by Foreign-funded
Enterprises Engaging in Telecommunication Services
GuoShuiHan [2004] No.90
January 17, 2004
The administrations of state taxation of the provinces, autonomous regions, municipalities directly under the Central Government,
and cities directly under State Planning, and the Administration of Local Taxation of Shenzhen Municipality:
According to the information we receive, as a result of the fierce competition of the telecommunication industry and the lack of effective
measures for the control and recovery of defaulted fees, the foreign-funded enterprises engaging in telecommunication services have
incurred relatively large amounts of fees defaulted by the customers, and the defaulted sums are increasing every year. We hereby
notify as follows the relevant issues concerning dealing with the income tax in respect of the abovementioned fees defaulted by customers,
which can not be recovered:
1.
As of January 1, 2004, where a foreign-funded enterprise engaging in telecommunication industry is unable to recover the fees defaulted
by customers, whether previously or newly incurred, after one year as of the date of default, such defaulted sums may be dealt with
as the loss of bad debt, but payment for such loss shall be specified in the report form.
2.
Where the localities draw the provision for bad debt for telecommunication enterprises in accordance with Paragraph 1 of Article 9
of the Notice of the State Administration of Taxation on Several Operational Issues concerning the Implementation of the Law on
Income Tax of Foreign-funded Enterprises and Foreign Enterprises (GuoShuiFa [1991] No.165), such practice shall be stopped as of
January 1, 2004. The balance of the provision for bad debts drawn in the previous year shall be first used to set off the loss of
bad debts incurred in 2003. If there is any balance left after the set-off, such balance shall be included into the taxable income
of the current year.
|
|
State Administration of Taxation
2004-01-17
|
|
|
China Banking Regulatory Commission
Order of the China Banking Regulatory Commission
No. 1
Interim Measures for the Management of the Dealings of Derivative Products of Financial Institutions have been adopted at the chairman
meeting of China Banking Regulatory Commission and are hereby promulgated. The present Measures shall come into effect as of March
1, 2004.
Liu Mingkang, Chairman of the China Banking Regulatory Commission
February 4, 2004
Interim Measures for the Management of the Dealings of Derivative Products of Financial Institutions
Chapter I General Provisions
Article 1
With a view to regulating the dealings of derivative products of banking institutions, effectively controlling the risk of banking
institutions in the transaction of derivative products, the present Measures are formulated in accordance with Banking Supervision
Law of People’s Republic of China and Commercial Bank Law of People’s Republic of China and other relevant laws and regulations.
Article 2
The term of financial institutions as mentioned in the present Measures refers to the banks, trust and investment companies, finance
companies, financial leasing companies, legal person of auto financing companies and branches of foreign banks established within
the territory of People’s Republic of China (hereinafter referred to as branches of foreign banks).
Article 3
The term of derivative products as mentioned in the present Measures refers to a certain type of financing contract the value of which
subjects to one or more than one basic assets or index. Basic types of these contracts are futures, transaction at usance, swap transaction
and futures rights. Derivative products also including structural financial tools that have one or more characteristic of futures,
transaction at usance, swap transaction and futures rights.
Article 4
The dealings of derivation products of financial institutions referred to in the present Measures can be divided into two categories
as followed:
(1)
The derivative product transactions for the purpose of making profit or avoiding risk of their own capital and debt. The financial
institutions are regarded as the final customer of derivative product.
(2)
Financial institutions provide the derivative product transactions to clients (including financial institutions). Financial institutions
are regarded as the broker of the derivative product transactions and those brokers who provide quoting service and negotiable service
to other brokers and clients are regarded as the market manipulators of derivative products.
Article 5
China Banking Regulating Commission (hereinafter referred as to CBRC) shall be responsible for supervision over the derivative product
transactions of financial institutions. Financial institutions shall pass the examination and approval of CBRC and accept the supervising
and administration of CBRC in operating the derivative product transactions.
Any non-financial entity shall not provide the dealing services of derivative product to the clients.
Article 6
Financial institutions shall observe the provisions on foreign exchange and other relevant provisions in operating the derivative
product transactions related with the foreign exchange, stocks and commodities and derivative product transactions on exchange.
Chapter II Administration of Market Access
Article 7
Financial institutions that apply for the operation of the derivative product transactions shall meet the following requirements
(1)
Having a perfect risk control system and internal controlling system of the derivative product transactions;
(2)
Having a operating system of auto-connection of the derivative product transactions and real-time risk control system;
(3)
Operating staff of the derivative product transactions shall has an experience of directly operating the derivative product transactions
and risk control for more than 5 years, and shall not have any defective record;
(4)
Having at least 2 operating staff that has over 2 years experience of the derivative product transactions and related derivative product
transactions and over half a year experience of special training of operating skill of the derivative product transactions, 1 executive
of risk control, 1 staff for risk model research or analyses. The mentioned staff shall be sole duty person and shall not hold a
concurrent post or have any defective record;
(5)
Having appropriate trading floor and equipment;
(6)
If the branches of foreign banks plan to run the derivative product transactions, the registered country shall have a legal system
of supervising and regulating the derivative product transactions and the competent authority of the country shall have the capability
of supervising and regulating;
(7)
Other requirements of CBRC.
The branches of foreign banks plans to run the derivative product transactions that can not meet the requirements of Item 1 to Item
5 shall conforms with Item 6, Item 7 of the preceding Paragraph and following requirements:
(1)
Having formal authorization concerning type and quota of the derivative product transactions and other matters from its headquarter,
(2)
Except definite provisions of its headquarter, all the derivative product transactions of the branches shall be operated through the
real-time system of the authorized headquarter, and the inventory adjusting, risk exposure operation and risk control shall be operated
by the headquarter.
Article 8
The Policy banks, Chinese-funded commercial banks (except the city commercial banks, rural commercial banks and rural cooperative
banks), trust and investment banks, finance companies, finance leasing companies, auto-financing companies shall, if they operate
transactions of derivative products, apply for certificate from CBRC by their legal representatives and be examined and approved
by CBRC.
City commercial banks, rural commercial banks and rural cooperative banks shall, if they operate transactions of derivative products,
submit the application materials to the local Banking Regulatory Bureau by their legal representatives and shall be examined and
approved by CBRC after the approval of local departments.
Foreign-funded financial institutions shall, if they operate the transactions of derivative products, submit application materials
signed by the authorized signer to the local Banking Regulatory Bureau and shall be examined and approved by CBRC after the approval
of local departments. Foreign-funded bank institutions that plan to operate the derivative product transactions in more than two
branches in the territory of China may submit the application materials to the local Banking Regulatory Bureau by their headquarters
or the main reporting bank of the foreign bank and shall be examined and approved by CBRC after the approval of local departments.
Article 9
Where financial institutions apply for the operation of the derivative product transactions, they shall submit the following documents
and materials in triplicate to CBRC or its agencies,
(1)
Application report, feasibility report, operation program or the derivative product transactions acquisition plan;
(2)
Internal executive regulation of the derivative product transactions;
(3)
Accounting system of the derivative product transactions;
(4)
List and resume of the governor and main derivative product transactions staff;
(5)
Authorized administrative system of risk exposure qualification or limitation;
(6)
Security testing report of trading floor, equipment and system;
(7)
Other documents and materials required by CBRC.
Branches of foreign banks operating the derivative product transactions that do not satisfy criteria listed in Item 1 to Item 5 of
Article 7 shall submit following documents to the local Banking Regulatory Bureau at the time of application,
(1)
Documents of formal written authorization from the headquarter to the branches of operating the derivative product transactions,
(2)
Promising letter from the headquarter of insuring the real-time derivative product transactions of all the derivative product transactions
of its branches through the system of the headquarters and taking charge of inventory adjusting, risk exposure operation and risk
control.
Article 10
Internal executive regulations of the financial institutions that operate the derivative product transactions shall essentially involve
following contents,
(1)
Rudder, operational procedure that shall reflect the principle of separation of pre-phase, middle-phase and after-phase, emergency
solution of the derivative product transactions;
(2)
Risk model index and qualification operation index;
(3)
Type of derivative product transactions and correspondent risk control system;
(4)
Risk report and internal audit system;
(5)
Executive and evaluation system of research and development of the derivative product transactions;
(6)
Rules of brokers;
(7)
Job responsibility system of derivative product transactions governors and questioning mechanism and prompting and restricting mechanism
of the governor at all level and traders;
(8)
Training program for the persons-in-charge and workers;
(9)
Other contents required by CBRC.
Article 11
CBRC shall give response within 60 days after the reception of all application materials submitted by the financial institutions according
to the present Measures.
Article 12
Legal person in the territory of China shall strictly examine the capability of risk control of its agencies in authorizing them to
operate the derivative product transactions and make formal written documents of authorization concerning type of derivative product
transactions and limitation. The agencies shall operate the derivative product transactions unifiedly through their headquarters’
real-time system, and their headquarters shall run inventory adjusting, risk exposure operation and risk control as a whole.
The aforesaid agencies shall report to the local Banking Regulatory Bureau within 30 days after the receipt of authorization or authorization-altering
documents from headquarter with aforesaid documents.
Chapter III Risk Management
Article 13
Financial institutions shall, according to its own characteristic of operating target, assets scale, managing ability and risk of
the derivative product transactions, make sure the capability of running the derivative product transactions and confirm the type
and scale of the derivative product transactions.
Article 14
Financial institutions shall, according to the classification of Article 4 , set up the sound systems of risk control, internal control
and operation corresponding to the type, scale and complexity of the operating derivative product transactions.
Article 15
Higher executives of financial institutions shall know the risk of the derivative product transactions, comprehensive management framework
involving principles, procedure, organization and power limitation of auditing, approving and evaluating the operation and risk control
of the derivative product transactions and shall be capable of acquiring information on the derivative product transactions through
independent risk control departments and sound examining and reporting system and giving corresponding supervision and guidance.
Article 16
Higher executives of the financial institutions shall decide the calculating method and index of risk exposure of the derivative product
transactions that is adaptive to the operation of their institutions, and shall make, regularly checkup and update the system of
risk exposure limit, loss limit and emergency solution according to the comprehensive ability, owned assets, profitability, operation
policy and estimation of market. Higher executive also shall make supervision and control procedure of limitations. Higher executives
of the financial institutions in charge of operating the derivative product transactions and of risk control shall be divided separately.
Article 17
Financial institutions shall make clear criteria of working certificate of traders, analyzers and other staff and arrange training
for the salesman and other operating staff according to the complexity of the derivative product transactions so as to ensure they
have efficient skill and competency.
Article 18
Financial institutions shall make sound policy of evaluating the other party of the derivative product transactions, including whether
the other party thoroughly understand the contract and the responsibility of perform it, whether the derivative product transactions
meet the real target of the other party and the evaluation of credit risk of the other party.
Financial institutions shall make special provisions on the qualification of the other party under the circumstance of high-risk derivative
product transactions type.
Financial institutions may reasonably rely on the formal written documents provided by the other party according to the principle
of good faith in performing the present Article.
Article 19
Financial institution shall explain the risk of the derivative product transactions to the institution or individual in operating
the derivative product transactions for them and shall get the confirmation letter from them so as to confirm that they have understand
and have the ability to bear the risk.
The information exposed to the institution or individual by the banking institution shall at least involve following contents,
(1)
Content and risk summary of the contract on the derivative product transactions,
(2)
Important factors influencing potential loss of the derivative product.
Article 20
Financial institutions shall appropriately and reasonably use all kinds of risk buffer measures like guarantee to reduce the credit
risk of the other party of the derivative product transactions, evaluate the credit risk by using appropriate method and model and
apply corresponding risk control measures.
Article 21
Financial institutions shall evaluate market risk of the derivative product transactions by using appropriate evaluation method or
model, handle the market risk according to the price principles, and adjust the operation scale, type and risk exposure level.
Article 22
Financial institutions shall make sound fluidity arrangements according to the scale and type of the derivative product transactions
in order to ensure the sufficient performing ability under the unusual market circumstances.
Article 23
Financial institutions shall establish and amplify sound systems and mechanisms of operating risk control so as to strictly control
the derivative product transactions risk.
Article 24
Financial institutions shall establish and amplify sound systems and mechanisms of legal risk control so as to strictly examine the
transacting qualification and legal status. Financial institutions shall, in signing the contract of the derivative product transactions
consult, refer to the legal documents world widely adapted, thoroughly consider factors like feasibility of demanding and saving
from damage on account of breaking a contract by using legal measures and take effective means to prevent legal risk in drafting
out transactions contract, negotiating and concluding, etc.
Article 25
Financial institutions shall submit accounting statement, statistic statement and other related reports of the derivative product
transactions to CBRC according to the provisions promulgated by CBRC.
Financial institutions shall disclose risk situation, loss situation, profit change and other unusual situation of the derivative
product transactions according to the provisions on information exposing promulgated by CBRC.
Article 26
CBRC have the privilege of inspecting materials and statements of the derivative product transactions from financial institutions
at any time and of inspecting regularly whether the risk control system, internal control system and operation system of the financial
institutions adapt the type of derivative product transactions they operate.
Article 27
Financial institutions shall timely and actively report to CBRC and submit corresponding solution under the circumstance of existing
big operation risk or tremendous loss in running the derivative product transactions.
Financial institutions shall timely and actively report detailed information to CBRC under the circumstance of important change of
operation, executive system or risk control of the derivative product transactions.
Financial institutions shall simultaneously send a copy to the State Administration of Foreign Exchange in the case that the aforesaid
matters related to the foreign exchange administration and external payment.
Article 28
Financial institutions shall properly conserve all the operation documents and documents, accounting books, original evidences, telephone
record and other materials of the derivative product transactions. Telephone record shall be conserved for more than half one year,
and other materials shall be reserved for 3 years after the maturity of the contract for the purpose of examination. The special
provisions of accounting prevail.
Chapter IV Penalty Provisions
Article 29
Where the traders of the derivative product transactions in the financial institutions violate these Measures or relevant provisions
of the institution resulting in heavy economic losses to the institution or the clients, financial institutions thereof shall give
the directly responsible higher executives and other governor and directly liable persons the penalty of demerit to expel. Those
who violate the Criminal law shall be transmitted to judiciary departments to investigate and affix criminal responsibility.
Article 30
Financial institutions that operate the derivative product transactions without permission of CBRC shall be given penalty by CBRC
according to Measures on Punishing Illegal Activity in Financing.
Non-financing institutions that violate these Measures and provide service of the derivative product transactions to the clients shall
be clamped down by CBRC and the illegal profit shall be confiscated by CBRC. Those violate criminal law shall be transmitted to judiciary
departments to investigate and affix criminal responsibility.
Article 31
CBRC shall respectively give penalty to the financial institutions that do not submit relevant statements, materials or that do not
expose related information according to the character of the institutions and Banking Supervision Law of People’s Republic of China,
Commercial Bank Law of People’s Republic of China, Regulations on Administration of Foreign-funded Financial institutions of People’s
Republic of China and other relevant laws, regulations and financial regulations.
CBRC shall give penalty to the financial institutions that provide fake information of the derivative product transactions or disguise
important information of the derivative product transactions according to Measures on Punishing Illegal Activity in Financing.
Article 32
CBRC can suspend or revoke the qualification of operating the derivative product transactions of the financial institutions under
the circumstance of finding the institutions did not effectively execute essential risk management and internal management system
of the derivative product transactions.
Chapter V Supplementary Provisions
Article 33
The power to interpret the present Measures shall remain with CBRC.
Article 34
The present Measures shall enter into effect as of March 1, 2004. If any provisions governing the derivative product transactions
of financial institutions issued previously are in conflict with the present Measures, the present Measures shall prevail
|
|
