Order of China Securities Regulatory Commission
(No.22)
"Measures for the Administration of Securities Investment Fund Management Companies" was deliberated and adopted at the 98th Chairman's Office Meeting of China Securities Regulatory Commission on June 29th, 2004, and approved by the State Council on August 2nd, 2004. Is hereby promulgated and shall come into force as of June 29, 2004. The Interim Measures for the Administration of Securities Investment Funds approved by the State Council on August 2, 2004 12,1October 5, 1997, 1997 and 165438 shall be abolished at the same time. Chairman: Shang Fulin
September 2004 16
Chapter I General Principles
first
In order to strengthen the supervision and management of securities investment fund management companies, standardize the behavior of securities investment fund management companies, and protect the legitimate rights and interests of fund share holders and related parties, these Measures are formulated in accordance with the Securities Investment Fund Law, the Company Law and other relevant laws and administrative regulations.
second
The term "securities investment fund management company" as mentioned in these Measures refers to an enterprise legal person established in People's Republic of China (PRC) with the approval of China Securities Regulatory Commission (hereinafter referred to as China Securities Regulatory Commission) and engaged in securities investment fund management business.
essay
A fund management company shall abide by laws, administrative regulations and the provisions of the China Securities Regulatory Commission, abide by good faith, be prudent and diligent, be faithful and conscientious, and be the fund share holder interest management and use the fund property.
Article 4
The China Securities Regulatory Commission and its dispatched offices shall supervise and manage fund management companies and their business activities in accordance with the Securities Investment Fund Law, the Company Law and other laws and administrative regulations, the provisions of the China Securities Regulatory Commission and the principle of prudent supervision.
Article 5
Fund industry associations shall conduct self-discipline management of fund management companies and their business activities in accordance with laws, administrative regulations, provisions of China Securities Regulatory Commission and self-discipline rules.
Chapter II Establishment of Fund Management Companies
Article 6
To establish a fund management company, the following conditions shall be met: (1) Shareholders meet the provisions of the Securities Investment Fund Law and these Measures; (2) Having articles of association that comply with the Securities Investment Fund Law, the Company Law and the provisions of the China Securities Regulatory Commission. (3) The registered capital shall be no less than RMB 654.38+0 billion, and the shareholders must make contributions in cash, and the overseas shareholders shall make contributions in freely convertible currencies; (4) There are no less than 65,438+05 senior managers and business personnel who are engaged in research, investment, valuation and marketing in accordance with laws, administrative regulations and the provisions of the China Securities Regulatory Commission, and have obtained the qualification for fund practice; (5) Having business premises, safety precautions and other business-related facilities that meet the requirements; (6) Setting up organizations and posts with reasonable division of labor and clear responsibilities; (7) Having internal control systems such as supervision, auditing and risk control that meet the requirements of the China Securities Regulatory Commission; (8) Other conditions approved by the State Council and stipulated by the China Securities Regulatory Commission.
Article 7
The major shareholders of a fund management company refer to the shareholders whose capital contribution accounts for the highest proportion of the registered capital of the fund management company (hereinafter referred to as the capital contribution ratio) and is not less than 25%. Major shareholders shall meet the following conditions: (1) engaging in securities business, securities investment consulting, trust asset management or other financial asset management business; (2) Its registered capital is not less than 300 million yuan; (3) Good business performance and good asset quality; (4) It has been operating continuously for more than three complete fiscal years, with sound corporate governance and sound internal control system; (5) It has not been subjected to administrative punishment or criminal punishment for illegal acts in the last three years; (six) whether there is any misappropriation of customer assets and other acts that harm the interests of customers; (7) It is not being investigated by the regulatory authorities due to illegal acts, or it is being rectified; (8) It has a good social reputation, and has no bad records in the administrative organs such as taxation, industry and commerce, financial supervision, self-discipline management, commercial banks and other institutions in the last three years.
Article 8
The registered capital and net assets of the shareholders of the fund management company other than the major shareholders are not less than RMB 654.38+0 billion, and the asset quality is good, which meets the conditions specified in Items (4) to (8) of Paragraph 2 of Article 7 of these Measures.
Article 9
Among the Sino-foreign joint venture fund management companies, the domestic shareholders with the highest proportion of capital contribution shall meet the requirements of major shareholders as stipulated in the second paragraph of Article 7 of these Measures; Other domestic shareholders shall meet the conditions stipulated in Article 8 of these Measures. An overseas shareholder of a Sino-foreign joint venture fund management company shall meet the following conditions: (1) It is a financial institution established in accordance with the laws of the country or region where it is located, with legal existence and experience in financial asset management, with sound finances and good credit standing, and has not been punished by the regulatory authorities or judicial organs in the last three years; (2) The country or region where it is located has a sound securities law and regulatory system, and its securities regulatory agency has signed a memorandum of understanding on securities regulatory cooperation with the China Securities Regulatory Commission or other institutions recognized by the China Securities Regulatory Commission, and maintained an effective regulatory cooperation relationship; (3) The equivalent convertible currency with paid-in capital of not less than 300 million yuan; (4) Other conditions approved by the State Council and stipulated by the China Securities Regulatory Commission. The provisions of the preceding paragraph shall apply mutatis mutandis to investment institutions in Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan Province Province.
Article 10
The capital contribution ratio of shareholders of a fund management company shall conform to the provisions of the China Securities Regulatory Commission. Shareholders of a fund management company may not hold shares of other shareholders or have the rights and interests of other shareholders; It shall not belong to the same actual controller or have other related relationships with other shareholders. The proportion of foreign investment or equity owned by a Sino-foreign joint venture fund management company shall not exceed the commitment of the state securities industry to open to the outside world.
Article 11
An institution or institutions controlled by the same actual controller may not participate in more than two fund management companies, of which there shall be no more than one holding fund management company.
Article 12
To apply for the establishment of a fund management company, the applicant shall submit the application materials for the establishment in accordance with the provisions of the China Securities Regulatory Commission. The major shareholders shall organize and coordinate matters related to the establishment of a fund management company, and shall be mainly responsible for the authenticity and completeness of the application materials.
Article 13
During the application period, if the matters involved in the application materials have undergone major changes, the applicant shall submit updated materials to the China Securities Regulatory Commission within 5 working days from the date of the change; If the shareholders change, the application materials shall be re-submitted.
Article 14
The China Securities Regulatory Commission shall, in accordance with the provisions of the Administrative Licensing Law and the first paragraph of Article 14 of the Securities Investment Fund Law, accept the application for establishing a fund management company, examine it and make a decision.
Article 15
The China Securities Regulatory Commission may examine the application for the establishment of a fund management company in the following ways: (1) soliciting the opinions of relevant institutions and departments on the conditions of shareholders; (2) Examining the contents of the application materials by means of expert review and verification; (3) Conduct on-site inspection on the preparation of the fund management company within 5 months from the date of acceptance.
Article 16
If the China Securities Regulatory Commission approves the establishment of a fund management company, the applicant shall go through the registration formalities with the administrative department for industry and commerce within 30 days from the date of receiving the approval document; With the "Business License for Enterprise as a Legal Person" issued by the administrative department for industry and commerce, you can obtain the qualification certificate of fund management from China Securities Regulatory Commission. Sino-foreign joint venture fund management companies shall also apply for the approval certificate of foreign-invested enterprises and open foreign exchange fund accounts in accordance with the provisions of laws and administrative regulations. A fund management company shall announce the establishment of the company in the newspapers and periodicals designated by the China Securities Regulatory Commission within 10 days from the date of completing the industrial and commercial registration procedures.
Chapter III Alteration and Dissolution of Fund Management Companies
Article 17 If a fund management company changes the following major matters, it shall report to the China Securities Regulatory Commission for approval: (1) Change the shareholders, registered capital or the proportion of shareholders' investment; (2) Change of name and domicile; (3) amending the articles of association. (four) other important matters stipulated by the China Securities Regulatory Commission. Article 18 After a fund management company changes its shareholders, registered capital and shareholder contribution ratio, the conditions of shareholders, shareholder contribution ratio, number of shareholders participating in the fund management company and registered capital shall comply with the provisions in Chapter II of these Measures. Article 19 Shareholders of a fund management company shall abide by the following provisions when disposing of their capital contributions: (1) Shareholders shall be honest and trustworthy when transferring their capital contributions, abide by the commitments made when subscribing and accepting their capital contributions, and shall not harm the legitimate rights and interests of fund share holders; (2) Shareholders shall abide by the provisions of the Company Law on the preemptive right of other shareholders when transferring their capital contributions, and shall not take improper means such as falsely reporting the transfer price to harm the legitimate rights and interests of other shareholders; (3) The shareholders and the transferee shall clearly agree on relevant matters during the transfer period to ensure that the legitimate rights and interests of the fund management company and the fund share holders will not be harmed, and shareholders shall not dispose of their capital contributions through equity custody, trust contracts, secret agreements, etc. ; (4) The change of shareholders has not been approved by China Securities Regulatory Commission, and relevant legal procedures have been fulfilled. The transferor shall continue to perform the shareholder's obligations and bear corresponding responsibilities, and the transferee shall not exercise the shareholder's rights in any form; (5) Other provisions of laws, administrative regulations and the Articles of Association. Article 20 The registered capital increased by a fund management company must be contributed by shareholders in cash. Article 21 If a fund management company changes major events, it shall file an application for change in accordance with the provisions of the China Securities Regulatory Commission within 15 days from the date of the resolution of the board of directors or the shareholders' meeting; Where the transfer of shareholders' capital contribution is involved, if the fund management company fails to apply in accordance with the regulations, the relevant shareholders may apply directly. Article 22 The China Securities Regulatory Commission shall, in accordance with the provisions of the Administrative Licensing Law and the second paragraph of Article 14 of the Securities Investment Fund Law, accept the application of fund management companies to change major matters, conduct examination and make a decision. Twenty-third China Securities Regulatory Commission can take the form of inviting relevant personnel to talk, expert review and verification. , review the fund management company's application for changing major events. Where the major shareholders of a fund management company, the shareholders whose total contribution ratio exceeds 50%, and the shareholders who nominate the largest number of directors change, the China Securities Regulatory Commission shall conduct an audit in accordance with the provisions of these Measures on the establishment of a fund management company. Article 24 Where a major change in a fund management company involves a change in industrial and commercial registration, the fund management company shall, within 30 days from the date of receipt of the approval document, go through the formalities for registration of change with the administrative department for industry and commerce. If it is changed into a Sino-foreign joint venture fund management company, it shall also apply for the approval certificate of foreign-invested enterprises and open a foreign exchange capital account in accordance with relevant regulations. Article 25 The appointment or replacement of senior managers of a fund management company shall be handled in accordance with laws, administrative regulations and the provisions of the China Securities Regulatory Commission. Article 26 Where a major change in a fund management company involves a change in the contents of the fund management qualification certificate, the fund management company shall apply to the China Securities Regulatory Commission for renewal of the fund management qualification certificate. Article 27 A fund management company shall announce major changes in accordance with laws, administrative regulations and the provisions of the China Securities Regulatory Commission. Article 28 A fund management company shall be dissolved only after the China Securities Regulatory Commission cancels its fund management qualification. The dissolution of a fund management company shall be handled in accordance with the Company Law and other laws and administrative regulations.
chapter four
Establishment, alteration and cancellation of branches of fund management companies Article 29 A fund management company may establish branches or other branches as stipulated by the China Securities Regulatory Commission. Branches of a fund management company may engage in fund variety development, fund sales and other business activities authorized by the company. Article 30 To set up a branch, a fund management company shall meet the following conditions: (1) sound corporate governance, sound internal control, steady operation and strong ability of going concern; (2) The company has not been subjected to administrative punishment or criminal punishment for illegal acts in recent 1 year; (3) The company is not being investigated by the regulatory authorities for violations of laws and regulations, or is in the process of rectification; (4) The branch to be established has a qualified name, office space, business personnel, safety precautions and other business-related facilities; (5) The responsibilities of the branch to be established are clear and the management system is sound; (6) Other conditions stipulated by the China Securities Regulatory Commission. Article 31 To establish a branch, a fund management company shall submit application materials in accordance with the provisions of the China Securities Regulatory Commission within 05 days from the date of adoption of the resolution of the board of directors or the shareholders' meeting. Article 32 Accept the application of a fund management company to set up a branch, examine it and make a decision. The China Securities Regulatory Commission may conduct on-site inspections on the branches to be established. Article 33 Where a fund management company changes or cancels its branch, it shall report to the China Securities Regulatory Commission and the dispatched office of the China Securities Regulatory Commission where the branch is located within 15 days from the date of change or cancellation. Article 34 When a fund management company establishes a branch, it shall go through the registration formalities with the administrative department for industry and commerce within 30 days from the date of receiving the approval documents. Where a fund management company changes or cancels its branches, it shall go through relevant formalities with the administrative department for industry and commerce in accordance with relevant regulations. Article 35 A fund management company shall make an announcement in accordance with laws, administrative regulations and the provisions of the China Securities Regulatory Commission when establishing, changing or canceling its branches.
Chapter V Governance and Operation of Fund Management Companies
Article 36 A fund management company shall, in accordance with the Company Law and other laws and administrative regulations and the provisions of the China Securities Regulatory Commission, establish a governance structure with sound organizational structure, clear division of responsibilities, effective checks and balances, and reasonable incentives and constraints, so as to maintain the company's standardized operation and safeguard the interests of fund share holders. Article 37 The shareholders of a fund management company shall fulfill their legal obligations and shall not make false capital contributions, withdraw capital contributions or withdraw capital contributions in disguised form. Article 38 A fund management company shall specify the powers and rules of procedure of the shareholders' meeting. A fund management company shall establish a business isolation system with shareholders; Shareholders shall exercise their rights in accordance with the law through the shareholders' meeting, and shall not directly interfere with the operation and management of the fund management company or the investment operation of the fund property outside the shareholders' meeting and the board of directors, and shall not require the fund management company to provide them with cooperation in securities underwriting, securities investment and other business activities, thereby damaging the legitimate rights and interests of fund share holders and other parties. Article 39 When the company cannot operate normally, the major shareholders of the fund management company shall, in accordance with the principle of protecting the interests of fund share holders, convene other shareholders and relevant parties to properly handle related matters. Article 40 A fund management company shall specify the powers and rules of procedure of the board of directors, and the board of directors shall, in accordance with laws, administrative regulations and the company's articles of association, formulate the basic system of the company, decide on major issues, and supervise, reward and punish management personnel. The board of directors and the chairman shall not interfere with the specific business activities of management personnel beyond their authority. Article 41 A fund management company shall establish and improve the system of independent directors, and the number of independent directors shall not be less than 3, and shall not be less than 65,438+0/3 of the board of directors. The following matters shall be considered by the board of directors and approved by more than two-thirds of the independent directors: (1) major related transactions in the investment and operation of the company and funds; (two) the audit of the company and the fund, hire or change the accounting firm; (3) Semi-annual reports and annual reports of funds managed by the company; (4) Other matters stipulated by laws, administrative regulations and the Articles of Association. Article 42 A fund management company shall establish and improve the system of inspector general. The inspector general is appointed by the board of directors, responsible to the board of directors, and supervises and audits the legality and compliance of the company's operations. When the inspector general discovers that the company has major risks or illegal behaviors, he shall inform the general manager and other relevant senior management personnel, and report to the board of directors, the China Securities Regulatory Commission and the dispatched office of the China Securities Regulatory Commission where the company is located. Article 43 A fund management company shall strengthen the supervisory role of the board of supervisors or executive supervisors over the company's finance and the performance of duties by the board of directors, and safeguard the legitimate rights and interests of shareholders. Article 44 The general manager of a fund management company is responsible for the operation and management of the company. Senior managers and other staff members of a fund management company shall faithfully and diligently perform their duties and shall not seek illegitimate interests for shareholders, themselves or others. Article 45 A fund management company shall, in accordance with the provisions of the China Securities Regulatory Commission, establish a scientific, reasonable, strict and effective internal control system, formulate a scientific and perfect internal control system, operate legally and in compliance, and keep the internal control sound and effective. Article 46 A fund management company shall establish and improve an investment management system consisting of authorization, research, decision-making, execution and evaluation, and treat the different fund assets and client assets it manages fairly. Article 47 A fund management company shall establish a sound fund financial accounting and fund asset valuation system, strictly abide by the relevant provisions of the state, and timely, accurately and completely reflect the fund assets. Article 48 A fund management company shall establish and maintain an information management system, strictly manage information, and ensure the safety, truthfulness and completeness of customer information. Article 49 A fund management company shall establish and improve customer service standards, strengthen sales management, standardize fund publicity and promotion, and shall not engage in unfair sales or unfair competition. Article 50 A fund management company may increase its registered capital according to the principle of prudent operation and the needs of business development. A fund management company shall draw risk reserves in accordance with regulations. Article 51 A fund management company shall manage and use its inherent funds in accordance with the provisions of the China Securities Regulatory Commission. The fund management company shall maintain the normal operation of the company and shall not damage the legitimate rights and interests of the fund share holders when managing and using the inherent funds. Article 52 A fund management company shall establish an effective management system and strengthen the management of its branches. Branches shall not operate by contracting, leasing, trusteeship or cooperation. A fund management company may set up an office, which shall not engage in business activities. Article 53 A fund management company shall establish an emergency plan system, and properly handle emergencies that seriously affect the interests of fund share holders, may cause systemic risks and seriously affect social stability according to the emergency plan.
Chapter VI Supervision and Administration
Article 54 Where a fund management company or its shareholders apply for approval of relevant matters, conceal relevant information or provide false materials, the China Securities Regulatory Commission will not accept it; Those that have been accepted shall not be approved. Article 55 The China Securities Regulatory Commission shall, in accordance with laws, administrative regulations, the provisions of the China Securities Regulatory Commission and the principle of prudential supervision, conduct off-site inspection and on-site inspection on the corporate governance, internal control, operating status, risk status and related business activities of fund management companies. Article 56 Off-site inspection is mainly conducted by reviewing the materials submitted by fund management companies. The fund management company shall submit the following materials to the China Securities Regulatory Commission and the dispatched office of the local China Securities Regulatory Commission: (1) the annual report of the fund management company audited by an accounting firm qualified to engage in securities-related business; (2) An annual evaluation report on the internal control of the fund management company issued by an accounting firm with securities-related business qualifications; (3) quarterly report and annual supervision and audit report; (four) other materials required by the China Securities Regulatory Commission in accordance with the principle of prudent supervision. Article 57 A fund management company shall submit an annual report and an annual evaluation report within 3 months from the end of the year; Submit quarterly supervision and audit report within 0/5 days after the end of the quarter and annual supervision and audit report within 30 days after the end of the year. Article 58 Under any of the following circumstances, the fund management company shall report to the China Securities Regulatory Commission and the dispatched office of the local China Securities Regulatory Commission within 5 days from the date of occurrence: (1) The capital contribution of the company's shareholders is subject to litigation preservation and other measures by the judicial organs; (2) The shareholders of the company dispose of their capital contribution; (3) The shareholders of the company merge, split up or have a major reorganization of assets and liabilities; (four) the shareholders of the company are investigated by the regulatory authorities or judicial organs; (5) Shareholders of the company enter liquidation procedures or are taken over; (6) The Company, its directors, senior managers and fund managers are subject to criminal and administrative penalties; (7) The company, its directors, senior managers and fund managers are placed on file for investigation by the regulatory authorities or judicial organs; (8) Significant changes have taken place in the company's financial position; (9) Other matters that have a significant impact on the company's operation. The fund management company shall immediately report to the China Securities Regulatory Commission and its dispatched offices in case of emergency as stipulated in Article 53 of these Measures. The establishment, change or cancellation of the office of a fund management company shall report to the China Securities Regulatory Commission and the local dispatched office of the China Securities Regulatory Commission within 15 days from the date of establishment, change or cancellation. Article 59 If an overseas shareholder of a Sino-foreign joint venture fund management company has requirements for filing overseas investment with the competent authority in the place where it is registered or where its main business activities are located, and the overseas shareholder submits relevant filing materials to the competent authority in the place where it is registered or where its main business activities are located according to law, it shall also send a copy to the China Securities Regulatory Commission. Article 60 The China Securities Regulatory Commission may take the following measures to conduct on-site inspections of fund management companies, and determine the objects, contents and frequency of on-site inspections according to the daily supervision: (1) Enter the fund management companies and their branches for inspection; (2) Requiring the fund management company to provide documents, meeting minutes, statements, vouchers and other materials related to the inspection items; (three) require the staff of the fund management company to explain the relevant inspection matters; (four) to consult and copy the documents and materials related to the inspection of the fund management company, and to seal up the documents and materials that may be transferred, hidden or damaged; (five) to check the system of the fund management company to manage business data by using electronic computers; (6) Other measures stipulated by the China Securities Regulatory Commission. Article 61 The China Securities Regulatory Commission shall conduct on-site inspections on fund management companies, with no less than two inspectors, and shall produce legal certificates; The fund management company has the right to refuse the inspection if there are less than two inspectors or they cannot produce legal certificates. China Securities Regulatory Commission may employ certified public accountants, lawyers and other professionals to provide professional services for inspection. Article 62 A fund management company and relevant personnel shall cooperate with the inspection by the China Securities Regulatory Commission, and shall not refuse or delay the provision of relevant information or provide untrue, inaccurate or incomplete information for any reason. Article 63 After on-site inspection of fund management companies, China Securities Regulatory Commission shall issue inspection conclusions to the inspected fund management companies. Article 64 If a fund management company violates laws, administrative regulations and the provisions of the China Securities Regulatory Commission, or has significant operational risks, the China Securities Regulatory Commission may order it to rectify and suspend related business; For the directly responsible person in charge and other directly responsible personnel, administrative supervision measures can be taken, such as supervision talks, issuing warning letters, recording them in the integrity file, suspending the performance of their duties, and determining that they are not suitable for relevant positions. After the fund management company completes the rectification, it shall submit a rectification report to the China Securities Regulatory Commission, and the China Securities Regulatory Commission shall check and accept it. Article 65 If the shareholders of a fund management company subscribe or transfer their capital contribution in violation of Article 19 of these Measures, or fail to perform their statutory obligations in violation of Article 37 of these Measures, the China Securities Regulatory Commission may order them to make corrections; For its directors, supervisors and senior managers, administrative supervision measures can be taken, such as supervision talks, recording in integrity files, and determining that they are not suitable for holding relevant positions. Article 66 If a fund management company and its shareholders, the directly responsible person in charge and other directly responsible personnel violate laws, administrative regulations and the provisions of the China Securities Regulatory Commission and should be given administrative punishment according to law, they shall be given administrative punishment in accordance with relevant regulations; Anyone suspected of committing a crime shall be transferred to judicial organs according to law and investigated for criminal responsibility.
Chapter VII Supplementary Provisions
Article 67 The term "Sino-foreign joint venture fund management companies" as mentioned in these Measures includes fund management companies jointly funded by overseas shareholders and domestic shareholders, as well as fund management companies changed by overseas shareholders' transfer and subscription of shares of domestic fund management companies. Article 68 Specific measures for the management of natural persons participating in fund management companies, fund management companies adopting the form of joint stock limited companies and setting up branches abroad shall be formulated separately by the China Securities Regulatory Commission. Article 69 These Measures shall come into force as of June 6, 2004. Order No.9 of China Securities Regulatory Commission "Rules for the Establishment of Foreign-funded Fund Management Companies" shall be abolished at the same time.