境内机构对外担保管理办法实施细则 Administration of the Provision of Security to Foreign Entities by Domestic Institu

(Promulgated by the State Administration of Foreign Exchange on 11 December 1997 and effective as of 1 January 1998.)
颁布日期：19971211 　实施日期：19980101 　颁布单位：国家外汇管理局

　　PART ONE　GENERAL PROVISIONS

　　Article 1　These Rules are formulated in accordance with the Administration of the Provision of Security to Foreign Entities by Domestic Institutions Procedures (the 'Procedures'), in order to standardize the provision of security to foreign parties and to improve the control over provision of security to foreign parties.

　　Article 2　The State Administration of Foreign Exchange and its branches and sub-branches (the 'Administration of Foreign Exchange') shall be the authority to control the provision of security to foreign parties.

　　Article 3　The provision of security to foreign parties shall be subject to approval by the Administration of Foreign Exchange, except where these Rules provide other restrictions.

　　Article 4　For the purposes of the Procedures, 'provision of security to foreign parties' shall mean the provision by an organization within the People's Republic of China ( 'Security Provider') of a guarantees to foreign parties in the form of a letter of guarantee, standby letter of credit, promissory note and bils of exchange, or of a mortgage to foreign parties of property stipulated under Article 34 of the PRC, Security Law (the 'Security Law'), or of a pledge to foreign parties of movable property stipulated under Section 1 of Part Four of the Security Law and of rights stipulated under Article 75 of Section 2 of Part Four of the Security Law as undertakings to organizations outside the People's Republic of China or foreign-invested financial institutions within the People's Republic of China (creditors or beneficiaries, hereafter, 'Beneficiaries') that if a debtor (the 'Secured Party') fails to perform its obligations as provided for in a contract, the Security Provider will perform the obligations; or the Beneficiaries will receive repayment on a priority basis by evaluating the property mortgaged or the thing pledged in terms of money or through the proceeds of the auction or selling off of the property mortgaged or the thing pledged, in accordance with the Security Law.

　　Article 5　Relevant concepts in the second paragraph of Article 2 of the Procedures shall have the meanings set forth below:

　　1. 'Finance security' shall mean security for repayment of principal together with the interest thereon, provided by the Security Provider for the Secured Party's obtaining of financing from the Beneficiary. Methods of financing include borrowing, issuance of negotiable securities (excluding stocks), overdrafts, deferred payments, credit lines provided by banks, etc.

　　2. 'Finance lease security' shall mean security provided by the Security Provider to the lessor of equipment imported by the finance lease method, whereby the Security Provider undertakes that if the lessee fails to pay rent in accordance with the lease contract, the Security Provider will pay on its behalf.

　　3. 'Security under compensation trade arrangements' includes performance bonds denominated in cash foreign exchange and performance bonds not denominated in cash foreign exchange. Of such bonds, 'performance bond denominated in cash foreign exchange' shall mean security by which the Security Provider undertakes with the equipment supplier that if the importer, after having received equipment in conformity with the contract, fails to deliver the products to the equipment supplier or a third party designated thereby and is unable to pay the equipment price and the interest thereon in cash foreign exchange, then the Security Provider will compensate the equipment supplier according to the amount secured plus interest and relevant costs. Performance bonds not denominated in cash foreign exchange do not involve payment to the foreign party in cash foreign exchange, a

nd do not fall within the scope of security regulated by these Rules.

　　4. 'Security in connection with contracted projects outside the People's Republic of China' shall mean security whereby the Security Provider undertakes with the Secured Party that if the tenderer, after having won the tender or executed the contract, fails to execute a contract or fails to perform the contract within the specified time, then the Security Provider will, within the scope of the security, pay the amount specified in the contract to the party that invited the tender. It includes tender security, performance bonds, security for advance payment, etc.

　　5. 'Other security with a foreign debt nature' shall mean all security that may constitute a foreign debt other than the four types of security set forth above.

　　Article 6　The parties to security provided to foreign parties shall include Security Providers, the Secured Parties and Beneficiaries.

　　'Security Providers' shall mean organizations within the People's Republic of China that qualify as legal persons or have been authorized by legal persons and that satisfy Article 4 of the Procedures, including wholly Chinese-owned financial institutions, domestic investment enterprises and foreign investment enterprises, and excluding foreign-invested financial institutions within the People's Republic of China. Of such Security Providers, those guarantees provided to foreign parties shall be the guarantors, those providing mortgages to foreign parties shall be the mortgagors and those providing pledges provided to foreign parties shall be the pledgors.

　　'Secured Parties' shall mean domestic enterprises within the People's Republic of China, foreign investment enterprises, those wholly-owned subsidiaries of organizations within the People's Republic of China that have been registered outside the People's Republic of China, and enterprises in which Chinese parties have equity participation.

　　'Beneficiaries' shall mean organizations outside the People's Republic of China and foreign-invested financial institutions within the People's Republic of China. Of such Beneficiaries, those providing guarantees to foreign parties shall be the creditors, those providing mortgages to foreign parties shall be the mortgagees and those under pledges provided to foreign parties shall be the pledgees.

　　Article 7　A 'written contract' as mentioned in Article 13 of the Procedures may be a separate contract between the parties, including a letter, a facsimile, an insurance contract under credit insurance, a standby letter of credit, etc. between the parties that is in the nature of security, but may also be a security clause in the principal contract.

　　A contract for provision of security to a foreign party shall be a subordinate contract of the principal debt contract. If the principal debt contract is void, the contract for provision of security to a foreign party shall be void as well. If the contract for provision of security to a foreign party provides otherwise, the matter shall be handled in accordance with such provisions.

　　Article 8　The limits of authority to examine and approve the provision of security to foreign parties shall be as set forth below:

　　1. the provision of security by a Security Provider (excluding a wholly foreign-owned enterprise) to foreign parties on behalf of domestic investment enterprises within the People's Republic of China and the provision of security with a term of not more than one year by a Security Provider (excluding a wholly foreign-owned enterprise) to foreign parties on behalf of foreign investment enterprises shall be reported by the Security Provider to and subject to examination and approval by the branch of the province, autonomous region or municipality directly under the central government in which the Security Provider is located;

　　2. the provision of security with a term of more

than one year by a Security Provider (excluding a wholly foreign-owned enterprises) to foreign parties on behalf of foreign investment enterprises and the provision of security by a Security Provider (excluding wholly foreign-owned enterprises) to foreign parties on behalf of organizations outside the People's Republic of China shall be reported by the Security Provider to and preliminarily examined by the branch of the province, autonomous region or municipality directly under the central government in which the Security Provider is located, and then be reported by that branch to the State Administration of Foreign Exchange for examination and approval;

　　3. if the Security Provider is a national wholly Chinese-owned financial institution in Beijing, a domestic investment enterprise directly subordinate to the central authorities or a foreign investment enterprise (excluding wholly foreign-owned enterprises) that obtained its business licence from the State Administration for Industry and Commerce, the security provided by it to foreign parties shall be subject to examination and approval by the State Administration of Foreign Exchange.

　　Wholly foreign-owned enterprises may provide security to foreign parties on their own authority without case-by-case approval by the Administration of Foreign Exchange.

　　Article 9　When a Security Provider conducts the application procedure for examination and approval of the provision of security to a foreign party, it shall provide all or part of the following materials to the Administration of Foreign Exchange:

　　1. an application;

　　2. the approval document for the feasibility study for the secured project or the approval for the secured project issued by the government department in charge, and other relevant official replies and documents;

　　3. b

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