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

e Administration of Foreign Exchange for the record.

　　Article 41　When a Security Provider carries out the procedures for examination and approval of the performance of security provided to a foreign party, it shall submit the following materials:

　　1. an application;

　　2. the original approval document in which the Administration of Foreign Exchange approved the Security Provider's issue of the relevant security to a foreign party;

　　3. the Registration Form for Security Provided to Foreign Parties and the Registration Form for Security Provided to Foreign Parties issued by the Administration of Foreign Exchange;

　　4. a copy of the contract concerning the provision of security to a foreign party;

　　5. the written notice in which the creditor demands performance of the security; and

　　6. the debtor's balance sheet.

　　Article 42　If a Security Provider has provided security to a foreign party without registering such security with the Administration of Foreign Exchange, then, when it is to perform such security vis-à-vis the foreign party, the Administration of Foreign Exchange will not approve its purchase and remittance of foreign exchange.

　　Article 43　After a Security Provider has provided security to a foreign party, if the creditor and the Secured Party need to amend major provisions of the debt contract and such amendment would lead to a change in the liability under the security, they must obtain the consent of the Security Provider, and the Security Provider shall report the matter for approval by the Administration of Foreign Exchange according to the original examination and approval procedure. If the consent of the Security Provider and the approval of the Administration of Foreign Exchange have not been obtained, the Security Provider shall be released automatically from its security obligations. However, where, according to these Rules, the provision of security to a foreign party does not require prior approval from the Administration of Foreign Exchange, amendment of major provisions of the debt contract by the creditor and the Secured Party shall not be subject to approval from the Administration of Foreign Exchange.

　　If a Security Provider changes major provisions of an approved contract of security without the consent of the Administration of Foreign Exchange, the changed provisions shall be voi

d.

　　For the purposes of this Article, "major provisions of the debt contract" and "major provisions of an approved contract of security" shall mean provisions concerning the security's Beneficiary, Security Provider, Secured Party, debt term, amount, currency, interest rate, governing law, etc.

　　Article 44　The assignment by a Beneficiary of its rights under a security shall be subject to the prior consent of the Security Provider and the approval of the Administration of Foreign Exchange. If the consent of the Security Provider and the approval of the Administration of Foreign Exchange have not been obtained, the Security Provider shall be released automatically from its security obligations. If the contract of security contains different provisions, the matter shall be handled in accordance with such provisions. However, where, according to these Rules, the provision of security to a foreign party does not require prior approval from the Administration of Foreign Exchange, the Beneficiary's assignment of its rights under the security shall not be subject to approval from the Administration of Foreign Exchange.

　　Article 45　A contract of security shall specify the following particulars:

　　1. the Security Provider has the right to monitor the funds and property of the Secured Party;

　　2. after the Security Provider has provided security to a foreign party, within the validity period of the contract secured by it, the Security Provider shall perform the security obligations in accordance with the contract of security; after the Security Provider has performed the security obligations; it shall have the right to seek compensation from the Secured Party;

　　3. after the Security Provider has provided security to a foreign party, it shall be released automatically from its security obligations if, within the validity period of the contract of security, the Beneficiary fails to perform its obligations in accordance with the debt contract and thereby causes the Secured Party to be consequently released from its debt;

　　4. the Security Provider shall have the right to demand the Secured Party to arrange for a counter-guarantee or to provide a corresponding mortgage of property; and

　　5. the Security Provider shall have the right to collect the agreed security fee.

　　Article 46　State authorities and institutions may not provide security to foreign parties except in connection with on-lending of loans from foreign governments or international economic organizations in order for such loans to be used, where the State Council has given approved for such on-lending.

　　Security Providers may not provide security in respect of the registered capital of foreign investment enterprises. Domestic investment enterprises and wholly Chinese-owned financial institutions may not provide security for foreign debts in respect of the foreign party's portion of the investment in a foreign investment enterprise.

　　Security Providers may not provide security for the raising of off-shore funds outside the People's Republic of China carried out by financial institutions within the People's Republic of China that are engaged in off-shore financial business.

　　Security Providers may not issue security to foreign parties in the form of deposits or liens (advance payments in connection with trade transactions shall not be covered by the restriction on "deposits"contained in the Procedures).

　　A Secured Party outside the People's Republic of China may not repatriate, for purpose of use, the funds under the debt security provided for it by the Security Provider.

　　Article 47　The forms of security set forth below shall be governed by these Rules:

　　1. counter-security provided to foreign parties;

　　2. security provided by a Security Provider to a creditor within the People's Republic of China for an organization outside the People's Repub

lic of China;

　　3. security provided by a Security Provider for the obtaining of financing by an organization outside the People's Republic of China from a financial institution within the People's Republic of China that is engaged in off-shore banking business;

　　4. off-shore security provided to a foreign party, where the Security Provider is a wholly Chinese-owned financial institution within the People's Republic of China that engages in off-shore banking business with the approval of the State Administration of Foreign Exchange.

　　Article 48　If a Security Provider provides security to a foreign party, which these Rules specify shall be subject to examination and approval by the Administration of Foreign Exchange, without having obtained approval, its contract of security with the foreign party shall be void.

　　Article 49　If, where these Rules specify the provision of a mortgage or pledge to a foreign party to be subject to examination and approval by the Administration of Foreign Exchange, the mortgagor or pledgor registers the property mortgaged or the thing pledged without having carried out approval procedures for the provision of such mortgage or pledge to a foreign party with the Administration of Foreign Exchange, the mortgagee or pledgee may not convert into foreign exchange and remit out of the People's Republic of China the Renminbi proceeds from its auction or selling off of the property mortgaged or the thing pledged upon maturity of the principal debt.

　　Article 50　If a Security Provider provides security to a foreign party without having obtained approval, the Administration of Foreign Exchange shall impose punishment in the form of a warning, circulation of a notice of criticism or suspension or cessation of the Security Provider's business of providing security to foreign parties, and shall additionally impose a fine of not less than Rmb 100,000 and not more than Rmb 500,000. If a Security Provider fails to register the security after its provision of security to a foreign party, the Administration of Foreign Exchange shall, according to the circumstances, impose punishment in the form of a warning, circulation of a notice of criticism or suspension or cessation of the Security Provider's business of providing security to foreign parties.

　　Article 51　The State Administration of Foreign Exchange shall be in charge of interpreting these Rules.

　　Article 52　These Rules shall be implemented from 1 January, 1998

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