|
Welcome Guest
|
|
You are using Guest Account
|
|
||||||||||||||||||||||||||||||||||
|
TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II IMPLEMENTATION ORGANS OF ADMINISTRATIVE LICENSING CHAPTER III PROCEDURES FOR THE IMPLEMENTATION OF ADMINISTRATIVE LICENSING Section 1 Application and Acceptance Section 2 Examination and Decision Section 3 Time Limit and Service Section 4 Hearing Section 5. Modification and Extension CHAPTER IV COSTS OF ADMINISTRATIVE LICENSING CHAPTER V SUPERVISION AND INSPECTION CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. In order to regulate the acts of the Peoples' Bank of China (hereinafter referred to the PBC) and its branch institutions in implementing administrative licensing and to protect the legitimate rights and interests of the citizens, legal persons and other organizations, the present Measures are formulated in accordance with the Administrative License Law of the People's Republic of China and the Law of the People's Republic of China on the People's Bank of China. Article 2. The term "administrative licensing" mentioned in the present Measures means that the PBC and its branch institutions, according to the applications filed by the citizens, legal persons or other organizations, allow these citizens, legal persons and other organizations to engage in special activities after having examined their applications in pursuance of the law. Article 3. The present Measures shall apply to the implementation of administrative licensing by the PBC and its branch institutions. The present Measures are inapplicable to the examination and approval of the personnel, finance and foreign affairs of the public institutions directly subject to management the People's Bank of China. Article 4. The PBC and its branch institutions shall comply with the principle of openness, fairness, impartiality, facilitating the people and high efficiency in the implementation of administrative licensing. Article 5. The PBC and its branch institutions shall comply with the statutory functions, scope, conditions and procedures in the implementation of administrative licensing. The implementation of administrative licensing by the PBC and its branch institutions shall be based on the laws, administrative regulations, and decisions of the State Council. Within the scope of administrative licensing items provided in the laws, regulations, or decisions of the State Council, the PBC may formulate specific rules on the implementation of administrative licensing, but these rules shall not create any new administrative licensing item, nor may they insert any additional condition in violation of the laws, administrative regulations, and decisions of the State Council. Article 6. The rules formulated by the PBC regarding the implementation of administrative licensing shall be promulgated. If any rule is not promulgated, it shall not become the basis for the implementation of administrative licensing. The conditions, procedures, time limits and results of the implementation of administrative licensing by the PBC and its branch institutions shall be publicized unless they involve any state secret, commercial secret or personal privacy. The applicants who meet the statutory conditions or standards shall have equal right to obtain administrative license in accordance with law. None of them may be discriminated by the PBC and its branch institutions. Article 7. With regard to the administrative licensing implemented by the PBC and its branch institutions, the citizens, legal persons or other organizations shall be entitled to make a statement and argument, and to apply for administrative reconsideration or lodge an administrative lawsuit in accordance with the law. If the legitimate rights and interests of a citizen, legal person or any other organization are impaired due to the implementation of administrative licensing by the PBC or any of its branch institutions, he (it) shall be entitled to claim for compensation pursuant to the law. Article 8. The administrative licensing lawfully granted by the PBC and its branch institutions to the citizens, legal persons or other organizations are protected by law. The PBC and its branch institutions shall not change an effective administrative licensing without permission. Where any law, regulation or rule, on which the administrative licensing is based, is amended or abolished, or the objective circumstances that the administrative licensing rests on changes considerably, the PBC and its branch institutions may, for the sake of public interests, modify or revoke the effective administrative licensing in accordance with the law and shall compensate the damages accordingly caused to the property of a citizen, legal person or any other institution. Article 9. The functionary departments of the PBC and its branch institutions shall be responsible for handling the administrative licensing within their scope of business functions. The departments of legal affairs of the PBC and its branch institutions shall be responsible for the hearing and supervision of administrative licensing. Article 10. The PBC and its branch institutions shall establish a sound supervision and inspection system for the implementation of administrative licensing. The PBC and its branch institutions shall conduct effective supervision over the licensees' activities under administrative licensing. Article 11. In the implementation of administrative licensing, the PBC or any of its branch institutions shall not insert any improper conditions such as requiring an applicant to purchase designated commodity, accepting paid service, etc. When handling an administrative licensing item, any of the functionaries of the PBC and its branch institutions shall not extort or accept the property of any other person, nor seek other private interests. CHAPTER II IMPLEMENTATION ORGANS OF ADMINISTRATIVE LICENSING Article 12. The PBC shall, within the statutory scope of functions, implement the administrative licensing in pursuance of the law. The branch institutions of the PBC shall, within the scope of functions authorized by the PBC, implement the administrative licensing in accordance with the law. Article 13. The PBC may, within the statutory scope of functions, authorize other administrative organs to implement administrative licensing in accordance with the laws, administrative regulations and rules. The branch institutions of the PBC shall not authorize any other administrative organ to implement the administrative licensing. Where the PBC authorizes other administrative organs to implement administrative licensing, it shall publicize the authorized administrative organs and the items under administrative licensing, supervise the administrative organs' implementing administrative licensing and bear the legal liabilities therefor. An authorized administrative organ shall, within the scope of authorized functions, implement the administrative licensing on behalf of the PBC. It shall not entrust any other organization or individual to implement the administrative licensing. CHAPTER III PROCEDURES FOR THE IMPLEMENTATION OF ADMINISTRATIVE LICENSING Section 1 Application and Acceptance Article 14. Where a citizen, legal person or any other organization intends to carry out a special activity, if it is necessary to obtain the administrative licensing of the PBC or its branch institution, it shall file an application thereto. When applying for administrative licensing, an applicant shall submit the application materials to the General Office of the PBC or office of the branch institution of the PBC. The General Office or office shall transfer them to the bank's (branch institution's) functionary department undertaking the administrative licensing items on the same day when it receives them. Where an applicant directly submits the application materials to the bank's (branch institution's) functionary department undertaking the administrative licensing items, it shall make up the formalities for handling the documents with the General Office or office as it handles the administrative licensing matters. Where the functionary department receives any application materials beyond its scope of administrative licensing items, it shall transfer them to the General Office or office on the same day when it receives them, and the General Office or office shall transfer them to the competent functionary department on the same day when it receives them. An applicant may entrust an agent to file an administrative license application unless the applicant is required to file an administrative license application in the office of the PBC or of its branch institution in accordance with law. Where an applicant entrusts an agent to file an application, he (it) shall provide the entrusting party and agent's identification certificates and power of attorney. An administrative license application may be submitted by means of letter, telegraph, telex, fax, electronic data interchange or email. Article 15. The functionary departments undertaking the administrative licensing items of the PBC and its branch institutions shall be responsible for accepting the administrative license applications. For an administrative license that is subject to the examination of an inferior institution of the People's Bank before it is reported to a superior institution for making a decision, the inferior department with the examination function shall accept the applications. Where an administrative licensing item shall be handled by several functionary departments, the General Office or office shall decide to let one of them accept the applications uniformly. Article 16. The functionary department undertaking the administrative licensing items of the PBC and its branch institution shall, in its office, display the licensing items, basis, conditions, quantity, procedures, time limit, catalogue of the complete set of materials that shall be submitted, and exemplary application form. Where possible, it may publish them on the internet or newspapers and periodicals. Where the functionary department is requested by an applicant to account for or to make explanations about the publicized items, it shall do so by offering him (it) exact and liable information. Where a standard application is required, PBC and its branch institutions shall provide the applicants with a standard administrative license application form. The standard application form shall not contain any content that has no direct relationship with the licensing item applied for. Article 17. Where a citizen, legal person or any other organization applies to the PBC or its branch institution for administrative licensing, it shall faithfully submit pertinent materials and offer true information and shall be liable for the authenticity of the substantial content of the application materials. Article 18. The PBC or its branch institution shall handle the administrative license applications differently according to the following circumstances: (1) If the item applied for is not subject to administrative license in accordance with the law, it shall inform the applicant of rejection immediately; (2) If the item applied for does not fall within the scope of functions of the PBC, it shall make a decision of rejection immediately and inform the applicant to file an application with the competent administrative organ; (3) If the item applied for falls with the scope of functions of the PBC, but it isn't subject to the acceptance of the institution at this level, it shall immediately make an explanation to the applicant and inform him (it) to file an application with the competent administrative organ; (4) Where the errors in the application materials can be corrected on the spot, the applicant shall be allowed to correct them on the spot; (5) Where the application materials are incomplete or inconsistent with the statutory form, it shall inform the applicant, all at once, the items that need to be supplemented or corrected within 5 days. If it fails to do so within the time limit, the day when the application materials are received shall be considered the acceptance day; (6) Where the item applied for falls within the functions of the PBC and the application materials are complete and in consistency with the statutory form, or the applicant has supplemented and corrected all the items as required, the application for administrative license shall be accepted. Where the PBC or its branch institution accepts, rejects or dismisses an application mentioned in the preceding paragraph, it shall issue a written notice bearing the seal of this bank or the seal for the exclusive use of administrative licensing, and a clear indication of the date. Section 2 Examination and Decision Article 19. The functionary department undertaking administrative licensing items of the PBC or of its branch institution shall examine the application materials submitted by an applicant. If the application materials are complete and tally with the statutory form, and if it is able to confirm on the spot that the item applied for shall be approved, the functionary department undertaking the administrative licensing items shall make a written administrative licensing decision on the spot, and shall make and issue an administrative license in accordance with relevant provisions. Where it is necessary to verify the substantial content of the application materials in accordance with the statutory conditions and procedures, the functionary department undertaking the administrative licensing items shall assign 2 or more personnel to do so. Article 20. For an administrative licensing item that is subject to the examination of an inferior institution of the PBC before it is reported and submitted to the superior institution, the inferior institution shall submit its preliminary examination opinions and the complete set of application materials directly to the superior institution. When examining the administrative licensing item, the superior shall not demand the applicant to repeat the provision of any application materials. Article 21. When the functionary department responsible for undertaking the administrative licensing items the PBC or its branch institution examines an administrative license application, if it finds that any party has important direct interests to the matters under the administrative license, it shall inform the interested party. The applicant or the interested party shall be entitled to make a statement or argument and shall, within 3 days from the day when they are informed of the circumstance, submit his (its) statement or argument. If the statement or argument is made orally, the functionary department undertaking the administrative licensing items shall make transcripts properly and have them signed by the person (party) who makes the statement or argument for confirmation. The PBC or its branch institution shall listen to the opinions of the applicant or interested party. Article 22. After the functionary department responsible for undertaking administrative licensing items of the PBC or its branch institution has completed the examination over an administrative licensing application, it shall handle it in light of the following circumstances, respectively: (1) If the application meets the statutory conditions or standards, and if it decides to grant an administrative license, it shall make a decision of approval of the administrative license; (2) If the application doesn't satisfy the statutory conditions or standards, and if it decides not to grant an administrative license, it shall make a decision of disapproval of administrative licensing. In the decision it shall make an explanation about the disapproval of the administrative license and shall inform the applicant of the right to apply for administrative reconsideration or to lodge an administrative lawsuit in accordance with the law. Article 23. The functionary department responsible for undertaking the administrative licensing items of the PBC or of its branch institution shall submit the decision of approval or disapproval of the administrative license to the president (director) or the executive deputy president of this bank for examination and approval unless the administrative licensing is approved and a certificate thereof is made and issued on the spot. The decision of approval or disapproval of the administrative license shall, after being approved by the president (director) or the executive deputy president of this bank, bear the seal of this bank and a clear indication of the date. Article 24. Where the PBC or its branch institution makes a decision of approval of administrative licensing, if it is necessary to issue an administrative license in accordance with the laws, administrative regulations, and rules of the PBC, it shall issue the applicant an administrative license bearing the seal of the bank. Article 25. The decisions of approval of administrative licensing made by the PBC or its branch institutions shall be publicized and the general public shall be entitled to consult them. Article 26. With regard to the administrative licenses lawfully implemented by the PBC and its branch institutions, the application scope thereof shall be subject to no geographical limit. The administrative license obtained by an applicant shall be effective nationwide. Article 27. For an administrative license subject to quantitative restrictions, where the applications of at least 2 applicants meet the statutory conditions and standards, the PBC or its branch institution shall decide to approve the administrative license according to the sequence of accepting the applications for the administrative license. But, if it is otherwise provided for in the laws and regulations, the latter shall prevail. When granting a special qualification to the legal persons or other organizations, the PBC and its branch institutions shall make decisions of administrative license according to the evaluation results in the aspects of the structure of professionals of the applicants, technical conditions, business performance and management level. But, if it is otherwise provided for in the laws and regulations, the latter shall prevail. Section 3 Time Limit and Service Article 28. Except for a decision of administrative licensing that can be made on the spot, the PBC or its branch institution shall make a decision of administrative licensing within 20 days from the day when it accepts the administrative license application. If it is unable to make a decision within 20 days, it may extend for 10 days upon approval of the president (director) or deputy president (director) of the bank, and shall inform the applicant of the reason to extend the time limit. However, if it is otherwise provided for in any of the laws or administrative regulations, the latter shall prevail. Article 29. As for the administrative licensing that shall be subject to the examination of an inferior institution of the PBC before it is submitted to its superior institution for decision, the inferior institution shall complete the examination within 20 days after it accepts the application, and shall submit the preliminary examination opinions and application materials to the superior institution. The superior institution shall decide whether to approval the administrative licensing or not within 20 days after it receives the application materials and the preliminary examination opinions submitted by the inferior. However, if it is otherwise provided for in any law or administrative regulation, the latter shall prevail. Article 30. When the PBC or its branch institution makes a decision of administrative licensing, if it is necessary to hold a hearing pursuant to the law, the time for hearing shall not be included in the time limit provided in this Section; and it shall inform the applicant of the hearing time in writing. Article 31. The PBC or its branch institution shall serve the notice of acceptance, rejection or dismissal or demand to make supplements or corrections to the application materials on the party concerned within 5 days after it receives the application materials, except for the matters of which it shall inform the applicant on the spot. Article 32. Where the PBC or its branch institution decides to approve the administrative licensing, it shall, within 10 days after it makes a decision, serve a written decision of approval of the administrative licensing or administrative license on the applicant. Where the PBC or its branch institution decides to disapprove an administrative license, it shall, within 10 days after it makes a decision, serve a written decision of disapproval of the administrative license on the applicant. The PBC or its branch institution shall, under relevant provisions of the Civil Procedural Law, determine the way of serving the administrative license or decision mentioned in the preceding Paragraphs. Section 4 Hearing Article 33. For any matter that is subject to hearing provided for in any law, regulation or rule of the PBC regarding the implementation of administrative licensing, or for any other administrative licensing matter of great importance to the public interests that the PBC or its branch institution considers it necessary to hold a hearing, the PBC or its branch institution shall announce it to the general public and hold a hearing. Article 34. If an administrative license directly relates to the important interests between the applicant and others, before the PBC or its branch institution make a decision of administrative licensing, the functionary department undertaking the administrative licensing items shall inform the applicant and the interested party of the right to request a hearing. Where the applicant or interested party files an application for hearing within 5 days after he (it) is informed of the aforesaid right, the PBC or its branch institution shall organize a hearing within 20 days. The applicant or the interested party shall not pay the expenses of organizing the hearing by the PBC or its branch institution. Article 35. A hearing shall organized by following the procedures as below: (1) The functionary department responsible for undertaking administrative licensing items of the PBC or its branch institution shall, not later than 7 days before the hearing is held, inform the applicant and interested party of the date and place of hearing, or make an announcement where necessary; (2) The hearing shall be held openly; (3) The hearing shall be presided by a person working in the legal affairs department of the PBC or its branch institution, or by a person working in a department other than the one undertaking the administrative licensing items designated by the president (director) or deputy president (deputy director) of the bank. Where the applicant or interested party believes that the presiding hearer is of direct interests to the administrative licensing item, he (it) shall be entitled to apply for the withdrawal of the presiding hearer. Whether the presiding hearer should withdraw or not shall be decided by the president (director) or executive deputy president (deputy director) of this bank; (4) In the course of hearing, the functionary department undertaking the administrative licensing items shall provide the proofs or reasons for making the examination opinions. The applicant and interested party may produce proofs and make arguments and cross-examination; (5) The presiding hearer shall designate a special person to record the hearing and make transcripts. The transcripts shall include the hearing date, place, attendees, matters and opinions of the parties concerned. The transcripts of hearing shall be confirmed and bear the signature or seal of the parties concerned. If any party concerned refuses to do so, the circumstance shall be noted down and be testified by other attendees with their signature or seal; and (6) After the hearing is ended, the presiding hearer shall hand the hearing transcripts and the proofs obtained in the hearing over to the functionary department undertaking the administrative licensing items, which shall make a decision of approval or disapproval of administrative licensing according to the hearing transcripts and handle the administrative license application in accordance with Articles 22 and 23 of the present Measures. Section 5. Modification and Extension Article 36. Where a licensee requests for modifying the matters under administrative license, it shall file an application to the PBC or its branch institution that made the decision about the administrative license. If it meets the statutory conditions and standards, the PBC or its branch institution shall handle the modification procedures in accordance with the law. Article 37. Where a licensee needs to extend the valid period of an administrative license, it shall file an application with the PBC or its branch institution that made the decision of administrative license 30 days prior to the expiry of the valid period of this administrative license. But, if it is otherwise provided for in any law, regulation or rule, the latter shall prevail. The PBC or its branch institution shall, in light of the application filed by a licensee, decide whether to approve the extension prior to the expiry of the valid period of this administrative license; if it fails to make a decision within the time limit, it shall be deemed that the extension has been approved. CHAPTER IV COSTS OF ADMINISTRATIVE LICENSING Article 38. When implementing the administrative licensing and conducting inspection on the licensing matters, the PBC and its branch institutions shall not charge anything for that; but if it is otherwise provided for in any law or administrative regulation, the latter shall prevail. When offering an exemplary application form of administrative licensing, the PBC and its branch institutions shall not charge anything for that. Article 39. In the implementation of administrative licensing, if the PBC and its branch institutions charge fees in accordance with the laws and administrative regulations, they shall do so under announced statutory items and standards. They shall uniformly combine the fees collected by them into an account and turn over to the state treasury entirely. No one may retain, misappropriate, privately divide or privately divide in a disguised form the aforesaid fees. CHAPTER V SUPERVISION AND INSPECTION Article 40. The functionary department undertaking the administrative licensing items of the PBC or its branch institution shall record the administrative licensing items handled by it, basis, examination opinions, handling results and time limits and shall send a copy to its legal affairs department each quarter. Article 41. The person-in-charge of the functionary department undertaking the administrative licensing items of the PBC or its branch institution shall irregularly inspect the administrative licensing matters handled by this department, but at least 2 times once a year. The legal affairs department of the PBC or its branch institution shall supervise and inspect the administrative licensing matters handled by this bank. If it finds any problem in the inspection, it shall demand the undertaking department to get right in good time and shall report it to the president (director) or executive deputy president (deputy director) of this bank. Article 42. The legal affairs department of a branch institution of the PBC shall make annual analysis of the information about the implementation of administrative licensing within its jurisdictional area and shall submit a report to the superior legal affairs department. The report shall cover the administrative licensing categories, number, results (including approval or disapproval of administrative licensing), records, supervision and inspection, existing problems and proposals. Article 43. The functionary department undertaking the administrative licensing items of the inferior institution of the PBC shall report and submit the information about the implementation of administrative licensing to the similar functionary department of the superior institution for archival purposes. The superior institution shall conduct supervision and inspection over the implementation of administrative licensing by the inferior institutions, and shall rectify the illegal acts thereof. Article 44. The PBC and its branch institutions shall establish a sound system for supervising the licensees' activities under administrative licensing, and shall perform its supervisory responsibilities by verifying the relevant materials showing the information about licensees' activities under administrative licensing. When the PBC or its branch institution conducts supervision and inspection over a licensee's activities under administrative licensing in accordance with the law, it may consult or demand the licensee to report and submit relevant materials pursuant to the law. The licensee shall faithfully offer relevant information and materials. The functionary department undertaking the administrative licensing items of the PBC or its branch institution shall note down the information about the supervision and inspection and the handling result, and shall transfer the notes to the archival department upon the signatures of the supervisors or inspectors. The general public shall be entitled to consult the supervisory and inspecting notes mentioned in the preceding paragraph. Article 45. When conducting supervision or inspection, the PBC or its branch institutions shall not hamper the licensee's normal business activities. Article 46. Where a licensee conducts an activity in violation of the matters under the administrative license in a area outside the jurisdiction of the branch institution of the PBC that made the approval decision of administrative licensing, the branch institution of the PBC located in the area where the illegal activity is conducted shall send a copy of the illegal facts and punishments to the branch institution of the PBC that made the decision of approval of administrative licensing according to law. Article 47. Where any individual or organization discovers any activity in violation of the matters under an administrative license, it shall be entitled to inform the PBC or its branch institution, which shall verify and deal with such activity in time. Article 48. The PBC or its branch institution may, in light of its functions or at the request of the interested party, cancel a decision of administrative licensing made by this bank or its inferior institution: (1) The functionaries of the PBC or its branch institution makes this decision of administrative licensing by abusing their power or neglecting their duties; (2) It makes a decision of administrative licensing beyond its statutory functions; (3) It makes a decision of administrative licensing by violating the statutory procedures; (4) It grants an approval of administrative licensing to an applicant who doesn't have the application qualifications or doesn't meet the statutory conditions; or (5) Other circumstances that the administrative license may be cancelled in accordance with any law, administrative regulation, or rule of the PBC. Where a licensee obtains an administrative license through cheating, offering bribes or any other illegal methods, such administrative license shall be annulled by the PBC or its branch institution that made this decision of administrative licensing. Where the annulment of an administrative license in accordance with the preceding two paragraphs may seriously impair the public interests, it shall not be annulled. Where the annulment of an administrative license in accordance with the first paragraph of this an administrative license in accordance with the first paragraph of this Article has impaired the legitimate rights and interests of the licensee, the PBC or its branch institution shall compensate for it in accordance with the law. Where an administrative license is annulled under the second paragraph of this Article, the interests obtained by the licensee on the basis of this administrative license will not be protected. Article 49. The PBC or its branch institution shall, in pursuance of the law, handle the formalities for canceling an administrative license under any of the following circumstances: (1) An administrative license hasn't been extended at the expiry of its valid period; (2) An administrative license grants a citizen special qualification, but the citizen is dead or loses capacity for conduct; (3) A legal person or any other institution is terminated in accordance with the law; (4) An administrative license is annulled or withdrawn, or the certificate for administrative license is revoked in pursuance of the law; (5) The matters under an administrative license are unable to be implemented due to force majeure; or (6) Other circumstances specified by the laws and regulations in which the administrative licenses shall be canceled. Article 50. Where the PBC or its branch institution revoke or cancel an administrative license in accordance with the law, it shall make an announcement, about which the general public shall be entitled to consult. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 51. Time limits provided in the present Measures for the implementation of administrative licensing by the PBC and its branch institutions shall be computed on the basis of working days, excluding the legal holidays. Article 52. The present Measures shall not apply to the implementation of administrative licensing by the State Administration of Foreign Exchange and its branch institutions. Article 53. The present Measures shall be effective as of November 1, 2004. If any of the provisions on the implementation of administrative licensing by the PBC and its branch institutions promulgated before the present Measures are enacted is inconsistent with the present measures, the implementation thereof shall be stopped from the day when the present Measures come into effect. |
||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||
|
Copyright 2002 NovexCn.com
|