|
Welcome Guest
|
|
You are using Guest Account
|
|
||||||||||||||||||||||||||||||||||
|
TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II REQUIREMENTS FOR BEING A SENIOR OFFICER AND THE EXAMINATION AND APPROVAL PROCEDURES CHAPTER III FUNDAMENTAL CODE OF CONDUCT CHAPTER IV SUPERVISION AND ADMINISTRATION CHAPTER V LEGAL RESPONSIBILITY CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. These Measures are formulated in accordance with the Law on Securities Investment Funds, the Company Law and other relevant laws and administrative regulations for the purpose of standardizing the administration of post-holding of senior officers in the securities investment fund industry and protecting the legitimate rights and interests of the investors and other related parties and the public interest. Article 2. Senior officers in the securities investment fund industry (hereinafter referred to "senior officers") referred to herein mean the chairman of the board of directors, general manager, deputy general manager, chairman of the supervisory committee and other personnel actually performing the duties of such posts of a securities investment fund management company, and the general manager, deputy general manager and other personnel actually performing the duties of the such posts of the fund custodian department of a fund custodian bank. Article 3. The selection and appointment and change of post of senior officers shall be subject to the examination and approval of China Securities Regulatory Commission (hereinafter referred to the "CSRC"). Without the approval of CSRC, no fund management company or fund custodian bank may select and appoint or change the post of any senior officer or determine any person to perform the duty as a senior officer by violating the relevant provisions. Article 4. Each senior officer shall abide by laws, administrative regulations and provisions of CSRC, abide by the relevant articles of association and industrial standards, be honest, prudent and diligent in his work, devoted to his duties, and safeguard the legitimate rights and interests of fund unit holders. Article 5. CSRC shall conduct supervision and control over the senior officers according to law, and formulate specific provisions concerning the administration of senior officers, directors and fund managers. The appointment and removal of any director and fund manager of a fund management company shall be reported to CSRC. CHAPTER II REQUIREMENTS FOR BEING A SENIOR OFFICER AND THE EXAMINATION AND APPROVAL PROCEDURES Article 6. To apply for credentials for holding the post of a senior officer, one must meet the following requirements: (1) being qualified for employment in the fund management industry; (2) having passed the examination in knowledge of laws concerning securities investment for senior officers organized by CSRC or any agency authorized thereby; (3) having three years of experience in financial-related professions such as fund management, securities and banking, and management experience corresponding to the post that he is to hold and, in the case of a chairman of a supervisory commission, experience in the field of law, accounting, supervision and audit in addition; (4) being not involved in any circumstances that would prevent one from being a director, supervisor, manager or person qualified for employment in the fund management industry pursuant to laws and administrative regulations such as the Company Law and the Law on Securities Investment Funds; and (5) being not subject to any administrative penalty imposed by the administrative authorities of securities, banking, industry and commerce or taxation in the recent three years. Article 7. For applying for the credentials of a senior officer of a fund management company, the following materials shall be submitted to CSRC by the fund management company: (1) an application for examining and approving the qualifications of the person proposed to be a senior officer (hereinafter referred to the "candidate"), and an application form; (2) the relevant resolution; (3) a certificate certifying the candidate's experience specified in Item (3) of the preceding article; (4) the relevant on-departure audit report, on-departure inspection report or appraisal letter given by the candidate's employer in the recent three years; (5) comments on the candidate; (6) copies of the ID and academic degree certificates and academic credentials of the candidate; (7) copies of the candidate's certificate of qualifications for employment in the fund management industry; (8) copies of the certificate certifying that the candidate has passed the examination in the knowledge of laws concerning securities investment for senior officers; (9) a legal opinion confirming that the conditions of the candidate for holding post and the appointment procedure are in compliance with laws, administrative regulations, provisions of CSRC and the relevant articles of association; and (10) other materials that may be required by CSRC. For applying for the credentials of a senior officer of a fund custodian department, materials as provided in the preceding paragraph except those in Items (2) and (9) shall be submitted to CSRC by the fund custodian bank. All the above-mentioned materials shall be in Chinese and in triplicate. If the original of any of such materials is in any foreign language, a Chinese translation of it shall be submitted together. Article 8. CSRC shall accept and conduct examination of the application materials in accordance with the law. CSRC may examine the candidates through tests or interviews, which shall be held by two functionaries. A minute shall be made for the interview with the signatures of both the examiner and the candidate thereon. Article 9. The applying institution shall, within 20 working days after receipt of the approval letter issued by CSRC and according to its articles of association, make a decision of selection and appointment or the change of post of senior officers and go through the relevant formalities. Article 10. If any candidate fails to perform his duties required by the relevant institution within 20 working days from the date on which he obtains the relevant credentials, such credentials shall automatically become invalid except with any justification. Where any senior officer leaves his post, his credentials for such post shall automatically become invalid as of the date of the leave. Article 11. Where any fund management company is to remove any of its senior officers, appoint or remove the chairman of its board of directors or its fund manager, or where any fund custodian bank is to remove any of its senior officers of its fund custodian department, they shall, within three working days from the decision thereon, report that to CSRC by submitting the reporting materials concerning such appointment or removal. Article 12. A director of a fund management company shall meet the requirements provided for in Items (4) and (5) of Article 6 hereof. An independent director shall meet the following requirements in addition: (1) having five years of experience in the field of banking, law or financial affairs; (2) having adequate time to perform his duty; (3) having not held any post in the fund management company for which he is to hold a post as an independent director, in any shareholder entity of such company, or in any institution having any business relations with such company or in any interested entity of such company; (4) being not an interested person of any senior officer, other director, supervisor, fund manager, person in charge of the financial affairs of the fund management company for which he is to hold a post as an independent director; and (5) none of his lineal ascendants or descendants holding any post in the fund management company for which he is to hold a post as an independent director. Article 13. Reporting materials concerning the appointment of a director of a fund management company shall include: (1) a report on the appointment of the director and an appointment registration form; (2) the relevant resolution; and (3) materials provided for in Items (4) ¨C (6) and (9) of Article 7 hereof. In the case of an independent director, the reporting materials shall also include a certificate certifying the person's five years of experience in the field of banking, law or financial affaires and a letter of undertaking given by the person for his compliance with the provisions of Items (2) ¨C (5) of Paragraph 2 of the preceding article. Article 14. The fund manager of a fund management company shall have three years of experience in securities investment management and meet the requirements provided for in Items (1), (2), (4) and (5) of Article 6 hereof. Article 15. Reporting materials concerning the appointment of a fund manager shall include: (1) a report on the appointment of the fund manager and an appointment registration form; (2) the relevant resolution; (3) a certificate certifying the person's three years of experience in securities investment management; and (4) materials provided for in Items (4) - (7) of Article 7 hereof. Article 16. Where any fund management company is to remove any of its senior officers or directors, or where any fund custodian bank is to remove any of its senior officers of its fund custodian department, they shall submit to CSRC the following reporting materials concerning such removal: (1) a report on the removal; (2) the relevant resolution; and (3) a legal opinion confirming the compliance of the removal with laws, administrative regulations, provisions of CSRC and the articles of association of the company or bank. Where it is to remove its fund manager, the fund management company shall submit to CSRC the reporting materials concerning the removal provided for in Items (1) and (2) of the preceding paragraph. Article 17. CSRC shall examine according to law the reporting materials concerning the removal of senior officers. If it finds any noncompliance of any removal procedure with the relevant provisions, CSRC shall order the relevant institution to make corrections. Article 18. CSRC shall examine according to law the reporting materials concerning the appointment and removal of directors and fund managers of fund management companies. In the case of failure of any director or fund manager to meet the statutory requirements for holding the post, CSRC shall order the relevant fund management company to make replacement according to the relevant provisions and, in the case of any noncompliance of any appointment or removal procedure with the relevant provisions, order the relevant fund management company to make corrections. CHAPTER III FUNDAMENTAL CODE OF CONDUCT Article 19. Each senior officer and each fund manager of a fund management company shall safeguard the legal interests of the fund under his management, and abide by the principle of the priority of the interests of fund unit holders when there is any conflict between the interests of fund unit holders and those of the fund management company or fund custodian bank. No senior officer or fund manager of any fund management company may conduct or be cooperative in any activities that impair the interests of the fund unit holders, or conduct any activities contrary to the legitimate interests of the fund management company or fund custodian bank for which he works. Article 20. Each senior officer and each fund manager of a fund management company shall observe the professional ethics, be diligent in his work and devoted to his duties, effectively perform his duties provided for in fund contracts, articles of association and rules and regulations of the company concerned, may not abuse his power or authority, may not delegate his duty to another person in violation of the relevant provisions, may not seek private gains by taking advantage of his power, or leave his post not in accordance with the statutory procedure. Article 21. Each director of a fund management company shall attend board meetings, participate in the activities of the company and effectively perform his duties in accordance with the articles of association of the company. Any independent director shall give independent opinions objectively and with great caution and effectively protect the legitimate rights and interests of the fund unit holders. Article 22. The general manager of a fund management company shall conscientiously perform the resolution of the board of directors, effectively implement the systems of the company, prevent and eliminate management risks, promote the efficiency of management and operation, ensure the stable operation of the business managed and the safety and integrity of the fund property, and speed up the continuous, stable and healthy development of the company. The deputy general manager of a fund management company shall assist the general manager, and faithfully perform his duties. Article 23. The general manager of a fund management company shall conscientiously perform his duties and conduct supervision and inspection over various systems, legality and regularity of the business and the implementation of internal control system of the company. Article 24. The fund manager of a fund management company shall strictly abide by the relevant fund contracts and rules and regulations of the company concerning investment, be prudent and diligent in his work, use his ability to make professional judgment without interference from others, and independently exercise his investment decision-making power within his authority. Article 25. The general manager and deputy general manager of the fund custodian department of a fund custodian bank shall set up and improve various business and management systems of the department, ensure the effective performance of duties of the department as a custodian, supervise the investment operation by the manager of the fund, and maintain the independence and integrity of the fund property. Article 26. Each senior officer and each director and fund manager of a fund management company shall strengthen his professional study, keep abreast of the developments of the industry, participate in the professional training according to the relevant provisions of CSRC, and steadily raise his management level and professional ability. CHAPTER IV SUPERVISION AND ADMINISTRATION Article 27. If any candidate cheats in an examination in knowledge of laws concerning securities investment for senior officers or submits false materials for the application of credentials of a senior officer, his application for credentials of a senior officer shall no be accepted by CSRC in three years. Article 28. Each fund management company and fund custodian bank shall set up a senior officer assessment system, conduct regular assessments of senior officers and set up assessment archives. CSRC shall conduct regular and irregular inspections on the archives of senior officers, and make assessment of compliance of senior officers with laws and regulations. Article 29. CSRC shall set up an information system for the administration of senior officers, put on record the performance of senior officers in fund business operations. Any fund management company and fund custodian bank shall disclose according to law any change of its senior officers. Article 30. It shall be subject to the approval of the board of directors of the company and reported to CSRC within three working days from the date of such approval, if the chairman of the board of directors of a fund management company is to concurrently hold another post. Other senior officers may not hold a concurrent post in any for-profit institution. No director of any fund management company may hold any post in any fund custodian bank or any other fund management company. In the case that any such director holds a post in such a bank or company as a part-time job, the fund management company shall report it to CSRC within three working days from the starting date of such job. Article 31. The chairman of the supervisory committee of a fund management company shall report it to CSRC within three working days after it has come to his notice, if any senior officer of the company is under any of the following circumstances: (1) having been investigated or dealt with by the relevant authorities for suspected involvement in any violation of law or discipline; (2) having resigned or left office or being unable to perform his duties for having lost the capacity for civil conduct or for any other reason; (3) planning to leave the country for any personal purpose for at least one month or having not returned from abroad within the specified time limit; (4) having any lineal ascendant or descendant who is to reside or has resided abroad; (5) holding a post concurrently in any non-profit entity; or (6) being involved in any other circumstances that may adversely affect the performance of his duties. Where the chairman of the supervisory committee is involved in any of the above-mentioned circumstances, the general manager or any other senor officer of the company shall report it to CSRC. Article 32. In the case where the trade association, stock exchange or other self-discipline organizations have imposed any disciplinary sanction on it or the authority of industry and commerce, taxation or audit has put a case on file for investigation of it or imposed any administrative sanction on it, a fund management company shall, within three working days after it has come to its notice, report it and submit a list of senior officers held responsible to CSRC. Article 33. Where the chairman of the board of directors, general manager or chairman of the supervisory committee of a fund management company is unable to perform his duties for any reason, the board of directors of the company shall, within 15 working days, make a decision on the person qualified for being a senior officer to be an acting chairman of the board of directors, acting general manager or acting chairman of the supervisory committee and report such decision to CSRC within three working days from the date of the decision. If the person chosen to be an acting chairman of the board of directors, acting general manager or acting chairman of the supervisory committee does not meet the requirements for being a senior officer, CSRC shall order the board of directors to make another decision within a specified time limit. The period during which a person acts as an acting chairman of the board of directors, acting general manager or acting chairman of the supervisory committee shall not exceed 90 days unless otherwise provided by laws or administrative regulations. Article 34. Where both the chairman of the board of directors and the general manager of a fund management company are unable to perform their duties and the board of directors is unable to make a decision in accordance with the preceding article, the major shareholders shall hold an extraordinary shareholders' meeting for making such a decision. Article 35. Where any fund management company, the fund custodian department of any fund custodian bank or any senior officer is involved in any of the following circumstances, CSRC shall issue a warning letter to or make a supervisory interview with the relevant senior officer: (1) if its or his business activities may cause serious damage to the fund property or the interests of fund unit holders; (2) if the governance structure or internal control system of the fund management company or the internal control system of the fund custodian department of the fund custodian bank has not been well established or effectively implemented and that has brought about or might bring about any source of vital trouble and may adversely affect its performance of duties as a manager of fund or fund custodian; (3) if it or he is in a violation of its or his obligation of good faith, prudence, diligence or devotion to duties; or (4) if it or he has been involved in any other circumstances that may be provided by CSRC according to the principle of prudent supervision. Article 36. CSRC may propose that the institution concerned suspend or remove from office of any of its senior officers, if he has: (1) received at least two warning letters or supervisory interviews from CSRC in a year or failed to make corrections ordered after receipt of a warning letter or supervisory interview; (2) been twice subject to a disciplinary sanction by the trade association or to public censure by the stock exchange in a year; (3) left his post without permission; (4) provided false information to or withheld material facts from CSRC or refused to be cooperative in CSRC's supervision; or (5) been involved in any other circumstances that may be provided by CSRC. Article 37. CSRC shall notify the institution in which the relevant senior officer holds a post before making a proposal in accordance with the preceding article. The relevant senior officer may make a statement to the institution within three working days. If it disagrees with the proposal to be made by CSRC, the institution shall report such disagreement to CSRC within ten working days. The institution shall, within 20 working days from receipt of the proposal of CSRC, make a decision on whether to suspend or remove the office of the relevant senior officer and report it to CSRC within three working days form the date of such decision. No person with his office removed under the preceding paragraph may be employed to be a senior officer by any fund management company or fund custodian bank before it has been two years since such removal. Article 38. Each fund management company shall set up a system for its senior officers', directors' and fund managers' leaving from their posts, and make provisions concerning the audits and inspections on their departures. Each fund custodian bank shall set up a system for its fund custodian department's senior officers' leaving from their posts, and make provisions concerning the inspections on their departures. Article 39. In the case of departure of the chairman of the board of directors or general manager of a fund management company, the company shall promptly retain an accounting firm qualified for securities-related business to make an on-departure audit and, within 30 working days from the departure, submit an audit report to CSRC. The audit report shall have an attached written opinion of the person in respect of whom the audit has been conducted; it shall be indicated if the person has refused to give such an opinion. Article 40. In the case of departure of the deputy general manager, chairman of the supervisory committee or fund manager of a fund management company, the company shall promptly conduct an on-departure inspection on him and, within 30 working days from the departure, submit an inspection report to CSRC. In the case of departure of any senior officer of its fund custodian department, the fund custodian bank shall promptly conduct an on-departure inspection on him and, within 30 working days, submit an inspection report to CSRC. The inspection report shall have an attached written opinion of the person in respect of whom the inspection has been conducted; it shall be indicated if the person has refused to give such an opinion. Article 41. Before departure, each senior officer and fund manager shall cooperate with the institution from which he is to leave in completing the transfer of work and accept an on-departure audit or inspection and, during the on-departure audit or inspection, may not hold any post in any other fund management company or the fund custodian department of any fund custodian bank. Article 42. After departure, no senior officer or fund manager may disclose any non-public information of the institution in which he held the post or seek gains for himself or any others by using such non-public information. No fund management company may employ any person to conduct securities investment business, if it has not been three months since this person left his post of a senior officer or fund manager. CHAPTER V LEGAL RESPONSIBILITY Article 43. Any senior officer or any director or fund manager of a fund management company having violated any law, administrative regulations or any provisions of CSRC shall be subject to an administrative penalty according to the relevant provisions, if it is so provided by law or, in the case of any suspected crime, be transferred to the judicial organ according to law for the investigation of his criminal responsibility. Article 44. Any fund management company or fund custodian bank having selected and appointed or changed the post of any senior officer without examination and approval by CSRC shall be ordered to make corrections, with the person in charge and other personnel directly responsible being given a warning and a fine. Any fund management company having made a decision on the person to act as an acting senior officer in violation of these Measures shall be ordered to make corrections, with the person in charge and other personnel directly responsible being given a warning and a fine. Article 45. Any fund management company or fund custodian bank involved in any of the following circumstances shall be ordered to make corrections with a warning and a fine being imposed and with the person in charge and other personnel directly responsible being given a warning and a fine: (1) failing to perform its reporting obligation under these Measures or providing any false reporting materials; (2) removing any senior officer or appointing or removing any director or fund manager of the fund management company in violation of the statutory procedures; (3) failing to properly respond to any proposal of CSRC for the suspension of or removal from office of any senior officer; (4) employing any person to conduct investment business in violation of Paragraph 2 of Article 42 hereof; or (5) failing to conduct an on-departure audit or inspection in respect of any leaving person according to these Measures. Article 46. Any senior officer or any director of a fund management company holding a concurrent post in violation of these Measures shall be ordered to make corrections with a warning and a fine being imposed. Article 47. Any senior officer having violated any law, administrative regulations or any provisions of CSRC with serious circumstances shall have his credentials of a senior officer suspended or revoked according to law. In the case of any manager of fund or fund custodian having violated the Law on Securities Investment Funds or any other law, administrative regulations or any provisions of CSRC with serious circumstances, its senior officer directly responsible shall have his credentials of a senior officer suspended or revoked according to law. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 48. These Measures shall come into force as of October 1, 2004. The Interim Provisions concerning the Measures for the Control of Credentials for Employment in Fund Management Industry (No. 53 [1999] of CSRC) issued by CSRC shall be annulled as of the same date. |
||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||
|
Copyright 2002 NovexCn.com
|