|
Welcome Guest
|
|
You are using Guest Account
|
|
||||||||||||||||||||||||||||||||||
|
TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II QUALIFICATION FOR HOLDING A POST CHAPTER III BASIC BEHAVIOR CRITERIONS CHAPTER IV SUPERVISION AND ADMINISTRATION CHAPTER V LEGAL LIABILITIES CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Measures are formulated in accordance with the Securities Law, Company Law, Decision of the State Council on Establishing Administrative Licensing on Projects Subject to the Administrative Examination and Approval That Really Need To Be Preserved and other laws and administrative regulations for the purpose of regulating the administration of senior managers of securities companies, promoting the formation of professional management contingents in securities industry, and improving business management level of securities companies, and protecting the lawful rights and interests of investors. Article 2. The "senior managers of securities companies" (hereinafter referred to SM) mentioned in the present Measures shall refer to the persons who have leadership duty to the decision-making, business operation and management of the company, namely, the chairman of the board, vice chairman of the board, supervisor, general manager, vice general manager, person in charge of finance of the company, responsible person for compliance with regulations of the company and the persons who actually perform the aforesaid functions. Article 3. A securities company shall select and engage persons who have obtained the qualification for assuming the posts of SMs of the securities company (hereinafter referred to the SM qualification) to act as SMs. No person failing to obtain the SM qualification may act as SM. The SM qualification shall be subject to the approval of China Securities Regulatory Commission (hereinafter referred to the CSRC) according to law. Article 4. The SMs shall observe laws, administrative regulations and the provisions of the CSRC, abide by the articles of association of the company and the industry criterion, scrupulously keep good faith, be prudent and diligent, and faithfully perform duties. Article 5. The CSRC shall make supervision over and administration on the SMs according to law. The Securities Association of China and the securities exchanges shall make administration on the SMs according to laws, administrative regulations, provisions of the CSRC and self-disciplinary rules. CHAPTER II QUALIFICATION FOR HOLDING A POST Article 6. The following conditions shall be met when an applicant applies for SM qualifications such as the board chairman, vice chairman of the board and the supervisor: (1) Having engaged in securities work for more than three years, or in finance, law or accountant work for more than five years, or in economic work for more than ten years; (2) Having passed the testing on qualification level approved by the CSRC; (3) Having the educational background of graduate of college or university or above; (4) Being honest and keeping faith, having good professional ethics, and having no bad record within the past five years; (5) Knowing well the relevant legal knowledge on business management of securities companies, and having business management ability and organization and coordination ability are necessary for performing the function of SM; (6) Having no circumstances that prohibit him from holding the post of SM and from being the practicing personnel prescribed by the Company Law, Securities Law and other laws and administrative regulations; and (7) Other conditions prescribed by the CSRC. Article 7. When an applicant applies for such SM qualifications as the general manager, vice general manager, person in charge of finance and responsible person for compliance with regulations, he shall satisfy the following conditions in addition to satisfying the conditions prescribed in item (2) through item (6) of Article 6 of the present Measures: (1) Having obtained the qualification for practice in securities industry; (2) Having engaged in securities work for more than three years or in financial work for more than five years; and (3) Having held the posts of, or above, departmental responsible persons of such financial institutions as securities, funds, futures, banks, and insurance, etc. for no less than two years, or having experiences of management work of the equivalent posts. The board chairman or vice board chairman who exercises the business management powers of a company shall meet the condition for holding the post prescribed in this Article. Article 8. Anyone who applies for the SM qualification shall be recommended by two SMs currently holding the posts for more than one year, and their recommendation opinions shall be issued. Article 9. An applicant shall submit the following application documents to the CSRC when applying for the SM qualification: (1) Application form for the SM qualification; (2) Recommendation opinions of two persons making the recommendation. (3) Audit report on his leave-post issued by the entity he once held the post, appraisal opinions issued by the entity/entities he once held the post in the past three years, and supervision opinions issued by the supervision department of the financial institution he once held the post in the past five years on the conditions concerning the practice experiences of the applicant and whether he has ever been punished or had any bad records, etc.; (4) Photocopy of the identity certificate; (5) Photocopies of certificate of educational background, certificate of qualification on securities practice, conformity certificate for qualification level testing, and certificate of professional qualification; (6) Legal opinion paper issued by law firms; and (7) Other materials prescribed by the CSRC. The recommendation opinions, audit report for leaving the post, appraisal opinions, and supervision opinions prescribed in items (2) and (3) of the preceding paragraph shall be sent to the CSRC and its attached office at the place of residence of the applicant by the entity or individual that issues the opinions as an agent, other application documents shall be submitted to the attached office of the CSRC at the residence of the applicant for archival filing concurrently. Article 10. The recommendation opinions issued by the person making the recommendation shall focus on the statement of the individual morality of the applicant, his observance of laws and disciplines, vocational level, and management ability, and shall express clear recommendation opinions. Article 11. The detached offices of the CSRC shall make examination on the materials for archival filing within 10 workdays from the date of receiving them, and review and talk with the applicant, as well as submit the examination opinions and the working paper on the review and talk to the CSRC. Article 12. The CSRC shall make acceptance and examination on the application materials according to law, and make decision on administrative licensing. If the application meets the conditions, the licensing shall be granted, and the certificate of SM qualification shall be issued. The CSRC may check the morality, working ability and working experiences of the applicant through review and talk and other ways. Article 13. In case any applicant applies for the SM qualification by disguising the relevant conditions or providing false materials, the CSRC shall reject the application or shall not grant the application for assuming the post, and the applicant is prohibited to reapply for SM qualification within one year. In case any applicant obtains the SM qualification by cheating or bribery or other improper means, the applicant may not reapply qualification for SM qualification within 3 years. Article 14. The board of directors of a securities company shall sign engagement agreements with the engaged general manager, vice general managers, person in charge of finance, and responsible person of compliance with regulations, and make stipulations on the term of duty, examination on performance, reasons for dismissal, rights and obligations of both parties, and liabilities for breach of contract, etc.. Article 15. Where a securities company selects and engages an SM, it shall submit the following archival-filing materials for assuming the post to the CSRC and its detached office at the place of registration of the company and the residence of the SM being engaged within 5 workdays from the date when the decision on engagement is made: (1) Archival-filing report for holding the post of SM, in which the duty and scope of functions of the engaged SM shall be included; (2) The documents of decision on engagement and the engagement agreement; (3) The letter of commitment for making management in good faith signed by the engaged SM; and (4) Other materials prescribed by the CSRC. Article 16. The CSRC shall make examination on the archival-filing materials for holding the post of SM according to law, and shall order the company where the SM assumes the post to correct in case the procedures for assuming the post of SM do not comply with the provisions. Article 17. In case any SM has any of the following circumstances, his SM qualification shall be invalidated automatically: (1) Having circumstances that prohibit him from acting as a director, supervisor or manager as prescribed by the Company Law and the Securities Law; (2) Being subject to criminal punishments; (3) Failing to hold the post of SM of any securities company within 5 years from the date of obtaining the SM qualification; (4) Being liable for the custody, administrative taken-over, revocation or order-to-close of the securities company where he assumes the post due to grave acts in violation of laws and regulations; (5) Failing to take part in the annual examination required; or (6) Other circumstances prescribed by the CSRC. CHAPTER III BASIC BEHAVIOR CRITERIONS Article 18. The SM shall earnestly perform duties prescribed by law and the articles of association of a company, promote the company to establish and improve internal control and risk management system, ensure the effective implementation of the relevant systems, maintain the effective operation of control system, and bear leadership liabilities for acts in violation of laws and regulations in the business he is in charge of. Article 19. The SM shall exercise duty in accordance with the articles of association of a company, and may not authorize any person who fails to obtain the SM qualification to exercise power as an agent. Article 20. The SM shall refuse to perform any instruction or authorization of any institution or individual that infringes upon the interests of the company or the lawful rights and interests of any customer, and shall report to the detached office of the CSRC at the place of registration of the company in time in case he discovers any acts infringing upon the lawful rights and interests of any customer in violation of laws and regulations. The CSRC shall protect the lawful rights and interests of any SM who suffers from unjust treatment due to lawful performance of duties and earnestly maintain the customers' interests. Article 21. No SM may accept or take bribery or obtain other illegal income by making use of authority, or embezzle the assets of the company or any customer, or make loans to others the capital of the company or any customer, or provide guaranty for the debts of the company, shareholders of the company or other institutions as well as individuals by using any customers' assets. Article 22. The general manager, vice general manager, person in charge of finance, and responsible person of compliance with regulations may not hold a post concurrently at other profit-making entities except the equity-shared companies of the securities company or undertake other business activities apart from his own work. CHAPTER IV SUPERVISION AND ADMINISTRATION Article 23. In case any person who has obtained the SM qualification and practices in a securities company is under any of the following circumstances, the company shall report to the detached office of the CSRC at its registration place within 5 workdays from the date of such occurrence and explain the reasons: (1) Being subject to a criminal punishment and an administrative punishment; (2) Being put on records by the administrative or judicial department for investigation; (3) Being subject to the punishment of any self-disciplinary management; (4) Being dismissed or punished by the company; (5) Failing to perform duties due to resignation, leaving job, losing civil capacity or due to other reasons; or (6) Other circumstances that may influence his normal performance of duties or qualification for assuming the post. In case any person who has obtained the SM qualification but does not practice in a securities company occurs the aforesaid circumstances, it shall be reported to the detached office of the CSRC at its residence within 5 workdays from the date of such occurrence, and explain the reason. The person making the recommendation shall urge the person being recommended to make report in time, if the former finds that the latter fails to report in time, he shall report to the detached office of the CSRC at the place of residence of the person being recommended within 15 workdays from the date of occurrence. Article 24. In case there is any adjustment on division of functions of SM, the company shall report to the CSRC and the detached office of the CSRC at the place of registration of the company. Article 25. In case any board chairman of any securities company is unable to perform duties or becomes vacant, the vice board chairman or other directors who have the SM qualification shall perform the duty of the board chairman in accordance with the Company Law and the provisions of the articles of associations of the company. In case the general manager of a securities company is unable to perform his duty or becomes vacant, the board of directors shall decide to have another SM of the company to perform his duty as an agent within 15 workdays. The time for performing duty as an agent may not exceed 90 days, unless it is specified differently by laws and administrative regulations. Article 26. In case any securities company or any SM is suspected of any serious violation of laws and regulations and are under investigation of the administrative or judicial department, the board of directors of the company shall suspend the duty of the relevant SM. In case any securities company occurs any of the following circumstances, the CSRC may order the board of directors of the company to change the SM within a prescribed time limit or designate a person to temporarily perform the duty of SM: (1) The company has major business risk and fails to implement effective control and dissolving measures; (2) The SM fails to perform duties according to law; (3) The SM fails to fulfill the duties diligently, which results in or may result in the occurrence of great risks or hidden trouble of risk of the company; or (4) Other circumstances determined by the CSRC according to the principle of prudent supervision. Article 27. In case a securities company changes its board chairman or general manager, it shall handle formalities for alteration of the permit for business operation within 15 workdays from the date when the CSRC approves the holding of the post. Article 28. The CSRC shall make annual examination on the work of any SM and his observance of laws and compliance with regulations. The SM shall, from the second year of holding the post, submit annual examination form with the opinions of the securities company signed on it to the detached office of the CSRC at the place of registration of the company within the first quarter of each year. The SM who has obtained the SM qualification but has not held the post in a securities company shall, from the next year after obtaining the qualification for holding the post, submit annual examination form with the opinions signed by the two persons who recommended him to the detached office of the CSRC at his residence place within the first quarter of each year. Article 29. The detached offices of the CSRC shall complete the annual examination on the SM before June 30 each year and submit the result of examination to the CSRC. Article 30. The persons who have obtained the SM qualification shall take part in vocational training organized by the Securities Association of China or other institutions approved by the CSRC. Article 31. In case any SM leaves post, the company shall make audit on leave-post immediately, and submit the audit report to the CSRC and its detached office at the place of registration of the company for archival filing within 60 days from the day the SM leaves post. The audit report for leaving post shall include the following contents: (1) The scale, profits and losses, and assets quality and other basic conditions of the business he is in charge of; (2) The internal control and the effectiveness of risk control on the business he is in charge of; (3) The compliance with the regulations of the business he is in charge of, including whether there have occurred any major acts in violation of laws and regulations within the scope of his duty and the liabilities he himself shall undertake; and (4) Audit conclusion. The audit for leaving the post of the chairman of the board of directors or of the general manager of a securities company and that of the SM who is dismissed of duties due to acts in violation of laws and regulations shall be handled by the accountant firms that have the qualification of relevant securities business through the entrustment of the supervisory board of the company. Article 32. No SM may hold a post in any other securities company during the period of being audited for leaving his post. Article 33. Under any one of the following circumstances, the CSRC and its detached office may issue a warning letter to or make supervision talk with the SM directly liable or having leadership liabilities: (1) The securities company or he himself is suspected of violating laws, administrative regulations or the provisions of the CSRC; (2) There is major hidden trouble in the corporate governance and internal control of the securities company; (3) The SM does not keep his promise; or (4) The financial index of the securities company does not comply with the risk monitoring index prescribed by the CSRC. Article 34. In case a securities company is subject to the disciplinary punishment by the Securities Association of China and the securities exchanges and other self-disciplinary organizations, or is subject to an administrative punishment by the administrative department of taxation, audit or industry and commerce, it shall report in writing the reasons for the punishment and penalties and the name lists of the SMs who shall assume leadership liabilities to the detached office of the CSRC at the registration place within 10 workdays from the date of occurrence of such facts. Article 35. In case any SM has any of the following circumstances, the CSRC may determine him as an improper person selected: (1) Being issued warning letters or to him supervision talks having been made for three times accumulatively by the CSRC; (2) Having been subject to disciplinary punishments for three times accumulatively by self-disciplinary organizations; (3) Having leadership liabilities for the disciplinary punishment or administrative punishment imposed on the company for 5 times accumulatively; (4) There being evidences proving that he is lack of professional competency, and fails to do well the management work or is in breach of commitment; (5) Failing to effectively implement the relevant systems concerning the corporate governance and internal control; (6) Being absent without leave; (7) Being liable for the business risk occurred in the company or acts in violation of laws and regulations showed in the audit report for leaving his post; (8) Authorizing any person who does not have the SM qualification or whose SM qualification is invalidated or any improper person elected to exercise power as his representative; (9) Determining the person who is to perform duties as a representative in violation of the provisions of Article 25 of the present Measures; (10) Concealing or failing to report acts in violation of laws and regulations or major business management liabilities of other SMs of the company; (11) Refusing to provide relevant supervision information to the CSRC or other circumstances in which he does not cooperate in the supervision; or (12) Violating the provisions of Article 22 of the present Measures. In case the CSRC plans to determine any relevant SM to be an improper person elected, it shall notify the company and the person himself before sending letter of suggestion on improper person selected to the securities company. The SM may put forward written statement to appeal to the CSRC within 10 workdays from the date of receiving the letter of suggestion. Article 36. A securities company shall remove an SM within 10 workdays from the date when it receives the letter of suggestion of the CSRC on determination that he is not a proper person selected, and shall report the removal in writing to the CSRC and its detached office at the registration place of the company within 15 workdays from the date of receiving the suggestion letter. No securities company may select or engage a person who is determined as an improper person selected by the CSRC to assume the post of an SM within two years after the determination. Article 37. In case any SM is dismissed of duty due to the invalidity of SM qualification or being determined as an improper person selected, he shall cooperate with the company to complete the transfer of work and accept audit for leaving his post. Article 38. In case the CSRC determines that a person being recommended is an improper person selected or the person is revoked or suspended of qualification for assuming the post within one year from the date when the person making recommendation signs the recommendation opinions, the CSRC shall not accept the recommendation opinions of the person who makes the recommendation or the annual examination form with his opinions signed on from the date of making the decision on revocation and suspension. Article 39. In case any securities company violates the provisions of the present Measures, the CSRC shall order the company to rectify and correct. The CSRC may, during the period of rectification, suspend acceptance or examination on such application matters concerning the business qualifications and newly established institutions of the company. Article 40. The CSRC establishes an SM database to record such contents of the persons who have obtained SM qualification as the identity information, information on qualification for assuming the post, practicing acts, and conditions of law violation and discipline violation, etc.. The CSRC may make disclosure on the relevant information concerning the SMs by taking proper means. CHAPTER V LEGAL LIABILITIES Article 41. In case any SM of a securities company violates laws, administrative regulations and the provisions of the CSRC, and shall be subject to the administrative punishment according to law, he shall be punished according to the relevant provisions. If he is suspected of committing a crime, he shall be transferred to the judicial department and subject to criminal liabilities. Article 42. In case any applicant applies for the SM qualification by disguising the relevant conditions or providing false materials, he shall be given warnings. In case anyone obtains the SM qualification by cheating, bribery or other improper means, he shall be punished by a fine of less than RMB 30,000 Yuan. Article 43. In case anyone has any of the following circumstances, he shall be ordered to correct, and the company and the SM who is liable shall be given warnings singly or concurrently, and be imposed upon a fine of less than RMB 30,000 Yuan. If the circumstances are serious, the relevant business qualification of the company shall be suspended within 6 months, and the SM who is liable shall be given warnings, suspended or revoked of SM qualification: (1) The company occurs a greater business risk, major economic loss or occur major cases of financial crime; (2) Impairing the lawful rights and interests of customers; (3) Providing false information or disguising major matters concerned to the CSRC; (4) Failing to make rectification required by the CSRC or the rectification is not effective; (5) Failing to perform duty of reporting and archival filing required; or (6) Failing to make audit on SMs required when they leave the post. Article 44. In case anyone violates the provisions of Article 22 of the present Measures, he shall be ordered to correct, given warning singly or concurrently, or a fine of less than RMB 30,000 Yuan. If the circumstance is serious, his SM qualification shall be suspended or revoked. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 45. The persons who have obtained the SM qualification before the implementation of the present Measures shall apply for receiving the SM qualification certificate within the time limit prescribed by the CSRC. Article 46. The present Measures shall come into force as of November 15, 2004." |
||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||
|
Copyright 2002 NovexCn.com
|