Implementing Measures for the Acquisition of Individual Creditor’s Rights and Client’s Securities Transaction Settlement Funds

个人债权及客户证券交易结算资金收购实施办法

 

Promulgating Institution: People's Bank of China, Ministry of Finance, China Bank Regulatory Commission, China Securities Regulatory Commission

Document Number: Zheng Jian Fa [2005] No. 10

Promulgating Date: 01/28/2005

Effective Date:01/28/2005

 

颁布机关: 中国人民银行; 财政部; 中国银行业监督管理委员会; 中国证券监督管理委员会

文      号: 证监发[2005]10号

颁布时间: 01/28/2005

实施时间: 01/28/2005

 

These measures are formulated in accordance with the Securities Law, the Trust Law, and other relevant laws and regulations, in order to implement the Opinions on the Acquisition of Individual Creditor's Rights and Client's Securities Transaction Settlement Funds (hereinafter, "Opinions") and regulate the acquisition of the individual creditor's rights and the client's securities transaction settlement funds.

    为贯彻落实《个人债权及客户证券交易结算资金收购意见》(以下简称《收购意见》),规范个人债权及客户证券交易结算资金的收购工作,根据《证券法》、《信托法》等有关法律法规,制定本实施办法。

1. Standards for Identifying Individual Creditor's Rights

(1) Basic standards for identifying an individual's assets under entrusted finance management or trust assets of definite ownership

(a) The assets of a client is operated on a closed-end basis independently in the securities account and fund account opened by the client, or the trust assets is operated on a closed-end basis independently for the purposes as provided for in the relevant trust documents. The aforementioned assets are differentiated from, and are not confused with, the proprietary assets of the disposed financial institution or the assets of any other clients. If the disposed financial institution pays the proceeds derived from the entrusted finance management or trust proceeds by depositing funds or transferring securities to the account of the client, such deposit or transfer shall not be deemed as confusion.

(b) If the contract for the entrusted finance management provides for the entrusted finance management service, the trustee shall observe the contract.

An individual's assets under the entrusted finance management or trust assets of definite ownership and not appropriated by any financial institution are not assets to be liquidated and shall not be incorporated in the scope of acquisition. With respect to an individual's assets under the entrusted finance management or trust assets that fail to meet the aforementioned standards, if the relevant contract was executed prior to 30 September and is consistent with the filing with the competent financial regulatory authority, and if such assets comply with the Opinions in terms of their ownership and nature under that contract, such assets may be incorporated in the scope of acquisition; if that contract is inconsistent with the aforesaid filing, such assets shall not be incorporated in the scope of acquisition.

(2) Disposition of assets under the entrusted finance management regulated by three parties

"Entrusted finance management regulated by three parties" means the entrusted finance management where a client opens an securities account and a fund account in a third party financial institution and the third party financial institution exercises the regulatory power under the contract for the entrusted finance management executed among the disposed financial institution being the trustee, the client, and the third party financial institution.

With respect to an individual's assets, of definite ownership and not appropriated, under the entrusted finance management regulated by three parties, the assets in the client's accounts are the assets owned by the clients and shall not be incorporated in the scope of acquisition. With respect to an individual's assets, appropriated by the disposed financial institution, under the entrusted finance management regulated by three parties, the creditor's rights of the individual shall be incorporated in the scope of acquisition and the third party financial institution shall be subject to relevant liabilities.

(3) Disposition of assets under finance management entrusted by individuals in the name of an institution

If an institution where several individuals gathers together executes a finance management agreement with a financial institution and none of the individuals does so with the financial institution, such finance management is the finance management entrusted by individuals in the name of an institution. The creditor's rights under such finance management are not incorporated in the scope of acquisition and shall be disposed properly by the people's government of the province or the city specifically designated in the State plan where the acquisition takes place. According to the principle "fundraising institution liable", the fundraising institution (that is, the institution that executed an agreement with the disposed financial institution) must bear the corresponding liabilities.

       一、个人债权认定标准

    (一)认定权属清晰的个人委托理财及信托的基本标准

    1、客户资产在客户开立的证券账户和资金账户内独立封闭运作,或信托财产按照信托文件规定的用途独立封闭运作,与被处置金融机构的自有资产、其他客户资产相区别,没有发生混同情况。被处置金融机构以向客户账户存入资金或转入证券的形式支付委托理财收益、信托收益的,不属于混同。

    2、委托理财合同中对委托理财业务有约定,受托人按合同约定操作。

    权属清晰、未被金融机构挪用的个人委托理财和信托,不作为清算财产,不纳入收购范围。2004年9月30日以前签署且与金融监管部门备案资料一致,上述标准以外的个人委托理财及信托,按照所签合同判断其权属和性质,符合《收购意见》规定的,可纳入收购范围;与上述备案资料不一致的,不纳入收购范围。

    (二)三方监管委托理财的处理

    三方监管委托理财,是指被处置金融机构作为受托人,与客户及第三方金融机构签订委托理财合同,客户在第三方金融机构开立证券和资金账户并由第三方金融机构行使监管权的委托理财行为。

    对于权属清晰、未被挪用的个人三方监管委托理财,客户账户内资产是属于客户所有的财产,不作为清算财产,不纳入收购范围。对于资产被受托金融机构挪用的个人三方监管委托理财,个人债权纳入收购范围,同时追究第三方的责任。

    (三)个人以机构名义委托理财的处理

    多个人集合到一个机构名下,该机构与金融机构签订委托理财协议,个人与金融机构之间没有签定委托理财协议,即个人以机构名义委托理财。此类债权不纳入收购范围,由所在地省级或计划单列市人民政府妥善处置,按照“谁集资、谁负责”的原则解决,集资机构(即与被处置金融机构签订协议的机构)必须承担相应的责任。

2. Identification of Client's securities transaction settlement funds

(1) Basic standards for identifying client's securities transaction settlement funds

"Funds of a client for settlement of securities transactions" means the funds deposited by a client of brokerage services with a securities company for the purpose of closing in full amount, all payments derived from the sale of negotiable securities (less brokerage commission and all other due costs), dividend, cash bonus and bond interest, and the interest accrued on the aforementioned funds. The funds of a client for settlement of securities transactions must meet the following requirements:

(a) That the client is a client of ordinary brokerage services;

(b) That the client must have opened a securities account and a fund account with the disposed securities company; and

(c)That the client must have made investment actually.

In the course of identification, the client shall provide its valid certificates, including the identity document, securities account card and the photocopies thereof in the case of an individual investor; and the original and photocopy of the counterpart of the business license, or the original and photocopy of the legal person registration certificate, the power of attorney of the legal representative, the identity document and the photocopy thereof of the authorized agent of the legal representative, the Securities Transaction Agency Agreement and all other contracts, etc. in the case of an institutional investor.

(2) Identification of clients of ordinary brokerage services and disposition

To identify whether a client is one of ordinary brokerage services shall follow the principles: (i) facts-based, (ii) law observed, and (iii) essence outweighing forms. A client is not one of ordinary brokerage services in the scope of acquisition if:

(a) The client has any contractual relationship outside the ordinary brokerage services;

(b) The securities company paid additional incomes, such as the proceeds of the entrusted finance management or of lending, or brokerage fee, to the client or any third party at the result of any transaction related to relevant account;

(c) The securities company or the client made unilateral covenant to the other party; or

(d) It is proved that the transaction was not of a client of ordinary brokerage services.

If the client and the securities company or any of its affiliates has any other debt relationship, or the client and the securities company has any due and unsettled assets under the entrusted finance management or has any other relationships of other than ordinary brokerage services, relevant payments shall be deducted in acquisition.

(3) The account funds shall be indentified as the client's funds for settlement of securities transactions under any of the following circumstances:

(a) A client opens a fund account under others' names without account opening information or with incomplete account information but actually inputs fund, manages and controls such account;

(b) If the commission of finance management or loan relation terminates (including termination upon expiry, agreement-based termination and termination upon actual repayment) prior to the disposal date (exclusive of the date), the balance of a client's fund account shall be the client's funds for settlement of securities transactions; and

(c) In existence of financing account (except finance management under commission), the remaining account funds after the deduction of financing portion shall be the client's funds for settlement of securities transactions.

(4) The assets in the account of a client shall not be identified as the funds of the client for settlement of securities transactions if:

(a) The client and the securities company has any entrusted financial management or lending relationship in writing in violation of relevant provisions outside the brokerage services;

(b) The client covenants that the funds or securities will not be withdrawn or used within a specified term as of their being deposited or trusted; or

(c) The securities company has paid directly to the client any proceeds other than the return of the commission.

(5) The following funds shall be deducted from the funds of a client for settlement of securities transactions in acquisition:

(a) Funds in the accounts proprietarily operated or actually controlled by the disposed securities company;

(b) Funds invested by the securities company through the accounts proprietarily operated or actually controlled by any shelf company actually controlled by, or any affiliate of, the securities company;

(c) Funds in the accounts opened by, or actually controlled by any affiliate of the securities company; and

(d) Funds of any client who has any relationships such as the entrusted financial management or lending with any of the affiliates of the securities company.

The affiliates shall be identified according to relevant accounting and audit principles issued by the Ministry of Finance.

       二、客户证券交易结算资金的认定

    (一)认定客户证券交易结算资金的基本标准

    客户证券交易结算资金指经纪业务的客户为保证足额交收而在证券公司存入的资金,出售有价证券所得到的所有款项(减去经纪佣金和其他正当费用),持有证券所获得的股息、现金股利、债券利息,上述资金获得的利息。客户证券交易结算资金必须具备以下条件:

    1、客户为正常经纪业务客户;

    2、客户必须在被处置证券公司开立证券和资金账户;

    3、客户必须有真实的资金投入。

    认定过程中客户应能提供有效证件和证明,包含审查个人投资者身份证件、证券账户卡及其复印件;机构投资者法人营业执照副本原件和复印件或法人注册登记证书原件和复印件、法定代表人授权委托书和经办人的身份证及其复印件、签署的《证券交易委托代理协议书》及其他合同等。

    (二)正常经纪客户的认定及处理

    判断客户是否属于正常经纪业务客户,应遵循以事实为依据、以法律为准绳,实质重于形式的原则。下述情形均不属于收购范围的正常经纪客户:

    1、存在正常经纪业务外的合同关系;

    2、证券公司因该账户业务向客户或第三方支付过委托理财或借贷收益、中介费等额外收入的;

    3、证券公司或客户向对方出具过单方承诺的;

    4、有证据证明该业务不属于正常经纪客户的。

    若客户与证券公司和证券公司关联方有其他债权债务关系,或客户与证券公司存在到期未结算委托理财等非正常经纪业务关系的,收购时应扣除有关款项。

    (三)下列情况认定账户内资金为客户证券交易结算资金

    1、客户借用他人名义开立资金账户,虽无开户资料,或开户资料不全,但资金投入真实,且已实际管理和控制该账户的;

    2、处置日前(不含处置日),委托理财或借贷关系已经终止(含到期终止、协议终止和实际兑付终止),客户资金账户内资金余额属于客户证券交易结算资金;

    3、存在融资、配资的账户(委托理财业务除外),账户内剩余资金剔除融资、配资后的部分属于客户证券交易结算资金。

    (四)有下列情况之一的,不能界定为客户证券交易结算资金

    1、客户与证券公司之间存在经纪业务外的书面形式违规委托理财或借贷类关系的;

    2、客户承诺资金或证券存入或托管一定期限不提取或不动用的;

    3、证券公司已直接向客户支付过返还佣金外收益的。

    (五)收购时应从客户证券交易结算资金中剔除以下资金

    1、被处置证券公司自营及实际控制账户内资金;

    2、证券公司通过自营、实际控制账户、实际控制的壳公司、关联方投入的资金;

    3、证券公司的关联方开立的账户、实际控制的账户内的资金;

    4、客户与证券公司的关联方之间存在委托理财或资金拆借等关系的,其账户内的资金。

    关联方按财政部发布的相关会计、审计准则确定。

3. Identification and Handling of Other Issues

(1) Identification of other individual creditor's rights

The following creditor's rights shall be deemed as individual creditor's rights:

(a) An individual client directly contracts loans to a financial institution, and holds the loan contract or instrument;

(b) A resident individual holds all varieties of debt obligations issued by a financial institution, including custody instruments of national bonds and debt obligations produced in the same of such financial institution;

(c) A resident individual holds marketable securities (including national bonds, stocks and other lawful securities) deposited in a relevant account of a financial institution but embezzled by such financial institution for repurchase and pledge.

In addition to debt obligations, the standards for the identification of creditor's rights shall also include the actual capital input.

(2) Identification of individual creditor's rights generated from the embezzlement of trust properties

With respect to creditor's rights generated from the embezzlement of trust properties, individual creditor's rights or institutional creditor's rights shall be registered and confirmed as per the trust contract. Where an individual have more than one trust beneficial rights within the acquisition scope again a financial institution disposed of, the amount of individual creditor's rights shall be determined in the aggregate.

Where registration for replacement of a trust beneficiary is gone through prior to announcement of the disposal date by the financial institution disposed of, the nature and amount of the creditor's rights shall be determined as per the trust beneficiary replace with.

(3) Identification of the acquisition amount of individual creditor's rights

High interest agreed upon between a client and a financial institution is not incorporated into the acquisition scope. High interest paid by the financial institution to the client, that is, the portion of the embezzled lawful securities minus the sum of the face interest thereof and the balance of other individual creditor's rights in excess of the statutory interest on deposit publicized by the People's Bank of China at the same period, shall be deducted from the acquisition principals of such client.

(4) Disposition of regular broker clients' embezzled securities

Securities of a regular broker client (including an institutional client) embezzled by a financial institution for repurchase financing or disposed of by other infringing means shall be registered separately according to their varieties, identified carefully, verified strictly, and studies in a unified manner, and responsibilities in respect thereof shall be specified.

Where a financial institution embezzles a client's securities, the person(s) concerned shall be investigated for liabilities and be given administrative punishments. Where a crime is constituted, such case shall be remitted to a judicial authority. A client of this kind and the agent shall sign a statement, warranting that they have not concealed or destroyed any related material. Once a client and the agent is found of concealing facts and swindle the State's acquisition funds, the case shall be remitted to a judicial authority and the funds shall be recovered.

(5) Strictly examining institutional creditor's rights in the name of individuals

The funds shall be identified as institutional funds and do not fall into the category of individual creditor's rights under any of the following circumstances:

(a) Personal account funds and securities derive from a relevant institution or an institution-controlled account, but no investment or debt relation exists between the individual and the institution;

(b) The account holder is an institution-related person, and is unable to provide a credential of lawful fund source;

(c) Proceeds have been paid to a relevant institution and the institution-controlled account by reason of such funds (except that a securities company embezzles the assets entrusted by an individual for the purpose of paying entrusted financing proceeds to another institution); or

(d) Such account is an institutional account, as evidenced otherwise.

The following creditor's rights shall be underlined and carefully confirmed: creditor's rights deemed by a securities company disposed of and agents thereof as institutional; the source or direction of the funds are institutional; creditor's rights sharing the same agent with a known institutional client; creditor's rights of which the corresponding account is involved in a fund transfer relation with an institutional client's account; creditor's rights involving a huge amount (RMB1 million and above); and other creditor's rights having complicated fund transfer relation with an institution. With regard to the abovementioned creditor's rights, a public security authority may be requested to investigate relevant evidences, where necessary.

       三、其他事项的认定和处理

    (一)其他个人债权的认定

    以下债权认定为个人债权:

    1、个人客户直接借贷给金融机构,并持有借贷合同或单据的;

    2、居民个人持有金融机构发行的各类债权凭证,包括国债代保管单和以该金融机构名义开具的债权凭证;

    3、居民个人持有的存放于金融机构相关账户上被金融机构挪用、用于回购质押的有价证券(含国债、股票、其他合法债券)。

    债权认定标准除有关债权凭证外,还应有真实资金投入。

    (二)因信托财产被挪用形成的个人债权的认定

    因信托财产被挪用形成的债权,应按信托合同登记确认个人债权或机构债权。同一个人对被处置金融机构有多笔属于收购范围的信托受益权的,应按同一个人债权予以累计确认个人债权金额。

    信托受益人在被处置金融机构公告处置日前进行了变更登记的,按照变更后的信托受益人确认债权性质和债权金额。

    (三)个人债权收购金额的认定

    客户与金融机构约定的高息,不纳入收购范围。金融机构已支付给客户的高息,即被挪用的合法债券扣除其票面利息部分及其他个人债权中高出同期限人民银行法定存款利息的部分,从该客户收购本金中扣除。

    (四)正常经纪客户被挪用证券的处理

    正常经纪业务客户(含机构客户)证券被金融机构挪用、用于回购融资或以其他侵权方式处分的,按被挪用的证券类别单独登记,认真甄别,从严核实,明确责任,统筹研究。

    金融机构挪用客户证券的,要追究相关人员的责任,予以行政处罚,构成犯罪的移送司法机关。此类客户及经办人必须签署声明,承诺没有隐匿、销毁相关材料。隐瞒事实、骗取国家收购款的客户及经办人一经发现立即移送司法机关处理,并追回资金。

    (五)严格审查个人名义的机构债权

    有以下情形之一的,认定为机构资金,不属于个人债权:

    1、个人账户资金和证券来自有关机构或机构控制账户,但个人与机构之间不存在投资或债务关系的;

    2、开户人属于机构关联人员,开户人也提供不出合法资金来源证明的;

    3、因该资金向有关机构及机构控制账户支付过收益的(证券公司挪用个人委托资产支付其他机构委托理财收益的情况除外);

    4、有其他证据证明该账户属于机构。

    下列债权应予以重点关注,认真核实:对于被处置证券公司及经办人员认为属于机构的债权;资金来源或去向属于机构的债权;与已知机构客户有共同代理人的债权;对应账户与机构客户账户有资金往来关系的债权;数额巨大(100万元以上)的债权;其他与机构存在复杂资金往来关系的债权。上述债权必要时可请公安部门配合调查有关证据资料。

4. Acquisition Procedures and Responsibilities of Individual creditor's rights

(1) Demarcation of responsibilities when local governments acquire individual creditor's rights

Where an individual creditor directly and a branch of a financial institution disposed of directly transact business (for instance, an individual creditor of a securities company opens a securities account or fund account at a securities business office), the provincial level or the government of the city specifically designated in the State plan in the location of the branch thereof is responsible for the acquisition of individual creditor's rights; otherwise, the provincial level or the government of the city specifically designated in the State plan is responsible for the acquisition of individual creditor's rights.

(2) Acquisition Procedures of Personal Creditor's Rights

(a) The custody and settlement entity organizes timely handover of registration materials of individual creditor's rights by the registration group of creditor's rights to the screening and confirmation group for screening, and meanwhile, sends copies thereof to the local office of the China Banking Regulatory Commission or the China Securities Regulatory Commission.

(b) The people's government of each province, autonomous region, municipality directly under the Central Government or city specifically designated in the State plan organizes the establishment of a screening and confirmation group of individual creditor's rights, in charge of screening and confirmation of individual creditor's rights, and gets in place the acquisition funds to be borne by the local government. Upon completion of screening and confirmation, the screening and confirmation group of the local government shall report the confirmation result and the collection of funds to the local custody and settlement entity and local office of the China Banking Regulatory Commission or the China Securities Regulatory Commission in a timely manner.

(c) The custody and settlement entity shall, after the receipt of the confirmation result from the screening and confirmation group of the local government, organize acquisition of individual creditor's rights in a timely manner.

(3) Responsibilities in respect of the acquisition of individual creditor's rights

(a) After verifying the registration materials and related evidences of individual creditor's rights to be true, members of the screening and confirmation group shall sign one by one and submit the same to the superintendent of the screening and confirmation group for reexamination. After reexamining the same to be true, the superintendent of the screening and confirmation group shall sign on the confirmation report. In the case of lack of evidence during the confirmation thereof, the concerned registration authority of creditor's rights shall be notified to make supplementation.

(b) During registration, screening and confirmation, and acquisition, the hand-over procedures shall be undergone strictly, and handover sheet of materials filled in.

(c) The custody and settlement entity shall print related announcements, handover sheets of materials, confirmation letter of acquisition of individual creditor's rights, transfer letter of acquisition of individual creditor's rights, and letter of individual creditor's undertakings.

(4) Punishments and rewards

In the process of acquisition of individual creditor's rights, any entity or individual that swindles the State's acquisition funds by, among other means, concealing facts, or practice of fraud shall be investigated in accordance with applicable laws for liabilities. After said illegal act is verified, the informer shall be given certain rewards (measures therefor shall be publicized separately).

       四、个人债权收购程序和责任

    (一)地方政府收购个人债权时的职责界定

    凡个人债权人与被处置金融机构的分支机构直接发生业务活动(如证券公司个人债权人在证券营业部开立证券账户或资金账户)的,个人债权收购工作由被处置金融机构分支机构所在地的省级或计划单列市政府负责;凡个人债权人与被处置金融机构分支机构未直接发生业务活动(如证券公司个人债权人没有在证券营业部开立证券账户或资金账户)的,个人债权收购工作由被处置金融机构注册地的省级或计划单列市政府负责。

    (二)个人债权收购程序

    1、托管清算机构组织债权登记小组将个人债权登记资料及时移交当地政府甄别确认小组进行甄别,同时抄报当地银监局、证监局。

    2、各省、自治区、直辖市、计划单列市人民政府负责组织成立个人债权甄别确认小组,开展个人债权甄别确认工作,并准备好地方政府承担的收购资金。甄别确认工作完成后,地方政府债权甄别确认小组应将甄别确认结果和资金到位情况及时移交通报当地托管清算机构和当地银监局或证监局。

    3、托管清算机构在收到地方政府甄别确认小组甄别确认结果后,应及时组织个人债权收购工作。

    (三)个人债权收购工作中有关职责

    1、甄别确认小组成员对个人债权登记材料和有关证据严格核实无误后,逐一签字并交甄别确认小组负责人复核。甄别确认小组负责人复核无误的,应在确认报告上签字。确认工作中发现证据不足的,应当通知有关债权登记机构进一步补充材料。

    2、在登记、甄别确认和收购过程中,应严格办理交接手续,填制资料交接单。

    3、托管清算机构应统一印制有关公告、资料交接单、个人债权收购确认函、收购个人债权转让书、个人债权人承诺书等文件。

    (四)惩罚和奖励措施

    个人债权收购中,凡采取隐瞒事实、弄虚作假等手段骗取国家收购款的,依法追究责任。对举报有功人员,查实后给予一定奖励(办法另行公布)。