China: 海外发债研究专题(上篇):发改委监管部分

Last Updated: 15 July 2019
Article by Bi Xiuli
Most Read Contributor in China, July 2019

外债是指境内企业及其控制的境外企业或分支机构向境外举借的、以本币或外币计价、按约定还本付息的债务工具,外债已经成为大中型企业海外融资的重要途径之一。为了更好的研习海外发债的相关规定,更好的服务客户,笔者就外债的相关规定、外债的主要架构、资金回流以及中国律师在外债的服务范围予以简要小结,以期抛转引玉。本专题研究共分为三篇文章,本文为上篇,发改委监管部分。

一、与外债有关的主要法律法规

二、主要规定

有关外债适用的主要规定,根据监管机构的不同,主要可分为发改委监管系列及外汇监管系列,由于外债融资回流过程中涉及如何落地境内的问题,因此又涉及到商委监管系列。

(一)发改委监管

有关发改委监管,主要体现为阶段性的几个监管文件,即:2044号文,706号文、《关于企业申请办理外债备案登记证明的指引》及666号文。尽管发改委监管文件内容不多,但对企业发行外债具有重要的政策指导作用。从2044号文到666号文,体现了国家发改委在外债监管方面政策的一脉相承,但在城投外债发行方面的监管正逐步收紧及趋严。

1.2044号文

2.706号文

706号文主要是规范房地产、地方政府融资平台等企业发行外债的情形,并相应的提出了具体的要求。为了更好的落实706号文,发改委分别通过召开记者会、微博等方式,就如何落实706号文、下一步的重大外债改革等予以进一步解释。

 (1)706号文

(2)国家发展改革委有关负责人就706号文答记者问

2018年6月27日,国家发改委就706号文答记者问中提到,规范企业举债有关资质要求和资金投向,加强外债风险预警;尽快制定《企业发行外债登记管理办法》;引导规范房地产企业境外发债资金投向,房地产企业境外发债主要用于偿还到期债务,避免产生债务违约,限制房地产企业外债资金投资境内外房地产项目、补充运营资金等。

(3)下一步重大外债改革

发改委官方微博发布消息"完善企业外债备案登记管理有效防范外债风险"。其中明确下一步将要进行重大外债改革,要点如下:

3.《关于企业申请办理外债备案登记证明的指引》

2019年2月18日,国家发改委利用外资和境外投资司在其官方网站上公示,就当前部分企业发行外债未按照2044号文办理备案登记的情况,提出了所有拟发行外债的企业向国家发改委备案的要求,取消了2044号文的"对于实施外债规模切块管理改革试点的省市,企业和金融机构向试点省市发展改革委提出备案登记申请。"该指引进一步明确要求"中央管理企业和金融机构由集团总部(总公司、总行等)向国家发展改革委提出备案登记申请,地方企业(含金融机构)直接向国家发展改革委提出备案登记申请。"

4.666号文

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