China: China Legal Briefing-March 8 - April 9, 2004

Last Updated: 4 May 2004

CHINA LEGAL BRIEFING 65 -March 8 - March 12, 2004

National

Amendments to the Constitution of the People’s Republic of China

[Adopted By] National People’s Congress (NPC)

[Adopted On] March 14th 2004

[Subject] Constitutional Amendments

[Effective From] March 14th 2004

[Source] www.china.org.cn

This is the fourth time that National People’s Congress, the highest organ of State power of the PRC, amends the 1982 Constitution. The previous amend-ments were made respectively in 1988,1993, and 1999.

A total of 31 amendments have been adopted by this Congress, several being innovative. It is the first time that protection of private property is recognized in the Chinese Constitution of 1949. The revised Article 13 reads: "The legitimate private property of citizens is sacred. The State protects the private property and the right of inheritance in accordance with laws. The State may launch expropriation or requisition against private property of citizens, provided that such actions are conducted in accordance with laws, justified by public interests and followed by compensation."

It is also the first time that human rights are incorporated in the Constitution. A provision is added to Article 33 as paragraph 3, reads: "The State respects and protects human rights".

Provisions on Call-Back of Flawed Automobile Products

[Issued By] State Administration of Quality Supervision, Inspection and Quarantine

[Adopted On] March 12th 2004

[Subject] Call Back, Automobile Products

[Effective From] October 1st 2004

[Source] www.law-lib.com

The regulation applies to production, importation, sale, lease and reparation of automobiles carried out in China. However, at the present stage, it only applies to automobiles with less than 9 passenger seats, including the seat of the driver. The application to other categories of automobiles, which fall outside this scope of application, awaits further notice.

The Producer and the Importer are obliged to call back the deficient automobiles and bear the transportation costs and costs for removing the deficiencies. The Seller, the Lessor and the Repairer shall assist the Producer in implementing the call-back obligation. The "Producer" refers to the producer incorporated in China that produces or assembles automobile products and issues a quality permit in its own name as well as to the foreign producer whose products have been sold to China.

The call-back refers to the process in which the Producer and the Importer remove the deficiencies which may give rise to personal injury and property loss by way of retaking, repairing or replacing the deficient product.

The call-back period is the quality guarantee period or 10 years, whichever is longer, starting from the moment the automobile is delivered to the first user.

There are two call-back procedures. In the first one, the voluntary call-back, the initiative goes out from the Producer and the Importer which have discovered the deficiencies through their own information system, or reports and complaints from the retailer, the repairer and the customer, or notification from the products quality supervisory bodies. In the second procedure, the non-voluntary call-back, the initiative goes out from the product quality supervisory bodies in case the Producer and the Importer deliberately fail to take call-back initiatives, or they knowingly conceal the deficiencies of the products, or they handle the deficient products in an improper manner.

Provisions on Investment in Advertisement Enterprises by Foreign Investors

[Issued By] Ministry of Commerce, State Administration of Industry and Commerce

[Subject] Advertisement Enterprise

[Adopted On] March 2nd 2004

[Effective From] March 2nd 2004

[Source] www.law-lib.com

This regulation applies to the investment in the advertisement industry by foreign investors, including adding advertisement to the existent scope of business. Moreover, in the event that foreign investors wish to invest in the advertisement industry by way of merger and acquisition, the rules governing M & A by foreign investors shall be applied together with this regulation.

The foreign invested advertisement enterprise may take the form of a joint venture or a wholly foreign invested enterprise. The foreign investor may have a controlling shareholding in the joint venture but not exceeding 70%. However, no wholly foreign invested enterprise is permitted before 10 December 2005 unless the investor is qualified as a Hong Kong Service Provider or a Macao Service Provider whose scope of business includes advertisement.

This regulation does not provide for the requirement of a minimum registered capital. However, the parties to the joint venture shall be enterprises conducting advertisement business, which have been established and have been operating for more than 2 years and have a performance record of advertisement. For wholly foreign invested enterprises, the requirements for the foreign investor are increased to the establishment and operation of minimum 3 years and having advertisement as their major business. The foreign invested advertisement enterprise may not establish branches unless the registered capital has been actually contributed and the annual business income is more than RMB 2 million.

The approving authorities are the State Administration of Industry and Commerce (or its provincial offices) and the Ministry of Commerce (or its provincial bureaus). The applicant shall first seek approval from the State Ad-ministration of Industry and Commerce (or its provincial offices) for the project proposal and feasibility study report. Once approved, it shall submit the contracts and articles of association to the Ministry of Commerce (or its provincial bureaus) for approval. Where both stages are successful, the applicant may complete the procedure by registering the enterprise.

Guidelines on Corporate Governance Reforms and Supervision of the Bank of China and the Construction Bank of China

[Issued By] China Banking Regulatory Commission

[Subject] Corporate Governance

[Adopted On] March 11th 2004

[Effective From] March 11th 2004

[Source] www.cbrc.gov.cn

The Guidelines, although specifically addressed to the Bank of China and the Construction Bank of China, may set a precedent for further joint-stock reforms of other state-owned commercial banks.

The Guidelines prescribe various requirements in relation to corporate governance for the two banks, affecting such aspects of organization, selection of investors, development plans, decision-making, internal control, management of risks, business management, disclosure of information, application of information technology, human resources and use of intermediary institutions.

The Guidelines also set out performance assessment indicators, including ROA (Return on Assets), the ROE (Return on Equity), the cost/income ratio, the non-performing asset ratio, the capital adequacy ratio, largest exposure concentration and the NPL provisioning coverage ratio.

© Wenger Vieli Belser, Beijing, March 12, 2004

CHINA LEGAL BRIEFING 66 -March 15 - March 19, 2004

National

Certain Provisions on Regulating the Mutual Relationship between the Bench and the Bar with a View to Upholding Justice

[Adopted By] Supreme People’s Court, Ministry of Justice

[Adopted On] March 19th 2004

[Subject] Professional Ethics

[Effective From] March 19th 2004

[Source] www.china.org.cn

The document is adopted to make the justice seen to be done. It does not define the scope of the lawyer and the judge and as a result seems to be applied only to the person that holds the practice permit, who has been granted the qualification certificate and has finished one year of training at a law firm (Lawyers Law 2001, Article 2, 8).

The regulation concerns three main aspects. First, the prohibition of a unilateral meeting between the judge and a single party. Second, judges recusing and lawyers declining to provide service. Third, bribery and corruption issues.

From the lawyer’s perspective, he shall not disclose to the parties, both before and after he has been retained, that he is relative, classmate, student, teacher or former colleague of the judge in charge of this case. Further, he shall decline the offer from the party to represent him or terminate the power of attorney, where he is disallowed by the law to do so. In addition, the lawyer retained by the party shall not send gifts, money or securities on the occasion of the wedding or funeral of the judge or his immediate relatives; neither shall he fix up the judge’s house, buy gifts for the judge or invite him to entertainment and free trips; nor shall he reimburse the costs of the judge; loan him vehicles or communication apparatus.

The judge may draw the attention of the relevant authorities to the misconducts of the lawyer and suggest disciplinary measures and administrative punishment. Parties and the third parties may also draw the attention of relevant authorities to the misbehavior of the lawyer or submit communication that is not anonymous.

Regulation on Foundations

[Issued By] State Council

[Adopted On] March 8th 2004

[Subject] Foundation

[Effective From] June 1st 2004

[Source] www.mca.gov.cn

This regulation repeals the Provisions on Foundations of 1988. The established foundation shall renew its registration certificate within 6 month of the effective date of this regulation.

The Foundation refers to a legal person established in accordance with this regulation for the purpose of the commonwealth on the basis of assets donated by natural persons, legal persons and other entities. The Foundation may either be a Public Foundation or a Non-Public Foundation. The Public Foundation is further divided into a National Foundation and a Regional Foundation according to the area of fundraising.

The registration and administration authorities for the foundations are the Ministry of Civil Affairs and its provincial offices. The Ministry of Civil affairs is responsible for the registration and administration of the following foundations: (1) national public foundations; (2) foundations whose legal representative is not a resident of the mainland; (3) non-public foundations whose original assets exceed RMB 20 million; (4) representative institutions established in the mainland by foreign foundations.

The thresholds of original assets of foundations are RMB 8 million, 4 million and 2 million, respectively for National Public Foundations, Regional Public Foundations and Non-Public Foundations.

The documents for the establishment of Representative Institutions of Foreign Foundations comprise: (1) the application; (2) the proof of legal status and articles of association; (3) the personal identification and resume of the prospective head of the representative institution; (4) the proof of address; (5) the approval from the relevant authorities of China according to the activities of the foundation.

The liabilities incurred by the Representative Institutions of Foreign Foundations shall be borne by the Foreign Foundation.

Circular on Arbitration of Disputes Involving Securities and Futures in Accordance with the Law

[Issued By] Legal Office of State Council, China Securities Regulatory Commission

[Subject] Arbitration

[Adopted On] January 18th 2004

[Source] www.law-star.com

The circular is adopted to speed up the settlement of disputes involving securities and futures. Disputes between market parties at equal footing may submit their disputes for arbitration:

1. Disputes of issuance and underwriting between an issuer and a securities company or between securities companies themselves;

2. Disputes between a securities company, a securities agency company, a securities consultancy institution, a futures consultancy institution and their clients;

3. Disputes of issuance, management, custodianship of fund between a fund initiator, a fund management company and a fund custodian;

4. Disputes between an issuer, a public company on one side and an accounting firm, a law firm or a rating agency on the other;

5. Disputes of changes in shareholding of a public company, a securities company, a securities agency company and a fund management company;

6. Other contractual disputes between a securities company, a securities agency company, a securities consultancy institution, a futures consultancy institution, a public company, a fund management company, a securities registration and clearance company and other parties to the securities and futures market.

The circular requires the incorporation of an arbitration clause in the standard contracts for securities and futures transactions by 30 June 2004.

Circular on Certain Issues Regarding the Administration of the Sale of Traveler’s Checks in Foreign Currencies

[Issued By] State Administration of Foreign Exchange

[Adopted On] March 1st 2004

[Subject] Traveler’s Checks

[Effective From] April 1st 2004

[Source] www.safe.gov.cn

This circular applies to the sale of traveler’s checks in foreign currencies by domestic commercial banks to domestic institutions, representative agencies of foreign institutions in China, individual residents and non-residents of China. The traveler’s check refers to an instrument in convertible currencies issued by a foreign bank or special financial institution acting as the ultimate payer.

The traveler’s check in foreign currencies can in principle be sold only for such non-trade purposes as tourism, pilgrimage, family visit, medical treatment and payment for costs related to overseas study. The domestic institutions and representative agencies of foreign institutions may not purchase travelers’ checks in foreign currencies by using whatever kind of cash. This limitation, however, does not apply to individuals.

© Wenger Vieli Belser, Beijing, March 19, 2004

CHINA LEGAL BRIEFING 67 -March 22 - March 26, 2004

National

Certain Provisions on the Disposal of Infringement upon Consumer Rights

[Adopted By] State Administration of Industry and Commerce

[Adopted On] March 12th 2004

[Subject] Consumer Protection

[Effective From] March 12th 2004

[Source] www.saic.gov.cn

This regulation is adopted to enhance the implementation of the Law on the Protection of Rights and Benefits of Consumers on its 10th anniversary.

In case of discrepancies between the terms and conditions agreed upon or undertaken by the business operator, the one more favorable for the consumer shall apply. In addition, the business operator shall stop selling the products and services that may cause personal harm to the consumer or damage consumer property even if properly utilized, and also is obliged to retake the sold products. Further, the business operator shall not include such provisions as shifting the obligation of the operator to the consumer, increase the burden of the consumer, exclude or restrict the consumer’s right to alter or terminate the contract, request for compensation and damages, and initiate lawsuits.

The bureaus of industry and commerce are empowered to correct the irregularities and issue orders for compliance. They may also record the misbehaviors in the market participant credit supervision system.

Provisions on Penalties of Misconducts of Lawyers and Law Firms

[Issued By] Ministry of Justice

[Promulgated On] March 19th 2004

[Subject] Penalties

[Effective From] May 1st 2004

[Source] www.china.com.cn

This regulation repeals the 1997 Provisions on Penalties of Misconducts of Lawyers. Compared to its forerunner, the scope of punishable acts has been expanded.

The authorities that are entitled to impose penalties in accordance with the Lawyer’s Law and this regulation are the administrations of justice at various levels. The penalties against lawyers include admonition, confiscation of illegal benefits, suspension of practice and revocation of practice license. The sanctions against law firms embody admonition, confiscation of illegal benefits, suspension of business and correction or revocation of business license.

This list of punishable acts committed by the lawyer in this regulation are an interpretation of "other punishable acts" in Article 44 (11) of the Lawyer’s Law. They concern such aspects as conflicts of interests, unfair competition, infringement upon the rights of clients, interference with the administration of justice, and perjury.

Procedural Rules for Collection of Legal Fees by Law Firms

[Issued By] Ministry of Justice

[Adopted On] March 16th 2004

[Subject] Legal Fees

[Effective From] May 1st 2004

[Source] www.china.com.cn

The Rules provide that the collection of legal fees shall be governed by the 1997 Provisional Rules on the Ad-ministration of Collection of Legal Fees and other regulations on legal fees promulgated by provincial price authorities and administrations of justice.

Only law firms shall collect legal fees. An individual lawyer is not entitled to do so. Law firms shall publicize billable items, the calculation basis, and the means of payment by notifications or brochures. Law firms shall conclude legal fee contracts or include a clause on legal fees in the power of attorney.

Costs independent from legal fees borne by the party, such as costs for appraisal and notarization, shall be notified in advance to the party. The scope and payment of these costs shall be agreed between the law firm and the party. Costs for appraisal, notarization, translation and fees charged by the courts should be paid on a reimbursement basis. Traveling costs may be collected in advance on the basis of a budget agreed by the party.

The law firm may establish special accounts for the party to keep contract funds, funds collected from enforcement and a security account for the implementation of contract.

Provisional Rules on the Supervision and Examination of Non-performing Assets of Commercial Banks

[Issued By] China Banking Regulatory Commission

[Adopted On] March 25th 2004

[Subject] Non-performing Assets

[Effective From] March 25th 2004

[Source] www.cbrc.gov.cn

This regulation is divided into seven parts with the following headings: general principles, supervision of non- performing assets, analysis of non-performing assets, examination of non-performing assets, sources and analysis of data and information & time-limit for submission of reports, liabilities for administration and supervision of non-performing assets, final clause.

Compared to the existent rules on the supervision of unperformed assets, there are two new features in the regulation. First, the scope of supervision is more comprehensive, including loans, non-loaned assets and off-balance sheet transactions. Secondly, emphasis is placed both on the balance and the ratio of unperformed assets.

Commercial banks shall exercise direct supervision over their institutions and clients. The institutions include: the top 5 bank branches in terms of unperforming assets ratio, bank branches whose balance or ratio of unperforming assets keep rising, the top 5 bank branches in terms of anticipated loss-ratio in non-loaned assets, bank branches whose off-balance sheet transactions are in disorder. The clients include: clients with more than RMB 100 million outstanding unperforming loans, the group clients owning more than 5 related enterprises with an overall outstanding amount of unperformed loans more than RMB 100 million.

Code of Coporate Governance for Futures Brokerage Companies (Provisional)

[Issued By] China Securities Regulatory Commission

[Adopted On] March 15th 2004

[Subject] Corporate Governance, Futures Brokerage Companies

[Effective From] March 15th 2004

[Source] www.law-lib.com

The Code applies to futures brokerage companies incoporated in China. The corporate governance for the purpose of this code refers to the corporate structure comprising the conference of shareholders, board of directors, board of supervisors, and the management, as well as arrangements including decision-making, restrictions and incentives to guarantee the effective functioning of the foregoing organs and the balance of power between them.

In order to improve corporate governance the following principles shall be adhered to: the improvement of the balance of power, the reinforcement of risk control of futures brokerage, the protection of the equality and the rights of all shareholders and the perfection of the incentives and restrictions.

The position of an independent director shall be established in one of the following cases: (1) the registered capital is no less than RMB 50 million; (2) the single shareholder or ultimate beneficiary directly or indirectly holds more than 50% of the shares; (3) the position of chairman of the Board of directors and the general manager are held by the same person; (4) the financial institutions directly or indirectly act as shareholders

© Wenger Vieli Belser, Beijing, March 26, 2004

CHINA LEGAL BRIEFING 68 -March 29 - April 2, 2004

1. National

Circular on Regulating Certain Recent Issues Regarding Sale of Fund Units

[Adopted By] China Securities Regulatory Commission (CSRC)

[Subject] Sale of Fund Units

[Source] www.law-star.com

Recently, as a reaction against the appearance of unfair competition activities by fund companies and sale agencies in the marketing of fund units, the CSRC reiterated its position on this matter.

The Circular requires that fund companies and sale agencies should strictly abide by the Provisional Rules on the Administration of Sale of Securities Investment Fund (CSRC, 18 September 2002). The materials used for marketing shall contain wording that will explicitly inform about the risks involved. The fund companies and sale agencies shall not viciously suppress prices of their products or harm the reputation of products of others. Furthermore, they shall not sell their products at a price lower than their actual cost by means of lottery, rake-off, gratuitous insurance, cash back and free fund units. More importantly, no assurance of profit or minimum profit may be made to the investors. The fund companies shall ensure that sale agencies sell the fund units at a uniform price.

As to compliance and enforcement, the CSRC will adopt the following measures including face to face reminder, written notification, open criticism, suspension of new fund application and suspension or revocation of the sale agency permit.

Response to Questions of Pre-Tax Cost Deduction for Travel Agencies

[Issued By] State Administration of Taxation (SAT)

[Promulgated On] March 4th 2004

[Subject] Enterprise Income Tax

[Effective From] March 4th 2004

[Source] www.law-lib.com

Considering the practice that some travel agencies book inbound tickets for their customers from elsewhere and include the ticket fare into the group fee, the SAT makes it clear that the actual costs of inbound tickets for customers may be deducted before taxation.

The application for such deduction requires the proof by photocopy of the ticket, as the ticket has been delivered to the customer. However, the taxation authorities may request additional documentation from the travel agency to establish its application for deduction.

To avoid double deduction, the cost of tickets for consumption purposes, such as tourism, shall not be deducted again as enterprise cost at the enterprise employing the ticket holder or the enterprise invested by the ticket holder.

Circular on Regulating Certain Issues Regarding Settlement of Foreign Exchange Deals by Individual Residents

[Issued By] State Administration of Foreign Exchange

[Adopted On] March 18th 2004

[Subject] Settlement of Foreign Exchange Deals

[Effective From] April 1st 2004

[Source] www.safe.gov.cn

The Circular is adopted to facilitate trade and investment as well as effectively regulate capital account and discourage speculated capital transactions through individual residents and non-residents via non-trade channels.

The bank shall examine whether the request for settlement of foreign exchange is genuine. Where the sum is no more than USD 10000, the individual resident making the request for settlement shall produce his or her ID. Where the sum is more than USD 10000 but no more than USD 50000, the individual resident making such request shall produce his or her ID as well as proof of legitimacy of the source. Where the sum is more than USD 50000, the individual resident shall apply for the approval from the local bureau of foreign exchange administration with ID and proof of the legitimacy of the source before making the request for settlement to the bank.

2. Local

Provisions on the Administration of the Collection of Labor Arbitration Fees

[Issued By] Bureau of Pricing of Guangdong Province et al

[Adopted On] March 26th 2004

[Subject] Labor Arbitration Fees

[Effective From] April 10th 2004

[Source] www.szlabor.com

The arbitration fees under this regulation encompass registration fees and processing fees. The registration fee is decided according to the number of the parties. The processing fee is calculated on the basis of the sum in dispute. Where the case does not involve a sum in dispute, the processing fee is set at RMB 300. Seperate processing fees will be charged for additional claims, counter-claims and third-party claims.

The registration fee shall be advanced by the applicant within 5 days of notification of registration by the arbitration commission. Failure to pay the registration fee is presumed as withdrawal of application. The processing fee shall be advanced by both parties, the allocation of which shall be decided by the tribunal.

The losing party shall foot the bill for arbitration fees. Where there is no absolute losing party, the arbitration fees shall be shared by both parties in accordance with the decision of the tribunal. Where the case is settled through mediation presided by the tribunal and the parties fail to agree upon the allocation of arbitration fees, the tribunal shall decide the allocation.

For additional arbitration fees, the party making the request shall bear the following costs: (1) the travel expenses for the obtainment of evidence by the arbitration commission; (2) copy fees for photocopying documentation relevant to the case; (3) costs arising out of appraisal, inspection, translation, announcement by third parties; (4) compensation for witness, appraiser or interpreter appearing before the tribunal.

© Wenger Vieli Belser, Beijing, April 2, 2004

CHINA LEGAL BRIEFING 69 -April 5 - April 9, 2004

National

Foreign Trade Law (Amended)

[Issued By] Standing Committee of National People’s Congress

[Adopted On] April 6th 2004

[Subject] Foreign Trade

[Effective From] July 1st 2004

[Source] www.china.org.cn

The Law is revised to reflect the developments in the field of foreign trade, notably the commitments under the WTO agreements, since it was first adopted in 1994. It applies to foreign trade, which refers to importation and exportation of goods and technologies and trade in service, and protection of trade-related intellectual property rights. However, it does not apply to separate custom territories of China.

There are 11 chapters in the Law, namely, general principles, foreign trade operator, importation and exportation of goods and technology, international trade in services, protection of trade related intellectual property rights, order of foreign trade, investigation of foreign trade, remedies of foreign trade, promotion of foreign trade, sanctions and final clause.

In relation to the foreign trade operator, the Law lifts the restrictions of the capacity of individuals to engage in foreign trade. Furthermore, the Law abolishes the current approval procedures for foreign trade operators. In addition, the Law provides for state trade, which applies to certain goods and can only be dealt with by certain authorized enterprises, both subject to later announcements.

With reference to trade in goods, technologies and services, the Law enshrines the principle of foreign trade. However, this principle is qualified by exceptions listed in Article 16 and 26, which resemble those of Article 20 GATT.

As for the protection of trade related intellectual property rights, the department of the State Council in charge of foreign trade may impose a ban upon certain imports where such imports infringe IP rights and jeopardize foreign trade orders. At the same time, the Law authorizes the said department to take necessary measures to remove the damage brought about by unfair trade terms in license agreements such as waiver of challenge and exclusive license-back constructions.

Provisions on Certain Issues in Adjudicating Cases Involving Letter of Credit (Consultation Document)

[Issued By] Supreme People’s Court

[Subject] letter of credit

[Closing Date] June 1st 2004

[Source] www.court.gov.cn

The judicial interpretation is drafted by referring to the Uniform Customs and Practices for Documentary Credit. It is divided into 4 parts: the scope of letter of credit cases and applicable law, the separate nature of the letter of credit and examination of documents, fraud and injunction, and guarantee for letter of credit.

The people’s courts, in adjudicating cases involving letter of credit as defined in part I, shall apply international customs and other rules agreed by parties. In absence of such agreement, they shall apply the Uniform Customs and Practice for Documentary Credit and other international customs.

The letter of credit is documentary transaction separate from the underlying transaction on which it may be based. The issuing bank is by no means bound by the underlying transaction between the applicant and the beneficiary and shall make the payment within the set period where the documents are consistent with each other and in compliance with the terms and conditions of the letter of credit. The inconsistencies between documents, between documents and the letter of credit will not be considered as discrepancies provided that they will not lead to different interpretations.

The judicial interpretation devotes many of its provisions to anti-fraud. The fraud will occur where:

(1) The applicant, in conspiracy with the beneficiary or the third party, presents fake documents without genuine underlying transactions;

(2) The beneficiary does not make delivery or the goods delivered by him are of little value;

(3) The beneficiary forges documents or presents documents containing fraudulent statements;

(4) Other fraudulent use of documents.

The issuing bank or the applicant may seek the injunction from the court having jurisdiction when the fraud comes to their notice.

However, even if it has affirmed fraud exists the court shall not render injunction by order or by judgment in the following cases:

(1) The bank designated or authorized by the issuing bank has made the payment upon the instruction from the issuing bank;

(2) The holder in due course of the draft accepted by the issuing bank, or the bank designated by it, has paid the value of the drafts in good faith;

(3) The confirming bank has made the payment in good faith;

(4) The negotiating bank has negotiated the letter of credit in good faith;

(5) The second beneficiary under the transferable letter of credit has paid the value of credit in good faith.

Provisions on the Administration of Related Transactions between Commercial Banks and Insiders or Shareholders

[Issued By] China Banking Regulatory Commission

[Promulgated on] April 2nd 2004

[Subject] Related Transaction of Commercial Banks

[Effective From] May 1st 2004

[Source] www.cbrc.gov.cn

The regulation consists of 6 parts with the following headings: general principles, related parties, related transactions, administration of related transactions, sanctions, and miscellaneous matters.

There are three categories of related parties to commercial banks. The first category includes parties having an actual related relationship with commercial banks (Article 7-9). The second category refers to parties having contractual arrangements with commercial banks, which makes them meet one of scenarios of first category related parties (Article 10). The third category of parties is presumed related when engaging in a transaction with commercial banks which is unfair and not carried out on market basis, making such parties benefit on the cost of the commercial banks.

The related transaction may take one of the following forms: grant of credit, guarantee, transfer of assets, provision of service and other related transactions defined by the CBRC. To facilitate management and administration, the related transactions are divided into two groups: ordinary related transaction and material related transaction, based on ratio of value of single transaction and ratio of overall transactions.

The administration system comprises 4 pillars. The first pillar is the requirement to establish a management scheme for related transactions by commercial banks. The key factor is the commission on related transactions chaired by an independent director comprising at least 3 members. The second pillar is to prescribe approval and report procedures for related transactions. The third pillar is to ban and restrict certain transactions. The fourth pillar is to provide rules for auditing and disclosure.

© Wenger Vieli Belser, Beijing, April 9, 2004

This publication is intended to provide accurate information in regard to the subject matter covered. Readers entering into transaction on the basis of such information should seek additional, in-depth services of a competent professional advisor. Wenger vieli belser, the author, consultant or general editor of this publication expressly disclaim all and any liability and responsibility to any person, whether a future client or mere reader of this publication or not, in respect of anything and of the consequences of anything, done or omitted to be done by any such person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions