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Circular of the State Administration of Foreign Exchange on the Relevant Issues concerning Improving Foreign Exchange Administration on Overseas Listing [Expired]
国家外汇管理局关于完善境外上市外汇管理有关问题的通知 [失效]
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Circular of the State Administration of Foreign Exchange on the Relevant Issues concerning Improving Foreign Exchange Administration on Overseas Listing
(No.108 [2003] of the State Administration of Foreign Exchange September 9, 2003)
The branches and departments of the State Administration of Foreign Exchange at all provinces, autonomous regions, and municipalities directly under the Central Government, and branches of Shenzhen, Dalian, Qingdao, Xiamen, and Ningbo cities,
In order to improve the foreign exchange administration on overseas listing, the State Administration of Foreign Exchange (hereinafter referred to as the General Administration) and China Securities Regulatory Commission (hereinafter referred to as the CSRC) jointly issued the Circular of the State Administration of Foreign Exchange and China Securities Regulatory Commission on the Relevant Issues concerning Further Improving the Foreign Exchange Administration on Overseas Listing (No.77 [2002] of the State Administration of Foreign Exchange, hereinafter referred to as Document No. 77 of SAFE) in August 2002. After the distribution of Document No.77 of SAFE, all the branches and departments of the State Administration of Foreign Exchange (hereinafter referred to as the foreign exchange administration) had taken all kinds of measures to carry out the work for foreign exchange registration of overseas listing smoothly. But during the implementation of the Circular, some issues have emerged, and need to be further clarified and regulated. In order to improve the administration and regulate the operation, the General Administration has hereby made some regulations on the relevant matters for the implementation of Document No.77 of SAFE, meanwhile, drawn up the Operational Rules on Foreign Exchange Administration of Overseas Listing (see the attachment, hereinafter referred to as the “Operational Rules”), and redesigned the Registration Form of Foreign Exchange Registration for Overseas Listed Stock (see the attached Forms 1-6). We hereby make the following notice on the relevant issues:
 

国家外汇管理局关于完善境外上市外汇管理有关问题的通知
(2003年9月9日 汇发[2003]108号)


国家外汇管理局各省、自治区、直辖市分局、外汇管理部,深圳、大连、青岛、厦门、宁波市分局:
为完善境外上市外汇管理,2002年8月国家外汇管理局(以下简称总局)与中国证券监督管理委员会(以下简称中国证监会)联合下发了《国家外汇管理局、中国证监会关于进一步完善境外上市外汇管理有关问题的通知》(汇发[2002]77号,以下简称汇发77号文)。汇发77号文下发后,国家外汇管理局各分、支局(以下简称外汇局)采取了各种措施,使境外上市的外汇登记工作得以顺利进行。但在实施过程中,也出现了一些需进一步明确和规范的问题。为进一步完善管理,规范操作,总局对执行汇发77号文中有关事项进行了规范,同时,拟定了《境外上市外汇管理操作规程(见附件,以下简称《操作规程》),重新设计了境外上市股票外汇登记表(见附表1-6),现将有关问题通知如下:
I.The scope of the administration on foreign exchange registration of overseas listing. An H-share company or a domestic shareholder of a Red-chip company shall, after having acquired the approval of CSRC on its overseas offering and listing (including increasing the issued shares), go through the procedures of foreign exchange registration for overseas listed stock at the foreign exchange administration (for Registration Form, see the attachment). As to “The overseas equity financing by the domestic entities by means of domestic registration, overseas private collections, or overseas registration, overseas private collections, or by any other means” in Article 10 of Document No.77 of SAFE, if they have gone through the domestic approval procedures, the foreign exchange administration shall handle the procedures for the foreign exchange registration of overseas listed stock.
The foreign exchange administration shall focus on the following-up administration of the overseas listing newly approved. For the Red-chip companies which have acquired the approval of overseas listing before the distribution of Document No. 77 of SAFE, the foreign exchange administration shall urge their domestic shareholders to go through the procedures for the foreign exchange registration of the overseas listed stock; if it is difficult to recognize the registration subjects, the registration may be handled by their dispatched offices or designated agencies who act as their registration agents.
   一、关于境外上市外汇登记管理的范围。境外上市外资股公司、境外中资控股上市公司的境内股权持有单位,在经中国证监会批准境外发股和上市(含增发)后,应到外汇局办理境外上市股票外汇登记手续(登记表见附表)。汇发77号文第十条所指的“境内机构以境内注册、境外私募,或者境外注册、境外私募的方式进行境外股权融资的,以及以其他类似方式进行境外股权融资的”,若履行了国内批准手续,外汇局应为其办理境外上市股票外汇登记手续。
外汇局应重点加强对新批境外上市的跟踪管理。对于汇发77号文下发前经批准已上市的境外中资控股公司,外汇局应督促其境内股权持有单位办理境外上市股票外汇登记手续;若难以识别其登记主体,可以由其境内派出机构或指定机构代行登记。
II.The relevant costs as mentioned in Article 3 and Article 4 of Document No. 77 of SAFE are limited to the following costs wholly or partly in relation to overseas listing: charges paid to such foreign intermediary institutions or service institutions as the foreign sponsors, underwriters, lawyers, auditors, assessors etc., listing costs, trust fees (only limited to the issuance of foreign deposit and collection voucher), printing fees and other reasonable fees paid for the overseas issuance and listing.
The costs for overseas listing of an H-share company shall be deducted and reduced in principle from the income of overseas share collection. In case the costs need to be paid from within the territory of China, the company shall apply to the foreign exchange administration by virtue of the Registration Form of the H-share Company for Foreign Exchange Registration of the Overseas Listed Stock (The registration shall be made before the issuance of shares), and by virtue of the written promise of no acts of evasion of foreign exchange, as well as the payment contract or agreement on the relevant costs, etc., and go through the procedures for the foreign exchanges purchase and payment at the designated forex banks where it is located upon the approval of the foreign exchange administration. No overseas listing costs of a Red-chip company shall be paid from within the territory of China.
When the foreign exchange administration is handling the registration after issuing stocks (listing) or making up the registration for an H-share company, or a domestic shareholder of a Red-chip company, whose outlays exceed the items as listed in this Article, or whose overseas listing costs exceed 15% of the income gained from shares collection, it shall require the company or the shareholder to make promises in written form ensuring that they have no acts of evasion of foreign exchanges, and at the same time, shall strengthen verification and examination afterwards.
   二、汇发77号文第三条、第四条所述相关费用限于与境外上市有关的下列全部或部分费用:支付给境外保荐人、承销商、律师、审计师、评估师等境外中介机构和服务性机构的费用、上市费用、托管费用(仅限于发行境外存托凭证)、印刷费以及为境外发行上市支付的其他合理费用。
境外上市外资股公司的境外上市费用原则上从境外募股收入中扣减。如需从境内支付,应持《境外上市外资股公司境外股票外汇登记表》(发股前登记)、无逃汇行为的书面承诺、有关费用的支付合同或协议等向外汇局申请,经外汇局核准后到所在地外汇指定银行办理购付汇手续;境外中资控股上市公司的境外上市费用不得从境内支付。
外汇局在为境外上市外资股公司、境外中资控股上市公司的境内股权持有单位办理发股(上市)后登记或补登记时,对于费用支出超出本条所列项目的,以及境外上市费用超出募股收入的15%的,应要求其出具保证没有逃汇行为的书面承诺,同时加强事后核查。
III.The H-share company, or the domestic shareholder of a Red-chip company, who applies for opening overseas accounts to the foreign exchange administration in accordance with Document No. 77 of SAFE, shall firstly choose the Chinese-funded banks in the place where the company is listed, and shall also provide the written promise provided by the opening foreign banks to be chosen. The main contents in the written promise shall be: The foreign exchange account shall be used strictly in accordance with the scope of income and expenses of the account, and with the time limit for using the account as approved by the foreign exchange administration. The company shall, within 10 working days after the opening or closing of the overseas account, submit to the foreign exchange administration the certificate for opening the account, the certificate for the use of the account and the certificate for cancellation of the account. In case the overseas opening bank selected is inconformity with that as approved by the foreign exchange administration, it shall be deemed as opening accounts without the approval of the foreign exchange administration.
   三、境外上市外资股公司、境外中资控股上市公司的境内股权持有单位按汇发77号文规定向外汇局申请开立境外账户时,应在上市地优先选择中资银行,同时还应提供拟选境外开户银行出具的书面承诺。书面承诺的主要内容为:严格按照外汇局批准的账户收支范围、使用期限等使用外汇账户;在境外账户开立和关闭后10个工作日内,分别将开户证明、账户使用情况和销户证明报外汇局。所选境外开户银行与外汇局批复不符的,视同未经外汇局批准开立账户。
IV.An H-share company, or a domestic shareholder of a Red-chip company that shall repatriate the capitals gained from selling stocks of subject listed company after approval, shall, within 5 working days after the capitals have been repatriated, put on record the simple written form at the foreign exchange administration by virtue of the certificate for remitting in the capital. The H-share companies, or the domestic shareholders of the Red-chip companies, which have been listed upon approval before the promulgation of Document No.77 of SAFE, and have capitals that should be repatriated but fail to be repatriated before handling the procedures for the foreign exchange registration of the overseas listed stock, shall, within 5 working days from the date of handling the registration procedures, repatriate the capitals in accordance with Document No.77 of SAFE, and close the overseas account accordingly.
   四、境外上市外资股公司、经批准应调回减持股份所得资金的境外中资控股上市公司的境内股权单位,应在资金调回境内后5个工作日内,持资金汇入凭证等逐笔到外汇局备案。汇发77号文发布前经批准已上市的境外上市外资股公司、境外中资控股上市公司的境内股权持有单位,在办理境外上市股票外汇登记手续前尚有应调回而未调回资金的,应在办理登记手续之日起5个工作日内按汇发77号文的规定将资金调回境内,并关闭境外账户。
V.If an H-share company, or a domestic shareholder of a Red-chip company fails to handle the foreign exchange registration of the overseas listed stock as prescribed, no special foreign exchange accounts for the stocks shall be opened for them, and no relative business of settlement, sales and payment of foreign exchanges shall be handled for them by the foreign exchange administration or by the designated forex banks.
   五、境外上市外资股公司、境外中资控股上市公司的境内股权持有单位未按规定办理境外上市股票外汇登记的,外汇局和外汇指定银行不得为其办理外汇股票专户的开立,以及相关的结、售、付汇业务。
VI.An H-share company, or a domestic shareholder of a Red-chip company, who pays the overseas listing costs in violation of regulations, shall be punished according to the provisions for foreign exchange evasion or fraud by the foreign exchange administration in light of the seriousness and in accordance with Article 39 of the Regulations of the People's Republic of China on Administration of Foreign Exchange
   六、境外上市外资股公司、境外中资控股上市公司的境内股权持有单位违规支付境外上市费用,按逃骗汇论处,外汇局可视其情节轻重按照《中华人民共和国外汇管理条例》第三十九条进行处罚。
VII.In case an H-share company, or a domestic shareholder of a Red-chip company, who, without the approval of the foreign exchange administration, open foreign exchange accounts domestically or overseas, or change the scope for the use of the foreign exchange account, or the time limit and the prescribed quotas thereof, the foreign exchange administration may impose punishment on them in light of the seriousness and in accordance with Article 47 of the Regulations of the People's Republic of China on Administration of Foreign Exchange.
   七、境外上市外资股公司、境外中资控股上市公司的境内股权持有单位未经外汇局批准,擅自在境外、内开立外汇账户、擅自改变外汇账户的使用范围、使用期限、规定限额等,外汇局可视其情节轻重按照《中华人民共和国外汇管理条例》第四十七条进行处罚。
VIII.In case an overseas opening bank fails to implement the items as approved by the foreign exchange administration, the foreign exchange administration shall report such matters of the opening bank in violation of regulations to the Department of Capital of the General Administration. If the circumstances are serious, the General Administration shall instruct the foreign exchange administration not to approve other listing companies to open accounts in this overseas bank.
......
   八、境外开户银行不按外汇局批准事项执行的,外汇局应将开户银行的违规事项报总局资本司,情节严重的,总局将通知外汇局不得批准其他上市公司在该境外银行开立账户。
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