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Notice on the Operational Procedures for Market Access of Wholly Foreign-funded Banks Reorganized from Foreign Banks' Branches
In order to guide the reorganization of foreign banks' branches into wholly foreign-funded banks, in accordance with the “Regulation of the People's Republic of China on the Administration of Foreign-funded Banks” and the “Detailed Rules for the Implementation of the Regulation of the People's Republic of China on the Administration of Foreign-funded Banks” (hereinafter separately referred to as the “Regulation” and the “Detailed Rules”), we hereby give our notice as follows regarding the relevant matters concerning the operational procedures for market access of foreign banks' branches reorganized into wholly foreign-funded banks:
Reorganization of Foreign Banks' Branches into Wholly Foreign-funded Banks
| | 中国银监会关于外国银行分行改制为外商独资银行市场准入操作程序的通知
为指导外国银行分行改制为外商独资银行工作，根据《中华人民共和国外资银行管理条例》和《中华人民共和国外资银行管理条例实施细则》（以下分别简称《条例》和《细则》）的规定，现将外国银行分行改制为外商独资银行市场准入操作程序的有关事项通知如下。
外国银行分行改制为外商独资银行
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1.The present “Notice” shall apply to the wholly foreign-funded banks which are reorganized from foreign banks' branches within the territory of China and whose funds are solely contributed by their respective head offices, but shall not apply to the newly established wholly foreign-funded banks.
| | 一、本《通知》适用于外国银行将其在中国境内的分行改制为其总行单独出资的外商独资银行，不适用于新设的外商独资银行。
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2.The term “foreign banks' branch institutions” as mentioned in the present “Notice” shall refer to foreign banks' branches and sub-branches; the term “wholly foreign-funded banks' branch institutions” as mentioned herein shall refer to wholly foreign-funded branch banks and sub-branch banks.
| | 二、本《通知》所称外国银行分支机构是指外国银行分行和支行；所称外商独资银行分支机构是指外商独资银行分行和支行。
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3.After the “Regulation” and the “Detailed Rules” come into force, CBRC shall formally accept the relevant applications for reorganization of foreign banks' branches into wholly foreign-funded banks.
| | 三、《条例》、《细则》施行后，中国银监会正式受理外国银行分行改制为外商独资银行的相关申请。
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4.The funds of a wholly foreign-funded bank reorganized from a foreign bank's branch shall be solely contributed by its head office. If the shareholder needs to be changed due to a particular reason, the bank shall, after completing the relevant procedures for reorganization of the foreign bank's branch into a wholly foreign-funded bank, file an application separately in accordance with the provisions in the “Regulation” and the “Detailed Rules” on change of shareholders of wholly foreign-funded banks.
| | 四、外国银行分行改制的外商独资银行应当由其总行单独出资。特殊原因需要变更股东的，应当在外国银行分行改制为外商独资银行相关手续完成后，按照《条例》、《细则》关于外商独资银行变更股东的规定另行申请。
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5.Where a foreign bank reorganizes its branch within the territory of China into a wholly foreign-funded bank whose funds are solely contributed by its head office, the operation funds and undistributed profits of the former branch of the foreign bank may be converted into the registered capital of the wholly foreign-funded bank after the capital verification is made anew, provided that the conversion must conform to the relevant provisions of the state on foreign exchange administration.
Where the accumulated operation funds or undistributed profits are lower than the increasable amount of the converted registered capital of the wholly foreign-funded bank due to accumulative losses of the former branch of the foreign bank or the insufficiency of the loan loss reserves thereof, the wholly foreign-funded bank shall make up the registered capital in accordance with the “Regulation”.
Upon approval of CBRC, a wholly foreign-funded bank may reduce its capital. The registered capital after the reduction shall not be lower than the statutory minimum amount, and shall meet the prudent supervision requirements.
| | 五、外国银行将其在中国境内的分行改制为由其总行单独出资的外商独资银行的，原外国银行分行的营运资金、未分配利润经重新验资后可以转为外商独资银行的注册资本，但须符合国家外汇管理有关规定。
原外国银行分行因累计亏损或者呆账准备金计提不足导致营运资金或者未分配利润累计低于转增外商独资银行注册资本金数额的，该外商独资银行应当按照《条例》的规定补足注册资本金。
经中国银监会批准，外商独资银行可以减资。减资后的注册资本应当不低于法定的最低限额，并符合审慎监管要求。
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6.Where a foreign bank reorganizes its branch within the territory of China into a wholly foreign-funded bank whose funds are solely contributed by its head office, it shall meanwhile apply for preparatory establishment of the wholly foreign-funded bank and for reorganization of the branch within the territory of China into the branch of the wholly foreign-funded bank under planned establishment.
Where a foreign bank intends to reserve a branch engaging in foreign exchange wholesale business, it shall file the application when applying for preparatory establishment of the wholly foreign-funded bank.
Where the foreign bank that applies for reorganization meets the conditions for applying for operating Renminbi business facing citizens within the territory of China, it may file the application when applying for preparatory establishment of the wholly foreign-funded bank.
In order to improve the examination and approval efficiency, the foreign bank applying for the said reorganization may directly submit the following application materials to CBRC (one copy), and CBRC may accept them directly. Meanwhile, a copy of the same application materials shall be submitted to the banking regulatory bureau at the locality of the head office of the wholly foreign-funded bank under planned establishment, and to CBRC's dispatched office at the locality of the former branch of the foreign bank (one copy):
| | 六、外国银行将其在中国境内的分行改制为由其总行单独出资的外商独资银行的，应当同时申请筹建外商独资银行以及将其在中国境内的分行改制为拟设外商独资银行分行。
外国银行拟保留一家从事外汇批发业务的分行的，应当在申请筹建外商独资银行的同时提出申请。
此次申请改制的外国银行，符合申请经营对中国境内公民的人民币业务的，可以在申请筹建外商独资银行的同时提出申请。
为提高审批效率，此次申请改制的外国银行，可以将下列申请资料直接报送中国银监会（一份），由中国银监会直接受理。同时抄送拟设外商独资银行总行所在地银监局及原外国银行分行所在地中国银监会派出机构（一份）：
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(1) an application letter to the chairman of CBRC, which is signed by the board chairman or president (chief executive officer, general manager) of the foreign bank, with the contents including the name, locality, registered capital or operation funds, and type of business, etc. of the wholly foreign-funded bank under planned establishment and those of its branch institutions;
When applying for reserving one branch engaging in foreign exchange wholesale business, the foreign bank shall state in the application letter the name of the branch to be reserved;
When simultaneously applying for operating Renminbi business facing citizens within the territory of China, the foreign bank shall add relevant contents to the application letter. If it needs to increase the capital, it shall state in the application letter the amount of the registered capital to be increased;
| | （一）外国银行董事长或者行长（首席执行官、总经理）签署的致中国银监会主席的申请书，内容包括拟设外商独资银行及其分支机构的名称、所在地、注册资本或者营运资金、申请经营的业务种类等；
如申请保留一家从事外汇批发业务的分行的，应当在申请书中写明拟保留分行的名称；
如同时申请经营中国境内公民人民币业务的，应当在申请书中增加有关内容。如需增资的，应当在申请书中写明拟增加的注册资本数额；
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(2) the plan on reorganizing the foreign bank's branch into a wholly foreign-funded bank, with the contents including the issues involved in the reorganization process, the solution, the arrangements of the reorganization progress, the credits, debts and taxes, etc. of the former branch of the foreign bank, which are to be succeeded by the wholly foreign-funded bank under planned establishment;
| | （二）外国银行分行改制为外商独资银行的计划，内容包括改制过程涉及的问题以及解决方案、改制进程安排、拟设外商独资银行拟继承的原外国银行分行的债权、债务和税务等；
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(3) the feasibility study report, with the contents including the organizational and management framework of the wholly foreign-funded bank under planned establishment, the planning on development of future business, the scale of the assets and liabilities for, as well as the forecast of profits for the 3 years after the start of the business;
| | （三）可行性研究报告，内容包括拟设外商独资银行的组织管理架构、未来业务发展规划和开业后3年的资产负债规模与盈利预测；
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(4) the draft of the articles of association of the wholly foreign-funded bank under planned establishment, and a letter of legal opinions issued by a law firm lawfully established within the territory of China on the draft of the articles of association;
| | （四）拟设外商独资银行的章程草案以及在中国境内依法设立的律师事务所出具的对章程草案的法律意见书；
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(5) a resolution of the foreign bank's board of directors on consenting to the reorganization of the former branch of the foreign bank into a wholly foreign-funded bank whose funds are solely contributed by its head office;
| | （五）外国银行董事会关于同意将原外国银行分行改制为由其总行单独出资的外商独资银行的决议；
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(6) a letter of opinions signed by the foreign bank's board chairman or president (chief executive officer, general manager) on consenting to the succession by the wholly foreign-funded bank under planned establishment of the credits, debts and taxes of the former branch of the foreign bank; and a letter of commitment on long-term and continual operation within the territory of China and on effective management of the wholly foreign-funded bank under planned establishment, including the parent bank's permitting the wholly foreign-funded bank under planned establishment to use the parent bank's commercial credit standing, and the parent bank's supports to the wholly foreign-funded bank under planned establishment in respect of capital, management and technology, etc.;
| | （六）外国银行董事长或者行长（首席执行官、总经理）签署的同意由拟设外商独资银行承继原外国银行分行债权、债务及税务的意见函；以及在中国境内长期持续经营并对拟设外商独资银行实施有效管理的承诺函，包括母行允许拟设外商独资银行使用母行商誉、母行对拟设外商独资银行实施资本、管理和技术支持等；
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(7) the audited combined accounting reports of the foreign bank's all branches within the territory of China for the 2 years before the application is filed;
| | （七）提出申请前2年该外国银行在中国境内的所有分行经审计的合并财务会计报告；
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(8) a letter of opinions on the reorganization, which is issued by the financial authority of the country or region where the applicant is located;
| | （八）申请人所在国家或者地区金融监管当局对其改制的意见书；
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(9) a preliminarily determined scheme on separate succession of the credits, debts and taxes by the foreign bank's branches engaging in foreign exchange wholesale business and by the wholly foreign-funded bank's branches, as well as a finished list of assets, liabilities and owners' equity;
| | （九）初步确定的分别由从事外汇批发业务的外国银行分行以及外商独资银行分行承继的债权、债务和税务方案，以及编制好的资产、负债和所有者权益的清单；
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(10) the foreign bank's annual reports of the latest 3 years; and
| | （十）外国银行最近3年年报；
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(11) other materials required by CBRC.
| | （十一）中国银监会要求其他材料。
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7.CBRC shall, within 6 months as of receipt of the entire application materials, make a decision on approving or disapproving the reorganization, and notify the applicant in writing. If it decides to disapprove the application, it shall explain the reason.
| | 七、中国银监会应当自收到完整申请资料之日起6个月内作出批准或不批准改制的决定，并书面通知申请人。决定不批准的，应当说明理由。
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8.A foreign bank whose branch is to be reorganized into a wholly foreign-funded bank shall, within 6 months as of getting the approval of preparatory establishment of the wholly foreign-funded bank, complete the preparatory establishment work. Within the period of preparatory establishment, the foreign bank shall form a preparatory establishment team to take charge of the preparatory establishment work for the reorganization, and submit a name list of the person-in-charge of the preparatory establishment team and the members thereof to CBRC's dispatched offices at the localities of the head office and branches of the wholly foreign-funded bank under planned establishment. After the preparatory establishment work is completed, the preparatory establishment team shall be dissolved automatically.
When applying for extending the period of preparatory establishment, the foreign bank shall, 1 month prior to the expiry of the period of preparatory establishment, submit to CBRC's dispatched office at the locality of the head office of the wholly foreign-funded bank under planned establishment the application letter signed by the person-in-charge of the preparatory establishment team, and shall explain the reason. CBRC's dispatched office at the locality of the head office of the wholly foreign-funded bank under planned establishment shall, within 15 days as of receipt of the entire application materials, make a decision on approving or disapproving the application. The longest extended period of preparatory establishment shall be 3 months. The preparatory establishment team of the wholly foreign-funded bank under planned establishment shall make a copy of the approval of the postponement of the preparatory establishment to CBRC's dispatched office at the locality of the former branch of the foreign bank.
| | 八、外国银行分行改制为外商独资银行的，应当在获准筹建外商独资银行之日起6个月内完成筹建工作。筹建期内，外国银行应当成立筹备组负责改制的筹备工作，并将筹备组负责人及成员名单报送拟设外商独资银行总行和分行所在地中国银监会派出机构。筹备工作完成后，筹备组自行解散。
申请延长筹建期的，应当在筹建期届满1个月前向拟设外商独资银行总行所在地中国银监会派出机构，提交由筹备组负责人签署的申请书并说明理由。拟设外商独资银行总行所在地中国银监会派出机构应当自收到完整的申请资料之日起15日内作出批准或不批准的决定。筹建延期的最长期限为3个月。拟设外商独资银行筹备组应当将筹建延期的批复抄送原外国银行分行所在地中国银监会派出机构。
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9.Where a foreign bank reorganizes its branch within the territory of China into a wholly foreign-funded bank whose funds are solely contributed by it, it shall do a good job in the following items of work during the preparatory establishment period:
| | 九、外国银行将其在中国境内的分行改制为由其单独出资的外商独资银行的，应当在筹建期做好以下工作：
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(1) Building up the corporate governance structure for the wholly foreign-funded bank, and staffing directors and senior managers in accordance with the relevant requirements in the “Company Law” and the “Guidelines of Corporate Governance of Foreign-funded Bank Legal Entities”;
| | （一）按照《公司法》和《外资银行法人机构公司治理指引》相关要求，建立外商独资银行公司治理架构，落实董事和高级管理人员人选；
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(2) Retaining a law firm lawfully established within the territory of China to provide legal supports for its reorganization, and retaining an accounting firm lawfully established within the territory of China to provide financial consulting and audit work for its reorganization;
| | （二）聘请在中国境内依法设立的律师事务所为其改制提供法律支持，聘请在中国境内依法设立的会计师事务所为其改制提供财务咨询和审计工作；
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(3) Completing the preparatory work for transfer of assets, liabilities and owners' equity, determining the assets, liabilities and owners' equity which shall be separately succeeded by the wholly foreign-funded bank under planned establishment and its branch institutions and by the foreign bank's branches engaging in foreign exchange wholesale business;
| | （三）完成资产、负债和所有者权益的转移准备工作，确立由拟设外商独资银行及其分支机构和从事外汇批发业务的外国银行分行分别承继的资产、负债和所有者权益；
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(4) Classifying the assets to be transferred into the wholly foreign-funded bank in accordance with the standards prescribed by CBRC on classification of loan risks, and drawing adequate loan loss reserves, with the asset quality classification and the drawing of the loan loss reserves to be recognized by the accounting firm;
| | （四）按照中国银监会规定的贷款风险分类标准，对拟转入外商独资银行的资产进行分类并计提充足的呆账准备金，资产质量分类情况和呆账准备金计提情况应当经会计师事务所认可；
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(5) Separately working out the simulated balance sheets and the profit and loss statements of the latest accounting year of the wholly foreign-funded bank under planned establishment and its branches and those of the foreign bank's branch engaging in foreign exchange wholesale business in accordance with the scheme on adjustment of assets and liabilities and on the basis of the asset quality classification; indicating the capital adequacy ratio, the classification of non-performing assets, and the amount of loan loss reserves of the wholly foreign-funded bank under planned establishment, as well as the non-performing asset classification and the amount of loan loss reserves of the foreign bank's branch engaging in foreign exchange wholesale business. The work-out of the balance sheet and of the profit and loss statement shall conform to the provisions on the banking regulation statement index system;
．．．．．． | | （五）按照资产负债调整方案和资产质量分类情况，分别编制最近一个会计年度拟设外商独资银行及其分行和从事外汇批发业务的外国银行分行模拟资产负债表、损益表，注明拟设外商独资银行资本充足率、不良资产分类情况和呆账准备金数额；从事外汇批发业务的外国银行分行不良资产分类情况和呆账准备金数额。资产负债表和损益表的编制应当符合银行业监管报表指标体系的规定；
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