Order Of China Securities Regulatory
Article 1 With the view of regulating the administration of senior managers of securities companies
, promoting the formation of professional management contingents in securities industry, and improving business management level of securities companies, and protecting the lawful rights and interests of investors, the present Measures are formulated according to the Securities Law, the Company Laws, the Decision of the State Council on the Decision of the State Council about Setting Administrative Licensing for the Administrative Examination and Approval Items To Be Preserved Setting Administrative Licensing For the Administrative Examination and Approval Projects Necessary To Be Preserved and other laws and administrative regulations .
Article 2 The "senior managers of securities companies" (hereinafter referred to as SM) mentioned in the present Measures shall refer to persons who have leadership duty to make decisions, operate business and manage the company, namely, the chairman of the board, vice chairman of the board, supervisor, general manager, vice general manager, person in charge of finance of the company, responsible person for compliance with regulations of the company and the persons who actually perform the aforesaid functions.
Article 3 A securities company shall select and engage persons who have obtained the qualification for assuming the posts of SMs of the securities company (hereinafter referred to as the SM qualification) to assume the office of SMs. No person failing to obtain the SM qualification may assume the office of SMs.
The SM qualification shall be subject to the approval of China Securities Association (CSA) according to law. Article 4 The SMs shall observe laws, administrative regulations and the provisions of the China Securities Association (CSA), comply with the articles of association of the company and the industry criterion, scrupulously abide by good faith, keep prudent and diligent and faithfully perform their duties.
Article 5 The China Securities Association (CSA) shall make supervision and administration on the SMs according to law.
The China Securities Association (CSA) and the stock exchanges shall make management on the SMs according to laws, administrative regulations, provisions of the China Securities Association (CSA) and the self-disciplinary rules.
Chapter II Qualification for Holding a Post
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Article 6 When applying for such SM qualifications as the board chairman, vice chairman of the board and the supervisor, the applicant shall meet the following conditions:
1. Having engaged in securities work for more than three years, or work in fields of finance and law or as accountant for more than five years, or work in economic field for more than ten years;
2. Having passed the test on qualification level as approved by the China Securities Association (CSA);
3. Having the educational background of graduate of college or university or above;
4. Being honest and keeping faith, having good professional ethics and no bad records within the past five years;
5. Knowing well the relevant legal knowledge on business management of securities companies, and having abilities of the business management and the organization and coordination that are necessary for performing the function of SM;
6. Having no circumstances that prohibit him from holding the post of SM and from being the practicing personnel by laws and administrative regulations such as the Company Law and Securities Law; and
7. Other conditions as prescribed by the China Securities Association (CSA).
Article 7 When applying for such SM qualifications as the general manager, vice general manager, person in charge of finance and responsible person for compliance with regulations, the applicant shall satisfy the following conditions in addition to those as prescribed in items from the second to the sixth of Article 6 of the present Measures:
1. Having obtained the qualification for practice in securities industry;
2. Having engaged in securities work for more than three years or in field of finance e for more than five years; and
3. Having held posts of department responsible persons or above in such financial institutions as securities, funds, futures, banks, insurance and etc. for not less than two years, or having work experiences of management of the equivalent posts.
The board chairman or vice board chairman who exercises the business management powers of a company shall meet the conditions for holding the post as prescribed in this Article.Article 8 When applying for the SM qualification, the applicant shall be recommended by two SMs currently holding the posts for more than one year, and submit the written recommendation opinions from them.Article 9 An applicant shall submit the following application documents to the China Securities Association (CSA) when applying for the SM qualification:
1. The application form for the SM qualification;2. The recommendation opinions of two persons making the recommendation.3. The audit report on his leave-post issued by the entity where he once held the post, the appraisal opinions issued by the entity/entities where he once held the post in the past three years and the supervision opinions issued by the supervision department of the financial institution he once held the post in the past five years on the conditions concerning the practice experiences of the applicant and whether he has ever been punished or had any bad records, etc.;
4. The copy of the identity certificate;
5.Copies of certificate of educational background, certificate of qualification on securities practice, conformity certificate for qualification level testing and certificate of professional qualification;
6. The legal opinion paper issued by law firms; and
7. Other materials prescribed by the China Securities Association (CSA).
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The recommendation opinions, the audit report for leaving the post, the appraisal opinions and the supervision opinions as prescribed in the second item and third item of the preceding paragraph shall be mailed to the China Securities Association (CSA) and the detached office at the place of residence of the applicant by the entity or individual that issues the opinions as an agent, and other application documents shall be submitted to the detached office of the China Securities Association (CSA) at the residence of the applicant for putting on records concurrently.Article 10 The recommendation opinions issued by the person making the recommendation shall focus on the statement of complexion such as the individual morality of the applicant, his observance of laws and disciplines, vocational level and management ability and shall clearly express the recommendation opinion.
Article 11 The detached offices of the China Securities Association (CSA) shall make examination on the materials for putting on records within 10 workdays as of the date of receiving them, and review and talk with the applicant, as well as submit the examination opinions and the working paper on the review and talk to the China Securities Association (CSA).
Article 12 The China Securities Association (CSA) shall make acceptance and examination on the application materials according to law and make decision on administrative licensing. If the application meets the conditions, the licensing shall be granted and the certificate of SM qualification shall be issued.
The China Securities Association (CSA) may check the morality, working ability and working experiences of the applicant through ways such as review and talk.
Article 13 Where any applicant applies for the SM qualification by disguising the relevant conditions or providing false materials, the China Securities Association (CSA) shall reject the application or not approve the application for assuming the post and the applicant is prohibited to reapply for the SM qualification within one year. Where any applicant obtains the SM qualification by cheating or bribery or other malfeasance means, the applicant may not reapply the SM qualification within 3 years.
Article 14 The board of directors of a securities company shall sign engagement agreements with the engaged the general manager, the vice general manager, the person in charge of finance and the responsible person of compliance with regulations, and make stipulations on terms of the duty, the examination on performance, reasons for dismissal, rights and obligations of both parties, liabilities for breach of contract and etc..
Article 15 Where a securities company selects and engages an SM, it shall submit the following archival-filing materials for assuming the post to the China Securities Association (CSA) and its detached offices at the place of registration of the company and the residence of the SM within 5 workdays from the date when the decision on engagement is made:
1. The archival-filing report for holding the post of SM, which includes the duty and the scope of functions of the engaged SM;
2. The documents of decision on engagement and the engagement agreement;
3. The letter of commitment signed by the engaged SM for making management in good faith; and
4. Other materials prescribed by the China Securities Association (CSA)
Article 16 The China Securities Association (CSA) shall check up the archival-filing materials for holding the post of SMs according to law. In case the procedures for assuming the post of SM do not comply with the provisions, the China Securities Association (CSA) shall order the company where the SM assumes the post to make correction.Article 17 In case any SM has any of the following circumstances, his SM qualification shall be invalidated automatically:
1. Having circumstances that prohibit him from assuming the office of the director, supervisor or manager as prescribed by the Company Law and the
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Securities Law;
2. Being subject to criminal punishments;
3. Failing to hold the post of SM in any securities company within 5 years as of the date of obtaining the SM qualification;
4. Being liable for the entrusted custody, the administrative taken-over, the revocation or the charge of closing the securities company where he assumes the post due to grave actions in violation of laws and regulations;
5. Failing to take part in the annual examination as required; or
6. Other circumstances prescribed by the China Securities Association (CSA).
Chapter III Fundamental Behavior Criterions
Article 18 The SM shall earnestly perform duties as prescribed by laws and the company constitution, promote the company to establish and improve internal control and the risk management system, ensure the effective implementation of the relevant systems, maintain the effective operation of the control system and bear the leadership liabilities for actions in violation of laws and regulations in the business that he is in charge of.
Article 19 The SM shall exercise duty in accordance with the provisions of the company constitution and may not authorize any person who fails to obtain the SM qualification to make exertion of the authorities as a representative.Article 20 The SM shall refuse to perform any instruction or authorization of any institution or individual that infringes upon the interests of the company or the lawful rights and interests of any customer.
Once discovering any action in violation of laws and regulations that infringes upon the lawful rights and interests of any customer, the SM shall report to the detached office of the China Securities Association (CSA) at the place of registration of the company in time..
The China Securities Association (CSA) shall protect the lawful rights and interests of any SM who suffers from unjust treatment due to lawful performance of duties and earnestly maintaining the customers' interests.
Article 21 No SM may accept or take bribery or obtain other illegal incomes by making use of his authority, or embezzle the assets of the company or any customer, or make loans to others of the capital of the company or any customer, or provide guaranty for the debts of the company, shareholders of the company or other institutions as well as individuals by using any customers' assets.
Article 22 The general manager, vice general manager, person in charge of finance, and the responsible person of compliance with regulations may not hold another post concurrently in other profit-making entities except the equity-shared companies of the securities company or undertake other business activities apart from his own work.
Chapter IV Supervision and Administration
Article 23 Where any person who has obtained the SM qualification and practices in a securities company has any of the following circumstances, the company shall report to the detached office of the China Securities Association (CSA) at its registration place within 5 workdays from the date of such occurrence and explain the reasons:
1. Being subject to a criminal punishment and an administrative punishment;
2. Being put on records for investigation by the administrative or judicial department;
3. Being subject to the punishment of any self-disciplinary management institution;
4. Being deposed or punished by the company;
5. Failing to perform duties due to resignation, leaving job, losing capacity of civil behavior or other reasons; or
6. Other circumstances that may influence his normal performance of duties or qualification for holding the post.
Where any person, who has obtained the SM qualification but does not practice in a securities company, is subject to the aforesaid circumstances, he shall report it to the detached office of the China Securities Association (CSA) at its residence within 5 workdays from the date of such occurrence and explain the reason. The person making the recommendation shall urge the person recommended making report in time. In case the person making the recommendation finds that the recommended person fails to report in time, he shall report to the detached office of the China Securities Association (CSA) at the place of residence of the person being recommended within 15 workdays from the date of occurrence.
Article 24 Where there is any adjustment on division of responsibilities of SMs, the company shall report to the China Securities Association (CSA) and the detached office of the China Securities Association (CSA) at the place of registration of the company.Article 25 In case the board chairman of any securities company is unable to perform his duties or the post of board chairman becomes vacant, the vice board chairman or other directors who have the SM qualification shall perform the duty of the board chairman in accordance with the Company Law and the provisions of the articles of associations of the company.
In case the general manager of a securities company is unable to perform his duties or the post of the general manager becomes vacant, the board of directors shall decide to have another SM of the company to perform his duty as an agent within 15 workdays.
The time for performing the duty as an agent may not exceed 90 days, unless it is specified differently by laws and administrative regulations.Article 26 Where any securities company or any SM is suspected of any serious action in violation of laws and regulations and is under investigation of the administrative or judicial department, the board of directors of the company shall suspend the duty of the relevant SMs.
Where any of the following circumstances occurs in any securities company, the China Securities Association (CSA) may order the board of directors of the company to change the SM within a prescribed time limit or designate another person to perform the duty of SM temporarily:
1. The company has major business risk and fails to implement effective control and dissolving measures;
2. The SM fails to perform his duties according to law;
3. The SM fails to fulfill the duties diligently, which results in or may result in the occurrence of great risks or hidden trouble of risks of the company; or
4. Other circumstances as determined by the China Securities Association (CSA) according to the principle of prudent supervision.
Article 27 Where a securities company changes its board chairman or general manager, it shall go through formalities for alteration of the license for securities business operation within 15 workdays from the date when the China Securities Association (CSA) approves the holding of the post.
Article 28 The China Securities Association (CSA) shall make annual examination on the work of any SM and his observance of laws and compliance with regulations.
The SM shall, from the second year of holding the post, submit the annual examination form signed with the opinions of the securities company to the detached office of the China Securities Association (CSA) at the place of registration of the company within
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the first quarter of each year.The SM who has obtained the SM qualification but has not held the post in a securities company shall, from the next year after obtaining the qualification for holding the post, submit the annual examination form signed with the opinions by the two persons who have recommended him to the detached office of the China Securities Association (CSA) at his residence place within the first quarter of each year.
Article 29 The detached offices of the China Securities Association (CSA) shall complete the annual examination on the SMs before June 30 each year and submit the result of examination to the China Securities Association (CSA).Article 30 The persons who have obtained the SM qualification shall take part in vocational training organized by the China Securities Association (CSA) or other institutions approved by the China Securities Association (CSA).
Article 31 Where any SM leaves his post, the company shall make audit on leave- post immediately to him and submit the audit report to the China Securities Association (CSA) and its detached office at the place of registration of the company for archival filing within 60 days from the date when the SM leaves his post. The audit report on leave-post shall include the following contents:
1. The fundamental conditions of the business such as the scale, profits and losses and assets quality;
2. Conditions of the internal control and the effectiveness of risk control on the business;
3. The compliance circumstances with the regulations of the business he is in charge of, including whether there have occurred any major acts in violation of laws and regulations within the scope of his duty and the liabilities that shall be burdened by himself; and
4. The audit conclusion.The audit for leaving the post of the chairman of the board or of the general manager of a securities company and that of the SM who is dismissed of duties due to acts in violation of laws and regulations shall be handled by the accountant firms that have the qualification of relevant securi
by: gang zhao
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