Laws of the People's Republic of China

the People's Bank of China

Order of the People's Bank of China

No. 3

In accordance with the Administrative Licensing Law of the People's Republic of China, the Law of the People's Republic of China on the People's Bank of China and other relevant laws and regulations, the Measures for the Implementation of the Administrative Licensing by the People's Bank of China, which were formulated by the People's Bank of China and adopted at the executive meeting of presidents, are hereby promulgated and shall come into force as of November 1, 2004.

Zhou Xiaochuan,President of the People's Bank of China

September 13, 2004

Measures for the Implementation of the Administrative Licensing by the People's Bank of China

Chapter I General Provisions

Article 1

With the view of regulating the acts of the People's Bank of China (hereinafter referred to as the PBC) and its branch institutions in implementing administrative licensing and protecting the lawful rights and interests of the citizens, legal persons and other organizations, the present Measures are formulated pursuant to the Administrative License Law of the People's Republic of China and the Law of the People's Republic of China on the People's Bank of China.

Article 2

The term "administrative licensing" as mentioned in the present Measures refers to that the PBC and its branch institutions, according to the applications filed by the citizens, legal persons or other organizations, allow these citizens, legal persons and other organizations to engage in special activities after having examined their applications pursuant to law.

Article 3

The present Measures shall be applicable to the implementation of administrative licensing by the PBC and its branch institutions.

The present Measures are inapplicable to the examination and approval of the personnel, finance and foreign affairs of the public institutions directly subject to the management the People's Bank of China.

Article 4

The PBC and its branch institutions shall follow the principle of openness, fairness, impartiality, facilitating the people and high efficiency in the implementation of administrative licensing.

Article 5

The PBC and its branch institutions shall accord with the statutory functions, scope, conditions and procedures in the implementation of administrative licensing.

The implementation of administrative licensing by the PBC and its branch institutions shall be based on the laws, administrative regulations and decisions of the State Council.

Within the scope of administrative licensing items as provided in the laws, regulations or decisions of the State Council, the PBC may formulate specific rules on the implementation of administrative licensing. But these rules shall not create any new administrative licensing item, nor may they insert any additional condition in violation of the laws, administrative regulations and decisions of the State Council.

Article 6

The rules formulated by the PBC on the implementation of administrative licensing shall be promulgated. If any rule is not promulgated, it shall not become the basis for the implementation of administrative licensing.

The conditions, procedure, time limit and results of the implementation of administrative licensing by the PBC and its branch institutions shall be publicized except that they involve any state secret, commercial secret or personal privacy.

The applicants, who meet the statutory conditions or standard, shall have equal right to obtain administrative license according to law. None of them may be discriminated by the PBC and its branch institutions.

Article 7

The citizens, juridical persons or other organizations shall be entitled to make a statement and argument for the administrative licensing implemented by the PBC and its branch institutions and to apply for administrative reconsideration or institute an administrative lawsuit pursuant to the law.

If the legitimate rights and interests of a citizen, juridical person or any other organization are impaired due to the implementation of administrative licensing by the PBC or any of its branch institutions, he (it) shall be entitled to claim for compensation in accordance with the law.

Article 8

The administrative licensing lawfully granted by the PBC and its branch institutions to the citizens, legal persons or other organizations is protected by law. The PBC and its branch institutions shall not change an effective administrative licensing without permission.

Where any law, administrative regulation or rule, on which the permission of administrative licensing is based, is amended or abolished or the objective circumstances that the administrative licensing is pursuant to changes greatly, the PBC and its branch institutions may modify or revoke the effective administrative licensing according to law for the sake of public interests and shall accordingly compensate the loss of property of a citizen, juridical person or any other institution.

Article 9

The functional departments of the PBC and its branch institutions shall be responsible for handling the administrative licensing within the purview of their operation powers.

The departments of legal affairs of the PBC and its branch institutions shall be responsible for the hearing and supervision of administrative licensing.

Article 10

The PBC and its branch institutions shall establish a sound supervision and inspection system for the implementation of administrative licensing.

The PBC and its branch institutions shall conduct effective supervision over the administrative licensing activities of the licensed persons.

Article 11

When implementing administrative licensing, the PBC or any of its branch institutions shall not bring forward any improper requirements such as requiring an applicant to purchase designated commodity, accepting paid service and etc.

When handling an administrative licensing item, any of the functionaries of the PBC and its branch institutions shall not extort or accept the property of any other person and not seek other private interests.

Chapter II Implementation Organs of Administrative Licensing

Article 12

The PBC shall implement the administrative licensing pursuant to law within the statutory limits of its functions and powers.

The branch institutions of the PBC shall implement the administrative licensing in accordance with the law within the scope of powers authorized by the PBC.

Article 13

The PBC may, within the statutory limits of its functions and powers, authorize other administrative organs to implement administrative licensing according to laws, administrative regulations and rules.

The branch institutions of the PBC shall not authorize any other administrative organ to implement the administrative licensing.

Where the PBC authorizes other administrative organs to implement administrative licensing, it shall declare the authorized administrative organs and the items under administrative licensing, supervise the implementation of administrative licensing of the administrative organs and bear the legal liability therefore.

An authorized administrative organ shall implement the administrative licensing on behalf of the PBC within the limits of authorized functions and powers. It shall not entrust any other organization or individual to implement the administrative licensing.

Chapter III Procedures for the Implementation of Administrative Licensing

Section 1 Application and Acceptance

Article 14

Where a citizen, juridical person or any other organization engages in special activities and has obtained the administrative licensing of the PBC or its branch institution, he (it) shall file an application thereto.

When applying for administrative licensing, the applicant shall submit the application materials to the General Office of the PBC or offices of the branch institutions of the PBC that shall transfer them to the bank's (branch institution's) functional department undertaking the administrative licensing items on the same day when it receives them. Where an applicant directly submits the application materials to the bank's (branch institution's) functional department undertaking the administrative licensing items, it shall make up the formalities for handling the documents with the General Office or offices as it handles the administrative licensing matters. Where the functional department receives any application materials beyond its scope of administrative licensing items, it shall transfer them to the General Office or offices on the same day when it receives them and the General Office or offices shall transfer them to the competent functional department on the same day when it receives them.

An applicant may entrust an agent to file an administrative licensing application unless the applicant is required to file an administrative licensing application to the office of the PBC or of its branch institutions according to law.

Where an applicant entrusts an agent to file an application, he (it) shall provide the identification certificates and power of attorneys of the consigners and the agent.

An administrative licensing application may be submitted by means of letter, telegraph, telex, fax, electronic data interchange or email.

Article 15

The functional departments undertaking the administrative licensing items of the PBC and its branch institutions shall be responsible for accepting the administrative licensing applications.

As respect to applications of administrative licensing items that are subject to the examination of an inferior institution of the People's Bank before it is reported to a superior institution for making a decision, the inferior department with the examination function shall accept the applications.

Where the administrative licensing items shall be handled by several functional departments, the General Office or offices shall decide to let one of them accept the applications uniformly.

Article 16

The functional departments undertaking the administrative licensing items of the PBC and its branch institutions shall, in its office, display the licensing items, the basis, conditions, quantity, procedures, time limit, contents of the complete set of materials that shall be submitted, and the model text of the application form. If possible, it may publish them on the internet or newspapers and periodicals.

Where the functional department is requested by an applicant to account for or to explain the publicized items, it shall do so by offering him (it) exact and credible information.

Where the format text of an application form is required, PBC and its branch institutions shall provide the applicants with the format text of an administrative licensing application. The format text of an application form shall not contain any content that has no direct relationship with the licensing items applied for.

Article 17

Where a citizen, juridical person or any other organization applies to the PBC or its branch institutions for administrative licensing, it shall submit pertinent materials and true information about his (its) situation according to the facts and shall be liable for the authenticity of the substantial content of the application materials.

Article 18

The PBC or its branch institutions shall handle the administrative licensing applications put forward by applicants differently according to the following circumstances:

(1)

Where the item applied for has no use for administrative licensing in accordance with the law, it shall inform the applicant of the rejection immediately;

(2)

Where the item applied for does not fall within the limits of functions and powers of the PBC, it shall make a decision of rejection immediately and inform the applicant to file an application to the competent administrative organ;

(3)

Where the item applied for falls within the limits of functions and powers of the PBC but isn't subject to the acceptance of institutions at this level, it shall immediately make an explanation to the applicant and inform him (it) to file an application to the competent administrative organ;

(4)

Where the errors in the application materials can be corrected on the spot, the applicant shall be permitted to correct them on the spot;

(5)

Where the application materials are incomplete or inconsistent with the statutory form, it shall inform the applicant the whole contents that need to be supplemented or corrected on the spot or once within 5 days. Where it fails to do so within the time limit, the day when the application materials are received shall be considered as the acceptance day;

(6)

Where the item applied for falls within the limits of functions and powers of the PBC and the application materials are complete and in consistency with the statutory form, or the applicant has supplemented and corrected all the items as required, the application for administrative license shall be accepted.

Where the PBC or its branch institution accepts, rejects, dismisses the application or requests the application to make correction and supplement of application materials as mentioned in the preceding paragraph, it shall issue a written notice bearing the seal of this bank or the seal for the exclusive use of administrative licensing, and a clear indication of the date.

Section 2 Examination and Decision

Article 19

The functional department undertaking administrative licensing items of the PBC or of its branch institutions shall examine the application materials submitted by an applicant.

Where the application materials are complete and accord with the statutory form, and if it is able to confirm on the spot according to relevant provisions that the items applied for shall be approved, the functional department undertaking the administrative licensing items shall make a written administrative licensing decision on the spot, and make and issue an administrative license pursuant to relevant provisions

Where it is necessary to verify the substantial content of the application materials in pursuance to the statutory conditions and procedures, the functional department undertaking the administrative licensing items shall assign 2 or more personnel to do so.

Article 20

Where the administrative licensing items shall be subject to the examination of an inferior institution of the PBC before it is reported and submitted to the superior institution, the inferior institution shall submit its preliminary examination opinions and the complete set of application materials directly to the superior institution.

When examining the administrative licensing items, the superior shall not demand the applicant to provide any application material repeatedly.

Article 21

Where the functional department responsible for undertaking the administrative licensing items of the PBC or its branch institutions, when examining an administrative license application, finds that any party has important direct interests to the matters under the administrative license, it shall inform the interested party.

The applicant or the interested party shall be entitled to make a statement or argument and shall submit his (its) statement or argument opinions within 3 days from the date when they are informed of the circumstance. If the statement or argument is made orally, the functional department undertaking the administrative licensing items shall make well transcripts and have them signed by the person who makes the statement or argument for confirmation.

The PBC or its branch institutions shall hear the opinions of the applicant or the interested party.

Article 22

After the functional department responsible for undertaking administrative licensing items of the PBC or its branch institutions has completed the examination over an administrative licensing application, it shall handle it respectively pursuant to the following circumstances:

(1)

Where the application meets the statutory conditions or standards and is decided to grant an administrative license, it shall make a decision of approval of the administrative license;

(2)

Where the application doesn't meet the statutory conditions or standards, and it is decided not to grant an administrative license, it shall make a decision of disapproval of administrative licensing. In the decision it shall make an explanation of the disapproval of the administrative license and shall inform the applicant of the right to apply for administrative reconsideration or to lodge an administrative lawsuit according to law.

Article 23

The functional department responsible for undertaking the administrative licensing items of the PBC or of its branch institutions shall submit the decision of approval or disapproval of the administrative license to the president (director) or the executive deputy president of this bank for examination and approval unless the administrative licensing is approved and a certificate thereof is made and issued on the spot.

The decision of approval or disapproval of the administrative license shall bear the seal of this bank and a clear indication of the date after being approved by the president (director) or the executive deputy president of this bank.

Article 24

Where the PBC or its branch institution makes a decision of approval of administrative licensing and it is necessary to issue an administrative license according to laws, administrative regulations and rules of the PBC, it shall issue the applicant an administrative license bearing the seal of the bank.

Article 25

The decision of approval of the administrative licensing made by the PBC or its branch institutions shall be publicized and the general public shall be entitled to consult them.

Article 26

Where the application scope of the administrative licensing lawfully implemented by the PBC and its branch institutions is subject to no geographical limits, the administrative license obtained by the applicant shall be effective nationwide.

Article 27

With respect to the administrative licensing subject to quantitative restriction, where 2 or more applicants of it meet the statutory conditions and standards, the PBC or its branch institutions shall decide to approve the administrative licensing according to the sequence of accepting the applications for the administrative licensing. However, if it is otherwise prescribed in the laws and regulations, the latter shall prevail.

When granting a special qualification to the juridical persons or other organizations, the PBC and its branch institutions shall make decisions of administrative licensing according to the evaluation result in aspects of the structure of professionals of the applicants, technical conditions, business performance and management level. However, if it is otherwise prescribed in the laws and regulations, the latter shall prevail.

Section 3 Time Limit and Service

Article 28

Except that a decision of administrative licensing can be made on the spot, the PBC or its branch institutions shall make a decision of administrative licensing within 20 days from the day when it accepts the administrative licensing application. If it is unable to make a decision within 20 days, it may be extended for 10 days upon approval of the president (director) or deputy president (director) of the bank, and the reasons for extension shall be informed to the applicant. However, if it is otherwise prescribed in laws or administrative regulations, the latter shall prevail.

Article 29

Where an administrative licensing shall be subject to the examination of an inferior institution of the PBC before it is submitted to its superior institution for decision, the inferior institution shall complete the examination within 20 days after it accepts the application, and shall submit the preliminary examination opinions and application materials to the superior institution.

The superior institution shall decide whether or not to approval the administrative licensing within 20 days after it receives the application materials and the preliminary examination opinions submitted by the inferior institution.

However, if it is otherwise prescribed in laws or administrative regulations, the latter shall prevail.

Article 30

Where the PBC or its branch institution makes a decision of administrative licensing and it is necessary for them to hold a hearing pursuant to law, the time for hearing shall not be included in the time limit as provided in this Section; and it shall inform the applicant of the hearing time in written form.

Article 31

The PBC or its branch institutions shall serve the notice of acceptance, rejection, dismissal or demand to make supplements or corrections to the application materials to the party concerned within 5 days after it receives the application materials, except that the notice shall be made in time.

Article 32

Where the PBC or its branch institution decides to approve the administrative licensing, it shall, serve a written decision of approval of the administrative licensing or an administrative license to the applicant within 10 days after it makes a decision.

Where the PBC or its branch institution decides to disapprove an administrative license, it shall serve a written decision of disapproval of the administrative license to the applicant within 10 days after it makes a decision.

The PBC or its branch institution shall, under relevant provisions of the Civil Procedural Law, determine the way of serving the administrative license or decision as mentioned in the preceding Paragraphs.

Section 4 Hearing

Article 33

For matters that are subject to hearing as prescribed in any law, regulation or rule of the PBC on the implementation of administrative licensing, other administrative licensing matters of great importance to the public interests that the PBC or its branch institution considers it necessary to hold a hearing, the PBC or its branch institution shall announce them to the general public and hold a hearing of witnesses.

Article 34

Where an administrative license directly relates to the important interests between the applicant and others the functional department undertaking the administrative licensing items shall inform the applicant and the interested party of the right to request a hearing of witnesses before the PBC or its branch institution makes a decision of administrative licensing. Where the applicant or the interested party files an application for hearing of witnesses within 5 days after he (it) is informed of the aforesaid right, the PBC or its branch institutions shall organize a hearing within 20 days.

The applicant or the interested party shall not pay the expenses of organizing the hearing by the PBC or its branch institutions.

Article 35

The hearing shall be organized by following the procedures below:

(1)

The functional department responsible for undertaking administrative licensing items of the PBC or its branch institutions shall, not later than 7 days before the hearing is held, inform the applicant and the interested party of the date and place of hearing, or make an announcement if necessary.

(2)

The hearing shall be held openly.

(3)

The hearing shall be presided by a person working in the legal affairs department of the PBC or its branch institutions or by a person working in a department other than the one undertaking the administrative licensing items as designated by the president (director) or deputy president (deputy director) of the bank;

Where the applicant or the interested party believes that the presiding hearer is of direct interests to the administrative licensing item, he (it) shall be entitled to apply for the withdrawal of the presiding hearer. Whether the presiding hearer should withdraw or not shall be decided by the president (director) or executive deputy president (deputy director) of this bank.

(4)

In the course of hearing, the functional department undertaking the administrative licensing items shall provide the proofs or reasons for making the examination opinions. The applicant and the interested party may advance proofs and make arguments and cross-examination.

(5)

The presiding hearer shall designate a special person to put down things about the hearing in writing. The notes shall include the hearing date, place, attendees, matters and opinions of the parties concerned.

The notes of hearing shall be confirmed and bear the signature or seal of the parties concerned. If any party concerned refuses to do so, the circumstance shall be noted down and be testified by other attendees with their signatures or seals.

(6)

After the end of the hearing, the presiding hearer shall hand the hearing notes and the proofs obtained in the hearing to the functional department undertaking the administrative licensing items which shall make a decision of approval or disapproval of administrative licensing according to the hearing notes and handle the administrative license application in accordance with Articles 22 and 23 of the present Measures.

Section 5 Modification and Extension

Article 36

Where a licensee requests for modifying the administrative licensing items, he shall file an application to the PBC or any of its branch institution that has made decision on the administrative licensing. If it meets the statutory conditions and standards, the PBC or its branch institutions shall go through the modification procedures in accordance with law.

Article 37

Where a licensee needs to extend the period of validity of the administrative license, he shall file an application with the PBC or its branch institution that has made decision on the administrative licensing 30 days prior to the expiry of the period of validity of this administrative license. However, if it is otherwise prescribed in any law, regulation or rule, the latter shall prevail.

The PBC or its branch institutions shall, in light of the application filed by a licensee, decide whether or not to approve the extension prior to the expiry of the period of validity of this administrative license; if it fails to make a decision within the time limit, it shall be deemed that the extension has been approved.

Chapter IV Costs of Administrative Licensing

Article 38

When implementing the administrative licensing and conducting supervision and inspection on the licensing items, the PBC and its branch institutions shall not charge any expense for that. However, if it is otherwise prescribed in any law or administrative regulation, the latter shall prevail.

When offering a format text of the application form of administrative licensing, the PBC and its branch institutions shall not charge anything for that.

Article 39

Where the PBC and its branch institutions charge fees in accordance with the laws and administrative regulations in the implementation of administrative licensing, they shall do so pursuant to the announced statutory items and standards. They shall uniformly combine the fees collected into an account and turn them over to the state treasury entirely. No one may retain, misappropriate, privately divide or privately divide in a disguised form the aforesaid fees.

Chapter V Supervision and Inspection

Article 40

The functional department undertaking the administrative licensing items of the PBC or its branch institutions shall record the administrative licensing items basis, examination opinions, handling results and time limits handled by it and shall send a copy to its legal affairs department each quarter.

Article 41

The person in charge of the functional department undertaking the administrative licensing items of the PBC or its branch institutions shall irregularly inspect the administrative licensing matters handled by the department at least twice a year.

The legal affairs department of the PBC or its branch institutions shall supervise and inspect the administrative licensing matters handled by this bank. If it finds any problem in the inspection, it shall demand the undertaking department to make corrections in time and shall report it to the president (director) or executive deputy president (deputy director) of this bank.

Article 42

The legal affairs department of a branch institution of the PBC shall make annual analysis of the information on the implementation of administrative licensing within its jurisdictional area and shall submit a report to the superior legal affairs department. The report shall cover the administrative licensing categories, quantity, results (including approval or disapproval of administrative licensing), records, supervision and inspection, existing problems proposals and etc..

Article 43

The functional department undertaking the administrative licensing items of the inferior institution of the PBC shall report and submit the information on the implementation of administrative licensing to the like functional department of the superior institution for archival purposes.

The superior institution shall conduct supervision and inspection over the implementation of administrative licensing by the inferior institutions and shall rectify the illegal actions thereof.

Article 44

The PBC and its branch institutions shall establish a sound system to supervise the licensees' activities under administrative licensing, and shall perform its supervisory responsibilities by verifying and reflecting the relevant materials that display the information on licensees' activities under administrative licensing.

When the PBC or anyone of its branch institution conducts supervision and inspection over a licensee's activities under administrative licensing according to law, it may consult or demand the licensee to report and submit relevant materials pursuant to the law. The licensee shall faithfully offer pertinent information and materials.

The functional department undertaking the administrative licensing items of the PBC or its branch institutions shall note down the information on the supervision and inspection and the handling result and shall transfer the notes to the archival department with the signatures of the supervisors or inspectors.

The general public shall be entitled to consult the supervisory and inspecting notes as mentioned in the preceding paragraph.

Article 45

When conducting supervision or inspection, the PBC or its branch institutions shall not hamper normal business activities of the licensee.

Article 46

Where a licensee conducts an activity in violation of the matters under administrative licensing in a area outside the jurisdiction of the branch institution of the PBC that has made the approval decision of administrative licensing, the branch institution of the PBC located in the area where the illegal activity is conducted shall send a copy of the illegal facts and punishments to the branch institution of the PBC that has made the decision of approval of administrative licensing in accordance with the law.

Article 47

Where any individual or organization discovers any activity in violation of the matters under administrative licensing, it shall be entitled to inform the PBC or its branch institutions which shall verify and deal with such activity in time.

Article 48

The PBC or its branch institutions may, in light of its functions and powers or the request of the interested party, cancel decisions of administrative licensing made by this bank or its inferior institutions:

(1)

The functionary of the PBC or anyone of its branch institution makes a decision of administrative licensing by abusing their authorities or neglecting their duties;

(2)

It makes a decision of administrative licensing beyond its statutory authorities;

(3)

It makes a decision of administrative licensing by violating the statutory procedures;

(4)

It grants approval of administrative licensing to an applicant who doesn't have the application qualification or doesn't meet the statutory conditions; or

(5)

Other circumstances under which the administrative license may be cancelled in accordance with laws, administrative regulations, or rules of the PBC.

Where a licensee obtains the administrative licensing through cheating, bribing or any other illegal methods, such administrative license shall be annulled by the PBC or its branch institution that has made this decision of administrative licensing.

Where the annulment of an administrative license pursuant to the preceding two paragraphs may seriously impair the public interests, it shall not be annulled.

Where the annulment of an administrative license pursuant to the first paragraph of this Article has impaired the legitimate rights and interests of the licensee, the PBC or its branch institutions shall compensate for it according to law. Where an administrative license is annulled under the second paragraph of this Article, the interests obtained by the licensee on the basis of this administrative license will not be protected.

Article 49

The PBC or its branch institutions shall go through according to law the formalities for canceling the administrative licensing under any of the following circumstances:

(1)

The period of validity of an administrative license hasn't been extended at the expiry of it;

(2)

An administrative license grants a citizen special qualification, but the citizen is dead or loses his capacity for conduct;

(3)

A juridical person or any other institution is terminated according to law;

(4)

An administrative license is annulled or withdrawn, or the certificate for administrative license is revoked pursuant to law;

(5)

The matters under administrative licensing are unable to be implemented due to force majeure;

(6)

Other circumstances specified by the laws and regulations in which the administrative licenses shall be canceled.

Article 50

Where the PBC or anyone of its branch institution revokes or cancels an administrative license in accordance with the law, it shall make an announcement and the general public shall be entitled to consult it.

Chapter VI Supplementary Provisions

Article 51

Time limits as provided in the present Measures for the implementation of administrative licensing by the PBC and its branch institutions shall be computed on the basis of working days, excluding the legal holidays.

Article 52

The present Measures shall not be applied to the implementation of administrative licensing by the State Administration of Foreign Exchange and its branch institutions.

Article 53

The present Measures shall come into effect as of November 1, 2004.

Where any provision on the implementation of administrative licensing by the PBC and its branch institutions promulgated before the present Measures is inconsistent with the present Measures, the implementation thereof shall be stopped from the day when the present Measures come into effect.