| Opinions of the General Office of the China Banking Regulatory Commission on the Handling and Punishment of the “Private Coffers” Issue of State-Owned and State Controlled Banking Financial Institutions | | 中国银监会办公厅关于国有及国有控股银行业金融机构“小金库”问题处理处罚的意见 |
| (No. 144 [2011] of the General Office of the China Banking Regulatory Commission) | | （银监办发[2011]144号） |
| The leading groups of all local offices of the China Banking Regulatory Commission (“CBRC”) for the regulation of “Private Coffers”: | | 各银监局治理“小金库”工作领导小组： |
| To effectively implement the handling and punishment of the “Private Coffers” issue, the office of the leading group of the CBRC for the regulation of “Private Coffers”, in accordance with the Guiding Opinions of the Central Regulation Office on the Handling and Punishment of the “Private Coffers” Issue of State-Owned and State Controlled Central Enterprises and Banking Enterprises and relevant laws and regulations, and in light of the reality of the state-owned and state controlled banking financial institutions (hereinafter referred to as the “banking financial institutions”), has formulated these Opinions, for implementation in the handling and punishment or transfer. | | 为切实将“小金库”问题处理处罚工作落到实处，根据中央治理办《国有及国有控股中央企业和金融企业“小金库”问题处理处罚指导意见》和相关法律法规，结合国有及国有控股银行业金融机构（以下简称银行业金融机构）实际，银监会治理“小金库”工作领导小组办公室研究制定了本意见，供处理处罚或办理移送时执行。 |
| I. Definition and identification of “Private Coffers” | | 一、“小金库”的概念和认定 |
| According to the provisions of the Opinions of the General Office of the CPC Central Committee and the General Office of the State Council on Thoroughly Controlling “Private Coffers” (No. 18 [2009], General Office of the CPC Central Committee), “Private Coffers”, for the purpose of this regulation, refers to the various funds (including negotiable securities) that should be included but not included in the complying account books of an entity in violation of the laws, regulations and other relevant provisions and the assets formed thereby. There are three main characteristics: First, complying account books of an entity are emphasized; second, it is not only limited to capital; various funds (including negotiable securities) and assets thereof are emphasized; third, for identification, the means and methods of setting up “Private Coffers” are not emphasized. The exclusive standard for identifying “Private Coffers” shall be whether the funds or assets are included in the complying account books of an entity. The so-called account books of an entity refers to the account books of the entity as specified in the Accounting Law. | | 根据中共中央办公厅、国务院办公厅《关于深入开展“小金库”治理工作的意见》（中办发2009）18号）的规定，本次治理所说的“小金库”是指违反法律法规及其他有关规定，应列入而未列入符合规定的单位账簿的各项资金（含有价证券）及其形成的资产。主要有三个特点：一是强调符合规定的单位账簿；二是不仅仅局限在资金，强调各项资金（含有价证券）及其资产；三是就认定而言不强调设立“小金库”的手段和方法。认定是否属于“小金库”的唯一标准是看资金或资产是否列入符合规定的单位账簿。所谓单位账簿是指《会计法》规定的本单位会计账簿。 |
| It shall be noted that: listing income and expenditures in current accounts, granting excessive bonuses and allowances beyond the scope, travelling, guests entertaining, and gift presenting with public funds, as long as they are registered and checked in complying account books, shall not be identified as “Private Coffers” and shall be handled and punished as violation of fiscal, financial and accounting laws, regulations, and regulatory rules, relevant disciplinary rules of the Party and the government, and laws and regulations of the state. | | 需要注意的是，在往来科目中列收列支，超范围、超标准发放奖金、津贴，公款旅游、请客、送礼等，只要是在符合规定的账簿内登记、核算，就不能认定为“小金库”，应按违反财政、财务、会计法律法规、规章制度及有关党纪政纪规定和国家法律法规进行处理处罚。 |
| It shall be specially emphasized that the expression of “Private Coffers” is not a legal term. Therefore, in handling and punishment, the legal terms of “off-book funds”, “off-book assets”, and “off-book accounts” shall be quoted in accordance with the Banking Supervision Law, the Law on Commercial Banks, the Measures for the Punishment of Illegal Financial Acts, and other relevant laws and regulations, to ensure consistency and normalization of handling and punishment. | | 需要特别强调的是，“小金库”称谓不是法律用语。因此在处理处罚时，应根据《银行业监督管理法》、《商业银行法》、《金融违法行为处罚办法》等相关法律法规，引述“账外资金”、“账外资产”、“账外账”等法定用语，确保处理处罚的一致性、规范性。 |
| II. The basic principles of handling and punishments | | 二、处理处罚的基本原则 |
| For the handling and punishment of the “Private Coffers” issue of banking financial institutions, the principle of compliance with laws and disciplines with leniency, the principle of combining principles and objectivity, and the principle of combining punishment against matter and punishment against people must be followed, to reflect the solemnity and unity of policies, with laws and regulations as the criteria, and on the basis of the facts found. | | 对银行业金融机构“小金库”问题的处理处罚，必须坚持依法依纪、宽严相济的原则、原则性与客观性相结合的原则、处理事与处理人相结合的原则，以查实的事实为依据，以法律法规为准绳，既体现政策的严肃性，又体现政策的统一性。 |
| III. Relevant provisions on lighter and lenient, as well as heavier and severe handling and punishments | | 三、从轻从宽和从重从严处理处罚的相关规定 |
| (I) Relevant provisions on lighter and lenient handling and punishment | | （一）从轻从宽处理处罚的相关规定 |
| As general principles, lighter and lenient handling and punishments shall be imposed if problems are found in self-inspection. The responsible entities seriously conducting self-examination and making correction in a timely manner may be subject to a lighter and mitigated administrative penalty or be exempt from administrative penalty. Liable persons may be subject to a lighter and mitigated action or be exempt from action. Internal inspection of each entity on its affiliated entities shall be deemed as self-inspection. Lighter punishments shall be imposed in accordance with the provisions of Article 11 of the Interpretations of Several Issues concerning the Irregular Acts of Setting up “Private Coffers” and Using the Funds of “Private Coffers” to which the Regulation of the Communist Party of China on Disciplinary Actions Can Be Applied and Article 12 of the Interim Provisions on Government Disciplinary Punishment against Illegal and Irregular Acts of Setting up “Private Coffers” and Using the Funds of “Private Coffers” in specific handling and punishment. Where the circumstances as specified in Article 27 of the Administrative Punishment Law are satisfied, a lighter or mitigated administrative penalty shall be imposed. Where the illegal act is minor and has been corrected in a timely manner, which has caused no harmful consequence, no administrative penalty shall be imposed. Where the provision of Article 29 of the Law on Administrative Penalty is satisfied and the illegal acts are not found within two years, administrative penalty shall no longer be imposed, except as otherwise specified in law. | | 从轻从宽的总体原则是，对自查发现的问题从轻从宽处理。凡自查认真、纠正及时的，对责任单位可从轻、减轻或免予行政处罚，对有关责任人员可从轻、减轻或免予处分。各单位对其所属单位进行的内部检查视同自查。具体处理处罚依据《设立“小金库”和使用“小金库”款项违纪行为适用〈中国共产党纪律处分条例〉若干问题的解释》第十一条及《设立“小金库”和使用“小金库”款项违法违纪行为政纪处分暂行规定》第十二条的规定，从轻处分。符合《行政处罚法》第二十七条规定情形的，应当依法从轻或者减轻行政处罚；违法行为轻微并及时纠正，没有造成危害后果的，不予行政处罚。符合《行政处罚法》第二十九条规定，违法行为在两年内未被发现的，不再给予行政处罚。法律另有规定的除外。 |
| (II) Relevant provisions on heavier and severe handling and punishments | | （二）从重从严处理处罚的相关规定 |
| As general principles, for “Private Coffers” issues found in inspection, not only the entities shall be punished in strict accordance with the laws and regulations, but also the relevant liable persons shall be investigated and held liable according to discipline and law. Where the “Private Coffers” are set up after the issuance of the Work Plan for the Pilot Program of the Specialized Regulation for “Private Coffers” of State-Owned and State Controlled Financial Enterprises, the main leaders, leaders in charge, and directly liable persons of the responsible entities shall be severely punished, by removing from their offices first according to the organizational procedure and then being held liable according to disciplinary rules of the Party and the government, and relevant laws and regulations. Heavier punishments shall be imposed in accordance with the provisions of Article 10 of the Interpretations of Several Issues concerning the Irregular Acts of Setting up “Private Coffers” and Using the Funds of “Private Coffers” to which the Regulation of the Communist Party of China on Disciplinary Actions Can Be Applied and Article 11 of the Interim Provisions on Government Disciplinary Punishment against Illegal and Irregular Acts of Setting up “Private Coffers” and Using the Funds of “Private Coffers” in specific handling and punishment. | | 从重从严的总体原则是，对被查发现的“小金库”问题，不仅要严格依法依规对单位进行处理处罚，还要对有关责任人员依纪依法追究责任。《国有及国有控股金融企业“小金库”专项治理试点工作方案》印发后设立“小金库”的，对责任单位主要领导、分管领导和直接责任人要严肃处理，按照组织程序先予以免职，再依据党纪政纪和有关法律法规追究责任。具体处理处罚依据《设立“小金库”和使用“小金库”款项违纪行为适用〈中国共产党纪律处分条例〉若干问题的解释》第十条及《设立“小金库”和使用“小金库”款项违法违纪行为政纪处分暂行规定》第十一条的规定，从重处理。 |
| IV. Bases for the nature determination and the handling and punishments | | 四、定性及处理处罚依据 |
| (I) Bases for the nature determination of “Private Coffers” issue | | （一）“小金库”问题定性依据 |
| (1) Article 3, Article 9, Article 15, Article 16, Article 17, Article 25, and Article 26 of the Accounting Law; | | 1．《会计法》第三条、第九条、第十五条、第十六条、第十七条、第二十五条、第二十六条； |
| 2. Article 165 and Article 172 of the Company Law; | | 2．《公司法》第一百六十五条、第一百七十二条； |
| 3. Article 51, Article 52, and Article 55 of the Law on Commercial Banks; | | 3．《商业银行法》第五十一条、第五十二条、第五十五条；
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