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Several Opinions of the Shanghai Municipal Financial Regulatory Bureau on Further Promoting the Well-regulated and Sound Development of Three Types of Institutions in the City Including Finance Lease Companies, Commercial Factoring Companies and Pawnbrokers and Strengthening Interim and Ex-post Regulation [Effective]
上海市地方金融监督管理局关于进一步促进本市融资租赁公司、商业保理公司、典当行等三类机构规范健康发展强化事中事后监管的若干意见 [现行有效]
【法宝引证码】

Several Opinions of the Shanghai Municipal Financial Regulatory Bureau on Further Promoting the Well-regulated and Sound Development of Three Types of Institutions in the City Including Finance Lease Companies, Commercial Factoring Companies and Pawnbrokers and Strengthening Interim and Ex-post Regulation 

上海市地方金融监督管理局关于进一步促进本市融资租赁公司、商业保理公司、典当行等三类机构规范健康发展强化事中事后监管的若干意见

(No. 1 [2019] of the Shanghai Municipal Financial Regulatory Bureau) (沪金规〔2019〕1号)

According to the Company Law, the Property Law and other relevant laws and regulations, the Guiding Opinions of the General Office of the State Council on Accelerating Development of the Finance Lease Industry (No. 68 [2015], General Office of the State Council), industry regulatory systems relating to three types of institutions including financial lease companies, commercial factoring companies, and pawnbrokers (hereinafter referred to as the "three types of institutions"), the relevant requirements of the China Banking and Insurance Regulatory Commission and the Ministry of Commerce for the effective transfer of duties with respect to and regulation of the three types of institutions, and the relevant spirit of the Market Access Negative List (2018) issued by the National Development and Reform Commission and the Ministry of Commerce, several opinions are hereby offered as follows for the purposes of further regulating the operation and management of the three types of institutions in the city, strengthening interim and ex-post regulation, effectively preventing industry risks, and promoting the industry in serving the real economy and achieving sustained and sound development. 根据《公司法》《物权法》等相关法律、法规,《国务院办公厅关于加快融资租赁业发展的指导意见》(国办发〔2015〕68号),融资租赁公司、商业保理公司、典当行等三类机构(以下简称三类机构)相关行业监管制度,银保监会、商务部关于做好三类机构职责转隶及监管工作的有关要求,以及国家发展改革委、商务部发布的《市场准入负面清单(2018年版)》有关精神,为进一步规范本市三类机构经营管理、强化事中事后监管,切实防范行业风险,促进行业服务实体经济、持续健康发展,现提出若干意见如下。
I. Serving the real economy and strengthening operation and management   一、服务实体经济,强化经营管理
1. The three types of institutions in the city shall be based on their own business orientation, conduct innovation in business models and optimization of business process to meet customer demand, effectively play their role in inclusive finance, and enhance their capability of serving the real economy. (一)本市三类机构应当立足自身业务定位,围绕客户需求创新业务模式、优化业务流程,切实发挥普惠金融作用、提升服务实体经济能力。
2. The three types of institutions in the city shall carry out business activities within the scope of business as required by the relevant laws, regulations and industry regulatory systems, and may not carry out other financial business without approval (or filing, or permission to conduct a pilot program). (二)本市三类机构应当在相关法律、法规及行业监管制度规定的经营范围内依法开展经营活动,未经批准(或备案、准予试点)不得开展其他金融业务。
The three types of institutions in the city shall substantially carry out financial lease, commercial factoring, pawnbroking and other related business within six months after completing establishment registration and obtaining a relevant operating permit (or filing document, or qualification for a pilot program), continue as a going concern, and effectively serve the real economy, and may not voluntarily suspend business for six months or more consecutively without justification. 本市三类机构应当在完成设立登记并取得相关经营许可(或备案文件、试点资质)后6个月内实质性开展融资租赁、商业保理、典当等相关业务,并保持持续经营,切实服务实体经济;开业后无正当理由,不得自行停业连续6个月以上。
3. The three types of institutions in the city shall ensure that their registered capital is paid up in a timely manner according to the relevant industry regulatory systems. If the relevant industry regulatory systems are silent, part of the registered capital shall be paid up within six months after establishment, so as to ensure the substantial conduct of financial lease, commercial factoring and other related business; and the unpaid registered capital shall also be paid up in a timely manner based on business developments. (三)本市三类机构应当确保注册资本根据相关行业监管制度及时实缴到位。相关行业监管制度没有具体规定的,一般应当在设立后6个月内将部分注册资本实缴到位,以保障实质性开展融资租赁、商业保理等相关业务;其余注册资本也应根据业务发展状况及时实缴到位。
4. The three types of institutions in the city shall improve their bylaws, establish and improve their organizational structure based on shareholders' (assembly) meeting, board of directors (executive directors), supervisory board (supervisors), and senior management, and make systematic arrangements for the relationship of duties, rights, and benefits subject to checks and balances among all parties, so as to ensure the establishment of a clear governance structure, a scientific decision-making mechanism, a reasonable incentive mechanism, and an effective restraint mechanism. (四)本市三类机构应当完善公司章程,建立健全以股东(大)会、董事会(执行董事)、监事会(监事)、高级管理人员为主体的组织架构,并应当对各主体之间相互制衡的责、权、利关系做出制度安排,切实保障建立明晰的治理结构、科学的决策机制、合理的激励机制和有效的约束机制。
5. The three types of institutions in the city shall establish and implement sound and effective internal control systems, procedures and measures in project review, risk management and control, financial management, and other aspects and effectively shape such a dynamic mechanism and process to prevent ex ante, control in the interim, and supervise ex post the correction of various major risks. (五)本市三类机构应当建立并执行健全有效的项目评审、风险管控、财务管理等方面内部控制制度、程序和方法,切实形成对各类主要风险进行事前防范、事中控制、事后监督纠正的动态机制和过程。
6. The three types of institutions in the city shall strengthen the management, training and education of their employees and focus on employing persons with expertise, skills and experience in finance, trade, law, accounting, appraisal, appraisement, and the like and good professional records. A person holding office relating to the legal representative, director, supervisor, senior management and the like of an enterprise shall have good credit records; and a person that is the general manager, deputy general manager, person in charge of the risk control, compliance audit or financial management department (or a person who actually performs the relevant duties), or any other member of senior management shall be knowledgeable about economic and financial work and have engaged in finance lease (lease), factoring, pawnbroking, or operation and management of any related financial institution for three years or more, or have been involved in any related industry for five years or more. (六)本市三类机构应当加强从业人员管理及培养教育,着力配备具有金融、贸易、法律、会计、鉴定、评估等专业知识技能和从业经验并具有良好从业记录的人员。担任企业法定代表人、董事、监事、高级管理人员等相关职务的人员应当信用良好;担任企业总经理、副总经理及风险控制、合规稽核、财务管理部门负责人(或实际履行相关职责人员)等高级管理人员的,应当熟悉经济金融工作,从事融资租赁(租赁)、保理、典当或相关金融机构运营管理工作三年以上,或从事相关行业工作五年以上。
7. The three types of institutions in the city shall strengthen the management of their key customers and prudentially control the proportion of business with single customers and their affiliates, so as to effectively prevent and diversify operating risks; and the three types of institutions in the city shall establish and improve a management system of affiliate transactions and regulate such transactions, so as to ensure affiliate transactions are as required by the laws, regulations, and industry regulatory systems. (七)本市三类机构应当加强对重点客户的管理,审慎把控单一客户及其关联方的业务比例,有效防范和分散经营风险;应当建立健全关联交易管理制度、规范关联交易行为,确保关联交易符合法律、法规、行业监管制度要求。
8. The three types of institutions in the city shall, in the course of business, in addition to applying for registration of title (including related accessory rights) in accordance with the relevant provisions, promptly apply for the relevant registration of title through the unified registration and publication system for financing against chattels to publish the status of the relevant title, in the case of a finance lease company or commercial factoring company, or promptly enter goods pawned in the public security authorities' pawnbroker-assisted investigation system, in the case of a pawnbroker. (八)本市三类机构在开展业务过程中,除按有关规定办理权属(含相关附属权利)登记外,融资租赁公司、商业保理公司需及时在中国人民银行征信中心的动产融资统一登记公示系统办理相关权属登记,将有关权属状态予以公示;典当行所收当物需及时上传公安部门典当协查系统。
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