国家发展计划委员会、财政部、国家外汇管理局令第28号

（Promulgated¹ jointly² by the State Development Planning Commission， the Ministry³ of Finance and the State Administration of Foreign Exchange on 8 January 2003 and effective as of 1 March 2003.）

颁布日期：20030108 　实施日期：20030301 　颁布单位：国家发展计划委员会、 财政部、 国家外汇管理局

　　PART ONE　GENERAL PROVISIONS

　　Article 1　These Procedures have been formulated⁵ in order to strengthen the administration of foreign debts， regulate the acts of borrowing foreign debts， enhance the benefit of utilization⁶ of foreign debt funds， and guarding against the risk from foreign debts.

　　Article 2　For the purposes of these Procedures， the term “foreign debts” shall refer to the debts denominated in foreign currencies for which domestic institutions are liable to non-residents.

　　Article 3　For the purposes of these Procedures， the term “domestic institutions” shall refer to permanent organizations established within China according to law， including but not limited to government authorities， domestic financial institutions， enterprises， institutions and social organizations.

　　Article 4　For the purposes of these Procedures， the term “non-residents” shall refer to institutions and natural persons outside China， and their non-permanent organizations established within China according to law.

　　Article 5　Based on the types of debts， foreign debts shall be classified into loans from foreign governments， loans from international financial institutions and international commercial loans.

　　1. Loans from foreign governments refer to the official credits borrowed by the Chinese government from foreign governments；

　　2. Loans from international financial organizations refer to non-commercial credits borrowed by the Chinese government from the World Bank， Asian Development Bank， Agricultural Development Foundation of the United Nations and other international and regional financial institutions；

　　3. International commercial loans refer to the commercial credits borrowed by domestic institutions from non-residents， including：

　　（1） loans from banks and other financial institutions outside China；

　　（2） loans from enterprises， other institutions and natural persons outside China；

　　（3） medium and long-term bonds （including convertible⁷ bonds） and short-term bonds （including commercial paper， large-denomination transferable certificates of deposit， etc.） issued outside China；

　　（4） buyer's credit， deferred⁸ payments and other forms of trade financing；

　　（5） international lease financing；

　　（6） foreign currency deposits of non-residents；

　　（7） debts repaid with spot exchange in compensation trade； and

　　（8） other kinds of international commercial loans.

　　Article 6　Based on repayment⁹ liability， foreign debts shall be classified into sovereign foreign debts and non-sovereign foreign debts.

　　1. Sovereign foreign debts refer to the foreign debts borrowed by institutions authorized¹⁰ by the State Council on behalf of the State， where repayment is guaranteed by State credit.

　　2. Non-sovereign foreign debts refer to foreign debts other than sovereign foreign debts.

　　Article 7　For the purposes of these Procedures， the term “provision of security to foreign entities¹¹” shall refer to security provided by domestic institutions to non-residents in the form of guarantee， mortgage or pledge in accordance with the PRC， Security Law.

　　Potential repayment obligations to foreign entities arising from provision of security to foreign entities shall be contingent¹² foreign debts.

　　Article 8　The State shall implement¹³ unified¹⁴ administration on various types of foreign debts and contingent foreign debts. Borrowing of foreign debts， provision of security to foreign entities， and the utilization and repayment of foreign debt funds shall comply with the provisions of the relevant laws and regulations of the State and these Procedures.

　　Article 9　The State Development Planning Commission， the Ministry of Finance and the State Administration of Foreign Exchange shall be the administrative¹⁵ departments of foreign debt.

　　PART TWO　BORROWING OF FOREIGN DEBTS AND PROVISION OF SECURITY TO FOREIGN ENTITIES

　　Article 10　The State Development Planning Commission shall， in conjunction with relevant departments， formulate⁴ the State planning on borrowing of foreign debts and reasonably determine the total amount of all foreign debts and target of structural¹⁶ regulation， according to the needs of the national economy and social development， the balance of international payment position and capability¹⁷ of bearing for foreign debts.

　　Article 11　The State shall implement categorized administration on borrowing of foreign debts based on the type of foreign debt， repayment liability and the nature of the debtor¹⁸.

　　Article 12　Loans from international financial organizations and foreign governments shall be taken out by the State from outside uniformly.

　　The State Development Planning Commission shall， in conjunction with the Ministry of Finance and other relevant departments， formulate the plan on proposed projects for loans from the World Bank， Asian Development Bank， Agricultural Development Foundation of the United Nations and foreign governments. The Ministry of Finance shall， in accordance with the plan， organize external negotiations¹⁹ and discussions， sign loan agreements and on-lend the loans to domestic debtors²⁰ directly or through relevant financial institutions. Among them， the plan on proposed projects for loans from the World Bank， Asian Development Bank， Agricultural Development Foundation of the United Nations and foreign government of key countries shall be approved by the State Council.

　　Article 13　The issuance of bonds abroad by the Ministry of Finance on behalf of the State shall be reported to the State Council by the Ministry of Finance for examination and approval， and shall be incorporated in the State planning on borrowing of foreign debts. The issuance of medium- and long-term bonds abroad by other domestic institutions shall be reported to the State Council for examination and approval upon examination and verification by the State Development Planning Commission in conjunction with the State Administration of Foreign Exchange. The issuance of short-term bonds abroad shall be examined and approved by the State Administration of Foreign Exchange， of which issuance on a rolling basis shall be examined and approved by the State Administration of Foreign Exchange in conjunction with the State Development Planning Commission.

　　Article 14　The State shall implement administration of balance of the taking out of medium- and long-term international commercial loans by State-owned commercial banks. The balance shall be reported to the State Council for examination and approval upon examination and verification by the State Development Planning Commission in conjunction with the relevant departments.

　　Article 15　The taking out of medium- and long-term international commercial loans by institutions such as domestic Chinese-invested enterprises shall be approved by the State Development Planning Commission.

　　Article 16　The State shall implement administration of balance on the taking out of short-term international commercial loans by domestic Chinese-invested institutions. The balance shall be verified by the State Administration of Foreign Exchange.

　　Article 17　The State shall implement control over the total amount of foreign debts borrowed by domestic foreign-invested financial institutions. Specific procedures in this regard shall be formulated separately.

　　Article 18　The sum of the cumulative²¹ amount of medium- and long-term foreign debts and the balance of short-term foreign debts borrowed by foreign-invested enterprises shall be controlled within the difference between the total amount of investment for the project as approved by the examination and approval authority and the registered capital.

　　Foreign-invested enterprises may borrow foreign debts on their own within the scope of the said difference. If it exceeds the difference， the total amount of investment for the project shall be verified by the original examination and approval authority anew.

　　Article 19　Domestic institutions that provide security to foreign entities shall comply with the laws and regulations of the State and the relevant provisions of the foreign exchange control authorities.

　　Article 20　Domestic institutions may not provide security for foreign institutions of a non-business nature.

　　Article 21　No government authorities， social organizations or institutions may borrow foreign debts or provide security to foreign entities without the approval of the State Council.

　　Article 22　After signing loan contracts or security contracts with foreign entities， domestic institutions shall handle registration²² procedures with the foreign exchange control authorities according to the relevant provisions. Contracts of international commercial loan or security contracts shall become effective only upon registration.

　　PART THREE　UTILIZATION OF FOREIGN DEBT FUNDS

　　Article 23　Foreign debt funds shall mainly be used for economic development and structural adjustment of the balance of foreign debts.

　　Article 24　Utilization of medium- and long-term foreign preferential loans such as loans from international financial organizations and loans from foreign governments shall be focused on infrastructure²³ and public welfare construction projects， with priority for central and western regions.

　　Article 25　Utilization of medium- and long-term international commercial loans shall be focused on imports of advanced technology and equipment， and the adjustment of industrial structure and foreign debt structure.

　　Article 26　Medium- and long-term foreign debt funds borrowed by domestic enterprises shall be used reasonably strictly²⁴ in compliance²⁵ with the approved purposes， and shall not be appropriated for other purposes. If it is indeed necessary to change the purposes， approval shall be obtained according to the original procedures.

　　Article 27　Short-term foreign debt funds borrowed by domestic enterprises shall mainly be used as working capital and may not be used for medium- and long-term purposes such as fixed²⁶ assets investment.

　　Article 28　The responsibility system for project legal person shall be implemented²⁷ for fixed assets investment projects that utilize²⁸ foreign debt funds. Project legal persons shall be responsible for the beneficial utilization of foreign debt funds.

　　Where procurement²⁹ by invitation of bids is required according to the PRC， Invitation and Submission³⁰ of Bids Law and other relevant provisions concerning foreign loan institutions， it shall be carried out strictly in compliance with the provisions.

　　Article 29　The administrative department of foreign debt shall be responsible for the administration and supervision³¹ of utilization of foreign debt funds.

　　Article 30　The State Development Planning Commission shall， in accordance with the provisions of the Auditing³³ Major State Construction Projects Procedures， designate special inspectors³⁴ for major State construction projects that utilize foreign debt funds to conduct audit³² on the implementation³⁵ of the projects and utilization of funds.

　　PART FOUR　REPAYMENT OF FOREIGN DEBTS AND RISK MANAGEMENT

　　Article 31　The State shall repay sovereign foreign debts uniformly. If the funds of the sovereign foreign debts have been on-lent to domestic debtors by the Ministry of Finance directly or through financial institutions， the domestic debtors shall undertake the liability for repayment to the Ministry of Finance or the financial institutions that on-lent the loan.

　　Article 32　Debtors of non-sovereign foreign debts shall undertake the risk and repay the debts on their own.

　　Article 33　Debtors may repay foreign debts with their own foreign exchange funds， or by purchasing foreign exchange with Renminbi to repay foreign debts upon approval of the foreign exchange control authorities.

　　Article 34　If a debtor， who has a guarantor， is unable to repay foreign debts， the guarantor shall be responsible for the repayment.

　　Article 35　When a guarantor is required to fulfil the obligations of security provided to foreign entities based on the provisions of the security contract， he shall handle the procedures for verification and approval of fulfilling the provision of security to foreign entities at the foreign exchange control authority.

　　Article 36　Debtors shall strengthen risk management on foreign debts， and appropriately adjust and optimize³⁶ the debt structure.

　　Under the pre-requisite of not expanding the scale of the original foreign debt， a debtor may reduce the cost of the foreign debt and optimize the debt structure by way of borrowing low-cost foreign debts to repay high-cost foreign debts upon approval of the State Development Planning Commission. Where it involves a sovereign foreign debt， the approval of the Ministry of Finance shall be required.

　　Article 37　For the purposes of maintaining value and avoiding risks， debtors may entrust³⁷ financial institutions with relevant qualifications to utilize the financial vehicles to avoid the exchange rate and interest rate risks of foreign debts.

　　PART FIVE　REGULATION OF FOREIGN DEBTS

　　Article 38　The administrative department of foreign debt shall implement regulation of foreign debts and provision of security to foreign entities according to the laws and regulations of the State， and the relevant provisions herein.

　　Article 39　When the administrative department of foreign debt performs its duties of regulation， it shall have the right to request the debtor and the relevant work unit to provide relevant information and check the relevant accounts and assets.

　　Article 40　Where a domestic institution fails to handle the required examination and approval procedures or register according to provisions when it borrows foreign debts or provides security to foreign entities， the loan contract or security contract it signed with foreign entities shall not have any legally binding³⁸ force.

　　Article 41　An external loan or security that does not appear in the form of loan contract or security contract but in fact constitutes repayment obligation or potential repayment obligation to foreign entities shall be included in the regulation of foreign debts according to these Procedures.

　　Article 42　Violation³⁹ of the principles of profit and risk sharing in order to borrow foreign debts in such disguised form as guaranteeing fixed return for direct investment of foreign investors⁴⁰ shall be prohibited.

　　Article 43　Chinese-invested enterprises outside China may not transfer the debt risk and repayment liability undertaken by themselves into China without the approval of the administrative departments of foreign debt.

　　Article 44　When a financial institution engaged in foreign exchange business discovers an act that violates the provisions hereof in the course of opening foreign exchange and foreign debt accounts for domestic institutions and handling foreign exchange fund transactions， it shall report to the relevant administrative department of foreign debt in a timely manner and assist the department in investigation⁴¹.

　　Article 45　The administrative departments of foreign debt shall keep abreast⁴² of the development of the foreign debts， establish and perfect the overall foreign debt monitoring and alarming mechanism⁴³.

　　Article 46　The State Administration of Foreign Exchange shall be responsible for the statistical⁴⁴ monitoring of foreign debts， and shall periodically announce the foreign debt statistics.

　　Article 47　If a domestic institution， in violation of these Procedures， borrows foreign debts or provides security to foreign entities， the department in charge shall impose the relevant administrative penalty on the personnel directly in charge and other directly responsible personnel according to law. If a criminal offence is constituted， its criminal liability shall be pursued according to law.

　　Article 48　If personnel of the administrative departments of foreign debt practises graft⁴⁵， abuses his power or is derelict in his duties， he shall be subjected to administrative penalty by the department in which he works according to law. If a criminal offence is constituted， his criminal liability shall be pursued according to law.

　　PART SIX　SUPPLEMENTARY⁴⁶ PROVISIONS

　　Article 49　The borrowing of debts from or provision of security for institutions in Hong Kong and Macao Special Administrative Regions， and Taiwan region by domestic institutions shall， mutatis mutandis， be handled in accordance with these Procedures.

　　Article 50　The administrative departments of foreign debt shall formulate and perfect the relevant implementing⁴⁷ rules according to these Procedures.

　　Article 51　The State Development Planning Commission， the Ministry of Finance and the State Administration of Foreign Exchange are in charge of interpreting these Procedures.

　　Article 52　These Procedures shall be implemented as of 1 March 2003.

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