On July 28th, Shanghai Local Financial Supervision Administration issued an announcement on soliciting opinions on the Measures for the Supervision and Administration of Small Loan Companies in Shanghai (Draft for Comment) (hereinafter referred to as "Opinions"). The "Opinions" pointed out that the balance of funds of microfinance companies through non-standardized financing forms such as bank loans, shareholder loans and interbank lending shall not exceed 1 times of their net assets; Through the issuance of bonds, asset securitization products and other standardized forms of creditor's rights assets, the balance of the incorporated funds shall not exceed 4 times of its net assets.
In fact, this leverage ratio is the same as the requirements in the Notice on Strengthening the Supervision and Management of Small Loan Companies (hereinafter referred to as the Notice) issued by the CBRC on September 16, 2020. The Notice distinguishes the leverage ratio of small loan companies between non-standard financing and standardized bond financing, and unifies the upper limit of financing leverage ratio of small loan companies to five times, and all localities can reduce the leverage ratio as needed.
In addition, according to the Opinions, small loan companies should follow the principle of small amount and dispersion, evaluate the repayment ability according to the borrower's income level, overall liabilities, asset status, actual demand and other factors, and reasonably determine the loan amount and term. The loan balance of a microfinance company to the same borrower shall not exceed10% of the net assets of the microfinance company; The balance of loans to the same borrower and its related parties shall not exceed 15% of the net assets of the microfinance company. This value is also the same as the notification.
Not only that, but also in terms of interest rates and loans. The opinion also requires microfinance companies not to deduct interest, handling fees, management fees, deposits, etc. Advance payment from the loan principal. If they deduct money in advance in violation of regulations, they should repay the money and calculate the interest rate according to the actual loan amount after deduction. Small loan companies and borrowers independently negotiate to determine the loan interest rate according to the principle of marketization, but the upper limit of interest rate shall not exceed the state regulations. Encourage small loan companies to lower the loan interest rate and reduce the financing cost of the real economy. Loans issued by microfinance companies shall not be used for investments such as stocks and financial derivatives; Illegal financing in the real estate market; Other purposes prohibited by laws and regulations and the CBRC and the local financial supervision department of this Municipality.
In terms of registered capital, business scope, classified supervision, etc., Shanghai Financial Supervision Bureau further refined the supervision rules on the basis of the Notice and combined with the actual supervision.
According to the Opinions, the registered capital of microfinance companies is not less than 200 million yuan, and it is paid-in monetary capital. The business scope is loan issuance and related consulting activities, and equity investment. Small loan companies should mainly engage in lending business. Small loan companies with good management, strong risk control ability and good supervision and evaluation can carry out investment and loan linkage combining equity investment and loan issuance with the consent of local financial supervision departments in their cities.
The Opinions further clarify that the total balance of investment and loan linkage combined with equity investment and loan issuance of microfinance companies shall not exceed 20% of their net assets.
In response to the requirements of "establishing a supervision and evaluation system for microfinance companies" and "implementing classified supervision and management for microfinance companies according to the rating results" put forward in the Notice, the Opinions require that local financial supervision departments in Shanghai should establish a supervision and rating system, and comprehensively conduct on-site inspection and off-site supervision and implement supervision and rating according to the business scale, management level, compliance status and risk status of microfinance companies. The target of supervision and rating is the microfinance company approved to be established before the end of last year (except those established less than one year). Shanghai local financial supervision departments implement classified supervision according to the supervision rating results.
Attached is the full text of the Measures for the Supervision and Administration of Small Loan Companies in Shanghai (Draft for Comment):
Chapter I General Provisions
Article 1 In order to standardize the operation behavior of small loan companies in this Municipality, strengthen supervision and management, prevent and resolve risks, and promote the sustained and healthy development of the industry, in accordance with the Company Law of People's Republic of China (PRC), the Regulations of Shanghai Municipality on Local Financial Supervision and Management, the Guiding Opinions on the Pilot of Small Loan Companies (No.23, 2008) and the Notice on Strengthening the Supervision and Management of Small Loan Companies (No.23, 2008),
Article 2 The term "small loan company" as mentioned in these Measures refers to a limited liability company or a joint stock limited company established by natural persons, enterprise legal persons and other social organizations, which does not absorb public deposits and operates small loan business.
Article 3 These Measures shall apply to the supervision and management of small loan companies and their activities within the administrative area of this Municipality.
Article 4 The supervision and management departments of small loan companies in this Municipality include Shanghai Local Financial Supervision and Administration Bureau (hereinafter referred to as local financial supervision departments) and district financial departments. The above are collectively referred to as local financial management departments.
Fifth small loan companies in this Municipality shall implement the mechanism of departmental linkage and joint supervision and management in urban areas. The local financial supervision department of this Municipality is responsible for the supervision and management of small loan companies and their activities within the administrative area of this Municipality, and is responsible for contacting the national financial management department. Municipal development and reform, economic informatization, commerce, public security, finance, housing and urban construction management, agriculture and rural areas, market supervision, taxation and other departments shall, according to their respective responsibilities, do a good job in the management of small loan companies. All relevant departments should strengthen communication and information sharing, strengthen supervision and coordination, and form a joint force of supervision. The district governments are responsible for formulating policies and measures for the development of the microfinance industry within their respective administrative areas, establishing a working mechanism for risk prevention and resolution, assuming the primary responsibility for the risk disposal and stability of microfinance companies, determining the financial departments in their respective regions according to actual conditions, and undertaking the specific supervision of microfinance companies within their respective administrative areas. According to the requirements of the municipal local financial supervision department and the district government, the district financial department undertakes the duties of preliminary examination, information statistics, etc., organizes risk monitoring and early warning, and takes corresponding supervision measures. In addition to the establishment, withdrawal from the pilot and other major issues, the municipal local financial supervision department may entrust the district financial work department to carry out off-site supervision, on-site inspection, investigation and punishment of illegal acts and other supervision work.
Article 6 Small loan companies shall conduct business in accordance with laws and regulations, improve the service level of inclusive finance to key customers such as small and micro enterprises, urban low-income people, agriculture, rural areas and farmers, practice the inclusive finance concept, and support the development of the real economy.
Article 7 The district government is encouraged to guide and support small loan companies to increase credit support for small and micro enterprises and "agriculture, rural areas and farmers" by means of risk compensation, risk sharing and special subsidies, so as to reduce loan costs and improve financial services.
Chapter II Establishment, Alteration and Cancellation
Article 8 The pilot establishment of a small loan company shall be applied by the district finance department, and the small loan company may apply to the market supervision department for registration after being approved by the local financial supervision department of the city. The name of the small loan company in this Municipality consists of administrative division, font size, industry description and organizational form. Among them, the administrative division refers to "Shanghai"; The font size is determined by the company itself; Industry statements should be marked with the words "small loans"; The organization form is a limited liability company or a joint stock limited company.
Article 9 The establishment of a small loan company shall comply with the provisions of the Company Law of People's Republic of China (PRC), and meet the following conditions: (1) It has a registered capital that meets the provisions of these Measures; (2) It has an equity structure that conforms to the provisions of these Measures; (3) Having promoters who meet the requirements of these Measures; (4) Having directors, supervisors and senior managers who meet the requirements of these Measures; (5) Having a sound organizational structure, business norms, risk control and other internal management systems; (6) Having the necessary information systems to support business operations; (7) Having a business place that meets the requirements; (8) Having articles of association that conform to the provisions of these Measures and the Company Law of People's Republic of China (PRC); (9) Other prudential conditions stipulated by the state.
Article 10 The registered capital of a small loan company is not less than 200 million yuan, and it is paid-in monetary capital, and it is not allowed to use borrowed funds or funds entrusted by others as shares.
Article 11 A small loan company shall have a reasonable equity structure. The total shareholding ratio of the main promoters and their related parties shall not exceed 80% in principle. The shareholding ratio of a single promoter shall not be less than 5%. The shares of the main promoters shall not be transferred or pledged within three years, and other promoters shall not be transferred or pledged within one year (except those ordered to be transferred by the regulatory authorities and judicial departments according to law), and it shall be stated in the articles of association.
Article 12 The main promoters of a microfinance company shall be enterprise legal persons, with standardized management, good credit and strong strength, with net assets of not less than 654.38 billion yuan, asset-liability ratio of not more than 70%, and profits for three consecutive years in principle, with total profits of not less than 30 million yuan. Enterprise promoters and natural person promoters shall have good social reputation and integrity records.
Article 13 The directors, supervisors and senior managers who intend to work for a small loan company shall have financial knowledge and professional experience suitable for performing their duties, and have no criminal record or bad credit record.
Article 14 To establish a small loan company, the main sponsors shall submit application materials to the district finance department where the company is to be established. The application materials shall include: (1) an application. The contents include but are not limited to the name, domicile, business premises, registered capital, equity structure, business scope, etc. The microfinance company to be established; (2) Feasibility report. The contents include but are not limited to relevant market demand, peer status, company's market positioning, business model, business development planning, risk control ability, assets and liabilities, and profit level forecast for the next three years. (3) Draft articles of association; (4) Organization chart; (5) Internal management systems such as business norms and risk control; (6) Resumes and qualification certificates of the directors, supervisors and senior managers to be proposed; (seven) the business license or identity certificate of the promoters, as well as the proof of investment intention and ability; (8) Legal opinions; (9) Proof materials of business premises; (10) Letter of commitment from the sponsors; (eleven) other materials prescribed by the state.
Article 15 In case of any change in the following matters, a small loan company shall apply to the local financial department of the company's domicile, and after being approved by the local financial supervision department of the city, it shall go through the change registration with the market supervision department within 30 days: (1) Reduce the registered capital; (2) Changes in equity; (3) Changing the domicile across regions; (four) change the legal representative, chairman or executive director, general manager and other principal responsible persons; (five) merger, division and withdrawal from the pilot.
Article 16 Where any of the following matters of a small loan company changes, it shall file a record with the financial department of the company's domicile area in advance, and go through the change registration with the market supervision department within 30 days after filing: (1) Change the name; (2) Increase the registered capital; (3) Change of domicile in the area; (4) Amending the Articles of Association. (5) Changes of directors, supervisors and senior managers other than the chairman of the board of directors or the executive director and the general manager. The district finance department shall, within 5 working days from the date of completing the filing, report the relevant matters to the municipal local financial supervision department.
Seventeenth small loan companies voluntarily withdraw from the small loan business pilot, it shall apply to the district finance department, and submit the creditor's rights and debts disposal plan and other materials. The local financial supervision department of the city makes a decision on approval or disapproval according to the opinions of the district financial work department. If the local financial supervision department of the city agrees to withdraw from the pilot, the small loan company shall, within 3 months from the date of consent, go to the market supervision department to register the change of enterprise name and business scope.
Article 18 Where a small loan company is dissolved or declared bankrupt according to law, it shall be liquidated and cancelled according to law, and the liquidation process shall be supervised by the local financial management department.
Chapter III Operating Procedures
Article 19 The business scope of a microfinance company is loan issuance, related consulting activities and equity investment. Small loan companies should mainly engage in lending business. Small loan companies with good management, strong risk control ability and good supervision and evaluation can carry out investment and loan linkage combining equity investment and loan issuance with the consent of local financial supervision departments in their cities. The total investment-loan linkage balance of equity investment and loan issuance of microfinance companies shall not exceed 20% of their net assets.
Twentieth small loan companies should follow the principle of small loans and decentralized loans, and evaluate the repayment ability according to the borrower's income level, total liabilities, asset status, actual demand and other factors, and reasonably determine the loan amount and term. The loan balance of a microfinance company to the same borrower shall not exceed10% of the net assets of the microfinance company; The balance of loans to the same borrower and its related parties shall not exceed 15% of the net assets of the microfinance company. The municipal local financial supervision department may lower the above-mentioned maximum loan balance according to the regulatory needs.
Twenty-first small loan companies with good management, strong risk control ability and good supervision and evaluation may, with the consent of the local financial supervision department of the city, issue bonds and asset securitization products based on the loans issued by the company according to law; After filing with industry self-regulatory organizations, microfinance companies can integrate funds through shareholder loans and interbank lending. The balance of capital contributed by a microfinance company through non-standardized financing forms such as bank loans, shareholder loans and interbank borrowing shall not exceed 65,438+0 times of its net assets; Through the issuance of bonds, asset securitization products and other standardized forms of creditor's rights assets, the balance of the incorporated funds shall not exceed 4 times of its net assets. 5. The local financial supervision department of this Municipality may, according to the regulatory needs, reduce the highest proportion of the above-mentioned external financing balance to the net assets.
Twenty-second small loan companies should use loans in accordance with laws and regulations, national macro-control and industrial policies. The microfinance company shall clearly agree with the borrower on the purpose of the loan, and monitor the purpose of the loan according to the contract. Loans from microfinance companies shall not be used for the following matters: (1) investing in stocks and financial derivatives; (2) illegal financing in the real estate market; (3) Other purposes prohibited by laws and regulations, China Banking Regulatory Commission and local financial supervision departments.
Twenty-third small loan companies shall not deduct interest, fees, management fees, deposits, etc. Advance payment from the loan principal. If the deduction is made in advance in violation of regulations, the actual loan amount after deduction shall be repaid and the interest rate shall be calculated. Small loan companies and borrowers independently negotiate to determine the loan interest rate according to the principle of marketization, but the upper limit of interest rate shall not exceed the state regulations. Encourage small loan companies to lower the loan interest rate and reduce the financing cost of the real economy.
Twenty-fourth small loan companies should strengthen the management of funds, and implement special account management of borrowed funds (including self-owned funds and externally integrated funds), and all funds can only be borrowed after entering the special borrowing account. Borrowing accounts should have the ability to support the deposit and withdrawal of microfinance business, and should be reported to the district finance department, and regularly provide the loan account operation report and loan account details issued by the bank. The district finance department may limit the number of special loan accounts according to the regulatory needs.
Article 25 A microfinance company shall improve its governance structure, formulate a loan risk management and classification system in line with its business characteristics in accordance with the relevant provisions of the state and this Municipality and the principle of prudent operation, and establish, improve and strictly abide by business rules and management systems such as internal control, asset quality, risk preparation, information disclosure, related party transactions, marketing and publicity, and complaint handling.
Twenty-sixth small loan companies shall, in accordance with laws and regulations and the requirements of the local financial supervision departments of this Municipality, standardize the procedures and methods of debt collection and strengthen the professional training of collection personnel. Small loan companies and the third-party collection agencies entrusted by them shall not collect debts from borrowers and their guarantors or units or individuals other than the repayment obligors agreed in the contract, and shall not collect debts in the following ways: (1) using or threatening to use violence; (2) Intentionally hurting others' bodies; (3) Infringement of personal freedom; (four) illegal possession of the property of the expropriated person; (five) to insult, slander, harassment and other ways to interfere with the normal life of others; (6) Illegally spreading the privacy of others; (seven) other acts of illegal or improper means to collect debts.
Article 27 A small loan company shall follow the principle of openness and transparency, and fully fulfill its obligation to inform the borrower of the loan amount, term, annualized interest rate and repayment method, which shall be specified in the contract and confirmed by the borrower. The microfinance company shall inform the borrower of the amount, time, method of repayment of principal and interest and the responsibility for overdue repayment within a reasonable time before the debt expires. A small loan company shall publicize the establishment approval document, business license and other contents in a prominent position in its business premises.
Article 28 A microfinance company shall properly keep the customer information obtained according to law, and shall not collect, store or use the customer information without authorization, or illegally buy, sell or disclose the customer information.
Article 29 Small loan companies should standardize their operations according to law, strictly abide by the bottom line of risks, and prohibit the following acts: (1) absorbing deposits or absorbing public deposits in disguised form; (2) Selling or transferring the company's credit assets other than bad credit assets through Internet platforms or various local trading places; (3) Acting as an agent to issue or sell asset management products such as wealth management and trust plans; (4) Other acts prohibited by laws and regulations, China Banking Regulatory Commission and local financial supervision departments.
Chapter IV Supervision and Administration
Thirtieth local financial management departments shall formulate supervision and inspection plans for small loan companies every year, and supervise and inspect the business activities of small loan companies. Supervision and inspection can take the form of on-site inspection and off-site supervision.
Thirty-first small loan companies shall cooperate with local financial management departments to carry out supervision and inspection according to law, provide relevant information, documents and materials, and truthfully explain major issues in business activities and risk management.
Thirty-second local financial management departments may, according to the needs of their work, hire third-party institutions such as law firms and accounting firms or external professionals to participate in supervision and inspection, and include the corresponding expenses in the annual budget.
Thirty-third on-site inspection is divided into annual on-site inspection and special on-site inspection. Annual on-site inspection, the inspection object is the microfinance company approved to be established as of the end of last year (except for those established less than one year), and the inspection period is the previous year, in principle, in the second quarter of each year. According to the regulatory needs, special on-site inspections can be conducted on relevant microfinance companies from time to time.
Thirty-fourth local financial management departments can take the following measures when conducting on-site inspections: (1) entering the business activities of microfinance companies and relevant units for inspection; (two) to require the staff of the small loan company and the relevant units to explain the inspection items; (3) Check the related business data management system, etc. ; (four) to obtain, consult and copy the documents and materials related to the inspection items; (5) Other measures stipulated by laws and regulations. With the approval of the person in charge of the municipal local financial supervision department, documents, electronic equipment and other evidential materials that may be transferred, concealed or damaged, as well as places and facilities related to business activities may be sealed up and detained. When the local financial management department conducts on-site inspection, there shall be no less than two law enforcement officers, and they shall produce administrative law enforcement certificates and inspection notices. The relevant units and individuals shall cooperate with the inspection, truthfully explain the relevant situation, provide documents and materials, and shall not obstruct, refuse or obstruct.
Thirty-fifth local financial supervision departments of the city put forward clear rectification and supervision opinions on microfinance companies according to the problems found in the on-site inspection. The district finance department should take effective supervision measures to urge the small loan companies to rectify in time.
Thirty-sixth local financial management departments should strengthen off-site supervision of small loan companies, analyze and evaluate their business activities and risk status on the basis of collecting and processing relevant information of small loan companies according to law, conduct risk early warning in time and take corresponding supervision measures. When collecting relevant information, local financial management departments can confirm and confirm possible risks or problems in business management by asking, requesting supplementary materials and interviewing.
Article 37 The local financial supervision department of the city shall establish a supervision rating system, and implement the supervision rating according to the business scale, management level, compliance and risk status of microfinance companies, and by comprehensive on-site inspection and off-site supervision. The target of supervision and rating is the microfinance company approved to be established before the end of last year (except those established less than one year). The local financial supervision department of the city shall implement classified supervision according to the supervision rating results.
Thirty-eighth to encourage small loan companies industry self-regulatory organizations to play an active role. Industry self-regulatory organizations shall carry out the following work in accordance with the articles of association: (1) formulate industry self-regulatory rules, supervise and inspect the behaviors of members and their employees, and implement self-regulatory management; (two) to safeguard the legitimate rights and interests of members, reflect the suggestions and requirements of the industry, and cooperate with local financial management departments to carry out industry supervision; (3) Urging members to carry out education on the appropriateness of financial consumers, to carry out dispute mediation, and to safeguard the legitimate rights and interests of financial consumers; (4) Investigating and handling complaints about members' violations of laws and regulations; (5) Organizing member training and exchanges; (six) other work as prescribed by laws and regulations.
Article 39 A small loan company shall submit the following materials to the local financial management department as required: (1) business operation reports, statistical statements and related materials; (2) Financial and accounting reports audited by accounting firms; (3) Other materials as prescribed by the state and this Municipality.
Fortieth relevant government departments, intermediary agencies entrusted to participate in supervision and inspection activities, industry self-regulatory organizations and their staff members shall keep confidential the business secrets and personal privacy of relevant units and individuals that they know in performing their duties.
Chapter V Risk Disposal
Forty-first small loan companies should bear the main responsibility for the risk events in their business activities, take immediate measures when major risk events occur, and report to the district finance department within 24 hours after the events occur. Major risk events include the following situations: (1) the microfinance company has liquidity difficulties; (2) The microfinance company has a major pending lawsuit or arbitration; (3) The microfinance company has significant negative public opinion; (four) the main person in charge of the microfinance company is missing or under criminal investigation; (5) Small loan companies have mass incidents. If the controlling shareholder or actual controller of a small loan company has a major risk event specified in the preceding paragraph, the small loan company shall report to the local financial management department within 24 hours from the time when it knows or should know.
Forty-second district financial departments shall make timely judgments on the nature, changes and risk degree of major risk events of microfinance companies within their respective administrative areas; Major events that endanger the financial order, affect social stability and may lead to systemic risks shall be reported to the district government in a timely manner, disposed of in a timely manner in accordance with relevant regulations, and reported to the local financial supervision department of the city. The local financial supervision department of the city shall promptly dispose of the risks and report to the municipal government.
Forty-third local financial management departments in the process of performing their duties according to law, can take measures such as supervision talks, ordering public explanations, ordering regular reports, issuing risk warning letters, and ordering corrections. The local financial management department may require the controlling shareholder or actual controller, legal representative, directors, supervisors or senior managers of the microfinance company to explain their business activities and risk status.
Article 44 The local financial management department shall coordinate the market supervision department and other departments to include the company in the business exception list, revoke its business license according to law, persuade it to apply for changing its name and business scope, voluntarily cancel it, or guide it to quit the microfinance company industry by other means. A company that meets one of the following conditions shall be recognized as a "lost company": (1) unable to get in touch; (2) It cannot be found through field investigation at the company's residence; (3) Although we can contact the staff of the company, we don't know and can't contact the actual controller of the company; (4) Failing to submit data and information according to regulatory requirements for three consecutive months. A company that meets one of the following conditions shall be recognized as a "shell" company: (1) It has closed down (failed to carry out loans and other businesses) within the past six months without justifiable reasons; (two) no tax record or "zero declaration" in the past 6 months (except those who enjoy preferential tax policies of the state); (3) No social security payment record in the last 6 months.
Chapter VI Legal Liability
Forty-fifth small loan companies in violation of the provisions of article twenty-ninth, the local financial supervision department shall order it to make corrections within a time limit, confiscate the illegal income, and impose a fine of 500 thousand yuan to 2.5 million yuan; If the circumstances are serious, it shall be ordered to suspend business or cancel the driver qualification according to law.
Article 46 Where a small loan company violates the provisions of Article 39 of these Measures and fails to submit business materials as required, the municipal local financial supervision department shall order it to make corrections within a time limit and impose a fine of 1 10,000 yuan but not more than 50,000 yuan.
Article 47 Where a small loan company violates the provisions of Article 41 of these Measures and fails to report major risk events within the prescribed time limit as required, or fails to take corresponding measures immediately when the risk events occur, the municipal local financial supervision department shall order it to make corrections within a time limit and impose a fine of 1 10,000 yuan but not more than 50,000 yuan; If the circumstances are serious, a fine of 50,000 yuan to 200,000 yuan shall be imposed.
Article 48 Where a small loan company obstructs local financial management departments from performing their duties according to law, refuses or obstructs supervision and inspection, or destroys or transfers relevant information, the municipal local financial supervision department shall order it to make corrections within a time limit and impose a fine of 1 10,000 yuan but not more than 50,000 yuan; If the circumstances are serious, a fine of 50,000 yuan to 200,000 yuan shall be imposed.
Forty-ninth local financial supervision departments of the city impose administrative penalties on microfinance companies, and may also impose a fine of more than 50,000 yuan and less than 500,000 yuan on directors, supervisors or senior managers who are directly responsible.
Fiftieth small loan companies operating in violation of regulations, the relevant laws and regulations have penalties, local financial management departments should coordinate with relevant departments to be punished in accordance with the provisions; If the relevant laws and regulations do not stipulate punishment and fail to meet the punishment standards, the local financial management department may take regulatory measures such as regulatory talks, issuing warning letters, ordering corrections, recording illegal acts in the illegal business behavior information database and publishing them; Anyone suspected of committing a crime shall be handed over to the public security organ for investigation.
Chapter VII Supplementary Provisions
Article 51 The Shanghai Local Financial Supervision Administration shall be responsible for the interpretation of these Measures.
Article 52 These Measures shall come into force on * * day of 202 1 year.
Proofreading: Liu Wei