China Law Insight : China Law Insight: China Commercial and Intellectual Property Lawyers and Attorneys, Full Service Law Firm: King & Wood

By Guan Feng King & Wood's Finance Group

This article continues to discuss Insurance Benefits for Banks as Mortgagees. The first part of this article was published on Chinalawinsight on January 2012.

III. Assignment of Insurance Benefits

In practice, in order to insure the debt, the lender bank often signs an insurance assignment agreement with the borrower, in which the borrower will assign all insurance benefits(1) under the related property insurance policy(2) to the lender bank. The assignment of rights becomes effective at the moment when the assignment contract is signed, or when the borrower defaults on the loan. Meanwhile, the endorsement slip, in which the insured designates the bank as the "first beneficiary" under the insurance policy, confirms the rights of the bank. To evaluate the feasibility of the insurance assignment contract, the fundamental approach from an insurance law perspective is to assess the nature of the insurance benefits assigned.

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作者：关峰 金杜律师事务所融资组

本文分两部分刊登， 2012年1月16日金杜法律博客(Chinalawinsight)刊登的了本文的第一部分。文章第二部分将继续对《文件名》进行解读。

三、保险收益（insurance proceeds）的转让

从目前的行业惯例来看，为了保证借款人偿还贷款，银行往往会与借款人签订保险转让合同，约定借款人向银行转让相关财产保险单（1）项下的所有保险收益（2）。权利转让可能发生在转让合同签署之时，也有可能发生在借款人违约之时。与此同时，保险公司出具批单，以将银行列为保险单项下第一收益人（“first beneficial”）的方式，确认银行的权利。如果要判断这种转让保险收益行为的可行性，就必须从基础理论出发，了解保险收益转让的实质。

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By Guan Feng King & Wood's Finance Group

I. Introduction

Banks usually require a borrower to provide a mortgage on their property as security for the bank's loan. However, under China's laws, a mortgagee is not entitled to directly receive insurance benefits or indemnification relating to the mortgaged property. If the mortgagee cannot be directly indemnified when the mortgaged property suffers damage or loss, the mortgagee bears the risk of being under-secured on its loan since it does not have a priority right to the insurance proceeds. Although the mortgagee can seek indemnification from the borrower if the borrower has been reimbursed with insurance benefits, ideally the bank should directly receive indemnification for the loss in value of its security.

In practice, the lender bank usually requires the borrower to insure the mortgaged property and designate the bank as the "first beneficiary" in the property insurance contract. In this way, the bank can directly obtain indemnification if the mortgaged property suffers damage or loss due to insured incidents. However, under the Insurance Law of the People's Republic of China ("Insurance Law"), the term "beneficiary" is only defined in life insurance rather than in property insurance. On September 23, 1992, the Department of Real Estate Credit of the Construction Bank of China promulgated the Interim Measures of Employees Mortgage, which defined the term of "first beneficiary". However, the Measures for the Administration of Individual Housing Loans promulgated by the People's Bank of China on May 9, 1998 phased out the "first beneficiary" concept. Thus, since there is no definition for "beneficiary" in property insurance under China's current laws, the question of whether such a "beneficiary" is entitled to any direct claim to indemnity remains a myth in the property insurance contract. In order to clarify this issue, the High Court of Shanghai, in its 2009 and 2010 White Paper on Trial Judgments in Financial Cases, instructed that a beneficiary can only be specified in a life insurance contract according to the relevant provisions of the Insurance Law and instructions of the Supreme Court of China.

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作者：关峰 金杜律师事务所融资组

一、引言

在抵押贷款中，银行为了担保债权利益的实现，通常会要求借款人提供抵押物担保，但是，如果抵押物因客观原因发生毁损、灭失，由于法律没有赋予抵押权人直接扣押抵押物的保险金、补偿金等赔偿金的权利，因此，抵押权人在取得抵押物的赔偿金之前，存在不能就抵押物的赔偿金优先受偿的风险。为此，银行作为抵押权人希望直接受领抵押物的赔偿金，以实现其债权利益。

实践中，银行通常会要求借款人对抵押物投保，并在保险单中指定银行为“第一受益人”，以使银行在保险事故发生后，能直接受领抵押物的保险赔偿金。但是，在我国的《保险法》上，只在人身保险中规定了受益人，在财产保险中未规定。中国建设银行房地产信贷部在1992年9月23日颁布的《职工住房抵押贷款暂行办法》中曾出现过“第一受益人”的概念，但是中国人民银行于1998年5月9日颁发的《个人住房贷款管理办法》中已没有“第一受益人”的概念。因此，在我国目前的法律规定中，暂且没有关于财产保险中受益人的规定。财产保险中的受益人享有的是什么性质的权利，是否因此而取得了保险金请求权，在法律没有明确规定的情况下，都不甚明确。为此，上海市高院在2009年度和2010年度的《金融审判白皮书》中，也明确：根据保险法和最高法院有关规定，受益人仅可在人身保险合同中设置。并且建议保险公司对已签订的合同进行清理、批改，以保障投保人的信赖利益。

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作者：关峰 金杜律师事务所融资组

一、引言

在抵押贷款中，银行为了担保债权利益的实现，通常会要求借款人提供抵押物担保，但是，如果抵押物因客观原因发生毁损、灭失，由于法律没有赋予抵押权人直接扣押抵押物的保险金、补偿金等赔偿金的权利，因此，抵押权人在取得抵押物的赔偿金之前，存在不能就抵押物的赔偿金优先受偿的风险。为此，银行作为抵押权人希望直接受领抵押物的赔偿金，以实现其债权利益。

实践中，银行通常会要求借款人对抵押物投保，并在保险单中指定银行为“第一受益人”，以使银行在保险事故发生后，能直接受领抵押物的保险赔偿金。但是，在我国的《保险法》上，只在人身保险中规定了受益人，在财产保险中未规定。中国建设银行房地产信贷部在1992年9月23日颁布的《职工住房抵押贷款暂行办法》中曾出现过“第一受益人”的概念，但是中国人民银行于1998年5月9日颁发的《个人住房贷款管理办法》中已没有“第一受益人”的概念。因此，在我国目前的法律规定中，暂且没有关于财产保险中受益人的规定。财产保险中的受益人享有的是什么性质的权利，是否因此而取得了保险金请求权，在法律没有明确规定的情况下，都不甚明确。为此，上海市高院在2009年度和2010年度的《金融审判白皮书》中，也明确：根据保险法和最高法院有关规定，受益人仅可在人身保险合同中设置。并且建议保险公司对已签订的合同进行清理、批改，以保障投保人的信赖利益。

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作者：金杜律师事务所金融组

2011年12月7日，商务部、中国银行业监督管理委员会、中国保险监督管理委员会颁布了《对外承包工程项目投标（议标）管理办法》(简称“投标管理办法”)。投标管理办法对之前适用的相关规定做出了较大的改动，对企业的要求更加明确和具体，同时也扩大了银行开展相关业务时的要求。当前，中资工程项目承包类企业在海外的业务日益壮大和发展，而在这一过程中中资银行提供的支持是极其重要的一环。因此，在业务开展中，企业和银行需要注意新的投标管理办法中的相关要求。投标管理办法将自2012年1月15日起施行。

投标管理办法提出的具体要求和对之前的规定作出调整的领域主要包括：

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By King & Wood's Finance Group

The China Banking Regulatory Commission (the "CBRC") issued Guiding Opinions of the China Banking Regulatory Commission on the Implementation of the New Regulatory Standards by the Chinese Banking Industry (Yin Jian Fa [2011] No. 44) (the "Guiding Opinion") on April 27, 2011, which clearly creates new rules for liquidity and capital held by banks in accordance with the "Basel Accord III" ("Basel III"), and on the basis of comprehensively assessing the effectiveness of the current prudent regulatory system, to improve the capital adequacy ratio, leverage ratio, liquidity, loan loss reserve and other regulatory standards. The four new regulatory standards for capital listed above will be implemented on January 1, 2012.

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作者：金杜律师事务所融资组

中国银行业监督委员会（“银监会”）于2011年4月27日发布了《中国银监会关于中国银行业实施新监管标准的指导意见》（银监发[2011]44号）（“《指导意见》”），明确将根据《第三版巴塞尔协议（Basel III）》确定银行资本和流动性监管新制度，在全面评估现行审慎监管制度有效性的基础上，提高资本充足率、杠杆率、流动性、贷款损失准备等监管标准，并提出上述四项新资本监管标准从2012年1月1日开始执行。

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by King and Wood's Finance Group

Further to Circular No. 145, on 14 October 2011 PBOC released new rules on RMB FDI, the Measures on Administration of the RMB Settlement in relation to Foreign Direct Investment ("PBOC Rules") to roll out PBOC's detailed management system.  The PBOC Rules cover all the FDI aspects denominated in RMB, including capital injection, payment of purchase price in the acquisition of PRC companies, repatriation of dividends and distribution as well as RMB denominated cross-border loans.  The PBOC Rules adopt similar methodology applied by SAFE to foreign currency FDI but appear to be more friendly.  On the same day, MOFCOM also issued a circular ("MOFCOM Circular") to clarify certain issues in relation to cross-border RMB FDI transactions.
We highlight the following aspects we deem of significance:

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金杜律师事务所 融资组

继银发(2011)145号文之后, 2011年10月14日中国人民银行就人民币外商直接投资出台新规则《外商直接投资人民币结算业务管理办法》(“人行办法”), 规定了有关人民币结算的具体操作。 人行办法涉及到以人民币进行外商直接投资的方方面面, 包括资本注入、并购中国企业购买价款的支付、股息和利润分配的汇出以及人民币跨境贷款。  人行办法延续了外管局对外汇直接投资的监管思路, 但程序更为简便。 同一天, 商务部也出台通知(“商务部通知”)规定了跨境人民币直接投资交易的相关问题。

我们认为比较重要的方面包括:

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By King & Wood's Finance Group

After seeking public comments in a wide range and holding several times discussions with bankers and lawyers, on 9th October 2011 CBRC promulgated the Rules on the Distribution of the Wealth Management Products of the Commercial Banks ("CBRC Rules"). The CBRC Rules maintains major content of the Interim Rules on the Commercial Bank's Wealth Management Business to the Individuals and the Guidelines on Risk Management on the Commercial Bank's Wealth Management Business to the Individuals in 2005, at the same time, CBRC Rules provides new requirements in key fields. In the current banking market, the funds is seriously short, and the interest rates for the deposit are very low and the means of investment are very limited, therefore, banks and their clients will pay much more attention to the sales of the wealth management products.

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金杜律师事务所 融资组

2011年10月9日，经过广泛征求意见和多次的讨论，中国银行业监督管理委员会颁布了《商业银行理财产品销售管理办法》(简称"销售管理办法")。销售管理办法在很多方面保留了银监会之前于2005年发布的《商业银行个人理财业务管理暂行办法》和《商业银行个人理财业务风险管理指引》的内容，同时，也在一些很重要的领域提出了新的要求。在目前的资金市场面临较大短缺和存款收益较低、投资渠道不足的情况下，商业银行的理财产品销售会是银行和客户都很关注的一项业务，因此，销售管理办法的出台需要引起商业银行的重视和仔细研究，需要银行作出具体的方案，调整业务的模式和程序，以避免发生合规和其他风险。

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金杜律师事务所融资组

自2009年7月跨境贸易人民币结算试点工作启动以来，相关业务的容量、复杂性及银行业务经历了飞速的发展。在2年的时间内，试点范围在20多个省(区、市)得以实施，中国人民银行计划在今年内将试点范围扩大至全国。为满足企业和银行对政策透明度的强烈需求，外汇管理局、商务部等监管当局已经颁布了一系列的规则和指引以促进人民币跨境业务。2011年6月8日，中国人民银行颁布了《中国人民银行关于明确跨境人民币业务相关问题的通知》(银发[2011]145号)(简称“通知”)。该《通知》从积极的角度阐明了与跨境人民币业务相关的若干重大问题。迄今为止，该《通知》被市场称为“实现人民币国际化的重大进步”。 

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By King & Wood's Banking Group

Since the launch of the pilot program of RMB settlement in cross-border trade transactions in July 2009, the volume and complexity of the said transactions and the ancillary banking businesses have been rapidly increasing. During the past two years, the pilot program was carried out in 20 provincial regions. PBOC plans to expand the pilot program to the whole country within this year. In order to satisfy business and banking industry's strong needs for policy transparency, regulatory authorities such as SAFE and MOFCOM have issued various rules and guidelines aiming to streamline cross-border flows of RMB. On June 8, 2011, PBOC published a most recent circular (1)("Circular") which clarifies several major issues relating to cross-border RMB transactions. Industry feedback regarding the Circular has been positive and the Circular has been interpreted as "a significant step towards the internationalization of RMB" by the market.

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作者：袁敏、Kirby Carder 金杜律师事务所融资组

随着2009年10月新修订的《中华人民共和国保险法》的执行，中国保险监督管理委员会（“保监会”）将工作重点转向对2005年颁布执行的《再保险管理业务规定》（“《旧规定》”）的修改。2010年4月，新修订的《再保险业务管理规定》（“《新规定》”）由保监会审议通过，并于2010年7月1日起正式生效。总体来说，《新规定》对直接保险人和再保险人都给予了更深入而细致的指导，保监会希望通过《新规定》的制定和实施更加有效地管理中国再保险市场，促进中国直保市场的持续稳定增长。

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By Yuan Min and Kirby Carder of King & Wood's Finance Group

With the implementation of the revised insurance law in October 2009, the China Insurance Regulatory Commission ("CIRC") turned its attention to revising the Provisions on the Administration of the Reinsurance Business ("Reinsurance Provisions" or "old Provisions") that it originally promulgated and implemented in 2005. The CIRC promulgated the revised Provisions ("new Reinsurance Provisions") in April 2010, and the measures officially came into effect on July 1, 2010. Overall, the new Reinsurance Provisions are more in depth, and provide more detailed instructions for direct insurers and reinsurers, which the CIRC probably believes will allow it to more effectively regulate the Chinese reinsurance market, and promote stable and sustainable growth of the Chinese direct insurance market.

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Interview of Roy Zhang of King & Wood's Banking Department by Zhang Tianhui and He Ran of King & Wood's Publications Group

Financing is a critical consideration in M&A transactions. For a long period of time, financing large scale strategic M&As of listed companies in China has been a bottleneck. As such, it is important for companies to study successful M&A experiences from abroad and develop additional venues and tools for financing and venues for such transactions.

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李锦南   合伙人      金杜银行部

过去，信托公司一直通过剥离银行表内资产并打包成为理财产品出售，以此作为其一项稳定的收入来源。值此现象愈演愈烈之际，中国银行业监督管理委员会("银监会")七月份突然全面叫停所有银信合作业务。

最近，银监会发布了一份新的通知("通知")，有条件地重开银信合作业务。总体上，我们认为通知将会极大改变现行的银信合作模式和具体交易结构。通知如下几点尤其值得关注:

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By Li Jinnan, Partner, King & Wood's Banking Group 

The expansion of bank-trust cooperation and the practice of repackaging off-the-book bank loans into trust products for sale to consumers came under unprecedented scrutiny this July as the China Banking Regulatory Commission ordered trust companies to cease all cooperative work with banking organizations.

Recent reports reveal that the complete shutdown of bank-trust cooperation has now been repealed, but the CBRC’s new circular allowing banks to resume cooperation with trust companies has place a number of new conditions on the once burgeoning industry.

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By Zhang Yi, Alan Du and Ge Jiaying, King & Wood's Banking & Finance Group

On March 15, 2010, Shanghai Municipal Government approved a pilot program in which foreign investors may become qualified foreign limited partners ("QFLP") of private equity investment funds ("Pilot Program") on its executive meeting. The Pilot Program, which is subject to confirmation and approval of the State Administration of Foreign Exchange ("SAFE") and other relevant authorities, is expected to be officially announced soon.

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 By Li Jinnan and Jiang Hualiang, King & Wood's Banking & Finance Practice

With the recent development of the service outsourcing industry, an increasing number of financial institutions (including banks, securities companies, insurance companies and fund management companies) use financial service outsourcing to reduce costs, enhance core competitiveness, and accomplish strategic goals. Financial institutions are able to benefit significantly from IT outsourcing, which is an important part of financial service outsourcing. At the same time, they must also confront the managing risks that are associated with IT outsourcing. Based on our past experience with counseling on IT outsourcing to financial institutions, the followings are the primary legal issues relating to the terms in and execution of  IT outsourcing agreements, using banking institutions ("banks") as examples. The discussion will focus on how banks should manage potential risks from negotiating such an agreement.

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By Li Jinnan, Partner, King & Wood's Banking & Finance Group

In order to support outbound investment projects of domestic PRC entities, to meet the policy demands of domestic credit support, and to further facilitate trading and investing, the State Administration of Foreign Exchange ("SAFE") on July 30th, 2010 promulgated the Notice on the Administration of Overseas Security by Domestic Entities (the "Notice"), which came into effect as of the date of promulgation. This Notice relaxes the restrictions on financing of outbound projects.

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By Guan Feng and Wu Sijie, King & Wood's Litigation & Arbitration Group

In 2008, a financial derivatives dispute arose between a foreign-funded bank (the "Bank") and a local Chinese company (the "Company"). Although both parties executed certain documents to conclude the transaction, due to adverse changes in the international financial environment, the Company denied that the parties had entered into any contract regarding the derivative transaction and refused to perform. As a result, the Bank initiated a lawsuit against the Company to seek damages.
 

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By Wang Fengli and Wang Jiangang, King & Wood's Dispute Resolution Group

For many people, their main wealth management strategy involves purchasing financial products promoted by banks. Since the first impact of the global financial crisis was felt in 2008, the performance of different bank-issued financial products has varied greatly. Some Chinese investors have lost money as a result of buying financial products promoted by foreign-funded banks, and some have even sued those banks for compensation. Since financial products are generally quite complex, hurt investors often make their claim against a bank on the grounds that the bank failed to give clear notice about the risks inherent in the financial product which it was promoting and that the bank induced the investor into purchasing a product while concealing important facts.

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The People's Government of Shanghai Pudong New Area promulgated on June 2, 2009, the Pilot Measures for the Establishment of Foreign-invested Equity Investment Management Enterprises in the Pudong New Area of Shanghai ("Pilot Measures"). The Pilot Measures provide guidance on registration and incorporation of equity investment management companies in Pudong New Area to be established by foreign equity investment capital firm including private equity investment and venture capital.
 

By Zhang Yi, Partner at King & Wood's Corporate Group

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I. First Law Governing State-Owned Assets in China

The Enterprise State-owned Assets Law of the People's Republic of China ("State-owned Assets Law") was adopted on the fifth session of 11th Standing Committee of the National People's Congress on October 28, 2008 and become effective on May 1, 2009. The State-owned Assets Law, which had been drafted and deliberated for more than ten years, is China's first law addressing state-owned assets.  

By Su Zheng, Partner at King & Wood, and Hu Ping

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On June 9, 2009, the State Administration for Foreign Exchange (“SAFE”) issued the Notice on Certain Issues Relating to Foreign Exchange Administration on Offshore Lending by Domestic Enterprises (the “Notice”) effective as of August 1, 2009, in an effort to deal with the difficulties faced by offshore Chinese-funded enterprises that have “gone abroad” in obtaining financing offshore and increasing working capital, to encourage more domestic enterprises with strong capital strength to “go abroad”, and to enhance the use of funds by domestic enterprises.
 

King & Wood's Finance Group

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By: Liu Yanling, Partner and head of King & Wood's Bankruptcy, Restructuring & Insolvency Practice

Stellar Megaunion Corporation ("SMC") was in serious debt, as it could barely repay its liabilities. New World China Land ("NWCL"), which was seeking an opportunity to go public, proposed to acquire SMC as a shell company which has no assets, but is publicly listed. To achieve this goal, NWCL conducted several rounds of negotiations with SMC's creditors to settle SMC's debts and clear the roadblocks for the acquisition. However, the parties were unable to make much progress in the negotiations due to the large number of SMC's creditors involved. As SMC needed to solve its debt crisis as soon as possible and its negotiations with NWCL were deadlocked, the company decided to reorganize to completely release itself from the heavy debt burdens in a short period time.

A. Reorganization initiated by SMC's creditors
As SMC failed to repay it debts due, a third party creditor petitioned the proper Intermediate People's Court (the "Court") to reorganize SMC. The Court accepted the petition on March 11, 2008 ([2008] Yusanzhongbozi No.1).

SMC's Reorganization

B. Confirmation of Creditors' Rights
According to the proposed reorganization plan the administrator of SMC (the "Administrator") submitted to the Court and the first SMC creditors' meeting, 70 creditors filed claims and the total value of confirmed claims was nearly RMB 2.5 billion. [continue reading to find out the outcome]
 

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Duncan Hwang, Foreign Lawyer, King & Wood's FDI Practice

class="MsoNormal" style="margin: 0cm 0cm 0pt">After the Qualified Domestic Institutional Investor scheme (QDII) was implemented in April of 2006 to help relieve pressure on the RMB by promoting capital outflows and Chinese companies in various industries in the private sector were encouraged to go abroad, China’s outbound investment totaled approximately $20 billion in 2007.

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金杜律师事务所 融资组银行部

背景

2008年8月5日，国务院总理温家宝签署第５３２号国务院令，公布了新修订的《中华人民共和国外汇管理条例》(以下简称“新条例”)。新条例于公布之日起实行，并对原来的外汇管理制度做出了较大幅度的改革以适应近年来中国经济的快速发展和国际经济形势的深刻变化。

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By King & Wood's Banking Regulation & Compliance Practice

A Brief Analysis on the New Administrative Rules on Foreign Exchanges

Background

On August 5, 2008, the Premier of the PRC State Council, Mr. Wen Jiabao, issued the State Council Order No. 532, which promulgates the newly revised “Administrative Rules of the People’s Republic of China on Foreign Exchanges” (hereinafter referred to as the “New Rules”). This document came into force upon its promulgation, and to a large extent changes the rules of the old foreign exchange supervision system. This tremendous change in the regulatory system is for the purpose of accommodating the rapid development of China’s economy and the material transformation in the international economic fields in recent years.

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By Wang Junfeng, Partner, and  Edward Jing, Partner, King & Wood’s Securities & Capital Markets Group

2008 is destined to be an extraordinary year for global cross-border M&A. King & Wood, as a leading law firm deeply rooted in this activity in China, has noticed the following trends in the second half of 2007 and the first half of 2008...

 

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To echo the enactment of the PRC Property Law, the State Administration of Industry and Commerce in October 2007 published the Movables Mortgage Registration Measures (“Measures”). The Measures, which have replaced the 1995 Enterprise Movables Mortgage Registration and Administration Measures, are aimed at reflect the Property Law’s intention to throw more movables into the pool of mortgage-able properties and to direct local bureaus of industry and commerce on the procedures of movable mortgage registrations. Detailing on the scope of movables subject to mortgages, the effect of mortgage registrations, the documents required to support registrations and the standard of document examination, the Measures are expected to clarify many of the confusions that have impeded the efficiency of the security registration system in China and to enhance availability of financing to small and mid-sized companies.
 

By Li Jinnan, Partner and Pan Ye, associate.

CONTINUE READING... 

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By:Liu Zhigang, Partner and Lv Yinghao, associate, King & Wood's Banking Department

In the final quarter of 2007, the National Association of Financial Market Institutional Investors (“NAFMII”) was authorized by the People's Bank of China to release a standardized Master Agreement and supplements (“Master Agreement”) to serve as uniform documentation of inter-bank market participants in financial derivatives transactions. For those familiar with the International Swaps and Derivates Association Master Agreement (“ISDA Agreement”), its influence is evident in the newly adopted Master Agreement. Similar to the ISDA Agreement, the Master Agreement addresses an extremely wide variety of transactions, including most if not all derivatives allowed by Chinese law.

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By: Li Qiang, Partner

On March 13, 2008, the General Office of the State Council promulgated the Opinions of the General Office of the State Council on Implementing Some Policies and Measures for Accelerating the Development of the Utility Sector. (No.11 [2008] of the General Office of the State Council) In this opinion, it is clearly stated that “The market-oriented reform of municipal public utilities may be promoted continuously and stably. The operations of water, heat and gas supply, public transportation, sewage disposal and waste disposal, etc. may be entrusted to private enterprises.” This article ended the long-lasting controversy of “whether China’s water market will continue to open up”.

China now is facing a very serious water shortage, and the water consumption and water demand between districts is uneven. As China’s water market keeps on opening up, it is believed that more and more investors will put their money on the exploration and utilization of water resources.

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By Li Jinnan and Pan Ye of King & Wood's Finance Group

I. Background

On October 17, 2007, the State Administration of Industry and Commerce ("SAIC" and its local counterpart "AIC") issued the Rules on Registration of Mortgage over Movable Properties ("New Rules")(1) , which came into force on the same day. As an implementation of the recently effective Property Right Law of the People's Republic of China ("Property Law")(2) , these New Rules supersede the previous Rules on Registration of Mortgaged Movable Properties issued by SAIC in 1995 ("Old Rules")(3) . We herein set out an introduction on the key features of the New Rules in comparison to the Old Rules.

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作者：刘志刚 金杜律师事务所融资组合伙人 吕膺昊 金杜律师事务所融资组律师

一、背景介绍

     中国银行间市场交易商协会（NAFMII，“协会”）是由银行间市场交易商组成的自律组织，成立于2007年8月底，其业务主管部门为中国人民银行（“人民银行”）。2007年10月12日，协会根据人民银行的授权公布了《中国银行间市场金融衍生产品交易主协议（2007年版）》，该文本包括《中国银行间市场金融衍生产品交易主协议》（“《主协议》”）及《中国银行间市场金融衍生产品交易主协议补充协议》（“《补充协议》”）、《履约保障品文件》及《履约保障品文件补充协议》、《中国银行间市场金融衍生产品交易定义文件》(1)（以下统称为“《衍生产品主协议》”）。《衍生产品主协议》是银行间市场参与者从事场外金融衍生产品交易的规范、标准文本。(2)

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By Liu Zhigang and Lv Yinghao of King & Wood's Finance Group

I. Background Introduction

On October 12, 2007, the National Association of Financial Market Institutional Investors ("NAFMII"), a self-regulatory body newly formed in late August of 2007 for Chinese inter-bank market players and operating under the direction of the People’s Bank of China ("PBOC"), was authorized by PBOC to release the standardized Master Agreement and its supplemental documents including the Schedule, the Performance Collateral Annex and the Definitions(1) (collectively the "Master Agreement and Supplements"). The Master Agreement and Supplements are intended to serve as a uniform documentation basis for the inter-bank market participants in financial derivatives transactions amongst them.

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