盈科|期刊 《商业法律动态观察》——2020年1月、2月合刊
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更新日期：2020-06-08
来源：盈科律师事务所
【立法动态 Judicial News】
SASAC Calls on Central Enterprises to Tighten Management of Capital Contributions
背景摘要：近日，国务院国有资产监督管理委员会发布《关于中央企业加强参股管理有关事项的通知》（下称《通知》）。
Background Information：The State-owned Assets Supervision and Administration Commission ("SASAC") of the State Council has recently issued the Circular on Matters Concerning Strengthening Management of Capital Contributions by Central Enterprises (the "Circular").
《通知》要求各中央企业规范参股投资，坚持聚焦主业，严控非主业投资，不得为规避主业监管要求，通过参股等方式开展央企投资项目负面清单规定的商业性房地产等禁止类业务；严格甄选合作对象，合理确定参股方式，不得以约定固定分红等“名为参股合作、实为借贷融资”的“名股实债”方式开展参股合作。同时，就加强参股国有股权管理，《通知》提出，各央企依法履行股东权责，避免“只投不管”；注重参股投资回报，定期对参股的国有权益进行清查，对满5年未分红、长期亏损或非持续经营的参股企业股权，要进行价值评估，属于低效无效的要尽快处置；严格财务监管，不得对参股企业其他股东出资提供垫资。
The Circular urges all central enterprises to regulate their investment to become shareholders of other enterprises, center on their major business, and keep a strict control over business beyond their major business, and forbids them to engage in, by means of capital contributions and otherwise, commercial real property and other business prohibited by the negative list of investment projects by central enterprises, in an attempt to avoid the regulatory requirements for their major business. The Circular also calls on all central enterprises to adopt strict measures in selecting their partners and determine proper means for capital contributions, and prohibits them from seeking partnership by any means under the guise of joint stock cooperation which is offering debts in essence, such as reaching agreement on fixed-amount returns. Meanwhile, in order to implement stricter management of state-owned equities obtained through capital contributions, the Circular requires that all central enterprises shall exercise and fulfill the shareholders' rights and responsibilities in accordance with law, to avoid simply making investment without further engagement; pay attention to returns on investment they have made, regularly check the state-owned equities obtained through capital contributions, assess the value of the equities obtained from the invested enterprises that have not distributed dividends for five years, have suffered losses for a long term or are not going-concerns, and dispose of, as soon as possible, those equities that yield few or no results; and tighten financial supervision to prevent advance payments for the capital payable by other shareholders of the invested enterprises.
背景摘要：日前，商务部办公厅发布《关于进一步优化涉外经济技术展行政服务事项的通知》（下称《通知》）。
Background Information：The General Office of the Ministry of Commerce ("MOFCOM") has recently issued the Circular on Matters Concerning Further Improvement in Administrative Services for Foreign-related Economic and Technological Exhibitions (the "Circular").
根据《通知》，对于已在商务部审批或备案通过且尚未举办的涉外经济技术展览会，因受疫情影响已确定取消或推迟的，展会申办单位可结合各地疫情防控和展会实际，通过商务部统一平台“展览业管理信息应用”以在线报备形式取消办展或调整办展时间，不再限定办理形式和时限要求。同时，《通知》规定，即日起商务部实施的两种涉外经济技术展（首次举办冠名“中国”等字样和外国机构参与主办）行政许可事项全面推行“不见面”无纸化审批，不再受理线下纸质材料，展会申办事项通过商务部统一平台“展览业管理信息应用”实行全程在线办理，各地商务主管部门对所在地举办的展会项目审核意见通过在线方式办理，不再出具书面审核意见。
According to the Circular, for a foreign-related economic and technological exhibition that has been approved by or filed for record with the MOFCOM but has not been held yet, a decision has been made to cancel or postpone it due to the impact of the ongoing epidemic, the exhibition organizer may, according to the local situation of epidemic prevention and control and the exhibition's specific conditions, declare the cancellation of the exhibition or the adjustment to the exhibition time online through the MOFCOM's platform "Exhibition Industry Management Information Application", and the the forms of business handling and time limits will not be restricted. Meanwhile, the Circular states that immediately from the date of issuance of this Circular, "non-face-to-face" paperless examination and approval will be fully applied to administrative licensing matters concerning two types of foreign-related economic and technological exhibitions required by the MOFCOM (i.e. first-time exhibitions named with the term "China" and other similar terms and others in which foreign institutions are among the organizers), adding that paper documents will no longer be accepted in brick-and-mortar service halls and matters regarding the organization of exhibitions will be all handled online through the MOFCOM's platform "Exhibition Industry Management Information Application", and that commerce authorities in all regions shall issue online the examination opinions on the exhibitions proposed in local regions, instead of issuing examination opinions in writing.
Courts Required to Review Online Applications for Case Filing within Seven Days Upon Receipt
背景摘要：日前，最高人民法院发布《关于新冠肺炎疫情防控期间加强和规范在线诉讼工作的通知》（下称《通知》）。
Background Information：The Supreme People's Court ("SPC") has recently issued the Circular on Strengthening and Regulating Work on Online Litigation during the Period of Prevention and Control of the Novel Coronavirus Pneumonia (COVID-19) Epidemic (the "Circular").
《通知》主要明确了在线诉讼有关规则：一是规范在线身份认证，实现“人、案、账号”匹配一致。二是规范网上立案，要求法院应当在收到在线立案申请后七日内进行审核，对符合法律规定的，及时登记立案。三是大力促进在线调解，加大疫情防控期间矛盾纠纷化解力度。四是规范诉讼材料提交，当事人通过电子化方式提交诉讼材料的，经法院审核通过后，可以不再提交纸质原件。五是规范在线庭审，明确不适用在线庭审情形。六是规范在线裁判，允许具备相应条件的法官远程查阅电子卷宗、合议案件等。七是加大电子送达适用力度，明确电子送达的适用条件、送达方式和生效标准。八是加强在线诉讼服务等。
The Circular mainly provides clarity on the rules for online litigation. The first is regulating online identity authentication to ensure the right connection between "parties concerned, cases and account numbers". The second is standardizing the online processes to put cases on file. Courts are required to examine the online applications for putting cases on file within seven days upon receipt, and put the cases on file in a timely manner if the statutory requirements are fulfilled. The third is vigorously promoting online mediation. Efforts should be ramped up to resolve contradictions and conflicts during the COVID-19 outbreak. The fourth is standardizing the submission of litigation materials. The party concerned does not have to submit paper materials after the litigation materials it has submitted in an electronic way are examined and accepted by the court. The fifth is regulating online court trials and clearly specifying the circumstances in which online court trials are inappropriate. The sixth is regulating online adjudication. Courts will be allowed to inspect the electronic case files and collectively discuss cases in a remote manner, if conditions permit. The seventh is further promoting the application of electronic service of documents, and clarifying the conditions in which electronic service applies, the forms of electronic service, and the effectiveness standard. And the eighth is improving services for online litigation.
背景摘要：日前，商务部办公厅发布《关于积极应对新冠肺炎疫情加强外资企业服务和招商引资工作的通知》（下称《通知》）。
Background Information：The General Office of the Ministry of Commerce ("MOFCOM") has recently issued the Circular on Improving Services for Foreign-invested Enterprises and Strengthening the Attraction of Investment to Actively Respond to the Novel Coronavirus Pneumonia (the "Circular").
《通知》要求：一是积极帮助外资企业有序恢复正常生产经营。二是加强外资大项目服务保障。三是创新和优化招商引资方式。四是因地制宜精准帮扶。五是持续优化营商环境。其中，根据《通知》，在做好防控工作的前提下，按照当地政府统一安排，协助做好复工前各项准备工作，大力支持外资企业有序复工复产。对于生产医用防护服、口罩、护目镜等防护用品类外资企业，要按照统一部署特事特办，迅速组织复工达产、全力满足需求。积极协助企业采购必要防护物资；指导企业结合实际情况，编制疫情应对工作方案，严格做好各项内部防控工作。另外，协调帮助解决外资企业复产存在的困难，妥善处理外资企业投诉等。
The Circular calls for efforts to: 1. actively assist foreign-invested enterprises in resuming normal production and operations in an orderly manner; 2. better ensure services for major foreign investment projects; 3. innovate and optimize the ways to attract and introduce investment; 4. provide targeted assistance according to actual situations; and 5. constantly improve business climate. According to the Circular, on the premise of ensuring effective epidemic prevention and control, and according to the unified arrangements made by local governments, commerce departments shall assist with various preparations for resumption of work and provide foreign-invested enterprises with strong support for their imminent resumption of work in an orderly manner. Foreign-invested enterprises engaged in production of medical protective clothing, respirators, goggles and other protective supplies shall be arranged for, under unified arrangements for urgent circumstances, to resume production as quickly as possible at full capacity to meet the demands. Commerce departments shall also assist enterprises in purchasing necessary protective supplies, provide them with guidance on preparing work plans in response to the epidemic and ensuring the full implementation of various internal prevention and control measures, according to their own actual situation. Furthermore, commerce departments shall coordinate the resolution of difficulties faced by foreign-invested enterprises in resuming production, and properly deal with complaints lodged by foreign-invested enterprises.
【官方政策解读 Policy Interpretation】
中国银保监会 商务部 国家外汇管理局 关于完善外贸金融服务的指导意见
为引导银行保险机构在依法合规、风险可控、商业可持续的前提下，进一步加强和改进外贸金融服务，补齐服务短板，提升服务质效，现提出以下意见。
The following opinions are hereby given in order to guide banking and insurance institutions to further strengthen and improve financial services for foreign trade , make up for service weakness, and improve service quality and efficiency under the premise of compliance with laws and regulations, controllable risks and commercial sustainability.
一、总体要求
I. General requirements
（一）增强服务意识。银行保险机构应充分认识稳外贸对服务供给侧结构性改革、落实“一带一路”倡议、实现我国与重点国家和地区双边贸易平衡增长的重要作用，深化改革、优化结构、回归本源、专注主业，将支持外贸发展作为服务实体经济的重要着力点，加强对有订单、有市场、有信用企业的金融支持。
(1) Enhance service awareness. Banking and insurance institutions should fully understand the important role of stabilizing foreign trade in serving the supply-side structural reform, implementing the "One Belt, One Road" initiative and realizing the balanced growth of bilateral trade between China and key countries and regions, deepen the reform, optimize the structure, keep in mind the original motives, and focus on main business, take supporting foreign trade as an important part for serving the real economy, and strengthen financial support for enterprises which have orders, vast markets and high credibility.
（二）突出服务重点。银行保险机构应认真贯彻落实国家外贸发展政策，继续做好大宗商品、机电设备、劳动密集型产品、加工贸易等传统优势领域金融服务，持续加大对服务贸易、跨境电子商务、制造业转型升级和梯度转移、国际产能和装备制造合作、国际营销和售后服务体系建设、企业产业链全球布局、外贸品牌建设、中欧班列发展和铁路运单（提单）应用、通关便利化、市场采购贸易方式、国家进口贸易促进创新示范区建设等新业态、新领域的服务力度，培育外贸竞争新优势。
(2) Highlight key points of services. Banking and insurance institutions should fully implement national foreign trade development policies, continue to provide satisfying financial services for bulk commodities, electromechanical equipment, labor-intensive products, processing trade and other traditional fields with advantages, continuously intensify efforts in trade in services, cross-border e-commerce, transformation and upgrading and gradient transfer of manufacturing industry, international cooperation in production capacity and equipment manufacturing, development of international marketing and after-sales service system, global layout of enterprise industrial chains, development of foreign trade brands, development of China-Europe trains and application of railway waybills (bills of lading), customs facilitation, market procurement trade methods, development of national import trade promotion and innovation demonstration zones and other new business types and new fields, and cultivate new advantages in foreign trade competition.
（三）加强风险管理。银行保险机构应根据各类外贸金融业务特点，有效识别风险点，始终将贸易背景审核作为外贸金融业务风险管理的基础，从源头做好风险防范，有针对性地加强风险管理。
(3) Strengthen risk management. Bank and insurance institutions should, in light of the characteristics of various financial services for foreign trade, effectively identify risk points, always take the trade background review as the basis for the risk management of financial services for foreign trade, properly conduct risk prevention from the source, and strengthen targeted risk management.
二、完善产品和服务
II. Improving products and services
（四）完善金融综合服务。鼓励银行保险机构紧跟外贸发展趋势，结合宏观经济环境变化、结算方式变化、贸易流程特点、应收账款可控程度、市场需求和自身展业能力，合理利用境内外市场资源，积极开展外贸金融服务，提供支付结算、融资融信、财务规划、风险管理、关税保证保险、出口信用保险等外贸金融产品服务和外贸金融整体解决方案。鼓励银行推动内外贸、本外币、境内外业务融合发展，满足外贸企业国内生产组织需求。
(4) Improve comprehensive financial services. Banking and insurance institutions are encouraged to closely follow the development trend of foreign trade and, in light of changes in macroeconomic environment, changes in settlement methods, characteristics of trade processes, the controllability of accounts receivable, market demands and their business development capabilities, reasonably make use of domestic and overseas market resources, actively carry out financial services for foreign trade and provide financial product services such as payment and settlement, financing and credit financing, financial planning, risk management, tariff guarantee insurance and export credit insurance as well as overall finance solutions for foreign trade. Banks are also encouraged to promote the integrated development of domestic and foreign trade, domestic and foreign currencies and domestic and foreign businesses to meet the demands of the domestic production organizations of foreign trade enterprises.
（五）创新应收账款融资。鼓励银行在审慎评估应收账款真实性和稳定性、有效把控应收账款常态余额水平的前提下，开展外贸应收账款融资及相关业务创新，实现授信、放款、还款的灵活安排，适应外贸“单多量小、周转较快”的特点。鼓励银行在有效把控出口退税账户变更情况等基础上开展出口退税账户相关融资，未退税款可视同企业应收账款一并进行质押融资。鼓励银行在有效把控供应链信息流、物流、资金流和完善交易结构的基础上，围绕核心企业开展面向上下游的境内外供应链金融服务。
(5) Innovate accounts receivable financing. Banks are encouraged to, on the premise of prudently evaluating the authenticity and stability of accounts receivable and effectively controlling the level of normal balance of accounts receivable, carry out foreign trade accounts receivable financing and related business innovation, achieve flexible arrangements for credit granting, lending and repayment, and adapt to such characteristics of foreign trade as "small amount for single transaction and rapid turnover". Banks are also encouraged to provide financing with respect to export rebate accounts on the basis of effectively controlling the changes to such accounts, and the unrefunded tax may be pledged for financing together with the enterprise's accounts receivable. Meanwhile, banks are encouraged to offer financial services for upstream and downstream domestic and overseas supply chains oriented to key enterprises, on the basis of effectively controlling information, logistics and capital flows in supply chains and improved transaction structure.
（六）积极开展保单融资。鼓励银行结合企业需求和自身风险管理要求，积极扩大出口信用保险保单融资规模。开展其他外贸金融服务时，银行可结合企业持有的出口信用保险保单综合考虑授信风险。鼓励银保双方深化互信合作、信息共享、系统对接，围绕更好发挥出口信用保险风险缓释作用和融资功能开展产品服务创新。
(6) Actively carry out insurance policy financing. Banks are encouraged to actively expand the scale of export credit insurance policy financing in light of the needs of enterprises and their own risk management requirements. When providing other financial services for foreign trade, banks may take credit risks into comprehensive consideration based on the export credit insurance policies held by the enterprises. Meanwhile, banks and insurance companies are encouraged to deepen mutual trust and cooperation, information sharing and system connection, and conduct product and service innovation for better giving play to the risk mitigation role and financing function of export credit insurance.
（七）创新服务贸易融资。鼓励银行保险机构充分把握服务贸易企业“轻资产”特点，积极借鉴国际经验，在真实性审核的基础上，提供服务贸易金融产品服务，持续加大对旅游、运输、建筑等传统服务贸易和通信、计算机与信息服务、咨询、研发设计、知识产权、节能、检验检测认证、环境、会展、文化创意、数字出版、动漫游戏等新兴服务贸易的支持力度。
(7) Make innovations on financing for trade in service. Banking and insurance institutions are encouraged to fully comprehend the "asset-light" feature of service trade enterprises, actively learn from international experience, and provide financial products and services in the service trade sector on the basis of authenticity review. More supports should be continuously given to traditional services such as tourism, transportation and construction and in emerging services such as communications, computer and information services, consulting, research and development design, intellectual property rights, energy conservation, inspection and testing certification, environment, exhibition, cultural creativity, digital publishing, animation and games.
（八）积极开展小微外贸企业金融服务。鼓励银行保险机构搭建并充分利用线上线下渠道深入了解小微外贸企业金融需求和生产经营信息，开发特色产品服务。鼓励银行保险机构对接经营规范、信誉良好的外贸综合服务平台，借助其增信功能和在企业生产、交易、通关、退税等方面的信息优势，为更多小微外贸企业提供金融服务。积极做好符合信贷条件的小微外贸企业续贷工作，确保不发生不合理的抽贷、断贷。
(8) Positively provide financial services for small and micro foreign trade enterprises. Banking and insurance institutions are encouraged to set up and make full use of online and onsite channels to deeply understand the financial demands and production and operation information of small and micro foreign trade enterprises, and develop featured products and services. They are also encouraged to connect with comprehensive foreign trade service platforms with standardized operations and good reputation to provide financial services for more small and micro foreign trade enterprises taking advantage of their credit enhancement functions and their information in respect of enterprise production, trading, customs clearance and tax rebate. In addition, we should actively grant the loan renewal for qualified small and micro foreign trade enterprises, and ensure that there is no unreasonable recovery of loans or suspension of loans.
（九）提供多样化风险对冲产品。鼓励符合条件的银行深入了解客户需求，提升做市商能力，创新风险对冲产品和服务，在依法合规的前提下通过人民币外汇即期和衍生品、跨境人民币结算、利率衍生品、大宗商品衍生品等助力外贸企业管理市场风险。
(9) Provide a variety of risk hedge products. Qualified banks are encouraged to deeply understand clients' demands, enhance the capacity of market makers, innovate products and services for risk hedging, and on the premise of compliance with laws and regulations, assist foreign-trade enterprises to manage market risks through RMB foreign exchange spot and derivatives, cross-border RMB settlement, interest rate derivatives and bulk commodity derivatives.
（十）规范发展外贸金融资产交易。鼓励银行在依法合规、风险可控的前提下开展外贸金融资产转让，释放出的信贷规模应优先用于支持外贸发展。
(10) Regulate the development of foreign trade financial asset trading. Banks are encouraged to carry out the transfer of foreign trade financial assets on the premise of compliance with laws and regulations and controllable risks, and the remaining credit should first be used to support the development of foreign trade.
三、加强贸易背景审核
III. Strengthen trade background review
（十一）深刻把握贸易背景审核实质。银行应充分认识外贸金融业务的自偿性特征和贸易背景审核对实现自偿性的重要保障作用，始终将贸易背景审核作为外贸金融业务风险管理的基础，将贸易回款作为贸易融资业务的第一还款来源。
(11) Thoroughly understand the essence of trade background review. Banks should be fully aware of the characteristic of self-compensation of foreign trade finance and the important role of trade background review in ensuring the realization of self-compensation, always take trade background review as the foundation for risk management of financial services for foreign trade , and take payments collected in trade as the first source of repayment for trade financing business.
（十二）前移贸易背景审核关口。银行应在客户准入阶段通过本行境外机构、合作行及其境外机构、其他境内外非银合作机构等尽可能了解企业贸易记录、买卖双方履约记录等情况，事先对企业资质进行分析判断，为确认企业当前贸易逻辑合理性、贸易内容真实性等提供依据。
(12) Review trade background review in advance. During the access period for clients, a bank should learn the trade records, and duty performance records of both buyers and sellers through its overseas institutions, cooperative banks and their overseas institutions, and other domestic and overseas non-banking cooperative institutions, and analyze and judge the enterprise qualification in advance, which will serve as a basis for confirming the logic reasonableness of current trade and the authenticity of trade particulars.
（十三）加强票据单证信息核对。银行应充分利用海关、税务、外汇、动产登记等平台对贸易相关票据单证真实性和有效性进行确认。对于提单、仓单、铁路运单（提单），银行可通过国际海事局、信誉资质较好的船运公司、仓储公司、铁路公司等对相关信息进行核验。自贸试验区内依法设立的交易所出具的合格交易凭证，可作为贸易真实性审核依据。鼓励银行结合自身实际，建立集约化贸易单证审核体系，定期对审单质量进行检查，对关键单证信息在全行范围内进行共享和校验。
(13) Strengthen the verification of document information. Banks should make full use of Customs, tax, foreign exchange, and movables registration platforms to confirm the veracityand validity of the relevant trade-related documentation. Banks may verify the relevant information in respect of bills of lading, warehouse receipts and railway waybills (bills of lading) through the International Maritime Safety Administration, the shipping companies, warehousing companies and railway companies with good credit standing and qualifications. The eligible transaction vouchers issued by exchanges duly established in pilot zones may be used as the basis for trade authenticity review. Banks are encouraged to establish an intensive system for the review of trade documents in light of their actual conditions, check the quality of such documents on a regular basis, and share and verify the information on key documents across the whole bank.
四、提升风险管理水平
IV. Improve Risk Management
（十四）加强全面风险管理。银行保险机构应加强外贸金融业务的全面风险管理，将风险管理有机融入贷前、贷中、贷后等各个环节，有针对性地加强信用风险、市场风险、操作风险、国别风险、合规风险管理。
(14) Reinforce comprehensive risk management. Bank and insurance institutions should strengthen the comprehensive risk management of financial services for foreign trade, organically integrate risk management into various steps such as pre-lending, interim-lending, post-lending, and strengthen targeted management of credit risk, market risk, operational risk, country risk and compliance risk.
（十五）科学评估和缓释小微外贸企业风险。鼓励银行建立适合小微外贸企业的尽职调查方式，综合考虑小微外贸企业生产经营信息及其贸易逻辑合理性，科学审慎评估小微外贸企业资信状况。鼓励银行在完备的尽职调查基础上，通过出口信用保险、融资担保、风险补偿基金等方式缓释风险，适度降低传统抵质押手段比重。
(15) Scientifically assess and mitigate risks of small and micro foreign trade enterprises. Banks are encouraged to adopt due diligence method suitable for small and micro foreign trade enterprises, take into account the production and operation information of small and micro foreign trade enterprises and the rationality of their trade logic, and scientifically and prudently assess the credit status of small and micro foreign trade enterprises. Based on complete due diligence investigations, banks are encouraged to mitigate risks through export credit insurance, financing guarantee and risk compensation funds, and appropriately reduce the proportion of traditional forms of mortgage or pledge.
（十六）加强保单融资风险管理。鼓励保险公司发挥在资信调查、国别风险研究等方面的优势，积极向银行提供客户贸易背景和违约相关信息。保险公司应合理设定并向银行充分说明出口信用保险保单除外责任，清晰界定各方责任，及时履行赔付责任。银行应根据保单信用限额、最高赔偿金额、索赔期限、适保范围及除外责任等合理评估保单风险缓释效力，不应为减少资本占用或因享有赔款权益而不合理地降低客户准入标准和贸易背景审核标准。鼓励银行开展基于出口信用保险的银担合作并做好担保机构名单制管理。
(16) Strengthen the risk management of insurance policy financing. Insurance companies are encouraged to give full play to their advantages in credit investigation and country risk research, and actively provide trade background of clients and information related to defaults to banks. An insurance company should reasonably set up and fully explain to the bank the exclusions in the export credit insurance policies, clearly define the responsibilities of all parties concerned, and timely fulfill its responsibilities of compensation. Banks should reasonably assess the effectiveness of policy risk mitigation in terms of policy credit limits, maximum compensation amounts, claim periods, insurance-worthiness scopes and exclusions, and should not unreasonably lower customer access standards and trade background review standards for the purpose of reducing capital occupancy or entitling to compensation rights and interests. Banks are encouraged to cooperate with guarantee institutions based on export credit insurance and properly manage the list of guarantee institutions.
（十七）完善风险分担机制。鼓励银行通过银团贷款、出口信用保险、融资担保等方式分散外贸金融业务风险。银行应切实履行自身在风险管理中的义务，不可因采取风险分担措施而放松管理。
(17) Improve the risk sharing mechanism. Banks are encouraged to disperse the risks of foreign trade financing through syndicated loans, export credit insurance and financing guarantee A bank should fully fulfill its obligations in risk management, and should not relax management just because of adopted risk sharing measures.
五、强化内部管理
V. Strengthen Internal Management
（十八）明确定位目标。银行保险机构应根据业务专长、客户结构、风险偏好等确定外贸金融业务在自身发展中的地位和作用，完善相应战略规划。鼓励有条件的银行将外贸金融业务打造为拓展客户、改善收入结构、提升国际化水平、推动经营转型的重要支撑。
(18) Specify positioning and objectives. Banking and insurance institutions should determine the position and role of financial services for foreign trade in their own development in light of their business expertise, customer structure and risk preference, and improve the corresponding strategic planning. Qualified banks are encouraged to take financing service for foreign trade into an important support for expanding client base, improving revenue structure, enhancing internationalization, and promoting the operational transformation.
（十九）加强内部协同。鼓励银行加强前中后台部门间业务配合和人员交流，形成推进外贸金融业务发展的合力。中后台部门应加强对前台业务的了解，对前台部门在资金分配和定价、授信审批、风险管理、人员配置等方面的合理诉求给予支持。前台部门应主动将中后台部门在合规和风险管理等方面的要求融入日常业务操作。
(19) Strengthen internal collaboration. Banks are encouraged to strengthen the professional cooperation and personnel exchange among departments of the front, middle and back ends to form a joint force to promote financial services for foreign trade. Middle-end and back- end departments should better understand front-end business, and support the reasonable demands of front-end departments with respect to fund allocation and pricing, credit approval, risk management and staffing. Front-end departments should take the initiative to incorporate the requirements of mid-end and back-end departments for compliance and risk management into their routine operations.
（二十）完善绩效考核。进行绩效考核时，银行应充分考虑外贸金融业务专业性强、流程复杂、周期短、资本占用少等特点，合理设定考核指标，着重突出激励导向。
(20) Improve performance evaluation. When carrying out the performance evaluation, a bank should take into full account the characteristics of foreign trade finance, such as high standard of professionalism, complicated procedures, short cycle and low capital occupancy, reasonably set performance indicators with emphasis on incentives orientation.
（二十一）落实尽职免责要求。银行保险机构应建立健全外贸金融业务的尽职免责和容错纠错机制，重点明确对分支机构和基层人员的尽职免责认定标准和免责条件，设立内部问责申诉通道。对已尽职但出现风险的外贸金融业务，可免除相关人员全部或部分责任。对企业虚构贸易骗取融资或恶意投保，支持银行保险机构通过司法渠道依法进行追偿。
(21) Implement due diligence and liability exemption requirements. Banking and insurance institutions should establish and improve the due diligence and liability exemption mechanism, and the fault tolerance and correction mechanism for financing services for foreign trade, with emphasis on specifying the standards and conditions for determining due diligence and liability exemption for branches and grass-roots personnel, and set up internal accountability appeal channels. For financial services for foreign trade from which risks arise although the duties have been fully performed, the relevant personnel may be exempted from liability in whole or in part. Banking and insurance institutions are supported in legally recovering losses from enterprises that obtain financing by fraudulent means of fictitious trade or malicious insurance coverage through judicial channels.
（二十二）实施差异化管理。对管理水平较高、业务需求较为突出的分支机构，银行可在风险可控的前提下适度扩大授权，单设信贷规模，单独匹配风险资产，推动外贸金融业务发展。
(22) Conduct differentiated management. For branches with higher management efficiency and prominent business needs, a bank may, under the prerequisite of controllable risks, expand their authority appropriately, set up separate credit limits, and match risk assets separately to promote financial services for foreign trade.
（二十三）完善内部管理体制。鼓励银行保险机构结合发展需要进行外贸金融管理体制改革，加大资源倾斜力度，营造良好发展环境。支持有条件的银行设立专业部门、地区专业分支机构，进一步提升专业化水平。
(23) Improve the internal management system. Banking and insurance institutions are encouraged to reform their foreign trade and financial management system in light of their development needs, increase their support to resources, and create a favorable environment for development. Qualified banks are supported in setting up specialized departments and regional specialized branches to further enhance the level of specialization.
（二十四）完善跨境服务网络。鼓励符合条件的银行保险机构重点在成熟市场、潜力较大的新兴市场、“一带一路”沿线完善服务网络，加强内外联动。鼓励银行保险机构加强同境外同业机构合作，提升跨境服务能力。鼓励保险机构加快建设和完善海外承保、理赔、救援等境外服务网络。
(24) Improve cross-border service networks. Qualified banking and insurance institutions are encouraged to improve their service networks mainly in mature markets, emerging markets with great potential and along the Belt and Road, and strengthen internal and external linkage. Banking and insurance institutions are encouraged to strengthen cooperation with their overseas counterparts to improve cross-border services; and insurance institutions are encouraged to accelerate the establishment and improvement of overseas service networks of overseas underwriting, settlement of claims rescue and so on.
（二十五）加强信息技术应用。鼓励银行保险机构进一步加强业务系统建设，通过银企直连、银保直连，实现贸易信息快速交换和线上贸易背景审核。鼓励银行保险机构整合线上线下服务资源，为客户提供更多在线自助办理业务的通道，提升服务效率。鼓励银行保险机构加强外贸金融业务数据积累与分析，为风险识别、计量、监测、管控及业务资源配置提供必要支撑。鼓励银行保险机构积极探索大数据、区块链、生物识别、人工智能等现代信息技术在外贸金融业务中的应用。
(25) Strengthen the application of information technology. Banking and insurance institutions are encouraged to further strengthen the development of business systems, and achieve the rapid exchange of trade information and review of online trade background through direct connection between banks and enterprises and direct connection between banks and insurance companies. Banking and insurance institutions are encouraged to integrate online and offline service resources and provide customers with more channels to handle business online and self-service to improve service efficiency. Banking and insurance institutions are encouraged to strengthen the accumulation and analysis of data on financial services for foreign trade to provide necessary support for risk identification, measurement, monitoring, control and business resource allocation. Banking and insurance institutions are also encouraged to actively explore the application of modern information technologies such as big data, block chain, biological identification and artificial intelligence in financial services for foreign trade.
（二十六）加强团队建设。银行保险机构应根据外贸金融业务发展需要配足专业人员。鼓励银行保险机构大力培养熟悉贸易规则、产品设计、风险管理等的复合型外贸金融人才，做好人力储备。
(26) Strengthen team building. Banking and insurance institutions should staff sufficient professionals according to the development needs of foreign trade and financial business. Banking and insurance institutions are encouraged to vigorously cultivate compound foreign trade financial talents familiar with trade rules, product design and risk management, and effectively reserve human resources.
六、加强组织保障
VI. Strengthen Coordination and Support
（二十七）提升监管服务水平。根据外贸金融业务实际发展需求，监管部门应不断完善管理，在有效管控风险的同时，支持银行保险机构业务发展。在制定审慎监管规则、开展监管工作时，监管部门应适应单证影印件、电子合同、电子订单、电子发票等电子数据运用的趋势，允许银行保险机构以真实、合规的电子数据代替相应的纸质文本，并对其外贸金融领域业务创新诉求及时予以回应。
(27) Improve regulatory services. According to the actual development needs of foreign trade financial business, regulatory authorities should constantly improve management to support the business development of banking and insurance institutions while effectively control risks. When formulating prudential supervision rules and carrying out supervision work, the regulatory authorities should follow the trends of using electronic data such as photocopies of documents, electronic contracts, electronic orders and electronic invoices, allow banking and insurance institutions to replace the corresponding paper texts with authentic and compliant electronic data, and timely respond to their demands for business innovation in foreign trade and finance.
（二十八）加强信息平台建设。积极推进国际贸易“单一窗口”建设，统一地区间“单一窗口”建设标准并实现互联互通，推动海关、税务、边检、外汇等信息向“单一窗口”集中并为银行保险机构提供查询接口，允许银行保险机构在经客户授权后查询相关信息。
(28) Strengthen the development of information platform. We should actively promote the development of "single window" for international trade, unify the standards for development of "single window" in different regions and achieve interconnection, promote such information as customs, taxation, frontier inspection and foreign exchange to gather at the "single window" and provide inquiry interface for banking and insurance institutions and allow banking and insurance institutions to inquire relevant information upon the authorization of clients.(
（二十九）发挥自律组织作用。银行业和保险业自律组织应加强调研，深入了解银行保险机构外贸金融业务诉求，在推动完善法律法规、规范展业标准、运用金融科技建设贸易金融信息平台等方面发挥积极作用。
(29) Let self-regulatory organizations play their roles. Banking and self-discipline organizations in the insurance industry should strengthen investigation and research, get an in-depth understanding of the demands of banking and insurance institutions in financial services for foreign trade, and play an active role in promoting the improvement of laws and regulations, regulating business development standards, and using financial technologies in developing trade financial information platform
其他保险公司和其他非银行金融机构开展外贸金融业务时可参照执行。
Other insurance companies and other non-banking financial institutions may refer to these Measures when providing financial services for foreign trade.
【经典案例 Representative Case】
UCP600下信用证通知行表面审核义务的司法裁量原则
——甲公司诉乙银行信用证纠纷案
——a case of Company A v. Bank B on letters of credit disputes
根据《跟单信用证统一惯例》（UCP600），通知行仍负有审核信用证表面真实性的义务，其确认表面真实性应基于合理理由。以密押SWIFT电文(环球同业银行金融电讯协会的电文系统)向开证行求证属于合理有效的审核方式。SWIFT电文内容有歧义时，应当根据电文发送背景和目的判断通知行的理解是否合理。交单行、议付行对同一电文内容的理解可用于横向比较通知行的理解是否合理。
According to the Uniform Customs and Practice for Documentary Credits (UCP600), advising banks have the obligation to examine the apparent authenticity of credits, and their confirmation of such authenticity should be based on reasonable grounds. A reasonable and valid way to examine such authenticity is to check with issuing banks through encrypted SWIFT messages (SWIFT being the message system of the Society for Worldwide Interbank Financial Telecommunication). If a SWIFT message contains any ambiguous content, the context and purpose of sending the message should be considered to determine whether an advising bank’s understanding is reasonable or not, and the understanding of a presenting bank or a negotiating bank may also be referred for such determination.
乙银行（通知行）向受益人甲公司通知了一份由美国某银行（开证行）开立的不可撤销跟单信用证。甲公司与乙银行先后收到邮件寄送的修改件，为核实修改件的真实性，乙银行向开证行发送SWFIT电文进行询问。开证行在回复中确认系争两份信用证（原文用语为“L/C'S”）的真实性，并请通知行尽快通知到受益人。之后，乙银行向甲公司通知了修改件。甲公司根据修改后的信用证办理货物出口运输手续并委托丙银行（交单行）向开证行交单请付。开证行以单证不符为由拒付，并表示未对信用证进行过修改。甲公司出口的货物因信用证遭拒付被滞留目的港，无法办理退运或转港手续，后诉至法院，请求判令乙银行对其货款损失承担赔偿责任。
Bank B (Advising Bank) advised beneficiary Company A of an irrevocable documentary credit opened by an American bank (Issuing Bank). Later, Company A and Bank B successively received an amendment to such credit sent by mail. In order to verify the authenticity of the amendment, Bank B checked with the Issuing Bank by a SWFIT message. The Issuing Bank confirmed the authenticity of the two credits (originally written as “L/C’s”) and requested the Advising Bank to advise the beneficiary as soon as possible. After that, Bank B advised Company A of the amendment. Company A went through the export formalities in accordance with the amended L/C and entrusted Bank C (Presenting Bank) to present the documents to the Issuing Bank for payment. The Issuing Bank, however, refused to pay on the grounds of discrepancies between the presented documents and the credit and said that no amendment had been made to the credit. The goods exported by Company A were, therefore, detained at the destination port and could not be returned or transferred to another port. Company A brought a lawsuit, petitioning for compensation by Bank B for the loss of payment.
上海市第一中级人民法院于2017年9月24日作出（2017）沪01民初227号民事判决：驳回甲公司的诉讼请求。宣判后，甲公司提出上诉。上海市高级人民法院于2018年12月3日作出（2017）沪民终408号民事判决：驳回上诉，维持原判。
On September 24, 2017, the Shanghai No. 1 Intermediate People’s Court (the “Court”) delivered a civil judgment ([2017] Hu 01Min Chu No. 227), rejecting the claims of Company A. Company A lodged an appeal. On December 3, 2018, the Shanghai High People’s Court delivered a civil judgment ([2017] Hu Min Zhong No. 408) to dismiss the appeal and uphold the original judgment.
法院认为：《跟单信用证统一惯例》（UCP600）第九条规定，通知行通知信用证及修改的行为表示其已确信其表面真实性，由此可见，通知行负有审核信用证表面真实性的义务。与前一版本即UCP500相比，UCP600未使用“通知行应合理审慎地审核信用证表面真实性”这一表述，是为避免“合理审慎”这一弹性较大的用语在不同国家和地区产生不同理解，但毫无疑问，通知行“确信信用证表面真实性”仍应基于合理理由。
The Court held that, according to Article 9 of the UCP600, by advising the credit or amendment, the advising bank signifies that it has satisfied itself as to the apparent authenticity of the credit or amendment. This indicates that an advising bank has the obligation to check the apparent authenticity of credits. Compared with the previous version UCP500, the UCP600 abandoned the expression that “the advising bank shall take reasonable care to check the apparent authenticity of the Credit” as the ambiguous phrase “reasonable care” is open to different understanding in different countries and regions; however, there is no doubt that an advising bank shall have reasonable grounds to “satisfy itself as to the apparent authenticity of credits”.
通知行对信用证及修改的审核限于表面真实性，审核方式应符合国际银行实务惯例，以一个理性银行信用证业务人员运用与其专业知识及普通常识能够做到的注意和谨慎为参考，以密押SWIFT电文向开证行求证属于合理有效的审核方式。本案争议的主要内容是SWIFT电文中“L/C'S”的含义，究竟是指信用证还是信用证的修改件。“L/C”是信用证（Letter of Credit）的缩写，但在系争SWIFT电文中，“L/C”有时也指信用证的修改件。另外，“L/C'S”中的“'S”有时表示所属关系，有时表示复数。当SWIFT电文内容有歧义时，应当根据电文发送的背景和目的来判断通知行的理解是否合理。乙银行已将信用证通知甲公司，并明确要求开证行确认信用证修改件的真实性，而开证行回复内容中对信用证有无修改、是否邮寄过信用证修改件均未作出否定表示，而是确认两份“L/C'S”的真实性并请乙银行尽快将两份“L/C'S”通知到受益人。在此情况下，乙银行有理由相信开证行的上述回复电文确认了信用证修改件的真实性。作为交单行的丙银行对上述电文作出了与乙银行相同的理解，可以横向比较乙银行在审核信用证修改件时不存在重大过错。综上，乙银行确认系争信用证修改件的表面真实性具有合理的理由，其向甲公司通知该修改件并无不当。
The examination by an advising bank on credits and amendments is simply limited to their apparent authenticity, and should be done in a manner consistent with the international banking practice. An examination can be considered reasonable and valid as long as it is carried out with the due care and caution that can be expected of a reasonable bank employee in charge of the L/C business with necessary expertise and common sense, and checking with the issuing bank by an encrypted SWIFT message should be recognized as such a reasonable and valid examination. The major issue of this case lays in the meaning of “L/C’s” in the disputed SWIFT messages – whether it refers to the original letter of credit or the amendment thereto. In the context of the disputed SWIFT messages, “L/C”, as an abbreviation for letter of credit, sometimes also refers to the amendment to the letter of credit. In addition, the “’s” of “L/C’s” sometimes denotes the possessive case of L/C and sometimes the plural form thereof. When a SWIFT message contains any ambiguous content, the context and purpose of sending the message should be considered to determine whether the advising bank’s understanding is reasonable or not. Bank B advised Company A of the credit and explicitly requested the Issuing Bank to confirm the authenticity of the amendment to the credit, while the Issuing Bank did not give a negative reply to whether the credit was amended or whether the amendment was mailed; instead, it confirmed the authenticity of the two “L/C’s” and requested Bank B to advise the beneficiary of the two “L/C’s” as soon as possible. In light of such facts, Bank B had reasons to believe that the reply of the Issuing Bank confirmed the authenticity of the amendment to the credit. Bank C, as the Presenting Bank, interpreted the above message in the same way as Bank B. The similar understanding of the two banks also indicates that Bank B is free of material fault in examining the apparent authenticity of the amendment to the credit. To sum up, Bank B had reasonable grounds to confirm the apparent authenticity of the amendment, and it’s reasonable for Bank B to advise Company A of the amendment.
随着一带一路倡议持续推进以及我国对外开放步伐不断加快，作为跨境交易支付重要手段的国际信用证业务，将伴随跨境交易规模的扩大而增多。相较UCP500而言，UCP600就信用证通知不再使用“合理审慎”的表述，在实践中引发了“通知行是否仍需审核以及如何审核信用证表面真实性”的争论，本案即为其中的典型代表。由于UCP600要求通知行“确信表面真实性”基于合理理由，因此其仍负有相应的审核义务，审核的方式应当符合行业惯例，同时尽到“一个理性银行信用证业务人员运用与其专业知识及普通常识能够做到的注意和谨慎”。SWIFT电文系统是国际银行间数据交换的标准语言，也是电开信用证的最主要方式，因此以加密SWIFT电文求证信用证的真实性属于合理的审核方式。电文传输常使用省略语，难免会发生歧义，此时需以通知行视角为出发点，结合发文目的和背景作合理解释。同一信用证业务中的其他银行对同一电文的理解，可以横向比较通知行的理解是否合理。本案裁判所阐释的司法裁量原则，回应了信用证实务中关于通知行审核义务的争论，为通知行规范审核行为提供了有益借鉴，为国际信用证业务的健康发展提供了良好的司法保障。
As the Belt and Road Initiative unfolds and China constantly picks up its pace of opening up, the international L/C business, as an important means of payment for cross-border trade, is expected to see a growth in its volume along with the expansion in the scale of cross-border trade. Compared with the UCP500, the UCP600 abandoned the expression of “reasonable care”, which in practice has led to the dispute as to “whether advising banks are still obligated to check, and if yes, how to check the apparent authenticity of credits”. This case is a model case. As the UCP600 requires an advising bank to “satisfy itself as to the apparent authenticity” on reasonable grounds, they are still obliged to check such apparent authenticity, in a way consistent with the industry practices and with “the due care and caution that can be expected of a reasonable bank employee in charge of the L/C business with necessary expertise and common sense”. The SWIFT message system is adopted as an international standard language by banks to exchange data with each other, and also serves as the main tool to issue credits in an electronic way; therefore, verifying the authenticity of credits by sending encrypted SWIFT messages should be recognized as a reasonable way to examine the apparent authenticity of the credits. Such messages are usually composed of many abbreviations, which often leads to ambiguity. In that case, a reasonable interpretation should be made from the perspective of advising banks in combination with the purpose and background of these messages, and the understanding of the same message by other banks may also be referred to determine whether the understanding of the advising bank is reasonable. The Court in this case, exercised judicial discretion in response to the dispute over the apparent authenticity examination obligation of advising banks, provided a useful guide for the apparent authenticity examination practice by advising banks, thus guarded the sound development of the international credit business.
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All right reserved. If you have any suggestion, please feel free to contact me. Sean Shen, Senior Partner.
