关于A股公司做好补充审计工作的通知
中国证券监督管理委员会
关于A股公司做好补充审计工作的通知
证监发[2001]162号
各拟首次公开发行股票并上市的公司、拟上市后在证券市场再筹资的上市公司：
为了提高已上市和拟发行上市公司财务信息披露质量，保护投资者的合法权益，中国证监会颁布了《公开发行证券的公司信息披露编报规则第16号—A股公司实行补充审计的暂行规定》，要求从2002年1月1日起执行。为了做好相关的工作，现将有关事项通知如下：
一、2002年4月1日起向我会报送材料，申请首次公开发行股票并上市的A股公司，申报材料中最近一个完整会计年度及一期财务报告应进行补充审计。
2002年1月1日至3月31日向我会报送材料，申请首次公开发行股票并上市的A股公司不需进行补充审计。
二、2002年1月1日起向我会报送材料，申请在证券市场再筹资的A股公司，其最近一个完整会计年度的财务报告应进行补充审计，最近一期的财务报告应分别经国内、国际会计师事务所审阅。按中国证监会的有关规定，中期法定财务报告需经国内会计师事务所审计的公司，也需要提供经国际会计师事务所审计的同期补充财务报告。
三、2002年1月1日前已向我会报送材料，申请首次公开发行股票并上市，或在证券市场再筹资的A股公司，不需进行补充审计。
四、本通知自发布之日起施行。
二○○一年十二月三十日
Expansion of Applicable Sphere: A way to Uniformity
——Compare and Contrast between UNIDROIT and UNCITRAL Conventions
By Dongsheng Lu, Chen Yan
I. Introduction
Financing is paramount for the promotion of commerce. It has been noted that “in developed countries the bulk of corporate wealth is locked up in receivables”. As the economy develops, this wealth increasing is “unlocked by transferring receivables across national borders”. With the prompt and great increases in international trade, receivables financing now plays a more and more important role. Yet under the law of many countries, certain forms of receivables financing are still not recognized. Even transactions are involved in countries where the form of receivables financing is permitted, determining which law governs will be difficult. The disparity among laws of different jurisdiction increases uncertainty in transactions, thus constitutes obstacles to the development of assignments of receivables. To remove such obstacles arising from the uncertainty existing in various legal systems and promote the development of receivables financing cross-boarder, a set of uniform rules in this field is required. The international community has made great efforts in adopting uniform laws. Among those efforts, the United Nations Commission on International Trade Law (UNCITRAL) drafted, on 12 December, 2001, “United Nations Convention on the Assignment of Receivables in International Trade” (hereinafter referred to as the “UNCITRAL Convention”), with its aim to “establish principles and to adopt rules relating to the assignment of receivables that would create certainty and transparency and promote the modernization of the law relating to assignments of receivables”. UNCITRAL is not the first international organization attempting to resolve the problems associated with receivables. As early as in May 1988, the International Institute for the Unification of Private Law (UNIDROIT) has already adopted a convention known as the “UNIDROIT Convention on International Factoring” (hereinafter referred to as the “UNIDROIT Convention”).
When compare and contrast between the UNIDROIT Convention and the UNCITRAL Convention, one might see a lot of inconsistency in detailed regulations, e.g. sphere of application, relations between parties, priorities, and choice of law, etc. Given the limited space available in this article, the author may only focus on the difference in “sphere of application” of these two conventions, as sphere of application is perhaps the most fundamental issue of a convention.
The purpose of an international convention is to create uniformity in its covered matter, thus the broader a convention’s sphere of application is, the higher could uniformity reach. This article will try to make compare and contrast the sphere of application between the UNIDROIT Convention and the UNCITRAL Convention, illustrate the differences exist between these two conventions, and demonstrate the expansion of sphere of application in the UNCITRAL Convention and its progress on the way to uniformity.
II. Sphere of Application: Subject Matter
As its title indicates, the subject matter of the UNIDROIT Convention is of course international factoring. Article 1(1) says, “this Convention governs factoring contracts and assignments of receivables as described in this Chapter.”
For “factoring contract”, the UNIDROIT Convention provides the following 4 characteristics:
(1) purpose of the contract is to assign receivables;
(2) receivables to be assigned arises from contracts of sale of goods made between the supplier and its customers (debtors), other than those of sale of goods bought primarily for personal, family or household use;
(3) the factor is to perform at least two of the four functions: (i) finance for the supplier; (ii) maintenance of accounts (ledgering) relating to the receivables; (iii) collection of receivables; and (iv) protection against default in payment by debtors;
(4) notice of the assignment of the receivables is to be given to debtors.
As about “assignments of receivables as described in this Chapter”, article 2 (1) describes assignments of receivables as assignment of receivables pursuant to a factoring contract.
Factoring is just a subset of the receivables financing, and perhaps the oldest and most basic one. Besides factoring, receivables financing still entail the following forms,
(1) Forfeiting, similar to factoring, involves the purchase or discounting of documentary receivables (promissory notes, for example) without recourse to the party from whom the receivables are purchased;
(2) Refinancing, also known as secondary financing, involves the subsequent assignment of receivables. In its basic form, one bank or financier will assign to another bank its interest, with the potential for further assignment;
(3) Securitization, in which both marketable (for example, trade receivables) and non-marketable (consumer credit card receivables) asset cash flows are repackaged by a lender and transferred to a lender-controlled company, which will issue securities, sell and then use the proceeds to purchase the receivables;
(4) Project Finance, in which repayment of loans made by banks or financiers to project contractors for the financing of projects are secured through the future revenues of the project.
The first draft of the UNCITRAL Convention has stated to cover factoring, forfeiting, refinancing, securitization and project finance. Somehow, the working group decides that rather than emphasize the form in which the receivables appear, it would instead concentrate on the way in which the receivables might be transferred (contractual or non-contractual) and the purpose of the transaction (for financing or non-financing purposes). It decides the contractual receivables and assignment made to secure financing and other related services would be covered. The non-contractual receivables such as insurance and tort receivables, deposit bank accounts, or claims arising by operation of law seems are not within the ambits of the UNCITRAL convention.
III. Sphere of Application: Special Requirements
Both of the conventions contain a series of requirements. Only when those requirements are satisfied, could the convention be applied. The higher and stricter the requirements are, the smaller the chance to apply the convention is.
a) Internationality requirement
Both the two conventions indicate their sphere of application is of internationality requirement, but the same word in these two conventions has different legal meaning. The internationality requirement of UNIDROIT Convention is exclusively based upon the parties to the underlying contract, i.e. the contract of sale of goods (the supplier and the debtor) having their place of business in different countries. In other words, where the receivables arise from a contract of sale of goods between a supplier and a debtor whose places of business are in the same State, the UNIDROIT Convention could not apply, no matter the following assignment of receivables is to assignee in the same or different State. Thus leaving the international assignment of domestic receivables untouched. The problem, at its simplest, is twofold: first, inconsistency. For instance, in the case where a bulk assignment is made and where part of the receivables are domestic (supplier and debtor are in the same State) and part are international (supplier and debtor are in different State), if the supplier assigns the receivables to a party which is located in another State, the bulk assignment between the same supplier and the same assignee will be governed by two sets of laws and regulations: the portion of international receivables may be governed by the UNIDROIT Convention while the domestic one will be left to the jurisdiction of certain domestic law.
Secondly, leaving the international assignment of domestic receivables to the jurisdiction of various law systems of different States can make “commercial practice uncertain, time-consuming and expensive”. The assignee of receivables from a foreign State may not know which State’s law governs the transaction, and, if the law of the assignor’s State applies, the assignee’s rights would be subject to the vagaries of that foreign law. This no doubt would greatly impede the development of such transaction.
