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Amended Article

Title：

Regulations Governing the Administration of Credit Rating Agencies  CH

Amended Date： 2015.12.31 
Article Content Content Search Article No. Search Legal Basis Amended Article Legislative History Chinese
Article 3     An agency engaging in the credit rating business shall be approved by the Financial Supervisory Commission (the FSC) and issued a business license before it may commence business operations. The above provisions shall apply to the establishment of a branch office.
    A credit rating agency establishing a branch office abroad shall be approved by the FSC, and shall file a report accompanied with the following documents to the FSC for recordation within one month after completion of establishment:
  1. One photocopy of approval letter for establishment issued by the local government authority in charge.
  2. A register of managerial officers and associated persons.
Article 9      The promoters applying for approval of establishment of a credit rating agency pursuant to the provisions of Article 4 shall submit the application with the following documents together with related documentary proofs to the FSC for approval:
  1. Articles of Incorporation.
  2. Business plan.
  3. List of promoters, specifying the name or company name, address, and capital contribution, and a statement declaring the inapplicability of paragraph 1 of Article 6 of these Regulations.
  4. The minutes from the meeting of promoters;
  5. Other documents that the FSC may require.
    Where an internationally recognized credit rating agency intends to establish a branch office in the Republic of China pursuant to the provisions of Article 5, it shall apply to the FSC for approval, submitting an application form and the following documents together with related documentary proofs:
  1. Articles of Incorporation, or a document equivalent to Articles of Incorporation.
  2. Business plan.
  3. A document proving that the company meets the qualifications of an internationally recognized credit rating agency, as set forth in paragraph 2 of Article 2.
  4. The minutes of the board of directors meeting at which the resolution to establish a branch office in the Republic of China was made.
  5. The names, nationalities, and domiciles of directors and other responsible persons.
  6. The names, nationalities, domiciles or residences, documentation of identity, and the power of attorney of designated agents for litigious and non-litigious matters in the Republic of China.
  7. The power of attorney designating agents for the purpose of applying for establishment of branch offices.
  8. Other documents that the FSC may require.
    The business plan referred to in subparagraph 2 of paragraph 1 and in subparagraph 2 of the preceding paragraph shall specify the following:
  1. The principles of business operation, business development plan, the divisions of internal organization, planning for internal control.
  2. Recruitment and training of personnel, and summary of business floor and the facilities.
  3. A financial projection for the next year.
  4. Other items relevant to business operation.
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Article 10     The incorporation registration of a credit rating agency incorporated pursuant to the provisions of Article 4 shall be completed within six months following approval by the FSC; the applicant shall thereafter file an application and the following documents, together with related documentary proofs, to the FSC for issuance of a business license:
  1. A photocopy of the letter approving incorporation registration.
  2. The corporate bylaws.
  3. A shareholders list and the minutes of shareholders meeting.
  4. A list of directors and supervisor(s) and a written statement declaring the inapplicability of paragraph 1 of Article 6 of these Regulations.
  5. Minutes of the board of directors meeting.
  6. A list of managerial officers and a statement declaring the inapplicability of paragraph 1 of Article 6 of these Regulations and a certification of compliance with paragraph 1 of Article 17 of these Regulations.
  7. A list of associated persons and a statement declaring the inapplicability of paragraph 1 of Article 54 of these Regulations.
  8. Documentary proof that the credit rating agency is equipped with adequate rating expertise and data for the implementation of its business.
  9. Other documents that the FSC may require.
    Where an internationally recognized credit rating agency intends to establish a branch office in the Republic of China pursuant to the provisions of Article 5, it shall duly complete incorporation registration of the branch office within six months following approval by the FSC, and shall thereafter apply to the FSC for issuance of a business license, submitting an application form and the following documents together with related documentary proofs:
  1. A photocopy of the letter approving the branch office's incorporation registration.
  2. Documentary proof that the branch office possesses the amount of working capital required under the provisions of paragraph 1 of Article 5.
  3. The corporate bylaws.
  4. A list of directors and supervisors, and a written statement that none of the items listed under paragraph 1 of Article 6 apply to any of the said persons.
  5. A list of managerial officers, a written statement that none of the items listed under paragraph 1 of Article 6 apply to any of the managerial officers, and documentary proof that all of the managerial officers possess each of the qualifications listed under paragraph 1 of Article 17.
  6. A list of associated persons, and a written statement that none of the items listed under paragraph 1 of Article 54 of the Act apply to any of the associated persons.
  7. Other documents that the FSC may require.
    In the event a credit rating agency fails to apply for a business license within six (6) months after incorporation registration of a company or branch office, the FSC may void its approval. The period prescribed above may be extended, however, should the said credit rating agency apply to the FSC, with just cause, prior to the expiry of the period. Such an extension shall not be for more than six (6) months and may be granted only once.
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Article 10-1      The FSC may deny permission if any of the following circumstances exists with respect to an application for establishment of a credit rating agency or issuance of a business license:
  1. Any of the circumstances of Article 6 exists with respect to any of the promoters, directors, supervisors or managerial officers.
  2. Any of the circumstances specified in the subparagraphs of Article 54, paragraph 1 of the Act exists with respect to any associated person.
  3. The application documents are found to contain any falsehood or misrepresentation.
  4. Any of the business plan, company bylaws, or internal control system is not concrete enough, or cannot be effectively implemented.
  5. There is a likelihood that the professional competence of any responsible person or associated person is insufficient for sound and effective operation of credit rating business.
  6. It is otherwise deemed necessary to protect the public interest.
     If any application documents submitted under these Regulations are incomplete or contain incomplete information, and the FSC imposes a deadline for supplementation or correction and the deadline is not met, the application will be rejected.
Article 11     The corporate bylaws referred to in Article 10, paragraph 1, subparagraph 2 shall include the following:
  1. The organization and the responsibilities of each department.
  2. The internal management control system, including rules regarding the independence of ratings, conflicts of interest, and legal compliance.
  3. The internal accounting control system.
  4. The deployment, management and training of personnel.
  5. The principles and policy for business operation, and the fee policy.
  6. The rating procedures, rating scales, standards, and division of responsibilities, including the methodology for each type of credit rating and the establishment and methods of use of statistical databases.
  7. The organization and operations of the rating committee.
  8. The announcement of ratings and relevant confidentiality measures.
  9. The complaint handling mechanism.
  10. Other items that the FSC may require.
    Any credit rating agency already established and registered prior to the entering into force of the 31 December 2015 amendments to these Regulations shall amend its corporate bylaws in accordance with the provisions of the preceding paragraph and submit them to the FSC for recordation within six months from the date on which the amendments enter into force.
    The scope of the major contents of the above bylaws shall be formulated by the FSC.
    A credit rating agency shall operate business in accordance with the laws, Articles of Incorporation, and the corporate bylaws referred to in paragraph 1.
    The formulation of or amendment to the corporate bylaws referred to in paragraph 1 shall be reported to the FSC for recordation. If any order for amendment to the bylaws is made by the FSC, the amendment shall be made accordingly within the prescribed time period.
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Article 14      A credit rating agency shall prepare its financial reports in accordance with the International Financial Reporting Standards (IFRS), International Accounting Standards (IAS), and Interpretations developed by the International Financial Reporting Interpretations Committee (IFRIC) or the former Standing Interpretations Committee (SIC), as endorsed by the FSC.
    A credit rating agency shall, within three months after the end of each fiscal year, report to the FSC financial statements certified by a certified public accountant, passed by the board of directors, and recognized by the supervisor(s). The agency shall also report the following matters:
  1. The name, content, and amount of operating revenue of each type of businesses in the previous fiscal year.
  2. The number of credit rating cases of each class of credit ratings, and the total issuance amount of each type of instruments being rated in the previous fiscal year.
    In the event the aforesaid financial statements shall be different from the financial statements recognized by the shareholders meeting, it shall report to the FSC within two (2) days after occurrence.
    Where an internationally recognized credit rating agency receives approval to establish branch offices in the Republic of China pursuant to the provisions of Article 5, the financial statements of its branch office(s) shall be prepared in accordance with the provisions of paragraphs 1 and 2. However, said branch office(s) may be exempted from the requirement that the financial statements be passed by the board of directors and recognized by the supervisor(s) and the general shareholders meeting.
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Article 15     A credit rating agency shall publicly disclose the following matters on its company website:
  1. Its business report, to be published within three months after the close of each fiscal year.
  2. Its credit rating procedures and methodologies, and key assumptions employed, and, in the event of any changes, the reasons for the change, the discrepancies, and the impact on the current ratings shall also be published.
  3. In conducting initial rating, surveillance rating, adjustment of ratings, and withdrawal of ratings, the credit rating agency shall immediately publish the credit rating result and the rating reasons, and the historical rating results for the past five years, except in cases where the rating is not intended for public use.
  4. Any of the following circumstances that is likely to cause a conflict of interest, if the circumstance is related to any individual credit rating, shall be published along with the credit rating results:
    1. The fee policy for providing the credit rating service.
    2. Any related services that the credit rating agency provides for the rated entity, or the issuer, originator, arranger, or underwriter of the rated instrument.
    3. The credit rating agency provides an initial rating evaluation prior to being engaged to conduct the rating.
    4. Any other conflict of interest that may affect the credit rating.
  5. Definitions of the credit rating scales for each class of credit ratings.
  6. An employee code of conduct.
    When a credit rating agency makes any of the announcements under subparagraphs 2 and 3 of the preceding paragraph, it shall note any limitations in the data that were analyzed as well as risks that cannot be reflected by the credit rating. The credit rating agency must also use appropriate labeling to distinguish ratings for structured instruments or unsolicited ratings, and explain the meanings of such labeling, and shall publicly disclose the following matters:
  1. For credit ratings of structured instruments, the sensitivity analysis of the key assumptions, loss test and cash flow analysis, and the due diligence process used by the credit rating agency as a basis of assessment shall also be published.
  2. For unsolicited ratings, the level of participation by the rated entity in the rating process, and the information that such entity provides shall also be published.
    The business report of paragraph 1 shall include the following items:
  1. A company profile, including the date of establishment, company history, organizational system, and the equity structure of the directors, supervisors, or major shareholders holding more than a 10 percent stake in the company. When a director or supervisor is a juristic person shareholder representative, it shall note the name of the juristic person shareholder and its shareholding ratio, and the names of the top ten shareholders and their shareholding ratios shall also be noted.
  2. Business overview, which shall include the following:
    1. Credit rating criteria, methodologies, models, and rating assumptions, and their differences from the previous year, and how the differences affect the ratings.
    2. The content of outsourced work.
    3. The credit ratings issued during the previous year and information on changes in the credit ratings, including the number of cases for each class of credit ratings, and the ratios of rating maintenance, rating upgrades, rating downgrades, default ratings, and rating withdrawals.
    4. The rates of default ratings for the most recent 10 years, and analysis of the transition matrix for the most recent 1, 3, 5, and 10 years for each class of credit ratings.
    5. The name and the percentage of operating income accounted for by any client, or any client in combination with its affiliated entities, whose contribution to operating income exceeds 10 percent.
  3. Financial condition, including the percentage of total operating income accounted for by credit rating services income, and the percentage of total operating income accounted for by operating income unrelated to credit rating services.
  4. A review and analysis of the company's financial condition and business development.
  5. Risk management matters, including, but not limited to operational risk, reputational risk, legal risk, and information security risk.
  6. Litigious or non-litigious events: If any major litigious, non-litigious, or administrative dispute that has been concluded by a final and unappealable judgment or is still pending could materially affect the company's finances or business, disclose the facts of the dispute, amount of money at stake in the dispute, the date of commencement of litigation, and the status of the dispute's handling as of the date of printing of the business report. If the credit rating agency is a branch office established in Taiwan by an internationally recognized credit rating agency, it also shall disclose any above-mentioned information of its head office.
  7. Matters of special note.
Article 16     A credit rating agency shall formulate organization bylaws to define the internal organization, number of personnel and titles, and report the same to the FSC for recordation; the same procedure shall apply to any amendments thereto.
    The internal control system of a credit rating agency and its yearly internal audit plans shall be established and carried out in accordance with the Regulations Governing the Establishment of Internal Control Systems by Service Enterprises in Securities and Futures Markets, and in addition shall include the following items:
  1. Management of the credit rating process, including the operation of the rating committee, the appropriateness of credit rating models and methodologies and their review procedures, retention of credit rating records, measures to maintain confidentiality of non-public information, and complaint handling mechanism.
  2. The compliance system for maintaining the independence of credit ratings and its implementation.
  3. Controls for information disclosure to be made in accordance with Article 15.
    Any credit rating agency already established and registered prior to the time the 31 December 2015 amendments to these Regulations take effect shall amend its internal control system in accordance with the provisions of the preceding paragraph, and submit the amended version to the FSC for recordation, within six months from the date on which the amendments take effect.
    A credit rating agency shall evaluate the appropriateness when adopting or amending the credit rating methodologies, models, and key assumptions, and shall periodically review them. When the nature of the asset risk represented by the rated entity or the rated instrument, or the applicable credit rating methodologies, models and key rating assumptions change, a new assessment of the appropriateness of the credit rating results shall immediately be undertaken, and any necessary measures shall be taken.
    A credit rating agency conducting credit rating shall establish a credit rating committee, which shall be responsible for the final decision of the credit rating results. The provisions of Article 6, paragraph 1 and Article 16, paragraph 1 shall apply mutatis mutandis to the qualifications of the members of the credit rating committee.
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Article 18     The directors, supervisor(s), managerial officers, mandataries or employees of a credit rating agency shall not concurrently work in any way or take any honorary position for the rated entity or the issuer, originator, arranger, or underwriter of the rated instrument, provided that when due to an investment relationship, the directors, supervisor(s) or managerial officers of such entity may concurrently hold the position of director or supervisor at the credit rating agency if the matter is reported to and approved by the FSC.
Article 20     The credit rating agency shall allocate an adequate number of competent managerial officers and associated persons based on the size of the agency, business conditions, and management need for internal control. Those personnel shall be full-time employees, and shall not perform business without first reporting to the FSC for approval.
    None of the items referred to in paragraph 1 of Article 54 of the Act shall apply to any of the associated persons referred to in the preceding paragraph.
    If any of the persons under paragraph 1, within one year after leaving the employment of the credit rating agency, is employed by a rated entity, or the issuer, originator, arranger, or underwriter of a rated instrument, in a rating case in which the person participated, the credit rating agency shall immediately examine the appropriateness of the credit rating results of the rating cases that the person participated in. If any impact is discovered, the credit rating agency shall immediately publish the circumstances of any conflict of interest and its impact on the credit rating result.
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Article 21     A credit rating agency may not engage in any of the following activities:
  1. Acting as a guarantor of any kind, endorsing negotiable instruments, or providing property to others for the creation of a security interest.
  2. Engaging in credit rating services with affiliated entities, or any entities with which the credit rating agency has an investment relationship or with which it shares benefits.
  3. Engaging in credit rating services with entities or financial instruments for which the credit rating agency has previously provided consulting services, provided that this restriction shall not apply when more than 3 years have passed since the end of the consultation period.
  4. Issuing any credit rating report or information which lacks an analytical basis or reasonable grounds, and which would be likely to affect market order or harm the public interest.
  5. Holding or trading securities or other financial instruments that fall in any of the following circumstances:
    1. Securities or other financial instruments that are rated, or that are issued by a rated entity.
    2. Securities or other financial instruments that are primarily linked to those mentioned in the preceding item.
    3. Securities or other financial instruments issued by an affiliated entity of a rated entity, or the issuer, originator, arranger, or underwriter of a rated instrument, provided that this restriction does not apply if there is no conflict of interest on the credit rating process or result.
  6. Making any guarantee or commitment regarding the credit rating results.
  7. Using the business permission granted by the FSC as an advertisement or guarantee of the strength of its operations or the quality of the credit ratings that it issues.
  8. Any other acts in violation of securities laws or regulations or provisions of the FSC regarding mandatory or prohibited acts.
Article 22     Members of the credit rating committee, managerial officers, or associated persons of a credit rating agency may not participate in the credit rating procedure under any of the following circumstances:
  1. The member is currently employed by, engages in regular work on behalf of, or receives regular salaries from the rated entity or the issuer, originator, arranger, or underwriter of the rated instrument.
  2. The entity at which the member or the member's spouse is currently employed, and the rated entity or the issuer, originator, arranger, or underwriter of the rated instrument, are mutually related parties.
  3. The member was previously employed by the rated entity or by the issuer, originator, arranger, or underwriter of the rated instrument, and less than two full years has elapsed since the employment ended.
  4. The member is a spouse or a relative within the second degree of kinship of a responsible person or managerial officer of the rated entity, or of the issuer, originator, arranger, or underwriter of the rated instrument.
  5. The member or member's spouse has an investment or benefits-sharing relationship with the rated entity or with the issuer, originator, arranger, or underwriter of the rated instrument.
  6. Securities or other financial instruments that are held or traded by the member, the member's spouse, minor child, or under another person's name, fall in any of the following circumstances:
    1. Securities or other financial instruments that are rated, or that are issued by a rated entity.
    2. Securities or other financial instruments that are primarily linked to those mentioned in the preceding item.
    3. Securities or other financial instruments issued by an affiliated entity of a rated entity, or the issuer, originator, arranger, or underwriter of a rated instrument, provided that this restriction does not apply if there is no conflict of interest on the credit rating processor result.
  7. The member is the certified public accountant for the rated entity or the issuer of the rated instrument.
  8. Other circumstance that may cause a conflict of interest on the credit rating process or results.
Article 23     The directors, supervisor(s), members of the ratings committee, managerial officers, mandataries, or employees of a credit rating agency may not engage in any of the following acts:
  1. Utilizing information obtained in the course of official duties to directly or indirectly engage in the trading of securities or other financial instruments.
  2. Disclosing trade secrets obtained in the course of official duties, except in response to a lawfully conducted inquiry.
  3. Issuing any credit rating report or information which lacks an analytical basis or reasonable grounds, and which would be likely to affect market order or harm the public interest.
  4. Participating in the process of design or providing related recommendations regarding the rated instruments.
  5. Soliciting, agreeing to accept, or accepting improper benefits from the rated entity or from the issuer, originator, arranger, or underwriter of the rated instrument.
  6. Other acts in violation of laws and regulations.
    Personnel referred to in the preceding paragraph who participated in the credit rating process, or who have the authority to decide credit rating results, or to approve methodologies in connection with credit ratings, may not participate in the discussion, negotiation, or arrangement of rating fees.