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　　If a domestic enterprise provides or publicly discloses documents and materials involving state secrets or work secrets of government agencies to relevant securities companies, securities service institutions, overseas regulatory agencies and other entities and individuals, or through its overseas listed entities, etc., it shall comply with the law. It shall be reported to the competent authority with approval authority for approval, and shall be reported to the confidentiality administrative department at the same level for the record.

　　□ Our reporter Zhou Fenmian

　　Recently, the China Securities Regulatory Commission, together with the Ministry of Finance, the State Secrecy Administration, and the State Archives Administration, revised the "Regulations on Strengthening the Confidentiality and File Management Work Related to the Issuance and Listing of Securities Overseas" (hereinafter referred to as the "Regulations") issued in 2009. , to form a new version of the "Provisions on Strengthening the Confidentiality and Archives Management Work Related to the Overseas Issuance and Listing of Securities by Domestic Enterprises (Draft for Comment)" (hereinafter referred to as the "Draft for Comment") to solicit public opinions.

　　The "Draft for Comments" was drafted to support enterprises in listing overseas in accordance with laws and regulations, improve the standardization of related confidentiality and file management in the process of overseas issuance of securities and listing, and promote deepening of cross-border regulatory cooperation.

　　Industry experts believe that the core content of the "Draft for Comments" is the rule of law, marketization, internationalization and integrity of the cross-border supervision of the capital market, and it is planned to create a new situation in the opening of the capital market to the outside world.

　　Further clarify corporate information security responsibilities

　　my country has long established regulations for domestic enterprises to issue and list overseas.

　　According to Liu Xiaoyu, a lawyer from Zhongyin Law Firm, on August 4, 1994 and June 20, 1997, the State Council issued the "Special Regulations of the State Council on the Overseas Raising and Listing of Shares by Co., Ltd." and "The State Council's Further Strengthening of Overseas Issuance" Circular on Stock and Listing Management, which sets out specific requirements for overseas listing supervision.

　　In order to adapt to the development of the times, the China Securities Regulatory Commission, together with the relevant departments of the State Council, put forward amendments to the "Special Provisions of the State Council on the Overseas Raising and Listing of Shares by Co., Ltd.", and on December 24, 2021, studied and drafted the "State Council on the Overseas Issuance of Domestic Enterprises". Regulations on the Administration of Securities and Listing (Draft for Comment)" (hereinafter referred to as the "Administrative Regulations") and the supporting rules "Administrative Measures for the Recordation of Overseas Issuance of Securities and Listing by Domestic Enterprises (Draft for Comment)".

　　In order to safeguard national economic security and protect social and public interests, the China Securities Regulatory Commission, together with the State Secrecy Administration and the State Archives Administration, issued the Regulations in 2009.

The person in charge of the relevant department of the China Securities Regulatory Commission said that this is a normative document to regulate the confidentiality and file management matters related to the overseas issuance and listing of domestic enterprises. Procedures to be followed for sensitive information are specified.

　　The scope of application of the "Regulations" is "domestic companies that issue overseas-listed foreign-invested shares", and stipulates that domestic equity holders of overseas Chinese-funded listed companies should refer to it.

　　Liu Junhai, a professor at Renmin University of China, said that the "Regulations" did not include indirect listings that have emerged in recent years. Some companies have set up offshore companies in the Cayman Islands and other places, and through a series of agreements, formed overseas listed companies with domestic entities. , and also formed a regulatory blind spot for Chinese stock companies.

　　According to the person in charge of the relevant departments of the China Securities Regulatory Commission, the "Draft for Comments" deletes the "Regulations" on the scope of application, which is consistent with the "Administrative Regulations", and defines "domestic enterprises" as including overseas direct issuance and listing. The domestic joint stock limited company and the domestic operating entity of the overseas indirect issuance and listing subject.

　　At the same time, the expression "offshore issuance and listing of securities" in the "Regulations" is uniformly revised to "overseas issuance and listing of securities by domestic enterprises" with reference to the expression in the "Administrative Regulations".

　　This revision adds the basis for the upper-level law.

The only legal basis for the "Regulations" is the Securities Law, the Law on Guarding State Secrets, and the Archives Law.

Liu Junhai said that in order to realize the legalization of overseas listing of domestic enterprises, in addition to the above-mentioned full coverage of supervision and services for overseas listed companies, it is necessary to increase the upper law and improve the legal basis with the introduction of relevant legal systems in my country.

According to the "Draft for Comments", in addition to the Securities Law, the Law on Guarding State Secrets and the Archives Law, the upper-level law also adds the Accounting Law, the Certified Public Accountant Law, the National Security Law and the "Administrative Regulations".

　　Liu Xiaoyu said that the addition of the National Security Law is based on the overall planning of this higher-level law. It echoes the Personal Information Protection Law, Data Security Law, and Cybersecurity Law that have been promulgated in my country in recent years, and further clarifies the information security responsibilities of listed companies.

　　Procedures to be followed for the explicit disclosure of confidential documents

　　Li Shuqu, director of the Management Committee of Beijing Yingke (Zhengzhou) Law Firm, said that one of the highlights of the "Draft for Comments" is that when domestic companies issue securities and go public overseas, they provide and publicly disclose the work of state secrets and government agencies. The procedures to be performed for confidential documents and materials are stipulated.

　　According to the "Draft for Comments", domestic enterprises provide and publicly disclose to relevant securities companies, securities service institutions, overseas regulatory agencies and other entities and individuals, or provide and publicly disclose through their overseas listed entities, etc. For documents and materials, they shall be reported to the competent authority with approval authority for approval according to law, and shall be reported to the secrecy administrative department at the same level for the record.

　　Those who provide or publicly disclose other documents and materials that will adversely affect national security or public interests if they are leaked, shall strictly follow relevant procedures in accordance with relevant state regulations.

　　When domestic enterprises provide documents and materials to relevant securities companies and securities service institutions, they shall handle relevant documents and materials in accordance with relevant state confidentiality regulations, and provide written explanations on the specific circumstances of the confidential sensitive information provided.

Securities companies and securities service institutions shall properly keep the above written explanations for future reference.

　　Liu Junhai said that another highlight of the "Draft for Comments" is that it clarifies the management requirements for accounting files.

　　According to the person in charge of the relevant departments of the China Securities Regulatory Commission, the "Draft for Comment" clarifies that domestic enterprises shall provide relevant securities companies, securities service agencies, overseas regulatory agencies and other units and individuals with accounting files or accounting files that are of great preservation value to the country and society. In the case of duplicates, corresponding procedures shall be followed in accordance with relevant state regulations.

　　If an overseas accounting firm is engaged in the audit business related to the overseas issuance and listing of securities by domestic enterprises, it shall perform the corresponding procedures in accordance with the relevant state regulations.

Domestic enterprises shall not provide accounting files to overseas accounting firms that have not performed the corresponding procedures.

　　The working papers and other files formed in China by securities companies and securities service institutions that provide relevant securities services for overseas issuance and listing of securities by domestic enterprises shall be stored in China.

Without the approval of the relevant competent authorities, it shall not be transferred to overseas institutions or individuals by any means such as carrying or shipping, or to overseas institutions or individuals by any means such as information technology.

Where files or copies of files that are of great preservation value to the state and society need to be exported, the approval procedures shall be handled in accordance with relevant state regulations.

　　Provide institutional guarantee for cross-border regulatory cooperation

　　In recent years, many Chinese companies have gone public overseas.

According to Liu Xiaoyu, the overseas listing locations of Chinese companies have expanded from Hong Kong, the United States and Singapore to Toronto, London, Tokyo and other places.

According to data from the National Bureau of Statistics, there were 267 overseas listed companies in 2018, 284 overseas listed companies in 2019, and 291 overseas listed companies in 2020.

　　Hundreds of Chinese companies are going public overseas. The cross-border supervision of China's capital market needs to be further improved, and cross-border supervision cooperation also needs to be deepened.

　　According to the person in charge of the relevant department of the China Securities Regulatory Commission, the "Draft for Comment" combines the international practice of cross-border audit supervision cooperation, and deletes the "on-site inspection should be mainly conducted by the Chinese regulatory agency, or rely on the inspection results of the Chinese regulatory agency" in the "Regulations". expression.

Combined with the provisions of Article 177 of the Securities Law, it is clarified that overseas securities regulatory agencies and relevant competent authorities propose that domestic enterprises and securities companies that provide relevant securities services for domestic enterprises will be subject to overseas issuance of securities and listing-related activities by domestic enterprises. . Securities service institutions conducting investigation and evidence collection or conducting inspections shall conduct cross-border regulatory cooperation mechanisms, and the CSRC or relevant competent authorities shall provide necessary assistance in accordance with bilateral and multilateral cooperation mechanisms.

　　This reflects the consistent open attitude of China's securities regulatory authorities to cross-border audit and supervision cooperation, and is also in line with relevant international practices. It will provide institutional guarantee for the safe and efficient development of cross-border supervision cooperation including joint inspections.

　　Liu Junhai believes that this provision is very important. The other party proposes to conduct investigation and evidence collection or inspection, which should be carried out according to the bilateral or multilateral cooperation mechanism between the two parties. my country will provide necessary assistance according to the bilateral or multilateral cooperation mechanism.

Conversely, if my country's securities supervision and relevant departments request the other party to inspect and obtain evidence, the other party should also provide necessary assistance to China in accordance with bilateral or multilateral cooperation mechanisms.

This kind of cooperation is equal and mutually beneficial, and it is also an act to safeguard the rights and interests of global investors.