THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
161/2004/ND-CP
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Hanoi,
September 7, 2004
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DECREE
ON SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF
SECURITIES AND SECURITIES MARKET
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to July 2, 2002 Ordinance No. 44/2002/PL-UBTVQH10 on Handling of
Administrative Violations;
At the proposal of the Finance Minister,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.-
Governing scope
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2. Administrative violations in
the field of securities and securities market prescribed in this Decree
include:
a/ Violation of regulations on
issuance of securities to the public;
b/ Violation of regulations on
listing of securities at the Securities Trading Center or the Stock Exchange;
c/ Violation of regulations on
securities transactions;
d/ Violation of regulations on
activities of securities trading, registration, custody, clearing and settlement
of securities transactions;
e/ Violation of regulations on
the reporting and information-disclosing regime;
f/ Violation of regulations thus
obstructing inspection or examination, or failing to realize proposals of
inspection and examination organizations.
Article 2.-
Subjects of application
1. Vietnamese and foreign
individuals, agencies and organizations (hereinafter referred collectively to
as individuals and organizations) that commit administrative violations in the
field of securities and securities market shall all be sanctioned for
administrative violations according to the provisions of this Decree, except
otherwise provided for by international agreements which Vietnam has signed or
acceded to.
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Article 3.- Principles
for sanctioning of administrative violations
Principles for sanctioning of
administrative violations in the field of securities and securities market
shall comply with the provisions of Article 3 of the Ordinance on Handling of
Administrative Violations.
Article 4.-
Statute of limitations for sanctioning of administrative violations
1. The statute of limitations
for sanctioning of an administrative violation in the field of securities and
securities market shall be two years as from the date such administrative
violation is committed. Past that time limit, no sanction shall be imposed but
the remedial measures prescribed in Clause 3, Article 7 of this Decree may be
applied.
2. An individual, who has
committed an act of violating the legislation on securities and securities
market and been subject to lawsuit, prosecution or a decision to bring his/her
case to trial according to the criminal procedures, then a decision to suspend
the investigation or the case, shall be administratively sanctioned according
to the provisions of this Decree if he/she had committed an administrative
violation act. Within three working days after decisions to suspend
investigation or cases are issued, the suspension decision issuers shall have
to send such decisions to the persons competent to sanction administrative
violations. In this case, the statute of limitations for sanctioning of
administrative violations shall be three months counting from the date the
persons competent to sanction administrative violations receive the suspension
decisions and violation case dossiers.
3. Within the time limits
prescribed in Clauses 1 and 2 of this Article, if violating individuals and
organizations commit new acts of violation in the field of securities and
securities market or intentionally shirk or impede the sanctioning, the statute
of limitations prescribed in Clauses 1 and 2 of this Article shall not apply.
The statute of limitations for sanctioning of administrative violations shall
be calculated as from the date of committing new acts of violation or date of
stopping acts of shirking or obstructing the sanctioning.
Article 5.-
Time limit for subjects to be considered having never been sanctioned for
administrative violations
If one year after the
sanctioning decisions are completely executed or cease to be effective for
execution, the administratively sanctioned individuals and organizations do not
relapse into violations, they shall be considered as having never been sanctioned
for administrative violations.
Article 6.-
Extenuating circumstances, aggravating circumstances
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1. Extenuating circumstances:
a/ Administrative violators have
prevented or mitigated damage caused by violation acts or voluntarily remedy
consequences or compensate for damage;
b/ Administrative violators have
voluntarily declared or sincerely admitted their faults;
c/ They commit violations under
force or due to material or spiritual dependence;
d/ They commit violations due to
ignorance;
e/ They commit violations due to
violation acts of others.
2. Aggravating circumstances:
a/ They commit violations in an
organized manner;
b/ They commit violations
repeatedly or relapse into violations in the same domain of securities or
securities market;
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d/ They abuse their positions or
powers to commit violations;
e/ They commit violations during
the period of serving decisions on handling administrative violations;
f/ They continue performing acts
of administrative violation though competent persons have requested them to
stop such acts;
g/ After committing violations,
they commit acts of shirking or concealing violation acts.
Article 7.-
Forms of sanctioning administrative violations and measures to remedy
consequences
1. For each act of
administrative violation in the field of securities and securities market,
violating individuals and organizations shall be subject to either of the
following two principal sanctioning forms:
a/ Caution;
b/ Pecuniary fine.
2. Depending on the nature and
seriousness of their violations, administratively violating individuals and
organizations may also be subject to one or all of the following additional
sanctioning forms:
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b/ Deprivation of the right to
use certificates of registration for issuance of securities to the public;
securities listing licenses, securities trading licenses; securities custody
licenses, fund management licenses, securities trading practice certificates,
fund management practice certificates for a definite or an indefinite time.
During the period they are deprived of the right to use licenses and practice
certificates, organizations and individuals must not conduct professional
operations inscribed in their licenses or practice certificates.
3. Apart from the sanctioning
forms prescribed in Clauses 1 and 2 of this Article, violating individuals and
organizations may also be subject to the application of one of the following
remedial measures:
a/ Compelled compliance with law
provisions, for acts of administrative violation;
b/ Compelled cancellation or
correction of erroneous or untrue information;
c/ Compelled withdrawal of
already issued securities, refund of deposits or securities purchase payments
by issuing organizations to investors within 30 days after they are deprived of
the right to use issuance registration certificates.
The additional sanctioning forms
and remedial measures prescribed in Clauses 2 and 3 of this Article shall only
be applied in cases aiming to thoroughly handle violations, do away with causes
of, and conditions for, further violations and overcome consequences caused by
administrative violations in the field of securities and securities market.
Chapter II
ADMINISTRATIVE
VIOLATIONS IN THE FIELD OF SECURITIES AND SECURITIES MARKET, SANCTIONING FORMS
AND LEVELS
Section I.
VIOLATION OF REGULATIONS ON THE ISSUANCE OF SECURITIES TO THE PUBLIC
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1. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed on each issuing organization or issuance
consultancy organization committing one of the following violation acts:
a/ Filing to the State
Securities Commission dossiers of registration for issuance of securities to
the public, which contain erroneous information or conceal the truth;
b/ Using information outside the
prospectus to probe the market before being licensed to issue securities to the
public;
c/ Distributing securities to
the public before making the issuance announcement;
d/ Issuing securities to the
public at variance with the contents inscribed in the issuance registrations
regarding the securities types, issuance time limits and minimum volumes as
prescribed;
e/ Announcing the securities
issuance on the mass media at variance with the prescribed contents, time
limits and time;
f/ Issuing bonds without any
intermediary financial institutions taking part in issuance underwriting;
g/ Letting issuance-underwriting
organizations underwrite securities volume with the total value exceeding the
law-prescribed level.
2. A fine of between VND
20,000,000 and VND 50,000,000 shall be imposed on each issuing organization,
issuance consultancy organization or auditing organization taking part in the
compilation of dossiers for issuance of securities to the public for forgeries
in the dossiers of issuance registration.
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a/ Issuing securities to the
public without getting certificates of registration for securities issuance;
b/ Underwriting the issuance of
securities to the public without being licensed for the issuance underwriting
business type.
4. Additional sanctioning forms:
a/ Deprivation of the right to
use securities issuance registration certificates for 60 days for violations
prescribed in Clause 1 of this Article;
b/ Deprivation of the right to
use securities issuance registration certificates for an indefinite time for
violations prescribed in Clause 2 of this Article;
c/ Confiscation of all service
charges collected by organizations and/or individuals that commit violation
acts prescribed in Clause 2 of this Article.
5. Application of remedial
measures:
a/ Issuing organizations must
withdraw already issued securities, refund deposits or payments for securities
purchase to investors, if investors request the cancellation of their
subscriptions within 60 days after such organizations are deprived of the right
to use issuance registration certificates, in cases where issuing organizations
are imposed with additional sanctions prescribed at Point a, Clause 4 of this
Article;
b/ Issuing organizations must
withdraw already issued securities, refund deposits or payments for securities
purchase to investors within 30 days after they are deprived of the right to
use issuance registration certificates, in cases where issuing organizations
are imposed with additional sanctions prescribed at Point b, Clause 4 of this
Article.
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Article 9.-
Sanctions against acts of violating the regulations on securities listing at
the Securities Trading Center (the Stock Exchange)
1. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed on each listing organization or
listing consultancy organization committing one of the following violation
acts:
a/ Filing to the State
Securities Commission dossiers of application for listing licenses, which
contain erroneous information or conceal the truth;
b/ Additionally issuing stocks
but failing to fill in the procedures for registering additional listing, for
listing organizations;
c/ Conducting the stock split or
reverse split without reporting thereon to the State Securities Commission or
without having re-registered the listing, for listing organizations;
d/ Failing to fully comply with
regulations on time, contents and means of disclosing information on granted
listing licenses, for listing organizations.
2. A fine of between VND
20,000,000 and VND 70,000,000 shall be imposed on each listing organization,
listing consultancy organization or auditing organization taking part in the
compilation of listing dossiers for forgeries in dossiers of application for
listing licenses.
3. Additional sanctioning forms:
a/ Deprivation of the right to
use listing licenses for 60 days, for violation cases prescribed in Clause 1 of
this Article;
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c/ Confiscation of all service
charges collected by individuals and/or organizations that commit violation
acts prescribed in Clause 2 of this Article.
Section III.
VIOLATION OF REGULATIONS ON SECURITIES TRANSACTIONS
Article
10.- Sanctions against acts of violating the regulations on securities
transaction activities
1. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed on individuals or organizations
committing one of the following violation acts:
a/ Legal persons open bank
accounts in the names of individuals for securities purchase or sale, or
violate law provisions on the opening of securities transaction accounts;
b/ Securities companies receive
securities transaction orders from clients outside their head offices,
branches, transaction offices or order-receiving agents;
c/ Investors being organizations
or individuals make down payments for securities purchase not at the prescribed
level or securities companies fail to closely supervise investors who make
deficient down payments for securities purchase, thus causing delay or
insolvency in the settlement of securities transactions;
d/ Members of managing boards,
directorates, chief accountants or controllers of listing companies and
involved persons perform acts of trading stocks of such listing companies
without reporting such to the Securities Trading Center or the Stock Exchange
10 working days in advance.
2. A fine of between VND 20,000,000
and VND 50,000,000 shall be imposed on individuals or organizations committing
one of the following violation acts:
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b/ Listing organizations
repurchase or resell their own securities without permission of the State
Securities Commission.
3. A fine of between VND
50,000,000 and VND 70,000,000 shall be imposed on individuals or organizations
committing one of the following violation acts:
a/ Using or disclosing internal
information to other persons, or advising other persons to purchase or sell
securities for themselves or for the third party;
b/ Trading in securities without
changing the ownership over securities;
c/ Conducting in collusion with
other persons the securities purchase or sale in order to create sham
supply-demand state;
d/ Joining or dragging other
persons in continuously purchasing or selling securities in order to manipulate
securities prices;
e/ Fabricating or spreading
false information to mislead other persons about financial status or operation
situation of issuing organizations and/or listing organizations, or make them
misconceive securities prices;
f/ Fabricating or spreading
untrue information in order to increase or reduce securities prices, checking
prices at low levels or making prices abnormally fluctuate on the market;
g/ Selling securities in all
forms while not owning such securities at the time of transaction.
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a/ Deprivation of the right to
use practice certificates for indefinite time, for cases where persons having
securities trading practice certificates or persons having fund management
practice certificates personally commit violation acts prescribed in Clause 3
of this Article;
b/ Deprivation of the right to
use securities trading licenses for 45 days, for securities companies violating
the provisions of Clause 3 of this Article;
c/ Confiscation of all service
charges collected by individuals and/or organizations committing violation acts
prescribed in Clause 3 of this Article.
5. Application of remedial
measures:
Compelled strict compliance with
law provisions, for violations prescribed at Point a, Clause 2 of this Article.
Article
11.- Sanctions against acts of violating the regulations on protection of
shareholders or takeover of enterprises
1. A fine of between VND
5,000,000 and VND 10,000,000 shall be imposed on organizations or individuals
committing one of the following violation acts:
a/ Organizations or individuals
that hold or join involved persons in holding as much as 5%, 10%, 15% or 20% of
share capital of a listing organization fail to report in writing on each change
which increases or reduces the holding rate as compared with the above-said
rates to the Securities Trading Center (the Stock Exchange), the State
Securities Commission and listing organizations within three working days after
they conduct the securities purchase or sale transactions to attain the said
ownership rate;
b/ Members of managing boards,
directorates, control boards breach commitments to hold at least 50% of stock
quantity they own within the prescribed time limit.
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a/ Investors being organizations
or individuals commit acts of takeover without reporting such to the State
Securities Commission and fail to announce their public bids according to
regulations; or investors being organizations or individuals have effected the
takeover already approved by the State Securities Commission and announced
their public bids according to regulations, but later changed their already
announced takeover intentions without reporting such change to the State
Securities Commission;
b/ Organizations or individuals
committing acts of takeover make bids at prices lower than the prices of stocks
listed on the market before the date such bids are made;
c/ Within the time limit for
public bids, taking-over organizations or individuals fail to apply conditions
for public bids to all shareholders of listing organizations currently taken
over;
d/ Taking-over organizations or
individuals refuse to purchase stocks of listing organizations from any
shareholders of such organizations under the already announced conditions, or
taking-over organizations or individuals purchase or sell stocks of listing
organizations in any form not under conditions of public bids;
e/ Taking-over organizations or
individuals fail to strictly comply with the time limit for public bids (no
less than 30 days and no more than 60 days) or taking-over organizations or
individuals sell stocks of taken-over organizations 6 months before the end of
takeover;
f/ Foreign organizations or
individuals conduct securities transactions in order to hold securities of an
issuing organization or listing organization in excess of the rate prescribed
by law.
3. Application of remedial
measures:
Compelled strict compliance with
law provisions, for violations prescribed at Points a and b, Clauses 1 and 2 of
this Article.
Section IV.
VIOLATION OF REGULATIONS ON ACTIVITIES OF SECURITIES TRADING, REGISTRATION AND
CUSTODY, CLEARING AND SETTLEMENT OF SECURITIES TRANSACTIONS
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1. A fine of between VND
5,000,000 and VND 10,000,000 shall be imposed on each securities trading or
service organization, or each fund management company committing one of the
following violation acts:
a/ Using names inconsistent with
those stated in the granted securities trading licenses, fund management
licenses or licenses to open branches;
b/ Organizing the commencement
of operations while having not yet fully satisfied the conditions prescribed by
law;
c/ Conducting activities in
violation of charters of companies or funds or failing to report on amendments
and/or supplements to charters.
2. A fine of between VND
20,000,000 and VND 50,000,000 shall be imposed on each securities trading or
service organization, or each fund management company committing one of the
following violation acts:
a/ Conducting securities trading
or providing securities services while having not yet been granted licenses
therefor;
b/ Lending, leasing or
transferring licenses;
c/ Conducting securities trading
or providing securities services in those fields not prescribed in the licenses
or when the licenses have already expired;
d/ Erasing or modifying trading
licenses, licenses to open branches or licenses to set up representative
offices;
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f/ Separating from or merging
into other securities trading organizations or fund management companies
without the State Securities Commission's permits;
g/ Representative offices of
foreign securities trading organizations are directly engaged in securities
trading activities in contravention of law provisions.
3. Additional sanctioning forms:
a/ Confiscation of all amounts
earned from violation acts prescribed at Points a, b, c and g, Clause 2 of this
Article;
b/ Deprivation of the right to
use securities trading licenses or fund management licenses for 30 days for
violation cases prescribed at Point b, Clause 1; Points b, c, d and f, Clause 2
of this Article.
Article
13.- Sanctions against acts of violating the regulations on securities
trading practice certificates and fund management practice certificates
1. A fine of between VND
5,000,000 and VND 10,000,000 shall be imposed on each securities trading or
service organization, or each fund management company committing one of the
following violation acts:
a/ Arranging persons without
practice certificates to perform operations which require practice certificates
as prescribed by the State Securities Commission;
b/ Failing to replace or
transfer to other jobs persons who have had their practice certificates
withdrawn under the State Securities Commission's decisions.
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a/ Securities trading
practitioners concurrently work for, or contribute capital to, two or more
securities companies;
b/ Staff members of securities
companies open securities transaction accounts at other securities companies;
c/ Members of managing boards,
directorates or control boards of securities companies invest in other
securities companies;
d/ Fund management practitioners
concurrently act as directors or shareholders holding more than 5% of voting
shares of a securities-issuing organization;
e/ Lending or leasing securities
trading practice certificates;
f/ Erasing or modifying
securities trading practice certificates or fund management practice
certificates.
3. Additional sanctioning forms:
Deprivation of the right to use
practice certificates for 45 days for violation cases prescribed in Clause 2 of
this Article.
Article
14.- Sanctions against acts of violating the regulations on trading
activities of securities companies
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a/ Failing to strictly comply
with law provisions on management and use of assets, money and securities of
clients; assets, money and securities of companies;
b/ Failing to maintain
sufficient liquidity capital as prescribed by law;
c/ Investing in securities or
contributing capital in excess of the limits prescribed by law;
d/ Securities companies invest
in other securities companies.
2. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed on securities companies
committing one of the following violation acts:
a/ Failing to separate the
dealing operation from brokerage, investment portfolio management or issuance
underwriting operation; or failing to separate business activities of owners of
companies from business activities of securities companies;
b/ Acting in contravention of
securities purchase or sale orders of investors;
c/ Failing to supply or certify
information on transactions according to law provisions; or failing to observe
the regime of keeping confidential information for clients according to law
provisions;
3. A fine of between VND
50,000,000 and VND 70,000,000 shall be imposed on securities companies
committing one of the following violation acts:
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b/ Taking part in securities
credit and lending activities.
4. Additional sanctioning forms:
a/ Deprivation of the right to
use securities trading licenses for 30 days for the violation cases prescribed
in Clause 2 of this Article;
b/ Deprivation of the right to
use securities trading licenses for 45 days for the violation cases prescribed
in Clause 3 of this Article;
c/ Confiscation of amounts
earned from violation acts prescribed in Clause 3 of this Article.
5. Application of remedial
measures:
Compelled strict compliance with
law provisions, for violation acts prescribed in Clause 1 of this Article.
Article
15.- Sanctions against acts of violating the regulations on trading
activities of investment fund management companies
1. A fine of between VND
5,000,000 and VND 10,000,000 shall be imposed on fund management companies
committing one of the following acts:
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b/ Failing to comply with fund
charters and protect interests of investors;
c/ Failing to perform the internal
control as provided for by law;
d/ Failing to perform other
obligations of fund management companies as prescribed by law.
2. A fine of between VND
20,000,000 and VND 50,000,000 shall be imposed on fund management companies
committing one of the following violation acts:
a/ Using capital or assets of
securities investment funds to provide loans or underwrite issuance;
b/ Using capital and assets of
an investment fund to invest in or purchase assets of another fund under their
management.
3. Additional sanctioning forms:
a/ Deprivation of the right to
use fund management licenses for 30 days, for violation cases prescribed at
Points a and b, Clause 1 of this Article;
b/ Deprivation of the right to
use fund management licenses for 45 days, for violation cases prescribed in
Clause 2 of this Article;
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Article
16.- Sanctions against acts of violating the regulations on
responsibilities of supervisory banks
1. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed on supervisory banks committing
one of the following violation acts:
Supervisory banks preserve
assets of investment funds in contravention of such funds' charters; or fail to
separate assets of securities investment funds from other assets; or fail to
separate assets of one investment fund from those of another fund.
2. Additional sanctioning forms:
Deprivation of the right to use
securities custody licenses for 30 days, for violation cases prescribed in
Clause 1 of this Article.
Article
17.- Sanctions against acts of violating the regulations on securities
registration and custody, securities transaction clearing and settlement
1. A fine of between VND
10,000,000 and VND 20,000,000 shall be imposed on organizations engaged in
securities registration or custody, securities transaction clearing and
settlement for committing one of the following violation acts:
a/ Violating regulations on the
time limit for certifying securities balance, transferring the securities
ownership or modifying or forging vouchers in payment for securities transfers,
thus causing losses to clients;
b/ Violating the regime of
securities preservation; the regimes of securities registration or custody,
securities transaction clearing and settlement;
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2. A fine of between VND
20,000,000 and VND 50,000,000 shall be imposed on organizations engaged in
securities registration or custody, securities transaction clearing and
settlement which lend securities on their clients' accounts or pledge their
clients' securities.
3. Additional sanctioning forms:
Confiscation of amounts earned
from the performance of violation acts prescribed in Clause 2 of this Article.
Section V.
VIOLATION OF THE REPORTING AND INFORMATION-DISCLOSING REGIME AND OBSTRUCTING
INSPECTION AND EXAMINATION
Article
18.- Sanctions against acts of violating the regulations on reporting
regime
1. A caution or a fine of
between VND 200,000 and VND 1,000,000 shall be imposed on securities issuing
organizations, listing organizations, securities companies, investment fund
management companies, investment funds, custody organizations, or banks
designated for settlement committing one of the following violation acts:
a/ Failing to fully report the
contents prescribed by law;
b/ Failing to report within the
time limit prescribed by law;
c/ Making reports not according
to the form set by the State Securities Commission.
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a/ Ceasing its operation without
reporting such to the State Securities Commission or without the State
Securities Commission's approval though it has reported thereon;
b/ Failing to report or
reporting not in time on the occurrence of unusual events that may severely
affect its financial capability and securities trading or service activities.
3. Additional sanctioning forms:
Deprivation of the right to use
securities trading licenses for securities companies, fund management licenses
for fund management companies, custody licenses for securities custody
organizations for 30 days, for cases of violation prescribed in Clause 2 of
this Article.
Article
19.- Sanctions against acts of violating the regulations on information disclosure
1. A fine of between VND
20,000,000 and VND 50,000,000 shall be imposed on securities issuing
organizations, listing organizations, securities companies or investment fund
management companies committing one of the following violation acts:
a/ Failing to disclose
information adequately, promptly and periodically according to law provisions;
b/ Disclosing untrue information
and reports;
c/ Revealing confidential data
and documents, but not seriously enough for penal liability examination;
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e/ Disclosing contradictory
information or denying previously disclosed information;
f/ Failing to disclose
information as prescribed by law.
2. Application of remedial
measures:
Compelled cancellation or
correction of erroneous or untrue information.
Article
20.- Sanctions against acts of obstructing the inspection or examination or
failing to realize the inspectors' proposals
1. A caution shall be served to
issuing organizations, listing organizations, securities companies, fund
management companies, custody organizations, supervisory banks, organizations
or individuals engaged in other securities activities, that commit acts of
resisting or failing to fully and promptly supply documents, vouchers and/or
data in order to delay or shirk requests of inspection organizations, inspection
teams or inspectors while they are on duty;
2. A fine of between VND
2,000,000 and VND 5,000,000 shall be imposed on organizations and individuals
committing one of the following violation acts:
a/ Failing to realize requests
of the securities inspectorate and other competent agencies;
b/ Concealing or modifying
vouchers, documents, books or alter material evidences while being under
inspection;
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Chapter III
COMPETENCE AND PROCEDURES FOR SANCTIONING
ADMINISTRATIVE VIOLATIONS
Article
21.- Competence to sanction administrative violations
1. Specialized chief inspectors
may:
a/ Serve cautions;
b/ Impose fines of up to VND
70,000,000;
c/ Apply additional sanctioning
forms and remedial measures prescribed in Clauses 2 and 3, Article 7 of this
Decree.
2. Specialized inspectors who
are on duty may:
a/ Serve cautions;
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c/ Confiscate material evidences
and means used for commission of administrative violations, valued at up to VND
2,000,000;
d/ Compel the strict compliance
with law provisions on acts of administrative violation;
e/ Compel the cancellation or
correction of erroneous or untrue information.
3. Presidents of People's
Committees of all levels are competent to sanction administrative violations
under the provisions of Article 42 of the Ordinance on Handling of
Administrative Violations, for acts of administrative violation in the field of
securities and securities market prescribed in this Decree, and at the same
time notify the State Securities Commission thereof.
Article
22.- Authorized sanctioning of administrative violations
In cases where the persons
competent to sanction administrative violations defined in Clauses 1 and 3,
Article 21 of this Decree are absent and authorize in writing their deputies,
the latter shall be competent to sanction administrative violations but must
not further authorize other persons and must take responsibility for their
decisions.
Article
23.- Stopping acts of administrative violation
Upon detecting acts of
administrative violation, the persons competent to sanction administrative
violations must order in writing the immediate stop of such acts of
administrative violation.
Article
24.- Making of written records on administrative violations
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2. The making of written records
on administrative violations shall apply to all cases involving acts of
violation in the field of securities and securities market, except for cases
where cautions are served or where violations previously involved in criminal
cases are re-determined to be subject to administrative handling.
3. A written record on
sanctioning of administrative violation must be made in at least two copies
according to a set form. Written records must be signed by record makers,
violators or representatives of violating organizations. If there are
witnesses, victims or representatives of victim organizations, they must
jointly sign the written records. If a written record contains many pages, the
persons mentioned in this Clause must jointly sign each page. In cases where
violators, representatives of violating organizations, witnesses, victims or
representatives of victim organizations refuse to give their signatures in
written records, the record makers shall have to clearly state reasons for the
refusal in the written records.
4. One copy of a completely made
written record shall be handed to violating organization or individual. For
violations falling beyond the record makers' competence to sanction
administrative violations, they shall have to send written records on
administrative violations (originals) and all documents and dossiers already
detected to be related to violation acts to authorities with sanctioning
competence within three working days after making such written records.
Article
25.- Sanctioning decisions
1. Each sanctioning decision
must be made in at least 5 copies according to a set form (for sanctioning form
being caution) and at least 6 copies according to a set form (for sanctioning
form being fine).
2. The time limit for issuing
decisions on sanctioning of administrative violations shall be 10 working days,
after written records on the administrative violations are made; for cases
involving complicated circumstances, the time limit for issuing sanctioning
decisions is 30 days. In cases where more time is needed to verify or gather
evidences, competent persons shall have to report such in writing to their
immediate superiors for prolongation of the said time limits. The prolongation
must be made in writing and must not exceed 30 days. Past that time limit,
persons competent to sanction must not issue sanctioning decisions. In cases
where no sanctioning decision is issued, the remedial measures prescribed in
Clause 3, Article 7 of this Decree may still be applied.
3. When deciding on sanctioning
of an organization or individual that commits many acts of administrative
violation, the competent person shall issue only one sanctioning decision. For
cases involving many individuals and organizations committing the same act of
administrative violation, but there exists no relationship among them in the
course of performance of violation act, each individual or organization shall
be sanctioned by a separate sanctioning decision. Depending on the nature and
seriousness of violations committed by each individual or organization, persons
with sanctioning competence shall decide on appropriate specific sanctioning
level.
If sanctioning forms and levels
fall beyond the competence of sanctioning persons, such persons shall have to
transfer violation cases to authorities with sanctioning competence.
4. In cases where an
administrative violation falls under sanctioning competence of many persons,
the sanctioning thereof shall be carried out by the person who accepts the
violation case first.
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6. The time limit for sending sanctioning
decisions to sanctioned organizations and individuals and the fine-collecting
agencies shall be three working days after such sanctioning decisions are
issued.
Article
26.- Fining procedures
1. Cases subject to pecuniary
fines shall comply with the procedures prescribed in Articles 24 and 25,
Chapter III of this Decree. Within 10 working days after being handed the
sanctioning decisions, the sanctioned organizations or individuals shall have
to pay fine amounts stated in such sanctioning decisions into the State
Treasury and shall receive fine payment receipts.
2. When fines are imposed,
specific fine level applicable to one act of administrative violation shall be
the average level of the fine bracket prescribed for such act. If such act
involves extenuating circumstance(s), the fine level may be reduced but must
not be lower than the minimum level of the fine bracket. If such act involves
aggravating circumstance(s), the fine level may be raised but must not be
higher than the maximum level of the fine bracket.
Article
27.- Procedures for depriving the right to use licenses, practice
certificates
1. Specialized chief inspectors
may issue decisions on deprivation of the right to use licenses or practice
certificates according to the provisions of Point b, Clause 2, Article 7 of
this Decree.
2. For cases subject to the
deprivation of the right to use licenses or practice certificates, a
sanctioning decision must clearly state: the name, type and serial number of
license; serial number of certificate; duration of deprivation of the right to
use license or practice certificate. In cases where only a decision on
suspension of a specific professional operation is issued, persons with
sanctioning competence must clearly state in such sanctioning decision the
suspended professional operation and the duration of deprivation of the right
to conduct such professional operation.
3. When detecting that licenses
are granted ultra vires or contain illegal contents, persons with sanctioning
competence shall have to immediately withdraw them and concurrently report such
to the licensing State agencies.
Article
28.- Procedures for confiscating and handling material evidences and means
used in administrative violations
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2. In cases where it is
necessary to seal up material evidences and means used in violations, such
seal-up must be carried out in front of administratively sanctioned individuals
or representatives of sanctioned organizations and witnesses; if sanctioned
individuals or representatives of sanctioned organizations are absent, two
witnesses are required.
3. Procedures for handling
material evidences and means used in administrative violations shall comply
with Article 61 of the Ordinance on Handling of Administrative Violations.
Article
29.- Transfer of dossiers of violations showing criminal signs for penal
liability examination
Procedures for transferring
dossiers of violation cases showing signs of crimes for penal liability
examination shall comply with Article 62 of the Ordinance on Handling of
Administrative Violations.
Article
30.- Transfer of violation dossiers for sanctioning of administrative
violations and execution of decisions on sanctioning of administrative
violations
Procedures for transferring
dossiers of violation cases for sanctioning of administrative violations and
executing decisions on sanctioning of administrative violations shall comply
with Articles 63 and 64 of the Ordinance on Handling of Administrative
Violations.
Article
31.- Coercive execution of decisions on sanctioning of administrative
violations
1. Individuals and organizations
sanctioned for administrative violations that fail to voluntarily execute
sanctioning decisions shall be coerced to do so with the following measures:
a/ Partial deduction of wages or
incomes or deduction from bank accounts;
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c/ Application of other coercive
measures to confiscate material evidences or means used in administrative
violations, forcible compliance with law provisions on acts of administrative
violation.
2. Persons competent to sanction
administrative violations defined in Clauses 1 and 3, Article 21 of this Decree
may issue coercive decisions and shall be obliged to organize the coercion.
3. Individuals and organizations
that have received coercive decisions must strictly abide by them.
4. State agencies, people's police
force and People's Committees of all levels shall have to coordinate with one
another in organizing the coercion at requests of persons competent to sanction
administrative violations prescribed in Clause 2 of this Article.
5. Individuals and organizations
subject to coercion must bear all expenses for application of coercive
measures.
Article
32.- Delivery of administrative violation-sanctioning decisions for
execution
The delivery of administrative
violation-sanctioning decisions for execution shall comply with Article 68 of
the Ordinance on Handling of Administrative Violations.
Article
33.- Statute of limitations for execution of administrative
violation-sanctioning decisions
Statute of limitations for
execution of administrative violation-sanctioning decisions shall comply with
Article 69 of the Ordinance on Handling of Administrative Violations.
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SUPERVISION AND
INSPECTION IN SANCTIONING OF ADMINISTRATIVE VIOLATIONS, SETTLEMENT OF
COMPLAINTS AND DENUNCIATIONS AND HANDLING OF VIOLATIONS COMMITTED BY PERSONS
COMPETENT TO SANCTION ADMINISTRATIVE VIOLATIONS IN THE FIELD OF SECURITIES AND
SECURITIES MARKET
Article
34.- Supervision and inspection in sanctioning of administrative violations
The Finance Minister has the
responsibility to regularly supervise and inspect the sanctioning of
administrative violations in the field of securities and securities market;
promptly settle complaints and denunciations related to persons with
sanctioning competence defined in Article 21 of this Article in sanctioning of
administrative violations; handle persons committing violations or making
mistakes in sanctioning administrative violations under his/her management, and
report on the situation of administrative violations under his/her charge at
requests of competent agencies.
Article
35.- Settlement of complaints about, lawsuits against, administrative
violation-sanctioning decisions and denunciations against illegal acts of
persons competent to sanction administrative violations
1. Individuals and organizations
sanctioned for administrative violations in the field of securities and
securities market may lodge their complaints about persons issuing
administrative violation-sanctioning decisions to competent State agencies.
Competent State agencies shall have to settle such complaints according to law
provisions on complaints and denunciations.
The initiation of lawsuits
against administrative violation-sanctioning decisions at administrative courts
under People's Courts of all levels shall comply with the provisions of the Law
on Complaints and Denunciations and the Ordinance on Procedures for Handling
Administrative Cases.
In the course of lodging
complaints or initiating lawsuits, individuals and organizations sanctioned for
administrative violations still have to execute sanctioning decisions. When
decisions on complaint settlement are issued by competent State agencies or
court judgments or decisions take legal effect, they shall abide by such
decisions of competent State agencies or court judgments or decisions.
2. The denunciation and
settlement of denunciations against illegal acts in sanctioning administrative
violations in the field of securities and securities market shall comply with the
provisions of the Law on Complaints and Denunciations and other relevant law
provisions.
Article
36.- Handling of violations committed by persons competent to sanction
administrative violations in the field of securities and securities market
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Chapter V
IMPLEMENTATION PROVISIONS
Article
37.- Effect of the Decree
This Decree takes effect 15 days
after its publication in the Official Gazette and replaces the Government's
Decree No. 22/2000/ND-CP of July 10, 2000 on sanctioning of administrative
violations in the field of securities and securities market. The previous
stipulations which are contrary to this Decree are hereby annulled.
Article
38.- Responsibilities to guide and implement the Decree
The Finance Minister shall have
to guide in detail the implementation of this Decree.
The ministers, the heads of the
ministerial-level agencies, the heads of the Government-attached agencies and
the presidents of the People's Committees of the provinces and centrally-run
cities shall have to implement this Decree.
ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Phan Van Khai