THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
202/2004/ND-CP
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Hanoi,
December 10, 2004
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DECREE
ON THE PUNISHMENT OF ADMINISTRATIVE VIOLATIONS IN THE
MONETARY AREA AND BANKING ACTIVITY
THE GOVERNMENT
- Pursuant to the Law on the
Organization of the Government dated 25 December 2001;
- Pursuant to the Law on the State Bank of Vietnam dated 12 December 1997 and the
Law on the amendment, supplement of several Articles of the Law on the State
Bank of Vietnam dated 17 June 2003;
- Pursuant to the Law on Credit Institutions dated 12 December 1997 and the on
the amendment, supplement of several Articles of the Law on Credit Institutions
dated 15 June 2004;
- Pursuant to the Ordinance on the settlement of the administrative violations
dated 02 July 2002;
- Upon the proposal of the State Bank Governor,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.
Governing scope
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2. Administrative violations in
the monetary area and banking activity provided for in this Decree shall
include following violation acts:
- Violation of the establishment
and operation license, operational license, organizational structure of credit
institutions;
- Violation of the
administration, management and audit;
- Violation of funds
mobilization;
- Violation of the lending,
banking guarantee, discount and finance leasing;
- Violation of the foreign
exchange control, gold business control;
- Violation of payment,
acquisition, investment in fixed assets and immovable assets business;
- Violation of prudence in the
credit institutions activities;
- Violation of the accounting,
statistics, information, reporting, banking secrecy;
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Article 2. Subjects
of application
1. Domestic and foreign
individuals, agencies, organizations (hereinafter referred to as individuals,
organizations) that commit, whether intentionally or unintentionally, acts of
violation of provisions on the State management in the monetary area and
banking activity, which are not a crime, shall be all subject to the
administrative punishment in accordance with provisions in this Decree, unless
otherwise provided for by the International Treaties, which the Socialist
Republic of Vietnam is a signatory or accedes to.
2. Organizations shall be
subject to the administrative punishment for all acts of administrative
violations committed by them. After complying with the punishment decision,
punished organizations shall determine individuals who have committed such
administrative violations to determine their legal liability in accordance with
provisions of applicable laws.
Article 3.
Principles for the punishment of administrative violations
The principles for the
punishment of administrative violations in the monetary area and banking
activity shall comply with the provisions in Article 3 of the Ordinance on the
settlement of administrative violations.
Article 4.
The time limit of the punishment of administrative violations
1. The time limit of the
punishment of the administrative violations in the monetary area and banking
activity shall be 2 years, from the date of committing the act of
administrative violation.
If the above-mentioned time
limit has elapsed, the punishment cannot be imposed but measures as provided
for in paragraph 3 Article 7 of this Decree shall be applied.
2. For individuals who have been
prosecuted or subject to the decision on the judgment under the criminal action
procedures, which are then suspended from any investigation or court judgment,
but the violation acts indicate signs of administrative violation, they shall
be subject to the administrative punishment; within the period of 3 working
days from the date where the investigation, the court case is suspended, the
person who makes this decision must serve the decision to the person who is
competent for the punishment; in this case, the time limit of the
administrative punishment shall be 3 months from the date where the competent
person receives the suspension decision and the file of the violation case.
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Article 5.
The term considered as not being punished for administrative violation
Organizations, individuals shall
be considered as not being punished for administrative violation if they do not
recommit any administrative violation one year from the date of the decision on
the punishment or from the date where the time limit for the enforcement of the
punishment decision terminates.
Article 6.
Elements of alleviation and elements of severity
For the enforcement of the
punishment of administrative violation in the monetary area and banking
activity, following elements shall be considered as elements of alleviation and
elements of severity:
1. Elements of alleviation:
a. The administrative violator
has prevented, mitigated the adverse affect of the violation act or voluntarily
restored the consequences and compensated for damages;
b. The administrative violator
has voluntarily confessed and sincerely repented of his violation act;
c. The violation act is
committed due to being forced or materially or mentally dependent;
d. The violation act is
committed due to the backward level of knowledge.
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a. Violation is committed in an
organized manner;
b. Many violation acts are
committed in the same area or the violation act is repeated in the same area;
c. Forcing people, who is
materially or mentally dependent to commit violation act;
d. Abuse of position, authority
to commit violation;
dd. Abuse of warfare situation,
natural calamity or other special social difficulties to commit violation;
e. Violation is committed during
the period of performing the criminal penalty or the decision on the punishment
of administrative violation;
g. The administrative violation
act is committed despite demand by the competent person to terminate such act;
h. There are acts of hiding,
covering up violations after they have been committed.
Article 7.
Punishment forms and measures for overcoming the consequences
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a. Warnings;
b. Fine.
2. Individuals, organizations,
which have committed the administrative violations, may be, depending on the
nature, the seriousness of violation, subject to one or several forms of
additional punishment as follows:
a. Confiscating the material
evidence, means, which have been used for committing the administrative
violation;
b. Being suspended by the
competent authorities, for a time limit or without time limit, from performance
of one or several operational activities relating to the administrative violation
act in the monetary area and banking activity in accordance with provisions of
the Law on the State Bank of Vietnam and the law on Credit institutions.
3. In addition to the forms of
punishment stipulated in paragraphs 1, 2 of this Article, individuals, who and
organizations, which have committed the administrative violation, may be
subject to the settlement of consequences; shall be required to correctly
comply with provisions of applicable laws for administrative violation acts
Chapter II
ACT OF THE ADMINISTRATIVE
VIOLATION IN THE MONETARY AREA AND BANKING ACTIVITY, FORMS OF PUNISHMENT AND
FINE LEVEL
Section I.
ADMINISTRATIVE VIOLATION OF THE ESTABLISHMENT AND OPERATION LICENSE OF CREDIT
INSTITUTIONS
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1. A fine of VND 5,000,000 to
VND 12,000,000 shall be imposed on one of following acts:
a. To fail to operate in
accordance with provisions stated in the license;
b. To operate without the
approval by the competent authority of the Charter, unless otherwise provided
for by applicable laws;
2. A fine of VND 10,000,000 to
VND 20,000,000 shall be imposed on one of following acts:
a. To lend, lease or transfer
the license to other organizations, individuals;
b. To erase, or change the
license.
3. A fine of VND 45,000,000 to
VND 70,000,000 shall be imposed on one of following acts:
a. To engage in the banking
activity without the license;
b. To continue the banking
activity after the license has been suspended, revoked or expired;
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Requesting the competent
authority to suspend, for a time limit or without a time limit from the
performance of one or several operational activities in respect of
administrative violation acts stated in paragraph 2 of this Article.
Section 2.
ADMINISTRATIVE VIOLATION OF THE ADMINISTRATION, MANAGEMENT AND AUDIT
Article 9.
Violation of the administration, management
1. A fine of VND 2,000,000 to
VND 6,000,000 shall be imposed on one of following acts:
a. The Chairman of the Board of
Directors holds concurrently the post of the General Director (Director) or
Deputy General Director (Deputy Director) of the credit institution, unless
otherwise provided for by applicable laws.
b. The Chairman or other members
of the Board of Directors authorize a person who is not a member of the Board
of Directors to perform their duties;
c. The Chairman of the Board of
Directors participates in the Board of Directors or the Board of management of
another credit institution, unless the latter is a company of the former credit
institution or the Chairman of the Board of Directors of the local peoples
credit Fund participates in the Board of Directors of the central peoples
credit Fund;
d. The General Director
(Director), the Deputy General Director (Deputy Director) does not reside in
Vietnam during their term of business; The General Director (Director) of a
credit institution is concurrently the General Director (Director) of another
credit institution unless the latter is a company of the former.
2. A fine of VND 3,000,000 to
VND 9,000,000 shall be imposed on credit institutions which commit acts of
assignment or appointment of persons who are parents, spouse, children,
siblings of members of the Board of Directors, General Director (Director) as
member of the Controller Committee, the Chief Accountant of the same credit
institution; acts of assignment or appointment as members of the Board of
Directors, the Controller Committee, the General Director (Director), Deputy
General Director (Deputy Director), the Chief Accountant following persons:
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b. Those who are sentenced for
severe violation of national security, socialist ownership, ownership of
citizens, severe economic offences and the sentence has not been removed;
c. Those who have been sentenced
for other criminal but the sentence has not been removed
d. Those who have been a member
of the Board of Directors or the General Director (Director) of a bankrupt
company in accordance with provisions stated in Article 94 of the Law on
bankruptcy in 2004, except for cases of bankruptcy due to reasons of
force-majeure;
dd. Those who have been the
lawful representative of a company, which was suspended from operation due to
committing severe law violations.
3. A fine of VND 10,000,000 to
VND 20,000,000 shall be imposed on the act where the Chairman of the Board of
Directors, General Director (Director) issues a document of operational
guidance, the content of which is inconsistent with applicable laws.
4. Application of measures for
settlement of consequences:
Any violation act stipulated in
paragraphs 1, 2, 3 of this Article shall be required to correct for compliance with
provisions of applicable laws within a period of 2 months.
Article 10.
Violations of changes, which require approval
1. Any act of changing one of
the following contents without a written approval by the competent authority shall
be subject to a fine of VND 2,000,000 to VND 6,000,000:
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b. Members of the Board of
Directors, the General Director (Director), members of the Controller
Committee.
2. Any act of changing one of
the following contents without a written approval by the competent authority
shall be subject to a fine of VND 5,000,000 to VND 12,000,000:
a. The Charter capital, the
appropriated capital;
b. Transfer of non-bearer shares
not in compliance with provisions of applicable laws;
c. The share ratio of major
shareholders
3. Act of changing the location
of the Head-office, the operation center, branches, representative offices
without a written approval by the competent authority shall be subject to a
fine of VND 10,000,000 to VND 20,000,000.
4. A fine of VND 20,000,000 to
VND 40,000,000 shall be imposed on one of following acts, which have been
committed without a written approval of the competent authority:
a. Split, separation, merge,
integration, acquisition, dissolution of credit institutions;
b. Opening of the operation
center, branches, subsidiary companies, non-productive units, and
representative offices in any location inside, outside the country, including
the location of the Head-office;
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Any violation act as stipulated
in paragraphs 1, 2, 3, 4 of this Article shall be required to correct for
compliance with provisions of applicable laws within a period of 1 month.
Article 11.
Violation of the internal control and independent audit
1. Warnings shall be given to
following acts:
a. The internal control
organization is not structured in conformity with provisions of applicable
laws;
b. The internal control program
is not made in conformity with provisions of applicable laws;
2. The act of failure to carry
out the independent audit for the operational activity of the credit
institution in accordance with provisions of applicable laws shall be subject
to a fine of VND 3,000,000 to VND 9,000,000;
3. Application of measures to
overcome the consequences
Any violation act stipulated in
paragraphs 1, 2 of this Article shall be required to correct for compliance
with provisions of applicable laws within a period of 3 month.
Section 3.
ADMINISTRATIVE VIOLATION OF FUNDS MOBILIZATION
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Any non-bank credit institution,
which fails to correctly comply with provisions on deposits taking from
organizations, individuals in accordance with provisions of applicable laws,
shall be subject to a fine of VND 15,000,000 to VND 30,000,000.
Article 13.
Violation of the issuance of valuable paper
1. Any credit institution, which
commits an act of issuing valuable paper exceeding the total face value
approved in writing by the competent authority, shall be subject to a fine of
VND 15,000,000 to VND 30,000,000.
2. Any credit institution, which
commits an act of issuing valuable paper in VND, in foreign currency or in gold
to mobilize funds from domestic or foreign organizations and individuals
without a written approval by the competent authority, shall be subject to a
fine of VND 45,000,000 to VND 70,000,000.
3. Application of supplementary
punishment.
Requesting the competent
authority to suspend the activity of valuable paper issuance within a period of
3 months to 6 months for credit institutions, which have repeated the violation
act as stipulated in paragraph 1 of this Article.
Section 4.
ADMINISTRATIVE VIOLATION OF LENDING, BANK GUARANTEE, DISCOUNT AND FINANCE
LEASING
Article 14.
Violation of lending
1. The act of failure to
publicly announce levels of lending interest rates to customers shall be
subject to a fine of VND 200,000 to VND 500,000:
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a. Failure to keep in record
credit files in accordance with provisions of applicable laws;
b. Credit contracts (or other
substitute documents for the credit contract permitted by the competent
authority) are not made in conformity with provisions of applicable laws.
3. One of the following acts
shall be subject to a fine of VND 2,000,000 to VND 6,000,000:
a. Failure to set up the lending
procedure;
b. Failure to perform the
examination, supervision of the lending process, the use of loan funds and the
repayment of customers under the provisions of applicable laws.
4. One of the following acts
shall be subject to a fine of VND 3,000,000 to VND 9,000,000:
a. Failure to make credit
contracts;
b. Failure to classify the
overdue debts in accordance with provisions of applicable laws;
c. Failure to apply interest
rate exemption, reduction; reschedule principal or interest debts; adjust the
repayment periods of principals and interests; refinance the loans in
accordance with provisions of applicable laws.
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a. Lending to organizations,
which, individuals, who are not qualified for funds borrowing in accordance
with provisions of applicable laws.
b. Making loan syndication,
lending under entrustment and taking entrustment for lending not in compliance
with provisions of applicable laws.
6. The act of lending against
the mortgage of share certificates of the lending credit institutions shall be
subject to a fine of VND 10,000,000 to VND 20,000,000.
7. Application of measures to
overcome the consequences
Any violation act as stipulated
in paragraphs 1, 2,3, 4, 5,6 of this Article shall be required to correct for
compliance with provisions of applicable laws on lending.
Article 15.
Violation of the discount, rediscount of commercial paper and other valuable
papers
Acts of failure to extend credit
in form of discount, rediscount of commercial paper and other valuable papers
in accordance with provisions of applicable laws shall be subject to a fine of VND
5,000,000 to VND 12,000,000.
Article 16.
Violation of borrowing guarantee, payment guarantee, performance guarantee,
tender guarantee and other forms of bank guarantee (generally referred to as
guarantee)
1. Failure to keep in record
guarantee files in accordance with provisions of applicable laws shall be
subject to a fine of VND 1,000,000 to VND 3,000,000;
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a. Provision of guarantee to
organizations which, individuals who do not fully satisfy conditions in
accordance with provisions of applicable laws;
b. Receipt of security assets
for the guarantee or failure to correctly comply with other provisions of
applicable laws on guarantee.
3. Credit institutions which commit
acts of issuing a borrowing guarantee, payment guarantee and other forms of
bank guarantee to guarantee receiver, who is a foreign organization, individual
without any permit of the competent authority to carry out the international
payment shall be subject to a fine of VND 30,000,000 to VND 50,000,000.
5. Application of additional
punishments:
Requesting the competent
authority to suspend the implementation of the guarantee operation for a period
of 3 months for the credit institutions, which have committed the violation
acts as stipulated in paragraph 2 of this Article from the date where the
violation acts are detected.
Article 17.
Violation of finance leasing activity
1. One of following acts shall be
subject to a fine of VND 1,000,000 to VND 3,000,000:
a. Failure to keep in record
finance leasing files in accordance with provisions of applicable laws;
b. Failure to make finance
leasing contracts in accordance with provisions of applicable laws.
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a. Failure to prepare finance
leasing procedures;
b. Failure to perform the
examination, supervision for the finance leasing process, the use of finance
lease assets and repayment of customers;
3. One of following acts shall
be subject to a fine of VND 3,000,000 to VND 9,000,000:
a. Failure to prepare the
finance leasing contract;
b. Failure to classify the
overdue debts in accordance with provisions of applicable laws;
c. Failure to perform the
interest rate exemption, reduction, reschedule of principals or interests, to
adjust the repayment period of principals and interests in accordance with
provisions of applicable laws;
4. One of following acts shall
be subject to a fine of VND 5,000,000 to VND 12,000,000:
a. Provision of finance leasing
to organizations which, individuals who do not fully satisfy conditions in
accordance with provisions of applicable laws;
c. Provision of syndication
finance leasing, entrusting and taking entrustment for the finance leasing not
in compliance with provisions of applicable laws.
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Any violation act as stipulated
in paragraphs 1, 2,3, 4 of this Article shall be required to correct for
compliance with provisions on financial leasing.
Section 5.
ADMINISTRATIVE VIOLATION OF FOREIGN EXCHANGE CONTROL AND GOLD BUSINESS CONTROL
Article 18.
Violation of provisions on foreign exchange control, gold business control
1. A fine of VND 200,000 to VND
500,000 shall be imposed on the act of failure to publicly list the
buying/selling exchange rate of foreign currencies at the transaction location
in accordance with provisions of the competent authority;
2. A fine of VND 1,000,000 to
VND 3,000,000 shall be imposed on the acts of buying from/selling, making
payment in foreign currency to customers or making payment of foreign currency
remitted to Vietnam by customers from foreign country not in consistence with
the transaction exchange rates as provided for by the State Bank.
3. One of the following acts
shall be subject to a fine of VND 5,000,000 to VND 12,000,000:
a. Lending, providing the
finance leasing or making debt repayment domestically in foreign currency not
in consistence with provisions of applicable laws;
b. Remitting, carrying foreign
currency out of and into Vietnam in contrary to provisions of applicable laws,
except for cases stipulated in paragraph 6 of this Article;
c. Making payment for goods and
services in foreign currency with foreigners not in compliance with provisions
of applicable laws;
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4. One of the following acts
shall be subject to a fine of VND 10,000,000 to VND 20,000,000:
a. Opening or use of a foreign
currency account abroad by individuals, organizations without any permit or not
in accordance with the provisions stated in the license issued by the competent
authority;
b. Failure by credit
institutions to comply with provisions of applicable laws on foreign currency
position or Vietnam Dong position;
c. Failure by organizations,
which have foreign currency earnings, to comply with provisions of applicable
laws on the sale of the foreign currency receipts to credit institutions;
d. Failure by organizations to
comply with provisions of applicable laws on foreign borrowing and repayment,
guarantee and re-guarantee for the foreign borrowing;
dd. Failure by organizations,
individuals to buy, sell, use gold of international standard in accordance with
provisions of applicable laws;
e. Hiding or conspiracy of
organizations, individuals in respect of violation of applicable laws on
foreign exchange activity;
g. Failure by individuals, who,
organizations, which have foreign currency earnings from abroad, to comply with
provisions of applicable laws on foreign currency remittance into the country.
5. One of the following acts
shall be subject to a fine of VND 45,000,000 to VND 70,000,000:
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b. Performance of foreign
currency remittance by individuals, organizations, which are not a credit
institution, without any license of the competent authority;
c. Engagement by individuals,
organizations in the export, import activity of foreign currency, gold without
any permit from the State Bank
6. The carrying of foreign
currency or gold abroad or into Vietnam through border checkpoints by
individuals, organizations, which exit, enter Vietnam, not in compliance with
provisions of applicable laws on Customs, shall be subject to the
administrative punishment in the customs area.
7. Application of additional
punishments
To confiscate the foreign
currency or gold for the violation acts as provided for in point b, paragraph 3
and point dd paragraph 4 of this Article;
Section 6.
ADMINISTRATIVE VIOLATION OF PAYMENT, PURCHASE, INVESTMENT IN FIXED ASSETS AND
IMMOVABLE ASSETS BUSINESS
Article 19.
Violation of cash payment
1. A fine of VND 1,000,000 to
VND 3,000,000 shall be imposed on the act of violation of the limit on the cash
balance in the vault.
2. A fine of VND 2,000,000 to
VND 6,000,000 shall be imposed on one of following acts:
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b. Violation of the limit on
cash payment.
Article 20.
Violation of provision and use of cheques, payment through payment services
suppliers
1. A fine of VND 3,000,000 to
VND 9,000,000 shall be imposed on the act of intentionally issuing cheques,
which are not qualified for payment and failure to comply with the repayment
obligation for the entire amount, which is claimed to the beneficiary or to the
person who has paid to the beneficiary.
2. One of following acts shall
be subject to a fine of VND 5,000,000 to VND 12,000,000:
a. Keeping, circulating,
transferring, using the counterfeit means of payment;
b. Accessing or trying to access
to, destroying, illegally changing program or database in the computer network
which is used for the payment.
Article 21.
Violation of vault safety
1. A fine of VND 1,000,000 to
VND 3,000,000 shall be imposed on any act of violation of the regime on the
vault safety provided for by the State Bank.
2. A fine of VND 5,000,000 to
VND 12,000,000 shall be imposed on any act of destroying Vietnamese currency,
which does not reach to the extent where a criminal liability may be
prosecuted.
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Credit Institutions that commit
an act of purchasing, investing in fixed assets that exceed the permitted ratio
in accordance with provisions of applicable laws shall be subject to a fine of
VND 10,000,000 to VND 20,000,000.
Article 23.
Violation of immovable assets business
Any act of directly engaging in
the immovable assets business by credit institutions shall be subject to a fine
of VND 30,000,000 to VND 50,000,000.
Section 7.
ADMINISTRATIVE VIOLATION OF PRUDENCE IN THE CREDIT INSTITUTIONS ACTIVITIES
Article 24.
Violation of the opening of account and maintenance of required reserve
1. Warnings shall be given to
any act of failure to open the account required reserve deposit at the State
Bank or the maintenance of an average balance on this account at a level, which
is lower than the required reserve in accordance with the provisions of
applicable laws.
2. Application of measures to
overcome consequences:
To be forced to immediately
establish the level of required reserve in accordance with provisions of
applicable laws.
Article 25.
Violation of the prudence in the activity of lending, guarantee, discount of
commercial paper and other valuable papers, finance leasing
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a. Auditing firms which,
auditors who are performing the audit at the credit institution; the Chief
Accountant of the credit institution, inspectors who are performing the
inspection at the credit institution;
b. Major shareholders of the
credit institution;
c. Any enterprise which has one
of the subjects provided for in points a, b, c paragraph 2 of this Article
owning more than 10% of the charter capital of that enterprise, unless
otherwise provided for by applicable laws;
2. One of the following acts
shall be subject to a fine of VND 5,000,000 to VND 12,000,000:
a. Lending, providing the
finance lease to members of the Board of Directors, members of the Controller
Committee, the General Director (Director), Deputy General Directors (Deputy
Directors) of the credit institution, unless otherwise provided for by
applicable laws;
b. Lending, providing the
finance lease to the person who appraises or the person who approves the
lending, finance leasing, unless otherwise provided for by applicable laws;
c. Lending, providing finance
lease to parents, spouses, children of members of the Board of Directors,
members of the Controller Committee, the General Director (Director), Deputy
General Directors (Deputy Directors) of the credit institution, unless otherwise
provided for by applicable laws;
d. Accepting guarantees issued
by one of the subjects mentioned in points a, b, c paragraph 2 of this Article
as security for the lending, finance leasing to customers;
3. A fine of VND 10,000,000 to
VND 20,000,000 shall be imposed on one of the following acts:
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- Loans extended under the
Governments regulations; lending, providing finance lease from funds entrusted
by the Government, by organizations/individuals or for the case where the
borrowing, finance lease customer is another credit institution;
- Lending against the mortgage
of the deposits book issued by the lending credit fund;
b. Providing guarantee to a
customer, discounting commercial papers and other valuable papers exceeding the
ratio to the own capital of the credit institution provided for by provisions
of applicable laws;
c. Lending by the funds which
are banned from lending in accordance with provisions of applicable laws
4. Application of measures to
overcome consequences
Credit institutions shall,
depending on their violation acts, subject to one of following measures for the
settlement of the consequences:
a. For violation acts stipulated
in paragraph 2 of this Article: being forced to collect the lending debts
within a period of 6 months from the date where the violation act is detected;
b. For the violation act
stipulated in paragraphs 1, 3 of this Article: being forced to collect the
lending debts that exceed the stipulated level within a period of 6 months.
Article 26.
Violation of prudential ratios in the credit institutions activity
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- The liquidity ratio;
- The capital adequacy ratio;
- The maximum ratio of the
short-term funds that are used for long, medium term lending;
- Other prudential ratios in
accordance with provisions of applicable laws.
2. Application of measures to
overcome the consequences
The prudential ratio is required
to establish in accordance with provisions of the State Bank within a period of
1 month from the date where the violation act stipulated in this Article is
detected.
Article 27.
Violation of the limit of capital contribution, share purchase
1. One of the following acts
shall be subject to a fine of VND 15,000,000 to VND 30,000,000:
a. Any act committed by credit
institutions to make capital contribution to, purchase shares of an enterprise
or where the total level of capital contribution, share purchase of a credit
institution in all enterprises exceeds the maximum level provided for by
applicable laws;
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2. Application of measures to
overcome the consequences:
Violations stipulated in this
Article are required to be overcome within a period of 12 months from the date
where the violation act is detected.
Article 28.
Violation of the risk provisioning
1. Credit institutions, which
carry out the classification of assets and make risk provisions not in
accordance with provisions of applicable laws shall be subject to a fine of VND
2,000,000 to VND 6,000,000.
2. Credit institutions, which
fail to make provisions for risks in accordance with provisions of applicable
laws, shall be subject to a fine of VND 3,000,000 to VND 9,000,000
3. Credit institutions, which
fail to use risk provisions in accordance with provisions of applicable laws,
shall be subject to a fine of VND 5,000,000 to VND 12,000,000
4. Application of measures to
overcome the consequences:
Provisions on risk provisioning
are required to be complied with within a period of 1 month from the date where
the violation act provided for in this Article is detected.
Article 29.
Violation of setting up and use of funds
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a. Failure to set up funds in
accordance with provisions of applicable laws;
b. Setting up and use of funds not
in compliance with provisions of applicable laws;
2. Application of measures to
overcome the consequences:
a. Funds are required to be set
up in accordance with applicable provisions;
b. The initial status, which has
been changed due to the use of funds not in accordance with provisions of
applicable laws, is required to be restored.
Article 30.
Violation of deposit insurance
1. Warnings shall be given to
one of following acts:
a. Organizations, which
participate in compulsory deposit insurance but do not pay the deposit
insurance fee in accordance with provisions of applicable laws;
b. Organizations, which
participate in the deposit insurance but do not publicly list their
participation at their head office and transaction locations.
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Section 8.
ADMINISTRATIVE VIOLATION OF ACCOUNTING, STATISTIC, INFORMATION AND REPORTING
REGIME AND BANKING SECRECY
Article 31.
Violation of accounting, statistics
Any act of violation of
accounting, statistics in the monetary area and banking activity shall be
subject to the punishment in accordance with provisions in the Governments Decree
on punishment for administrative violations in the accounting, statistics area.
Article 32.
Violation of the management of information, banking activity
1. Warnings shall be given to
the act of failure to submit reports timely in accordance with provisions of
the competent authority;
2. A fine of VND 500,000 to VND
2,000,000 shall be imposed on the act of failure to sufficiently submit reports
or failure to submit reports in accordance with the provisions of the competent
authority.
3. A fine of VND 2,000,000 to
VND 6,000,000 shall be imposed on the act of failure to comply with the
reporting regime in accordance with the provisions of applicable laws, except
for the case stipulated in Article 31.
4. One of the following acts
shall be subject to a fine of VND 3,000,000 to VND 9,000,000:
a. Untruthfully reporting on the
activity of the credit institution;
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5. A fine of VND 5,000,000 to
VND 12,000,000 shall be imposed on the act of failure to immediately report to
the competent authority by the credit institution on the risk to loose the
payment capacity to its customers, which may seriously affect the business
performance of the credit institution.
Article 33.
VIOLATION OF BANKING SECRECY
Fines shall be imposed on acts
of unintentional disclosure of secrecy or loss of documents, data, which are
covered in the List of State confidentiality in the banking area but do not
reach to the extent where a criminal liability may be prosecuted, including:
1. A fine of VND 1,000,000 to
VND 3,000,000 shall be imposed on the act of disclosure of secrecy or loss of
documents, data in the List of the State confidentiality in the banking area
that are in the category of Secret.
2. A fine of VND 3,000,000 to
VND 9,000,000 shall be imposed on the act of disclosure of secrecy or loss of
documents, data in the List of the State confidentiality in the banking area
that are in the category of Top secret.
3. A fine of VND 5,000,000 to
VND 12,000,000 shall be imposed on the act of disclosure of secrecy or loss of
documents, data in the List of the State confidentiality in the banking area
that are in the category of Absolute secret.
Section 9.
ADMINISTRATIVE VIOLATION OF THE RIGHT OF BUSINESS AUTONOMY OF CREDIT
INSTITUTIONS, HINDRANCE OF THE INSPECTION ACTIVITY, NON-COMPLIANCE WITH
REQUESTS BY THE COMPETENT AUTHORITY IN HANDLING ADMINISTRATIVE VIOLATIONS,
ILLEGAL COMPETITION
Article 34.
Act of violation of the right of the business autonomy of credit institutions
and other organizations performing banking activity
Following acts shall be subject
to warnings:
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2. To hide or to connive with
the act of violation provided for in paragraph 1 of this Article.
Article 35.
Acts of hindrance of the inspection activity or non-compliance with requests of
the competent authority in handling the administrative violations
1. One of the following acts
shall be subject to a fine of VND 1,000,000 to VND 3,000,000:
a. Delay, avoidance or failure
to provide fully materials, documents, data upon request by the Inspection, the
inspection team or provision of false documents, data;
b. Hiding, changing documents,
books or proofs during the inspection;
c. Automatic removal, move or
any other acts in order to change the sealed status of: store, vault, safe,
books, accounting documents, credit files, guarantee files, finance leasing
files or proofs, which are sealed or temporarily seized;
2. One of the following acts
shall be subject to a fine of VND 2,000,000 to VND 6,000,000:
a. Failure to comply with the
requests by the State Bank Inspection and other competent agencies;
b. Illegal intervention in the
treatment by the State Bank Inspection.
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1. One of the following acts
shall be subject to a fine of VND 2,000,000 to VND 6,000,000:
a. Giving false information to
the detriment of the interest of credit institutions and legal interests of
other organizations, individuals;
b. Giving illegal promotion;
c. Committing other acts of illegal
competition in accordance with provisions of applicable laws.
2. A fine of VND 5,000,000 to
VND 12,000,000 shall be imposed on the act of speculation to manipulate the
monetary, foreign currency and gold market, which does not reach to the extent
where a criminal liability may be prosecuted.
Chapter
III
COMPETENCE AND
PROCEDURES OF THE PUNISHMENT FOR THE ADMINISTRATIVE VIOLATIONS
Article 37.
Competence to impose the punishment on the administrative violations
1. The Banking Inspectors during
the performance of their duties shall have the right:
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b. to impose fines of up to VND
200,000;
c. to confiscate the proofs,
tools used for administrative violation with the value of up to VND 2,000,000
d. to apply measures to overcome
the consequences as provided for in point 3 Article 7 of this Decree;
2. The Chief Inspector of the
State Banks branches in provinces, cities under the central Governments
management shall have the right:
a. to give warnings;
b. to impose fines of up to VND
20,000,000;
c. to apply additional
punishments and the measures to overcome the consequences as provided for in
point a paragraph 2 and paragraph 3 Article 7 of this Decree;
d. to recommend to the General
Manager of the State Banks branches in provinces, cities under the central
Governments management to suspend the implementation of one or several
operational activities relating to the act of administrative violation for a
time limit or without time limit in accordance with provisions of the Law on
the State Bank of Vietnam and the law on Credit institutions.
3. The Chief Inspector of the
State Bank shall have the right:
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b. to impose fines of up to VND
70,000,000.
c. to apply additional
punishments and the measures to overcome the consequences as provided for in
point a paragraph 2 and paragraph 3 Article 7 of this Decree;
d. to recommend to the Governor
of the State Bank to suspend the implementation of one or several operational
activities relating to the act of administrative violation for a time limit or
without time limit in accordance with provisions of the Law on the State Bank
of Vietnam and the law on Credit institutions.
4. Chairman of provincial
Peoples Committee, Director of the Economic Police Department, Director of the
Criminal Police Department, Director of the Drugs and Criminals Prevention
Police Department, Director of the Exit and Entry Management Department as
stipulated in Article 30 and paragraph 7 Article 31 of the Ordinance on the
settlement of the administrative violations shall have the competence to make
decision on the punishment for the administrative violation in accordance with
the provisions in this Decree and inform the State Bank for knowledge, in the
event where they detect individuals, organizations not being credit
institutions committing any act of violation of provisions on foreign exchange
control in points b, d paragraph 3, points a, c, d, dd, e, g paragraph 4 and
paragraph 5 Article 18 of this Decree.
Article 38.
Authorization to impose punishment on administrative violation
In case where persons who are
competent to impose punishments on administrative violations as provided for in
paragraphs 2, 3, 4 Article 37 of this Decree are absent, their authorized
deputies shall have the competence to impose punishments on the administrative
violation and be responsible for their decision.
Article 39.
Suspension of the act of administrative violation
Upon detecting any act of
administrative violation, the persons who are competent to punish must issue an
order on immediate suspension of that administrative violation act.
Article 40.
Preparation of the minutes on the administrative violation
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2. The preparation of the
minutes on the administrative violation shall be applicable to every case of
administrative violation in the monetary area and banking activity, except for
the cases where the violation act is determined to be transferred from a criminal
case for the settlement of the administrative violation.
3. The minutes on the
administrative violation must be made at least in 2 sets under the stipulated
pro-forma; the minutes must be signed by the drawer, violator or representative
of the violating organization, in case where the witness, suffering person or
representative of the suffering organization are present, they also must sign
the minutes. If the minutes consists of several pages, persons provided for in
this paragraph must sign each page of the minutes. In case where the violator
or representative of the violating organization, the witness, suffering persons
or representative of the suffering organization refuse to sign their name, the
drawer must clearly state the reason thereof in the minutes.
4. After the complete
preparation of the minutes, violating person(s), violating organization shall
keep one copy. If the violation case exceeds the punishment competence of the
drawer, he must send the minutes (the original) and the entire materials, files
relating to the violation act to the competent authority within a period of 3
working days from the date where the minutes is prepared.
Article 41.
Punishment decision
1. The punishment decision must
be made under the stipulated pro-forma. The time limit for making the decision
on the punishment of administrative violation shall be 10 working days from the
date, where the minutes on the administrative violation is made. For cases with
many complicated elements, the time limit for making punishment decision shall
be 30 working days. In case where further time is needed for verification,
collection of proofs, the persons who are competent to impose punishments must
report to their direct superior in writing to ask for extension, the extended
time shall not be in excess of 30 days. The superior must give his written
opinion. When the above-mentioned duration elapses, the competent person shall
no longer be entitled to make punishment decision; in case where the punishment
decision is not made, measures to overcome the consequences stipulated in
paragraph 3, Article 7 of this Decree may be applicable.
2. The punishment of
administrative violation shall be carried out as follows:
a. Upon deciding on the
punishment for a person who has committed many acts of administrative
violation, the competent person shall make only one punishment decision which
clearly stipulates the form, level of punishment for each violation act. If the
form of punishment is the fine, they shall be added up to a common level of fine.
The person who is competent to impose the punishment shall not be entitled to
divide an act of administrative violation into several minor violation acts for
punishment in many times;
b. For a case where several
individuals, organizations commit the same administrative violation act, but
they are not related to each other during the commitment of that violation act,
they shall be subject to the punishment under the separate punishment decision.
Based on the nature, seriousness of the violation of each individual,
organization, the competent person shall decide on the specific level of
punishment applicable to each of them;
c. If the form, level of
punishment is provided for one of acts exceeding the competence of the
punishing person, he shall transfer the violation case to the competent
authority for punishment.
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4. The punishment decision shall
be effective from the date of signing except for the case where the effective
date is decided otherwise in the decision.
5. The punishment decision shall
be sent to individuals, who organizations, which are punished and the fine
collecting agency within a period of 3 working days from the date where the
punishment decision is made.
Article 42.
Procedures for the imposition of fine
1. Fines shall be carried out
under the procedures stipulated in Articles 40, 41 of this Decision. Within a
period of 10 working days from the date of receipt of the punishment decision,
punished individuals, organizations shall pay fine to the State Treasury as
stated in the punishment decision and get a fine receipt.
2. For the fines, the specific
level of fine for an act of administrative violation shall be an average level
of the range of fines provided for that act. The level of fine may be reduced
but should not be lower than the minimum level of the fine in the range, in
case of alleviation. The level of fine may also be increased but should not be
higher than the maximum level of the fine in the range in case of severity.
Article 43.
Procedures for suspending one or several operational activities or revoking the
license that has been issued to the credit institution
1. In respect of administrative
violation acts, which require the application of additional punishments by
suspending one or several operational activities of the credit institution, the
Chief Inspector of the State Bank or the Chief Inspector of the State Banks
branches in provinces, cities under the central Governments management shall
propose to the competent authorities as provided for in point d paragraph 2 and
point d paragraph 3 Article 37 of this Decree for their consideration and
decision.
The suspension of one or several
operational activities of the credit institution shall be performed in
accordance with provisions of the Law on the State Bank of Vietnam and the Law
on Credit Institution.
2. Where a license is detected
as being issued not in compliance with the competency or having contents
contrary to the applicable laws, the person who is competent to impose the
punishment shall immediately report to the competent person, who has issued the
license for his revocation in accordance with the provisions of applicable
laws.
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1. Upon confiscating the proofs,
means of administrative violation stated in the punishment decision, the person
who is competent to impose the punishment must draw a minutes on the
confiscation of the proofs, means of administrative violation under the
stipulated form. The minutes must contain the signatures of persons who carry
out the confiscation, punished person, and representative of punished
organization or the witness.
2. In case where the sealing of
proofs, means of administrative violation is required, the sealing should be
performed in the presence of the punished person or representative of punished
organization and the witness; If the punished person or representative of the
punished organization is absent, there must be the presence of two persons for
witness.
3. Procedures for dealing with
the proofs, means of administrative violation shall be performed according to
the Article 61 of the Ordinance on the settlement of administrative violations.
Article 45.
Transfer of the file of the violation case with the criminal signs for criminal
liability prosecution
The procedures for transferring
the file of the violation case with the criminal signs for criminal liability
prosecution shall be carried out in accordance with the Article 62 of the
Ordinance on the settlement of administrative violations.
Article 46.
Transfer of the violation file for administrative punishment and execution of
the decision on the punishment of the administrative violations.
Procedures for transferring the
file of the violation case for the administrative punishment and execution of
the decision on the punishment of the administrative violations shall be
performed in accordance with Articles 63, 64 of the Ordinance on the settlement
of administrative violations.
Article 47.
Enforcement of the decision on the punishment of administrative violations
1. Organizations, which and
individuals who are subject to the punishment for the administrative violation
and do not volunteer to comply with the punishment decision shall be forced for
the execution by following measures:
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b. Their assets, which have the
value corresponding to that of the fine shall be seized for auction;
c. Other measures of enforcement
can be taken to confiscate the proofs, means used for administrative
violations, and they are forced to restore the initial status that has been
changed due to their administrative violation.
2. Persons who are competent to
impose the punishment as provided for in paragraphs 2, 3, 4 Article 37 of this
Decree shall have the right to make decision on the enforcement and be obliged
to organize the enforcement.
3. Organizations, individuals
must seriously comply with the enforcement decision when they receive it.
4. The State agencies, the
people police and the peoples Committees of different levels shall be
responsible for the cooperation in the enforcement where they receive requests
from the persons with the competence to impose the punishment as stipulated in
paragraph 2 of this Article.
5. Enforced organizations, individuals
shall bear all costs relating to the implementation of enforcement measures.
Article 48.
Delivery of the decision on the punishment of administrative violation for
implementation
The delivery of the decision on
the punishment of administrative violation for implementation shall be carried
out in accordance with Article 68 of the Ordinance on the settlement of
administrative violations.
Article 49.
The effectiveness of the decision on the punishment of administrative
violations
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Chapter IV
SUPERVISION, EXAMINATION
OF THE SETTLEMENT OF ADMINISTRATIVE VIOLATIONS; SETTLEMENT OF COMPLAINTS,
DENUNCIATION AND DEALING WITH VIOLATIONS COMMITTED BY PERSONS WHO ARE COMPETENT
TO IMPOSE PUNISHMENT ON ADMINISTRATIVE VIOLATIONS IN THE MONETARY AREA AND
BANKING ACTIVITY
Article 50.
Supervision, examination of the settlement of administrative violations
Heads of the State agencies
shall be responsible for regular examination for the settlement of the
administrative violations by the persons who are competent to impose
administrative punishment within their management scope; timely dealing with
complaints, denunciation in the administrative punishment related to the
persons who are competent to impose the punishment as provided for in Article
37 of this Decree; dealing with persons who commit violation relating to the
administrative punishment within their management scope and carrying out the
reporting regime on the administrative violation in the area they are in charge
upon the requests of the competent agencies.
Article 51.
Settlement of complaint, litigation against decision on punishment of
administrative violations and denunciation of illegal acts committed by persons
who are competent to impose the administrative punishment
1. Organizations, individuals
subject to the punishment for administrative violations in the monetary area
and banking activity shall have the right to lodge complaint to the State
competent agency about the decision on the punishment of administrative
violations or initiate a court suite. The complaint, litigation shall be
performed in accordance with provisions of applicable laws
During the period of complaint
or litigation, administratively punished organizations, individuals must
continue the execution of the punishment decision. When the decision on the
settlement of complaint from the state competent agency is available or when
the judgment, decision of the Court has come into legal effect, the execution
shall be performed in accordance with the decision on the settlement of
complaint from the state competent agency or the judgment, decision of the
Court.
2. The denunciation and the
settlement of denunciation against illegal acts of persons who are competent to
impose punishment of administrative violation in the monetary area and banking
activity shall be carried out in accordance with the provisions in the Law on
Complaint, denunciation and other provisions of applicable laws.
Article 52.
The settlement of violations committed by persons who are competent to impose
administrative punishment
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Chapter V
IMPLEMENTING PROVISIONS
Article 53.
Effectiveness of implementation
This Decree shall be effective
after 15 days since the date of its publication in the Official Gazette and
replace the Decree No. 20/2000/ND-CP dated 15 June 2000 of the Government on
punishment for administrative violations in the monetary area and banking
activity. Previous provisions in contrary to this Decree shall be repealed.
Article 54.
Implementing guidance
The Governor of the State Bank
of Vietnam shall be responsible to provide guidance on the implementation and
to coordinate with related ministries, agencies to provide guidance on the
implementation of this Decree in necessary case.
Article 55.
Responsibility for implementation
Ministers, Heads of ministerial level
agencies, Heads of Governments agencies, Chairman of Peoples Committees in
provinces, cities under the central governments management shall be responsible
to implement this Decree.
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ON
BEHALF OF THE GOVERNMENT
THE PRIME MINISTER
Phan Van Khai