THE
STATE BANK OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
01/2005/TT-NHNN
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Hanoi,
March 10, 2005
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CIRCULAR
GUIDING
THE IMPLEMENTATION OF THE DECREE No. 202/2004/ND-CP OF THE GOVERNMENT DATED 10
DECEMBER 2004 ON THE PUNISHMENT OF ADMINISTRATIVE VIOLATIONS IN THE MONETARY
AREA AND BANKING ACTIVITY
THE GOVERNOR OF THE STATE
BANK
- Pursuant to the Ordinance
on the settlement of the administrative violations dated 02 July 2002;
- Pursuant to the Decree No. 134/2003/ND-CP of the Government dated 14 November
2003 providing in details for the implementation of several Articles of the
Ordinance on the Settlement of the administrative violations issued in 2002;
- Pursuant to the Decree No. 202/ND-CP of the Government dated 10 December 2004
on the punishment of the administrative violations in the monetary area and
banking activity;
The State Bank of Vietnam
provides guidance on the implementation of the Decree No. 202/ND-CP of the
Government dated 10 December 2004 on the punishment of the administrative
violations in the monetary area and banking activity (hereinafter referred to
as Decree No. 202/2004/ND-CP) as follows:
I. GENERAL PROVISIONS:
AUTHORITY TO IMPOSE THE PUNISHMENT OF THE ADMINISTRATIVE VIOLATIONS; THE
APPLICATION OF FORMS FOR THE ADMINISTRATIVE VIOLATIONS PUNISHMENT
1. Elements of alleviation
and elements of severity
Elements of alleviation and
elements of severity provided for in Article 6 Decree No. 202/2004/ND-CP are
applicable to the punishment of the administrative violations in the monetary
area and banking activity as follows:
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1.2. Violations that are
committed in the same area for many times or that are repeated in the same
area;
- Violations that are committed
in the same area for many times is an act of administrative violation which was
previously committed but has not been punished and the punishment time limit of
which has not expired;
- Repeated violation is an act
of administrative violation, which was previously punished but is repeated
within one year from the date, where the implementation of the punishment
decision is completed or from the date where the time limit for the punishment
decision has expired.
2. Authority for the
punishment for the administrative violations
Only persons who are competent
for the punishment of administrative violations as provided for in Article 37
of the Decree No. 202/2004/ND-CP have the authority to make decision on the
punishment for administrative violations in the monetary area and banking
activity.
In respect of the Inspection
Team: During the on-site Inspection, examination, if any administrative
violation act in the banking and monetary area is detected, the person who is
competent for the punishment of administration violations in the Inspection
Team will make decision on the punishment within the time limit stipulated in
Paragraph 2, Article 41 of the Decree No. 202/2004/ND-CP. In case where members
of the Inspection Team do not have the competence for the punishment or the
required punishment goes beyond their punishment authority, the Head of the
Inspection Team should complete the file for administrative punishment to
submit to the competent person in accordance with provisions in point c,
Paragraph 2, Article 41 of the Decree No. 202/2004/ND-CP.
3. Application of forms for
the administrative violations punishment
3.1. Person who makes decision
on the administrative punishment must consider the elements of alleviation and
elements of severity as provided for in Article 6, provisions on violation
acts, forms of punishment and fine level stipulated in Chapter II of the Decree
No. 202/2004/ND-CP to decide on the application of main forms for the
administrative punishment, supplementary forms of punishment or measures to
settle consequences corresponding to the seriousness and the nature of the
violation act.
3.2. There are 2 main punishment
forms stipulated in Paragraph 1, Article 7 of the Decree No. 202/2004/ND-CP,
which are warnings or fine. Person who makes decision on the administrative
punishment should impose either one of these two main punishment forms on a
violation act.
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The Decree No. 202/2004/ND-CP
clearly provides for 9 groups of violation acts, from Article 8 to Article 36,
each of them covers several specific violation acts. In the imposition of the
administrative violations punishment in the monetary area and banking activity,
the competent person should base on current legal documents such as: the Law on
the State Bank of Vietnam, the Law on credit institutions, Ordinance on the
settlement of the administrative violations, Decrees of the Government
providing guidance on the implementation of the Law on the State Bank of
Vietnam, the Law on credit institutions and other related legal documents to determine
constituent signs, the nature and seriousness of an administrative violation
act.
5. Administrative violations
relating to accounting and statistics
The punishment for the
administrative violations in terms of accounting and statistics in the monetary
area and banking activity is to comply with provisions in the Decree No.
185/2004/ND-CP dated 4 November 2004 of the Government on the settlement of
administrative violations in the accounting area; Decree No. 93/1999/ND-CP
dated 7 September 1999 of the Government on the settlement of administrative
violations in the statistics area and other documents that provide guidance on
the punishment for administrative violations in the statistics, accounting
area.
The Head of the Inspection Team
must report to the specialized Inspectorate in the Finance any administrative
violation act relating to accounting and statistics, which is detected during
the on-site inspection, for their knowledge and punishment according to their
competence.
6. Exceptional cases
Provisions in Article 23 of the
Decree No. 202/2004/ND-CP are not applicable to the sale of assets during the
disposal of loan security assets for the debt recovery.
Provisions in points a, c,
Paragraph 2, Article 25 of the Decree No. 202/2004/ND-CP are not applicable to
General Managers, Deputy General Managers of branches of credit institutions.
II. PROCEDURES OF THE
PUNISHMENT FOR THE ADMINISTRATIVE VIOLATIONS
Upon the imposition of the
punishment for the administrative violations, competent persons should comply
with procedures of the punishment for the administrative violations stipulated
in Chapter III of the Decree No. 202/2004/ND-CP and Chapter IV of the Decree
No. 134/2003/ND-CP dated 14 November 2003 of the Government providing in
details for the implementation of several Articles of the Ordinance on the
settlement of the administrative violation issued in 2002.
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1. Transfer of violation
files with criminal signs for prosecution for criminal liability
Upon considering a violation
case for making punishment decision, if the violation act is considered having
any criminal sign, the competent person as provided for in Paragraphs 2, 3, 4
Article 37 of the Decree No. 202/2004/ND-CP should immediately transfer the
violation file to the competent criminal action agency in accordance with
Article 62 of the Ordinance on the settlement of the administrative violations.
2. Receipt of violation file
for administrative punishment
For administrative violation
acts in the monetary area and banking activity which have been transferred to
competent criminal action agency, but the investigation or the case has been
then suspended by that competent criminal action agency, the person who is
competent for administrative punishment should make decision on the punishment
for the violation case within the following time limits:
2.1. The time limit for making
punishment decision is 10 days at the maximum from the receipt of the decision
on the return of the file of the violation case, if, prior to the transfer of
the violation case to the criminal action agency, the competent person has
asked for the extension of the punishment time limit;
2.2. The time limit for making
punishment decision is 15 days at the maximum from the receipt of the decision
on the return of the file of the violation case, if, prior to the transfer of
the violation case to the criminal action agency, the competent person has not
yet asked for the extension of the punishment time limit;
In case where it is required to
take further time for verification, collection of evidences, the person, who is
handling the violation case, may ask for the extension of the time limit for
making punishment decision up to 30 days at the maximum.
2.3. After the imposition of the
administrative punishment in accordance with provisions in Decree No.
202/2004/ND-CP, the competent persons stated in Paragraph 4, Article 37 of the
Decree No. 202/2004/ND-CP should give a notice to the State Bank of Vietnam for
its knowledge.
3. Dealing with
administrative violations delivered by the State management agencies, law
protection agencies
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a. To receive files, documents
on these administrative violation cases;
b. to consider, make decision on
the administrative punishment, apply supplementary forms of punishment and take
measures for consequence settlement in accordance with their competence provided
for in Decree No. 202/2004/ND-CP and this Circular;
c. Within a period of 5 working
days from the receipt of the file on an administrative violation case, if the
documents, evidences in the file are not considered to be sufficient for
administrative punishment, the State Bank branches in provinces, cities under
the central Governments management should make a written statement of the
reason thereof and require the person who has drawn up the minutes on the
administrative violation to supplement proof of the violation act; in necessary
case, they should directly investigate and verify. If the agency that has drawn
up the minutes on the punishment fails to provide sufficient documents,
evidences or the investigation and verification has shown that there is not
enough evidence to prove the administrative violation act, the State Bank
branches in provinces, cities should not make decision on the administrative
punishment and return the file, documents to the agency that has drawn up the
minutes.
d. The Chief Inspector of the
State Bank branches in provinces, cities under the center Governments
management is responsible to implement provisions mentioned in items a, b, c,
point 3.1, Paragraph 3 of this Section, and make written recommendations as to
the settlement of the administrative violations, which clearly states the
violation acts, suggested fine level, the basis for the application and submit
it together with the entire file on the administrative violation, minutes on
the administrative violation (original) to the State Bank of Vietnam (the State
Bank Inspection) for settlement in accordance with provisions of applicable
laws, in case where the competence to impose the administrative punishment goes
beyond his authority.
3.2. Dealing with cases where the
minutes on the administrative violation is drawn in contrary to provisions of
applicable laws.
In case where the file of
administrative violations delivered by other agencies is not in accordance with
procedures stipulated in the Decree No. 202/2004/ND-CP; contents of the minutes
are not in accordance with provisions in Article 55 of the Ordinance on the
settlement of the administrative violations, the Chief Inspector of the State
Bank and the Chief Inspector of the State Bank branches in provinces, cities
under the central Governments management shall not make decision on the
administrative punishment, but return the file to the agencies that have drawn
the minutes and request for their adequate and sufficient supplement in
accordance with applicable provisions.
3.3. The State Bank Inspection
is responsible for considering the administrative punishment within their
competence for administrative violation acts delivered by the Central
Governments State management agencies and law protection agencies and those
delivered by the State Bank branches in provinces, cities under the central
Governments management.
4. Temporary seizure of
material evidences, means used for the administrative violation
The temporary seizure of
material evidences, means used for the administrative violation are performed
in accordance with provisions in Article 46 of the Ordinance on the settlement
of administrative violations.
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5. Use of form of minutes and
decision on the administrative punishment
Minutes on the administrative
violation; minutes on the temporary seizure of material evidence, means which
are used for the administrative violation; decisions on the administrative
punishment; decisions on the temporary seizure of material evidence, means used
for administrative violation and other related minutes, decisions are made in
accordance with forms stipulated in the Decree No. 134/2003/ND-CP of the
Government dated 14 November 2003 providing in details for the implementation
of several Articles of the Ordinance on settlement of the administrative
violation issued in 2002.
6. Use of the seal stamped in
the decision on the administrative violation
6.1. For the punishment decision
made by the Chief Inspector (authorized deputy Chief Inspector), the seal is
stamped on his signature; For the punishment decision made by an Inspector, the
seal is stamped on the left corner at the top of a decision where the name of
punishment agency and number, symbol of the punishment decision is stated.
6.2. Persons who are competent
for the administrative violation punishment in the monetary area and banking
activity as provided for in Paragraph 4, Article 37 of the Decree No.
202/2004/ND-CP are entitled to use the seal of his agency to stamp on the
punishment decision.
7. File of administrative
punishment
7.1. After a decision on the
administrative punishment is made, the competent person of State Bank
Inspection stipulated in Paragraphs 1, 2, 3, Article 37 of the Decree No.
202/2004/ND-CP must deliver the administrative punishment file to the State
Bank Inspection of the same level.
7.2. After a decision on the
administrative punishment is made, person who is competent for administrative
punishment stipulated in Paragraphs 4, Article 37 of the Decree No. 202/2004/ND-CP
must deliver the administrative punishment file to the unit in charge of
punishment management at agencies which have the punishment competence.
7.3. The file includes:
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- A decision on the punishment
for the administrative violations in the monetary area and banking activity;
- A minutes on the seizure of
material evidences, means which are used for the administrative violations (if
any);
- Other files and documents
relating to the administrative violation act.
III. ORGANIZATION OF
IMPLEMENTATION
1. The Chief Inspector of the
State Bank organizes the implementation and direct, guide units, individuals in
the system of the State Bank Inspection to thoroughly grasp and strictly
implement the punishment of administrative violations.
2. General Managers of State
Bank branches in provinces, cities under the central Governments management are
responsible:
2.1. to regularly examine
administrative punishment within their management scope; to timely deal with
law violations and complaints, denunciation in the settlement of administrative
violations in accordance with provisions in Articles 50, 51, 52 of the Decree
No. 202/2004/ND-CP.
2.2. to follow up, report on the
implementation of the Decision on the punishment for administrative violations
in the monetary area and banking activity which is issued by the Chief
Inspector of the State Bank for imposition of punishment on administrative
violators stated in the Decision within the management area of the State Bank
branches in provinces, cities under the central Governments management.
In case where individuals,
organizations that are punished but do not voluntarily comply with the
punishment decision, General Managers of the State Bank branches in provinces,
cities under the central Governments management should request the Chief
Inspector of the State Bank to make decision on the enforcement and organize
the implementation of that enforcement and report the Chief Inspector of the
State Bank of the result thereof.
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This Circular is effective after
15 days since its publication in the Official Gazette and replace the Circular
No. 09/2000/TT-NHNN of the State Bank dated 29 August 2000 providing guidance
on the implementation of the Decree No. 20/2000/ND-CP dated 15 June 2000 on the
settlement of administrative violations in the monetary area and banking
activity.
Any difficulty, obstacle arising
during the implementation, should timely be reported to the State Bank of
Vietnam (through the State Bank Inspection) for submission to the Governor for
consideration and decision.
FOR
THE GOVERNOR OF THE STATE BANK
DEPUTY GOVERNOR
Tran Minh Tuan