CIRCULAR

GUIDING THE IMPLEMENTATION OF THE GOVERNMENT�S DECREE No. 22/2000/ND-CP OF JULY 10, 2000 ON SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS IN THE FIELD OF SECURITIES AND SECURITIES MARKET

In furtherance of Article 22 of the Governments Decree No. 22/2000/ND-CP of July 10, 2000 on sanctions against administrative violations in the field of securities and securities market (hereafter referred to as the Decree for short), the State Securities Commission hereby specifically guides a number of points as follows:

I. SANCTIONING OBJECTS AND PRINCIPLES, APPLICATION OF RELEVANT REGULATIONS:

1. Sanctioning objects:

Objects of sanctions against administrative violations in the field of securities and securities market specified in Clause 3, Article of the Decree include:

1.1. Domestic organizations and individuals when:

a/ They commit acts of administrative violation in the field of securities and securities market specified in Chapter II of the Decree;

...

...

...

c/ Their administrative violation acts are still in the statute of limitations for sanctioning administrative violations in the field of securities and securities market prescribed in Article 3 of the Decree.

1.2. Foreign organizations and individuals that commit violation acts as prescribed at Point 1.1 above shall also be sanctioned according to the provisions of the Decree and this Circular, except otherwise provided for by the relevant international treaties which Vietnam has signed or acceded to.

2. Sanctioning principles:

The sanctioning of administrative violations in the field of securities and securities market must comply with the provisions in Articles 2, 3, 15 and 17 of the Decree and the sanctioning principles prescribed in Article 3 of the Ordinance on the Handling of Administrative Violations (hereafter referred to as the Ordinance for short). When the such principles are applied, the following must be taken into account:

2.1. The principle of right competence:

Only persons with the competence defined in Chapter III of the Decree can issue decisions to sanction administrative violations in the field of securities and securities market, with sanctioning forms and levels falling within the ambit of their defined competence. It is prohibited to split one violation into several minor violations or aggregate several minor violations into a bigger violation in order to alter the sanctioning competence.

2.2. The principle of right objects:

All objects that commit acts of administrative violation in the field of securities and securities market as specified at Point 1 of this Circular must be sanctioned according to the Decree.

An object that commits many acts of administrative violation shall be sanctioned for each violation act. If many objects jointly commit one violation act, each of them shall be sanctioned in proportion to his/her/its violation act. Each administrative violation act shall be sanctioned only once.

...

...

...

2.3. The principle of right levels:

The forms and levels of sanctions against administrative violations in the field of securities and securities market must be based on the nature, seriousness and consequences of violation acts. However, when determining the sanctioning forms and levels, the personal status as well as aggravating and extenuating circumstances should also considered so as to make appropriate decisions.

The extenuating circumstances to be taken into account when sanctions against administrative violations in the field of securities and securities market are imposed include:

- Violations are committed due to lack of knowledge on the legislation on securities and securities market and do not cause heavy losses;

- Violations are attributed to other persons acts of violation;

- Organizations and/or individuals that had committed administrative violations have prevented and/or reduced the harm caused by their violations, and voluntarily repaired or compensated for the damage.

The aggravating circumstances to be taken into account when sanctions against administrative violations in the field of securities and securities market are imposed include:

- Recidivism or repeated commission of violations

- Committing acts of violation in a collusive or organized manner;

...

...

...

- Committing violations during the period of abiding by sanctioning decisions;

- Committing acts of shirking or concealing their violations.

2.4. The principle of promptness and thoroughness:

All organizations and individuals have the right and obligation to promptly detect acts of administrative violation in the field of securities and securities market. Such detection must be reported to the persons competent to impose administrative sanctions. Upon receiving reports or requests for handling of administrative violations in the field of securities and securities market, the competent persons shall have to immediately proceed with the necessary procedures to immediately stop the violations and overcome the consequences.

2.5. The principle of right procedures:

The sanctioning of administrative violations in the field of securities and securities market must be carried out strictly according to the procedures prescribed in Articles from 45 to 56 of the Ordinance.

3. The application of the law provisions on securities and securities market

When sanctioning administrative violations in the field of securities and securities market, the persons with sanctioning competence shall have to base themselves not only on the provisions of the Ordinance and the Decree, but also on the provisions of the Governments Decree No. 48/1998/ND-CP of July 11, 1998 on securities and securities market.

II. DETERMINATION OF ACTS OF VIOLATION IN THE FIELD OF SECURITIES AND SECURITIES MARKET

...

...

...

1.1. Acts of concealing the truth when making dossiers or carrying out procedures to apply for permits for issuance of securities to the public, which are committed by issuing organizations by giving false information in the reports on financial status, business operation, capital structure, assets, turnover, expenditure, losses and profits.

1.2. Acts of failing to comply with the regulations on order of steps to organize the issuance of securities to the public:

a/ Using information outside the prospectus to probe the market before being permitted to issue securities;

b/ Distributing securities before making the issuance announcement;

c/ Issuing securities at variance with the contents inscribed in the issuance licenses regarding the securities volume and types and the issuance time limit;

d/ Announcing the securities issuance on the mass media at variance with the prescribed contents and time, or registering the issuance but failing to clearly announce information on the right to vote, right to register for securities purchase, right to convert securities and other rights of share holders and investors.

1.3. Acts of making forgeries in the dossiers of application for issuance permits.

1.4. Acts of issuing securities to the public without issuance permits.

2. Acts of violating the regulations on securities trading activities on the central securities market (Article 5 of the Decree)

...

...

...

a/ Conducting by oneself or in collusion with other persons simultaneously the purchase and sale of one kind of securities in order to create sham supply-demand state or false prices;

b/ Selling or purchasing a type of securities without effecting the transfer of securities ownership;

c/ Spreading untrue information in order to cause interferences on the securities market;

d/ Continuously purchasing securities at high prices or continuously selling securities at low prices in order to change the securities prices on the market.

2.2. Acts of inside trading committed by organizations and individuals specified in Article 70 of the Governments Decree No.48/1998/ND-CP of securities and securities market are acts of using information related to the securities trading price and volume of a listed organization, which has not yet been disclosed to the public, in order to directly or indirectly purchase or sell securities.

2.3. Acts of securities short sale by organizations and individuals are committed in form of selling securities not under their ownership at the time of trading.

2.4. Acts of re-purchasing or re-selling ones own securities without permits of the State Securities Commission.

2.5. Acts of purchasing or selling securities listed outside the Securities Trading Center or the Stock Exchange.

3. Acts of violating the regulations on protection of shareholders or manipulating enterprises (Article 6 of the Decree)

...

...

...

a/ Organizations and/or individuals purchase and/or sell securities on the central securities market, thus changing their holding of 5% or more of voting shares or no longer holding 5% of voting shares of an issuing organization, without reporting such to the Securities Trading Center or the Stock Exchange within 24 hours from the date of settling the transactions.

b/ Organizations, individuals and involved persons effect the purchase of securities on the central securities market in order to hold more than 25% of voting shares of an issuing organization without going through the public bidding as provided for by the State Securities Commission.

3.2. Acts of violating the regulations on protection of shareholders:

Founding shareholders that purchase and/or sell securities on the central securities market breach the principle that they must hold at least 20% of equity capital of the issuing organization and the holding time must be at least 3 years after the issuance is finished.

3.3. Acts of violating the regulations on holding rates of foreign parties

a/ Foreign organizations and/or individuals that purchase securities on the central securities market hold more than 20% of the total volume of circulated shares of an issuing organization or circulated investment fund certificates of a securities investment fund, or a foreign organization holds more than 7% and a foreign individual holds more than 3% of shares or investment fund certificates;

b/ Foreign organizations and/or individuals that purchase securities on the central securities market hold more than 40% of the total volume of circulated bonds of an issuing organization or a foreign organization holds more than 10% and a foreign individual holds more than 5% of bonds.

4. Acts of violating the regulations on securities trading operation and service licenses (Article 7 of the Decree)

4.1. Acts of using appellations in contravention of the provisions in operation licenses; violating the charters; organizing the inauguration while having not fully satisfied the prescribed conditions, more concretely as follows:

...

...

...

- Organizing the implementation or giving use instructions or introducing the operation scope not in conformity with the granted licenses and charters of companies or amending companies� charters against the provisions in the granted licenses.

- Organizing the inauguration of companies, branches and/or representative offices thereof, or carrying out the licensed professional operations without having satisfied all the conditions prescribed by law.

4.2. Acts of conducting securities trading or providing securities services while having not yet been granted licenses; lending, leasing or assigning licenses; conducting securities trading or providing securities services in those fields not prescribed in the license or when the licenses have already expired; erasing and/or modifying operation licenses or permits for opening branches or setting up representative offices; changing or relocating offices, opening more branches; replacing general directors or deputy general directors, separating from or merging into another securities company without the State Securities Commissions consent.

5. Acts of violating the regulations on trading activities of securities trading organizations (Article 8 of the Decree)

5.1. In order to determine one of acts of violating the principle of ensuring the safety in trading activities by constantly maintaining a healthy financial status, a sufficient liquidity capital, dispersing investment risks or taking part in the underwriting activities to limit risks and losses, which may lead to the insolvency, the following factors must be considered:

a/ Failing to maintain a sufficient liquidity capital (for securities companies), working capital (for investment fund management companies), which shall be verified several times by the end of the preceding month and at the time of inspection in order to conclude that though such securities companies or investment fund management companies had taken remedial measures, the efficiency has not been high;

b/ Procuring facilities, equipment and fixed assets in excess of the prescribed rate;

c/ Taking part in the investment or underwriting in excess of the prescribed limits or in violation of the principle of risk dispersion.

5.2. The determination of acts of using the customers capital and assets under their management for their own business purposes or for such customers without the latters entrustment, or failing to separate the dealing operation from the brokerage for customers must be based on the following factors:

...

...

...

b/ Breaching the principle applicable to the execution of securities purchase or sale orders for customers;

c/ Breaching the principles of priority order in securities trading;

d/ Breaching the principle of separating the placement of customers orders from the replacement of dealing orders.

5.3. The determination of acts of participating in business activities in the prohibited fields as prescribed by the legislation on securities and securities market must be based on the following grounds:

a/ Adequate grounds to determine that the securities companies or investment fund management companies have taken part in credit activities and provision of securities loans, or used capital or assets of the investment fund management companies to provide loans or underwriting;

b/ Dispersing or regulating investment assets among securities investment funds under their own management, by using capital of one investment fund to invest in or purchase assets of another fund within the same fund management company.

6. Acts of violating the regulations on securities trading practitioners

6.1. Securities trading organizations (securities companies, investment fund management companies and securities investment funds) have arranged or employed persons without practice licenses to perform operations that require practice licenses as prescribed by the legislation on securities and securities market, or failing to replace or transfer to other positions, persons, who have their practice licenses withdrawn by the competent bodies or are compelled to transfer to other jobs.

6.2. Securities trading practitioners shall have their right to use practice licenses deprived in the following cases:

...

...

...

b/ Securities trading practitioners directly or indirectly take part in the short sale of securities not under their ownership at the time of transaction; purchase or sell securities while the issuing organizations have not yet disclosed information to the public; disclose and/or disseminate untrue information; take part in the securities credit and lending activities; take part in the market control and manipulation activities.

7. Acts of violating the regulations on responsibilities of supervisory banks (Article 10 of the Decree)

7.1. Failing to separate assets of a securities investment fund from other assets or assets of one securities investment fund from those of another fund;

7.2. Showing irresponsibility in management or using assets of securities investment funds not for the purposes specified in such funds charters;

7.3. Breaching management or supervision contracts already signed with fund management companies.

8. Acts of violating the regulations on securities registration, clearing payment and custody (Article 11 of the Decree)

8.1. Taking advantage of the function of effecting securities custody for customers to lend securities on customers custody accounts or put the customers custodial securities in pledge.

8.2. Taking advantage of the professional operation of securities custody for customers to embezzle or cause loss to customers securities by modifying, erasing or forging custody vouchers, vouchers of payment for securities transfer, vouchers of securities consignment or withdrawal.

8.3. Violating the regime of securities preservation, inventory, comparison, periodical duplication, or causing securities certificates torn, ragged or misplaced, or letting counterfeit securities be in the custody, violating the regime of fire and explosion prevention and fight.

...

...

...

9. Acts of violating the regulations on the reporting regime in securities trading activities (Article 12 of the Decree)

9.1. Individuals and organizations with prescribed functions and tasks of making and submitting statistical reports, due to irresponsibility, make and submit incomplete reports or fail to submit reports within the prescribed time limit or submit reports made not according to the form set by the State Securities Commission.

9.2. Securities companies, investment fund management companies or securities custody organizations cease their business operation and/or service provision without reporting such to the State Securities Commission or without the latters consent even it has already been reported thereto.

9.3. Securities companies, investment fund management companies or securities custody organizations intentionally fail to report or have reported but not in time the occurrence of unusual events that may severely affect their own financial capabilities and business operations.

10. Acts of violating the regulations on information disclosure (Article 13 of the Decree)

10.1. Individuals and organizations take advantage of their assigned functions and tasks in compilation of dossiers and documents and the verification of accuracy, legality and validity of documents and data to conceal the truth in documents disclosing information to the public, by failing to gather and supply information adequately, promptly, periodically and according to provisions of law, supplying untrue information and reports.

10.2. Abusing the vested powers and assigned tasks to use "internal" information to conduct activities in contravention of law, such as: disclosing secret data and documents, which, however, is not serious enough for penal liability examination.

10.3. Abusing the vested powers and assigned tasks as disclosers of information to the public to disclose changes in the already publicized important information contents, disclose contradictory information or deny previously disclosed information.

11. Acts of obstructing the inspections and examinations or failing to realize the inspectors proposals (Article 14 of the Decree)

...

...

...

11.2. Organizations, individuals and involved persons who are subject to the inspection intentionally obstruct the decision issuance, or fail to abide by decisions of inspection organizations, inspection delegations or inspectors; supply untruthful information by concealing or modifying vouchers, documents, books or altering material evidences while under inspection; oppose or impede the inspection handling decisions by removing, relocating or taking other acts to change the status quo of sealed money and securities, accounting books, files and vouchers or other sealed material evidences and means without permission.

III. APPLICATION OF SANCTIONING FORMS, LEVELS AND OTHER HANDLING MEASURES

1. Warning

The sanctioning form of warning according to the provisions of Clause 1, Article 2 of the Decree shall only be applied to cases that may be subject to the sanctioning form of warning according to the corresponding articles and clauses of the Decree, or may be applied to other cases involving one of the following circumstances:

- Unintentional violations;

- First-time and minor violations, causing no sizable damage to the securities market and investors and involving extenuating circumstances.

2. Fines

When acts of violation are deemed falling outside the cases subject to the sanctioning form of warning or too serious to be warned, fines shall be imposed. The fine levels shall be applied as follows:

2.1. For violations involving neither aggravating nor extenuating circumstances, the average level of the fine bracket shall be applied.

...

...

...

2.3. For cases involving one of the aggravating circumstances, the fine levels between the average level and the maximum level of the fine bracket shall be applied.

3. Stripping of the right to use licenses

3.1. The sanctioning form of stripping of the right to use licenses is an additional sanctioning form, and shall not be applied independently but only together with the principal sanctioning forms (warning or fine) when the competent persons determine that there are enough grounds and conditions for application thereof (e.g. the provisions allowing the application of the form of stripping of the right to use licenses against acts of violation specified in articles of the Decree).

3.2. The conditions for considering the application of the form of stripping of the right to use licenses for a definite or indefinite time shall comply with the provisions of the Decrees articles where such sanctioning form is prescribed. The duration of stripping of the right to use licenses must correspond to the nature and seriousness of specific violation acts and fall within the time range applicable to such acts, and according to the provisions of the corresponding articles of the Decree.

3.3. The competent persons, when applying the additional sanctioning measure of stripping of the right to use licenses must comply with the Decrees provisions. For the sanctioning measure of stripping of the right to use licenses granted by the State Securities Commission, the competent persons, before applying it, shall have to send a written motion (together with the cases dossiers) to the Chairman of the State Securities Commission for his/her consent.

4. Confiscation of all amounts earned from the commission of violation acts as well as securities volumes involved in violation acts

The form of confiscating all amounts earned from the commission of violation acts as well as securities volumes involved in violation acts shall only be applied together with the principal sanctioning forms, when the competent persons determine that the following grounds and conditions for application thereof are enough:

- There exist provisions allowing the application of the confiscation form against violation acts in question in specific articles, clauses and points of the Decree and actual factors of violation cases, which must be fully inscribed in the violation record;

- There have already been notices requesting the discontinuation of violation acts or there exist provisions prohibiting such acts, but the violators intentionally commit them or relapse into commission of such acts, after warning or fine for previous violation act has been imposed.

...

...

...

5.1. The application of other handling measures against violations acts shall be determined in cases where it is deemed necessary to preclude the relapse into violation and overcome consequences of violations, in compliance with the corresponding provisions in the Decree�s articles, more concretely:

a/ Doing away with causes of violations by compelling restoration of the prescribed safety rates or the initial state, in order to preclude the possible further violations;

b/ Compelling the cancellation or correction of erroneous or untrue information that has triggered violations by publishing corrections on the mass media or sending written correction notices to the competent bodies and involved subjects;

c/ Regarding the compensation for damage, if the involved parties can reach by themselves an agreement on no claim for damage compensation or compensation levels, the persons with sanctioning competence shall recognize such agreement and record it on the sanctioning decision. In cases where the involved parties cannot reach by themselves an agreement on compensation amount, the competent persons shall base themselves on the actual damage to decide the specific compensation level and record it on the sanctioning decision, for compensation levels of up to VND 1,000,000; or request the involved parties to initiate lawsuits according to the civil procedures and clearly inscribe it on the sanctioning decision, for compensation levels of over VND 1,000,000.

5.2. In cases where the statute of limitations for sanctioning administrative violations expires, no sanctions shall be imposed, but other measures prescribed at Point a, Clause 3, Article 11 of the Ordinance may be applied.

IV. SANCTIONING COMPETENCE AND PROCEDURES

1. Sanctioning competence

1.1. Specialized inspectors of the State Securities Commission, the Chief Inspector of the State Securities Commission are persons having the sanctioning competence specified in Article 15 of the Decree.

1.2. In cases where one violation act committed by an organization or individual occurs in many different localities, the competent person who detects such violation shall make a written record thereon, stop it and notify the competent body of the locality where the head office of the violating organization is located thereof, so that such body can accept the dossier for handling and notify the competent bodies of the concerned localities for coordinated handling of the violation.

...

...

...

For organized and/or large-scale violations, which, however, are not serious enough for penal liability examination, the State Securities Commission shall be the body competent to assume the prime responsibility and coordinate with the concerned localities in handling them.

1.4. When deeming that an administrative violation must be subject to sanctioning level and other handling measures which are beyond his/her competence, the Chief Inspector of the State Securities Commission shall report it to the Chairman of the State Securities Commission for transfer of the case dossier to the competent local administration for handling.

2. The sanctioning procedures

2.1. The decisions on warning shall be made in writing, when they deem it necessary, the competent bodies shall send sanctioning decisions to the administration of the localities where the violators reside or the bodies managing the violators.

2.2. In case of fine decisions, the bodies with sanctioning competence shall make written records on administrative violations. Within 15 days after such written records are made, the bodies with sanctioning competence shall have to issue sanctioning decisions.

Sanctioning decisions must be sent to the sanctioned organizations and/or individuals within 3 days at most after such decisions are issued. Organizations and individuals that are sanctioned for administrative violations in the field of securities and securities market shall have to execute the sanctioning decisions within 5 days after they are handed such sanctioning decisions.

3. The coerced execution of sanctioning decisions

Past 5 days after receiving sanctioning decisions, if the sanctioned organizations and/or individuals fail to voluntarily execute them, the heads of the competent bodies that have issued such sanctioning decisions may:

- Request banks, the State Treasury or other credit institutions to deduct money from accounts of the sanctioned organizations and/or individuals to pay fines.

...

...

...

- In cases where it is necessary to compulsorily inventory assets, the bodies competent to issue sanctioning decisions shall have to report to and consult the provincial/level Peoples Committee thereon. After obtaining decisions signed by the provincial-level Peoples Committee, the competent bodies shall coordinate with the police force and/or peoples procuracy in making the compulsory inventory of assets with a value equal to the fines and putting them on auction according to law.

4. The confiscation of the securities volume involved in violation acts according to the provisions of Article 51 of the Ordinance

Copies of decisions on confiscation of securities volumes involved in violation acts and valued at VND 5,000,000 or more each must be sent to the peoples procuracy of the same level.

V. DENUNCIATIONS AND COMPLAINTS ABOUT VIOLATIONS OF THE LEGISLATION ON SECURITIES AND SECURITIES MARKET

1. Denunciations against acts of violating the legislation on securities and securities market

1.1. All organizations and individuals are entitled to denounce acts of violating the legislation on securities and securities market to the bodies competent to handle violations of the legislation on securities and securities market. The denouncers are obliged to supply specific proofs of and information on violation acts to the bodies with handling competence and shall be held responsible before law for their denunciation. The competent bodies that receive denunciations shall have to settle them according to the provisions in Chapter IV of the 1998 Law on Complaints and Denunciations.

1.2. Denouncers are obliged to:

a/ Supply materials and documents to affirm subjects, objects, scope and details related to the cases of violations;

b/ Supply proofs to affirm acts of violating the legislation on securities and securities market.

...

...

...

2. Cases of non-acceptance of denunciations

The bodies competent to handle violations shall not accept denunciations against violations in the following cases:

- The statute of limitations for sanctioning denounced violation acts has expired;

- The denouncers had initiated court lawsuits against denounced cases and such cases have been accepted by the court or there have been court judgments or rulings thereon.

3. Complaints and settlement of complaints against persons competent to handle violations

- Organizations and individuals sanctioned for administrative violations or their lawful representatives are entitled to complain about sanctioning decisions of the competent persons according to the provisions of the 1998 Law on Complaints and Denunciations. Pending the complaint settlement results, the sanctioned organizations and individuals shall still have to execute the administrative violation sanctioning decisions.

- In cases where the complaining organizations and individuals disagree with the first complaint settling decisions, they may lodge complaints to the persons competent to further settle their complaints or initiate administrative cases at courts according to the provisions of law.

- The procedural order for settling complaints by the competent authorities shall comply with the procedural order prescribed by the 1998 Law on Complaints and Denunciations.

VI. ORGANIZATION OF IMPLEMENTATION

...

...

...

The head of the Office of the State Securities Commission, the Chief Inspector of the State Securities Commission, the heads of the units attached to the State Securities Commission shall have to organize the implementation of this Circular.

Any problems arising in the course of implementation should be promptly reported to the State Securities Commission for consideration and solution.

CHAIRMAN OF THE STATE SECURITIES COMMISSION




Nguyen Duc Quang