Thông tư 165/2012/TT-BTC sửa quy định chỉ tiêu an toàn tài chính

CIRCULAR

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE CIRCULAR NO. 226/2010/TT-BTC DATED DECEMBER 31, 2010 OF THE MINISTRY OF FINANCE, ON THE PRUDENTIAL RATIO AND THE HANDLING MEASURES FOR THE SECURITIES INSTITUTIONS THAT FAIL TO ACHIEVE THE PRUDENTIAL RATIO

Pursuant to the Law on amending and supplementing a number of articles of the Law on Securities dated November 24, 2010;

Pursuant to the Law on Enterprise dated November 29, 2005;

Pursuant to the Government s Decree No. 58/2012/NĐ-CP dated July 20, 2012, detailing and guiding the implementation of a number of articles of the Law on Securities and the Law on amending and supplementing a number of articles of the Law on Securities;

Pursuant to the Government s Decree No. 118/2008/NĐ-CP dated November 27, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of the President of the State Securities Commission,

The Minister of Finance promulgates a Circular to amend and supplement a number of articles of the Circular No. 226/2010/TT-BTC dated December 31, 2010 of the Ministry of Finance, on the prudential ratio and the handling measures for the securities institutions that fail to achieve the prudential ratio;

Article 1. Amending and supplementing a number of articles of the Circular No. 226/2010/TT-BTC dated December 31, 2010 of the Ministry of Finance, on the prudential ratio and the handling measures for the securities institutions that fail to achieve the prudential ratio as follows:

1. Adding Clause 3 to Article 3 of the Circular No. 226/2010/TT-BTC as follows:

 “4. Theprudential ratio statementof June must be examined by an audit organization permitted to audit securities institutions (hereinafter referred to as a permitted audit organization) under the Vietnam’s Audit Standard No. 910. Theprudential ratio statementof December and theprudential ratio statementused for proving that the securities institution is eligible for not being kept under control or special control by a permitted audit organization under the Vietnam’s Audit Standard No. 800, and other relevant Audit Standards. The securities institution must establish an internal control and communication system for recording, monitoring, and updating the financial information and detailed information serving the establishment, examination, and audit of theprudential ratio statements. The Director (management board) of the securities institution must be responsible for establishing and presenting theprudential ratio statementin accordance with this Circular.”

2. Amending Clause 2 to Article 10 of the Circular No. 226/2010/TT-BTC as follows:

 “2 The State Securities Commission shall issue warnings and make decisions on putting securities trading institutions under control as prescribed in Article 12 of this Circular, or special control as prescribed in Article 14 of this Circular. Within 24 hours as from making the decision, the State Securities Commission, the Stock Exchange, and the securities institution must disclose this information on their websites.”

3. Amending and supplementing Clause 1 to Article 11 of the Circular No. 226/2010/TT-BTC as follows:

"a) Every month, the securities institution must send theprudential ratio statements to the State Securities Commission under the form prescribed in Annex 5 of this Circular. The statement must be enclosed with a electronic information file within 10 days as from the last day of the month.

b) The securities institution must send theprudential ratio statements of June and December made under Annex 5 of this Circular to the State Securities Commission, and post them on their website, after they have been examined and audited by a permitted audit organization. These statements must be sent to the State Securities Commission and announced simultaneously with the time of disclosing the information about the examined biannual Financial statement and the audited annual Financial statement.”

4.Amending and supplementing Article 12 of the Circular No. 226/2010/TT-BTC as follows:

 “1. The State Securities Commission shall make decisions on putting securities institutions under control in the following cases:

a) The liquidity ratio is from 120% to 150% in all the reporting period for 03 consecutive years; or

b) The liquidity ratio examined or audited by a permitted audit organization is from 120% to 150%; or

c) The permitted audit organization gives dissenting or contrary opinions, or does not give any opinion, or fails to give any opinion about theprudential ratio statement, or gives opinions that, the liquidity ratio is from 120% to 150%, if the exceptions are not included in the liquidity,

2. The control period must not exceed 12 months as from the date the securities institution is put under control.

3. The securities institution is released from the control when the liquidity ratio reaches 180% or higher for 03 consecutive months, among which the liquidity ratio at in the last reporting period must be audited by a permitted audit organization.”

5.Amending and supplementing Article 14 of the Circular No. 226/2010/TT-BTC as follows:

 “1. The State Securities Commission shall make decisions on putting securities institutions under special control in the following cases:

a) The liquidity ratio is under 120%, including that calculated by the institution itself and that examined or audited by a permitted audit organization; or

b) Failing to rectify the situation that lead to the control within 12 months as prescribed in Clause 2 Article 12 of this Circular; or

c) Failing to makeprudential ratio statements in 02 consecutive reporting period, or failing to disclose information about theprudential ratio statements examined or audited by a permitted audit organization as prescribed in Article 11 of this Circular; or

d) The permitted audit organization gives dissenting or contrary opinions, or does not give any opinion, or fails to give any opinion about theprudential ratio statement, or gives opinions that, the liquidity ratio is under 120%, if the exceptions are not included in the liquidity.

2. The special control period must not exceed 04 months as from the date the securities institution is put under special control.

3. The securities institution is released from the special control when the liquidity ratio reaches 180% or higher for 03 consecutive months, among which the liquidity ratio at in the last reporting period must be audited by a permitted audit organization.

4. If the securities institution still fails to rectify the situation that lead to the special control and the gross loss (the undistributed profit on the Balance sheet) reaches 50% of the charter capital or higher, its operation shall be suspended. The procedures for suspending the operation must comply with the guidance from the State Securities Commission, in accordance with the provisions promulgated by the Ministry of Finance.

5. After the end of the period of special control prescribed in Clause 2 this Article, if the securities institution still fails to rectify the situation that leads to the special control, and the gross loss (the undistributed profit in the balance sheet) is under 50% of the charter capital, or fails to settle all debts and other financial obligations as prescribed by law provisions on enterprises and law provisions on bankruptcy, the State Securities Commission shall request the securities institution to suspend its operation.

6. Within 24 hours as from requesting the securities institution to suspended, the State Securities Commission must disclose this information on their website.

7. Within 15 days as from being requested in writing by the State Securities Commission to suspend the operation, the securities institution must disclose the information about the suspension and the issues related to the licensed securities services during the suspension on its website and on the website of the Stock Exchange, and complete the procedures for suspension as prescribed by law provisions on enterprises and law provisions on the establishment, organization, and operation of securities institutions promulgated by the Ministry of Finance.

8. The suspension of the operation of a securities institution prescribed in Clause this Article shall last until:

a) The liquidity ratio of the securities institution satisfies Clause 3 this Article; or

b) The securities institution is merged into or consolidated with another securities institution, or dissolves, or declares bankruptcy as prescribed by law provisions on enterprises and bankruptcy, and the provisions on establishment, organization, and operation of securities institutions promulgated by the Ministry of Finance.

6. Adding Clause 4 to Article 16 of the Circular No. 226/2010/TT-BTC as follows:

 “4. During the suspension period prescribed in Clause 5 Article 14 of this Circular:

a) The securities institution must not sign new economic contracts or extend the economic contracts related to the licensed securities services, and must stop other securities services on the following principles:

- For securities companies: must not open transaction accounts for new clients, settle the contracts to provide securities brokerage services (contracts to open securities trading accounts), and transfer the clients’ accounts to a substitute securities company in accordance with the clients’ requests and relevant law provisions (applicable to securities brokerage services), must not provide margin trading services and other financial services related to securities services; must not sign new contracts or expand contracts of investment consultancy (applicable to investment consultancy services); stop the proprietary trading of securities, settle the proprietary trading accounts as guided by the State Securities Commission (applicable to proprietary trading);

- For fund management companies: must not raise capital to create new funds or new securities investment companies; must not increase the charter capital of the fund and investment companies under their management; must not sign new or extend investment management contracts and investment consultancy contracts; must hand over the managerial responsibility and escrow to a substitute fund management company in accordance with the clients’ requests and other relevant law provisions;

b) The securities institution still have to pay outstanding tax and other unsettled financial obligations with the State;

c) For the unexpired contracts signed with clients and employees, the securities institution must keep paying the debts, financial obligations, and fulfilling the commitments and obligations under the terms of the signed contracts, in accordance with civil laws, law provisions on enterprises, law provisions on securities, and other relevant law provisions, unless otherwise agreed by the clients, employees, or creditors; settle the economic contracts right after fulfilling the obligations of the securities institution;

d) The securities institution must keep taking remedial measures as prescribed in Article 13 and Article 15 of this Circular, and complying with law provisions on securities and securities market; ensure the lawful rights and interests of clients and investors as prescribed by law;

dd) The Stock Exchange, the Stock Depository Center shall temporarily annul the membership of the securities institution until the end of the suspension period.

e) The State Securities Commission must not allow the securities institution to expand their scale, add securities services; must not allow the provision of margin trading services and other financial services; must not approve of the investments and transactions that are subject to the approval of the State Securities Commission as prescribed by law on securities and securities market, except for the transfer, consolidation, merger, capital increase, or removal of securities services.”

7. The Annex 5 promulgated together with the Circular No. 226/2010/TT-BTC is superseded by the Annex promulgated together with this Circular.

Article 2.This Circular takes effect on December 01, 2012. The previous provisions that contradict this Circular are all annulled.

Article 3.The amendment and supplementation of this Circular is decided by the Minister of Finance./.

ANNEX 5

PRUDENTIAL RATIO STATEMENT
 (promulgated together with the Circular No. 165/2012/TT-THE MINISTRY OF FINANCE, amending and supplementing a number of articles of the Circular No. 226/2010/TT-BTC dated December 31, 2010 of the Ministry of Finance, on the prudential ratio and the handling measures for the securities institutions that fail to achieve the prudential ratio)

To: The State Securities Commission

PRUDENTIAL RATIO STATEMENT

Dated: ……………

We commit that:

 (1) The Statement is based on the data updated on the date of making this statement in accordance with the Circular No. 226/2010/TT-BTC dated December 31, 2010 of the Ministry of Finance,on the prudential ratio and the handling measures for the securities institutions that fail to achieve the prudential ratio, and the Circular No. 2012/TT-THE MINISTRY OF FINANCE, amending and supplementing a number of articles of the Circular No. 226/2010/TT-BTC dated December 31, 2010 of the Ministry of Finance, on the prudential ratio and the handling measures for the securities institutions that fail to achieve the prudential ratio;

 (2) The issues that might affect the financial condition of the company, which arise after this statement is made, shall be updated in the succeeding statement;

 (3) We are responsible before Law for the accuracy of the statement.

I. LIQUIDITY [1]

Notes:

1) the entries with “√” must be calculated

2) When calculating the deduction from the liquidity of (B, C), the securities institution may reduce the value of deduction as follows:

- For the assets used as collateral for the obligations of the securities institution or a third party (if the sale contract contains a commitment to buy back, in which the securities institution is the seller), when calculating the deductions, the smallest value of the following values may be reduced: the market value of the asset calculated as prescribed in Annex 2, the book value, and residual of the obligations;

- For the assets guaranteed by client’s assets (such as margin trading contracts, sale contracts that contain commitment to sell back, in which the securities institution is the buyer): when calculating the deductions, the smallest value of the following values may be reduced: the market value of the collateral calculated as prescribed in Clause 6 Article 9, book value.

Among which, the book value is the residual value of the collateral (being a fixed asset) at the time of contract conclusion, or calculated using an internal method of the securities institution at the time of contract conclusion (applicable to other assets).

II RISK VALUE

Notes:

 (1): Value of payment risk of the Government and issuing organizations guaranteed by the Government, the Ministry of Finance, the State bank, the Governments and Central Banks of the countries of OECD group; People’s Committees of central-affiliated cities and provinces;

 (2): Value of payment risk of the Stock Exchange and the Stock Depository Center

 (3) Value of payment risk of credit institutions, credit institutions, and securities institutions established in the countries of OECD group

 (4) Value of payment risk of credit institutions, credit institutions, and securities institutions established in the countries of OECD group

 (5) Value of payment risk of credit institutions, credit institutions, and securities institutions established and operated in Vietnam

 (6): Value of payment risk of other organizations and individuals

III. SUMMARY OF RISK AND LIQUIDITY

[1]Based on the separate financial statement of the securities institution.

[2]The data in the nearest consolidated financial statement.