Thông tư 37/2011/TT-BTC hướng dẫn xử phạt VPHC trong lĩnh vực chứng khoán

CIRCULAR

GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE DECREE NO.85/2010/ND-CP DATED AUGUST 02, 2010 OF THE GOVERNMENT ON ADMINISTRATIVE SANCTIONS IN THE DOMAIN OF SECURITIES AND STOCKS MARKET

Pursuant to Law on Securities No.70/2006/QH11 dated June 29, 2006;
Pursuant to the Ordinance on Handling of Administrative violations dated July 02, 2002 and the Ordinance Amending, Supplementing a Number of Articles of the Ordinance on Sanction of Administrative violations dated April 02,2008;
Pursuant to the Decree No.128/2008/ND-CP dated December 16, 2008 of the Government detailing the implementation of a number of Articles of the 2002 Ordinance on Handling of Administrative violations and the 2008 Ordinance Amending, Supplementing a Number of Articles of the Ordinance on Handling of Administrative violations;
Pursuant to the Decree No.85/2010/ND-CP dated August 02, 2010 of the Government on handling of administrative violations in the domain of securities and stocks market;
Pursuant to the Decree No.37/2005/ND-CP dated March 18, 2005 of the Government stipulating the procedures for application of coercive measures for execution of administrative violation-sanctioning decisions;
Pursuant to the Decree No.118/2008/ND-CP dated November 27, 2008 of the Government regulating functions, tasks, powers and organizational structure of the Ministry of Finance,
the Ministry of Finance guides implementation of a number of Articles of Decree No.85/2010/ND-CP dated August 02, 2010 of the Government on handling of administrative violations in the domain of securities and stocks market as follows:

Chapter I

GENERAL PROVISIONS

Article 1.Administrative violations in the domain of securities and stocks market

Administrative violations in the domain of securities and stocks market (hereinafter called as securities administrative violations for short) means the act intentionally or unintentionally implemented by individuals, organizations, violating regulations of law on securities and stocks market but not yet serious enough to prosecute for penal liability according to provisions of Decree No.85/2010/ND-CP dated August 02, 2010 of the Government on administrative sanctions in the domain of securities and stocks market (hereinafter called as Decree No.85 for short) must be sanctioned for administrative violations.

Article 2.Applicable principles for administrative sanctions

1. The securities administrative sanctions must be conducted promptly, publicly, clearly and thoroughly. All consequences of these securities administrative violations must be remedied according to regulations of law.

2. When issuing a decision of sanctions against violating individuals and organizations, the competent to sanction persons must base on the nature and seriousness of the violation, aggravating or extenuating circumstances specified in Article 8, Article 9 of the Ordinance on administrative sanctions, Article 6 of Decree No.128/2008/ND-CP of December 16, 2008 of the Government detailing the implementation of a number of Articles of the 2002 Ordinance on administrative sanctions and the 2008 Ordinance amending and supplementing a number of Articles of the Ordinance on Handling Administrative Violations (hereinafter referred to as the Decree No.128) and some of the following specific provisions:

a) An administration violation performed by the same individual, organization at the same time shall be sanctioned only once. The case that has been sanctioned for a administration violation, but not up for 01 years from the date of completely serving the sanctioning decisions or from the expiry date of the implementation of sanctioning decision that continues to commit such violations shall be applied aggravating detail being to commit again referred in clause 3 Article 6 of the Decree No.128 as issuing the decision to sanction;

b) Many individuals, organizations together perform an administration violation, each violating individual; organization shall be sanctioned for such violation. the competent to sanction persons must base on the nature and seriousness of the violation, aggravating or extenuating circumstances issues the decision to sanction against each individual and organization who together perform an administration violation;

c) An individual, organization performs many administration violations, shall be sanctioned for each violation. When deciding to sanction an individual, organization that performs many administration violations, the competent persons shall just issue one sanctioning decision in which shall decide form and rate of sanction for each violation; if the forms of sanction are the fines, then shall be synthesized to be the collective rate of sanction.

3. In case violation in the domain of securities is consequence of another violation in the same of domain of securities, only the violation with more severe sanction shall be applied.

4. In case of the violation having criminal signs, its dossiers being transferred for penal liability prosecution that previously have decided to sanction administrative violations, the person who issued the decision to sanction administrative violations must cancel sanctioning decision; if the sanctioning decision has not been issued,  then such violation shall no be sanctioned administrative violation.

Article 3.Time limit, statute of limitations for handling administrative violations

1. Time limit, statute of limitations for handling of administrative violations in the domain of securities:

a) For the administrative violations in the domain of securities, the limitations for the sanction are 02 years since the date that the violation is committed.

The times to identify some violations made to calculate the statute of limitations are directed as follows:

- For the violations of regulations on the implementation of offering securities to the public in clause 4 and clause 5 Article 8 of Decree No.85, the time to identify the violations made to calculate the statute of limitations shall be the date of completion to register for purchasing securities; in case the money to purchase securities has been collected, the time to calculate the statute of limitations shall be the date of ending the collection of money to purchase securities.

- For violations of the application for public company registration specified in clause 1, 2 and point a clause 3 Article 9 of the Decree No.85, the time to identify violations are made to calculate the statute of limitations for the sanction shall be the date of applying dossier for public company registration to the State Securities Commission improperly time limit as prescribed;

b) For individual who has been prosecuted or against whom decision to bring to trial according to procedures of criminal proceedings is issued, later a decision to terminate the investigation or terminate the case is issued but the violation has signs administrative violations on securities, within 03 days from the date of the decision to terminate the investigation or terminate the case, the agency who has issued decision to terminate the investigation or terminate the case must send the decision and the case’s files to the competent to handle administrative violations agency in the securities domain. In this case, the statute of limitations for sanction is 03 months from the date that the competent to handle administrative violations person in the securities domain receives the decision to terminate and the case’s files to the date of issuing the handling decision;

c) Within the time limit specified in point a, and b clause 1 this Article if violators commit new violations in the securities domain or deliberately shirk or obstruct the sanctioning, the statute of limitations in point a, and b clause 1 this Article shall not apply. The statute of limitations for sanctioning administrative violations in the securities domain is recalculated from the time the new violations are committed or the time the act of shirking or obstructing the sanctioning is terminated.

The date of terminating the act of shirking, obstructing the sanctioning is the date that violator voluntarily comes to the competent to handle administrative violations agency in the securities domain to report and undertake sanctioning measures. the competent to handle administrative violations agency in the securities domain must make a written note for this and keep a copy on violating file and hand a copy to the violator. 

2. Method to determine the time limit, the statute of limitations for sanctioning administrative violations in the securities domain:

a) The time limit, the statute of limitations for sanctioning administrative violations in the securities domain is provided upon month or year, such period of time is calculated by month or by the calendar year, including holidays under the provisions of the Labor Code;

b) The time limit is provided upon day, such period of time is calculated by working day, not including holidays under the provisions of the Labor Code.

Article 4.Form of sanctioning

1. The principle sanctioning forms:

a) Warning:

Form of warning shall be applicable to the acts of administrative violations that the Decree No.85 provides a warning or a fine imposed for those acts and when having extenuating circumstance;

b) Fine:

When fining, the specific fine for a violation is the average level of the fine bracket prescribed for such violation; if there are extenuating circumstances, the fine can be reduced, but not be reduced below the minimum level of the fine bracket, if there are aggravating circumstances, the fine can be increased but not be exceed the maximum level of the fine bracket.

The average level of the fine bracket is determined by dividing the total of the minimum and maximum fine level of the fine bracket.

When determining the fine level against individuals and organizations with legal violations in the securities domain involving both extenuating and aggravating circumstances, competent person considers to lighten aggravating circumstance according to principle: two extenuating circumstances shall be deducted an aggravating circumstance. After deduction is applied according to the above principle, if there is still an aggravating circumstance and an extenuating circumstance, depending on the nature and seriousness of violations and attitudes to overcome the consequences of the violators, the competent to handle person considers to decide the fine level applicable to the case there is an aggravating circumstance or there is no aggravating circumstance or extenuating circumstance.

2. Additional sanctions:

The confiscation of all illegal collections due to commit administrative violations specified in point a clause 2 Article 6 of Decree No.85 is guided specifically as follows:

a) Organizations, individuals having illegal collections from committing violations shall be confiscated for State budget remittance;

b) The illegal collections being confiscated do not include the amounts belonging to investors’ lawful ownership and payable tax, fee amounts according to provisions;

c) State Securities Commission sets up method of calculating the illegal collections in compliance with actual situation and specific case.

Chapter II

ADMINISTRATIVE VIOLATIONS, FORMS AND LEVELS OF SANCTION

Article 5.Violating provisions on registration dossiers for offering securities to the public

1. Provision in clause 1 Article 7 Decree No.85 is applied for the following cases:

a) One or several documents in the registration dossiers of offering securities to the public under the provisions of law having incorrect information. This information causes misleading; affects the issuing the decision to grant certificates of registration of offering securities to the public of the State Securities Commission or the assessment, investment decisions of investors;

b) Failing to amend, supplement the registration dossiers of offering securities to the public when detecting incorrect information or missing important contents relating to dossiers or arising new events affecting contents of submitted dossiers.

2. The provision in clause 2 Article 7 of Decree No.85 is applied for the intentional violation to conceal the truth of the contents relating to registration dossiers of offering securities to the public.

3. The act of “making, certifying registration dossiers of offering securities to the public containing forgeries" in clause 3 Article 7 of Decree No. 85 is an act of creation or confirmation of forged documents to offer securities to the public.

When detecting the acts provided in clause 3 Article 7 Decree No.85, chairman of the State Securities Commission must make written note to keep the forged documents. In case these documents are licenses, the competent persons send written notice to the license issuing agency.

Article 6.Violating provisions on offering securities to the public

1. The act of "Using information outside prospectuses to conduct a market survey" in point a clause 2 Article 8 Decree No.85 is the use of untruth or inexact information compared to the contents of the prospectuses in the registration dossiers to conduct a market survey before being permitted to conduct the offering of securities to the public.

2. Provision in clause 5 Article 8 of Decree No.85 is applied in the case of organizations registering the offering of securities to the public conducting​​the offering of securities to the public while the State Securities Commission is considering registration dossiers of offering securities to the public of that organization.

3. Level of fines applicable to violations provided in clause 5 Article 8 of Decree No.85 is calculated on the basis of illegal collections from the implementation of violations. The illegal collection is the difference between the total collected amount from the issuance and the total value calculated according to the book value of the shares issued at the time of issuance. In case of applying the maximum fine level of being fivefold the illegal collection however the fine level is still lower than the maximum fine level applicable to the act of offering securities to the public but not registering with the State Securities Commission as provided in point c clause 4 Article 8 of Decree No.85, the maximum fine level for such act shall be applied to sanction. Violating organization must withdraw the stock offered, return investors the to buy securities money or deposit (if any) plus interest at the non-term interest rates of the bank that the issuing organization opens its account to collect the money to buy securities or the deposit at the time of being sanctioned for administrative violations, within thirty days from the date of receiving request of investors.

Article 7.Violating provisions on application for registering public company

1. The fine level for the act of violating provisions on application for registering public company in point a clause 3 Article 9 of the Decree No.85 is guided specifically as follows:

a) A fine of between VND 30,000,000 and 40,000,000 shall be imposed for act of registering public company exceeding the time limit as prescribed from more than 12 months to 18 months;

b) A fine of between VND 40,000,000 and 50,000,000 shall be imposed for act of registering public company exceeding the time limit as prescribed from more than 18 months.

2. The provision in point b clause 3 Article 9 of the Decree No. 85 is applied in the following cases:

a) Making dossiers for registering public company with inaccurate information on one or several contents specified in clause 1 Article 26 of the 2006 Securities Law;

b) The guidance for supplementing information has been conducted or for amending false information in dossiers for registering public company but does not perform or improperly perform as required of the State Securities Commission.

Article 8.Violating regulations on listing and registration of securities transactions

1. The provision in point a clause 1 Article 11 and clause 2 Article 16 of the Decree No.85 is applied in the following cases:

a) One or several documents in the dossiers for registration of listing, registration of securities transactions in accordance with regulations of law with inaccurate information. The information causes misleading and affects the making the decision of approving listing and registration of securities transactions of Stock Exchange/ securities trading centers or assessment, investment decisions of the investors;

b) Failing to amend, supplement the dossiers for registration of listing, registration of securities transactions when detecting inaccurate information or missing the important contents relating to dossier or arising new events affecting the contents of submitted dossier.

2. The provision in clause 2 Article 11 and clause 3 Article 16 of the Decree No.85 shall be applied for the act of intentional violation to conceal the truth of contents relating to dossiers for registration of listing, registration of securities transactions.

3. The act of “making, certifying forgeries dossiers for listing, registration of securities transactions" in clause 3 and clause 4 Article 16 of the Decree No.85 is an act of creation or confirmation of forged documents to list, register securities transactions.

When detecting the acts provided in clause 2 and clause 3 Article 11, clause 3 and clause 4 Article 16 of the Decree No.85, the Stock Exchange/Securities trading centers must make written note to keep the documents belonging to dossiers for listing registration, registration of securities transactions, report to the State Securities Commission for handling according to provision. In case these documents are licenses, the State Securities Commission shall send written notice to the license issuing agency.

4. Additional sanction “Forced delisting” in clause 4 Article 11 and “Forced transaction deregistration” in clause 5 Article 16 of the Decree No.85 is applied only to the acts of making, certifying dossiers for listing registration, registration of securities transactions with the intentionally false information, the information to conceal the truth or making and certifying forgeries dossiers for listing, registration of securities transactions in the case the Stock Exchange/Securities Trading Centre has approved the listing and registration of securities transactions for violating organization.

Article 9.Violating regulations on organizing the stock market

1.The provision in clause 1 and clause 2 Article 12 of the Decree No.85 is applied to the case that organizing any place or any form of information exchange to conduct order matching and trading securities outside the Stock Exchange/Securities Trading Center.

2. The fine level for the acts of violating regulations on organization of securities transactions market are calculated on the basis of all the collections that individuals and organizations got from the implementation of the violations. The case has applied the maximum fine level of being fivefold the illegal collection however the fine level is still lower than one specified in clause 1 Article 12 of the Decree No.85, the competent to sanction violations persons apply the fine level provided in clause 1 Article 12 of the Decree No.85 to sanction.

Article 10.Violating regulations on establishment and operation certificates

1. The act of “the use of the name of the company, branch, representative office or transaction bureau in contravention of regulations” in clause 1 Article 17 of the Decree No. 85 is the securities companies, fund management companies, securities investment companies, branches, representative offices of securities firms, foreign fund management companies in Vietnam using the incorrect name with the name which was written in the establishment license and operation, written approval to open branches, representative offices or transaction office.

2. The acts of “making or certifying a dossier of application for an establishment and operation license or its supplementation, which contains misleading information” in point đ clause 4 Article 17 of the Decree No.85 mean the securities companies, fund management companies, securities investment companies and branches of securities companies, Vietnam-based foreign fund management companies making dossiers, providing inaccurate information or missing important contents relating to dossiers or failing to modify, supplement documents when arising new events affecting the contents of the submitted documents.

3. The act of “Failing to comply with regulations on corporate governance” in point d clause 1 Article 18 of the Decree No.85 means the securities companies, fund management companies fail to perform or improperly perform the provisions of Charter on corporate governance or provisions on corporate governance applicable to the public companies.

4. “Conducting the acts of misleading its customers and investors on securities prices” in point e clause 3 Article 18 of the Decree No.85 means the securities companies intentionally supply to its customers and investors information, make judgments, advice or incomplete and inaccurate recommendations or conceal the truth about the prices or the factors affecting the prices of one or more types of securities which leads customers and investors’ misleading about stock prices and makes the improper decisions in the investment.

5. The act of “acting against the orders of investors” in point b clause 4 Article 18 of the Decree No.85 means the securities companies intentionally failing to implement proper orders of securities transactions of investors except for the case the investors make illegal orders.

Article 11.Violating regulations on representative offices of the securities business organizations

The provision on point a clause 2 Article 20 of the Decree No.85 is applied in the following cases:

1. One or several documents in the dossiers of registration of granting operation registration certificate of representative office have inaccurate information. This information affects making decision to grant operation registration certificate of representative office of the State Securities Commission.

2. Failing to amend, supplement dossiers of registering the offering securities to the public as detection of inaccurate information or missing important contents relating to dossiers or arising new events affecting contents of the submitted dossiers.

Article 12.Sanction imposed for violating regulations of setting up member funds

The acts of “making or certifying dossier for setting up member fund, which contains misleading information” in clause 1 Article 21 of the Decree No.85 mean the fund management companies, organizations and individuals making dossiers, providing inaccurate information or missing important contents relating to dossiers or failing to modify, supplement documents when arising new events affecting the contents of the submitted documents.

Article 13.Violating regulations on internal transactions and stock price manipulation

1. The provision on clause 1 Article 27 of the Decree No.85 is applied in the following cases:

a) Using one or more of their transaction accounts or of another or being in collusion with each constantly buying and selling securities in order to create false supply and demand;

b) A person or a group of persons being in collusion with each other place orders to buy and sell the same types of securities in the same trading day or being in collusion with each other to buy and sell securities without leading actual transfer of ownership or the ownership is just switched between members of the group to make the stock price, false supply and demand;

c) Constantly buying or selling securities with the governing volume at the time of opening or closing market to create the closing price or the new opening price for such type of securities in the market;

d) Trading securities in the form of collusion, inducing others to continuously place orders to buy or sell securities causing serious influence on the supply and demand and the stock price, stock price manipulation;

đ) Presenting directly or indirectly opinions through the mass media about a security, the securities issuing organizations in order to create influence on the prices of such security after being conducted the transaction and held the position over them;

e) Using the methods or performing the other transactions acts to create false demand and supply, stock price manipulation.

2. Apart from the form of monetary sanction, organizations and individuals performing the acts of internal transaction or stock prices manipulation are also confiscated all of illegal collections under the provisions in clause 2 Article 26 and clause 2 Article 27 of the Decree 85, the illegal collections and the profits arising from the implementation of acts of internal transaction or stock prices manipulation, after deducting the payable tax, fee amounts. Where a person uses many accounts for internal transaction or stock price manipulation, the illegal collections are calculated on total of accounts used for internal transaction or stock price manipulation. Where a group colludes to transact internally or manipulates stock prices, the illegal collections are calculated on each account used for internal transaction or stock price manipulation.

3. After considering to calculate the illegal collections for the act of internal transaction or stock prices manipulation if the value of the illegal collections or the level of causing damage of the violations enough for penal liability examination, violator’s dossier must be transferred to the competent authorities for consideration of penal handling under the provisions of clause 1 Article 16 of this Circular.

Article 14.Violating regulations on registration of depository operation

The act of “compiling dossier for registration of securities depository operation or branch of securities depository operation containing misleading information” in point a clause 2 Article 30 of the Decree No.85 means the securities companies, commercial banks making dossier, providing inaccurate information or missing important contents relating to dossier or failing to modify, supplement documents when arising new events affecting the content of the submitted documents.

Chapter III

COMPETENCE AND PROCEDURES OF SANCTIONING ADMINISTRATIVE VIOLATIONS

Article 15.Determination of competence to sanction

1. Competent to sanction administrative violations in the securities domain specified in clause 1 and 2 of Article 37 of the Decree No.85 is the competence applicable to an administrative violation. In the case of fines, the sanctioning competence shall be determined based on the maximum level of the fine bracket prescribed for each administrative violation.

In case of sanctioning a person who makes many acts of administrative violations in the securities domain, the sanctioning competence shall be determined as follows:

a) If the sanctioning form, level is prescribed for each act falling under the competence of the sanctioning person provided for in clause 1 and 2 of Article 37 of the Decree No.85, the sanctioning competence is still of such person;

b) Where the fine level or one of the forms of additional sanctions or remedies for overcoming consequences is not under the competence or beyond it, the handling violation person must promptly transfer the case to the competent to sanction person.

2. When detecting violations in the securities domain, the competent to sanction person need to cross-check with provisions of the Criminal Code to determine which is the administrative violation or criminal offense.

Article 16.Transferring dossier for penal liability examination

1. When considering the violation to sanction, if it deems the violation having criminal signs, the dossiers must be transferred to the competent criminal proceeding agencies for consideration of prosecution.

2. If the criminal proceeding agencies notify the decision to prosecute criminal case, the State Securities Commission must transfer the original records of the violation to the competent criminal proceeding agencies within 05 working days since the date of receiving the notice.

3. Exceeding the period of 03 working days from the date of expiry specified in Article 103 of the Criminal Procedure Code that the State Securities Commission has not received yet notice of the competent authorities of the prosecution or not, the competent to sanction person according to provision defined in Article 37 of the Decree No.85 makes decisions to sanction administrative violations in accordance with the law regulations and informs to the criminal proceeding agencies about the administrative violations that have been sanctioned.

4. The recalculation of time limit of issuing decisions to sanction prescribed in clause 2 Article 41 of the Decree No.85 is implemented as follows:

a) If the violation has been to extend the issuance of decision to sanction prescribed in clause 1 Article 56 of the Ordinance on Handling Administrative Violations before transferring to the criminal proceeding agencies, the time limit for issuing decision to sanction is 10 working days since the date of being recalculated time limit for so; for the administrative violation having many complicated circumstances, the time limit for issuing decision to sanction is 30 working days and not to be extended it;

b) If the violation has not been asked for extending the time limit for issuing decision to sanction according to provision specified in clause 1 Article 56 of the Ordinance on Handling of Administrative Violations by the competent to sanction person before transferring to the criminal proceeding agencies, the time limit for issuing decision to sanction shall be recalculated in accordance with provision in clause 1 Article 56 of the Ordinance on Handling Administrative Violations and to be extended the time limit for so as prescribed by law.

Article 17.Decision to sanction

1. Sanctioning decisions must be signed by the competent to sanction administrative violations persons and stamped by the agencies of such persons for such acts.

2. In case of an organization or individual commits many violations of law in the domain of securities, the competent to sanction administrative violations persons issue only a decision to sanction. In the case there are many organizations and individuals together commit an administrative violation, the competent to sanction administrative violations persons based on the nature and seriousness of the violation of each individual, organization to issue the decisions to sanction separately for each subject.

3. In case the form and level of sanctions beyond the competence of the sanctioning person, such person shall transfer all dossiers and documents on the violation to the higher competent to sanction person within 05 working days since the date of dossier completion of violation.

Violating dossiers comprise:

- A minute of administrative violations (the original);

- A draft of decision to sanction administrative violations;

- Dossiers, documents relating to such violation;

- A minute of confiscating material evidences; means of administrative violations (if any);

- Other necessary documents.

4. The decision to sanction must be sent to Organization, individual sanctioned, agency to collect fine and publicized on website of the State Securities Commission in the next working day since the date of issuing decision to sanction.

Article 18.Terminating violations

In the process of inspection and examination, if detecting violations in the securities domain, the head of the inspection examination delegation must issue a decision to terminate the violation according to provision prescribed in Article 39 of the Decree No.85 and report immediately in writing to the Chairman of the State Securities Commission and the Chief Inspector of the State Securities Commission.

Article 19.Transferring the case to the competent to sanction administrative violations person

1. In the process of inspection and examination, investigation of individuals, organizations, if State management agencies detect acts of administrative violations in the securities domain but not under their sanction competence, they must transfer entire case’s dossier and propose to handle in writing to the State Securities Commission for settlement.

The dossier includes: minutes of the administrative violations (the original), the documents, papers, data and material evidence ... related to administrative violations in the domain of securities obtained in the course of inspection, examination, investigation.

2. For the cases of administrative violations in the domain of securities transferred by the State management agencies, the State Securities Commission takes responsibility for receiving all records and documents of the administrative violation and handling as follows:

a) In case files and documents, minutes of the violation is not properly transferred according to the procedures prescribed in this Circular, the dossiers and documents shall return to the agencies making record of administrative violations and request to amend and supplement fully. The duration to return records for the request of amending and supplementing is 15 working days since the date of signing the official dispatch to transfer dossier;

b) In case dossiers, documents and evidence are not sufficient grounds for administrative violation sanctions, the inspection, verification, additional evidence shall be conducted;

c) In case dossiers or documents or minutes of the administrative violations are transferred in compliance with the procedures prescribed and have sufficient grounds to prove, conclude on the administrative violation, the decision to sanction administrative violations according to legal provisions shall be issued.

Article 20.Order, procedures of handling administrative violations

When sanctioning administrative violations in securities domain, the competence to sanction persons must comply with the order and procedures of administrative violation sanction prescribed in the Ordinance on Handling of Administrative Violations, Decree No.128 Decree No.85 and the instructions in this Circular.

Article 21.Minute, decision form used in the sanction of administrative violations in the securities domain

Minute, decision form used in the sanction of administrative violations in the securities domain is provided in the list issuing together with this Circular.

Chapter IV

ENFORCEMENT OF EXECUTING DECISIONS TO SANCTION ADMINISTRATIVE VIOLATIONS IN THE DOMAIN OF SECURITIES AND SECURITIES MARKET

Article 22.Grounds for issuing the decisions of enforcement

Enforcement of executing decisions on sanctioning administrative violations in the securities domain is applied to individuals and organizations responsible for executing decisions on sanctioning administrative violations in the domain of securities which exceeded the time limit to execute such decision without voluntarily executing or having the acts of scattering assets, escaping and must apply the coercive measures to ensure the implementation of decisions on sanctioning administrative violations in the securities domain.

Article 23.Competence to decide the enforcement

Chairman of the State Securities Commission issues a decision of enforcement and organizes the enforcement of execution for the decision of administrative sanction issued by himself or his/her subordinates.

Article 24.Decision of enforcement

1. The enforcement of execution for the decision of administrative sanctions in the domain of securities shall be made only when there are enforcement decisions of the competent persons defined in Article 23 of this Circular. The enforcement decision include the following contents: the date, month, year of issuance; bases for issuing decision; full name, position, unit of decision-issuing person; head office of individual, organization coerced; coercive measures, time and location of implementation; agencies presiding the implementation of enforcement decisions, the agency of being responsible for coordinating; the signature of the person to issue decision, the seal of agency of issuing decisions.

2. The enforcement decision of executing decisions on sanctioning administrative violations in the securities domain is made upon form issuing together with this Circular.

Article 25.The cases of issuing coercive decisions

1. For the decisions of applying remedies to overcome the consequences and additional sanctions:

a) Exceeding 30 days since the date of expiry of the implementation of the decision to apply remedies to overcome the consequences and additional sanctions in the decision that individual, organization does not execute voluntarily;

b) Individuals and organizations have not executed the administrative decision in the securities domain but having acts of scattering assets, escaping.

2. For the decisions of applying a fine form: exceeding 10 days since the date of expiry to execute the sanction decision but violating individuals and organizations does not execute voluntarily.

3. Individuals and organizations are not subject to the coercive measures in time to be permitted to pay the fine many times as prescribed in clause 2 Article 42 of the Decree No.85.

Article 26.Coercive measures

The coercive measures of executing administrative sanctioning decisions in securities domain include:

1. Deducting part of salary or income; money from a bank account.

2. Inventorying assets, stock values​​corresponding to the number of fines for auction.

3. Applying other coercive measures for implementing the confiscation of the illegal collections due to commit administrative violations.

Article 27.Principles of application of coercive measures 

1. Chairman of the State Securities Commission shall base on the contents, nature or seriousness of the obligation to execute decisions of administrative sanctions, the conditions to execute the coercive decisions of being enforced subjects and practical situation in localities to decide the respective application of coercive measures prescribed in Article 26 of this Circular.

 2. Not to organize the enforcement during the holidays according to provisions of labor legislation and outside of official hours, 15 days before and after Lunar New Year, except for the case necessary to prevent the being enforced subjects having act of dispersing, destruction of property, shirking the execution of enforcement decisions.

Article 28.Responsibility for organization of implementing the enforcement decisions

1. The State Securities Commission is responsible for coordination with relative agencies, organizations, individuals to deploy the measures aiming at executing the enforcement.

2. In case if necessary to have people s police during the course of executing the enforcement, the State Securities Commission must send a 05 working day written request prior to the enforcement to the relevant police agencies for deploying forces. When having request for participating to ensure order, safety in the process of enforcement, people s police force is responsible for deploying forces to prevent timely disruptive behavior, of resisting the on duty implementation persons during the course of executing enforcement decisions.

Article 29.Limitation to execute the enforcement decisions

1. The enforcement decisions take effect to execute within 01 year since the date of issuing such decisions.

2. In case individuals, organizations are applied coercive measures but intentionally shirk, delay, the limitation to execute shall be recalculated from the time that acts of shirking, delaying are terminated.

Article 30.Monitoring, urging for collection the illegal collections, fines

1. The State Securities Commission is responsible for monitoring and managing the objects must give up illegal collections, fines to urge, collect debts prior to the time applicable to coercive measures.

2. Forms of urging, collecting illegal collections, fines:

a) Sending a notice to require violating individuals, organizations to give up in full the illegal collections, fines;

b) Publicizing on the mass media on the subjects owing the illegal collections, fines; number of illegal collections, payable fines.

Article 31.Order and procedures for application of coercive measures to execute the decision to sanction administrative violations in the securities domain 

 procedures for application of coercive measures to execute the decision to sanction administrative violations in the securities domain,measures of ensuring the execution of decisions and coercive costs, complaints, denunciations and lawsuits and the handling of violations related to the enforcement to execute decisions on sanctioning administrative violations in the securities domain must comply with the order, procedures and authorities provided in the Securities Law, the Ordinance on Handling of Administrative Violations, Decree No.37/2005/ND-CP dated 18/3/2005 of the Government providing for the procedures of application of coercive measures to execute the decision to sanction administrative violations and Decree No. 85/2010/ND-CP dated 02/8/2010 of the Government on sanctioning administrative violations in the securities domain and the stocks market.

Chapter V

IMPLEMENTATION ORGANIZATIONS

Article 32.Responsibility for the implementation

1. This Circular takes effect on May 10, 2011. It annuls the Circular No.97/2007/TT-BTC dated 8/8/2007 of the Ministry of Finance guiding implementation of a number of Articles of the Decree No.36/2007/ND-CP dated March 08, 2007 of the Government on handling of administrative violations in the domain of securities and stocks market.

2. Chairman of the State Securities Commission takes responsibility for the organization and guides the handling of administrative violations, coercion to execute administrative decisions in the domain of securities for ensuring right with provisions of law.

3. During the course of implementation, if any difficulties, obstacles arise, relative persons need to reflect promptly to the Ministry of Finance for consideration, settlement./.