CIRCULAR No CIRCULAR No. 01/2001/TT-UBCK OF FEBRUARY 15, 2001 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 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 (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; b/ Their administrative violation acts are committed on the Vietnamese territory; 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. Administrative violations shall not be sanctioned in cases of emergency circumstances, legitimate defense, unexpected events or where the violators are suffering from mental diseases or other diseases which deprive them of their capability to cognize or control their acts. 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; - Abusing positions, powers or occupations to incite, drag or force others into committing violations; - 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 Government�s 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. Acts of violating the regulations on the issuance of securities to the public (Article 4 of the Decree) 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) 2.1. Acts of market manipulation committed by organizations and individuals in the course of trading securities on the central securities market: 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 Government�s 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 one�s 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) 3.1. Acts of manipulating and merging enterprises: 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: - Using identification numbers, signs and codes to instruct or introduce names of companies, branches and/or representative offices thereof on printed matters, advertisements, signboards and in transactions in contravention of provisions of the granted operation licenses. - 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 Commission�s 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 latter�s entrustment, or failing to separate the dealing operation from the brokerage for customers must be based on the following factors: a/ Breaching contracts already signed with customers; 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: a/ Securities trading practitioners simultaneously work for or contribute capital to, two or more securities companies; act as directors, Managing Board members or shareholders holding more than 5% of the voting shares of an issuing organization; 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. 8.4. Violating the regime of accounting and paying for securities transfer, making comparison and certification of custody account balance with customers or failing to make comparison between the analytical accountancy and general accountancy, with prolonged errors causing losses to investors. 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 latter�s 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 con

Thông tư 01/2001/TT-UBCK