Law 510 of 1999
Official Journal No. 43,654 of August 4, 1999 CONGRESS COLOMBIA
By which dictate provisions relating to the financial and insurance system, public market, the Banking and securities and some faculties are granted. Summary
DECREES: CHAPTER I.
CONDITIONS OF ENTERING THE FINANCIAL SYSTEM
ARTICLE 1o. Amend Article 80 of the Organic Statute of the Financial System as follows:
1.1 Numerals on the 1st, the 4th.. . And 5th, will be as follows:
1. minimum capital requirements of financial institutions. The minimum amounts of capital to be credited to request the establishment of entities under the control and supervision of the Banking Superintendency, except for insurance intermediaries will be thirty-three billion pesos ($ 33.000.000.000.00) to banking establishments; twenty billion pesos ($ 20.000.000.000.00) for savings and housing corporations; twelve billion pesos ($ 12.000.000.000.00) for financial corporations; eight and a half billion pesos ($ 8.500.000.000.00) for commercial finance companies; ten billion pesos ($ 10 billion) for reinsurers and those insurance companies engaged reinsurers own activities; two and a half billion ($ 2.5 billion) for trust companies; five billion pesos ($ 5,000,000,000) for management companies Pension Fund; two and a half billion ($ 2.5 billion) for severance pay fund managers, which will accumulate the required for pension fund managers societies, where the company manages pension funds and severance societies, and two billion pesos ($ 2 billion) for other financial institutions. In the case of insurance companies, except those that have the sole purpose of offering trade credit insurance for export and those made own reinsurers activities, the minimum capital is four billion pesos ( $ 4.000.000.000.00), notwithstanding the remediated technical heritage to be accredited to operate in a given field, in accordance with the rules to that effect issued by the Government. These amounts are adjusted annually automatically in the same direction and percentage that varies the consumer price index to provide the DANE. The resulting value will be close to multiple millions of pesos immediately above. The first adjustment shall be made on 1. January 2000, based on the change in the consumer price index for 1998, in order to keep updated at constant 1998 values, absolute figures mentioned in this article.
For the national government through general rules, setting minimum capital must prove financial institutions regulated by special rules that are under the control and supervision of the Superintendency of Banks and insurance companies which have as their sole purpose the offer bouquet of credit insurance for export.
4. The minimum amount of capital provided by the first paragraph of this article shall be permanently fulfilled by entities operating. To this effect, the minimum operating capital will result from the sum of the following equity accounts: capital and paid capital guarantee reserves, surplus premium in capital, retained earnings from previous years and revaluation of assets, and they deducted the accumulated losses. Mandatory convertible bonds also be taken into account in actions under the terms of the 1st paragraph. of paragraph 5 of this article. Also, in the case of entities that are subject to the measures referred to in Articles 48, paragraph i) and 113 of this Statute, may be taken into account subordinated loans convertible into shares or redeemable with proceeds from the placement of shares to be granted to the financial institution, under the conditions set by the national government. Such loans may be granted by financial institutions in cases and under the conditions established by the Government.
5. Financial institutions entering into force of this law do not meet the additional minimum capital requirements established by it, should gradually increase their capital in order to comply with these requirements in the following periods: three (3) years the case of commercial finance companies, and two (2) years in the case of banks, savings and housing corporations, financial corporations, trust companies and other entities to which the first paragraph of this article. The national government shall indicate the terms and conditions within which such gradual capital increases should occur.
When an institution is not credited within the period specified the minimum capital required, it must be liquidated, merged or become any other types of regulated institution, provided it meets the requirements of law to that effect. The foregoing notwithstanding that the Banking Superintendency may take precautionary measures provided for in this Statute.
PARAGRAFO 1o. The amount paid for mandatory convertible bonds into shares is taken into account for purposes of complying with this article, when in the respective prospectus is determined that in the event of liquidation, the amount of its value shall be subject to the payment of external liabilities and provided that the requirements set forth in paragraph 2 of Article 86 of this Statute, in line with paragraphs 3 and 4 of that article are met.
In any case, the mandatory convertible bonds may not be financed by the issuing company, or its parent, affiliates, subsidiaries or natural or legal persons associated with them.
PARAGRAFO 2o. They are not required to increase their capital to meet the minimum set out in this article, commercial finance companies and financial corporations that within a period of three months from the entry into force of this law, adopt a plan progressive dismantling to gradually reduce, within three (3) years, the deposits that made through public deposits. The plan must be submitted for approval by the Banking Superintendency. The entities that meet the adjustment plan will continue to develop active operations for which they are authorized, including in the case of finance companies, holding leasing contracts, as long as increase their capital annually in the same direction and percentage that the consumer price index increases. The entities referred to in this paragraph, not wishing to develop their own financial institutions activities, be subject to the regime of commercial companies, once the clearing program, for which they will make adjustments in their statutes fulfilled. Effective Jurisprudence
. Amend Article 53 of the Organic Statute of the Financial System as follows:
2.1 literal d) of paragraph 3o. Article 53 of the Organic Statute of the Financial System will read:
d) Study successfully demonstrating the feasibility of the company, which should be extended to the case of insurance companies to the business segments that are intended to develop; This study will provide the technological and administrative infrastructure to be used for the development of the object of the entity's internal control mechanisms, a management plan of the risks inherent in the business, and the additional information requested to the effect the Banking Superintendency;
Hereby added 2.2 paragraph 3 of Article 53 of the Organic Statute of the Financial System with the following wording:
f) For the constitution of entities whose capital are beneficial foreign financial institutions, the Banking Superintendency may make his authorization to be credited which will be, directly or indirectly, with the foreign institution, consolidated supervision by the competent foreign authority, in accordance with the generally accepted principles in this area internationally. It may also request a copy of the authorization issued by the competent body of respect outside of the entity that will participate in the financial institution in Colombia, where such authorization is required in accordance with applicable law. Same requirements may require to authorize the acquisition of shares by a foreign financial institution.
In all cases, even when people intending to participate in the constitution of the new entity will not have the character of financial, and in order to develop adequate supervision, the Banking Superintendency may require that you supply information it deems appropriate regarding the beneficiaries of the share capital of the bank both at the time of its incorporation and subsequently. 2.3
paragraphs 5 and 7 of Article 53 of the Organic Statute of the Financial System will be as follows:
5. Authorization for the constitution. Assortment the procedure to which the preceding paragraph refers, the Banking Superintendent shall decide on the application within six (6) months, counted from the date on which the petitioner has submitted all the documentation required by generally the Banking Superintendency. Notwithstanding the foregoing, the term referred to in this paragraph shall be suspended in cases where the Banking Superintendency request information or clarification. The suspension will operate until the date on which the complete response by the petitioner is received.
The Superintendent denied permission to set up an entity when the application does not meet the legal requirements. He shall also denied when his opinion the applicants have not satisfactorily proven character, responsibility, competence and solvency of the persons involved in the operation, so that they inspire confidence about how participate in the management and administration the financial institution.
In any case, refrain from authorizing the participation of the following persons:
a) Those who have committed crimes against economic wealth, money laundering, illicit enrichment, established in Law 30 of 1986 or Article 208 of this Statute;
B) Those to whom it has been declared the termination of ownership under Law 333 of 1996, when they participated in carrying out the conduct referred to article 2. of the Act;
C) The sanctioned for violation of the rules governing individual credit limits;
D) Those who are or have been responsible for the mishandling of the business of the institution in whose management or administration have intervened;
E) who have been convicted for offenses that Article 43 of Law 222 of 1995 refers to, and
f) Managers and statutory auditors at the time of the takeover settlement purposes a financial institution, by the Banking Superintendency play they had found such charges, within five (5) years following the date on which the measure has been ordered. Effective Jurisprudence
Whenever the application is lodged or during the pendency of it established the existence of an ongoing process by the facts mentioned in the preceding paragraph, the Banking Superintendent may suspend the proceedings until a decision is taken in the respective process.
For purposes of determining the solvency of applicants will take the analysis of all businesses, assets and debts that affect them into account. In any case, in the case of persons wishing to be real beneficiaries of ten percent (10%) or more of the capital of the entity, heritage certifying the applicant must be equivalent to at least 1.3 times the capital that is committed to bring in the new institution, including the latter. In addition, it must prove that at least one third of the resources provided are specific and not the result of debt operations or the like.
PARAGRAFO. Whenever a manager of a financial institution is convicted of any offense which this numeral refers to, it shall be separated from office immediately; in the case of a partner, shareholder or partner, you must dispose of its interest in the capital of the company within a period not exceeding six (6) months. Such participation may be repurchased by the entity under the conditions set by the Government. If at the expiry of that period the shares have not been acquired by a third party or by the entity itself, the holder may not exercise the same rights to participate in the government of society.
7. The Banking Superintendent shall issue the certificate of authorization within five (5) days following the date on which the regular constitution, payment of capital in accordance with the provisions of this statute is credited days, the existence of the technical and operational infrastructure necessary configured to operate according to what is stated in the feasibility study and enrollment in the guarantee Fund of Financial institutions, in the case of entities that in accordance with the rules governing them have insurance or guarantee of the Fund. Effective Jurisprudence
ARTICLE 3o. Amend Article 88 of the Organic Statute of the Financial System as follows:
hereby added 3.1 paragraph 1 of Article 88 the following paragraph:
For the purpose of giving its approval, the Superintendent of Banks must verify that the person concerned to acquire the shares not in any of the situations mentioned in the 3rd paragraphs. and 4o. of paragraph 5 of Article 53 of this statute and, further, that the investment that you want to meet relations under the 5th paragraph. the numeral 5. quoted
hereby added 3.2 paragraph 3 of Article 88 with the following paragraph:
In any case, it will be necessary to prove the Banking Superintendent prior to the acquisition, under penalty of ineffectiveness, that the investment wishes to the applicant meets with relationships provided for in Article 53, paragraph 5, the 5th paragraph., of this Statute. 3.3
hereby added to Article 88 with the following paragraph:
4. The provisions of this Article shall apply to all cases in which the transaction is to acquire ten percent of the capital or assets of an entity subject to the supervision of the Banking Superintendency, even if it is not represented in shares . Effective Jurisprudence
AMENDMENTS TO THE POWERS OF THE NATIONAL GOVERNMENT INTERVENTION
. Amend Article 48 of the Organic Statute of the Financial System as follows:
4.1 h) of paragraph 1 of Article 48 shall read as follows:
h) To establish rules that expand prudential regulation mechanisms in order to adapt the regulation to international standards.
Hereby added 4.2 paragraph 1 of Article 48 of the Organic Statute of the Financial System with the following wording:
i) Determine general property relations or other indicators to infer a deterioration of the financial institution, in order to to remedy that recovery programs are adopted or applied automatically and gradually appropriate measures, all in the form, conditions, deadlines and consequences established by the Government. The measures contemplated may include, inter alia, provided for in Article 113 of this Statute, the forced reduction of capital to an amount not less than the value of net assets, the mandatory placement of shares without preferential rights, the forced sale of assets, a ban on distributing profits, creating temporary management mechanisms with or without legal status in order to ensure the optimization of the management of assets to meet liabilities, the combination of any of the above or others deemed appropriate under the conditions set by the Government. Effective Jurisprudence
REFORMS TO CAPITAL INVESTMENT SCHEME
The 5th ARTICLE. The following paragraph is hereby added to the 2nd article. Organic Statute of the Financial System:
7. Credit institutions may acquire and hold shares and mandatory convertible bonds issued by other credit institutions. In any case any credit institution may have the character of beneficial ownership of shares or convertible bonds issued by another entity of the same class. banking establishments, financial corporations, savings and housing corporations and commercial finance companies: For this purpose the following classes will be taken into account. The foregoing is without prejudice to the provisions of international investment regime.
PARAGRAFO 1o. Commercial finance companies may invest in shares and convertible bonds issued by commercial companies whose sole purpose is to carry out operations operating leasing.
PARAGRAFO. transient. Investments of credit institutions in stocks and bonds convertible into shares which do not comply with the provisions of this Statute, shall be disposed of within a period of three (3) years from the entry into force of this law .
However, in the case of investments in shares and convertible bonds issued by the companies described in articles 2. Law 218 of 1995 and 1o. Decree 890 of 1997 that the provisions did not conform to this Statute, the maximum period for disposal shall be five (5) years. Effective Jurisprudence
. The following paragraph is hereby added to Article 110 of the Organic Statute of the Financial System:
8. Investment in stock exchanges. The institutions supervised by the Banking Superintendency may acquire and hold shares and bonds convertible into shares issued by the stock exchanges. Effective Jurisprudence
Article 7. Amend paragraph 1o. and paragraph b) of paragraph 1 of Article 119, which shall read as follows:
1. Investments in financial services and brokerage brokerage firms. Banks, financial corporations, corporations, savings and housing and commercial finance companies may participate in the capital of trust companies, brokerage firms, bonded warehouses and companies managing pension funds and severance pay, provided that observe the following requirements:
b) all investments in subsidiaries and other equity investments authorized companies, other than those establishments engaged in compliance with legal provisions, may not exceed in any case one hundred percent (100 %) of the sum of capital, equity reserves and equity revaluation account of the respective bank financial corporation, savings and loan corporation or commercial finance company, excluding fixed assets without valuations and net of accumulated losses, and
. Article 147 of the Organic Statute of the Financial System shall read as follows: Permitted Investments
own resources. Trust companies may participate in the capital of management companies of pension funds and severance pay; stock exchanges and companies commission of these bags and bags of futures and options brokerage firms of these bags. Also, trust companies may invest in securities representing participation in mutual funds or investment funds whose international portfolio is comprised of bonds exclusively on the terms and conditions for the purpose by the Banking Superintendency.
PARAGRAFO. The investments referred to in this Article shall be subject, as appropriate, to the provisions set out in paragraphs 1, 2 and 3 of Article 119 of this statute.
However, investment trust companies authorized to shall not be subject to the requirement referred to in the letter c), paragraph 1 of Article 119 of this statute, as the capital of the fund management company pension and severance or the stock brokerage firm belongs at least ninety percent (90%) to them. Effective Jurisprudence
REFORMS OF BANKING ESTABLISHMENTS REGIME
Article 9. Hereby added paragraph 1 of Article 7. the Organic Statute of the Financial System with the following wording:
m) Perform the operations dealt with in paragraph 5 of Article 22 of this Statute. Effective Jurisprudence
Article 10. It is hereby added
paragraph 1 of Article 129 of the Organic Statute of the Financial System with the following wording:
d) Perform the operations dealt with in paragraph 5 of Article 22 of this Statute. Effective Jurisprudence
CHAPTER V. AMENDMENTS TO THE REGIME OF FINANCIAL CORPORATIONS
Article 11. Article 11 of the Organic Statute of the Financial System shall read as follows:
Purpose 1. Purpose of financial corporations. Financial corporations are aimed primarily at resource mobilization and allocation of capital to promote the creation, reorganization, merger, transformation and growth of any type of business, as well as to participate in its capital, promote the participation of third parties, grant funding and offer them specialized financial services that contribute to its development.
To this effect, firms shall mean any economic activity organized for the production, processing, circulation, administration or custody of goods, or the provision of services, regardless of the form of organization is adopted, quality or merchant who develop or that the acts carried out whether or not classified as commercial. In this regard the company can be developed through various legal, such figures as commercial trust agreement, consortiums, temporary unions, "joint venture" and sole proprietorships.
Of the companies in this article refers to the institutions under the control and supervision of the Banking Superintendency, excluding financial services companies and credit institutions are exempted. Regarding credit institutions may be held the transactions described in subparagraphs c), i) and m) of Article 12, paragraph 7 of Article 2. and Article 26 of the Statute.
PARAGRAFO. Financial corporations may make with the nation, local authorities and their decentralized entities all operations authorized to this type of financial institutions, subject to the provisions of paragraph of the 2nd article. Law 358 of 1997 and those that modify or replace. Effective Jurisprudence
Term Notes Effective Jurisprudence
AMENDMENTS TO THE REGIME CORPORATIONS AND HOUSING SAVINGS
Article 13. paragraph 4 of Article 2. the Organic Statute of the Financial System, shall be as follows:
4. Savings and Housing Corporations. They are savings and housing corporations those institutions whose main function raising funds for mortgage lending operations primarily long-term credit. Effective Jurisprudence
Article 14. Paragraph 1o. Article 18 of the Organic Statute of the Financial System, shall be as follows:
Object. The savings and housing corporations aim to promote private savings and channeling them into the construction industry. Effective Jurisprudence
hereby added to Article 22 of the Organic Statute of the Financial System with the following paragraph:
5. Issuance of securities to finance construction and acquisition of housing. Corporations Savings and Housing may issue securities, aimed at financing the activities mentioned in subparagraphs a), c), d), e) and f) of Article 19 of this Statute. These securities may represent loans granted to the public, including their guarantees or rights over them and the guarantees that may have been agreed to support them, when they intended to place financial assets of the respective entity in the capital market and may also have the general guarantee of the issuer, or other guarantees or commitments regarding the administration and the financial performance of the assets that are necessary, in accordance with what is foreseen in the regulations about emission. They may also transfer assets to third parties or autonomous credits, including their guarantees or rights over them and the respective guarantees, so that they issue securities to be placed among the public.
When developing this authorization mobilize so active policy or transferred to pension trusts or third parties for further mobilization means that assets sold or integrate the respective autonomous equity shall not be restored to the estate of the originator or issuer in cases where it is in concordat, compulsory liquidation, administrative forced liquidation or any other insolvency-process. However, when for any reason become a remnant in favor of the financial institution, after payment of the debt they displayed in the respective titles, it will revert to the mass of goods or its assets, as appropriate.
The Securities shall specify the requirements and conditions for the issuance and placement of different securities to be issued under development herein provided, which should ensure homogeneity and promote liquidity. In any case, the securities referred to this authorization, to be issued after the first (1st.) January 2000 shall be dematerialized.
PARAGRAFO 1o. The assignment of any warranty or right on it, which is made to mobilize financial assets in development of the provisions of the first paragraph of the present numeral not take effect for novation and only require to perfect that effect is given to the provisions of Article 15 of Law 35 of 1993, or legislation replacing or modifying, and its regulations. The Banking Superintendency will respect the processes of mobilization assets this numeral refers to the powers provided for in the last paragraph of that rule.
PARAGRAFO 2o. The Government may determine the conditions under which the process of securitization of mortgage loan portfolio for the financing of social housing will be guaranteed. Effective Jurisprudence
AMENDMENTS TO THE REGIME commercial finance companies
Article 16. paragraph 5 of Article 2. the Organic Statute of the Financial System, shall be as follows:
5. Commercial finance companies. Commercial finance companies are institutions whose main function raise funds to term, with the primary purpose of carrying out active credit operations to facilitate the marketing of goods and services, and perform financial leasing. Effective Jurisprudence
Article 17. The literal j) of Article 24 of the Organic Statute of the Financial System shall read as follows:
j) perform leasing operations. Effective Jurisprudence
Article 18. Article 26 of the Organic Statute of the Financial System shall read as follows:
For the acquisition of assets subject to leasing, commercial finance companies may receive loans from other credit institutions whose guarantees shall determine the terms and conditions established by the National Government. However, the acquisition of assets by the commercial finance companies for operating leasing operations may be financed with equity resources, loans from other credit institutions and bonds whose term is longer than one year. Effective Jurisprudence
PRECAUTIONARY MEASURES AND TAKEOVER
Article 19. Amend Article 113 of the Organic Statute of the Financial System as follows:
hereby added 19.1 first paragraph of Article 113 which reads as follows:
Without prejudice to measures that financial institutions be adopted in compliance with the provisions issued by the National Government in exercise of the powers conferred by Article 48, paragraph i) of this Statute, the Banking Superintendency may individually adopt the measures provided for in paragraphs 1, 2, 3, 4, 5, 6 and 7 of this article. Effective Jurisprudence
hereby added Article 113 the following paragraphs:
6. Recovery program. The recovery program is a measure to prevent an entity under the control and supervision of the Banking Superintendency incur grounds for taking possession of their property, assets or businesses or to remedy it. Under the measure, the affected entity shall adopt and submit to the Banking Superintendency a plan to restore the situation through appropriate measures, in accordance with the provisions issued by the National Government.
7. Notwithstanding the provisions of paragraph 6 of Article 13 of Law 454 of 1998, financial institutions cooperative nature subject to the control and surveillance of the Banking Superintendency may become corporations, in exceptional circumstances and with prior approval of the Superintendency banking, through statutory reform adopted by its general assembly. In this case, the partners receive shares in proportion to their contributions on the date of the respective assembly that determines the conversion. Effective Jurisprudence
8. In order to prevent cooperative entities conducting financial activities under the terms of Law 454 of 1998 are subject to the measures takeover under this Statute, the Banking Superintendency or the Superintendency of Solidarity Economy, as appropriate it may at any time compensation balances of loans granted to associates against social contributions is suspended.
9. In order to prevent a financial institution incurs grounds for taking possession of their property or to remedy it, and as long as the Banking Superintendency considers that such measures can contribute to restoring the situation of the entity, the following special rules shall apply :
9.1 in the case of merger:
a) the terms of clause 1 of Article 56 of the Statute shall be five (5) and twenty (20) days, respectively;
B) The period of paragraph 3 of Article 56 of this Statute shall be eight (8) days;
C) The period provided for in Article 57 of this Statute shall be fifteen (15) days;
D) The terms of Clause 1 of Article 58 of the Statute shall be fifteen (15) and ten (10) days, respectively;
E) The provisions of subparagraph c) of paragraph 2 of Article 58 of this Statute shall apply to persons who are to have the character of directors or shareholders of the acquiring entity;
F) shall not be required to publish the notice provided for in Article 59 nor Article 62 of this Statute shall apply;
G) There will be no place to procedure provided by Article 58 of the Organic Statute of the Financial System, whenever the Banking Superintendency has authorized the specific merger within the recovery program. 9.2 Where
acquisition the following rules shall apply:
a) The acquirer may start the acquisition of shares by agreement of the board. However, absorption may occur only with the prior approval of the shareholders. In the event that the assembly does not authorize the transaction, the acquirer shall dispose of the shares within the time limits established by law;
B) The period stipulated in Article 64 of this Statute shall be fifteen (15) days.
9.3 In the case of transfer of assets, liabilities and contracts the following rules shall apply:
a) will need to obtain prior authorization from the Banking Superintendency, which has a period of fifteen (15) days to decide ;
B) the rules of Article 68 shall apply and this law, even if the transfer of assets and liabilities not reach the percentage set by paragraph 5 of Article 68 of the Statute;
C) The decision to transfer may be adopted by agreement of the board or body that replaces it;
D) shall not apply the provisions in paragraph 2 of Article 68 of the Statute regarding the transferor;
E) shall not apply the provisions of paragraph 3 of Article 68 of the Statute. Instead, a notice will be published in a newspaper of national circulation within ten (10) days following the date of receipt of the authorization of the Banking Superintendency days. Within the publication of the notice referred to ten days, the persons involved in business trust held because of the qualities of the entity, may oppose the transfer. In this event, the applicant may request that the transfer is made to another institution, which may accept the trustee. Otherwise it may terminate the contract early without payment of compensation for damages for that fact. The provisions of this subsection shall not apply to the trust guarantee business, nor to those who aim to develop securitization processes or in which there are third parties who are holders of rights arising from such businesses, events in which, if there is disagreement about the assignment, the same will be made to the trustee designated by the concerned by the procedure established by the Government. For the other contracts the consent of the contractor transferred shall not be required;
F) When the total or part of the assets of an institution to another entity is transferred, such transfer may be made under a public deed which will be awarded in assets globally transferred, indicating the amount and starting according to the latest report of the entity.
In these cases, the transfer of assets and their corresponding guarantees and ancillary rights, will operate as of right, without notification, registration, or express acceptance of the obligation. The foregoing notwithstanding that in the case of securities the corresponding endorsement be carried out and that in the case of goods whose tradition by law to be made by entry in a register, it is in accordance with the relevant rules, event in which in the same script or a subsequent writing, in the case of goods that require this kind of solemnity, those goods must be individualized. In the event that a third party has acquired the assets of an opposable to third parties act a certain date prior to writing, it will not be affected in their rights;
H) The provisions of this paragraph to cases also apply when the entity has been subject to takeover.
10. Legal persons nonprofit civil, excluding cooperative entities, under the control and supervision of the Banking Superintendency may request, even if their indicators do not show critical levels, the respective authorization to this entity to become corporations. This conversion must be adopted as statutory reform and produce no solution of continuity in the existence of the institution as a legal person, or contracts, or in their heritage. Effective Jurisprudence
Article 20. Amend Article 114 of the Organic Statute of the Financial System as follows:
20.1 The text of Article 114 in effect on the date of issue of this law will be identified with the number 1, and the same he added the following paragraphs:
h) Where there are serious inconsistencies in the information provided to the Banking Superintendency which it considers it not to adequately understand the real situation of the entity;
I) Where the institution does not meet the minimum operating capital requirements under Article 80 of the Statute;
J) If it fails recovery plans that have been adopted. 20.2
hereby added to Article 114 with the following paragraph:
2. The Banking Superintendency must take immediate possession of the property, assets and businesses in a controlled entity, presented one of the following facts:
a) When it has reduced its technical worth below forty percent (40%) the minimum level foreseen by the rules on proper heritage;
B) When the expiry of the deadline for submitting recovery programs or goals are met them in cases that generally indicated by the National Government, in accordance with Article 48, paragraph i). Effective Jurisprudence
Article 21. Article 115 of the Financial System Organic Statute shall read as follows:
Banking Superintendent, prior opinion of the Advisory Board and with the approval of the Minister of Finance, may take immediate possession of the property , assets and business of a supervised institution.
The takeover will aim to establish whether an entity should be liquidated; if possible place it in a position to properly develop its corporate purpose, or if they can perform other operations to achieve better conditions for depositors, savers and investors can obtain the full or partial payment of their claims. The corresponding decision must be taken by the Banking Superintendency a term not exceeding two (2) months, extendable for an equal by such entity.
This does not prevent development if liquidation process is that it is possible to place the company in a position to develop its corporate purpose or acts which allow savers, investors or depositors get better conditions for full payment or part of their debts in accordance with the provisions of this article are taken, following a decision to that effect from the Banking Superintendency, measures for the purpose. Similarly, if found during the administration of the entity that can not be reset regularly to develop its business purpose, they may be taken, following a decision to that effect from the Banking Superintendency, the necessary measures for settlement. Effective Jurisprudence
Article 22. Article 116 of the Financial System Organic Statute shall read as follows:
The takeover entails:
A) The separation of managers and directors of the management of the impounded goods. The decision to takeover the Banking Superintendency may refrain from separate certain directors or managers, unless the takeover obey violation of the rules governing individual quotas or credit risk concentration, without prejudicing later be separated at any time by the special agent;
B) Separation of auditor, unless because of the circumstances that led to the intervention, the Superintendency decides not to remove it. The foregoing notwithstanding that subsequently can be removed by the Banking Superintendency. The replacement of the auditor shall be appointed by the Guarantee Fund of Financial Institutions. In the event of liquidation Fogafin may instruct the auditor fulfilling the functions of the comptroller;
C) The inappropriateness of registration cancellation of any charge made in favor of the intervened on any property whose mutation is subject to registration, unless authorized by the designated special agent. Likewise, registrars may not enroll any act affecting the ownership of the property owned operated under penalty of ineffectiveness, unless the act was carried out by the aforementioned person;
D) Suspension of the ongoing implementation process and the impossibility of admitting new processes of this kind against the institution under takeover by reason of obligations that arose prior to that measure. Executives processes apply as appropriate the rules laid down in Articles 99 and 100 of Law 222 of 1995, and when there reference is made to concordat relationship is understood that the takeover process. The corresponding action will be forwarded to the special agent;
E) The cancellation of embargoes imposed prior to the takeover involving assets of the entity. The Banking Superintendency deliver the appropriate offices;
F) Suspension of payments of obligations due until the inauguration, where provided the Banking Superintendency, in the act of inauguration. In the event that have not been initially suspended payments, the Banking Superintendency at the time it deems appropriate, it may order the suspension. In this case payments will be made during the liquidation process, if it is available or in the process to restore the company so that it can develop its corporate purpose in accordance with the program adopted by the Guarantee Fund of Financial Institutions or agreed with creditors. However, the payroll will continue normally be paid, to the extent that resources permit the entity;
G) Interruption of prescription and non operancia expiration respect of claims by the entity that have arisen or have become due and payable prior to the takeover.
In the event that the default or liquidation of the entity is decreed, or its net assets fall below fifty percent (50%) of the subscribed capital, the same shall be subject to the regime presumptive income;
H) that all depositors and creditors, including secured, will be subject to measures taken for the inauguration, so to exercise their rights and fulfill any kind of guarantee that have front the intervened entity, must do so within the takeover process and in accordance with the provisions that govern it. In relation to collateralised loans it will be considered rightful preference, as applicable, that is, second grade if they are movable collateral and third degree if they are real.
PARAGRAFO. The removal of directors and auditor because of the takeover, when the same or later leads to the termination of the employment contract for just cause and therefore will not generate any compensation.
2. Finished. Within a term not exceeding two (2) days from the inauguration extendible months, the Banking Superintendency, prior concept of the Guarantee Fund of Financial Institutions, will determine whether the company should be liquidated, if you can take measures so that it can develop its object according to the rules that govern or other measures to depositors, savers or investors get full payment or partial payment of their claims under this Article may be adopted. In the last two cases, the Guarantee Fund of Financial Institutions submit to the Banking Superintendency that the program will continue in order to achieve compliance with the measure and where the deadlines for the payment of claims will be brought. This program may be modified when circumstances require, an event that will be communicated to the Banking Superintendency and stakeholders. The foregoing notwithstanding that there may be agreements between creditors and the company subject to the takeover.
In the event that the liquidation of the entity provided by the Banking Superintendency, the inauguration will remain until the end of the legal existence of the entity or until the remaining assets are delivered to the liquidator appointed by the shareholders paid once the external liabilities. If you decide to take the necessary measures to ensure that the company can develop its corporate purpose in accordance with the rules which govern or other measures that allow for full or partial payment of claims of depositors, savers and investors, as provided in this article, the takeover will remain until the Banking Superintendency, prior concept of the Guarantee Fund of Financial Institutions, determine the return of the company to shareholders.
When the liquidation of the entity is not available, the takeover may not exceed a period of one (1) year, extendable by the Banking Superintendency, for a period not exceeding one year; if the difficulties which led to the takeover is not remedied within that period, the Banking Superintendency will have the dissolution and liquidation of controlled institution. The foregoing notwithstanding that the Government by executive order authorizing a greater extension when so required because of the characteristics of the entity. Effective Jurisprudence
Article 23. Article 117 of the Organic Statute of the Financial System shall read as follows:
settlement as a result of the takeover
1. The decision to liquidate the entity shall include, in addition to the specific effects of the takeover, the following:
a) The dissolution of the entity;
B) Enforcing all term obligations by the operated, whether commercial or civil, whether or not caucionadas, the foregoing without prejudice to the provision of rules governing the operations of futures, options and other derivatives ;
C) The formation of the mass of goods;
D) Automatic termination the expiration of a period following the execution of the administrative act, contracts of insurance in force, of whatever kind, concluded by an insurance company for which two (2) months Banking Superintendency in liquidation. The Banking Superintendency may extend this period up to six months for insurance and life fulfillment. In the administrative act ordering the liquidation of an insurer the result of the automatic termination above will be noted. The above unless the entity under takeover yield the corresponding contracts, which should happen in any event in the case of insurance contracts that grant the coverage of social security under Act 100 of 1993 and Decree -law 1994 and 1295 mandatory traffic accident insurance. For this purpose the corresponding mathematical reserves that pension savings are insured and if the case rights under the guarantee of the Nation, in accordance with Law 100 of 1993 is taken into account;
E) labor rights of workers enjoy appropriate legal protection, settlement processes.
2. Term of validity of the measure. The takeover of the entity remains as long when finished declare their legal existence except when delivery is made to the liquidator appointed by shareholders.
When the settlement is available, it may not last for more than four (4) years since its inception. The foregoing notwithstanding that the Government can extend it by executive order for a longer term because of the size of the organization and conditions of the settlement. Effective Jurisprudence
Article 24. Article 291 of the Organic Statute of the Financial System shall read as follows:
Principles governing the takeover
The President of the Republic, in exercise of the functions conferred on it by paragraph 25 Article 189 of the Constitution, noting how the process inauguration will take place, and in particular how will proceed to liquidate the assets of the entity, to perform the acts necessary to place it in a position to develop its object social or take the steps necessary to obtain better conditions for full or partial payment of the debts of savers, depositors and investors; the manner and time in which they must file claims or claims; the amounts that can be canceled as administrative expenses; how are recognized and paid claims, objections will be decided, goods that should not form part of the mass will be restored, and generally acts developing takeover can or should rdalizar.
Those powers shall be exercised by the President of the Republic subject to the principles and criteria set out in Article 46 of the Organic Statute of the Financial System and the following general rules:
1. The takeover may be adopted only on the grounds provided by law.
2. It will aim to protect the financial system and depositors and savers so they can obtain payment of their claims under the assets of the entity and, if the case, deposit insurance.
3. The decisions taken will take into account the real possibility of remedying the causes that led to the takeover and the need to avoid situations that endanger the stability of the financial sector and the overall economy at stake.
4. The decision to takeover shall be immediately enforceable through commissioned for the purpose by the Superintendent and if it can not personally notify the legal representative shall be notified in a notice to be posted in a public place in the offices of the official registered office administration. The administrative appeal shall not suspend the execution of the measure.
5. It will be the Guarantee Fund of Financial Institutions designate special agent, who may be a natural or legal person may act both during the initial stage, as in administration or liquidation and will have an advisory board with representation of creditors in the manner established by the Government.
6. Special agents develop activities that are entrusted to them under their direct responsibility.
7. The Guarantee Fund of Financial Institutions will monitor the activity of special agent, subject to the supervision of the Banking Superintendency on the institution under administration, while settlement is not decided.
8. Special agents transient exercise public functions, subject to the applicability, where the case, the rules of private law to acts done on behalf of the entity subject of the takeover.
9. resolution mechanisms that allow private sector participation will be encouraged.
10. The measures taken may include, inter alia, capital reduction, issuance and placement of shares without preferential rights, transfer of assets or liabilities, mergers or demergers, payment of credit through delivery trust rights in trusts in which the assets of the entity, the advance payment of securities, creating temporary management mechanisms with or without legal status in order to ensure the optimization of asset management are to respond liabilities, and any other deemed appropriate to achieve the purpose of intervention. They may also be canceled liens on assets of the entity, subject to privilege the creditor on the corresponding value.
11. The liquidation of the assets of the entity, where the case will be done through market mechanisms and conditions that can produce the same value in these assets.
12. the process may be suspended when circumstances justify it, with the consequences determined by the Government, an event in which the Guarantee Fund of Financial Institutions may assume the representation of the entity for purposes that may apply.
13. It shall establish rules intended to culminate settlement, where there are assets that could not be alienated or legal situations that have not been defined. These mechanisms may include, among others, the allocation of the remaining assets to creditors as payment of claims or shareholders, if the case, or delivery of such assets to a particular entity in which those and these, if case, agreed.
14. A process of takeover will apply the provisions of Articles 103 and 104 of Law 222 of 1995 and for this purpose it is understood that when those provisions refer to the concordat refer to the inauguration. Special Agent may terminate existing contracts at the time of the takeover if they are not necessary for the administration or liquidation.
15. The takeover and bankruptcy proceedings generally not prevent fulfill the operations performed by the entity or on its behalf in the stock market when it is convenient for it. In any case, the takeover will not prevent the relevant Stock Exchange enforce, according to the rules that govern it, the guarantees granted to fulfill a transaction entered into by an entity subject to takeover.
16. Claims that timely submission shall be given to interested parties and they should decide the special agent by administrative act to be notified by edict.
17. They may establish mechanisms to compensate for out of the assets of the entity purchasing power loss or damages by reason of the performance loss that may occur depositors, savers or investors for the lack of timely payment.
18. The action attempting savers, depositors and investors against persons who have made the misconduct that led to the takeover, in order to obtain compensation for the damage caused, be subject to the same provisions under paragraph 3 of Article 98 of the Statute.
19. Throughout the process, including the management of the entity or liquidation, agreements may be concluded between the creditors and the intervened entity, which may be approved by the favorable fifty vote-one percent (51%) of the credits and as at least half plus one of the creditors, including in this calculation the value of deposits in which the Fund is subrogated. In other respects these agreements shall be subject as appropriate to the rules of the concordat.
20. The measures taken shall take into account the need to protect the assets of the entity and prevent loss of value. Effective Jurisprudence
Article 25. Article 300 of the Organic Statute of the Financial System shall read as follows:
1. In case of liquidation, the loans will be paid following the priority rules prescribed by law. In any case, if the Guarantee Fund of Financial Institutions pay deposit insurance or a guarantee, it shall be entitled to obtain payment of sums canceled, under the same conditions as depositors or savers.
2. The amounts corresponding to liabilities promptly claimed by creditors or shareholders during the liquidation process, as appropriate, be delivered to the Guarantee Fund of Financial Institutions bound to the corresponding reserve in accordance with Article 318 of this Statute.
3. After canceling all external liabilities or the deadline to claim their payment and in this case, given the amounts corresponding to the Guarantee Fund of Financial Institutions, shareholders may appoint the liquidator need to continue the process. From that moment, the settlement will apply as appropriate the rules of the Commercial Code and supplementary provisions.
4. The settlement may be reopened when the statement after termination of the legal existence of a legal person aware of the existence of property or ownership of such entity, or undefined legal situations you have. In this case the reopening will be held for the term indicated by the Guarantee Fund of Financial Institutions and has the sole purpose to liquidate such assets or define such legal situations.
5. The sums that are due by the liquidated insurer in respect of claims payments will be canceled as first class credits after tax credits.
Without prejudice to the provisions of this statute for sums paid as deposit insurance obligations to the Bank of the Republic, in respect of quotas liquidity or other operations, the Guarantee Fund and Financial Institutions the Guarantee Fund Entities Cooperatives, shall have the right to be covered with the mass amounts excluded from the liquidation of institutions supervised by the Banking Superintendency.
The sums received by the cancellation of loans rediscounted, before or after surgery, including those received when implementing the corresponding guarantees will be excluded from the bulk of the liquidation and the same obligations under be paid the respective rediscount operations with the Bank of the Republic, when he intermedie external credit lines, Finagro, BANCOLDEX, Findeter, the Institute of Industrial Development and the National Energy Finance, provided that such entities have submitted the corresponding claim in liquidation . The outstanding balance of these loans will be an obligation of the mass of the liquidation and be subject to the prelaciones established by law. The foregoing notwithstanding that the rediscount entity as holder of credit can directly obtain the payment or payment in kind.
6. The excluded assets of the estate liquidation are properly identified refunded to those entitled to them in the time provided in the regulations. The sums received by reason of payment of rediscounting loans are canceled to rediscount entity. The other people according to the law are entitled to be paid with assets excluded from the mass, but have no rights to a specific property, receive payment of their credits prorated over the remaining assets. Effective Jurisprudence
Adiciónanse ordinals g), h), i) and j), as well as a paragraph to paragraph 2 of Article 299 of the Organic Statute of the Financial System. Ordinal g), h), i) and j), and paragraph of paragraph 2 of Article 299 of the Organic Statute of the Financial System, shall be as follows:
g) Premiums received but not earned by the insurance object of the measure;
H) The assets under leasing, which the tenant will be transferred when exercising the option and pay the respective value. If the period of performance of the contract is pending and the tenant does not agree to pay the present value, the contract and either be transferred to another entity legally empowered to develop leasing operations;
I) Money customers of the intervened entity paid or owed by way of financing foreign trade operations to the specific purpose of being repaid to the lender the outside and find affection. To this end, the correspondence between the financing granted to the entity operated by the lender from abroad and the financing granted by the entity operated its customers should be established;
J) In general, identifiable species even meeting held by the entity operated belong to another person, to which must be evidenced sufficient evidence.
PARAGRAFO. They shall not part of the balance of credit institutions and credited to accounts, the amounts collected for third parties developing mandate agreements, such as those for taxes, levies and duties, as well as the collections made by concept social security payments and pension payments, while not moved by express written consent of the principal of ordinary deposits, savings accounts or investments order. Effective Jurisprudence
Article 27. Amend paragraph 7 of Article 301 of the Organic Statute of the Financial System as follows: 27.1
The first paragraph of paragraph 7 of Article 301 of the Financial System Organic Statute shall read as follows:
7. revocation actions. When the assets of the intervened entity are insufficient to pay all claims recognized, you can impetrarse by the liquidator the recall of the following acts carried out within eighteen (18) months prior to the date of the ruling to order the takeover .
Hereby added 27.2 paragraph 7 of Article 301 of the Organic Statute of the Financial System with the following ordinal:
f) Acts gratuitously.
27.3 The ordinal e) of paragraph 7 of Article 301 of the Financial System Organic Statute shall read as follows:
e) Other acts of disposal or management made to the detriment of creditors, when the third beneficiary of the act it has not acted in good faith free of guilt. Effective Jurisprudence
PROVISIONS RELATING TO INSURANCE FUND FINANCIAL INSTITUTIONS AND DEPOSIT INSURANCE
Article 28. paragraph 4 of Article 295 of the Organic Statute of the Financial System will read:
4. Appointment of the liquidator and the comptroller of liquidation. The Director of Guarantee Fund of Financial Institutions appoint the liquidator and the comptroller, who may be natural or legal persons. The liquidator and the comptroller may be removed from office by the Director of the Guarantee Fund, where it appears to it must be replaced.
For the appointment of liquidator the following minimum requirements are taken into account:
a) Be professional with a college degree and have not less than five (5) years related to financial or commercial activity areas, and || | b) personal and professional suitability determined according to the criteria used to authorize the holding of administrators and legal representatives of the entities supervised by the Banking Superintendency and the Superintendency of Solidarity Economy.
Comptrollers to the designation of the following minimum requirements are taken into account:
a) Be a Certified Public Accountant, with professional card, and
b) Proven experience and suitability judgment of the nominator.
Case of legal entities, must have been formed at least one (1) year prior to the date of appointment and prove that they have the technical and operational infrastructure suitable for the performance of the function and qualified personnel which meets the requirements to be comptroller liquidator or individual, as appropriate.
From possession to the Director of the Fund the liquidator and the comptroller will assume his duties, without prejudice to compliance with the formalities of registration in the Chamber of Commerce of the main domicile of the company in liquidation.
PARAGRAFO. While a table of management fees and premiums is established, the Director of the Guarantee Fund shall determine the fees charged to the company in liquidation shall receive the liquidator and the comptroller of the settlement management. Management premiums will be defined by the rapid and efficient work performed by the liquidator in accordance with the parameters and conditions determined by the Guarantee Fund.
Likewise, provide that bail is granted in favor of the entity in the amount and in the manner determined by the Guarantee Fund.
To authorize the National Government for a term of six (6) calendar months determine and regulate a table in which the fees be levied and the liquidator appointed comptroller, taking into account the size and complexity of the entity established as well as clear criteria of austerity and justice with the resources of savers. Effective Jurisprudence
Article 29. The ordinal f) of paragraph 2 of Article 316 of the Financial System Organic Statute shall read as follows:
f) In cases of takeover, appoint special agents of financial institutions. Effective Jurisprudence
Article 30. Amend Article 317 of the Organic Statute of the Financial System as follows: 30.1
paragraph 1 of Article 317 shall read as follows:
1. Institutions must register. For the purposes of the second part of the fourth of this statute book must compulsorily register with the Guarantee Fund of Financial Institutions, prequalification made by it, banks, financial corporations, commercial finance companies, corporations, savings and housing , the pension fund managers, and other entities whose establishment is authorized by the Banking Superintendency and for which the law establishes the existence of a guarantee by the guarantee Fund of Financial institutions. 30.2
hereby added Article 317 of the Organic Statute of the Financial System with the following paragraph:
3. Whenever be made to the Banking Superintendency function inspection, monitoring and control of other other than those entities over which currently holds this role, so that in any event the Guarantee Fund for Financial Institutions can provide regarding these entities its guarantee or deposit insurance, will require a study on the risk of each, for which the information submitted by the Banking Superintendency on the situation of the entity, its solvency levels and others will be taken into account is made risk indicators. Based on this study, the Board will decide whether to grant the guarantee or insurance or if such grant conditional to fulfillment of certain conditions.
In any case the entities that capture public savings should warn about the existence or not of deposit insurance and its scope, in accordance with the instructions thereon imparts the Banking Superintendency.
30.3 Adiciónese paragraph 2 of Article 318 of the Organic Statute of the Financial System, the following literals:
m) Report officials in addition to the Director of the Fund will have the legal representation of it and point out its powers;
N) Any others established by law. Effective Jurisprudence
hereby added Article 319 of the Organic Statute of the Financial System, the following numbers:
2. In managing their income the Fund is subject to the following rules:
a) Revenues from premiums concept of deposit insurance, payments for the guarantees granted and those other income received for reimbursement , recoveries and other derivatives of their activities against the registered entities, except those made with resources from own assets of the Fund will go to the formation of reserves indicated below based on the entities for which is the payment: reserve for the payment of deposit insurance of banks, financial corporations, savings and housing corporations and commercial finance companies; reserve for the payment of the guarantee of the unemployment funds; reserve for the payment of the guaranteed pension funds, and reserve for the payment of pensions by professional risk managers;
B) In the event that the law gives the Fund the power or the obligation to ensure another class of entities, resources to secure payment of these guarantees will be given in special and separate reservations;
C) When the Fund receives income because of operations carried out under the resources of the reserves or sale of assets or entities acquired in developing the processes established by the Organic Statute of the Financial System, these resources shall accrue the corresponding reserves in the manner determined by the government;
D) The resources of each of the reserves will be used exclusively for the payment of claims or guarantees for which they were established, or to support operations on the entities to which refers the respective reservation under the terms of this law, and may not be used for other purposes. The amount of resources under a reserve intended to perform support operations, as well as its estimated net cost shall not exceed the amounts that the Fund should be paid for deposit insurance or the respective guarantee, unless such action is necessary to avoid a liquidation that would threaten the stability of the financial system or cause serious damage to the national economy. The foregoing notwithstanding the subsequent payment of deposit insurance, if there is room to it.
Whenever a reserve resources are insufficient to meet a claim, pay a guarantee or take a measure of support, the Board of the Guarantee Fund of Financial Institutions adopt a recovery plan for the reserve, which may include increasing premiums above the limit laid down in Article 323 of this Statute. This plan must be approved by the affirmative vote of the Minister of Finance and Public Credit, whenever the embodiment thereof, in whole or in part, with contributions from the General Budget of the Nation or through debt operations with the guarantee is foreseen Nation. In the event that according to the plan deemed necessary to receive resources from the General Budget of the Nation, the Fund will advance the necessary arrangements with the Directorate General of Budget Ministry of Finance and Public Credit, to be incorporated in the draft budget the necessary resources or other operations that may take place are carried out;
E) The Guarantee Fund of Financial Institutions charged because of their administrative work and from reserves, the amount indicated its board, which will consist of a percentage of the amount of assets or reserves the income from them, which will be calculated taking into account the Fund's expenses, according to the same budget approved by the board.
PARAGRAFO. transient. The resources at the date of entry into force of this law make up the assets of the Guarantee Fund of Financial Institutions, they will be divided into two (2) parts: those to be retained as part of the own assets of the Fund, and those who will be targeted reservations. Correspond to the Board of the Fund distribute resources accordingly, taking into account the following principles:
a) To determine the amount to be allocated to reserves, the value of the sums that have provided the registered financial institutions is taken into account by concept premiums for deposit insurance or payment of the guarantees and their possible returns, less the value of claims paid, and
b) the resources allocated to reserves will be distributed between them in proportion to the amount of the sums paid by the entities to which concerns each.
3. The net cost for having the Guarantee Fund of Financial Institutions operations in developing its object to perform on behalf of an entity may be, according to the characteristics of the operation, a liability by the respective entity. The government generally indicate cases where these liabilities should be recorded, the priority that must be canceled and the effects thereof.
PARAGRAFO. In accordance with Article 63 of the Constitution, the Fund Guarantee Financial Institutions and reserves they are unalienable. Effective Jurisprudence
Article 32. Amend Article 320 of the Organic Statute of the Financial System as follows:
32.1 d) and e) of paragraph 1 of Article 320 of the Organic Statute of the Financial System, shall be as follows:
d) to grant loans to financial institutions within programs in order to restore the financial soundness of member institutions. These loans may be granted to the institution under the recovery program or others involved in it and may have intended to allow or facilitate the implementation of programs of merger, acquisition, transfer of assets and liabilities or other figures to preserve the interests of savers and depositors;
E) To acquire the assets of registered financial institutions to bring the board of the Fund.
Hereby added 32.2 paragraph 1 of Article 320, the following paragraphs:
k) Within the general purpose of the Fund and the limits set by law, provide guarantees or compensate for losses or deficits that may be incurred entities financial investors or to take the property, absorb, merge or acquire assets or assume liabilities of a registered entity that are subject to the measures provided for in Article 48, paragraph i), 113 and 115 of this Statute;
L) enter into agreements with other public authorities with control functions, inspection and surveillance, in order to provide them with advice and support in developing its activities in matters that keep consistent with the purpose of the Fund. 32.3
hereby added the fourth paragraph of paragraph d) of paragraph 3 of Article 320 of the Organic Statute of the Financial System, with the following sentence:
In cases where the composition of the board of the entity receiving capital guarantee has been determined by law, the Fund is entitled to appoint an additional number of members so that the composition of the board reflects the Fund's participation in the capital or to designate one additional member who is entitled to cast a number of votes in proportion to the Fund's participation in the capital of the entity. 32.4
hereby added the second sentence of paragraph 4 of Article 320 of the Organic Statute of the Financial System with the following sentence:
For these purposes the Fund may enter the portion of capital deemed necessary. 32.5
hereby added Article 320 of the Organic Statute of the Financial System with the following numbers:
6. In developing its operations Guarantee Fund of Financial Institutions shall apply the following rules:
a) The Fund may perform operations under this law and the implementing regulations to seek recovery of financial institutions, when the liquidation thereof may eventually prevented their participation, or to seek payment to savers, investors or depositors or better conditions, in accordance with the provisions of this Statute;
B) Prior to the adoption of measures that correspond to support financial institutions, the Guarantee Fund of Financial Institutions will take into account the cost they imply value against the reason you should pay for deposit insurance in case of liquidation of the entity. The Fund will prefer those measures according to the study, will allow adequately fulfill its purpose at the lowest cost taking into account the value of deposit insurance. Notwithstanding the foregoing, in cases where the liquidation of the entity may endanger the stability of the financial sector or may cause serious damage to the economy, by decision of the Board of the Fund, approved by the affirmative vote of half plus one of its members, the measures necessary to guard against that risk even if its cost exceeds the value of deposit insurance, in which case may be increased insurance premiums or the cost of the guarantee of the entities covered shall be taken by the respective reserve, to the extent that it is deemed necessary, without being subject to the limit provided for in Article 323 ordinal e) of this Statute;
C) shall be preferred measures without official participation in the capital of the entity subject to the measure and providing for the performance of the actors involved in the financial market.
7. In addition to the powers provided in this Article, the Guarantee Fund of Financial Institutions, for the purpose of fulfilling its general object, you can perform other operations support financial institutions to authorize the Government in implementing Article 189, paragraph 25 , of the Constitution, subject to the principles of Article 46 of the Organic Statute of the Financial System and the rules set out in the preceding paragraph.
The Banking Superintendency request of the Institutions Guarantee Fund, you may instruct supervised entities to send to the latter the information it requires for the performance of their duties. The foregoing notwithstanding that the Banking Superintendency can deliver information directly to the Fund that it may request. Effective Jurisprudence
Article 33. paragraph 3 of Article 322 of the Financial System Organic Statute shall read as follows:
three. Information regarding support operations or rescue develop the Guarantee Fund of Financial Institutions in accordance with its object shall reserve, provided that this is necessary to preserve public confidence in the institutions of the measures and the stability of such entities. Effective Jurisprudence
hereby added to the following paragraphs and paragraphs Article 323 of the Organic Statute of the Financial System:
f) events not covered by deposit insurance shall be acknowledged, including deposits or subdivisions made by the financial institution express prohibition against the Banking Superintendency, provided that such prohibition has been timely disclosed to the public;
G) The obligations of the Fund by reason of deposit insurance or guarantee may be satisfied by the payment directly to the depositor of the corresponding sum of money or by using other mechanisms to allow him to receive at least a sum equivalent to the protected value of its receivable;
H) can be canceled depositors from takeover, an amount up to an amount equivalent to the value of deposit insurance or the corresponding security. Such payment will liberatorios effects on insurance and guarantee in the amount by which it is made. Similarly, loans may be granted by the Guarantee Fund of Financial Institutions to the entity subject to the measure so that it treats the payment of the amount of deposit insurance deductible;
I) conditions will be established in order to prevent the same person can obtain, directly or indirectly, more than the amount of insurance payment covered;
J) You may set the date on which the financial court in order to determine the payment of deposit insurance or guarantee will. Subsequent acts of savers or depositors will not result in exposure or liability of the Fund is extended.
PARAGRAFO 1o. Deposit insurance may be paid to the spouse or life partner and the heirs of the beneficiary without probate, when the value thereof does not exceed the amount to which referred to in Article 127, paragraph 7 of this Statute, to which the requirements set by the Board of the Guarantee Fund of Financial Institutions will be fulfilled.
PARAGRAFO 2o. The Guarantee Fund of Financial Institutions may charge for compulsory jurisdiction sums paid by reason or occasion deposit insurance or guarantees granted, based on false or inaccurate information provided by the insured or guaranteed entity or the applicant, with interest. Such interest will be charged at the maximum rate permitted by law, where the person concerned has acted with gross negligence or willful misconduct. In other cases, when the misstatement arising on information provided by the entity, the latter will pay the default interest. For purposes of this paragraph an administrative act which settles the amount of the obligation, without the need to obtain the consent of the person concerned will be issued.
PARAGRAFO 3o. The Board of the Guarantee Fund of Financial Institutions organize the guarantees, according to the law, should or may grant in favor of savers or investors, for which it will apply the provisions of this article as they are compatible with their nature, with except as provided in clauses a) and e). Effective Jurisprudence
CHAPTER X. PROVISIONS FOR BANKING SUPERVISION
Article 35. The first paragraph of paragraph 1 of Article 325 of the Organic Statute of the Financial System shall read as follows:
1. Nature and objectives. The Banking Superintendency is a technical agency attached to the Ministry of Finance and Public Credit, with legal, administrative and financial autonomy and its own, by which the President of the Republic exercises the inspection, supervision and control over people perform the financial and insurance activities, and is responsible for compliance with the following objectives: Effective Jurisprudence
hereby added Article 325 of the Organic Statute of the Financial System, the following paragraph:
three. Legal representation. The legal representation of the Banking Superintendency the Superintendent Banking. Effective Jurisprudence
Article 37. Amend paragraph 3o. Letter b) of Article 326 of the Organic Statute of the Financial System, which will read:
b) To establish general rules to be observed by institutions supervised in their accounts, without prejudice to the freedom granted to the latter to choose and use accessories methods, in accordance with the law. Effective Jurisprudence
Article 38. Amend paragraph 1 of Article 95 of the Organic Statute of the Financial System, which will read: Article 95.
1. general scheme. The Banking Superintendency is empowered to issue general rules on accounting supervised institutions must observe, without prejudice to the autonomy of the latter to choose and use methods accessories in accordance with the law. Effective Jurisprudence
Hereby added Article 39. Article 334 paragraph 1 of the Organic Statute of the Financial System with the following paragraph:
PARAGRAFO 3o. The minutes of the Advisory Board of the Banking Superintendent and the working documents that serve them support will be reserved. Effective Jurisprudence
Article 40. paragraph 4 of Article 337 of the Organic Statute of the Financial System shall read as follows:
4. Income. The resources needed to cover operating costs and investment required by the Banking Superintendency will come from the following:
a) Contributions imposed on supervised entities;
B) The resources obtained from the sale of its publications, bid documents or contests merits, and photocopying;
C) Contributions, grants or donations received for the fulfillment of its purposes;
D) The fees to be levied on the lease of its assets;
E) Proceeds from the services provided by the Bank;
F) Revenue from the sale or lease of information systems and software designed and developed by the entity;
G) The resources to be transferred from the General Budget of the Nation;
H) Interest, income and other benefits received by the management of their own resources, and
i) Other income which have been or are recognized by law. Effective Jurisprudence