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LAW 795 OF 2003
(January 14)
Official Journal No. 45,064 of 15 January 2003
By which some rules of the Organic Statute of the Financial System are adjusted and other provisions are dictated.
THE CONGRESS OF COLOMBIA,
DECRETA
PROVISIONS THAT MODIFY THE ORGANIC STATUS OF THE FINANCIAL SYSTEM.
ARTICLE 1o. Add the numeral 1 of 7or. of the Organic Statute of the Financial System with the following literal:
n) Perform housing leasing operations which must have for object real estate intended for housing. These operations shall be considered operating leasing for accounting and tax purposes.
For the development of this operation, the Bank Establishments will have to give priority to the debtors of housing loans that have been delivered by the respective property. The above as long as such natural persons meet the minimum legal requirements related to the respective credit risk analysis.
In the regulation issued by the National Government under this article, it shall take measures to ensure the protection of users or locators.
ARTICLE 2o. Add the numeral 1 of 7or. of the Organic Statute of the Financial System with the following literal:
n) Celebrate non-fiduciary management contracts of the portfolio and the accreances of financial institutions that have been the subject of takeover for settlement.
ARTICLE 3o. Add article 24 of the System Organic Statute
Financial with the following literal:
k) Receive credits from other credit institutions for the performance of microcredit operations, subject to the terms and conditions set by the National Government.
ARTICLE 4. Add the numeral 1 of article 29 of the Organic Statute of the Financial System with the following literal:
(i) To conclude contracts for the fiduciary management of the portfolio and the accreances of financial institutions that have been the subject of takeover.
ARTICLE 5o. Modify the literal e) of article 48 of the Organic Statute of the Financial System, which will remain so:
e) to determine the technical assets, the appropriate assets, the investment arrangements, the assets required for the operation of the different insurance classes and the limits on the indebtedness of the insurance companies and companies of the capitalization. Through this power, the National Government will not be able to establish forced investments.
ARTICLE 6o. Add the literals (j), (k) and (l) to Article 48 of the Organic Statute of the Financial System, which will remain so:
j) Regular payment systems and activities related to this service that are not the responsibility of the Bank of the Republic. This faculty shall be exercised prior to the Board of Directors of the Bank of the Republic, so that this body may decide on the impact of the regulation on the policies of the Bank of the Republic. Similarly, it is up to the National Government to establish the conditions for the intervention entities to conduct e-commerce activities and to use the data messages of the Law 527 of 1999;
k) Establish rules aimed at preventing the laundering of assets in the entities subject to intervention, without prejudice to the powers of instruction of the Banking Superintendence;
l) Determine the different credit modalities whose rates should be certified by the Banking Superintendency.
ARTICLE 7o. Addition to the Organic Statute of the Financial System with the following article, which is incorporated under the number 52:
Article 52. Intervention for the development of the asset and liability exclusion measure.
1. The National Government will intervene to establish the rules according to which the measures of exclusion of assets and liabilities will be implemented and the progressive dismantling of operations, in accordance with the general rules provided for in numerals 11 and 12. Article 113 of the Organic Statute of the Financial System. In the development of the power of intervention that is regulated in this article, the National Government shall dictate the rules applicable to the event in which the existence of overvalued assets or undervalued liabilities is established.
ARTICLE 8o. Modify the third and fourth points of article 53 of the Organic Statute of the Financial System and add an item to the same number as:
In any case, you will refrain from authorizing the participation of the following persons:
(a) Those who have committed crimes against the economic patrimony, money laundering, illicit enrichment and those established in Title X and Second Chapters of Title XIII of the Second Book of the Criminal Code and the rules that modify, replace, or add;
(b) Those to which the extinction of the domain has been declared in accordance with Law 333 of 1996, when they have participated in the conduct of the conduct referred to in Article 2or. of that law;
c) Sanctioned for violation of the rules governing individual credit quotas, and
d) Those who are or have been responsible for the mishandling of the business of the institution in whose direction or administration they have intervened.
The Banking Superintendent, within five (5) years following the date on which the holding of a financial institution has been decreed for settlement purposes, may refrain from authorizing the participation of the directors and Tax reviewers who would have been found to be holding such charges to the date the measure was enacted.
When the application is filed or during the process of the application is established the existence of an ongoing process by the facts mentioned in points 3 and 4 of this article, the Banking Superintendent may suspend the until a decision is taken in the respective process.
ARTICLE 9o. Article 68 of the Organic Statute of the Financial System, shall be as follows:
3. Procedure. The contracting parties in the legal business entered into intuito personae shall express their rejection or acceptance no later than ten (10) days following the sending of the notice of assignment by registered mail to the address listed as their address in the records of the entity. If no reply is received within the fixed term, the transfer shall be deemed to be accepted. The refusal of the transfer shall entitle the institution to terminate the contract without giving rise to compensation, in the event of the corresponding liquidation and the mutual refunds to which there is a place. In any event, the acceptance of the transferred contractor shall not be required where the transfer is the result of the exercise of the precautionary measure referred to in Article 113 of the present Statute.
Of the holders of accreances that are part of the other contracts included in the assignment, no acceptance will be required. In any case, they must be notified of the notice of disposal within ten (10) days following the conclusion of the operation. The assignment in no case will produce effects of novation.
ARTICLE 10. Modify the 5 of article 71 of the Organic Statute of the Financial System, which will be as follows:
5. Conditions of the authorisation. In the development of the acquisition, merger, conversion, division, and disposal of assets, liabilities and contracts as referred to in Article 68 of this Statute, institutions shall be entitled to exclusively to advance the activities of the class of financial institution resulting from the operation. Accordingly, the approval, if required, must be conditional on the agreement with the Banking Superintendency of a programme of adequacy of the operations within a maximum of three (3) months from the date of the approval. to the appropriate institution of the institution concerned, which shall have a maximum duration of two (2) years.
ARTICLE 11. Add the following number to Article 71 of the Financial System Organic Statute:
8. To the processes of merger, division, conversion, acquisition and organization of financial institutions and insurance entities in which the State participates in any proportion, the rules provided for in this Part apply to them. In this sense, these entities are empowered to advance these processes and will not require additional authorizations to those provided for in the Organic Statute of the Financial System to bring them forward.
ARTICLE 12. Article 72 of the Organic Statute of the Financial System will be as follows:
Article 72. Rules of conduct and legal obligations of the supervised entities, their administrators, directors, legal representatives, tax reviewers and officials. The supervised entities, their administrators, directors, legal representatives, tax reviewers and officials must act not only within the framework of the law but within the principle of good faith and service to the public interest of conformity. with article 335 of the Political Constitution, for which they have a legal obligation to refrain from carrying out the following conduct:
a) Concentring the risk of assets over legal limits;
b) Celebrate or execute, at any time, contravention of legal provisions, operations with shareholders, or persons related to or related to them, above legal limits;
c) Use or facilitate resources collected from the public, to conduct operations aimed at acquiring control of other societies or associations without legal authorization;
d) Investing in other societies or associations in the amounts or percentages not authorized by law;
e) Facilitate, promote or execute any practice that has as its purpose or effect tax evasion;
(f) Not to provide reasonable or adequate information to the public, users or clients of the supervised entities to be delivered to the public, to the public, to the public, to the public, to the public, to the users or to the clients of the supervised entities. they can fully understand the extent of their rights and obligations in the contractual relationships that bind them or be able to link with them;
g) Pursue activities or hold positions without having been sworn in to the Banking Superintendence when required by law;
(h) Do not keep the accounts of the supervised entity in accordance with the applicable rules, or carry it in such a way as to prevent timely knowledge of the assets situation or of the operations it carries out, or to refer to the Banking Superintendence false, misleading or inaccurate accounting;
i) Obstructing the inspection, surveillance and control actions of the Banking Superintendence, or not collaborating with them;
j) Use unduly or disclose information subject to reservation;
k) Failure to comply with or delay compliance with the instructions, requirements, or orders that the Banking Superintendence points out regarding matters that are in accordance with the law of its jurisdiction, and
l) In general, to breach the obligations and functions that the law imposes upon them, or to incur the prohibitions, impediments or inabilities relating to the exercise of their activities.
ARTICLE 13. Add the numeral 8 to article 73 of the Organic Statute of the Financial System, which will remain so:
8. Independence of boards, boards of directors or boards of directors. The boards, management boards or administrative boards of the institutions subject to supervision and supervision of the Banking Superintendency, as appropriate, may not be integrated by a number of principal and alternate members. working with the respective institution which can themselves form the majority necessary to take any decision.
Entities monitored by the Banking Superintendency will have to adjust the composition of their boards, management boards or directors to the provisions of this number within the year following the entry into force of the present law.
ARTICLE 14. Add article 74 of the Organic Statute of the Financial System with the following numeral:
4. Possession. Those who have the legal representation of the institutions under surveillance, except branch managers, once appointed or elected and before they perform such a function, shall be sworn in and sworn in, while they are in the exercise of their duties, to administer diligently the business of the entity, to comply with the legal obligations that correspond to them in development of the same, and to comply with the norms, orders and instructions that the Superintendence Bank in the exercise of its powers.
ARTICLE 15. The numeral 2 of article 75 of the Organic Statute of the Financial System, will be as follows:
2. Derogations relating to banking establishments. The directors and legal representatives of the banking establishments will be able to take part of the boards of the financial corporations and commercial financing companies of which they are shareholders. Similarly, the directors and legal representatives of the insurance companies participating in the capital of the financial corporations, within the limits to be observed according to their investment regime, will be able to the boards of such corporations.
ARTICLE 16. Modify the numerals 1 and 4 of article 80 of the Organic Statute of the Financial System, as follows:
1. Minimum capital of financial institutions. The minimum amounts of capital to be credited for requesting the establishment of the entities subject to supervision and supervision of the Banking Superintendency, with the exception of insurance intermediaries, shall be forty-five thousand. and five million pesos ($45,085,000,000) for banking establishments; of sixteen thousand three hundred and ninety-five million pesos ($16,395,000,000) for financial corporations; of eleven thousand six hundred and thirteen million pesos ($11,613,000,000) for commercial finance companies; three thousand four hundred Seventeen million pesos ($3,417,000,000) for trust companies; six thousand eight hundred and thirty-one million pesos ($6,831,000,000) for the pension fund management companies; three thousand four hundred and seventeen Millions of pesos ($3,417,000,000) for the companies managing funds of cesanties, which will be accumulated to the one required for the pension fund management companies, when the company manages pension funds and unemployment funds, and two thousand seven hundred and thirty-three million pesos ($2,733,000,000) for the other financial institutions. These amounts shall be automatically adjusted annually in the same direction and percentage in which the price index to the consumer supplying the DANE varies. The resulting value will be approximated to the multiple in millions of pesos immediately above. The first adjustment will be made in January 2003, based on the variation of the consumer price index in 2002.
For insurance companies, with the exception of those that are exclusively subject to the offer of the export credit insurance industry and those that carry out activities of the reinsurer companies, the capital The minimum will be five thousand five hundred million pesos ($5,500,000,000.00), adjusted annually as set out in the previous paragraph, plus the assets required to operate the different insurance classes, the amount of which will be determined by the National Government. The reinsurers and those insurance entities that carry out activities of the reinsurers entities must credit as minimum capital of twenty-two billion pesos ($22,000,000,000.00), adjusted annually in the form provided in the preceding paragraph. The latter amount comprises the assets required to operate the different insurance classes.
It will be up to the national government to adopt general rules, fix the minimum capital to be accredited by the financial institutions governed by special rules which are subject to control and supervision of the Banking superintendence and insurance institutions which are the sole object of the offer of the export credit insurance industry.
The minimum amounts of capital of insurance and reinsurance entities that are modified by this law are governed by the 1st. January 2003.
4. The minimum amount of capital provided for in the first paragraph of this Article shall be permanently fulfilled by the institutions in operation, except in the case of credit institutions. For this purpose, the minimum working capital shall result from the sum of the following capital accounts: subscribed and paid capital, guarantee capital, reserves, surplus by premium for placement of shares, non-distributed profits of previous financial years and revaluation of assets, and the accumulated losses shall be deducted. The bonds must also be taken into account in the terms of paragraph 1. from the numeral 5 of this article. Likewise, in the case of entities which are the subject of the measures referred to in Articles 48, literal (i) and 113 of this Statute, the loans may be taken into account subordinated, convertible into shares or redeemable with resources obtained by the placement of shares that are granted to the financial institution, under the conditions set by the National Government. Such loans may be granted by financial institutions in the cases and under the conditions laid down by the Government.
ARTICLE 17. Amend numerals 2 and 3 of Article 82 of the Organic Statute of the Financial System, which will remain as follows:
2. Technical heritage, adequate equity and guarantee fund of the insurance institutions.
a) Technical heritage. The technical assets of the insurance institutions shall be made up of the items and weightings determined by the National Government;
b) A suitable heritage. The appropriate assets of the insurance institutions shall correspond to the minimum technical assets to be maintained and credited in order to comply with the solvency margin, as established by the National Government.
The solvency margin shall be determined on the basis of the amount of premiums or the average amount of claims, whichever is higher. The National Government shall establish the periodicity, form, risks and technical elements of the factors determining the solvency margin;
c) Guarantee Fund. It corresponds to forty per cent (40 per cent) of the appropriate solvency or equity margin, accredited in technical heritage.
3. Heritage required to operate the different insurance classes. The National Government shall establish the assets required to operate the different classes of insurance that are authorized to the insurance companies. For the purposes of calculating the minimum capital, the required assets shall be added to the absolute value stated in Article 80 1) of this Statute.
ARTICLE 18. Add a numeral 4 to article 83 of the Organic Statute of the Financial System, as follows:
4. For the monthly defects incurred by the insurance institutions in the solvency margin referred to in Article 82 2) of the Organic Statute of the Financial System, The Banking Superintendency will impose a fine in favor of the National Treasury for the equivalent of three points five percent (3.5%) on the value of the property defect that they submit monthly, without exceeding, in respect of each non-compliance, of the one Five percent (1.5%) of the assets required to comply with these relationships.
When the monthly defects arise as a result of catastrophic events, insurance companies will agree to an adjustment plan with the Banking Superintendence, the period of which may not exceed ninety (90) days. Failure to comply with the adjustment plan shall be punishable by the fine provided for in the preceding paragraph. The Banking Superintendence will define catastrophic events.
The provisions of this Article shall be without prejudice to other sanctions or administrative measures that may be imposed by the Banking Superintendence under its legal powers.
ARTICLE 19. Modifies the second paragraph of item 88 of the Organic Statute of the Financial System, which will be as follows:
For purposes of imparting your authorization, the Banking Superintendent must verify that the person interested in acquiring the shares is not in any of the situations mentioned in points 3, 4 and 5 of the article 5 of the article 53 of this Statute and, in addition, that the investment you wish to make complies with the relationships provided for in paragraph 6 of that number 5, except in the latter case of transactions of shares made with loans granted by the Guarantee Fund of Financial Institutions (Fogafin) for the purpose of restoring the wealth of assets of supervised entities.
ARTICLE 20. Add the following point to item 3 of article 88 of the Organic Statute of the Financial System:
The above exception will not apply when performing a transaction that increases the investor's participation to more than fifty percent (50%) of the subscribed entity's subscribed shares.
ARTICLE 21. Article 94 of the Organic Statute of the Financial System, will be as follows:
Article 94. Offices representing financial institutions and reinsurance from abroad.
1. Authorisation to open. It is for the Banking Superintendence to authorise the establishment in the country of offices of representation of financial institutions and reinsurance of the outside, as well as to exercise on them the inspection, surveillance and control with the same the powers that it has to monitor financial and insurance sector entities.
The National Government shall state by means of general rules the restrictions and prohibitions of the offices, the exceptions to the opening procedure, as well as the qualities and requirements to be the representative of the offices.
2. Or a representation of financial institutions from abroad. The offices of representation of external financial institutions may only provide the services provided by the national government, by means of general rules.
3. Offices of representation of reinsurers from abroad. Such offices may only operate on the acceptance or assignment of reinsurance liabilities; they shall therefore not act, directly or indirectly, in the procurement of insurance.
4. Register of reinsurers and reinsurance brokers from abroad. The Banking Superintendence will organize a register of foreign reinsurance and reinsurance brokers that act or intend to act in the Colombian market. The purpose of the registration is to allow the assessment of their solvency, experience and professionalism, among other factors. For this purpose, it shall indicate the conditions of registration and the cases in which it is an unsafe practice to contract with reinsurers or with the mediation of non-registered or excluded reinsurance brokers.
Registration on the register may be denied, suspended or cancelled by the Banking Superintendency, where the reinsurance or reinsurance broker outside does not meet or no longer satisfy the general requirements established by the that body.
5. Representation. The representation of the offices referred to in this Article shall be the responsibility of the natural person designated by the institution of the outside, which shall be duly biased for that purpose in the face of the Banking Superintendence.
6. Sanctioning Regime. Failure to comply with the provisions governing the activity of the representative offices shall be sanctioned by the Banking Superintendence in the manner provided for in Articles 209 and 211 of this Statute. In addition, by applying Article 208 of this Statute, the Banking Superintendence may order the closure of the office of representation and the removal of the representative ".
ARTICLE 22. Article 96 of the Organic Statute of the Financial System will be as follows:
" Article 96. Preservation of files and documents. The books and papers of institutions supervised by the Banking Superintendence shall be kept for a period not less than five years (5) years, from the date of the respective seat, without prejudice to the terms laid down in rules special. After this lapse, they may be destroyed whenever, by any appropriate technical means, their exact reproduction is guaranteed.
PARAGRAFO. The administration and preservation of the files of the public financial institutions in liquidation shall be subject to the provisions of the financial institutions in liquidation by the Organic Statute of the System Financial and other rules which modify or add to it. After five years the corresponding reproduction must be performed, through any appropriate technical means and transferred to the General Archive of the Nation.
The employment histories of former public financial institutions 'officers in liquidation shall be transferred to the entity to which they were linked or assigned after the completion of the relevant settlement process.'
ARTICLE 23. Modifies the numeral 1 of article 97 of the Organic Statute of the Financial System, which will remain so:
" 1. Information to users. The supervised entities should provide the users of the services that provide the necessary information to achieve the greatest transparency in the operations they perform, so as to enable them, through clear judgment elements and objectives, to choose the best options on the market and to be able to make informed decisions.
In this regard, the information corresponding to the assets and assets of the supervised entities is not subject to reserve, without prejudice to the duty of secrecy that they have on the information received from their clients and users. "
ARTICLE 24. Modify the number 4 of article 98 of the Organic Statute of the Financial System, which will be as follows:
" 4. Due service provision and consumer protection.
4.1 General Duty. The institutions subject to the supervision of the Banking Superintendence, as soon as they carry out activities of public interest, will have to use due diligence in the provision of the services to their clients in order to receive the attention in the development of contractual relations which are established with those contractual relations and, in general, in the normal development of their operations.
Likewise, in the celebration of the operations proper to its object, these institutions must refrain from agreeing clauses which, because of their exorbitant character, may affect the balance of the contract or give rise to an abuse of position. dominant.
4.2 Client Defender. Entities monitored by the Banking Superintendency must have a client advocate, whose role will be to be a customer or user spokesperson to the respective institution, as well as to know and to resolve complaints about the provision of services.
The client defender of the institutions monitored by the Banking Superintendency must be independent of the administrative bodies of the same entities and will not be able to perform in them a function other than the intended one.
Within the parameters set out in this number, the National Government by means of general rules will point out the rules to which the activity of the client defender of the entities monitored by the Superintendence should be subject to. Banking.
It will be up to the general assembly of partners or associates of the institutions to monitor the appointment of the client's defender. In the same session as designated, the information concerning the appropriate appropriations for the provision of human and technical resources for the performance of the tasks assigned to it shall be included.
4.3 Procedure for knowledge of complaints. Prior to the submission to the Banking Superintendence of individual complaints related to the provision of services by the supervised institutions that under their competence may be known, the client or user must present his or her complaint to the human rights defender, who must decide on it in a term that in no case may be more than fifteen (15) working days, counted from the moment that has all the necessary documents to resolve the complaint.
What is established in the foregoing paragraph is without prejudice to the judicial actions that may be filed by clients and users as well as the same institutions that are monitored for the purpose of resolving their contractual disputes and complaints. which in general interest is presented to the Banking Superintendence.
4.4 Sanctions. Failure to comply with the client defender's obligations will be sanctioned by the Banking Superintendency in the form provided for in the Seventh Part of this Statute. In the terms of those provisions, the institutions shall be punished for not appointing the client's defender, for not making the necessary appropriations for the supply of the human and technical resources required by him. performance or not to provide the information you need in exercise of your functions. The client's defender may be punished for failing to comply with his or her own obligations.
PARAGRAFO. The client defender can perform its function simultaneously in several monitored institutions. It is excluded from the obligation to have a customer advocate at the discount banks. "
ARTICLE 25. Add the following number to Article 98 of the Financial System Organic Statute:
" 5. In order to ensure the right of consumers, financial institutions should provide sufficient and timely information to all users of their services, allowing for the appropriate comparison of the conditions financial services offered on the market. In any case, the financial information presented to the public should be made at effective rates. The National Government shall, by means of general rules, determine the periodicity and how this obligation shall be fulfilled. "
ARTICLE 26. Add article 98 of the Organic Statute of the Financial System with the following numeral:
" 6. Conflicts of interest. In the turn of the business of the entities monitored by the Banking Superintendence, the directors, legal representatives, tax reviewers and in general all official with access to inside information has the legal duty to abstain to perform any operation that results in conflicts of interest.
The Banking Superintendence shall impose sanctions on the conduct of operations leading to a conflict of interest, in accordance with the general sanctioning regime of its jurisdiction. It may also establish mechanisms through which the situation of conflict of interest will be remedied, if there is any place.
Additionally, the Banking Superintendence may generally and prior to the existence of such conflicts qualify for any supervised institution. "
ARTICLE 27. Article 104 of the Organic Statute of the Financial System, as modified by Article 25 of the Law 365 of 1997, will remain so:
Article 104. Periodic information. Any financial institution shall report to the Financial Analysis and Information Unit (UIAF), the whole of the cash transactions referred to in the previous Article, in accordance with the instructions that the Superintendence will provide to the effect. Banking, pursuant to article 10 of Law 526 of 1999.
ARTICLE 28. Add article 113 of the Organic Statute of the Financial System with the following numeral:
" 11. Exclusion of assets and liabilities. In order to protect public confidence in the financial system, the Banking Superintendency may provide, as a precautionary measure, the exclusion of assets and liabilities from and as a consequence of a credit establishment, the transfer of ownership of the assets and the disposal of the liabilities of that establishment to be determined when the corresponding order is issued, where the measure is brought to the judgment of the Banking Superintendent, in order to prevent an institution it incurs the taking of possession or to remedy it, or as an additional measure to the taking of possession.
The measure of exclusion of assets and liabilities will be subject to the rules that the National Government dictates in the development of the intervention powers and the following general rules:
(a) Only liabilities arising from the collection of deposits from the public at the end of the day, loans in favour of the Guarantee Fund of the Financial Institutions, the Fund for Guarantees of Cooperative Entities shall be excluded. and of the Bank of the Republic, other than those originating in rediscounting operations held with the latter, when it intermediates external lines of credit, and in the liquidity operations referred to in Article 16 of Law 31, 1992. The transfer of the liabilities resulting from the exclusion shall take place in full, without prejudice to the notice to be given to the holders of the liabilities subject to exclusion;
(b) Liabilities to the public shall be transferred in full to credit institutions under the conditions and procedures determined by the National Government, for which the auction mechanism may be used;
(c) With the excluded assets, a patrimony shall be established which shall be separate for all legal effects of the assets of the entity from which it was excluded, as well as the assets of the entity which under the precautionary measure provided for in this numeral to administer. Such assets shall be exclusively for the purposes set out in this Statute and may be administered by a credit establishment under a non-fiduciary management contract or by a trust company in the virtue of a contract of commercial fiducia. The liabilities for the Financial Institutions Guarantees Fund, the Cooperative Entity Guarantees Fund and the Bank of the Republic will be transferred to this equity;
(d) The exclusion shall comprise assets for the positive difference, if any, resulting from subtracting the asset recorded in the last available balance sheet of the institution subject from the measure, prior to the adoption of the measure, from the external liability of the is, taking into account the adjustments that are necessary for the Banking Superintendency in relation to that balance sheet. In any event, it shall be ensured that there is equivalence between the value attributed to the assets transferred to the assets held under the terms of the literal (c) of this numeral and the excluded liabilities;
(e) Within the excluded assets, those that have been transferred to the Financial Institutions Guarantees Fund, the Cooperative Entity Guarantees Fund, and the Bank of the Republic through discount or discount transactions shall be included. of rediscounting, different from those mentioned in the literal a) of this article. In such a case, the entities referred to must transfer to the assets constituted in accordance with Article 113 c) of this Statute, the goods which they have have been developed in the development of the active credit operation, or their equivalent in money, at the latest within eight (8) working days following the date on which the measure was adopted, once the assets are listed;
(f) In order to make the exclusion measure viable, in the event that there is no equivalence between the assets and liabilities that are the subject of the preceding literal, the Financial Institutions Guarantee Fund, within the framework of the of his legal powers and, in particular, of the number 6 of Article 320 of the Organic Statute of the Financial System, may subscribe to debt securities subordinated to the assets to which the assets are transferred, in order for existing assets to have a value corresponding to at least that of the excluded liabilities. Excluded assets may be included in the excluded assets;
(g) A property which is in conformity with the excluded assets shall be issued representative securities of rights on such assets in an amount equivalent to that of the excluded liabilities, the classes and conditions of which shall be fixed by the Board. Directive of the Guarantee Fund of Financial Institutions, taking into account the rules issued by the National Government;
(h) In order to provide liquidity to the excluded assets, the Financial Institution Guarantees Fund may transfer to the assets constituted in accordance with the literal (c) of this numeral in exchange for debt securities issued in (g) the development of this number, up to a sum equivalent to the deposit insurance which would be recognised in the event of forced liquidation in respect of the excluded liabilities;
(i) The Financial Institution Guarantees Fund may change debt securities issued in accordance with the provisions of this numeral in the form of a statement of securities issued by that Fund, in order to deliver them as payment to the Fund. credit institutions receiving liabilities to the public;
(j) Transfers of the excluded assets and liabilities shall be made by the institution's administrators, in the form and terms determined by the Financial Institutions Guarantees Fund, which shall also determine the (a) recipients of the transfers, as well as the guidelines under which the temporary administration of the excluded assets may be brought forward by the subject of the measure, for which the interinstitutional cooperation of the Superintendency Banking, all subject to the rules established by the National Government;
k) For tax purposes and for the determination of notarial and registration rights, transfers that are carried out under the development of the exclusion measure shall be considered as non-performing acts;
(l) The transfer of assets and liabilities shall be understood to be improved with the protocolization of the document or private documents containing it and in the case of rights whose tradition or constitution is subject to registration, shall be sufficient a copy of the corresponding protocolization writing, in which case it will be applied as provided for in Article 60 4) of the Organic Statute of the Financial System;
m) Administrators will be liable to minor fault under the terms of Article 63 of the Civil Code, for immediate compliance with the transfer obligation resulting from the exclusion;
n) In the case provided for in this Article and in the event where the entity's liquidation is available, the excluded assets and liabilities shall not apply the rules of the href="organic_system_financial_system_pr011.html#300"> 300 of the Financial System Organic Statute;
n) In the event that there are any remaining assets, the remaining part of the assets constituted in accordance with the literal (c) of this numeral after paying the liabilities that affect it, shall be transferred to the credit establishment that extraneous the assets. excluded.
PARAGRAFO. The terms of the Financial Institutions Guarantees Fund that are made in this number shall also be construed as being made to the Cooperative Entity Guarantees Fund, in the case of transactions made with cooperative entities registered in that fund. "
ARTICLE 29. Add article 113 of the Organic Statute of the Financial System with the following numeral:
" 12. Progressive dismantling program. The progressive dismantling program is a precautionary measure for the protection of savers and investors and seeks to prevent entities subject to control and surveillance of the Banking Superintendence from incurring a takeover. of possession or to prevent it. This measure will proceed when the supervised institution provides that in the medium term it will not be able to continue to comply with the legal requirements to operate under appropriate conditions, provided that adequate attention is guaranteed to the savings of the public. In this case, the entity shall adopt and submit to the approval of the Banking Superintendence a program of progressive dismantling of its financial or insurance operations. The Banking Superintendency may exempt entities from the legal requirements of a running entity. "
ARTICLE 30. Add the numeral 13 of article 113 of the Organic Statute of the Financial System, which will read:
" 13. Provision for the payment of labour liabilities. The total assets held by the financial institution at the time of application of the preventive measure for exclusion or progressive dismantling shall be the corresponding provision for the payment of the employment accreencies, benefits social and/or existing legal or conventional compensation, in order to guarantee the cancellation of the same. "
ARTICLE 31. Add article 113 of the Organic Statute of the Financial System with the following paragraph:
" Paragraph. The measures referred to in numerals 11 and 12 of this Article may be applicable in situations of reorganization or total or partial dismantling of financial institutions in the capital of which the Nation, the Fund of Guarantees of Financial Institutions or other entities governed by public law.
The National Government may provide, by means of general rules, that, in the transfer which results from the application of the exclusion measure, other liabilities shall be included in the charge of the financial institution of the public in respect of which the measure falls, in which case some or some of those liabilities may be placed in charge of the assets constituted in accordance with subparagraph (c) numeral 11 of this Article. The contract for the management of the excluded assets shall be concluded with the institution designated by the Financial Institutions Guarantees Fund, in the terms and conditions determined by this Fund and shall be subject to the provisions of private law. The management of the excluded assets may be entrusted to the Central de Inversiones S.A. CISA, while the Fund of Guarantees of Financial Institutions maintains the participation of majority capital in it. "
ARTICLE 32. The numeral 1 of article 114 of the Organic Statute of the Financial System, will be as follows:
" Article 114. Causals. 1. It is up to the Banking Superintendence to take immediate possession of the assets, assets and business of an entity under surveillance when any of the following facts are present which, in his opinion, make the measure necessary and before the Council advisor. "
ARTICLE 33. Add the numeral 1 of article 114 of the Organic Statute of the Financial System with the following literals:
" k) When you breach the order of exclusion of assets and liabilities that is imparted to you by the Banking Superintendence, and
l) When the progressive dismount program agreed with the Banking Superintendence is violated. "
ARTICLE 34. Addition to literal a), numeral 2 of article 114 of the Financial System Organic Statute, the following paragraph:
"Dealing with the insurance institutions, this default cause of the guarantee fund shall be deemed to be configured."
ARTICLE 35. The literal c) of article 119 of the Organic Statute of the Financial System, shall be as follows:
" (c) No transactions involving conflicts of interest may be held. The Banking Superintendence shall determine and qualify in the form provided for in the '2o' points. and 3o. Article 98 of this Statute, the existence of such conflicts. It may also establish mechanisms through which the situation of conflict of interest will be remedied, if there is any place. "
ARTICLE 36. The numeral 1 of article 122 of the Organic Statute of the Financial System will remain as follows:
" 1. Operations with partners or administrators and their relatives. The authorized operations to be determined by the National Government and to be held by the entities monitored by the Banking Superintendency, with its shareholders holding five percent (5%) or more of the subscribed capital, with its directors, as well as those who celebrate with the spouses and relatives of their partners and administrators within the second degree of consanguinity or affinity, or only civil, will require for their approval of the unanimous vote of the board members attending the respective meeting.
In the minutes of the corresponding meeting of the Board of Directors, it will also be noted that compliance with the rules on limits to the granting of credit or maximum debt or risk concentration limits has been verified. on the date of approval of the operation.
In these operations, conditions other than those generally used by the entity may not be agreed for with the public, depending on the type of operation, except those held with the administrators to address their health needs, education, housing and transport in accordance with regulations which for this purpose will be determined by the Board of Directors in a general manner. "
ARTICLE 37. Article 146 of the Organic Statute of the Financial System, will be as follows:
" 5. General prohibitions. No trust company may manage more than one ordinary common investment fund.
The Banking Superintendence may establish limits on the resources of the business managed by the trust companies, which such entities may hold in deposits in the view of their parent or in the subsidiaries or subsidiaries thereof. The limits established by the Banking Superintendence shall not apply when the person, expressly and in writing, authorizes that his or her resources be deposited in the said entities. "
ARTICLE 38. Add article 146 of the Organic Statute of the Financial System with the following numeral:
" 9. Conflicts of interest. Directors, legal representatives, tax reviewers and, in general, any official of fiduciary entities with access to inside information shall refrain from carrying out any operation that results in conflicts of interest between the the trustee and the beneficiary or the beneficiaries designated by it. The Banking Superintendence shall determine and qualify in the form provided for in the '2o' points. and 3o. Article 98 of this Statute, the existence of such conflicts. It may also establish mechanisms through which the situation of conflict of interest will be remedied, if there is any place. "
ARTICLE 39. Modifies the item 3 of article 152 of the Organic Statute of the Financial System, which will be as follows:
" 3. Investments of ordinary common funds. It shall be the responsibility of the trust companies to adopt the methodologies and procedures necessary for the safe and efficient analysis and management of the risk of the investments they make with the resources of the ordinary common funds.
The Banking Superintendency will point to the general principles and criteria that fiduciary companies must adopt to adequately assess the risks implied in such operations.
Trust companies that do not comply with these principles and criteria should be subject to the investment regime which, by means of general rules, points to the Banking Superintendency.
In any event, institutions may not invest in securities of which the parent or subordinate companies of the respective trust institution are broadcasters, acceptors or guarantors. "
ARTICLE 40. The numeral 1 of article 158 of the Organic Statute of the Financial System, will be as follows:
" 1. Conflicts of interest. The administrators and their directors, legal representatives or any official with access to inside information shall refrain from carrying out any operation that results in conflicts of interest between them or their shareholders and contributors. of capital and the funds or assets they manage. The Banking Superintendence shall determine and qualify in the form provided for in the '2o' points. and 3o. Article 98 of this Statute, the existence of such conflicts. It may also establish mechanisms through which the situation of conflict of interest will be remedied, if there is any place.
When its parent is one of the entities referred to in Article 119 1) (1) of this Statute, the administrators may not perform the operations to which they relate numerals 2 and 3 of the same article. '
ARTICLE 41. Add the numeral 5 to article 182 of the Organic Statute of the Financial System, as follows:
" 5. Due to the defects in the investment of the reserves incurred by the insurance companies and the capitalization companies, the Banking Superintendence will impose fines in favor of the National Treasury for the equivalent of 3.5% of the defect presented in the each calendar month. "
ARTICLE 42. Modifies the numeral 1 of article 184 of the Organic Statute of the Financial System, which will remain so:
" 1. Models of policies and rates. The prior authorisation of the Banking Superintendency of the models of the policies and charges shall be necessary in the case of the initial authorisation of an insurance undertaking or for the operation of a new class.
In accordance with the provisions of article 2or. of Law 389 of 1997, the models of the policies and their annexes must be sent to the Banking Superintendence for their corresponding deposit, under the conditions to be determined by that agency. "
ARTICLE 43. Article 186 of the Organic Statute of the Financial System, will be as follows:
" Article 186. System of technical reserves and investments. Insurance institutions and those which administer the General System of Occupational Risks, whatever their nature, must, inter alia, constitute the following technical reserves, in accordance with the rules of general heading which for the Issue of the National Government:
a) Risk reserve in progress;
b) Mathematical reserve;
c) Reserve for outstanding claims, and
d) The disaster diversion reserve.
The National Government will point out the additional technical reserves to the ones that are required for the exploitation of the branches. It will also dictate the rules that determine the relevant technical aspects, to ensure that the different types of insurance that are issued within the Social Security System comply with the principles that govern them. "
ARTICLE 44. Modify the 5 of article 193 of the Organic Statute of the Financial System, as follows:
" 5. Powers of the National Government in relation to the terms of the policy and contribution to the Fosyga. As it is a compulsory insurance of forced recruitment, the Government National, through the Ministry of Finance and Public Credit, will indicate in a uniform manner the general conditions of the policies, the maximum rates that can be charged for the same, as well as the value of the contribution to the Solidarity and Guarantee Fund. The value of this contribution shall be calculated as the sum between a percentage of the annual insurance premium and a percentage of the commercial value of the vehicle. In any case, this value may not exceed 100% of the value of the annual premium.
The Banking Superintendency will periodically review the technical and financial conditions of the operation of this insurance, for which purpose it will ask the insurance institutions for the information it deems appropriate.
In any case, the principles of equity, sufficiency and moderation will be observed in the determination of tariffs, and differential ranges may be established according to the nature of the risks.
PARAGRAFO 1o. They will be free of contribution to cu renting institution or fund, SOAT premiums on motorcycles up to 200 cc of cylinder capacity. As a result, the SOAT premium for these vehicles will cover exclusively the cost of the risk that is currently determined for them, considering them with a criterion of favorability vis-à-vis others with greater passenger capacity and cylindrical.
PARAGRAFO 2o. For the purpose of fixing the premiums, the National Government will set the policies for imputation of road accidents, taking into account the responsibility for causing the accident.
ARTICLE 45. Replace the Seventh Part of the Organic Statute of the Financial System, which will be as follows:
Part Seventh
SANCTIONING REGIME
Chapter I.
General Rules.
Article 208. General rules. This part of the Statute establishes the administrative sanctioning regime applicable to entities monitored by the Banking Superintendency, as well as to directors, administrators, legal representatives, tax reviewers or other officials or employees of these.
The administrative sanctioning of the Banking Superintendency is oriented and exercises according to the following principles, criteria and procedures:
1. Principles. The Banking Superintendency in the application of administrative sanctions will guide its activity in accordance with the following principles:
(a) Principle of contradiction: The Banking Superintendence will take into account the disclaimers made by the persons to whom the statement of objections has been made and the contradiction of the evidence regularly and in due time to the administrative process sanctioning;
(b) Principle of proportionality, according to which the penalty must be proportionate to the infringement;
(c) The exemplary principle of the sanction, according to which the sanction that is imposed on the other directors, administrators, legal representatives, tax reviewers or officials or employees of the same supervised entity in which it occurred the infringement and other entities monitored by the Banking Superintendence, to refrain from violating the rule that gave rise to the sanction;
d) Principle of the targeted disclosure, according to which the Banking Superintendency may determine the time when the information will be disclosed in cases where disclosure of the sanction may put the solvency or security of the the supervised entities considered individually or as a whole.
Additionally, the Banking Superintendence will apply the guiding principles of the administrative actions set out in article 3or. of the Administrative Contentious Code.
2. Criteria for graduating administrative penalties.
The penalties for administrative infractions referred to in this article will be graduated according to the following criteria, as soon as they apply:
(a) The extent of the damage or danger to the legal interests protected by the Banking Superintendence, in accordance with the privileges referred to in this Statute;
(b) The economic benefit to which the infringer or third party has obtained, by the commission of the infringement, or the damage that such an infringement may have caused;
c) The recidivism in the commission of the violation;
d) The resistance, refusal or obstruction to the investigative or supervisory action of the Banking Superintendence;
e) The use of fraudulent means in the commission of the offence, or when a person is used to hide it or to cover its effects;
(f) The degree of prudence and diligence with which the duties have been addressed or the relevant legal standards have been applied;
g) Reluctance or contempt to comply with orders given by the Banking Superintendence;
(h) The exercise of activities or the performance of charges without having been placed before the Banking Superintendence when the law so requires;
i) The express recognition or acceptance of the investigation into the commission of the infringement before the imposition of the sanction to which it has taken place.
These graduation criteria shall not apply to the imposition of financial penalties governed by special rules, the amount of which is calculated using the methodology indicated by those provisions, such as those relating to lace, adequate levels of equity, solvency margins, own position, compulsory investments, maximum and minimum investment and other controls applicable to institutions monitored by the Banking Superintendency.
3. Sanctions. The following are the administrative penalties that the Banking Superintendency can impose:
a) Mounting or calling attention;
b) Multa pecuniaria in favor of the National Treasury. In the case of the penalties provided for in Article 209 of this Statute, the fine may be up to a hundred and ten million pesos ($110,000,000.00) of the year 2002. In the case of the penalties provided for in Article 211 of this Statute and there is no special rule establishing the respective penalty, the fine may be up to five hundred. Fifty million pesos ($550,000,000.00) for the year 2002;
c) Suspension or disablement for up to five (5) years for the exercise of those charges in entities monitored by the Banking Superintendence that require for their performance the possession before that body;
d) Emotion of the administrators, directors, legal representatives or tax reviewers of the persons monitored by the Banking Superintendence. This penalty is applied without prejudice to those laying down special rules;
e) Closing of the offices of representation of financial institutions and of foreign reinsurance.
The sums indicated in this numeral will be adjusted annually, in the same sense and percentage as the DANE-supplied Consumer Price Index will vary.
The pecuniary fines provided for in this article may be successive as long as the non-compliance that originated them exists.
4. Sanctioning administrative procedure.
a) Start of the performance. Administrative action to determine the commission of infringements may be initiated on its own initiative, by reports received from third parties, through the practice of administrative visits for inspection, surveillance and control, by the transfer of other authorities, by complaints or reports from natural or legal persons and, in general, by any other means offering credibility;
b) Administrative action. For the purposes of determining the administrative offences, the competent officials shall, at the stage prior to the formulation of charges, carry out the tests in accordance with the provisions governing them, while respecting the rights fundamental. The subsequent procedure shall be subject to the provisions of this article and, in general, in the Organic Statute of the Financial System and, in a special way, to the provisions of the Administrative Code.
To the actions of the Banking Superintendence in this matter, it will not be possible to oppose it; however, the documents that will be obtained will continue to be protected by the reservation that the Constitution and the law will establish with respect to them and those who have access to the relevant file is required to keep the applicable reservation on the documents that it reposes;
c) Divisibility. The administrative procedure is divisible. Accordingly, personal and institutional charges may be formulated and notified separately and the corresponding sanctions imposed independently. However, in the case of the same facts or related facts, it will be sought to transfer those investigated simultaneously, in order to be able to confront their discards, specifying in each case which charges are proposed in a personal capacity and which at institutional level;
d) Address for notifications. The notification of the actions brought forward must be carried out in the direction of the supervised institution appearing in the Office of the Registry of the Banking Superintendence or in which it has indicated the investigation in the life sheet presented for their possession in the same Superintendence, taking into account the updates that have been made for the purpose of notifications in that Office or in the life sheet.
In the case of supervised institutions which have a correspondence box in the Banking Superintendence, in accordance with the regulations that are issued for that purpose, the notifications by means of communication provided for in the literal this numeral, institutional or personal to the administrators referred to in Article 22 of Law 222 of 1995, which provide their services to an entity monitored at the time of the notification, may be done through the mail box.
When, according to the records of the Banking Superintendence, the investigated personal title has ceased to provide its services to the institution
monitored in which the facts occurred, the corresponding administrative action may be notified to the address established by the Banking Superintendence by means of direct verification or by the use of telephone guides or directories.
When it has not been possible to establish the direction of the investigation by any of the means mentioned above, the actions of the Banking Superintendence will be notified to you by means of publication of a notice in a wide journal national circulation.
If during the development of the administrative procedure the investigation or its proxy expressly point out an address to be notified of the corresponding actions, the Banking Superintendence must do it to that address from that moment on and as long as the investigation or its proxy, by written communication addressed to the official under whose jurisdiction the procedure is conducted, does not manifest the change of specific address noted;
e) Formas of notification. The notifications within the administrative sanctioning performance shall be personal, by edict, by notice or by communication.
Resolutions that terminate the administrative action and those that resolve the action brought against them shall be notified personally, or by edict if the person concerned does not appear within the five (5) days following the end of the Sent by registered mail of the respective citation.
Other acts that are issued shall be notified by communication. However, in the case of personal action in respect of those who at the time of the notification do not have the quality of the administrator of an entity under the terms of Article 22 of the Law 222 of 1995, notice of the statement of objections shall be made in a personal manner.
In cases where, by lack of known address, the respective notification cannot be effected, notice shall be given by notice in a journal of broad national circulation;
f) Notification by communication. This mode of notification shall be done by sending a copy of the act corresponding to the address determined in accordance with the literal (d) of this numeral by mail, and shall be understood as the date of receipt.
In events where a correspondence box is counted as provided for in the literal (d) of this numeral, the communication notification may be made by the copy of the act in the appropriate locker and shall be understand the date of your withdrawal from the same;
g) Charges. If the competent official considers that the facts under investigation constitute a possible infringement, he shall issue the charges relating to the alleged offenders by means of a reasoned act, against which no appeal is appropriate.
The act of the formulation of charges shall contain a summary of the facts of the possible violations, the evidence to date and the rules that are deemed to be infringed.
Dealing with charges based on reports of visits, as a synthesis of the test will be transferred from the report, attaching a copy of the same, and making available to the investigated in the dependencies of the Superintendence the working papers that the support, without prejudice to the use of the means of evidence other than the report of the visit and its existing media;
h) Term of move of the charge-making act. The term of transfer of the act of charge to the alleged offenders shall be thirty (30) days from the day following their notification. During that term the respective file shall be made available to the alleged offenders in the premises of the official who has issued the charges.
The move is the only opportunity for suspected offenders to present the discards they consider relevant. During this term, they may request the testing, provide or object to the evidence obtained prior to the formulation of charges;
i) probative period. The requested evidence shall be declared when they are conducive, relevant and effective in order to clarify the facts of the investigation. The contributions shall be accepted if they meet the above requirements. Those who do not comply with them shall be refused, and those who are deemed to be relevant shall be refused, by means of a reasoned act indicating the term for their practice, which may not exceed two (2) months in the case of tests to be carried out on the territory of the Member State concerned. national, or four (4) months, if they are to be practiced abroad. The practice of the tests shall begin after five (5) days from the date of notification by communication of the respective act;
j) Resources against the act of evidence. Against the act which totally or partially denies the evidence requested, only the replacement, before the official who gave it, comes within five (5) days after the date of its notification. Against which he decrees all the evidence requested, no appeal shall be made; nor shall any appeal be made in relation to the evidence of trade;
k) Proof of evidence. The evidence shall be assessed as a whole in accordance with the rules of sound criticism, taking into account the administrative nature of the infringement, the objective nature of the liability and the purposes pursued by the scheme. sanctioning;
l) Resources on a governmental basis against the sanction resolution. Against the decision imposing any sanction, only the appeal shall proceed, before the immediate superior of the official who proposed the act, which shall be filed within five (5) days of its notification. Against the sanction provided for in the literal n) of this numeral, only the replenishment facility shall proceed. With regard to the penalties imposed by the Banking Superintendent and the decisions referred to in Article 335 of this Statute, only the replacement resource shall be provided.
As not provided for in this article and in general in the Organic Statute of the Financial System, the interposition and processing of the resources will be subject to the provisions of Title II of Book 1 of the Administrative Code.
m) Suspension of terms. The term intended to issue and notify the resolution terminating the action shall be suspended in the following cases:
1. When any of the grounds for recusal or impairment established in the Administrative Code and in the Code of Civil Procedure are present in respect of any of the officials who are required to carry out investigative measures, to test or make final decisions within the administrative procedure.
The term of suspension in this event will be equal to that required to exhaust the process of recusal or impairment, in accordance with the procedure laid down in the Administrative Contentious Code.
2. For the probative period in which it deals with the literal (i) of this numeral, in which case the suspension shall be counted from the execution of the act which resolves on the evidence in the performance, and by the term which is indicated for the practice of the same;
n) Reluctance to supply information. Natural or legal persons who refuse to submit the required reports or documents in the course of the administrative investigations, hide them, prevent or do not authorize access to their files to the competent officials, or refer them the information requested with significant or incomplete errors shall be sanctioned by the competent official in the respective performance with a fine in favor of the National Treasury of up to ten (10) monthly minimum legal salaries in force the moment of occurrence of the facts giving rise to the sanction, without prejudice to the sanctions that there is a violation of the provisions governing the activity of institutions monitored by the Banking Superintendency;
n) Disciplinary Procedure for Reluctance To Provide Information. The penalty set out in the previous number will be imposed by means of a reasoned decision, after the transfer of charges to the person to be punished, who will have a term of five (5) days to present their discharge.
The charge-making act must be notified, in the form specified in the literal (d) of this numeral, within the month following the date on which the constitutive facts occurred.
The resolution that terminates the performance by reluctance shall be issued and reported within two (2) months of the expiration of the term to respond to the statement of objections. Against this resolution, the replacement resource should be filed within five (5) days of the date of its notification and be resolved within two (2) months of the date of its interposition.
PARAGRAFO. This action does not suspend or interrupt the development of the administrative procedure that is carried out to establish the commission of violations of the provisions governing the activity of the entities monitored by the Banking Superintendence;
o) Prescription of the collection action. The action of recovery by the co-active jurisdiction of the fines imposed by the Banking Superintendence is prescribed in the term of five (5) years, counted from the execution of the providences that impose them. The prescription may be either ex officio or at the request of the debtor.
The prescription term of the charging action is interrupted by the notification of the payment order, in which case it will start running again from the day following the notification of the same commandment;
p) Devolution of fines. In the event in which the administrative act by which the Banking Superintendence has imposed a fine in favor of the National Treasury is declared null by the jurisdiction of the administrative litigation, and the fine has already been The Ministry of Finance shall return the respective sum to the person in whose favor the judgment has been given, which shall be done in the manner and terms provided for in the judgment and in the 176 and following of the Code Administrative Litigation;
q) Rem sion of obligations. With respect to the co-active recovery of the fines imposed by the Banking Superintendence in favor of the National Treasury, as well as the collection of the contributions required by it, the remission of obligations will proceed in the events, terms and conditions. and with the expected effects on tax obligations in the current legislation.
The decision shall be taken by means of a reasoned decision issued by the official investigating the co-active jurisdiction in the Banking Superintendence, in which the termination and file of the process will be ordered.
5. Autoliquidations.
When supervised entities present financial and accounting information to the Banking Superintendence, duly certified by the Legal Representative and the Fiscal Reviewer, in relation to the reports on Lace, appropriate levels of assets, solvency margins, own position, compulsory investments, maximum and minimum investment and other controls of law, such information constitutes a declaration of compliance or non-compliance.
If within sixty (60) days following the presentation of the information referred to there are no objections from the Banking Superintendence, such statement will be firm. The supervised entity may, for a single time, within fifteen (15) days following the submission of the declaration, add or clarify the information presented.
In the latter case the Banking Superintendence will have a period of thirty (30) days, counted from the date of the presentation of the addition or clarification, in order to decide definitively. Issued the pronouncement by the Superintendence within that period, or the term expired without any pronouncement the statement will remain firm.
In the event that the Banking Superintendency raises objections within the sixty (60) days provided for in this numeral, the supervised entity will have a term, for one time, of fifteen (15) days counted from the date of the (i) a communication which objects to the liquidation, in order to deal with it. If the supervised entity, within this period, is not pronounced or is cleared of the objections of the Banking Superintendence, the liquidation shall be firm. If the controvite, on reasonable grounds, the pronouncement issued by the Control Body on the same shall have the character of definitive and shall leave in firm the respective liquidation.
Once the filed declaration or the settlement that the Banking Superintendency performs, as appropriate, the supervised entity must proceed to enter in favor of the National Treasury within ten (10) days of the following of the self-contained sanction referred to in the rule that determines it.
After the specified time limit without the mentioned entry being made, default interest shall be generated in the terms indicated in the numeral 1 of Article 212 of this Statute. In this event, the Banking Superintendence may charge the obligation for coactive jurisdiction for which the declaration is enforceable, together with the certification of having been signed by the official that the Bank Superintendent determines by general act.
6. Expiration.
The power of the Banking Superintendency to impose penalties will expire in three (3) years counted as follows:
a) In instant execution behaviors, from the day of their with-sumation;
b) In the conduct of permanent or successive execution, from the realization of the last act, and
c) In the missives, from when the duty to act has ceased.
When in the same administrative action several conducts are investigated, the expiration of the sanctioning faculty of the Banking Superintendence will be counted independent for each one of them.
The notification of the corresponding sanctioning administrative act will interrupt the expiration of the sanctioning faculty.
7. Reserve
The actions that take place within the sanctioning administrative processes that the Banking Superintendency will have in place will have the character of reserved against third parties. The penalties shall not be subject to reservation once notified, without prejudice to the provisions of Article 208 1) (d) of this Statute in relation to the target disclosure principle.
PERSONAL REGIMEN.
Article 209. Personal administrative sanctions. The Banking Superintendence may impose the penalties provided for in this Statute on directors, administrators, legal representatives, tax reviewers or other officials or employees of an institution subject to its supervision when they incur any of the following events:
(a) Infulfill the duties or legal obligations that correspond to them in the development of their duties;
b) Execute acts that are in violation of the law, of the rules issued by the National Government in accordance with the Constitution and the law in the development of its powers of intervention, of the social statutes or of any legal norm to the persons in the exercise of their duties or the supervised institution are to be held;
(c) Incompliance with the rules, orders, requirements or instructions issued by the Banking Superintendency in the exercise of its powers, where such non-compliance constitutes an infringement of the law;
d) Autorize or not avoid having to do so, acts that are violative of the law, of the regulations issued by the National Government in accordance with the Constitution and the law in development of its powers of intervention, of the statutes social, or rules or instructions issued by the Banking Superintendency in the exercise of its powers.
This is without prejudice to other actions or sanctions to be taken.
Article 210. Civil liability. Any director, administrator, legal representative, official of an institution monitored by the Banking Superintendence who knowingly violates or allows the violation of the legal provisions will be personally responsible for the losses that any natural or legal person is liable for such offences, without prejudice to other civil or criminal sanctions which the law states and measures which the Banking Superintendence may impose on its powers.
INSTITUTIONAL REGIME.
Article 211. Institutional administrative penalties.
1. General scheme. The institutions subject to the supervision of the Banking Superintendence are subject to the penalties provided for in this Statute:
a) Infulfill the duties or obligations imposed upon them by law;
b) Execute or authorize acts that are in violation of the law, of the regulations issued by the National Government in accordance with the Constitution and the law in the development of its powers of intervention, of the social statutes, or of rules or instructions issued by the Banking Superintendency in the exercise of its privileges;
(c) Incompliance with the rules, orders, requirements or instructions issued by the Banking Superintendency in the exercise of its powers, where such non-compliance constitutes an infringement of the law;
This is without prejudice to other actions or sanctions to be taken.
2. Provisions relating to the management companies of the Pension Funds and of the Cesantia. The provisions of Articles 83 numeral 2 and 162 numeral 5 of this Statute shall be without prejudice to the penalties can impose the Banking Superintendence under the provisions of article 209 of the same.
3. Provisions on the prevention of criminal behaviour. Where the violation referred to in the first paragraph of this Article falls on the provisions of Chapter XVI of Part Three of the Organic Statute of the Financial System, the fine to be imposed shall be up to thousand seven hundred and forty-two million pesos ($1,72,000,000.00) from 2002.
Additionally, the Banking Superintendent will be able to order the fined establishment to allocate a sum of up to one thousand seven hundred and forty-two million pesos ($1,742,000,000.00) from 2002 to the implementation of corrective mechanisms of character internal to be agreed with the same control body.
These sums will be reset in the form provided for in Article 208 3) of this Statute.
INTEREST ON PENALTIES.
Article 212. Interest.
1. General scheme. From the execution of any resolution through which the Banking Superintendence imposes a sanction and until the day of its cancellation, the persons and entities subject to its control and surveillance shall recognize in favor of the Treasury National a monthly interest equivalent to one and a half times (1.5 times) the current banking interest certified by the Banking Superintendency for the respective period, on the insolute value of the penalty.
2. Provisions relating to the management companies of the Pension Funds and of the Cesantia. From the enforcement of the resolution by means of which any of the sanctions referred to in Article 83 are imposed numeral 2 and 162 number 5 of this Statute and until the day on which the value of the imposed fine is cancelled, the pension and pension fund management companies shall recognise in favour of the National Treasury a monthly interest equivalent to one and a half times (1.5 times) the current bank interest certified by the Banking superintendence for the respective riode, on the insolute value of the penalty.
PARAGRAFO. Once the Banking Superintendence certifies the different current bank interest rates in accordance with the provisions of this Statute, the interest rate to be recognized on the insolute of the sanction in the events described in the preceding numerals will be equivalent to one and a half times (1.5 times) the current banking interest certified by the Banking Superintendence for the credits of consumption of the respective period.
ARTICLE 46. Modify Article 213 of the Organic Statute of the Financial System, as follows:
Article 213. Rules applicable to credit institutions, financial services companies, insurance companies, capitalization companies and other financial institutions, insurance brokers and reinsurance brokers. They will be applicable to financial corporations, commercial financing companies, financial cooperatives, financial services companies and capitalization companies the rules governing banking establishments, in all that they do not. is contrary to its special provisions.
In addition to the special rules governing your business, the following rules apply to insurance companies, insurance brokers and reinsurance brokers: Article 10 literals b), c), g); article 73 numerals 1, 2, 4, 5 and 6; article 74; article 81 numerals 1, 2, 3, and 4; item 84 numerals 1 and 2; and article 85 of the Financial System Organic Statute.
Similarly, in addition to the special rules and those referred to in the preceding subparagraph, they shall be applicable to insurance brokers and reinsurance brokers as enshrined in the articles 55 to 65; article 67, item 68 and article 71 of this Statute.
