Circular 217/2013/tt-Btc: Guide Implementation Of Sanctioning Administrative Violations In The Field Of Securities And Stock Market

Original Language Title: Thông tư 217/2013/TT-BTC: Hướng dẫn thực hiện xử phạt vi phạm hành chính trong lĩnh vực chứng khoán và thị trường chứng khoán

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 CIRCULAR guidelines sanctioning administrative violations in the field of securities and the stock market _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ securities pursuant to the law on June 29, 2006 and the modified Law, supplementing a number of articles of the law on securities on November 24th, 2010;
The base of law handling administrative violations on June 20, 2012;
Pursuant to Decree No. 81/2013/ND-CP dated 19 July 2013 the Government detailing some things law enforcement measures and handling of administrative violations;
Pursuant to Decree No. 108/2013/ND-CP dated 23 September 2013 of government sanctioning administrative violations in the field of securities and stock market;
Pursuant to Decree No. 118/2008/ND-CP on November 27, 2008 of the Government functions, tasks, powers and organizational structure of the Ministry of finance;
At the suggestion of the Chairman of the State Securities Commission, the Minister of Finance issued circular guidelines sanctioning administrative violations in the field of securities and stock market.
Chapter I GENERAL PROVISIONS article 1. Application object 1. Personally, the Organization has administrative violations in the field of securities and stock market.
2. Individuals, organisation got involved in sanctioning administrative violations in the field of securities and stock market.
Article 2. Time limits sanctions 1. Time sanctioning administrative violations for violations in the field of securities and the stock market is 10 years from the date of termination for violations administrative violations had ended or since discovered violations for administrative violations are being made. On the detection of administrative violation was on set the minutes noted that administrative violations.
2. Determining time limits for sanctions with some violations are specific instructions such as the following: a) for violations of the regulations on implementing the stock release, offered at points b, c and d of paragraph 3 article 4, paragraph 4 and Paragraph 5 article 6, paragraph 2 article 7 of Decree 108/2013/ND-CP dated 23 September 2013 of government regulation sanctioning administrative violations in the field of securities and stock market (hereinafter referred to as the Decree No. 108/2013/ND-CP), on the termination of violations of the time limits to sanctions is the end date the collect money to buy stock. For violations of the provisions of item 2 article 6 of Decree 108/2013/ND-CP, time sanctions are calculated from the date the stock was offered for sale to the public are put into registry transaction or listing for violating ended or since the date of establishment of the minutes noted violations for violations are being made;
b) for violations of the regulations on the registration profile public company as defined in paragraph 1, paragraph 2 point a and paragraph 3 article 9 of Decree 108/2013/ND-CP, time limits are calculated from the date the sanction established a record of violations on record registered public company;
c) for reporting behavior, published information is not timely, not reports, disclosure of information under the regulations or as requested, the time of identification of violations is done is on the next day the end of the time limit to make a report or disclosure as required or on demand;
d) within the time limit specified in paragraph 1 of this article an individual, organization, willfully evading, obstructing the sanction, the time sanctioning administrative violations are recalculated from the date the termination behaviour evading, obstructing the sanction. On the termination behaviour evading, obstructing the sanctions is on the individual, the organization violated the voluntary reports and get to make the sanctions administrative violations in the field of securities and stock market. Competent people are on duty to set the minutes noted this, save a copy of the offending profile and assigned a personal, held in violation.
Article 3. Shape and remedial measures 1. Determining the level of fines for individuals, the organization with violations of the law in the fields of securities and securities markets are specific instructions such as the following: the level of specific fines for a violation is the average of the frame of penalties are prescribed for that behavior. The average of the frame of the fine is determined by dividing the total number of double the minimum fine levels and the levels of maximum fine fine frame.
2. The identification of illegal benefit for administrative violations in the field of securities and the stock market by the State Securities Committee made.
The State Securities Committee of construction methods of illegal benefit for administrative violations in the field of securities and stock market consistent with the actual situation and specific circumstances.
3. The recovery of the stocks were offered for sale, release and return the money to investors to buy securities specified in point a of paragraph 3 of article 3 of Decree 108/2013/ND-CP is done as follows: a) within a period of 7 working days from the date of receiving the decision sanctioning administrative violations individuals, organizations must breach announced on 1 March in the Central newspaper of row and page on the company's electronic information about the stock purchase or refund the deposit (if any) plus interest calculated at the interest rate on deposits is not the Bank's term that the individual , the organization violated the open account collect money to purchase securities or cash deposits. Interest rate amount of money buying securities or cash deposits that individuals held in violation are charged to investors be counted from the date of filing of investor money on personal, held to violate the returned money to investors. Case the investor has bought securities transfers in the batch offered for sale above a valid way, personally, had violated the organization responsible for identifying the investors have the assignee before notification and refund the amount of stock currently hold to inform investors that are known;
b) individuals, organizations must report the violation of State Securities Commission about the results of the refunded money to investors to buy securities, within 3 working days from the date of the completion of the return to the investor.
Chapter II INFRINGEMENTS, FINES and PENALTIES article 4. Violations of the regulations on registration documents offered for sale; issuance of securities; the record established the Fund members; registration records listing, securities transactions; records request, additional license and operation; registration of establishment of individual securities investment capital management itself; records suggest the certification registration offices; registration records depository, depository activities branch 1. Stipulated in art. 3 article 4, paragraph 2 article 5, paragraph 3 article 7 and art. 2 article 8 of Decree 108/2013/ND-CP is applicable in case of breaches of the following information: a) information on the operations, assets, the financial situation of the issuer;
b) information about the conditions offered for sale, released, on release and use of capital obtained from waves of selling, released;
c) of information, legal documents related to the use of capital for investment purposes, business, real estate project development;
d) information about the underwriting commitment;
DD) information on commitments not yet made of the Organization has offered for sale, securities issued; information about the dispute, claims related to the Organization of securities offered for sale, released may affect the price of securities offered for sale, release;
e) information on the list of the parent company, a subsidiary of the issuer, the company that released the organization holding the control or shares, the company holds control of, or dominant shares of the issuer.
2. The provisions of paragraph 3 and article 14 paragraph 4 article 15 of Decree 108/2013/ND-CP is applicable in case of breaches of the following information: a) information about the listed conditions, conditions of registration;
b) information on the operations, assets, the financial situation of the organization listed, registration organization of transactions;
c) information about the commitment to implement the obligation of listed organizations, organizations registered for trading with investors;
d) information about the payment or guarantee commitments thereon determine the value of the secured property and documenting legal ownership, insurance contracts for the property in the case of secured bonds listed;
DD) information about reported results of investment funds and investment companies public confirmation of bank supervision;
e) information on the list of the parent company, a subsidiary of the listed organizations, organizations registered transactions, the company organized listing, transaction registration organization holding the control or shares, the company holds control of, or the Organization's dominant stock listing organizations register transaction.
3. The provisions in paragraph 7 article 20 of Decree 108/2013/ND-CP is applicable in case of breaches of the following information: a) for information on licensing conditions of establishment and operation of securities companies, fund management companies, securities investment companies individually authorize capital management , stock company branch or foreign fund management companies in Vietnam;
b) information on the operations, assets, the financial situation of the organization recommended level, additional licenses.
4. The provisions in paragraph 3 Article 23 of Decree 108/2013/ND-CP is applied in case of violation with regard to the information on licensing conditions of establishment and operation of companies individual stock investment capital management itself.
5. The provisions of art. 4 Article 24 of Decree 108/2013/ND-CP is applicable in case of breaches of the following information: a) information on the certification conditions registration offices;
b) information about who is expected to be appointed head of the representative office.
6. The provisions of paragraph 4 Article 25 of Decree 108/2013/ND-CP is applicable in case of breaches of the following information: a) for information on minimum capital;
b) information about members.
7. The provisions in paragraph 3 article 30 of Decree 108/2013/ND-CP is applicable in case of breaches of the following information:

a) information about the facilities, techniques to ensure implementation of depository activities;
b) information on the operations, assets, the financial situation of the organization recommended the certification registration depository.
8. Set "behavior, confirm registration records selling stock to the public have the fake" in paragraph 3 article 5 of Decree 108/2013/ND-CP and behavior ", confirmed a fake profile to stock or registered securities" in item 4 article 14 of Decree 108/2013/ND-CP of behavior is to create or confirm the material no real information, or incorrectly registered to sell securities to the public, the register listed or registered stock.
When it detects the behavior prescribed in paragraph 3 article 5, paragraph 4 article 14 of Decree 108/2013/ND-CP, the State Securities Commission, the stock exchange must establish the minutes of seizure of papers in a fake profile. In the case of fake documents is the license, the State Securities Commission, the stock exchange must be notified in writing to the licensing authority know.
Article 5. Violating regulations on stock offer made public March 1. The behavior "using external information prospectus or false information with the information in the prospectus to probe the market before being allowed to make selling securities to the public" in paragraph 1 a of article 6 of Decree 108/2013/ND-CP is the use of information not in the prospectus or comparison with the content in the prospectus in the profile registration of the securities offered to the public to probe the market before being allowed to perform securities offered for sale to the public.
2. The provisions in paragraph 5 article 6 of Decree 108/2013/ND-CP is applied in the case of registered organizations selling stock to the public made selling stock to the public when the State Securities Commission is considering selling sign records of securities to the public of that organization and the certification has not offered stock to the public for the officials there.
3. The level of the fines imposed for violations of the provisions in clause 5 article 6 of Decree 108/2013/ND-CP is calculated on the basis of illegal revenues from the implementation of violations. Account currency is unlawful is the difference between the total sum of money obtained from the batch offered for sale and the total value calculated according to the value of the number of shares were offered for sale at the time offered for sale. The case has imposed fines of up to 5 times the illegal earnings for which the fine is still lower than the maximum penalties applicable to acts of selling stock to the public but not registered with the State Securities Committee specified in point c of paragraph 4 Article 6 of Decree 108/2013/ND-CP, then apply the maximum penalty levels stipulated in point c Account 4 Article 6 Decree 108/2013/ND-CP to sanction.
Article 6. Breach of rules on submission of registered public company specified in point b of paragraph 3 article 9 of Decree 108/2013/ND-CP is applied in case of violation of organization have been instructed to modify the incorrect information in the registration dossier public company but not done or not done in accordance with the requirements of the State Securities Committee.
Article 7. Breach of rules on listing, register stock additional sanctions "active suspensions listed securities or stock exchange" in paragraph 5 article 14 of Decree 108/2013/ND-CP applied for established acts, the confirmation of the registration records listing of securities registration of the securities information knowingly do wrong facts, concealing the truth, or serious or misleading acts up, fake profile confirmation to the registration, listing the securities in case the stock exchange has approved the listing, register for stock held in violation.
Article 8. Violate the rules of the market organization stock 1. The provisions in clause 1 and clause 2 article 16 of Decree 108/2013/ND-CP applies for any one location or a form of exchange of information to make the joint purchase, sale and stock transactions outside the stock exchange.
2. in the case of illegal revenues, fines for violations of the regulations on organization of the stock market is calculated on the basis of the whole of the revenues that the Organization obtain from making violations. The case has imposed fines of up to 5 times the illegal earnings for which the fine is still lower than the level of the maximum fine prescribed in clause 1 article 16 of Decree 108/2013/ND-CP, has the authority to apply sanctions to the maximum penalties prescribed in clause 1 article 16 of Decree 108/2013/ND-CP to sanction.
Article 9. Violation of regulations on establishment and operations of securities 1. The behavior "to use the name or change the name of the company, affiliates, representative offices, offices not correct legal provisions" in article 20 paragraph 1 of Decree 108/2013/ND-CP is the securities companies, fund management companies, securities investment companies, stock company branch or foreign fund management companies in Vietnam use the incorrect name the name is recorded in the license to establish and operate, paper approval to open a branch, representative office or offices.
2. "acts done for clients and investors about stock price" in art. 3 article 21 of Decree 108/2013/ND-CP is the stock company knowingly provided to customers and investors of information, given the identification of, advice or recommendations are not correct , incomplete, unfounded, concealing the truth about the price or the factors that affect the price of one or more securities leads to customers and investors about stock prices and have decided not to invest in the right.
Article 10. Breach of rules on insider trading and manipulating the stock market 1. The number of illegal benefits have been made due to violations of the provisions of paragraph 1 and paragraph 3 Article 29 of Decree 108/2013/ND-CP is the benefit arising from the implementation of the internal transaction acts or transactions manipulated the stock market, after subtracting the taxes charges to be paid. The case of a multiple users account to insider trading or dealing to manipulate the stock market, the number of illegal benefit is calculated on the total of the accounts is used for internal transactions or transaction to manipulate the stock market. The case of a group of people in collusion, the internal transaction or transaction to manipulate the stock market, the number of illegal profit is calculated on each account is used for internal transactions or transaction to manipulate the stock market.
2. When considering the number of illegal benefit calculation for internal transactions acts or transactions manipulated the stock market, if the value of the illegal benefit or the extent of damage of the violation to the extent that prejudice to criminal records for transfer to the Agency of conducting criminal proceedings to consider prejudice to criminal liability in accordance in article 62 of law handling administrative violations.
Chapter III JURISDICTION and PROCEDURE for SANCTIONING of ADMINISTRATIVE VIOLATIONS article 11. Delineate the authority sanctioning the case uncovered administrative violations in the field of securities and stock market, Chief Inspector of the State Securities Committee sanction under the jurisdiction clause 1 Article 37 of Decree 108/2013/ND-CP, except in cases of administrative violations are detected through inspection activities, the specialized jurisdiction to sanction in the head of the delegation Specialized inspection of State Securities Commission.
Article 12. Over the sanctions, coercive decisions and apply remedial measures, President of the State Securities Commission and the Chief Inspector of the State Securities Commission may be assigned to deputies carried the authority sanctioning administrative violations and coercive enforcement of the decision sanctioning administrative violations or decide to apply remedial measures in the field of the certificate Securities and stock market.
Article 13. Moving violations records signs so crime criminal responsibility 1. In the process of considering violations to decision sanctioning administrative violations or in case was a decision sanctioning administrative violations, if found violations of criminal signs, who has the authority to sanction transfer profile violations to the agency conducting the criminal proceedings.
Individual cases violates are decisive executive sanction, if violations are detected signs that crime and yet time prejudice criminal liability, the person has a decision sanctioning administrative violations must decide to temporarily suspend the enforcement of the decision sanctioning administrative violations. Within 3 days from the date of the decision to temporarily suspend the effect enforcement, people had a decision sanctioning administrative violations are violations record transfer to the agency conducting the criminal proceedings at the same time notify in writing to the individual violating the know.
2. Bodies conducting criminal proceedings is responsible for reviewing, concluded the incident resolution results and answers in writing to the person who has the authority to transfer the record within the time limit prescribed by the criminal law. The absence in the criminal prosecution, then within 3 days from the date of the decision not to prosecute the criminal, the Agency conducts criminal proceedings must pay the record for sanctioning authority moved to profile.
3. in case of bodies conducting criminal proceedings notified of the decision to prosecute the criminal, who has the authority to sanction the original violation record transfer to the agency conducting the criminal proceedings within a period of 5 days from the date of the notice; the case was a decision sanctioning administrative violations, the decision to cancel the sanction decision sanctioning administrative violations.
Article 14. The transfer of authority for sanctioning of administrative violations

1. the management authority of the State in the course of the inspection, check for the individual, the organization if found to have administrative violations in the field of securities and the stock market but not under the control of his sanction, they must transfer the entire case record and proposals handled by writing to the State Securities Commission to settle.
The records include the following: the minutes noted about administrative violations (original), documents, data and evidence related to administrative violations in the field of securities and stock market gathered during the inspection, check.
2. for the administrative violations in the field of securities and the stock market by the State Management Agency moved to, the State Securities Commission is responsible for receiving the whole record, documents about the administrative violations there and treated as follows: a) case profile documents, the evidence is not yet sufficient grounds for sanctioning of administrative violations then further verification details make the base a decision or sanction conduct inspection, check the clarification of violations;
b) document records cases, scenario administrative violations moved to correct procedures and have enough base proved, conclusions about administrative violations, the establishment of minutes of administrative violations and sanction decisions according to the legal provisions.
Article 15. Set the minutes of administrative violations and decision sanctioning administrative violations 1. No administrative violations in the jurisdiction or in excess of jurisdiction of the sanctions established thereon, the person must transfer the entire record-setting profile offense to sanction authority within 10 working days from the date of establishment of the minutes of administrative violations.
The profile violated include: a) the minutes of administrative violations (original);
b) draft decision on sanctioning administrative violations;
c) the records and documents pertaining to violations;
d) minutes of confiscated exhibits, means of administrative violations (if available);
DD) other necessary documents.
2. The minutes of administrative violations must complete the content as defined in clause 2 Article 58 of law handling administrative violations. For cases not identified the correct location violation shall record the location where processing the violation. The case of the violation, infringement organization representative was not present at the place where the violation or deliberately evade or refuse to sign the founding documents must specify the reason on the minutes, collect evidence of violations, a decision or sanction the transfer of records to the competent sanctions.
3. in case of violation has been established thereon but not yet sanction decisions that individuals, not the organization making the request, the conclusion, the decision of the Chief Inspector of the State Securities Commission or Division Chief Inspector specialization of the State Securities Commission, still deliberately make that violation, the Chief Inspector of the State Securities Commission Specialized inspectors Union, the head of the State Securities Committee must report the Chairman State Securities Commission applies preventive measures is to temporarily hold the license, certificate of practice in the field of securities and stock market according to the administrative procedure prescribed in Articles 125 and 126 of law handling administrative violations to ensure that violations are ended. For this case, when a decision sanctioning administrative violations, can apply more aggravation in i clause 1 article 10 of law handling administrative violations or sanctions for behavior that does not make the request, the conclusion, the decision of the delegation inspected according to the provisions in point c of paragraph 1 to article 36 of Decree 108/2013 issued in the case in Chief Corps of inspectors are on duty.
4. sanction decided by the President of the State Securities Commission or the Chief Inspector of the State Securities Commission or Division Chief Inspector specialization of the State Securities Committee to sign and stamp the Agency the State Securities Commission.
Article 16. Disclosure of information about the decision sanctioning administrative violations 1. Within 3 working days from the date of issuance of decision sanctioning administrative violations in the field of securities and stock market, decided to sanction must be published on the website of the State Securities Committee. The case sanctioned object is a member of the transaction, listing organizations, organizations registered stock, decided to sanction must be published simultaneously on the information page of electronic stock trading.
2. Content of information published includes: name, surname, address, occupation of the offense or the name, the address of the offending organization, administrative violations, fines, remedial measures.
Chapter IV COERCIVE ENFORCEMENT of the DECISION SANCTIONING ADMINISTRATIVE VIOLATIONS in the FIELD of SECURITIES and STOCK MARKET article 17. Authority decide coercive 1. The Chief Inspector of the State Securities Commission decision coercive and organize the coercive enforcement of the decision sanctioning administrative violations, decided to apply the remedy its consequences.
2. Chairman of the State Securities Commission authorized coercive decisions and coercive enforcement organization in the following cases: a) decision sanctioning administrative violations, decided to apply the remedy its consequences;
b) decision sanctioning administrative violations, decided to apply remedial measures by the Chief Inspector of the State Securities Commission issued but not enough conditions on the force, means to organize the implementation of coercive decisions and recommendations in writing the President of the State Securities Commission decision coercive;
c) decision sanctioning administrative violations, decided to apply remedial measures by the head of the inspection division of specialized State Securities Commission issued.
Article 18. Coercive measures 1. Coercive measures to enforce the decision sanctioning administrative violations in the field of securities and the stock market include: a) deduct part of salary or income; deduct money from your account in the Bank;
b) levy property whose value corresponds to the number of fines for auction; levy on securities whose value corresponds to the amount of the fine;
c) collect money, property of the object is coerced by the individual organizations are kept in individual cases, held after the breach deliberately concur pipe property;
d) apply coercive measures to enforce remedial measures specified in paragraph 3 of article 3 of Decree 108/2013/NĐ-CP dated. 2. In individual cases, the Organization must enforce coercive decisions forced return of illegal benefits have been due to the implementation of administrative violations that individuals, organizations coerced unrealized right, then the competent person coercive decisions apply one of the measures outlined in points a , b and c of Paragraph 1 of this article.
Chapter V IMPLEMENTATION article 19. Responsible for implementation 1. This circular has effect from 1 March, 2014 and replaces circular No. 37/2009/TT-BTC on 16th March 2011 the Ministry of Finance shall guide the implementation of a number of articles of Decree No. 85/2010/ND-CP DATED January 2, 2011 by the Government on sanctioning administrative violations in the field of securities and stock market.
2. Chairman of the State Securities Committee is responsible for organizing and directing the sanctioning administrative violations in the field of securities and securities markets ensure the rule of law.
3. in the implementation process, if there are difficulties and obstacles to timely reflect the recommendation of the Ministry of finance to consider and resolve.