Circular No. 130/2004/tt-Btc Guiding The Implementation: A Number Of Articles Of Decree No. 163/2004/nd-Cp On 7/9/2004 By The Government On Sanctioning Administrative Violations In The Field Of Securities And The Stock ...

Original Language Title: Thông tư 130/2004/TT-BTC: Hướng dẫn thi hành một số điều của Nghị định số 161/2004/NĐ-CP ngày 07/9/2004 của Chính phủ về xử phạt vi phạm hành chính trong lĩnh vực chứng khoán và thị trường chứng ...

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CIRCULAR guiding the implementation of a number of articles of Decree No. 163/2004/ND-CP on 7/9/2004 by the Government on sanctioning administrative violations in the field of securities and stock market based Ordinance on administrative violations processing 2/7/2002;
 
Pursuant to Decree No. 134/2003/ND-CP dated November 14, 2003 detailing the Government's implementation of some articles of the Ordinance on handling administrative violations on 8/7/2002;
Pursuant to Decree No. 163/2004/ND-CP on 7/9/2004 by the Government on sanctioning administrative violations in the field of securities and stock market;
Pursuant to Decree No. 77/2003/ND-CP dated 20/7/2003 by Government, functions, duties and powers of the Ministry of finance;
The Ministry of Finance shall guide the implementation of a number of articles of Decree No. 163/2004/ND-CP on 7/9/2004 by the Government on sanctioning administrative violations in the field of securities and the stock market are as follows: i. GENERAL PROVISIONS 1. Adjustable object and scope 1.1. Sanctioning administrative violations in the field of securities and the stock market are applicable to individuals, organized by Vietnam and foreign countries (hereinafter referred to as individuals, organizations), acts intentionally or unintentionally violating the provisions of the law on securities and the stock market which is not a crime and under the provisions of the law must be administrative violations. For individuals, organizations, in the case of international treaties to which Vietnam signed or joined other provisions will apply the provisions of international treaties.
1.2. Administrative violations in the field of securities and the stock market include: a) infringe regulations on securities issuance activities to the public;
b) infringe regulations on securities listed on the stock exchange centre, stock exchange;
c) infringe regulations on securities transactions;
d) infringe regulations on business activities, registration, securities depository, clearing and payment for securities transactions;
DD) infringe regulations on reporting, disclosure of information;
e) violates the rules do hinder the inspection, test or do not implement recommendations of Ombudsman institutions, check.
2. Apply sanctions 2.1 administrative violations. Sanctions administrative violations and remedial measures are applied in accordance with article 7 of Decree No. 163/2004/ND-CP on 7/9/2004 by the Government on sanctioning administrative violations in the field of securities and stock market (hereinafter referred to as the Decree 161/2004/ND-CP).
2.2. The sanction decisions are grounded on administrative violations in the field of securities and securities markets, the form and the level of sanctions prescribed in chapter II Decree 161/2004/ND-CP and the extenuating circumstances, aggravating the provisions of article 6 of the Decree 161/2004/ND-CP for the decision to apply sanctions , fines, including additional sanctions or measures remedial to correspond to the level, the nature of the violation.
2.3. The application of fines, including when to apply the extenuating circumstances, aggravation, is lower or exceeds the specified fine frame. The determination of the average of the frame of the fines made under the provisions of article 24 of Decree 135/2003/ND-CP dated November 14, 2003 detailing the Government's implementation of some articles of the Ordinance on handling administrative violations.
2.4. for a violation, just apply one of the two main sanctions is warned or fined. The additional sanctions not be imposed independently which are attached applying sanctions.
3. Extenuating circumstances, aggravating 3.1. The extenuating circumstances, aggravation in the field of securities and the stock market is regulated in article 6 Decree 161/2004/ND-CP. 3.2. Some extenuating and aggravating specific instructions such as the following: a) for some extenuating circumstances, such as: proactively prevent violations continued, alleviate the damage; voluntary remedial; voluntary compensation due to administrative violations will cause its due authority sanctioning administrative violations, review the decision; violation due to lack of understanding; due to being physically or mentally, being incited, entice, coerce to the basis, evidence to prove.
b) for some aggravation, such as violating many times is the case in many administrative violations in the field of securities and the stock market but before that have not sanctioned the Administration; It is the case previously sentenced to administrative violations, but not to "the time limit is considered to be not yet sanctioned administrative offense," which continue to implement administrative violations in the same field.
II. VIOLATIONS of A number of violations of the provisions of the Decree 161/2004/ND-CP are specific instructions as follows: 1. Point a – paragraph 1-article 8: "registration of securities issued to the public to send to the State Securities Commission has false information or concealed the truth" , is the issuer, issuing advisory organizations provided the information is not accurate or has concealed the truth in registration documents released about the content relating to financial reporting, capital levels have contributed, the decision of the general shareholders meeting through the issuance , prospectus, underwriting commitments.
2. Point b – paragraph 1-article 8: "the use of the information beyond the prospectus to probe the market before being allowed to release securities to the public", is the issuer and related objects, use of information beyond the prospectus or the inaccurate information with the content of the prospectus to advertise about stock solicitation, released before are allowed to release securities to the public.
3. Item 2-article 8: "the issuer advisory organization, released the audit organization, participated in drafting the stock issuance to the public the false in the registration records released", was deliberately created the incorrect data about capital levels have , financial situation and results of production activities, the business of the registered organization. This data affect the decision to grant the certificate of registration of securities issuance of State Securities Commission and the reviews, decided to invest in securities of the investors.
4. Point a – paragraph 1 – article 9: "the licensing application listed send the State Securities Committee has false information or concealed the truth", as the Organization listing, listing organizations provided the information is not accurate or has concealed the truth in licensing application listed on the contents related to financial reporting; capital levels have contributed; the decision of the general shareholders meeting, the Board of listed stocks, bonds; prospectus; underwriting commitment; the numbers of shareholders outside of the issuer and the rate of holding shares of the shareholders.
5. Item 2-article 8: "organization listing, listing organizations, audit organizations participated in drafting the profile listed on the fake profile in listing", was deliberately created the incorrect data about capital levels have contributed, the financial situation and results of operation the Organization's business, permission to be listed. This data affect the licensing decisions listed by State Securities Committee and the reviews, decided to invest in securities of the investors.

6. Point b – paragraph 3-article 10: "the securities without changing stock ownership", is an investor to open multiple accounts or transactions thanks to others stand named opening a trading account and proceed to buying, selling securities to generate fake securities transactions on the market but, in fact, does not change the ownership of the securities.
7. c-paragraph 3-article 10: "the collusion to make buying, selling securities to create bows, false bridge", is the investors even though there is no purpose in buying the stock sale, but want to create the type of stock market artificially should have agreed together, uniting the buying and selling of securities of the same type : agreement on the buyer, the seller; securities transactions; price, volume, time stock trading orders.
8. Point g – paragraph 3-article 10: "the sale of securities in any form when not owning stock at the time of the transaction," the investors sell securities when securities owned or not owned stock number less than the number of securities put on sale.
9. Point b-item 2-article 18: "no report or not report promptly in the event of unusual events can cause serious effects to the financial capabilities and business operations, securities services: is the stock companies do not make a report in writing to the State Securities Commission Securities trading centre, stock exchange within 24 hours from the time of the events specified in paragraph 4 to article 56 Decree 144/2003/ND-CP dated 28/11/2003 of Government; Fund management companies do not make a report in writing to the State Securities Commission, the stock exchange centre, stock exchange within 24 hours from the time of the events specified in paragraph 1 to article 57 of the Decree 144/2003/ND-CP dated 28/11/2003 of Government; non-depository institutions to report or not report promptly when abnormal events occur according to the provisions of the law.
10. Paragraph 1-article 20 provisions on "coping behavior, did not provide adequate, timely documents, documents, vouchers, figures to postpone, evade the requirements of the Organization, the delegation inspected the inspector or inspectors while on duty", is not provided or deliberately prolonging the time provided the records the document, at the request of the Inspector, inspection group; not the layout, the layout is not timely or who do not have the responsibility to work with the check, the Inspector; do not provide true information, reports, vouchers, accounting books and records, other documents at the request of the inspection, the inspection; the delay behavior, hiding or tricks other deal under the provisions of the law.
III. Jurisdiction And PROCEDURE For SANCTIONING Of ADMINISTRATIVE VIOLATIONS 1. The authority sanctioning administrative violations 1.1. Authority sanctioning administrative violations stipulates in paragraph 1 article 21 Decree 161/2004/ND-CP is the Chief Inspector of the State Securities Committee.
1.2. The competent administrative infringement sanction prescribed in clause 2 article 21 Decree 161/2004/ND-CP of inspectors is the State Securities Committee.
1.3. The President of the people's Committee is the competent level sanctioning administrative violations as stipulated in paragraph 3 article 21 Decree 161/2004/ND-CP, simultaneously to the notification in writing to the State Securities Commission within 10 working days from the date of the decision to sanction.
2. The decision to sanction 2.1. The decision to sanction by the authority sanctioning administrative violations signed and stamped.
2.2. in case of an organization, individuals perform various types of administrative violations are different, then the authority sanctioning administrative violations indicated a decision on sanctions. The case has many organizations and individuals performed administrative violations, then the authority sanctioning administrative violations based on the nature and extent of the violation of each individual organization to decide sanctions for private organizations, individuals about violations.
2.3. In the case of forms, levels of sanction beyond the jurisdiction of the sanctions, that person must transfer the entire record, documenting violations up the sanctioning authority within 10 working days from the date of completion of records breached.
3. Suspension of the violations in the course of the inspection, check if there are findings of administrative violations in the field of securities and the stock market authority sanctioning administrative violations in the Corps of inspectors must have text-ordered suspension of the right of administrative violations as defined in article 23 Decree 161/2004/ND-CP If the members of the the delegation inspected, checked the competent decision not to suspend the violation, the head of the inspection group, check must immediately report in writing to the person who has the authority to make a decision on suspension violations.
4. the transfer of authority for sanctioning of administrative violations 4.1. The State administration bodies, legal protection, during the inspection, testing, the investigation with respect to these individuals, if the Organization has administrative violations in the field of securities and stock market, but not under the control of his sanction, they must transfer the entire case record and proposals handled by writing to the Ministry of Finance (Certification Committee State securities) to resolve. The records include the following: the minutes of the administrative violations (original), the evidence, documents, data, exhibits ... are related to administrative violations in the field of securities and stock market gathered during the inspection, examination, investigation.
4.2. In case the service of administrative violations in the field of securities and the stock market by the State administration, the law protection agencies moved to, the State Securities Commission is responsible for: a) receiving the complete dossier of documents about the administrative violations. In the case of document profiles, scenario administrative violations by other agencies moved to incorrect procedures stipulated in article 24 of the Decree 161/2004/ND-CP or the contents thereon does not conform with the provisions of article 25 of Decree 161/2004/ND-CP and this circular, the State Securities Commission return transfer of records material for the Agency, establish the minutes of administrative violations and require additional amendments in full.
b) Through consider if found records, documents, evidence is insufficient grounds for sanctioning of administrative violations, the State Securities Commission may inspect, examine, verify, supplement the evidence and make a decision sanctioning administrative violations, if found to have full proof basis conclusions about administrative violations.
5. The record sanctioning administrative violations in the field of securities and stock market after the authority sanction decision sanctioning administrative violations, the Corps of inspectors, or inspectors examination must complete the profile sanction to have parts delivered to the monitoring function the Inspector, to track Executive decided to sanction, the record consists of:-the minutes of administrative violations (original);
-Decision on sanction administrative violations (original);
-The records and documents pertaining to violations;
-Minutes of confiscated exhibits, means of administrative violations (if available);
-Other necessary documents.
6. The order and procedure for sanctioning of administrative violations When sanctioning administrative violations in the field of securities and stock market, who have the authority to sanction made the right sequence, procedure for sanctioning of administrative violations set forth in the Ordinance on handling administrative violations on 8/7/2002 , Decree No. 134/2003/ND-CP dated November 14, 2003 detailing the Government's implementation of some articles of the Ordinance on handling administrative violations, the Decree 161/2004/ND-CP and the instructions in this circular.

IV. IMPLEMENTATION of this circular effect after 15 days from the date The report.
The State Securities Committee to guide and steer the Organization, individuals in the Organization of specialized stock Inspector holds and seriously implement the regulations in penalizing administrative violations.
In the process, if there are difficulties and obstacles need timely reflection on the Finance Ministry to consider and resolve.

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