Thông tư 01/2005/TT-NHNN

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE DECREE No. 202/2004/ND-CP OF THE GOVERNMENT DATED 10 DECEMBER 2004 ON THE PUNISHMENT OF ADMINISTRATIVE VIOLATIONS IN THE MONETARY AREA AND BANKING ACTIVITY

THE GOVERNOR OF THE STATE BANK

- Pursuant to the Ordinance on the settlement of the administrative violations dated 02 July 2002;
- Pursuant to the Decree No. 134/2003/ND-CP of the Government dated 14 November 2003 providing in details for the implementation of several Articles of the Ordinance on the Settlement of the administrative violations issued in 2002;
- Pursuant to the Decree No. 202/ND-CP of the Government dated 10 December 2004 on the punishment of the administrative violations in the monetary area and banking activity;

The State Bank of Vietnam provides guidance on the implementation of the Decree No. 202/ND-CP of the Government dated 10 December 2004 on the punishment of the administrative violations in the monetary area and banking activity (hereinafter referred to as Decree No. 202/2004/ND-CP) as follows:

I. GENERAL PROVISIONS: AUTHORITY TO IMPOSE THE PUNISHMENT OF THE ADMINISTRATIVE VIOLATIONS; THE APPLICATION OF FORMS FOR THE ADMINISTRATIVE VIOLATIONS PUNISHMENT

1. Elements of alleviation and elements of severity

Elements of alleviation and elements of severity provided for in Article 6 Decree No. 202/2004/ND-CP are applicable to the punishment of the administrative violations in the monetary area and banking activity as follows:

1.1. Persons who are authorized for the punishment of the administrative violations shall, within the scope of their competence, decide on elements of alleviation and elements of severity.

1.2. Violations that are committed in the same area for many times or that are repeated in the same area;

- Violations that are committed in the same area for many times is an act of administrative violation which was previously committed but has not been punished and the punishment time limit of which has not expired;

- Repeated violation is an act of administrative violation, which was previously punished but is repeated within one year from the date, where the implementation of the punishment decision is completed or from the date where the time limit for the punishment decision has expired.

2. Authority for the punishment for the administrative violations

Only persons who are competent for the punishment of administrative violations as provided for in Article 37 of the Decree No. 202/2004/ND-CP have the authority to make decision on the punishment for administrative violations in the monetary area and banking activity.

In respect of the Inspection Team: During the on-site Inspection, examination, if any administrative violation act in the banking and monetary area is detected, the person who is competent for the punishment of administration violations in the Inspection Team will make decision on the punishment within the time limit stipulated in Paragraph 2, Article 41 of the Decree No. 202/2004/ND-CP In case where members of the Inspection Team do not have the competence for the punishment or the required punishment goes beyond their punishment authority, the Head of the Inspection Team should complete the file for administrative punishment to submit to the competent person in accordance with provisions in point c, Paragraph 2, Article 41 of the Decree No. 202/2004/ND-CP.

3. Application of forms for the administrative violations punishment

3.1. Person who makes decision on the administrative punishment must consider the elements of alleviation and elements of severity as provided for in Article 6, provisions on violation acts, forms of punishment and fine level stipulated in Chapter II of the Decree No. 202/2004/ND-CP to decide on the application of main forms for the administrative punishment, supplementary forms of punishment or measures to settle consequences corresponding to the seriousness and the nature of the violation act.

3.2. There are 2 main punishment forms stipulated in Paragraph 1, Article 7 of the Decree No. 202/2004/ND-CP which are warnings or fine. Person who makes decision on the administrative punishment should impose either one of these two main punishment forms on a violation act.

4. Violation acts, punishment forms and fine level

The Decree No. 202/2004/ND-CP clearly provides for 9 groups of violation acts, from Article 8 to Article 36, each of them covers several specific violation acts. In the imposition of the administrative violations punishment in the monetary area and banking activity, the competent person should base on current legal documents such as: the Law on the State Bank of Vietnam, the Law on credit institutions, Ordinance on the settlement of the administrative violations, Decrees of the Government providing guidance on the implementation of the Law on the State Bank of Vietnam, the Law on credit institutions and other related legal documents to determine constituent signs, the nature and seriousness of an administrative violation act.

5. Administrative violations relating to accounting and statistics

The punishment for the administrative violations in terms of accounting and statistics in the monetary area and banking activity is to comply with provisions in the Decree No. 185/2004/ND-CP dated 4 November 2004 of the Government on the settlement of administrative violations in the accounting area; Decree No. 93/1999/ND-CP dated 7 September 1999 of the Government on the settlement of administrative violations in the statistics area and other documents that provide guidance on the punishment for administrative violations in the statistics, accounting area.

The Head of the Inspection Team must report to the specialized Inspectorate in the Finance any administrative violation act relating to accounting and statistics, which is detected during the on-site inspection, for their knowledge and punishment according to their competence.

6. Exceptional cases

Provisions in Article 23 of the Decree No. 202/2004/ND-CP are not applicable to the sale of assets during the disposal of loan security assets for the debt recovery.

Provisions in points a, c, Paragraph 2, Article 25 of the Decree No. 202/2004/ND-CP are not applicable to General Managers, Deputy General Managers of branches of credit institutions.

II. PROCEDURES OF THE PUNISHMENT FOR THE ADMINISTRATIVE VIOLATIONS

Upon the imposition of the punishment for the administrative violations, competent persons should comply with procedures of the punishment for the administrative violations stipulated in Chapter III of the Decree No. 202/2004/ND-CP and Chapter IV of the Decree No. 134/2003/ND-CP dated 14 November 2003 of the Government providing in details for the implementation of several Articles of the Ordinance on the settlement of the administrative violation issued in 2002.

The State Bank of Vietnam provides further guidance on following issues:

1. Transfer of violation files with criminal signs for prosecution for criminal liability

Upon considering a violation case for making punishment decision, if the violation act is considered having any criminal sign, the competent person as provided for in Paragraphs 2, 3, 4 Article 37 of the Decree No. 202/2004/ND-CP should immediately transfer the violation file to the competent criminal action agency in accordance with Article 62 of the Ordinance on the settlement of the administrative violations.

2. Receipt of violation file for administrative punishment

For administrative violation acts in the monetary area and banking activity which have been transferred to competent criminal action agency, but the investigation or the case has been then suspended by that competent criminal action agency, the person who is competent for administrative punishment should make decision on the punishment for the violation case within the following time limits:

2.1. The time limit for making punishment decision is 10 days at the maximum from the receipt of the decision on the return of the file of the violation case, if, prior to the transfer of the violation case to the criminal action agency, the competent person has asked for the extension of the punishment time limit;

2.2. The time limit for making punishment decision is 15 days at the maximum from the receipt of the decision on the return of the file of the violation case, if, prior to the transfer of the violation case to the criminal action agency, the competent person has not yet asked for the extension of the punishment time limit;

In case where it is required to take further time for verification, collection of evidences, the person, who is handling the violation case, may ask for the extension of the time limit for making punishment decision up to 30 days at the maximum.

2.3. After the imposition of the administrative punishment in accordance with provisions in Decree No. 202/2004/ND-CP the competent persons stated in Paragraph 4, Article 37 of the Decree No. 202/2004/ND-CP should give a notice to the State Bank of Vietnam for its knowledge.

3. Dealing with administrative violations delivered by the State management agencies, law protection agencies

3.1. In the event where administrative violations in the monetary area and banking activity occurred in the location of provinces, cities under the central Governments management are delivered by the State management agencies, law protection agencies, the State Bank branches in provinces, cities under the central Governments management are responsible:

a. To receive files, documents on these administrative violation cases;

b. to consider, make decision on the administrative punishment, apply supplementary forms of punishment and take measures for consequence settlement in accordance with their competence provided for in Decree No. 202/2004/ND-CP and this Circular;

c. Within a period of 5 working days from the receipt of the file on an administrative violation case, if the documents, evidences in the file are not considered to be sufficient for administrative punishment, the State Bank branches in provinces, cities under the central Governments management should make a written statement of the reason thereof and require the person who has drawn up the minutes on the administrative violation to supplement proof of the violation act; in necessary case, they should directly investigate and verify. If the agency that has drawn up the minutes on the punishment fails to provide sufficient documents, evidences or the investigation and verification has shown that there is not enough evidence to prove the administrative violation act, the State Bank branches in provinces, cities should not make decision on the administrative punishment and return the file, documents to the agency that has drawn up the minutes.

d. The Chief Inspector of the State Bank branches in provinces, cities under the center Governments management is responsible to implement provisions mentioned in items a, b, c, point 3.1, Paragraph 3 of this Section, and make written recommendations as to the settlement of the administrative violations, which clearly states the violation acts, suggested fine level, the basis for the application and submit it together with the entire file on the administrative violation, minutes on the administrative violation (original) to the State Bank of Vietnam (the State Bank Inspection) for settlement in accordance with provisions of applicable laws, in case where the competence to impose the administrative punishment goes beyond his authority.

3.2. Dealing with cases where the minutes on the administrative violation is drawn in contrary to provisions of applicable laws.

In case where the file of administrative violations delivered by other agencies is not in accordance with procedures stipulated in the Decree No. 202/2004/ND-CP; contents of the minutes are not in accordance with provisions in Article 55 of the Ordinance on the settlement of the administrative violations, the Chief Inspector of the State Bank and the Chief Inspector of the State Bank branches in provinces, cities under the central Governments management shall not make decision on the administrative punishment, but return the file to the agencies that have drawn the minutes and request for their adequate and sufficient supplement in accordance with applicable provisions.

3.3. The State Bank Inspection is responsible for considering the administrative punishment within their competence for administrative violation acts delivered by the Central Governments State management agencies and law protection agencies and those delivered by the State Bank branches in provinces, cities under the central Governments management.

4. Temporary seizure of material evidences, means used for the administrative violation

The temporary seizure of material evidences, means used for the administrative violation are performed in accordance with provisions in Article 46 of the Ordinance on the settlement of administrative violations.

In case where the settlement of the administrative violations is performed together with the temporary seizure of material evidences, means used for administrative violations but the settlement of the administrative violation goes beyond the punishment competence of the person who makes decision on the temporary seizure of material evidences, means used for administrative violations, he is responsible for the preservation of those material evidences and means until the complete performance of the punishment decision on that administrative violation act.

5. Use of form of minutes and decision on the administrative punishment

Minutes on the administrative violation; minutes on the temporary seizure of material evidence, means which are used for the administrative violation; decisions on the administrative punishment; decisions on the temporary seizure of material evidence, means used for administrative violation and other related minutes, decisions are made in accordance with forms stipulated in the Decree No. 134/2003/ND-CP of the Government dated 14 November 2003 providing in details for the implementation of several Articles of the Ordinance on settlement of the administrative violation issued in 2002.

6. Use of the seal stamped in the decision on the administrative violation

6.1. For the punishment decision made by the Chief Inspector (authorized deputy Chief Inspector), the seal is stamped on his signature; For the punishment decision made by an Inspector, the seal is stamped on the left corner at the top of a decision where the name of punishment agency and number, symbol of the punishment decision is stated.

6.2. Persons who are competent for the administrative violation punishment in the monetary area and banking activity as provided for in Paragraph 4, Article 37 of the Decree No. 202/2004/ND-CP are entitled to use the seal of his agency to stamp on the punishment decision.

7. File of administrative punishment

7.1. After a decision on the administrative punishment is made, the competent person of State Bank Inspection stipulated in Paragraphs 1, 2, 3, Article 37 of the Decree No. 202/2004/ND-CP must deliver the administrative punishment file to the State Bank Inspection of the same level.

7.2. After a decision on the administrative punishment is made, person who is competent for administrative punishment stipulated in Paragraphs 4, Article 37 of the Decree No. 202/2004/ND-CP must deliver the administrative punishment file to the unit in charge of punishment management at agencies which have the punishment competence.

7.3. The file includes:

- A minutes on the administrative violation in the monetary area and banking activity;

- A decision on the punishment for the administrative violations in the monetary area and banking activity;

- A minutes on the seizure of material evidences, means which are used for the administrative violations (if any);

- Other files and documents relating to the administrative violation act.

III. ORGANIZATION OF IMPLEMENTATION

1. The Chief Inspector of the State Bank organizes the implementation and direct, guide units, individuals in the system of the State Bank Inspection to thoroughly grasp and strictly implement the punishment of administrative violations.

2. General Managers of State Bank branches in provinces, cities under the central Governments management are responsible:

2.1. to regularly examine administrative punishment within their management scope; to timely deal with law violations and complaints, denunciation in the settlement of administrative violations in accordance with provisions in Articles 50, 51, 52 of the Decree No. 202/2004/ND-CP.

2.2. to follow up, report on the implementation of the Decision on the punishment for administrative violations in the monetary area and banking activity which is issued by the Chief Inspector of the State Bank for imposition of punishment on administrative violators stated in the Decision within the management area of the State Bank branches in provinces, cities under the central Governments management.

In case where individuals, organizations that are punished but do not voluntarily comply with the punishment decision, General Managers of the State Bank branches in provinces, cities under the central Governments management should request the Chief Inspector of the State Bank to make decision on the enforcement and organize the implementation of that enforcement and report the Chief Inspector of the State Bank of the result thereof.

IV. EFFECTIVENESS OF THE IMPLEMENTATION

This Circular is effective after 15 days since its publication in the Official Gazette and replace the Circular No. 09/2000/TT-NHNN of the State Bank dated 29 August 2000 providing guidance on the implementation of the Decree No. 20/2000/ND-CP dated 15 June 2000 on the settlement of administrative violations in the monetary area and banking activity.

Any difficulty, obstacle arising during the implementation, should timely be reported to the State Bank of Vietnam (through the State Bank Inspection) for submission to the Governor for consideration and decision.