Thông tư 09/2000/TT-NHNN3

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE GOVERNMENT’S DECREE No. 20/2000/ND-CP OF JUNE 15, 2000 ON SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE MONETARY FIELD AND BANKING OPERATIONS

Pursuant to Article 42 of the Government’s Decree No. 20/2000/ND-CP of June 15, 1000 on sanctioning administrative violations in the monetary field and banking operations, the Vietnam State Bank hereby guides the implementation of the said Decree as follows:

Chapter I

GENERAL PROVISIONS

Section I.- SCOPE OF REGULATION AND OBJECTS OF APPLICATION:

1. Acts of administrative violation in the monetary field and banking operations are defined in Clause 1, Article 1 of Decree No.20/2000/ND-CP For cases showing signs of criminal offenses, the persons competent to sanction administrative violations shall compile dossiers and transfer them to the competent agencies for investigation and settlement according to law provisions.

When detecting that an act of administrative violation is complicated, repeated or recidivistic, in order to decide to handle such act administratively or penally, the person competent to sanction administrative violations should consult with the People’s Procuracy of the same level.

Where acts of administrative violation in the monetary field and banking operations have been transferred to the investigating bodies but later the agencies with penal handling competence issue decisions to suspend the investigation or the case, the persons competent to sanction administrative violations shall, within 3 months after receiving notices from the agencies with penal handling competence, have to consider the administrative sanctions against the said violations according to Decree No.20/2000/ND-CP.

2. Other violations related to banking operations like tax evasion or contraband; violations of the regulations on practicing thrift, combating wastefulness or corruption... shall be handled according to other law provisions (the sanctioning of tax-related violations shall comply with the provisions of the tax legislation while the handling of corruption acts shall comply with the provisions of the Anti-Corruption Ordinance...).

3. Subjects to be sanctioned for administrative violations in the monetary field and banking operations prescribed in Clause 2, Article 1 of Decree No.20/2000/ND-CP include:

a/ State credit institutions (including commercial banks, development banks, investment banks, policy banks and non-bank credit institutions);

b/ Joint stock credit institutions of the State and people;

c/ Foreign credit institutions licensed to operate in Vietnam (including: branches of foreign banks, joint-venture banks; non-bank credit institutions);

d/ Vietnam-based representative offices of foreign credit institutions;

e/ Cooperative credit institutions;

f/ Vietnam Gold and Gem Corporation;

g/ Enterprises attached to the Vietnam State Bank;

h/ Organizations other than credit institutions licensed to conduct banking activities;

i/ Individuals belonging to the above-mentioned organizations;

j/ Other organizations and individuals that commit acts of administrative violation in the monetary field and banking operations.

Section II.- EXTENUATING AND AGGRAVATING CIRCUMSTANCES:

The extenuating and aggravating circumstances applicable to the sanctioning of administrative violations in the monetary field and banking operations are stipulated as follows:

1. On the extenuating circumstances: To determine the extenuating circumstances like self-prevention or reduction of damage, voluntary overcoming of the violations’ consequences or damage compensation, the certification of the superior management agencies is required, if the violators are organizations; or the certification of the agencies or units managing the violators if they are individuals.

2. On the aggravating circumstances- "repeated violations or recidivism":

- Repeated violations mean cases of committing administrative violations in the fields where such violations have been committed but have not yet been sanctioned and the statute of limitations for sanctioning has not expired.

- Recidivism means cases where organizations or individuals have committed administrative violations and been sanctioned therefor, but relapse into administrative violations in the same field before the expiry of the time-limit for being considered having not been administratively sanctioned.

Section III. PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS:

When sanctioning administrative violations, the persons with sanctioning competence shall have to strictly comply with the procedures for sanctioning administrative violations stipulated in Articles 45, 47, 48, 49, 50, 51, 52, 53, 54, 55 and 56 of the Ordinance on Handling of Administrative Violations. Due to the particular characteristics of banking operations, the provisions of Article 46 of the Ordinance on Handling of Administrative Violations regarding the simple procedures shall not apply. The Vietnam State Bank thereby provides some additional guidance on the following contents:

1. Immediate temporary suspension of administrative violations:

The persons competent to sanction administrative violations shall have to order the immediate temporary suspension of the on-going administrative violations upon detecting them.

2. Making records of administrative violations:

a/ After ordering the temporary suspension of administrative violations, the persons with sanctioning competence shall have to promptly make records thereon and report such to the competent levels according to the provisions of Clauses 3 and 7, Article 13, and Clause 3, Article 14, of the Government’s Decree No.91/1999/ND-CP of September 4, 1999 on organization and operations of the banking inspectorate.

b/ The recording of administrative violations shall apply to all cases of administrative violations in the monetary field and banking operations.

c/ A record must be made at least in two copies and signed by the record maker, the violator or representative of the violating organization; if the case involves witness(es) and/or victim(s), they shall also have to sign the record. Where a record is made with more than one sheet, the violator and the representative of the violating organization shall have to sign each of such sheets. If the witness(es) and/or victim(s) refuse to sign the record, the reasons therefor must be clearly stated therein.

d/ After being made, a copy of the record must be handed to the violating individual or organization. Where the case falls beyond the sanctioning competence of the record maker, he/she shall have to send the record to the competent person for handling within 3 (working) days from the date the record of administrative violation is made.

3. Sanctioning decisions:

a/ A sanctioning decision shall be made in at least 5 copies (for the principal sanctioning form warning) or 7 copies (for the principal sanctioning form of fine); addresses for sending sanctioning decisions are the places of reception prescribed in such decisions.

b/ The time-limit for issuing a sanctioning decision is 15 (working) days from the date the record of administrative violation is made; for cases involving many complicated circumstances, which must be examined and verified, the above-said time-limit may be extended but shall not exceed 30 days after the record of administrative violation is made. If a person or an organization commit different acts of administrative violation in the monetary field and banking operations, the person with sanctioning competence shall have to issue decision on administrative sanction against each act of violation according to the sanctioning forms and levels already prescribed therefor.

c/ Where acts of administrative violation of an individual or organization happen at the same time, with the same nature and the same sanctioner, only one sanctioning decision is made, which must clearly state each sanctioned violation as well as the sanctioning form and level therefor. Where fines are imposed, the fine levels for administrative violations shall be added up into the total (general) fine level of the sanctioning decision to be executed by the violating organization or individual. This general fine level is not the fine level imposed by the competent person stipulated in Article 10 of Decree No.20/2000/ND-CP The fine level for each act of violation must be based on corresponding provisions in the articles of Chapter III, Decree No.20/2000/ND-CP.

d/ Where many organizations or individuals jointly commit one administrative violation, each of such organizations or individuals shall be sanctioned as follows:

- Where an act of administrative violation is committed by many organizations or individuals, each of the concerned organizations or individuals shall be administratively sanctioned for such violation.

- For a case where many organizations or individuals commit the same administrative violation but they are not related to each other in the course of committing the violation, each of such organizations or individuals shall be sanctioned by a separate sanctioning decision. Depending on the nature and seriousness of the violation committed by each organization or individual, the person with sanctioning competence shall decide the specific sanctioning level for such violating organization or individual.

e/ The persons with sanctioning competence must not split up an act of violation into different minor violations for various sanctions suited to their sanctioning competence.

f/ A sanctioning decision takes effect from the date of its signing, except where other effective date is stipulated therein.

g/ The time-limit for sending a sanctioning decision to the sanctioned organization or individual as well as to the fine collecting agency is 3 (working) days from the date the sanctioning decision is made.

4. Fining procedures:

a/ All cases of fine must comply with the procedures stipulated at Points 2 and 3, Section III, Chapter I of this Circular. The fined organizations and individuals shall pay fines directly to the State budget through their respective accounts opened at the State Treasury. The persons with sanctioning competence are strictly forbidden to directly collect fines. The sanctioned organizations and individuals shall have to pay fines at places stated in the sanctioning decisions and shall be given fine receipts.

b/ Decisions on fines of VND 2,000,000 or more must be sent to the People’s Procuracy of the same level within 3 (working) days after they are made.

5. Procedures for stripping off the right to use licenses:

a/ The competence to strip off the right to use licenses in the monetary field and banking operations falls under to the State Bank Governor and directors of the State Bank’s branches in the provinces and centrally-run cities (for credit institutions and other organizations involved in banking operations which are licensed by directors of the State Bank’s branches in the provinces and centrally-run cities). Basing themselves on the inspection conclusions, the State Banks chief inspector or the chief inspectors of the State Bank’s branches in the provinces and centrally-run cities shall propose the competent authorities to apply this form of sanction.

b/ The person with sanctioning competence shall have to write clearly in the sanctioning decision: name, type and serial number of the license as well as the time-limit for stripping off the right to use such license. Where a license is stripped off for a definite time-limit, upon the expiry of the time-limit stated in the sanctioning decision, the person with sanctioning competence shall have to return the license to the concerned organization or individual.

c/ When detecting that a license is granted ultra vires or its content is contrary to law, the person with sanctioning competence shall have to immediately report such to the competent level for the withdrawal thereof according to law provisions.

6. Procedures for confiscation of material evidences and means of administrative violations:

a/ The persons issuing sanctioning decisions shall have to make records on the confiscation of material evidences and means of administrative violations. Such a record must be signed by the confiscator, the sanctioned person or representative of the sanctioned organization and the witness(es).

Where it is necessary to seal up the material evidences and means of violation, this must be done in front of the sanctioned person or representative of the sanctioned organization and the witness(es); in case of absence of the sanctioned person or representative of the sanctioned organization there must be two witnesses.

b/ A sanctioning decision involving the application of the form of confiscating material evidences and administrative violation means valued at VND 5,000,000 or more must be sent immediately to the People’s Procuracy of the same level within 3 (working) days after such decision is made.

c/ The procedures for handling material evidences and means of administrative violations shall comply with Article 52 of the Ordinance on Handling of Administrative Violations.

7. Transfer of violation dossiers for penal liability examination:

The transfer of violation dossiers for penal liability examination shall apply to violations showing signs of criminal offenses. The retainment of violations with signs of criminal offenses for administrative handling is strictly prohibited.

Chapter II

COMPETENCE TO SANCTION ADMINISTRATIVE VIOLATIONS AND APPLICATION OF THE FORMS OF SANCTION AGAINST ADMINISTRATIVE VIOLATIONS

Section I.- COMPETENCE TO SANCTION ADMINISTRATIVE VIOLATIONS:

1. Only the persons competent to sanction administrative violations defined in Article 10 of Decree No.20/2000/ND-CP shall have the competence to issue decisions on sanctioning administrative violations in the monetary field and banking operations.

For inspection teams: In the course of inspection, if detecting administrative violations in the monetary field and banking operations, the persons competent to sanction administrative violations shall be the inspectors who are heads of the inspection teams; if the heads of the inspection teams are not inspectors, they must report the violations to the persons who have signed the inspection decisions for handling.

For administrative violations subject to the forms of sanction and fine levels which go beyond their competence, the persons with sanctioning competence shall have to report them and transfer the dossiers thereon to the authorities with sanctioning competence within 15 (working) days from the date the records on the administrative violations are made. The time-limit for issuing sanctioning decisions shall comply with the provisions at Point 3(b), Section III, Chapter I of this Circular.

2. If, in the course of examining and inspecting credit institutions, organizations or individuals prescribed in Clause 2, Article 1 of Decree No.20/2000/ND-CP the functional units attached to the State Bank, the State management agencies as well as the law enforcement bodies detect administrative violations in the monetary field and banking operations, which fall beyond their sanctioning competence, they shall have to transfer the violation dossiers to the persons competent to sanction such administrative violations for consideration and sanction according to the provisions of Decree No.20/2000/ND-CP.

Section II. APPLICATION OF FORMS OF SANCTION AGAINST ADMINISTRATIVE VIOLATIONS:

1. The persons issuing sanctioning decisions shall have to base themselves on each type of violation defined in Chapter III of Decree No.20/2000/ND-CP to decide the appropriate forms of sanction, including forms of additional sanction or other measures stipulated in Article 9 of the said Decree, corresponding to the seriousness and nature of violations.

2. Where fines are imposed, irrespective of the extenuating or aggravating circumstances, the fine levels must neither be lower nor higher than the already prescribed fine bracket.

3. For the forms of principal sanction prescribed in Clause 1, Article 9 of Decree No.20/2000/ND-CP only either of the two forms: warning or fine can be applied; both forms of principal sanction must not be applied to an act of violation.

4. When applying forms of additional sanction and other measures stipulated in Clauses 2 and 3, Article 9 of Decree No.20/2000/ND-CP the persons issuing sanctioning decisions must not apply them independently, but have to apply them together with either forms of principal sanction, warning or fine.

Chapter III

ADMINISTRATIVE VIOLATIONS IN THE MONETARY FIELD AND BANKING OPERATIONS, FORMS AND LEVELS OF SANCTION

1. Articles 12 to 38 of Decree No.20/2000/ND-CP define 9 groups of acts, each consisting of a number of specific acts of violation. The sanctioning of administrative violations in the monetary field and banking operations must be based on the current legal documents: The State Bank Law, the Law on Credit Institutions, the Decrees guiding the implementation of these two laws and relevant legal documents, so as to determine the constituting signs, nature and seriousness of the administrative violation.

2. Administrative violations regarding accountancy and statistics are stipulated as follows:

The persons competent to sanction administrative violations defined in Article 10 of Decree No.20/2000/ND-CP shall have the competence to sanction administrative violations regarding accountancy and statistics in the monetary field and banking operations as prescribed in Article 24 of the said Decree. The determination of acts of violation, forms of sanction and other measures shall comply with the Government’s Decree No.49/1999/ND-CP of July 8, 1999 on sanctioning administrative violations in the field of accountancy; Decree No.93/1999/ND-CP of September 7, 1999 on sanctioning administrative violations in the field of statistics; as well as legal documents of the Finance Ministry and the General Department of Statistics guiding the sanctioning of administrative violations in the fields of accountancy and statistics.

Chapter IV

ORGANIZATION OF IMPLEMENTATION

1. The State Bank’s chief inspector shall direct and guide units and individuals within the banking inspectorate system to firmly grasp and seriously effect sanctions against administrative violations.

2. The directors of the State Bank’s branches in the provinces and centrally-run cities and the heads of the units attached to the State Bank shall, within the scope of their tasks and powers, have to inspect, detect and request the competent persons to severely and fairly sanction administrative violations in the monetary field and banking operations.

3. This Circulars takes effect 15 days after its signing.

In the course of implementation, if any difficulty or problem arises, the concerned units should report it in time to the Central State Bank (through the State Bank’s Inspectorate) for further reporting to the State Bank Governor for consideration and settlement.