Nghị định 95/2011/ND-CP

DECREE

AMENDING, SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE NO.202/2004/ND-CP DATED DECEMBER 10, 2004 OF THE GOVERNMENT ON ADMINISTRATIVE SANCTION IN THE MONETARY AREA AND BANKING ACTIVITY

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the Law on State Bank of Vietnam dated June 16, 2010;

Pursuant to the Law on Credit Institutions dated June 16, 2010;

Pursuant to the Ordinance on Foreign Exchange dated December 13, 2005;

Pursuant to the Ordinance on Handling of Administrative Violations dated July 7, 2002; the Ordinance Amending, Supplementing a number of Articles of the Ordinance on Handling of Administrative Violations dated April 02, 2008;

At the proposal of the Governor of the State Bank of Vietnam,

DECREES

Article 1. To amend, supplement a number of Articles of Decree No 202/2004/ND-CP dated December 10, 2004 of the Government on administrative sanction in the monetary area and banking activity as follows:

1. To amend, supplement clause 3, clause 5, clause 7 Article 18 as follows:

“3. A fine of between VND 50,000,000 and 100,000,000 shall be imposed for one of the following acts:

a) Lending, providing the finance leasing, or making debt repayment domestically in foreign currency not in consistence with provisions of applicable laws;

b) Remitting, carrying foreign currency out of and into Vietnam in contrary to provisions of applicable laws, except for cases stipulated in clause 6 of this clause;

c) Making payment for goods and services in foreign currency with foreigners not in compliance with provisions of applicable laws;

d) Buying, selling, making payment in foreign currency not in compliance with provisions of applicable laws;

đ) Making payment for goods and services in gold with each other not in compliance with provisions of applicable laws;

e) Trading, buying, selling gold not in compliance with provisions of applicable laws.”

“5. A fine of between VND 300,000,000 and 500,000,000 shall be imposed for one of the following acts:

a) Engaging in foreign exchange activity without any license of the competent authority or after the license for foreign exchange activity has expired or been suspended;

b) Performance of overseas national currency exchange service without any license of the competent authority;

c) Engagement in the export, import activity of foreign currency, gold without any license from the State Bank;

d) Listing prices, advertising goods, services, land use right not in compliance with provisions of applicable laws.”

“7. Application of additional sanction:

a) Confiscating material evidences as number of foreign currency, Vietnam Dong (VND) or gold for the violations prescribed at point b, d, đ and e, clause 3 of this Article;

b) Stripping the right to use the certificate of registration for foreign exchange agent within 12 months in case of the first offense and indefinitely stripping upon recidivism, for the foreign exchange agents committing violations prescribed at point d, clause 3;

c) Stripping the business operation license of gold within 12 months in case of the first offense and indefinitely stripping upon recidivism for gold trading organization committing violations prescribed at point e, clause 3 of this Article.”

2. To annul point đ clause 4 Article 18.

3. To supplement Article 18a as follows:

“Article 18a. Management and use of fines for administrative violations

1. Proceeds from the sanction of administrative violations in the field of gold and foreign exchange business must submit to the State budget via accounts opened at the State Treasury.
2. The management and use of fines for administrative violations in the field of gold and foreign currency business to provide funds to agencies and organizations comply with the provisions of the Ordinance on Handling of Administrative Violations, Decree No.124/2005/ND-CP of October 06, 2005 of the Government on receipt of fines and management and use of fines for administrative violations and the provisions of current law on handling of administrative violations.”

4. To amend, supplement Article 37 as follows:

“Article 37. Competence to impose the punishment on the administrative violations

1. The Banking Inspectors during the performance of their duties shall have the right:

a) to give warnings;

b) to impose fines of up to VND 500,000;

c) to confiscate the material evidences, means used for administrative violation with the value at up to VND 2,000,000;

d) to apply measures to overcome the consequences as provided for in point clause 3 Article 7 of this Decree.

2. The Chief Inspector, supervisors of the State Banks - branches in provinces, cities under the central Governments management shall have the rights:

a) to give warnings;

b) to impose fines of up to VND 30,000,000;

c) to apply additional punishments and the measures to overcome the consequences as provided for in point a clause 2 and clause 3 Article 7 of this Decree;

d) to recommend to the Directors of the State Bank - branches in provinces, cities under the central Governments management to suspend termly or  indefinitely the implementation of one or several professional activities relating to the act of administrative violation in accordance with provisions of the Law on the State Bank of Vietnam and the law on Credit institutions.

3. The Chief Inspector, supervisor of the State Bank shall have the right:

a) to give warnings;

b) to impose fines of up to VND 500,000,000;

c) to apply additional punishments and the measures to overcome the consequences as provided for in point a clause 2 and clause 3 Article 7 of this Decree;

d) to recommend to the Governor of the State Bank of Vietnam to suspend termly or  indefinitely the implementation of one or several professional activities relating to the act of administrative violation in accordance with provisions of the Law on the State Bank of Vietnam and the law on Credit institutions.

4. Chairmen of provincial-level Peoples Committees; Director of Department of the Criminal Investigation Police on Social Order, Economic Management and Functions, Director of the Criminal Investigation Police Department on Social Order, Director of the Drugs Criminals Investigation Police Department, Director of Immigration Department as stipulated in Article 30 and clause 7, clause 8 Article 31 of the Ordinance on the Handling of Administrative Violations shall have the competence to make decision on the punishment for the administrative violation in accordance with the provisions in this Decree and inform the State Bank of Vietnam, in the event of detecting individuals, organizations not being credit institutions committing violation of provisions on foreign exchange management in points b, d, đ, e clause 3, points a, c, d, e, g clause 4 and clause 5 Article 18 of this Decree.

5. The market management agencies defined in Article 37 of the Ordinance on Handling of Administrative Violations, upon detecting individuals and organizations not being credit institutions committing violations specified at point d, clause 5 of Article 18 of Decree this shall make a record and forward to subjects specified in clause 3, clause 4 of this Article for handling under the provisions of this Decree.”

Article 2. Effect

This Decree takes effect from the signing date.

Article 3. Responsibility for implementation

The Governor of the State Bank of Vietnam, Ministers, Heads of ministerial level agencies, Heads of Governmental agencies, Chairmen of People’s Committees in provinces, centrally-run cities shall be responsible for the implementation of this Decree.