| MINISTRY OF FINANCE ---------- | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness ---------- |
| No. 97/2007/TT-BTC | Hanoi, August 8th, 2007 |
CIRCULAR
GUIDING IMPLEMENTATION OF DECREE 36/2007/ND-CP OF THE GOVERNMENT OF MARCH 08th, 2007 ON PENALTIES FOR ADMINISTRATIVE OFFENCES IN SECURITIES AND SECURITIES MARKET SECTOR
Pursuant to the Law on Securities dated 29 June 2006;
Pursuant to the Ordinance on Dealing with Administrative Offences dated 2 July 2002;
Pursuant to Decree 134/2003/ND-CP of the Government dated 14 November 2003 implementing the Ordinance on Dealing with Administrative Offences dated 2 July 2002;
Pursuant to Decree 36/2007/ND-CP of the Government dated 8 March 2007 on penalties for administrative offences in the securities and securities market sector;
Pursuant to Decree 77/2003/ND-CP of the Government dated 1 July 2003 on functions, duties, powers and organizational structure of the Ministry of Finance;
The Ministry of Finance provides the following guidelines on Decree 36/2007/ND-CP:
I. GENERAL PROVISIONS
1. Governing scope and applicable entities:
1.1 Governing scope:
This Circular applies to administrative offences in the securities and securities market sector as stipulated in Decree 36/2007/ND-CP of the Government dated 8 March 2007 on penalties for administrative offences in the securities and securities market sector (hereinafter referred to as Decree 36).
1.2 Applicable entities:
Any Vietnamese organization or individual or any foreign organization or individual participating in investment in securities and activities on the Vietnamese securities market, or any other organization or individual involved in securities market activities, who intentionally or unintentionally breaches the provisions of the law on securities and securities market but not to the level justifying criminal prosecution, shall be dealt with for an administrative breach in accordance with the provisions of Decree 36 and this Circular.
2. Applicable forms of penalty for an administrative offence:
2.1 The applicable forms of penalty for an administrative offence and the measures for remedying consequences shall be as stipulated in article 7 of Decree 36.
2.2 The person issuing the penalty decision shall rely on the act constituting the administrative offence in the securities and securities market sector, the forms and levels of penalties stipulated in Chapter II of Decree 36, and on any mitigating or aggravating circumstances as stipulated in article 6 of Decree 36 in order to issue a decision on the form and level of the penalty including forms of additional penalty or application of measures for remedying consequences appropriate to the nature and seriousness of the breach.
2.3 A specific fine, including a case with mitigating or aggravating circumstances, shall not be lower or higher than the levels of fine within the framework stipulated for such offence. The average of the levels of fine within any one stipulated framework shall be calculated in accordance with article 24 of Decree 134/2003/ND-CP of the Government dated 14 November 2003 implementing the Ordinance on Dealing with Administrative Offences.
2.4 Only one of the two main forms of penalty, namely a warning or a fine, shall be imposed for an act constituting an administrative offence. Forms of additional penalty may not be independently applied but may only accompany application of the main form of penalty.
3. Mitigating and aggravating circumstances:
3.1 The mitigating or aggravating circumstances of an administrative offence in the securities and securities market sector shall be as stipulated in article 6 of Decree 36.
3.2 The following guidelines shall apply to a number of mitigating or aggravating circumstances:
(a) The person authorized to impose a penalty decision shall consider and make a decision on a number of cases of mitigating circumstances such as taking the initiative to prevent a continuation of the offence; mitigating loss; voluntarily redressing the consequences; or voluntarily paying compensation for loss caused by ones act. There must be evidence to prove mitigating circumstances in cases where the offence was committed due to a lack of understanding; the offence was committed during spiritual or material dependency; or the offence was committed due to incitement, enticement or under compulsion.
(b) The aggravating circumstance that the offender has committed a number of offences means the offender has committed a number of administrative offences in the securities and securities market sector but has not yet been subject to an administrative penalty; repeat offence means the offender has committed a previous administrative offence in the securities and securities market sector and was administratively penalized for it but before expiry of the [statutory] period after which an administrative offence shall be deemed not to have been committed, the offender continued to conduct an act constituting an administrative offence in such sector.
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