Chương V Luật chứng khoán 2006: Đăng kí, lưu ký, bù trừ và thanh toán chứng khoán

Chapter V

SECURITIES REGISTRATION, DEPOSITORY, CLEARING AND PAYMENT

Article 42.- Organization and operation of securities depository centers

1. Securities depository centers are legal persons established and operating after the model of limited liability companies or joint-stock companies in accordance with this Law.

2. The Prime Minister shall decide on the establishment, dissolution, transformation of organizational structure or ownership form of securities depository centers at the proposal of the Finance Minister.

3. Securities depository centers have the function of organizing and supervising securities registration, depository, clearing and payment activities.

4. Operation of securities depository centers shall comply with the provisions of this Law and their charters.

5. Securities depository centers shall submit to the management and supervision by the State Securities Commission.

Article 43.- Managerial and executive apparatus of securities depository centers

1. A securities depository center has its Board of Directors, director, deputy directors and Control Board.

2. The chairman of the Board of Directors and the director of a securities depository center are approved by the Finance Minister at the proposal of the Board of Directors after obtaining the opinions of the Chairman of the State Securities Commission.

3. Rights and duties of the Boards of Directors, directors, deputy directors and Control Boards are specified in the charters of securities depository centers.

Article 44.- Charters of securities depository centers

1. Charters of securities depository centers shall be approved by the Finance Ministry at the proposal of their Boards of Directors after obtaining the opinions of the Chairman of the State Securities Commission.

2. The Charter of a securities depository center covers the following principal contents:

a/ Its name, address of its head office, its branches;

b/ Its operation objectives;

c/ Its charter capital; methods of increasing, reducing or transferring its charter capital;

d/ Names, addresses and tips of its founding shareholders or capital contributing members or owners;

e/ Capital contributions or numbers of shares and values of capital contributions of its founding shareholders or capital contributing members;

f/ Its representative at law;

g/ Its organizational and managerial apparatus;

h/ Rights and obligations of its capital contributing members or shareholders;

i/ Rights and duties of its Board of Directors, director, deputy directors and Control Board;

j/ Mode of adoption of its decisions;

k/ Mode of amendment and supplementation of its Charter;

l/ Applicable accounting and audit regimes;

m/ Setting up of funds and mechanism for use thereof; principles for use of profits, handling of losses and other financial regimes;

n/ Principles for settlement of internal disputes.

Article 45.- Rights of securities depository centers

1. To promulgate regulations on securities registration, depository, clearing and payment after such regulations are approved by the State Securities Commission.

2. To approve or revoke the status of depository members; to supervise the observance of their regulations by their depository members.

3. To provide securities registration, depository, clearing and payment services and other services related to the securities depository at the request of customers.

4. To collect charges under the Finance Ministry's regulations.

Article 46.- Obligations of securities depository centers

1. To ensure physical and technical foundations in service of securities registration, depository, clearing and payment activities.

2. To elaborate the process of operation and risk management applicable to each operation.

3. To separately manage assets of customers.

4. To pay damages to customers in case of failure to fulfill their obligations, thus causing damage to legitimate interests of such customers, except in force majeure circumstances.

5. To operate in the interest of securities depositors or securities owners.

6. To take measures to protect their databases and keep original vouchers on securities registration, depository, clearing and payment according to the provisions of law on accounting and statistics.

7. To set aside hedge funds to offset customers' losses caused by technical failures or staff mistakes in the course of operation. Hedge funds shall be set aside from revenues from professional operations according to the Finance Ministry's regulations.

8. To supply information related to customers' securities ownership at the request of public companies and issuing organizations.

9. To observe the accounting, audit and statistical regimes and fulfill financial obligations as provided for by law; and to report on securities depository activities according to the Finance Ministry's regulations.

10. To be responsible for depository and payment activities at their head offices or branches registered for depository activities.

Article 47.- Depository members

1. Depository members being securities companies or commercial banks operating in Vietnam are granted securities depository registration certificates by the State Securities Commission and approved by securities depository centers to become their respective depository members.

2. Depository members have the following rights:

a/ To provide depository services and pay securities transactions for their customers;

b/ To collect charges according to the Finance Ministry's regulations;

c/ Other rights provided for by law and by the securities depository centers in their regulations.

3. Depository members have the following obligations:

a/ To fulfill the obligations specified in Article 46 of this Law;

b/ To contribute to payment assistance funds according to the regulations of securities depository centers;

c/ Other obligations specified by law and by the securities repository centers in their regulations.

Article 48.- Conditions for registration of securities depository activities

1. For a commercial bank, the conditions for registration of securities depository activities include:

a/ Having a license for establishment and operation in Vietnam;

b/ Having overdue debts not exceeding five percent of its total debit balance, and being in the black in the last year;

c/ Having a place, facilities and equipment in service of securities registration and depository and securities transaction payment activities.

2. For a securities company, the conditions for registration of securities depository activities include:

a/ Having a license for establishment and performance of securities brokerage or dealing operation;

b/ Having a place, facilities and equipment in service of securities registration and depository and securities transaction payment activities.

Article 49.- Dossiers of registration of securities depository activities

1. Written request for registration of securities depository activities.

2. A copy of the establishment and operation license.

3. Written explanation of physical and technical foundations for performance of securities depository activities.

4. Audited financial statement of the last year, except for newly established securities companies.

Article 50.- Time limit for grant of securities depository registration certificates

1. The time limit for grant of securities depository registration certificates is fifteen days after the State Securities Commission receives valid dossiers. In case of refusal to grant certificates, the State Securities Commission shall reply in writing, clearly stating the reasons therefor.

2. Within twelve months after being granted securities depository registration certificates, securities companies or commercial banks shall carry out procedures for registration of depository members at securities depository centers and commencement of operation.

Article 51.- Suspension or revocation of securities depository registration certificates

1. A depository member shall be suspended from securities depository operation for a maximum duration of ninety days in the following cases:

a/ It frequently breaches the depository members' obligations specified by the securities depository center;

b/ It lets errors occur, causing heavy losses to its customers.

2. A depository member has its securities depository registration certificate revoked in the following cases:

a/ Upon the expiration of the depository suspension duration, it still fails to remedy breaches specified in Clause 1 of this Article;

b/ It fails to commence securities depository operation within twelve months after it is granted a securities depository registration certificate.

c/ It has its establishment and operation license revoked;

d/ It is divided, split, merged, consolidated, transformed, dissolved or bankrupt;

e/ It voluntarily terminates the securities depository operation after obtaining consent of the State Securities Commission.

3. When having their securities depository registration certificates revoked, depository members shall carry out procedures for finalizing their securities depository accounts according to regulations of securities depository centers.

Article 52.- Securities registration

1. Securities of public companies must be registered in a concentrated manner at securities depository centers.

2. Securities of other issuing organizations, which authorize securities depository centers to act as their transfer agents, must be registered at those securities depository centers.

3. Public companies and issuing organizations defined in Clauses 1 and 2 of this Article shall register types of their securities and information on securities owners with securities depository centers.

Article 53.- Securities depository

1. Securities of public companies must be deposited in a concentrated manner at securities depository centers before being traded.

2. Securities must be deposited at securities depository centers by mode of general depository. Securities owners are co-owners of securities in general depository according to proportions of their deposited securities.

3. Securities depository centers may take into separate depository registered securities and other assets at the request of owners.

Article 54.- Transfer of securities ownership

1. The transfer of securities ownership over securities already registered at securities depository centers shall be made through those securities depository centers.

2. The effect of the transfer of securities ownership at securities depository centers is provided as follows:

a/ If securities are already deposited in a concentrated manner at a securities depository center, the transfer of securities ownership becomes effective on the date of taking book entries on securities depository accounts at such securities depository center;

b/ If securities are not yet deposited in a concentrated manner at a securities depository center, the transfer of securities ownership becomes effective on the date those securities are recorded in registers managed by such securities depository center.

Article 55.- Clearing and payment of securities transactions

1. Clearing and payment of securities transactions are made according to regulations of securities depository centers.

2. Securities payment is made through securities depository centers, while payment of securities transaction money is made through payment banks and in compliance with the principle that securities transfer is conducted simultaneously with monetary payment.

Article 56.- Safekeeping of assets of customers

1. Securities in physical or non-physical forms, and other assets of customers managed by securities depository centers or depository members are property of their owners and may not be treated as property of those securities depository centers or depository members.

2. Securities depository centers or depository members shall not use securities deposited by customers at their places for payment of their debts.

Article 57.- Confidentiality

1. Securities depository centers and depository members shall protect confidentiality of information related to customers' securities ownership, and deny investigation, blockade, seizure, appropriation and transfer of customers' assets without the latter's consents.

2. The provisions of Clause 1 of this Article do not apply to:

a/ Auditors audit financial statements of securities depository centers or financial statements of depository members;

b/ Customers of securities depository centers or depository members who wish to be informed of their own securities ownership;

c/ Information that is supplied at the request of competent state agencies.

Article 58.- Payment assistance funds

1. Payment assistance funds are formed from contributions of depository members for making payments on depository members' behalf in case they are temporarily insolvent to pay securities transactions.

2. Payment assistance funds are managed by securities depository centers separately from the latter's assets.

3. Levels of contribution to payment assistance funds, payment assistance modes, modes of management and use of payment assistance funds shall comply with regulations of securities depository centers.