Chương VI Luật chứng khoán 2006: Công ty chứng khoán, công ty quỹ quản lý đầu tư chứng khoán

Chapter VI

SECURITIES COMPANIES AND SECURITIES INVESTMENT FUND MANAGEMENT COMPANIES

Article 59.- Establishment and operation of securities companies and securities investment fund management companies

1. Securities companies and securities investment fund management companies (below referred to as fund management companies) shall be organized in the form of limited liability companies or joint-stock companies in accordance with the Enterprise Law.

2. The State Securities Commission shall grant establishment and operation licenses to securities companies and fund management companies. Such a license concurrently serves as a business registration certificate.

Article 60.- Business operations of securities companies

1. Securities companies may conduct one, several or all of the following business operations:

a/ Securities brokerage;

b/ Securities dealing;

c/ Securities issuance underwriting;

d/ Securities investment consultancy.

2. Securities companies may conduct the securities issuance underwriting operation only when they conduct the securities dealing operation.

3. Apart from the business operations specified in Clause 1 of this Article, securities companies may provide financial consultancy services and other financial services.

Article 61.- Business operations of fund management companies

1. Fund management companies may conduct the following business operations:

a/ Management of securities investment funds;

b/ Management of securities portfolios.

2. The business operations specified in Clause 1 of this Article shall all be stated in the establishment and operation license of a fund management company.

3. Apart from the business operations specified in Clause 1 of this Article, fund management companies may mobilize and manage foreign investment funds intended to invest in Vietnam.

Article 62.- Conditions for grant of establishment and operation licenses to securities companies and fund management companies

1. Conditions for grant of an establishment and operation license to a securities company or a fund management company include:

a/ Having a head office and facilities and equipment to serve securities trading activities. Particularly for securities issuance-underwriting and securities investment consultancy operations, the condition on facilities and equipment is not compulsory;

b/ Having sufficient legal capital as prescribed by the Government;

c/ Its director or general director and staff members conducting securities business operations specified in Clause 1, Article 60 and Clause 1, Article 61 of this Law possess securities practice certificates.

2. Founding shareholders or founding members being individuals must have full civil act capacity and not be currently serving imprisonment sentences or banned by court from doing business. Those being legal persons must be lawfully operating and financially capable of making capital contributions. Founding shareholders or founding members shall use their own capital sources to contribute capital for establishment of securities companies or fund management companies.

Article 63.- Dossier of application for establishment and operation license of a securities company or a fund management company

1. An application for establishment and operation license of the securities company or fund management company.

2. A written explanation of material and technical foundation for performance of securities business operations.

3. A bank's certification of the legal capital deposited on a frozen account at that bank.

4. A tentative list of the director or the general director and staff members conducting securities business operations, enclosed with copies of their securities practice certificates.

5. A list of founding shareholders or founding members, enclosed with copies of their identity cards or passports, for individuals, or business registration certificates, for legal persons.

6. Copies of the last year's financial statements, which are audited by an independent audit organization, of founding shareholders or founding members being legal persons that have contributed ten percent or more of the license applicant's contributed charter capital.

7. The draft Charter of the company.

8. A tentative plan on business operation for the first three years suitable to business operations requested to be licensed, enclosed with professional processes, internal control process and risk management process.

Article 64.- Charters of securities companies or fund management companies

1. The Charter of a securities company or a fund management company must have the following principal contents:

a/ The contents specified in Article 22 of the Enterprise Law;

b/ The rights and obligations of securities companies or fund management companies which are not contrary to the provisions of this Law;

c/ The prohibitions and limitations for the securities company or the fund management company and for its director or general director and securities practitioners.

2. The Finance Ministry shall promulgate a model charter of securities companies or fund management companies.

Article 65.- Time limit for grant of establishment and operation licenses

1. Within thirty days after receiving valid dossiers, the State Securities Commission shall grant establishment and operation licenses to securities companies or fund management companies. If refusing to grant licenses, the State Securities Commission shall reply license applicants in writing, clearly stating the reasons therefor.

2. When it is necessary to clarify matters related to dossiers of application for establishment and operation licenses of securities companies or fund management companies, the State Securities Commission may request representatives of founding members or founding shareholders or persons expected to be appointed or recruited to be directors or general directors of license applicants to explain such matters verbally or in writing.

Article 66.- Publication of establishment and operation licenses

1. Within seven days after being granted establishment and operation licenses, securities companies or fund management companies shall publish those licenses on the State Securities Commission's media and on an online newspaper or a printed newspaper for three consecutive issues.

2. The publication of an establishment and operation license mentioned in Clause 1 of this Article covers the following principal details:

a/ The name of the securities company or the fund management company;

b/ The addresses of the company's head office, branches and representative offices (if any);

c/ The serial number of the establishment and operation license, date of issue, and business operations licensed to be conducted;

d/ The charter capital;

e/ The representative at law.

Article 67.- Supplementation of establishment and operation licenses

1. When adding its securities business operations, a securities company granted an establishment and operation license shall request the supplementation of its establishment and operation license.

2. A dossier of request for supplementation of establishment and operation license comprises:

a/ The written request for supplementation of establishment and operation license;

b/ The documents specified in Clauses 2, 3 and 8, Article 63 of this Law;

c/ The amended and supplemented charter which has been adopted by the shareholders' general assembly or the members' council or the company's owner;

d/ The decision of the shareholders' general assembly and the board of directors or the decision of the members' council or the company's owner on addition of securities business operations.

3. Within twenty days after receiving valid dossiers, the State Securities Commission shall grant supplemented establishment and operation licenses. If refusing to grant such a license, the State Securities Commission shall reply the license applicant in writing, clearly stating the reasons therefor.

4. Securities companies granted supplemented establishment and operation licenses shall publish those licenses within the time limit and by the mode specified in Clause 1, Article 66 of this Law.

Article 68.- Changes subject to the State Securities Commission's approval

1. A securities company or a fund management company shall obtain the State Securities Commission's written approval before making the following changes:

a/ Setting up or shutdown of its branches, representative offices or transaction offices;

b/ Change of its name; or relocation of its head office, branch, representative office or transaction office;

c/ Change in the ownership of shares or capital contribution portions accounting for ten percent or more of its contributed charter capital due to transactions, except when its stocks have been listed at the stock exchange or the securities trading center;

d/ Suspension of operation, except when the operation suspension is caused by force majeure circumstances.

2. Dossiers and procedures for approval of changes shall comply with the Finance Ministry's regulations.

3. The time limit for approving a change is fifteen days after the State Securities Commission receives a valid dossier. In case of disapproval, the State Securities Commission shall reply in writing, clearly stating the reasons therefor.

Article 69.- Division, separation, merger, consolidation or transformation of securities companies and fund management companies

1. Securities companies and fund management companies that are divided, separated, merged, consolidated or transformed must obtain approval of the State Securities Commission. The time limit for approving the division, separation, merger, consolidation or transformation is thirty days after the State Securities Commission receives a valid dossier. In case of disapproval, the State Securities Commission shall reply in writing, clearly stating the reasons therefor.

2. Dossiers and procedures for approving division, separation, merger, consolidation or transformation shall comply with the Finance Ministry's regulations.

3. Securities companies and fund management companies shall carry out the division, separation, merger, consolidation or transformation in accordance with the Enterprise Law.

4. Companies newly formed from the division, separation, merger, consolidation or transformation shall carry out procedures of application for re-grant of establishment and operation licenses according to the provisions of Article 63 of this Law.

Article 70.- Suspension and revocation of establishment and operation licenses of securities companies or fund management companies

1. A securities company or a fund management company is suspended from operation in the following cases:

a/ Its dossier of application for grant or supplementation of establishment and operation license contains untruthful information;

b/ Upon the expiration of the warning time limit specified in Article 74 of this Law, it still fails to redress the warned situation and has an accumulated loss equal to fifty percent of its charter capital or it no longer satisfies the condition on capital for securities business activities.

c/ It operates for improper purposes or not in accordance with the contents in its establishment and operation license;

d/ It fails to maintain the conditions for grant of establishment and operation license specified in Article 62 of this Law.

2. A securities company or a fund management company has its establishment and operation license revoked in the following cases:

a/ It fails to commence its securities business operation within twelve months after being granted the establishment and operation license;

b/ It fails to redress the situation mentioned at Point b, Clause 1 of this Article within six months after its operation is suspended

c/ It fails to remedy violations specified at Points a, c and d, Clause 1 of this Article within sixty days after its operation is suspended;

d/ It dissolves or goes bankrupt.

3. For the case of revocation of establishment and operation license specified at Point b, Clause 2 of this Article, the State Securities Commission may designate another securities company to complete transactions and contracts of the company whose establishment and operation license is revoked. In this case, the relation of proxy is automatically established between the two companies.

4. When having its establishment and operation license revoked, a securities company or a fund management company shall promptly terminate all operations stated in such license and publish a notice on an online newspaper or a printed newspaper for three consecutive issues. The State Securities Commission shall announce the revocation of establishment and operation licenses of securities companies or fund management companies on its media.

Article 71.- Obligations of securities companies

1. To establish a system for internal control, management of risks and supervision and prevention of interest conflicts within the companies and arising from transactions with related persons.

2. To manage separately securities of each investor, and to separate money and securities of investors from their own money and securities.

3. To sign written contracts with customers for provision of services to the latter; to supply full and truthful information to customers.

4. To prioritize the execution of customers' orders before their own orders.

5. To collect and scrutinize information on customers' financial status, investment purposes and risk-offsetting capability; to ensure that investment recommendations and consultations they provide to customers are suitable with such customers.

6. To comply with the Finance Ministry's regulations on maintenance of liquidity capital.

7. To purchase insurance for professional liability for securities business operations at the companies, or set aside investor protection funds to pay compensations to investors for damage caused by technical failures and mistakes of their staffs.

8. To keep all vouchers and accounts which reflect in detail and truthfully customers' transactions and their transactions.

9. To sell or allow customers to sell securities without securities ownership, and lend securities to customers for sale according to the Finance Ministry's regulations.

10. To comply with the Finance Ministry's regulations on securities business operations.

11. To observe the accounting, auditing and statistical regimes and perform financial obligations as provided for by law.

12. To disclose information according to the provisions of Article 104 of this Law and make reports according to the Finance Ministry's regulations.

Article 72.- Obligations of fund management companies

1. To fulfill the obligations specified in Clauses 1, 3, 4, 5, 6, 7, 9, 10, 11 and 12, Article 71 of this Law.

2. To manage securities investment funds and portfolios according to the provisions of this Law, charters of securities investment funds, contracts signed with investment-entrusting customers and contracts signed with supervisory banks.

3. To determine values of net assets of securities investment funds according to the provisions of Article 88 of this Law, charters of securities investment funds and contracts signed with investment-entrusting customers.

Article 73.- Limitations on securities companies and fund management companies

1. To refrain from making assessments or assuring customers of incomes or profits to be earned from their investments or assuring customers of no loss, except for investment in droplock securities.

2. To refrain from disclosing information on customers, except where such disclosure is consented to by the customers or requested by competent state management agencies.

3. To refrain from taking acts which mislead customers and investors as to securities prices.

4. To refrain from providing loans to customers for buying securities, unless otherwise provided for by the Finance Ministry.

5. Founding shareholders or founding members of a securities company or a fund management company are not allowed to transfer their shares of stock or capital contributions within three years after the grant of establishment and operation licenses, except for transfer to other founding shareholders or founding members of the same company.

Article 74.- Warning

Securities companies and fund management companies are warned if their liquidity capital is reduced to under one hundred and twenty percent of the level specified in Clause 6, Article 71 of this Law. Securities companies and fund management companies shall redress the warned situation within thirty days after the warning is made.

Article 75.- Dissolution and bankruptcy of securities companies and fund management companies

1. The dissolution of securities companies and fund management companies shall comply with the provisions of the Enterprise Law. If a securities company or a fund management company dissolves itself before the expiration of its operation duration, the State Securities Commission's approval is required.

2. The bankruptcy of securities companies or fund management companies must comply with the provisions of law on bankruptcy regarding enterprises operating in the financial or banking domain.

Article 76.- Grant of establishment and operation licenses of foreign-invested securities companies and fund management companies in Vietnam

1. Foreign-invested securities companies and fund management companies in Vietnam which are established in form of joint-ventures, joint-stock companies or companies with 100% foreign capital shall be granted establishment and operation licenses by the State Securities Commission.

2. Conditions for grant of establishment and operation licenses of foreign-invested securities companies and fund management companies in Vietnam shall comply with the provisions of Article 62 of this Law.

3. Dossiers and procedures for grant of establishment and operation licenses of foreign-invested securities companies and fund management companies in Vietnam shall be specified by the Government.

Article 77.- Grant of establishment and operation licenses of Vietnam-based branches of foreign securities companies or fund management companies

1. Conditions for grant of establishment and operation licenses of Vietnam-based branches of foreign securities companies or fund management companies include:

a/ Being securities business organizations lawfully operating in foreign countries;

b/ The conditions specified in Clause 1, Article 62 of this Law.

2. Dossiers and procedures for grant of establishment and operation licenses of Vietnam-based branches of foreign securities companies or fund management companies shall be specified by the Government.

Article 78.- Vietnam-based representative offices of securities companies or fund management companies

1. Foreign securities companies and fund management companies may set up their own Vietnam-based representative offices after registering operation with the State Securities Commission.

2. A dossier for operation registration of a Vietnam-based representative office of a foreign securities company or fund management company comprises:

a/ A written registration of operation of the representative office;

b/ A copy of the operation license of the foreign securities company or fund management company;

c/ A copy of the Charter of the foreign securities company or fund management company;

d/ The resume of the person expected to be appointed as the chief representative in Vietnam and the list of staff members working in the representative office (if any).

3. Within seven days after receiving the valid dossiers, the State Securities Commission shall grant certificates of registration of operation of Vietnam-based representative offices of foreign securities companies or fund management companies. If refusing to grant certificates, the State Securities Commission shall reply certificate applicants in writing, clearly stating the reasons therefor.

4. The scope of operation of representative offices covers one, several or all of the following activities:

a/ Functioning as liaison and market survey offices;

b/ Proceeding with the formulation of cooperation projects in the domain of securities and securities market in Vietnam;

c/ Urging and supervising the performance of contracts and agreements already signed between foreign securities companies or fund management companies and Vietnamese economic organizations;

d/ Urging and supervising the execution of projects funded by foreign securities companies or fund management companies in Vietnam.

5. Representative offices may not conduct securities business operations.

6. Representative offices shall submit to the management and supervision by the State Securities Commission.

Article 79.- Securities business practice certificates

1. Securities business practice certificates are granted to individuals who satisfy the following conditions:

a/ Having full civil act capacity; neither serving imprisonment sentences nor being banned by court from business practice;

b/ Possessing university degrees; having professional qualifications in the field of securities and securities market;

c/ Having passed the examinations organized by the State Securities Commission; for foreigners who possess certificates of professional qualifications in securities market or who have lawfully practiced securities business in foreign countries, only tests of Vietnam's securities law are required.

2. A dossier of application for a securities business practice certificate comprises:

a/ A written application for a securities business practice certificate;

b/ The applicant's resume certified by the administration of the locality where he/she resides;

c/ Copies of professional diplomas and certificates.

3. For foreigners defined at Point c, Clause 1 of this Article, a dossier of application for a securities business practice certificate comprises:

a/ A written application for a securities business practice certificate;

b/ The applicant's resume certified by a competent authority of the country of his/her nationality, accompanied with a copy of his/her passport;

c/ Copies of professional certificates or documents evidencing his/her lawful securities practice in the foreign country.

4. Within seven days after receiving valid dossiers, the State Securities Commission shall grant securities business practice certificates. If refusing to grant certificates, the State Securities Commission shall reply the applicants in writing, clearly stating the reasons therefor.

5. A securities business practice certificate is valid only when the certificate holder works in a securities company or a fund management company and is notified by that company to the State Securities Commission.

6. Within two days after a securities business practice certificate grantee no longer works for a securities company or a fund management company, that company shall notify such to the State Securities Commission.

Article 80.- Revocation of securities business practice certificates

1. Securities practitioners have their practice certificates revoked in the following cases:

a/ They no longer satisfy the conditions for grant of securities business practice certificates specified at Point a, Clause 1, Article 79 of this Law;

b/ They violate the provisions of Article 9, Clause 1 and Clause 3, Article 81 of this Law;

c/ They have failed to practice securities business for three years in a row.

2. Securities practitioners who have their securities business practice certificates revoked in the cases specified at Point b, Clause 1 of this Article shall not be re-granted those certificates.

Article 81.- Responsibilities of securities practitioners

1. A securities practitioner may not:

a/ Concurrently work for another organization having an ownership relation with the securities company or the fund management company where he/she is working;

b/ Concurrently work for another securities company or fund management company;

c/ Concurrently act as the director or the general director of an organization conducting the public offering of securities or a listing organization.

2. When working for securities companies, securities practitioners are entitled to open securities trading accounts for themselves at the very securities companies.

3. Securities practitioners may not use money and securities on customers' accounts without being entrusted by such customers.

4. Securities practitioners shall attend training courses on securities law, new trading systems and securities types, which are organized by the State Securities Commission, stock exchanges or securities trading centers.