Chương IV Thông tư 210/2012/TT-BTC: Quản trị, điều hành công ty chứng khoán

Chapter IV

MANAGEMENT AND ADMINISTRATION OF SECURITIES COMPANY

Article 27. Principles of management and administration

1. Securities company must comply with the provisions of the Securities Law, the Enterprise Law and other provisions of the law relating to enterprise administration. Securities company shall issue Ordinance in accordance with the sample Ordinance prescribed in Annex XI, issued together with this Circular.

2. Securities company shall be honest with clients and not infringe upon the property, rights and legitimate interests of the customers.

3. Securities company must clearly define responsibilities between the General Meeting of Shareholders, the Board of Members, Owners, Board of Directors, Supervisory Board, Management Board in accordance with the Securities Law, the Law on Enterprises and the provisions of the relevant laws.

4. Securities company shall set up communication information system with shareholders and members to ensure adequate provision of information and fair treatment among shareholders and members, to ensure the rights and legitimate interests of the shareholders and members.

Article 28. Administrative apparatus of the securities company

1. Administrative apparatus of the securities company is a joint stock company including the General Meeting of Shareholders, Board of Directors, Supervisory Board and Management Board.

2. Administrative apparatus of the stock company is a limited liability company members, the company responsible for two or more members, including Board of members, Supervisory Board and Management Board.

3. Chairman of the Board, Chairman of the Board of Member or the Director (General Director) is the legal representative of the company as stipulated in the company Ordinance.

Article 29. Shareholders and members

1. Founding shareholders and founding member of securities company are not entitled to transfer their shares and initial contributed capital within three (03) years from the date of the issuance of License for establishment and operation, except where transferred to the other founding shareholders and founding members. During this period, commercial banks, insurance companies or foreign organizations in accordance with Clause 7, Clause 8, Article 3 of this Circular must always hold at least thirty percent (30%) of company’s chartered capital.

2. Shareholders and members holding ten percent (10%) or more of the capital stock or contributed capital of a securities company and the relevant persons of shareholders. Those capital contributors are not entitled to own more than five percent (5%) of the shares or contributed capital of another securities company.

3. Shareholders and members holding ten percent (10%) or more of the chartered capital of a securities company must not take advantage to harm the rights and interests of the company and other shareholders.

4. Shareholders and members holding ten percent (10%) or more of the company’s chartered capital must fully notify to the securities company within twenty-four (24) hours after receiving information for the following cases:

a) A number of shares or contributed capital has been blockaded or pledged or handled by the court's decision;

b) Shareholders, members of the organization which has made decision on renaming or merger, separation, dissolution and bankruptcy.

5. Securities company shall make report to the State Securities Commission on the cases specified in Clause 4 of this Article within five (05) days after receiving notice of the shareholders or members.

Article 30. Transaction changes ownership of shares or contributed capital accounted for 10% or more of securities company’s contributed chartered capital.

1. Transaction of transfer of shares or contributed capital to become shareholders or capital contributor holding from ten percent (10%) or more of the securities company’s contributed chartered capital must be approved by the State Securities Commission, except the case where the securities company's stocks are listed or registered for trading at the Stock Exchange and the case of transfer by the court’s decision.

2. Dossier to request the approval for transaction includes:

Written request for transfer of shares or contributed capital (under the form prescribed in Appendix IX issued together with this Circular);

a) Valid copy of the written request for transfer between parties;

b) Principle contract of the transfer which has been approved by the transferer and transferee;

c) Written personal information (under the form prescribed in Appendix IV to this Circular) together with a valid copy of identity card of new shareholders in case the new shareholders are individuals or copy of the business registration certificate for the case where the new shareholder is a legal entity;

d) Decision of the Board of Directors, Board of Members or Owners of the transferor and the transferee in case transferor and the transferee are organizations;

e) Written certification of securities company on the validity of the transfer.

f) In case the transaction changes the ownership of shares and contributed capital with foreign elements, documents written in a foreign language must be translated and certified into Vietnamese by an organization having the translation function in accordance with regulation of Vietnamese law translated into Vietnamese authentication. The documents issued by the foreign competent State authorities must be legalized in accordance with relevant laws.

3. Dossier to request approval for transaction shall be made ​​in one (01) original submitted directly to the State Securities Commission or sent by post.

4. Within fifteen (15) days from the date of receipt of valid dossier, the State Securities Commission shall approve the transaction in writing. In case of refusal, the State Securities Commission shall reply in writing, clearly stating the reasons.

5. The parties concerned shall complete the transaction procedures approved within ninety (90) days after the effective date of written approval of the State Securities Commission. If the transfer has not completed within the above time limit, the written approval of the State Securities Commission shall be implicitly invalid.

6. Within five (05) days from the completion date of transaction of the transfer, the securities company shall make a report on result of dealing to the State Securities Commission under the form prescribed in Appendix XIII issued together with this Circular.

Article 31. General Meeting of Shareholders, the Board of Members

1. Securities company shall develop internal processes on procedures and order for convening and voting at the General Meeting of Shareholders, the Board of members and must be approved by the General Meeting of Shareholders and the Board of Members.

2. Securities company is a joint-stock company to hold the annual General Meeting of Shareholders within four (04) months from the end of the financial year. If not held within the time limit specified above, the securities company shall make a report to the State Securities Commission in writing, clearly stating the reasons and must hold the annual General Meeting of Shareholders withintwo (02) months.

3. Securities company shall make a report on the result of the General Meeting of Shareholders and the Board of Members together with the resolutions and other relevant documents to the State Securities Commission within five (05) working days from the end date of the General Meeting of Shareholders and the Board of Members.

Article 32. Board of Directors and Board of Members

1. Members of the Board of Directors, members of the Board of members of the securities company shall not be a member of the Board of Directors, members of the Board of Members, the Director (General Director) of another securities company.

2. Function and tasks and contents authorized for the Board of Directors, Board of Members must be specified.

3. Function and tasks of each member of the Board of Directors, Board of Members must be specified.

4. Board of Directors and Board of Members shall develop the internal process on procedures and order for convening and voting at the meeting of Board of Directors and Board of Members.

5. Board of Directors and Board of Members shall set up divisions or appoint persons to perform the tasks of risk management as prescribed in Clause 1, Article 35 of this Circular and the tasks of internal control in accordance with Clause 1, Article 36 of this Circular.

Article 33. Supervisory Board

1. Head of the Supervisory Board of the securities company is not concurrently a member of the Supervisory Board or manager of another securities company.

2. Supervisory Board shall develop the control procedures which must be approved by the General Meeting of Shareholders or the Board of Members.

3. For the Supervisory Board has two (02) or more members, the Supervisory Board must hold meeting at least two (02) times in a year. Minutes of the meeting must be recorded truthfully with full content of the meeting and must be kept as prescribed.

4. Upon detecting members of the Board of Directors, members of the Board of members and Management Board to violate the law, the company Ordinance resulting in infringement of the rights and interests of companies. The shareholders, owners or customers, the Supervisory Board shall require explanation in a certain period of time or request a convening of the General Meeting of Shareholders, the Board of members and owners for settlement. For violations of the law, the Supervisory Board shall report in writing to the State Securities Commission within seven (07) working days from the date of detection of the violation.

Article 34. Management Board

1. Director (General Director) who runs the daily business of securities companies, subject to the supervision of the Board of Directors, the Board of members and take responsibility before the Board of Directors, the Board of Members and the law for the implementation of the rights and duties assigned to them.

2. Director (General Director), Deputy Director (Deputy General Director) of the securities company must not work at the same time for securities company, fund management company or other businesses; Director (General Director) of securities company must not be a member of the Board of Directors, members of the Board of members of other securities companies.

3. Director (General Director) of the securities company must meet the following criteria:

a) Not being a person who has been or is subject to criminal prosecution, imprisonment or deprivation of the right to practice by the court as prescribed by law;

b) Having professional experience in the fields of finance, banking, securities of at least three (03) years and of executive and management experience of at least three (03) years;

c) Having Certificate of financial analysis practice of Certificate of fund management practice.

d) Not being sanctioned by the State Securities Commission under securities laws and stock market within the past two (02) years.

4. Deputy Director (Deputy General Director) in charge of the professional department must meet the criteria specified at Points a and d, as provided for in Clause 3 of this Article, having certificate of securities practice in accordance with the sphere assigned with professional experience in the fields of finance, banking, securities of at least two (02) years of executive and management experience of at least two (02) years.

5. Securities company shall build the Management Board working regulations which must be approved by the Board of Directors and Board of Members. These working regulations must contain the following contents:

a) Responsibilities and specific duties of the members of the Board of Directors;

b) Quy định trình tự, thủ tục tổ chức và tham gia các cuộc họp Regulations on the order and procedures for organizing and participating in meetings;

c) Responsibilities for report of the Management Board to the Board of Directors, the Board of Members and Supervisory Board.

Article 35. Risk management

1. Functions and principles of operation of the risk management department done by the Board of Directors and Board of members:

a) Regulating policies of risk management strategies; risk assessment standards; overall risk level of the company and of each department in the company;

b) Independently assessing the appropriateness and compliance with policies and risk process set in the company;

c) Inspecting, reviewing and assessing the adequacy, efficiency and effectiveness of the risk management system under the Board of Directors in order to improve this system.

2. The Board of Directors shall set up and maintain a system of risk management, including process, machine and personnel to ensure the prevention of the risks that may affect the interests of the company and customers of the company. The system of implementation of risk management shall perform the following tasks:

a) Determination of policy of implementation and the level of risk acceptance of the company;

b) Determination of company’s risks;

c) Risk measurement;

d) Monitoring, prevention, detection and handling of risk.

3. The State Securities Commission shall make guidance for the system of risk management applied to securities companies.

Article 36. Internal audit

1. Securities company is a public joint stock company or company licensed to carry out the securities brokerage operation to set up internal audit department under the Board of Directors (the Board of Members). Internal audit department has the following functions and duties:

c) Independently assessing the suitability and compliance with policies and law, Ordinance and decision of the General Meeting of Shareholders, Owners, Board of Directors and Board of Members;

d) Inspecting, reviewing and assessing the adequacy, efficiency and effectiveness of the internal control system under the Board of Directors in order to improve the system;

e) Assessing the compliance of business operation for policies and internal process.

f) Advising the establishment of internal policies and procedures;

g) Assessing the compliance with regulations of the law and control of asset safety measures;

h) Assessing the process of determination, assessing and managing business risks;

i) Assessing the effectiveness of the activities;

k) Assessing the compliance with commitments in the contract;

l) Performing the control of information technology system;

m) Investigating violations inside the securities company;

n) Performing internal audit inside the securities company and subsidiaries of securities companies

2. Activities of internal audit must ensure the following principles:

a) Independence: the internal audit department is independent from other departments of the securities company, including executive committee; internal audit activities is independent from the activities of operation and business of securities company; staff performing internal audit are not permitted to take on work subject of internal audit and work in professional departments such as brokerage, dealing, analysis, investment consultation, underwriting and risk management;

b) Objectivity: the internal audit department and staff of internal audit department must ensure the objectivity, fairness, non-prejudice in the course of their duties. The securities company must ensure that internal audit does not bear any intervention upon comply with its duties;

Staff of internal audit must demonstrate the objectivity in the process of gathering, assessing and communicating information on activities or processes or system which has been or is being audited. Internal auditors need to make a fair assessment of all relevant issues and not be dominated by private interests or goals by anyone else upon making their remark and assessment;

c) Honesty: internal auditors must perform their work honestly, diligently and responsibly; comply with the law and carry out the work contents publicly in accordance with the law and career;

d) Security: staff of internal audit department should respect the value and ownership of information received, not netitled to disclose information without a valid authorization unless obliged to disclose information in accordance with the law and internal regulations of the company.

3. Personnel requirements of the internal audit department

a) Person of this department not being the person who has been sanctioned from fine or more for violations in the field of securities, banking and insurance within the past five (05) years to the year when appointed;

b) The head of the internal audit department must have qualification in law, accounting and audit and have adequate experience, reputation, authority to effectively execute the assigned tasks;

c) Not being the person in relation with the heads of professional departments, person performing operation, Director (General Director), Deputy Director (Deputy General Director) and branch manager of securities company.

d) Having Certificate of basic issues of securities and securities markets and certificate of securities law and the stock market or certificate of securities practice;

e) Not performing other works in securities company.

Article 37. Internal control

1. Securities company shall establish internal control department under the Board of Directors (Board of General Directors).The internal control system includes processes, apparatus, independent and responsible staff.

2. Internal control department under the Board of Directors is responsible for the compliance of the following contents:

a) Examining and monitoring the compliance with legal provisions, company Ordinance, decision of the General Meeting of Shareholders, the Board of Directors’s decision, regulations, business processes, processes of risk management of the company, the relevant departments and securities practitioners in the company;

b) Monitoring the implementation of internal regulations, the activities of potential conflict of interest within the company, especially for the business activities of the company and the employee's personal transactions; monitoring the implementation of the officials and employees’ duties in the company and partners’ duties for the authorized activities.

c) Checking the contents and monitoring the implementation of the rules of professional ethics;

d) Monitoring the calculation and complying with regulations on financial security;

e) Separating customers’ assets;

f) Preserving and keeping customers’ assets ;

g) Controlling the compliance with the provisions of the law on the prevention of money laundering;

h) Other contents assigned by Director (General Director)

3. Securities company shall establish internal control system including organizational structure, procedures, internal regulations applied to all locations, units, departments and operations of the company in order to ensure the following goals:

a) Operations of securities company shall comply with the provisions of the Securities Law and other relevant documents

b) Ensuring customers’interests;

c) Operations of securities company are safe and effective; protecting, managing and using assets and resources safely and effectively;

d) Financial information systems and management information are honest, reasonable, adequate, timely and honest in the preparation of the company’s financial statements.

4. Personnel requirement of the internal control department:

a) Head of internal control department must have qualification in law, accounting and auditing and have adequate experience, reputation and authority to effectively execute the assigned tasks;

b) Not being the person in relation with the heads of professional departments, person performing operation, Director (General Director), Deputy Director (Deputy General Director) and branch manager of securities company.

c) Having Certificate of basic issues of securities and securities markets and certificate of securities law and the stock market or certificate of securities practice;

d) Not performing other works in securities company.

Article 38. Management of securities practitioners

1. Except for the case appointed as the representatives of the contributed capital or appointed to the company’s management of the organization owning securities companies or organization whose securities company has its investment, the securities practitioners shall not:

a) Simultaneously work for other organizations having ownership relations with the securities company where they are working;

b) Simultaneously work for other securities companies and fund management companies’

c) Simultaneously be Director (General Director) of an organization offering securities to the public or listing organization.

2. The securities practitioners working for securities companies only open their accounts for securities transactions (if any) at the securities company where they are working. This provision shall not apply to cases where the securities practitioners are working for the securities company which is not a member of the Stock Exchange.

3. The securities practitioners are the ones representing the securities company to execute transactions with customers and the securities company is responsible for all activities of the securities practitioners when carrying out the business of the securities company. The securities practitioners are not entitled to use money or securities in the customer's account when they are not authorized under the trust of customers to a securities company in writing.

4. The Securities practitioners must participate in mandatory training courses on legal documents, transactional systems, new types of securities held by the State Securities Commission and the Stock Exchange.

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