Chương VI Thông tư 210/2012/TT-BTC: Hoạt động của công ty chứng khoán

Chapter VI

OPERATION OF SECURITIES COMPANY

Section 1. GENERAL PROVISIONS

Article 45. Principle of operation

1. Securities company shall issue business processes, internal control procedures and risk management applied to the licensed business operations.

2. Securities company shall promulgate rules of practice ethics in accordance with the company's business operations.

3. Securities company must ensure separation of working offices, personnel, data systems and report between departments to ensure the avoidance of conflicts of interest between securities company with customer or between customers themselves. The securities company shall notify to customers on conflicts of interest which may arise between securities companies, securities practitioners and customers.

4. Securities company must allocate securities practitioners having certificates of securities practice in accordance with the business operations. Securities practitioners performing securities dealing operations must not simultaneously carry out the securities brokerage.

5. Securities companies must not make ​​the judgement or assure customers of the level of income or profit earned on their investments or assure customers of not being lost, except for investments in securities with fixed income.

6. Securities companies must not disclose information on customer, except for the case agreed by the customer or at the request of the competent state management.

7. Securities company must not perform behavior which can mislead the customers and investors about stock prices.

8. Securities company predicting stock price or recommend trading related to a specific class of securities on the media must specify the basis of analysis and information sources cited.

Article 46. Temporary suspension of operation

1. Securities companies temporarily suspending securities trading at the head office, branches, transaction offices must be approved by the State Securities Commission. The suspension period shall not exceed ninety (90) days. Beyond this time limit, the State Securities Commission shall revoke the License for establishment and operation or relevant decision on establishment.

2. Dossier to request the approval for temporary suspension of operation is made ​​into one (01) original submitted directly to the State Securities Commission or sent by post. Dossier to request the approval for temporary suspension of operation includes:

a) Written request for suspension of operation (under the form prescribed in Appendix XIV issued together with this Circular);

b) Decision of the Board of Directors, Board of Members or the Owner of the securities company on the temporary suspension of operations;

c) Plan for handling contracts signed with customers in effect.

3. Within fifteen (15) days from the date of receipt of valid dossier as prescribed in Clause 2 of this Article, the State Securities Commission shall make a decision on approval for temporary operation for the head office, branches and transaction offices of securities company. In case of refusal, the State Securities Commission shall reply in writing, clearly stating the reasons.

4. Securities company shall report to the State Securities Commission within twenty-four (24) hours after the head office, branches and transaction offices work again.

Section 2. SECURITIES BROKERAGE OPERATION

Article 47. Responsibility for securities brokerage

1. Securities companies must allocate securities practitioners to work in the following positions:

a) Consultation, contract explanation and implementation of procedures for opening securities trading account to customers;

b) Consultation of securities trading to customers;

c) Receiving of order and control of securities trading order of customer;

d) Heads of departments relating to the securities brokerage operations.

2. Securities company must comply with money laundering prevention and fighting in accordance with current regulations.

3. Data on brokerage account of the customers opening accounts at securities company must be centrally managed and must be kept in reserve at other locations.

4. Securities company performing brokerage operation must not:

a) Give an opinion on the increase or decrease in the securities price without foundation to entice customers to participate in the transaction;

b) Make agreement or offer specific interest rate or share profits or losses with customers to entice customers to participate in the transaction;

c) Directly or indirectly setting the fixed location outside trading venues have been approved by the State Securities Commission to sign a brokerage contract with customers, receive orders, execute securities transactionssecurities or settle securities transactions with customers;

d) Receiving order and making payment of trading with the person who is not the trading account holder without any written authorization of the account holder;

đ) Disclosing contents of customers’ trading order or other confidential information when conducting transactions for customers without having to disclose information or at the request for inspection and examination in accordance with regulations of law;

e) Using name or customers’ accounts for securities registration and trading;

g) Infringing customers’ property, rights and interests

Article 48. Opening trading account

1. To perform trading of purchase, or sale of securities to customers, the securities company must make procedures to open trading account for each customer on the basis of written request for opening accounts and contract to open securities trading accounts with customers. The written request for opening accounts must have the minimum content specified in Annex XV issued together with this Circular. The contract to open securities trading accounts must have the minimum content specified in Annex XVI issued together with this Circular.

2. Securities company is obliged to explain contract to open securities trading accounts and related procedures when implementing securities transactions for customers, finding out the financial capacity and the ability to tolerate risk and expect gained profit of customers.

3. The contract to open securities trading accounts specified in Clause 1 of this Article must not contain the following agreements:

a) Agreement in order to avoid legal obligation of securities company without plausible reasons;

b) Agreement to limit the scope of compensation of the securities company without plausible reasons or transfer of risk from securities company to customers;

c) Agreement to compel customers to execute unfair compensation obligation;

d) Agreements cause an unfair disadvantage to the customers.

4. Investors opening accounts at securities company must complete the information on contract to open account.

Article 49. Responsibilities for customers

1. When advising customers to perform securities trading, the securities company must gather sufficient information on customers and not guarantee securities values which it recommend the investment.

2. Securities company is obliged to update the customer's changed information changes upon customers’ request.

3. Securities company must directly sign contract to open trading accounts for customers, directly perform securities transactions to customers and be responsible before the law for these activities.

4. Securities companies must publish the securities transaction fee before the customers make transactions.

5. Securities company is obliged to monitor money and securities of each customer in detail, providing information on the balance and money accrual (if any) and the securities to the customers upon customers’ requests.

6. Securities companies must set up a specialized department responsible for communications with customers and settlement of any customers’ questions and complaints.

Article 50. Management of customers’ money.

1. Securities company shall manage deposit of securities transactions separately for each customer and customers’ money with securities company’s money.

2. Securities company must not directly receive and pay cash for customers’ securities trading but must perform through commercial banks.

3. Securities company must not abuse customer’s money in any form. Transactions related to customers’ moeny are only allowed to perform in accordance with the law.

4. Securities company must build management system separately from customers' money in the form specified at Point a of this Clause. In addition, securities company can build additional systems in the form specified at Point b of this Clause for customers to choose:

a) Customer of securities companies open an account directly at the commercial bank selected by the securities company to manage money of securities trading. In this form, the customers, securities companies and commercial banks shall have a contract to agree on the way how to confirm, blockade money balance and transfer payment for customers' securities transactions. After the customers’ stock buying orders are matched, securities companies have the right to ask the bank where investors open their accounts to transfer the amount of money corresponding to the matched value to the securities trading account in the securities company’s name opened at commercial bank selected by securities company. The securities company is obliged to make payment of securities trading on customers’ behalf with parties concerned.

b) Securities company shall open specialized accounts at commercial banks to manage customers' deposit for securities transactions. The specialized account must be opened separately and clearly from other accounts of securities companies.

This specialized account only serve customers’ transactions, particularly:

- Customers make payment and transfer money to securities trading accounts;

- Customers withdraw and transfer money out of securities trading accounts;

- Customers make payment of securities trading;

- Customers make deposit for trading and payment of auctioning money to buy securities;

- Customer make payment to execute their call option of securities;

- Other cases of customers’ payment on the customer's requirements and in conformity with the law.

Securities company shall establish accounting system for managing the deposit of each investor. The securities company is obliged to determine the balance (if any) at any time of each customer and provide detailed statement balance (if any) of each customer at any time at the request of customer or competent state agencies.

Securities companies shall ensure the implementation of all customers’ requests for withdrawal and transfers of moeny within the balance when the customers are no longer obligated to pay for securities company.

Securities companies are not mandated by customers transferring money internally between the customers’ accounts.

5. Securities company must publish on its website and at branches and transaction offices the list of commercial banks selected for the two forms of management of customers’ securities transaction money.

6. Within three (03) working days from the date of signing the contract as specified at Points a and b, Clause 4 of this Article, the securities company shall make a report to the State Securities Commission together with a valid copy of contract between securities company and commercial bank.

7. Prior to sixteen (16) o’clock of weekly Monday or the first working day of the week, the securities company having specialized accounts must make report to the State Securities Commission on the number and balance of customer in the specialized account of the securities company opened at commercial banks under the form provided in Appendix XVII issued together with this Circular. The data reported above are closed at the end of the working day immediately preceding the date of the report.

Article 51. Customers’ securities management.

1. For securities registered for consolidated deposit:

a) Securities companies must separately manage customer-owned securities with securities owned by the securities company;

b) Securities company must re-deposit the customers’ securities in the Vietnam Depository within one (01) working day from the date of receipt of customers’ valid dossiers of securities deposit.;

c) Securities company shall promptly and fully notify customers of the benefits incurred in relation to customers’ securities;

d) The deposit, withdrawal and transfer of securities comply with the customers’ order and regulations on registration, depository, offsetting and settlement of securities.

2. For securities which have not been registered considated depository, securities company is registered and deposited customers’ securities in the securities company under contract signed with customers and under provisions of Article 58 and Article 59 of this Circular.

Article 52. Receiving order and executing transaction

1. Securities company receives customers’ trading order in the following forms:

a) Receiving order ticket directly at the trading counter.

b) Receiving remote orders via phone, fax, internet and other transmission lines.

2. Securities companies receives orders online after registration with the State Securities Commission as prescribed.

3. In case of receiving orders online, via phone, fax and other transmission lines, securities companies must comply with:

a) Law on electronic transactions, and guiding documents;

b) Ensuring full recording of information at the time receiving order and keeping proof proving customers’ order

c) Ensuring principles of confirmation with customers prior to entry of order to the trading system;

d) Taking measures to ensure the safety, security of transmission lines and appropriate remedies upon failure of entry of customers’ order into transaction system due to company's fault.

4. Securities company is entitled to execute customers’ order only when trading orders have complete and accurate information on customers, trading day, stock code, methods, types of order, amount and price of the transaction. The customers’ trading orders must be recorded ordinal number and time (day, hour, minute) of order receiving at the time order receiving by the securities company.

5. Securities company must execute customers’ orders quickly and accurately.

6. Securities company may only receive orders to buy or sell securities of customers when having one hundred percent (100%) of cash or securities and taking necessary measures to ensure the solvency of the customer when orders are made.

7. Securities company must inform the result of implementation of trading orders to customers as soon as the orders are matched by the method agreed between customers and securities company in the contract.

8. Where the customers open accounts at depository members who are not trading members. The trading members and depository members must sign contract to agree upon the responsibilities for ensuring the principle of the trading member responsible for execution of trading order. The depository members are responsible for checking the rate of deposit of customers’ money or securities and ensuring payment to the customers in accordance with the law.

Section 3. SECURITIES DEALING OPERATION

Article 53. Securities dealing

1. Stock company must ensure to have enough money and securities to make payment for trading orders trades for its own account.

2. The dealing operations of securities company must be made in the name of its own without lending the names of other people or in the name of the individual or letting other persons use dealing account.

3. The following cases shall not be considered as securities dealing:

a) Purchase and sale of securities due to trading error correction;

b) Purchase and sale of treasury stocks.

4. Securities company must prioritize the execution of the customers’ orders before its own orders.

5. Securities company must notify its customers when it is a partner in negotiation trading with the customers

6. In case the customers’ orders to buy or sell securities can remarkably influence the price of that type of securities, the securities company is not entitled to buy and sell in advance the same type of securities for itself or disclose the information to a third party buying and selling those secuties.

7. When customers place a limited order, the secuties company is not entitled to purchase or sell in the same direction the same type of securities for itself at a price equal to or better than the customers’ price before the customers’ orders are made.

Section 4. SECURITIES UNDERWRITING OPERATIONS

Article 54. Conditions for issuance underwriting

Securities company is entitled to issuance underwriting in the form of firm commitment to ensure the following conditions:

1. Having been licensed to conduct securities underwriting operations

2. At the time of signing the contract of issuance underwriting, the total value of all contracts issued in the form of valid firm commitment must meet the following conditions:

a) Not greater than one hundred percent (100%) of equity based on the latest quarterly financial statement;

b) Not exceeding fifteen (15) times of the difference between current assets and liabilities based on the latest financial statements

3. Not being put under control and special control of three (03) months immediately preceding the time of signing the contract of underwriting.

Article 55. Limited underwriting

1. The securities company is not entitled to underwriting in the form of firm commitment, or is the main sponsor of the following cases:

a) Securities company independently or together with its subsidiaries or persons concerned own from 10% or more of the chartered capital of the issuer, or have the right to control the issuer, or the right to appoint Director (General Director) of the issuer;

b) At least 30% of the chartered capital of securities companies and at least 30% of the chartered capital of the issuer are hold by the same individual or organization;

c) The issuer, independently or together with its subsidiaries, or together with related persons own 20% or more of the securities company’s chartered capital, or have the right to control securities company, or appoint the Director (CEO) of the securities company;

d) Members of the Board of Directors, Director (General Director) and the persons concerned of the securities company and concurrently a member of the Board of Directors, Director (General Director) of the issuer;

e) Members of Board of Directors, Director (General Director) and the persons concerned of the issuer that is a member of the Board of Directors, Director (General Director) of the securities company;

e) Securities company and issuer have the same legal representative.

2. Securities company receiving the securities underwriting must open a separate account in a commercial bank to get money from the purchase of securities of the investor.

Section 5. SECURITIES INVESTMENT CONSULTATION OPERATION

Article 56. Responsibility of securities company.

1. In order to provide the securities investment consultation services to customers, the securities company shall sign contract with the customers with the minimum contents as follows:

a) Rights, obligations and responsibilities of the parties engaged in the contract;

b) Scope of securities investment consultation;

c) Method of service provision;

d) Fee of service provision;

2. Securities company shall collect and manage customers’ information including:

a) Financial situation;

b) Investment target;

c) Ability to take risks;

d) Experience and understanding of investment.

3. Contents of securities investment consultation must be reasonable and consistent based on reliable information, logical analysis. Recommendation of securities investment given must be relevant and consistent with the content of securities analysis and securities markets. The reports on securities and market analysis and investment recommendations must specify the data sources cited and name of the person responsible for the contents of the report and securities investment recommendations.

4. Company securities advicing investment to customers must ensure that customers shall make a decision on investment on the basis of fully provided with information including content and risks of products and services.

5. Securities companies must secure the information received from the user of consultation services during the process of provision of consultation services unless otherwise agreed by the customers or provided by law.

6. Securities company must give the investment cocnsultation in accordance with the customers’ investment target and financial situation and be responsible for the result of analysis and the reliability of information provided to customers.

Article 57. Prohibited acts

Except as otherwise provided by law, securities company providing investment consultation services is not entitled to directly or indirectly perform the following acts:

1. Making a decision on securities on behalf of customers.

2. Making agreement with customers to share profits or losses.

3. Advertising, claiming that the content, performance, or its security analysis methods are of higher value of other securities companies.

4. Having acts to provide false information to lure or entice customers to purchase and sell a certain type of securities.

5. Providing false, fraud or misleading information for customers.

6. Other acts contrary to the provisions of law.

Section 6. SECURITIES DEPOSITORY OPERATIONS

Article 58. Implementation scope of securities depository operations

Securities company issued Certificate of depository operation is provided with the following services:

1. Providing securities registration and depository services for customers.

2. Making payment on securities transactions to customers at Stock Exchange.

3. Providing the shareholder book management services, transfer agent at the request of the issuer which is not a public company.

Article 59. Rights and obligations of securities company with depository operations

1. Opening depository accounts for customers at the securities company, managing customers’ depository accounts in accordance with regulations of the law. Custody account clients must be separated from the securities depository accounts of the company itself.

2. Recording accurately, completely and updating information on customers who have opened depository accounts and securities owned by customers who have deposited at the company.

3. Preserving, storing, collecting and processing data relating to depository activities, securities offsetting payment of customers.

4. Developing process of registration, depository, offsetting payment, management of shareholder book, transfer agent and internal control procedures in order to manage and protect the interests of customers or securities owners.

5. Collecting fee for the registration, securities depository and other fees as prescribed by law.

Section 7. FINANCIAL CONSULTATION OPERATION

Article 60. Regulation on financial consultation operations

1. Securities company is entitled to execute the financial consultation including:

a) Consultation of restructure, merger, consolidation, reorganization and sale of businesses;

b) Management consultation, business strategy consultation;

c) Consultation of securities offer and listing;

d) Equitization consultation, determination of business value;

đ) Other financial consultation in accordance with the law.

2. Securities company is not entitled to provide services specified at Point c, Article, Clause 1 of this Article for a company that it holds ten percent (10%) or more of the chartered capital.

3. Securities company performing financial consultation must comply with the Securities Law and other relevant laws.

Section 8. OTHER FINANCIAL SERVICES

Article 61. Entrusting management of securities trading account of individual investor.

1. General principle:

a) Securities company licensed to concurrently execute securities brokerage and securities investment consultation may be entrusted to manage securities trading accounts on the basis of Trust contract of trading account management signed with the individual customer;

b) Securities company not entrusted shall decide all transactions on securities trading accounts on behalf of individual investors. Customers must specify the particular trust content as prescribed in Clause 2 of this Article;

c) Securities are permitted to entrust the purchase and sale of stocks, investment fund certificates listed on the Stock Exchange, not including securities registered trading on the trading system of unlisted public companies (UpCom);

d) Securities company shall appoint securities practitioners having certificate of financial analysis practice or fund management to execute the management of entrusted trading accounts.

2. Entrustment scope includes the following contents:

a) Class of trading securities;

b) Maximum volume to be purchased and sold for each class of securities;

c) Maximum value for each trading order;

d) Maximum total trading value for a trading day;

đ) Trading method and type of trading order.

3. Securities company shall summarize information on the financial capacity, investment period, investment objectives, acceptable level of risk, investment restrictions, securities portfolio (if any) and other requirements of the client before signing the contract. Where the customer does not provide enough information or provide inaccurate information, securities company has the right to refuse to sign the contract.

4. Trust contract:

a) Trust contract period shall not exceed one (01) year from the time of signing the contract.

b) Trust contract shall have the following contents:

- Information on customers;

- Information on practitioners assigned to manage customers’ accounts (if any);

- Trust content;

- Rights and obligations of the parties in the contract;

- Contract management fee and award fee (if any) ;

- Method of payment and contract liquidation;

- Method of dispute settlement.

5. Where securities company fails to comply with the contract signed with the customers causing damage to them, the securities company shall compensate the trusted customer as agreed in writing between the two parties; in case of profit generation, that profit shall belong to the trusted customers.

6. Rights and obligations of the entrusted securities companies:

a) Acting honestly and or customers' best interests, do not use information about its customers to benefit for itself and cause harm to customers;

b) Requiring customers to provide all the necessary information;;

c) Performing purchase/sale of securities in the trust scope;

d) Clearly explaining and fully providing information to customers about any risk that may arise in the trust of management securities trading account;

đ) Providing customers with statements of monthly or unusual transactions at the request of entrusted customers;

e) Notifying the customers within twenty-four (24) hours after the assets in the entrusted trading account of the entrusted customers fall below twenty-five percent (25%) of the total trust contract value;

g) Monthly report (under form in Appendix XXII issued together with this Circular) or reports as required by the State Securities Commission on the management entrusted trading account;

h) Providing the list of securities practitioners eligible for customers to choose to manage their trust accounts;

i) Establishing independent monitoring department to supervise the management and trading of securities on the entrusted trading account of securities practitioners to ensure that the trading of these accounts in accordance with the agreements in the trust contract and investment objectives of the customers;

k) All trading orders under the trust contract must be recorded exactly by the time it is done;

l) Securities companies must notify and must have the written consent of the customer in case of investment in securities by the company performing underwriting during the company’s underwriting.

Article 62. Other financial services

1. Securities company only carry out other financial services upon regulations and guidance of the Ministry of Finance.

2. The services stated in Clause 1 of this Article must be relevant and support the operations licensed of the securities company and must not affect the interests of customers, the securities company itself and the market.