GOVERNMENT SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
No. 95-2011-ND-CP Ha Noi, 20 October 2011
DECREE
AMENDING
DECREE 202-2004-ND-CP OF THE GOVERNMENT DATED 10 DECEMBER 2004 ON PENALTIES FOR ADMINISTRATIVE OFFENCES IN THE MONETARY AND BANKING SECTORS1
The Government
Pursuant to the Law on Organization of the Government dated 25 December 2001; Pursuant to the Law on State Bank dated 16 June 2010;
Pursuant to the Law on Credit Institutions dated 16 June 2010;
Pursuant to the Ordinance on Foreign Exchange dated 13 December 2005;
Pursuant to the Ordinance on Dealing with Administrative Offences dated 2 July 2002 as amended on 2 April 2008;
Having considered the proposal of the Governor of the State Bank;
Decrees:
Article 1 Amendments to Decree 202
1. To amend clauses 3, 5 and 7 of article 18 as follows:
"3. A fine of 50 million to 100 million dong shall apply to any one of the following breaches2:
(a) Lending, providing finance leasing or repaying debts domestically in foreign currency contrary to law;
(b) Remitting or carrying foreign currency into or out of Vietnam contrary to law, except for the cases prescribed in clause 6 of this article3;
(c) Making payment to foreigners for goods and services in foreign currency contrary to law;
(d) Buying, selling or making payment in foreign currency contrary to law;
1 Allens Arthur Robinson footnote: We do not have a translation of Decree 202, but the articles in this amending Decree 95 are "stand alone" articles.
2 Allens Arthur Robinson footnote: The previous level of fines prescribed in clause 3 was 5 million to 12 million dong.
3 Allens Arthur Robinson footnote: Clause 6 provides that carrying foreign currency or gold into or out of Vietnam via border checkpoints contrary to the law on customs shall be subject to an administrative penalty in the customs sector.
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(dd) Making payment with each other of money for goods or services by using gold contrary to law;
(e) Conducting business in gold or buying or selling gold contrary to law."
"5. A fine of 300 million to 500 million dong shall apply to any one of the following breaches4:
(a) Engaging in foreign exchange activities without a forex licence from the competent authority, or with a forex licence which has expired or is suspended;
(b) Providing forex services for Vietnamese residing overseas without a licence from the competent authority;
(c) Importing or exporting foreign currency or gold without a licence from the State Bank;
(d) Listing prices, or advertising goods or services or land use rights in foreign currency or gold contrary to law."
"7. Additional forms of penalty:
(a) Confiscation of the exhibits being the amount of foreign currency, VND or gold in the case of the breaches prescribed in article 3(b), (d), (dd) and (e);
(b) Deprivation of the right to use the certificate of registration as a foreign exchange agent for a period of 12 months in the case of an initial offence and for an unlimited period in the case of a repeat offence, applicable to forex agents who breach the provisions in article 3(d);
(c) Deprivation of the right to use the licence to conduct business in gold for a period of 12 months in the case of an initial offence and for an unlimited period in the case of a repeat offence, applicable to organizations conducting business in gold which breach the provisions in article 3(e)."
2. Article 18.4(dd) is repealed.5
3. To add a new article 18a as follows:
"Article 18a Management and use of money collected as fines for administrative offences
1. Money collected as fines for administrative penalties in the gold business and forex business sectors must be paid into the State budget via an account opened at the State Treasury.
2. The use of fines collected for administrative offences in the gold business and forex business sectors to provide funding for agencies and organizations shall be implemented in accordance with the Ordinance on Dealing with Administrative Offences, Decree 125-2005-ND-CP of the Government dated 6 October 2005 regulating receipts for fines, and other current laws on administrative penalties."
4 Allens Arthur Robinson footnote: The previous level of fines prescribed in clause 5 was 55 million to 70 million dong.
5 Allens Arthur Robinson footnote: Article 18.4(dd) dealt with the failure to buy, sell or use gold of international standard in accordance with current law.
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4. To amend article 37 as follows:
"Article 37 Authority to impose penalties
1. A State Bank inspector when carrying out his or her duties has the following rights:
(a) To issue a warning;
(b) To impose a fine of up to 500,000 dong;
(c) To confiscate the exhibits and means used to commit the administrative breach with a value up to 2 million dong;
(d) To apply the measures for remedying consequences prescribed in article 7.3 of this Decree6.
2. The Head of the Banking Supervisory Agency of a provincial State Bank branch has the following rights:
(a) To issue a warning;
(b) To impose a fine of up to 30 million dong;
(c) To apply the additional forms of penalty prescribed in article 7.2(a)7 and the measures for remedying consequences prescribed in article 7.3 of this Decree;
(d) To propose that the director of the provincial State Bank branch suspend for a definite or indefinite period the conduct of one or more professional activities relevant to the administrative breach, in accordance with the provisions of the Law on State Bank and the Law on Credit Institutions.
3. The Head of the Banking Supervisory Agency [of the central State Bank] has the following rights:
(a) To issue a warning;
(b) To impose a fine of up to 500 million dong;
(c) To apply the additional forms of penalty prescribed in article 7.2(a) and the measures for remedying consequences prescribed in article 7.3 of this Decree;
(d) To propose that the Governor of the State Bank suspend for a definite or indefinite period the conduct of one or more professional activities relevant to the administrative breach, in accordance with the provisions of the Law on State Bank and the Law on Credit Institutions.
6 Allens Arthur Robinson footnote: Article 7.3 provides in effect that an offender may be required to take measures to overcome consequences of the breach and to mandatorily comply with the relevant law.
7 Allens Arthur Robinson footnote: Article 7.2(a) provides for confiscation of the exhibits and means used to commit the breach.
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4. The following people, when they detect any individual or organization which is not a credit institution in breach of the provisions on forex control in clause 3(b), (d), (dd) and (e) and in clause 4(a), (c), (d),
(e) and (g) and in clause 5 of article 18 of this Decree, have authority to issue an administrative penalty decision pursuant to this Decree and must at the same time notify the State Bank for its information: Chairmen of people's committees at the provincial level; Director of the Division of Economic Police; officers and the Director of the Division of Social Order Police; Director of the Drug Prevention Division; and the Director of the Division of Immigration as prescribed in article 30 and in clauses 7 and 8 of article 31 of the Ordinance on Dealing with Administrative Offences.
5. Any market management authority as prescribed in article 37 of the Ordinance on Dealing with Administrative Offences which detects an individual or organization not being a credit institution in breach of article 18.5(d) of this Decree must prepare minutes and transfer the matter to an agency prescribed in clauses 3 or 4 of this article to deal with the offence in accordance with this Decree."
Article 2 Effectiveness
This Decree shall be of full force and effect as from the date of signing and promulgation.
Article 3 Responsibility to implement
The Governor of the State Bank, ministers, heads of ministerial equivalent bodies and Government bodies, and chairmen of provincial peoples' committees shall be responsible for implementation of this Decree.
For the Government
Prime Minister
NGUYEN TAN DUNG
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