Luận án tiến sĩ: Thị trường chứng khoán Việt Nam - Nguyễn Thị Anh Vân

DOCTORAL BISSERTATION TOWARD A WELL FUNCTIONING SECURITIES MARKET IN VIETNAM Neuyen Thi Anh Van SUBMITTED IN FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF LAWS AT THENAGOYA UNIVERSITY GRADUATE SCHOOL OF LAW April 2000 — March 2003 ACADEMIC ADVISER: PROFESSOR HAMADA MICHYO SUB-ACADEMIC ADVISERS: ASSOCIATE PROFESSOR NAKAHIGASHI MASAFUMI & ASSOCIATE PROFESSOR FRANK BENNETT THUVIEN | TRUONG ĐẠI HỌC LUAT HÀ NOI! PHÒNGbỌC AS AL | GRADUATE SCHOOL OF LAW NAGOYA UNIVERSELY JAPAN December 25, 2002 ACKNOWLEDGEMENT I would like to express my deep gratitude to Professor Hamada Michyo for her research guidance, which enables me to develop the theses of the dissertation, for her time reading its earlier versions, and for her discussions and comments. I am also indebted to Professor Nakahigashi Masafumi for his comments on the earlier drafts of the paper, and his classes on Corporate Law where | acquired knowledge of the Japanese and American law of corporations, which was very much helpful for my research. | am grateful to Professor Frank Bennett for his guidance, which enabled me to shape the thesis statement and lay down its basic plan at the time I was attending his class on Law and Its Social Context, and also for his comments on the earlier drafts of the dissertation. Ï am thankful to Professor Morigiwa Yasutomo and Professor Mastuura Yoshiharu for their classes from which my paper was benefited.

I would also like to thank Mr. John Francis Drennan for his assistance with the linguistic aspects of the paper. All errors and omissions remain those of mine. [ would like to extend my gratitude to the Japanese Ministry of Education, Science, Sports, and Culture (Monbukagakusho) for their sponsorship of my research.

| would also like to thank the Vietnamese Justice Ministry and Hanoi Law University for their support, which enabled me to complete my research. Ï am greatly indebted to the Foreign Student Adviser, Ms. Okuda Saori, for the advice and help | received from her from time to time, so that | could overcome difficulties during my stay in Japan. Ï am also grateful to the Law Library Staff for their kindness and patience in guiding me as to how to make use of reference materials and other library facilities when I fist came to the Graduate School of Law.

Above all, | would like to thank my parents, my husband, daughter, and sisters, without whose continued love and support this thesis would never have been written. Nguyen Thi Anh Van Nagoya University Graduate School of Law Japan December 25, 2002 TABLE OF CONTENTS Acknowledg€em€nf.- Q0 nh nh nh hy List of Abbreviations INTRODUCTION 0000000000 ccc cect n nn nn enn nee kh kg CHAPTER I: The Economic System and the Need for a Securitics Market in Vietnam. An Overview of the Historical Devclopment of the Economic System lì ViSTWAG sici co neo cs nhu La 8941-2300 xsx can Đ2/4410 5156115686215 005008200 61% h085 1. The Economic System before the Open Door Policy 2.

The Economic System after the Open Door Policy Il. The Need for a Securities Market in Vietnam. A Securities Market and Long Term linance for Businesses. A Securities Market and the Promotion of the Equitization Process.

A Securities Market and the Mobilization of Funds from Domestic SUG, FUT OT PAINS sáo các tasusahtoi« «- seasissigasdB0Basads Íoesbu ce a6 bv ơpiee ILI. The Development of Sccurifies Regulation in Vietnam |. The IntroduoHơn of Securities Regulation sex << sewer eccnessiedsss oes 2. An Overall Appraisal of the Corner Stone of the Securities Regulation: Decree 48/1998 CHAPTER H: Whether the Disclosure Requirements Promote Good Information Flow.

Public Offering and Listing Process under the Current Securities Teepe WANED sige tly ấm nail lung ae sa series.) bain eyelet ada: eRe 1. Listing Process Il. Whether the Current Disclosure Requirements ensure the CLtGe2t`=œŒh»Cứ Availability, Timeliness, and Adequacy of Information. Information Disclosure Requirements under the Existing Regulation.

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Disclosure at the Request of Either the SSC or a Securities Fe GEN” nan seca. ws comms th gg88c53 oe gi khi s3 35 NEgasgilsgl-kesthễn 282 +> 2 b. Trading Information Disclosure Requirements with Respect to Semmes Freie COTS xoa scenes acne enn nút Ha Z3 punmaes bee 090508 ness ¢. Information Disclosure in Temeder OffOrs.

Whether the Accounting and Auditing Regulation Well Supports the Information Disclosure Regime. How Has the Existing Disclosure Regulation Worked2. Whether or not the Existing Information Disclosure Requirements Have beer GACGUAICLY CHIOKCOM tua ssc scimuvn ven animes tổn 68 cuc 308g + inns 57 b. What are the Attitudes of the 'Trading-Floor-Ready Companies’ Towards the Current Information Disclosure Ñegiine?.

How Does the SSC l\eact2. Whether the Scope of the Information Disclosure Regime is ACCQUATAY ACOPICT cpinaccenencssnemaari is msmere nme epoanens n2 0 0364 4ï mane 66 1. The Narrow Scope of the Current Information Disclosure Regime. What Might be the Consequences of the Narrow-Scope-Disclosure STE «xí.

ncanmsioncs tá toà arn 0808 309009.5008nssgg REM Lseniend t paola se 3ã, ĐpiekixA- 67 IV. What should be done to Achieve better Outcomes from the Information Diselosure HepùlgfffH<. co sáktLexxytanay tetas 70 1. A Call for Improvement of the Disclosure Requirements applying to those Who Make a Public Offering and to Listed Companies.

70 2, The Need for Disclosure Requirements Applying to Companies Whose Securities Offerings do not Fall Into the Purview of the “Public Ôfeiing”and To Nơii-liSISG COO cac csiras adn yee Ree La d901677stfax xtsg 74 3. The Need to adopt Comparable Accounting Rules and Independent PETES, duy lu cac na cpnbilc:6s@ybstrirpepoezpathìrbostaasrahvibgikinbyieBbrid fare ao 4. Possible Answers to the Practical ProbleS. co at CHAPTER HL: Whether the Anti-fraud Regulation can Foster a Healthy Market.

The Current Auti-fraud Regulation and the Prevention of Maniptilitive and Deceptive PRACUICGS .scs is conesasena vewns x vaumseceaw deans 80 1. Insider Trading Regulation and the Prevention of Short-swing Trading 80 t2 - Market Manipulation Regulation and Stabilization Transactions. Misinformation Regulation and the Prohibition of Omission of Information 89 Il. The Existing Anti-fraud Regulation and the Promotion of a Liquid gud Dice iy AAPG, ncaisr cmos ivscunncvssemnsanad ter scemedneguanets s6 eames a pHÍ 9] 1.

Should Short Sales be Totally Prohibited2. Should Extension of Credit and Lending Securities (Margin Trading) le Enifirelw Bard? «cnoncrssx<cacnemmes L5 114 KHÔI k4 10g 5 L4 2083301 1y SE 113603830 97 Il]. The Lack of Legal Bases for Investors’ Rights of Action and for Meaningfully Deterrent Sanction against Violations. No Concrete Legal Bases for Rights of Action against Wrongful TH TT eT ee a a a ree ee ne re 99 2.

Only Administrative Sanctions against Violations. The Future of the Anti-fraud Regulation. Strengthening the Antifraud Regulation and Enhancing the EnloeErmeni JI|WAIRNH se«es trai nga ghi recamecrcamenumeshaadadaamensadennvì 103 a. Short-swing Trading should be Put under Control 103 b.

Stabilizing Activities should be LegalizedÌ. Omissions of Material Information should be Prohibited 105 d. Concrete Rights of Action and Meaningfully Deterrent Sanctions for Violations should have Legal Bases in the Securities PGT nck ce Mc eae r6 Qua du ahaa ssb dg oom ELE kiều ni leon TB 105 2. Providing the Market with more Supporting Instruments.

Short sale should not be totally prohibited 107 b. Margin Trading should be allowed within a certain threshold. 107 3, Elinvingittng Technical Detieiemeies s. Creating Definitions on a Number of Significant T€FHN.

Eliminating Inconsistencies in Different Legal TeXIx. 108 CHAPTER IV: Whether Securities Professionals are Adequately Regulated 110 I. Regulation of Conflicts of Interest and the Safety of Pubic Investors. Seer ties Fri PCE! ccs cswes mais dws doomendd sekenedst cá maves bude gem 110 2.

Brokerage and Dealing Activities can be combined into One Securities Firm in the Absence of Necessary Regulation of Conflicts of LRT: sex ca cu86 acc Y eR bũbl2atssbxe 12 n88g8:s~si sim 9 0 ay hh lala Loa SRE 114 II. Regulation of theInvolvement of Banks in the Securities Market. The Involvement of Banks in Securities Markets: Overseas Experience - Lessons for Vietnam 121 a. The US experience 121 b_ The European Experience 127 C The Japan Experience 128 2.

Whether an Entire Prohibition of Direct Involvement of Banks into the Vietnamese Securities Market will Result in Good Outcomes. Future Regulation of Securities Professionals. The Need for Concrete Provisions Regulating Conflicts of Interest between Securities Firms and Their Customers. No Need for Indirect Involvement of Banks in a Number of Securities Business ACtivitiCS.

0000000 eee ee sees teat eens eens kh hà nâu Loe 3. The Need for More Concrete Provisions Regulating Banks and Securities SubgÌdÏaTl6Š acces nce vec cme vo cv one và ca xưng spines enemas +1 + asbases 134 CHAPTER V: Whether the Exchange Markets are Well Organized. Stock Exchanges and the Securities Industry: Past and Present L2 —. Mutual Form of Stock Exchange We 2.

Corporate Form of Stock Exchange 137 1, Jes@lis tor Wer acon a sub yearned eh caaneilv vlslewonernn xá Ấn ky 138 4. Matters of Concern about the Consequences of Demutualization. The Legal Structure of the Vietnamese Exchange Markets in Relation tớ aH ECCtiVe MAI ccc cca: ssneu cscs rarssnes panceaspeasosegs iat oe 145 1. Securities Trading Centers as Non-profit Organizations that Belong to ET SS vo sgk <i nlebnchs cin Sahil phe dane uals vì 1a Ne ¡vác wg Reals Gipent 1 gd aehemremnss «ached 145 2.

The Uncertain Legal Structure of the Planned Stock Exchanges. A Desirable Model for Future Exchange Markets. 154 CHAPTER VI: Whether the Market Regulatory System can Ensure that the Securities Rerulation wall be Well HatOrced : 1: sissiaos anrevemaw is Seemennces remel ebtaubrwngy! t-mnn 157 1. Securities Regulatory Systems: A Theoretical Analysis.

Securities regulatory system in general [37 2; Pita e SGT ATOG cons cectncesss eneversmes road 2s pokeweed idan teen 6s G8060 gg be 3. Self-repulatory system 160 I]. Employing an Appropriate Regulatory System: the Experience of The US nníi A ars ceeoanavdic,sremeenbnareLbasdig sr 0685. LanEHẨỒ ng os § i096.

The US 5e€oritles Regulatory System. The Japan's Securities Regulatory System: Past and Present 168 Hl. The Current Vietnamese Regulatory System: a Dependent Public Vì Regulator acting in the Absence of an Important Sclf-regulatory EE, casas x mained 6g dong sa gmemmen Beem snexieeidiBi s sen ppm + x msmmscse earcmconnmean «5 lee bl 17] 1. The Absence of an Important Self-regulatory System.

The SSC: Lack of Independence, and Being Inadequately empowered li a. The SSC Structure and Personnel 172 D. TRE SSC POWERS srcaaes vxcvnerres+panune) <segnebewes «eres mpgs 041031380015 se V75 b. Rules-making Powers 174 b.

Administrative Powers 174 IV. The Future Regulatory System over the Vietnamese Securities nr. A Single Public Regulator or a Self-regulatory System or a Combination of the Two: Which Model should be Chosen for the Future emulate SPS? tan say kagme tt smecmnaunic ss rhugmG0300000 0007 seemed PEEBVS-08 600/000 2. What Should Constitute a Self-Regulatory System over the Vietnam CUTS AT a cátnsesesdozs2iasskodcoulesErsLnbbt(seitbaiEtrsnlksavadu la $ 184 a.

Stock Exchanges as Self-Regulatory QrganizaHOHS. Other Self-Regulatory Organizations Necessary for a Healthy NEUSE irs ss se. A8080» tá đuêng Liiva ua y5 tia ld»sa TAN) wegen 185 BP TESbờ cụ scosnnicps ciescioedagey 2 sttiraid vfessssea Bflensydx CT9 nfasehlLlal Ea 7 186 a. Whal Form ef DO 4x Peal fOr VU cca sate lonn vé Sen oo sateen ode 186 b, The SSC Roles in Enforcine Securities LOW Faia vhetas ste 187 CHAPTER VIE: Suggestions for a Better Operational Securities Market in Vietnam 189 I.

Feasible Schedule for Law Reform 189 HH. Enhancing the Effectiveness of a Future Information Disclosure Regime 190 |. Future Disclosure Requirements Applying to those Who Make a Public Offerine and to Listed Compantes .ccvevesuntys smamenndpe sete ee 190 2. New Information Disclosure Regime Governing Those Whose Securities Offerings do not fall into the Purview of the “Public Offering” and Non-listed Companies 3.