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Chapter 4

 

 

 

CHAPTER 4
SECURITIES BUSINESS


DIVISION 1 FORMATION AND ISSUANCE OF LICENSE


SECTION 90.
The Securities business can be undertaken only by formation of either a limited company or a public limited company, or by a financial institution established in accordance with other laws, and after having obtained a license from the Minister upon the recommendation of the SEC.
The formation of a limited company or of a public limited company to undertake securities business under the first paragraph may be commenced after having been given an approval of the Minister upon the recommendation of the SEC.
A merger of securities companies shall be deemed to be the fomation of a limited company or of a public limited company, as the case may be.
plication for a license, application for an approval, the issuance of a license, and the granting of an approval under this Section shapall be in accordance with the rules, conditions and procedures, and subject to the payment of fees, as specified in the ministerial regulations.
SECTION 91.
the Where it is necessary to maintain the economic and financial stability of the country, or to protect public interest, the Minister upon the recommendation of the SEC has the power to specify conditions with which the license holder shall be required to comply in the undertaking of the securities business.
In cases where there has been a change in the necessary circumstances as provided in the first paragraph, the Minister upon the recommendation of the SEC may modify or change the conditions already specified.
SECTION 92.
A securities company may establish a branch office only when an approval has been given by the Office.
The application for and the granting of such approval shall be in accordance with the rules, conditions and procedures as specified by the SEC.
The establishment of a branch office of a financial institution established in accordance with other laws shall comply with such governing laws.
SECTION 93.
Any person wishing to act on behalf of a company established to undertake securities business under foreign law by setting up a representative office in the Kingdom shall obtain an approval from the Office.
The representative under the first paragraph shall undertake only those businesses specified in the approval.
The provisions of Section 95 shall not apply to a person receiving approval under this Section. However, such person shall comply with the regulations specified by the Office.

DIVISION 2 SUPERVISION AND CONTROL


SECTION 94.
A securities company shall include in its name the words "securities company" at the beginning and the word "limited" at the end.
SECTION 95.
No person other than a securities company shall, in the undertaking of its business, use the name or a description of "securities company" or any other word of the same meaning.
SECTION 96.
A securities company shall have a paid-up registered capital in an amount as specified by the SEC, which shall not be less than one hundred million baht.
SECTION 97.
A securities company shall maintain capital adequacy in accordance with the rules, conditions and procedures as specified by the SEC.
SECTION 98.
No securities company shall:
  1. reduce its capital without an approval from the SEC;
  2. e in any act which may mislead its customers or the public in any matter concerning the price, value and nature of the securities involved;
  3. engage in any act which may cause damage or constitute an unfair advantage to its customers or other interested person as specified in the notification of the SEC;
  4. purchase and sell futures and options on securities whether in its own name or for customers unless the SEC issues a notification allowing such transaction;
  5. sell securities without having possession, or without receiving an order to sell from another person, unless the SEC issues a notification allowing such transaction;
  6. accept purchasing or selling orders from customers outside its head office or branch offices unless otherwise specified by the Office;
  7. purchase or hold shares, except:
    1. those acquired in the course of securities dealing, securities underwriting, or other securities businesses as specified in the notification of the SEC; or
    2. those acquired upon a permission from the Office and in accordance with the rules, conditions and procedures as specified in the notification of the SEC;
  8. engage in any other business which is not a licensed securities business, except when an approval has been granted by the SEC; Other business under the first paragraph does not include the lending of money for purchasing, selling or exchanging securities in the course of securities brokerage or securities dealing business or the purchase and sale or exchange of securities in the Securities Exchange and in an over-the-counter centre by a securities company licensed to undertake securities dealing business;
  9. relocate its head office or branch offices without an approval from the Office;
  10. advertise its business, unless such advertisement is carried out in accordance with the rules, conditions and procedrures as specified in the notification of the Office.
SECTION 99.
In cases where a question arises as to whether the securities company holds sucurities for its customers' or its own account or for the accounts of any customers, it shall be deemed that the securities certificates which are in the possession of the securities company at any time are held for the persons in the following order:
  1. the securities company's customers shall take precednce over the holding for the securities company's own account;
  2. the customer who placed a purchase order prior to the another customer shall take precedence over that other customer whether or not the said securities are held as collateral for a loan granted by the securities company.
SECTION100.
The appointment of any person to be an agent or broker of a securities company shall require prior approval from the Office.
Application for an approval and the granting of an approval shall be in accordance with the rules, conditions and procedures as specified in the notification of the SEC.
SECTION101.
Amendment of the securities company's memorandum or articles of association must be notified in writing to the Office within fifteen days from the date of such amendment.
SECTION102.
The lending of money for the purchase, sale or exchange of securities by a securities company shall be in accordance with the rules, conditions and procedures as specified in the notification of the SEC upon the recommendation of the Bank of Thailand.
SECTION103.
or an advisor:
  1. being or having been a bankrupt;
  2. having been imprisoned by the judgement of a court which is final for an offence related to property committed with dishonest intent;
  3. having been a director, a manager or a person with power of management of a financial institution which had its license revoked, unless an exemption has been granted by the SEC;
  4. being a director, a manager or a person with power of management of any other securities company;
  5. having been removed from a position of chairman, director or manager in accordance with Section 144 or Section 145 or in accordance with the provisions of other laws;
  6. being a political official;
  7. being a government official with responsibility to supervise securities companies, an officer of the Bank of Thailand or of the Office, except in cases where:
    1. an appointment is made with the approval from the SEC for the purpose of assisting in the operation of a securities company; or
    2. an appointment is made in accordance with Section 145;
    3. the securities company is a state enterprise under the law relating to budget procedures.
  8. being a manager or a person with power of management of a partnership or a limited company in which such person himself or any person or partnership or limited company as specified in Section 258(1), (2), (3), (4), (5) or (6) is a partner or a shareholder, except:
    1. being an advisor or a director of a securities company who has no power of management in the securities company;
    2. in the case where the exemption has been granted by the SEC as being necessary to rectify the condition or operation of the securities company;
    3. in the case where an appointment is made in accordance with Section 145;
    4. in the case where the holding of contribution in such limited partnership is less than one percent of the total amount of the contribution of that limited partnership;
    5. in the case where the shareholding in such limited company is less than one percent of the total amount of the shares sold of that company;
  9. being a person not having educational qualification, work experience or other qualification as specified in the notification of the SEC;
  10. having other prohibited characteristics as specified in the notification of the SEC.
SECTION104.
A securities company shall appoint directors or managers or enter into an agreement with other persons, giving the power, either in whole or in part, to manage the business of the securities company only with the approval from the Office.
In cases where it later appears that the persons under the first paragraph have the prohibited characteristics as specified in Section 103, the Office shall have the power to withdraw its approval and the securities company shall propose other persons for the approval from the Office within fifteen days from the date of the withdrawal.
The provisions of Section 103 shall apply mutatis mutandis to the persons with whom the securities company enters into an agreement allowing such persons as well as those who work for such persons to have full or partial managing power in the securities company.
SECTION105.
A securities company shall prepare its accounts stating true and accurate business operation and financial condition, which must conform to the accounting standards as specified by a professional institution approved by relevant government authorities and in accordance with additional regulations specified in the notification of the SEC.
SECTION106.
A securities company shall prepare a balance sheet and a profit and loss account for each accounting period of six months in the form specified in the notification of the Office. The balance sheet shall be examined and an opinion given thereon by an auditor approved by the Office to be the auditor for such financial year. Such auditor shall not be a director, officer or employee of the securities company.
The securities company shall publish its balance sheet and profit and loss account prepared in accordance with the first paragraph for each accounting period of six months. Such publications shall be posted in a prominent place at the office of such securities company, published in at least one local daily newspaper, and one copy shall be submitted to the Office.
Preparation of the balance sheet and the profit and loss account for the first six months of the financial year in accordance with the first paragraph and the publication in accordance with the second paragraph shall be completed within three months from the end of each accounting period. For each financial year, such preparation shall be completed within twenty-one days from the date of approval by thegeneral meeting of the shareholders but not later than four months from the end of such financial year, unless otherwise specified by the Office.
SECTION107.
The auditor as referred to in Section 106 shall adhere to the ethical code of auditors, perform the audit work and declare his opinion according to the provisions of the law relating to auditors and additional provisions as specified in the notification of the SEC.
Where the auditor finds that the securities company has made false supporting documents and/or made incorrect recordings in the accounts, the auditor shall disclose the facts material to the accounts which affect the financial statement in the auditing report in which the auditor has to sign his name for the purpose of declaring his opinion.
The Office shall have the power to withdraw its approval of the auditor who fails to comply with the provisions of the first or second paragraph.
SECTION108.
A securities company shall publish particulars or disclose any other information concerning the securities company in accordance with the rules and the time specified by the Office. Such publications or disclosure shall be displayed in a prominent place at the office of such securities company. A report together with a copy of such publications or disclosure of such information shall be submitted to the Office.
SECTION109.
The Office may require any securities company to submit any report or present any document for any period or from time to time as specified by the Office and may also require an explanation to elaborate or clarify such reports or documents in caaordance with the rules and required as specified in the notification of the SEC.
The reports and documents submitted or presented or the explanations to elaborate or clarify in accordance with the first paragraph shall be complete and accurate.
SECTION110.
A securities company shall open its office for business during business hours and close its office on the days specified by the Office, unless permission has been granted by the Office to open or close its office at any other hours or days.
SECTION111.
The provisions of Section 94, Section 98(1), (7),(8) and (9), Section 104, Section 106, Section 107, Section 108 and Section 110 shall not apply to financial institutions established under other laws and granted licenses in accordance with Section 90.

DIVISION 3 SECURITIES BROKERAGE


SECTION112.
In operating the business of securities brokerage, a securities company shall enter into a written agreement with the customers who appoint it to act as securities broker. For the purpose of fairness to the parties, the SEC may specify any particulars which are material to the agreement.
SECTION113.
In operating the business of securities brokerage in the Securities Exchange for listed securities, a securities company shall operate and collect fees or service charges in accordance with the rules, conditions and procedures as specified by the board of directors of the Securities Exhcange.
In operating the business of securities brokerage outside the Securities Exchange for any securities, a securities company shall operate and collect fees or service charges in accordance with the procedures as specified in the notification of the SEC.

DIVISION 4 SECURITIES DEALING


SECTION114.
In operating the business of securities dealing, a securities company shall comply with the rules, conditions and procedures as specified in the notification of the SEC.

DIVISION 5 INVESTMENT ADVISORY SERVICE


SECTION115.
In operating the business of investment advisory service,a securities company shall comply with the rules, conditions and procedures as specified in the notification of the SEC. In this regard, the SEC may also specify fees of service cahrges which the securities company may charge its customers for performing investment advisory service.

DIVISION 6 SECURITIES UNDERWRITING


SECTION116.
In operating the business of securities underwriting, a securities company shall comply with the rules, conditions and procedures as specified in the notification of the SEC. In this regrad, the SEC may also specify fees or service charges which the securities company may charge its customers for the performing underwriting service.

DIVISION 7 MUTUAL FUND MANAGEMENT


SECTION117.
In the management of a mutual fund, a securities company may set up and manage a mutual fund only when its application to set up the mutual fund had been given an approval by the Office in accordance with the rules, conditions and procedures as specified in the notification of the SEC.
SECTION118.
In applying to set up a mutual fund in accordance with Section 117, a securities company shall also submit the following documents:
  1. details of the mutual fund project as specified in the notification of the Office;
  2. draft commitment between the unitholders and the securities company;
  3. draft agreement appointing the mutual fund supervisor.
SECTION119.
The commitment between the unitholders and the securities company shall contain at least the following material provisions:
  1. powers, duties and responsibilities of the securities company;
  2. appointment, conditions for replacement, and remuneration of the mutual fund supervisor;
  3. rates and payment procedure of fees and remuneration for the mutual fund management;
  4. rights of the unitholders;
  5. dissolution of the mutual fund either by expiration of the mutual fund project or due to any other reason;
  6. other particulars as specified in the notification of the SEC.
SECTION120.
The commitment referred to in Section 119 and the agreement appointing a mutual fund supervisor shall not contain any unfair limitation of liabilities of the securities company and of the mutual fund supervisor towards the unitholders.
Any provisions in the commitment or in the agreement which are contrary to the provisions of the first paragraph shall be void.
SECTION121.
A mutual fund supervisor shall be a commercial bank or a financial institution which has qualifications as specified in the notification of the Office.
In issuing the notification in accordance with the first paragraph, the Office shall specify the following important matters:
  1. capital fund, net total assets and business operation of the person who will become the mutual fund supervisor;
  2. relationship between the mutual fund supervisor and the securities company;
  3. arrangement of organizational structure and internal controls necessary for fulfilling the duties of the mutual fund supervisor.
SECTION122.
When an approval has been given to a securities company to set up and manage a mutual fund in accordance with Section 117 and prior to the offer for sale of investment units to the public, the securities company shall arrange for the appointment of a mutual fund supervisor.
SECTION123.
The offer for sale of investment units to the public shall be made only after a securities company has delivered or distributed a prospectus containing the date of approval for the setting up and the management of the mutual fund.
The prospectus shall be in the form as specified in the notification of the Office and wherever there are corresponding particulars in the prospectus and the details of the mutual fund project, the material facts stated therein shall be the same.
SECTION124.
Money received from the sale of investment units of each mutual fund project shall constitute a pool of assets which the securities company shall be required to register with the Office as a mutual fund in accordance with the rules and procedures as specified in the notification of the SEC.
The registered mutual fund shall be a juristic person with the objective of enabling the securities company to make an investment in accordance with the approved mutual fund project in which case the securities company shall be responsible for the operation of the mutual fund.
The mutual fund under the second paragraph shall have the same nationality as the securities company responsible for the operation of the mutual fund.
SECTION125.
In the management of a mutual fund, the securities company shall proceed as follows:
  1. manage the mutual fund strictly in accordance with the approved mutual fund project and the commitment made with the unitholders;
  2. deposit the assets of the mutual fund into the custody of the mutual fund supervisor;
  3. perpare correct and complete accounts of investments of the mutual fund;
  4. prepare investment reports of the mutual fund for the mutual fund supervisor in accordance with the rules and procedures specified in the notification of the Office;
  5. prepare and maintain a unitholders register in accordance with the rules and procedures specified in the notification of the Office with the approval from the SEC;
  6. arrange for the collection of returns on investments of the assets of the mutual fund and deposit them into the custody of the mutual fund supervisor.
SECTION126.
In the management of a mutual fund, the securities company shall be prohibited from:
  1. engaging in any act which may create a conflict of interest with the unitholders as specified in the notification of the Office;
  2. investing in or holding shares of the securities company responsible for the management of that mutual fund;
  3. investing in or holding investment units of other mutual funds managed by the same securities company;
  4. investing in or holding securities of any company exceeding the ratio specified in the notification of the Office; in this regard, the Office may set a requirement in accordance with the type of securities or the type of business of such company;
  5. borrowing in the name of the mutual fund or creating any encumbrances on the assets of the mutual fund.
In issuing the notifications under subsection (4), the Office shall have the power to set requirements to be observed by the securities company for each or all of the mutual funds for whose operations the securities company is responsible.
SECTION127.
The mutual fund supervisor shall have the power and duty to:
  1. ensure that the securities company strictly complies with the provisions of Section 125;
  2. accept into custody assets of the mutual fund and separate them from other assets as well as ensure the disposition of the mutual fund in accordance with the mutual fund project;
  3. prepare deposit and payment accounts of the assets of the mutual fund;
  4. prepare a report to the Office in the event that the securities company has done any act or omitted to do any act which has caused damage to the mutual fund or has not acted in accordance with Section 125;
  5. file a legal action in court to cause the securities company to perform its duties or to claim compensation for damage from the securities company for the benefit of unitholders as a whole or when instructed by the Office.

Expenses incurred from such legal action on behalf of the unitholders of any mutual fund shall be paid from the assets of that mutual fund.

SECTION128.
In cases where the securities company does any act or omits to do any act which causes damage to the mutual fund or fails to perform its duties in accordance with Section 125, the mutual fund supervisor shall prepare a detailed report concerning such matter and submit it to the Office within five days from the date on which the mutual fund supervisor has knowledge of such event.
In cases where the Office receives the report under the first paragraph and considers that the act of the securities company may have an adverse effect on the interests of unitholders as a whole, the Office shall have the power to order the securities company to rectify the said act or to refrain from doing the act which may have such adverse effect or which is a violation of the duties of the securities company as referred to in Section 125.
In cases where the securities company fails to comply with the order of the Office given under the second paragraph, the Offece shall have the power to:
  1. remove the securities company responsible for the operation of the mutual fund and replac it with another securities company; in this regard, the replacing securities company shall be deemed to assume all rights and obligations of the securities company thus removed;
  2. order the securities company to dissolve the mutual fund.
SECTION129.
In the management of a mutual fund, the securities company shall proceed in accordance with an approved mutual fund project.
Alteration or modification of the mutual fund project or alteration in the management if not made through the resolution by the majority of the unitholders who hold more than half of all that mutual fund's investment units sold shall require an approval from the Office.
In cases where the alteration or the modification is made through a resolution of the unitholders, the securities company shall submit a report thereof to the Office within fifteen days from the date of the resolution.
The securities company shall notify all the unitholders of such alteration and modification and shall publish them in at least one local daily newspaper within fifteen days from the date on which the approval is given by the Office or the date on which the resolution is passed, as the case may be.
SECTION130.
Upon the dissolution of the mutual fund, the securities company shall appoint a liquidator to collect and distribute assets to the unitholders as well as to do all other acts as may be necessary for the completion of liquidation in accordance with the rules, conditions and procedures as specified in the notification of the SEC.
The liquidator under the first paragraph shall be given prior approval from the Office.
Expenses and remuneration arising from liquidation of any mutual fund shall be paid from the assets of that mutual fund.
SECTION131.
After the completion of the liquidation, the liquidator shall apply for registration of the dissolution of the fund with the Office.
The liquidator shall transfer ownership of any assets remaining after registration of the dissolution of the mutual fund to the Office.
SECTION132.
The provisions of Section 47, Section 48,Section 80, Section 81, Section 82, Section 83, Section 84, Section 85, Section 86, Section 87 and Section 89 including the related penalty provisions shall apply mutatis mutandis to the offer for sale of investment units to the public and to legal action taken against the mutual fund supervisor.
Expenses incurred from such legal action on behalf of the unitholders of any mutual fund shall be paid from the assets of that mutual fund.

DIVISION 8 PRIVATE FUND MANAGEMENT


SECTION133.
In the management of a private fund, the securities company shall enter into a written agreement with a person or a group of persons who has authorized the securities company to manage their funds and shall comply with the rules, conditions and procedures as specified in the notification of the SEC. In this regard, the SEC shall have the power to specify the particulars which are material to the agreement.
SECTION134.
In the management of a private fund, the securities company shall be prohibited from managing a private fund for;
  1. a group of persons comprising ten persons or more;
  2. any customer who has an account of less than one million baht;
  3. any group of persons which has an account of less than ten million baht. Provided that the notification of the SEC may specify otherwise.
SECTION135.
In the management of a private fund, the securities company shall arrange for the appointment of a custodian who has been given an approval by the office in accordance with the rules, conditions and procedures as specified in the notification of the SEC.
SECTION136.
The securities company shall keep separate the assets of the persons authorizing the management of the private fund from its assets, and the securities company shall deposit the assets which are securities with the custodian who has been given an approval under Section 135 within the business day following the day on which the securities company has received such securities, or within the time specified in the notification of the Office.
SECTION137.
In accepting into custody the securities, the custodian shall keep separate the deposited securities from its own assets.
SECTION138.
All assets of the persons authorizing the management of the private fund shall be in the name of the persons authorizing such management and the name of the securities company as the representative.
SECTION139.
The securities company which undertakes the management of the private fund shall be prohibited from:
  1. investing in any securities for the person authorizing the management of the private fund other than those agreed upon in the agreement authorizing the management of the private fund;
  2. accepting fees or any service charges from the person authorizing the management of the private fund, except for fees or service charges specified at the rate and according procedures in the agreement authorizing the management of the private fund;
  3. purchasing or selling securities in its own name with the persons authorizing the management of the private fund without giving prior notice;
  4. making a representation to the persons authorizing the management of the private fund that there will be a profit at a certain rate or promising that the loss shall not be more than the rate already specified.
SECTION140.
The securities company shall prepare an account showing the financial condition of each private fund in the form specified in the notification of the Office and shall keep the supporting documents which evidence the correctness of such account.

DIVISION 9 REVOCATION OF LICENSE AND DISSOLUTION OF SECURITIES COMPANY


SECTION141.
If the Office finds that any securities company:
  1. does not appropriately prepare accounts or does not complete the preparation of accounts within a reasonable period of time;
  2. does any act or omits to do any act which is specified in the notification of the Office with the approval of the SEC;

The Office shall have the power to order the securities company to rectify such act or refrain from doing such act as the Office may deem appropriate within a specified period of time.

SECTION142.
Where there is evidence that the condition or operation of any securities company is such that damage may be caused to the public interest, the Office shall have the power to order such securities company to rectify such condition or operation within the period of time specified by the Office.
SECTION143.
In cases where the SEC finds that the condition or operation of any securities company is such that serious damage may be caused to the public interest, the SEC shall have the power to order such securities company to take measures to rectify its management or to take any other action within the period of time specified by the SEC. In this regard, the SEC may also specify any condition to be complied with by the securities company for the purpose of rectifying the condition of operation of the securities company.
In cases where any securities company fails or is unable to rectify its operation, the Minister shall have the power to revoke the license of such securities company upon the recommendation of the SEC.
SECTION144.
Where there is evidence that the condition or operation of any securities company is such that damage may be caused to the public interest, or where the directors, managers or persons responsible for the operation of any securities company fail to comply with the order of the Office under Section 141 or Section 142, the Office shall have the power to order such securities company to remove its directors, managers or persons responsible for its operation who have caused such events. In this regard, such securities company shall appoint other persons to replace the persons so removed within thirty days from the date of removal.
SECTION145.
Where any securities company fails to remove such persons or removes but fails to appoint other persons in their places within thirty days from the date of removal, the Office with the approval of the SEC shall have the power to:
  1. remove its directors, managers or persons responsible for the operation of the securities company whom the securities company fails to remove;
  2. appoint one or more persons to replace the persons so removed for a period of not longer than three years. The persons so appointed shall be entitled to remuneration to be paid from the assets of the securities company as specified by the SEC. During the period in which the persons so appointed hold office, shareholders of the securities company may not pass a resolution to revoke or change the orders of the Office.
For the purpose of this Section, the order of the Office issued under the first paragraph shall be deemed to be a resolution of a shareholders' meeting in accordance with the Civil and Commercial Code or the law relating to public limited companies, as the case may be.
The persons so removed shall no longer be involved in or operate, directly or indirectly, any affair of that securities company, and shall give assistance and provide facts to the persons so appointed.
SECTION146.
Where any securities company fails to comply with the order of the Office given in accordance with Section 144, the Office shall report the matter to the SEC. In such event, the Minister upon the recommendation of the SEC, shall have the power to revoke the license of the securities company.
SECTION147.
During any two year period, if any securities company does not undertake securities business of the type so licensed in the volume as specified in the SEC notification, the Minister shall have the power to revoke the license to operate all or any type of securities businesses so licensed upon the recommendation of the SEC.
SECTION148.
In cases where the Minister orders the revocation of all types of securities businesses in accordance with Section 143, Section 146 or Section 147, the securities company whose license has been revoked shall be dissolved.
The provisions of the first paragraph shall not apply to the financial institutions established in accordance with other laws which can undertake securities businesses.
SECTION149.
In revoking a license of a securities company, the Minister shall communicate the order in writing to the securities company and shall post such order in a prominent place at the office of the securities company and shall publish the order in the Government Gazette and in at least one local daily newspaper.
SECTION150.
Any securities company wishing to discontinue operating a securities business of the type so licensed shall seek an approval from the Minister through the SEC. In giving an approval, the Minister may specify any conditions.
SECTION151.
When any securities company has discontinued its operation or ceased operating securities businesses, the securities company shall complete the purchase, sale or exchange of securities, settlement and delivery of the outstanding securities within the period of time specified by the Office.
SECTION152.
Upon the dissolution of a securities company in accordance with Section 148, the securities company shall be liquidated and for this purpose the Office shall appoint a liquidator.
Liquidation shall be done in accordance with the provisions of the Civil and Commercial Code on the liquidation of a limited company or the law relation to public limited companies on liquidation of a public limited company, as the case may be, provided that the power and duty of the general meeting shall be the power and duty of the Office.
Expenses for liquidation of any securities company shall be paid from the assets of that securities company.

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