RESOLUTION OF THE NATIONAL COMMISSION ON THE FINANCIAL MARKET OF THE REPUBLIC OF MOLDOVA

of December 3, 2024 No. 56/5

About approval of the Regulations on procedure for application and execution of punishments concerning service providers of collective financing and/or their officials

Based on part (3) article 44 of the Law on services of collective financing No. 181/2023 (The official monitor of the Republic of Moldova, 2023, No. 272 - 273, the Art. 470) the National commission on the DECIDES: financial market

1. Approve Regulations on procedure for application and execution of punishments concerning service providers of collective financing and/or their officials it (is applied).

2. This resolution becomes effective from the date of publication in the Official monitor of the Republic of Moldova.

Approved by the Resolution of the National commission on the financial market of the Republic of Moldova of December 3, 2024 No. 56/5

Regulations on procedure for application and execution of punishments concerning service providers of collective financing and/or their officials

Chapter I. General provisions

1. The regulations on procedure for application and execution of punishments concerning service providers of collective financing and/or their officials (further - the Provision), are developed for the purpose of streamlining of supervision of activities of service providers of collective financing (further - the supplier), prevention of violation of legitimate rights and interests of investors, developers of projects and debtors consumers and ensuring compliance with the legislation by suppliers of requirements.

2. Requirements of this provision extend to the suppliers authorized the National commission on the financial market (further - NKFR), to provision of services of collective financing, according to the Law on services of collective financing No. 181/2023 (further - the Law No. 181/2023), and/or on their officials - the managing director or board members, management, the supervisory board or other bodies, or on similar it functions, depending on form of business.

3. The terms and expressions used in this Provision matter, provided by the Law No. 181/2023.

4. NKFR can apply, at the same time, one or several punishments, in accordance with the terms of this provision. The prevention is applied only as primary punishment, without possibility of application of additional punishments. The punishments prescribed in Items b) - f) parts (2) article 44 of the Law No. 181/2023, are applied both as the main, and as additional punishments.

5. Application of punishments, according to requirements of this provision, does not exclude the civil responsibility, the tort liability or criminal liability, depending on case.

6. NKFR has the right to apply the punishments prescribed in part (2) article 44 of the Law No. 181/2023, within 3 years from the date of making of violation or from the date of its termination, in case of the violations having the lasting character. The lasting violation the act which is characterized by continuous making indefinitely, violations of provisions of the legislation on services of collective financing is recognized. In case of the lasting violation of plurality of violations there is no Lasting violation is recognized ended from the moment of the cancellation or failure to act which entailed violation of provisions of the legislation on services of collective financing or with approach of the events interfering implementation of the related activity.

7. The punishments applied according to part (2) article 44 of the Law No. 181/2023, shall be proportional to the revealed violations, including their weight.

8. Application of punishments in case of establishment of violations in the field of the prevention and anti-money laundering and financing of terrorism made by service providers of collective financing is performed according to the procedure, the established legislation on the prevention of money laundering and financing of terrorism.

9. The punishments prescribed in Items b) - c) parts (2) article 44 of the Law No. 181/2023, are applied according to this Provision to persons who can be accused of violation as violation would not happen if the corresponding persons properly carried out the obligations assigned to them following from their job responsibilities established according to the regulations published in pursuance of the Law No. 181/2023, and internal management system, and also rules of the reasonable and reasonable practice corresponding to nature, scale and complexity of their activities and competence.

10. If violation is made by acceptance or rejection of some act by council of the supplier, or the collegiate organ performing functions of the administrator, responsibility is conferred on each member of the relevant organs guilty of violation.

Chapter II. Procedure of individualization of punishments

11. Individualization of the punishments prescribed by this Provision is performed after comprehensive assessment of the allowed violations, their nature and degree of negative consequences.

12. In case of individualization of punishments, NKFR considers all essential aspects of violation, including, depending on situation, the following:

12.1. nature and degree of public danger of violation, gravity of violation and its influence on investors and integrity of system of collective financing, in view of potential or actual damage to investors (if that is established), including loss of confidence in conscientiousness and professionalism of the service provider or system of collective financing in general;

12.2. frequency and duration of violation to estimate whether violation is isolated case or has the repeating character. The violations of the same provisions of the legislation made within 2 years after imposing of punishment for violation of provisions of the relevant legislation are considered as further violations;

12.3. guilt within which it is analyzed whether violations were made intentionally or on imprudence. Violation is considered committed intentionally if person which made it realized mean character of the action or failure to act, or realized its harmful consequences, or intentionally intended or consciously allowed approach of such consequences. Violation is recognized committed on imprudence if person which made it realized mean character of the action or failure to act, or expected its harmful consequences, but precipitately believed that they can be avoided, or did not realize mean character of the action or failure to act, or did not expect possibility of approach of its harmful consequences though it shall or could expect them;

12.4. aggravating and attenuating circumstances.

13. Aggravating circumstances are:

13.1. availability of the previous punishments for violation of the same provisions of the legislation;

13.2. intentional making of violation;

13.3. making of violation for the purpose of receipt of benefit or prevention/recovery of losses;

13.4. creation of obstacles for carrying out NKFR of investigations;

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info