Chương IV Luật kinh doanh bảo hiểm 2022: Đại lý bảo hiểm, doanh nghiệp môi giới bảo hiểm, tổ chức, cá nhân cung cấp dịch vụ phụ trợ bảo hiểm

Chapter IV

INSURANCE AGENTS, INSURANCE BROKERAGE COMPANIES, ENTITIES AND PERSONS PROVIDING INSURANCE ANCILLARY SERVICES

Section 1. INSURANCE AGENTS

Article 124. Insurance agents

Insurance agent is an entity or person authorized under an insurance agent agreement to render insurance agent services by an insurance company, branch of a non-life insurance company or mutual providing microinsurance products.

Article 125. Licensing conditions of insurance agents

1. A person rendering insurance agent services must:

a) be a Vietnamese citizen permanently residing in Vietnam;

b) have full civil capacity;

c) hold the certificate of practising as an insurance agent conforming to Article 130 herein.

2. An entity rendering insurance agent services must:

a) be licensed or permitted for their establishment and operation in Vietnam;

b) obtain registration for their scope of insurance agent services under the regulatory provisions of the Corporate Law. As for any entity engaged in conditional business sectors and industries, a license, certificate and other approval or certification document (if any) containing information about permission for insurance agent services that is issued by a competent agency shall be needed;

c) be staffed by employees directly rendering insurance agent services that meet the conditions specified in clause 1 of this Article;

d) meet personnel and other conditions under the Government’s regulations.

3. Any entity or person shall be prohibited from concluding and executing an insurance agent agreement when:

a) The entity is a commercial legal entity facing the criminal prosecution process; an entity that is subject to the temporary suspension, perpetual termination or prohibition of their business or the prohibition of their engagement in the insurance-related sectors;

b) The person is facing criminal prosecution actions; is serving a prison sentence; is serving the sentence of prohibition of practising in the insurance-related sectors.

Article 126. Contents of insurance agent agreements

An insurance contract must include, but not limited to, the followings:

1. Name and address of the insurance agent;

2. Name and address of the head office of the insurance company, branch of the non-life insurance company or mutual providing microinsurance products;

3. Rights and obligations of the insurance company, branch of the non-life insurance company, mutual providing microinsurance products, insurance agent;

4. Scope of business of the insurance agent;

5. Insurance agent commissions, rewards, support provided for the insurance agent and other interests (if any);

6. Contract term;

7. Dispute settlement methods.

Article 127. Operating principles of insurance agents

1. Persons cannot be insurance agents for other insurance companies or branches of foreign non-life insurance companies operating in the business lines or sectors that are the same as those in which the principal insurance companies or branches of foreign non-life insurance companies for which these persons are acting as agents are performing transactions. A person acting as an insurance agent for a mutual providing microinsurance products shall not be allowed to act as the insurance agent for the other mutual providing microinsurance products.

2. An entity cannot be an insurance agent for the other insurance company or branch of a foreign non-life insurance company or mutual providing microinsurance products without the written approval from the insurance company, branch of the foreign non-life insurance company or mutual providing microinsurance products for which that entity is acting as the agent.

3. Persons rendering insurance agent services or employees of entities doing insurance agent business can only render insurance agent services for insurance schemes or products in which they are trained.

4. Biodata about persons rendering insurance agent services and staff members of entities rendering insurance agent services that are directly involved in insurance agent services must be registered and updated in the database of insurance agent services according to Article 11 herein.

5. Persons that have obtained certificates of practising in the insurance agent business sector, but have not operated in the insurance agent business sector, during 03 consecutive years must take tests to obtain new ones before commencement of the insurance agent services.

Article 128. Rights and obligations of insurance companies, branches of non-life insurance companies and mutuals providing microinsurance products in the insurance agent business sector

1. Insurance companies, branches of non-life insurance companies and mutuals providing microinsurance products shall have the following rights:

a) Organize insurance agent systems designed for implementation of business strategies;

b) Recruit insurance agents and enter into insurance agent agreements;

c) Decide the amount of insurance agent commissions, rewards and grants for insurance agents and other interests specified in insurance agent agreements provided that such amount is not greater than the limit regulated by the Minister of Finance;

d) Receive and have custody of security deposit or collateral provided by insurance agents if agreed upon in insurance agent agreements;

dd) Request insurance agents to remit collections under terms and conditions of insurance agent agreements;

e) Check and supervise execution of insurance agent agreements; measure the performance in insurance product consulting and offering activities of insurance agents and staff members of entities rendering insurance agent services;

g) Enjoy other legitimate rights and benefits arising from rendering insurance agent services;

h) Have other rights stipulated by law.

2. Insurance companies, branches of non-life insurance companies and mutuals providing microinsurance products shall take on the following obligations:

a) Bear responsibility for organization, management and engagement of insurance agents;

b) Organize training and knowledge updating sessions to be provided for insurance agents under law;

c) Fully and accurately provide guidance, necessary information and documents related to the insurance agent business;

d) Perform responsibilities arising in insurance agent agreements that have been entered into;

dd) Settle and pay the amount of insurance agent commissions, rewards and grants for insurance agents and other interests specified in insurance agent agreements provided that such amount is not greater than the limit regulated by the Minister of Finance;

e) Return security deposit or collateral to insurance agents under contractual terms and conditions;

g) Bear responsibility to perform obligations agreed upon in insurance contracts that insurance agents or staff members of entities rendering insurance agent services arrange to conclude. Where any insurance agent or staff member of an entity rendering insurance agent services is in breach of an insurance contract, causing any loss or damage to legitimate rights and interests of an insured persons and policyholder, the insurance company, branch of the foreign non-life insurance company or mutual providing microinsurance products, as the principal, must bear responsibility for discharging obligations agreed upon in the insurance contract that such insurance agent arranges to conclude;

h) Have their insurance agent business put under the inspection and supervision of competent regulatory authorities;

i) Protect and avoid encumbering legitimate rights and interests of insurance agents under contractual terms and conditions and in accordance with law;

k) Report on the training and employment of insurance agents under the regulations adopted by the Minister of Finance;

l) Register and update biodata about persons rendering insurance agent services and staff members of entities rendering insurance agent services that are directly involved in insurance agent services in the database of insurance agent services according to Article 11 herein;

m) Assume other obligations prescribed by law.

Article 129. Rights and obligations of insurance agents

1. Insurance agents shall have the following rights:

a) Decide on and conclude insurance agent agreements. This right is intended for insurance companies, branches of non-life insurance companies or mutuals providing microinsurance products in accordance with law;

b) Have access to information and preconditions for successful execution of insurance agent agreements;

c) Receive insurance agent commissions, rewards and grants for insurance agents and other interests from insurance agent services according to insurance agent agreements;

d) Request insurance companies, branches of non-life insurance companies and mutuals providing microinsurance products to return security deposit or collateral under contractual terms and conditions of insurance agent agreements;

dd) Exercise other rights in accordance with law.

2. Insurance agents shall take on the following obligations:

a) Discharge their contractual obligations;

b) Provide security deposit or collateral on behalf of insurance companies, branches of non-life insurance companies and mutuals providing microinsurance products if this obligation is prescribed in an insurance agent agreement;

c) Fulfill financial obligations in accordance with law;

d) Provide insurance product consulting, offering and marketing services; provide full and accurate information about insurance products, insurance companies, branches of non-life insurance companies or mutuals providing microinsurance products to policyholders and give clear and comprehensive explanations about insurance benefits, disclaimer clauses, rights and obligations of policyholders; avoid providing information for policyholders without approval from policyholders; implement other obligations falling within the scope of authorization specified in insurance agent agreements;

dd) Participate in training and knowledge updating sessions designed for insurance companies, branches of non-life insurance companies and mutuals providing microinsurance products;

e) Submit to the inspection and supervision by insurance companies, branches of non-life insurance companies or mutuals providing microinsurance products;

g) Refund insurance companies, branches of foreign non-life insurance companies or mutuals providing microinsurance products sums that they have paid as insurance indemnities or coverage to insured persons or policyholders in the event that insurance agents or staff members of entities rendering insurance agent services are in breach of insurance agent agreements, causing loss or damage to legitimate rights and interests of these insured persons or policyholders;

h) Adhere to eligibility standards for operation of insurance agents that are set by insurance companies, branches of non-life insurance companies and mutuals providing microinsurance products;

i) Protect client privacy and personal information of clients; use client’s information to serve permitted purposes; avoid providing information for any third party without client's consent, except as provided in law;

k) Take on other obligations prescribed by law.

3. Insurance agents shall be prohibited from performing the following acts:

a) Provide false information and advertisements about insurance services and scope of business of insurance companies, branches of non-life insurance companies and mutuals providing microinsurance products; insurance terms and conditions prejudicing legitimate rights and interests of policyholders;

b) Prevent policyholders from providing information related to insurance contracts or incite policyholders or insured persons not to declare information related to insurance contracts;

c) Compete for clients by precluding, enticing, bribing and threatening employees or clients of other insurance companies, branches of foreign non-life insurance companies, mutuals providing microinsurance products, insurance agents or insurance brokerage companies;

d) Incite clients to nullify insurance contracts that are in effect in any form.

4. The Minister of Finance shall elaborate on point d of clause 2 of this Article.

Article 130. Insurance agent practising certificates

1. Insurance agent practising certificates are classified into the followings:

a) Life insurance agent practising certificate;

b) Non-life insurance agent practising certificate;

c) Health insurance agent practising certificate.

2. Each training course or program that a trainee must take to graduate an insurance agent practising certificate must comprise:

a) General knowledge about insurance; principles of rendering of insurance services that vary depending on types of insurance agent practicing certificate;

b) Code of professional ethics and conduct in the insurance agent business;

c) Rights and obligations of insurance companies, branches of non-life insurance companies, mutuals providing microinsurance products and insurance agents in the insurance agent business sector;

d) Domestic law of Vietnam applicable in the insurance industry;

dd) Insurance agent skills and practising as an insurance agent.

3. The Minister of Finance shall impose detailed regulations on types of insurance agent practising certificate; content of training curriculum or program, documentation requirements, application procedures and processes for certification testing, issuance, revocation and reissuance of insurance agent practising certificates.

Section 2. INSURANCE BROKERAGE COMPANIES

Article 131. Scope of business in the insurance brokerage sector

1. Root insurance brokerage and reinsurance brokerage.

2. Provision of insurance ancillary services.

3. Other services related to insurance contracts that are rendered upon policyholders’ request.

Article 132. Business principles of insurance brokerage services

1. Honesty, objectivity, transparency; ensuring legitimate rights and interests of related parties.

2. Adherence to the rules professional ethics adopted by socio-professional organizations.

3. Insurance brokerage companies must agree in writing with clients when rendering insurance brokerage services.

Article 133. Licensing conditions of insurance brokerage companies

1. Licensing conditions of founding shareholders or members, including:

a) In order to obtain business licences or permits, entities and persons applying for these licenses or permits must have the rights of business incorporation and management in Vietnam under the Corporate Law;

b) In order to obtain business licences or permits, entities applying for these licenses or permits need to have legal personality, are operating in Vietnam, and meet financial conditions in accordance with the Government’s regulations.

2. Licensing conditions concerning capital or assets:

a) The amount of Vietnamese-dong contribution to the charter capital must not be less than the minimum required amount of charter capital under the Government’s regulations;

b) Shareholders and capital-contributing members shall not be allowed to contribute borrowed funds or funds or assets held in trust for other entities and persons for equity participation purposes.

3. Licensing conditions concerning personnel: Any nominee for a Chairperson of the Managing Board or Chairperson of the Board of Members, Director or General Director or legal representative must meet managerial competency and professional qualification requirements and credentials prescribed in Article 138 herein.

4. The applicant for such business licence and permit must choose their business type in accordance with this Law and must have the draft charter conforming to the regulations of the Corporate Law.

5. In order to be licensed or permitted to contribute capital to establish; purchase shares or ownership interest making up at least 10% of charter capital of an insurance brokerage company, the entity incorporated under foreign law must satisfy the following conditions:

a) It must be an entity established under domestic law of a foreign country that is directly involved in or has their subsidiary render insurance brokerage services during 05 consecutive years promptly before the date of submission of application for the business license or permit;

b) It must be licensed or permitted to establish their insurance brokerage company in Vietnam, and must be certified not to commit any serious violation against law on insurance brokerage of the country where their head office is located, by the competent authority of the foreign country within 03 consecutive years immediately before the date of submission of application for the business license or permit.

Article 134. Documentation requirements for application for business licenses or permits of insurance brokerage companies

1. Each set or package of application documents for a business licence or permit must be comprised of the followings:

a) Form of written request or application for the business license or permit;

b) Company’s draft charter;

c) First five years' business plan, including clear description of proposed service activities;

d) Resume, police record, duplicate copy of certificate or qualification indicating professional competency and expertise of the nominee for the Chairperson of the Managing Board or the Chairperson of the Board of Members, Director or General Director or legal representative;

dd) Rate and method of capital contribution; list of founding entities or persons or members or shareholders that intend to contribute at least 10% of the charter capital; and documents evidencing compliance with the conditions set out in Article 133 herein.

2. The Government shall impose detailed regulations on conditions, documentation requirements, procedures and processes for application for business licenses or permits of insurance brokerage companies.

Article 135. Organization and operation

Regulations on organization and operation of an insurance brokerage company, including the business type; ownership percentage of the foreign investor; time limit for issuance of the business license or permit; authority to issue, reissue, revise, modify, revoke or withdraw the business license or permit, or terminate any service or business; announcement of contents of the business license or permit; revocation or withdrawal of the business license or permit, shall be subject to the regulations laid down in Article 62, 68, 70, 71, 72 and clause 1 and 3 of Article 75 herein.

Article 136. Changes relying upon approval or notification

1. In order to make any change in the following information, insurance brokerage companies need to seek the written approval from the Ministry of Finance:

a) Corporate name or head office’s address;

b) Amount of charter capital;

c) Type, scope and period of business;

d) Assignment of shares or ownership interests that helps shareholders or members contributing capital to own at least 10% of charter capital, or cause shareholders or members contributing capital to own less than 10% of charter capital;

dd) Chairperson of the Managing Board or Chairperson of the Board of Members, Director or General Director;

e) Business split-up, split-off, merger, amalgamation and transformation into another business type; establishment of new branches, representative offices, and other types of commercial establishment in foreign countries.

2. Insurance brokerage companies need to notify the Ministry of Finance in writing within 15 days after making the following changes:

a) Company's charter;

b) Opening, termination and relocation of the branch or representative office.

3. Within 10 days of receipt of the written consent to any changes prescribed in clause 1 of this Article from the Ministry of Finance, the Ministry of Finance shall be responsible for posting updated information on the Web Portal of the Ministry of Finance.

4. The Government shall impose detailed regulations regarding application conditions, procedures, documentation requirements and processes for approving changes referred to in clause 1 of this Article, and documentation requirements, application procedures and processes for recording the changes referred to in point b of clause 2 of this Article.

Article 137. Rights and obligations of insurance brokerage companies

1. Insurance brokerage companies shall have the following rights:

a) Receive root insurance brokerage commissions, reinsurance brokerage commissions in accordance with the regulations of the Minister of Finance;

b) Gain proceeds from provision of insurance ancillary services;

c) Gain proceeds from other activities related to insurance contracts that are requested by policyholders;

d) Reserve other rights prescribed by law.

2. Insurance brokerage companies shall take on the following rights:

a) Ensure privacy and security for information provided by clients, insurance companies, reinsurance companies and foreign branches in Vietnam, except as requested by the competent regulatory authority or agreed by clients, insurance companies, reinsurance companies and foreign branches in Vietnam;

b) Pay clients compensation for any loss or damage caused during the process of rendering insurance brokerage services;

c) Disclose pieces of information authorized by the Minister of Finance to clients;

d) Separately account for and track collections or payments authorized by insurance companies, reinsurance companies or foreign branches in Vietnam;

dd) Purchase professional liability insurance plans tailored for insurance brokerage services;

e) Assume other obligations prescribed in law.

3. Insurance brokerage companies shall be prohibited from performing the following acts:

a) Prevent policyholders or insured persons from providing information related to insurance contracts or incite policyholders or insured persons not to give details about insurance contracts;

b) Do promotion in the form of promises to provide illegal benefits to incite clients to enter into insurance contracts;

c) Incite policyholders to nullify insurance contracts remaining in effect to purchase new insurance contracts;

d) Recommend clients to buy insurance bound by less competitive requirements, terms and conditions at insurance companies or branches of foreign non-life insurance companies than those at others in order to earn higher insurance brokerage commission;

dd) Provide clients with false information or information irrelevant to insurance requirements, terms and conditions imposed by insurance companies or branches of foreign non-life insurance companies.

Article 138. Personnel, capital, finance, accounting regimes and financial reporting of insurance brokerage companies

1. Chairpersons of the Managing Boards, Chairpersons of the Boards of Members, members of the Managing Boards, members of the Boards of Members, Directors or General Directors, legal representatives, Vice Directors or Deputy General Directors, Chief Accountants, heads of operations departments of insurance brokerage companies must satisfy qualification, experience and other requirements and credentials under the Government’s regulations.

2. Persons directly involved in the insurance brokerage sector must hold at least undergraduate degrees in the insurance major or insurance practicing certificates appropriate for the types of insurance or insurance brokerage practicing certificates conferred by legally-licensed domestic or foreign training institutions according to the Ministry of Finance’s regulations.

3. Insurance brokerage companies must maintain the rate or amount of their charter capital and equity that is not less than the required minimum requirement of charter capital and must carry out insurance regimes under the Government's regulations.

4. Insurance brokerage companies shall follow instructions about the fiscal year and accounting regime given in Article 103 and 104 herein and carry out annual independent audits of financial statements.

5. Insurance brokerage companies shall follow the instructions on reporting regime of the Minister of Finance with respect to the following reports:

a) Financial report;

b) Periodic operations report; irregular, information or other data report.

6. Foreign-invested insurance brokerage companies may remit or transfer earnings and property abroad as per Article 107 herein.

7. Insurance brokerage companies shall follow financial management regulations laid down in Article 108 herein.

8. Insurance brokerage companies shall post information about financial statements that have been audited and any changes relying upon the Ministry of Finance’s approval or consent as prescribed in clause 1 of Article 136 herein and the information prescribed in point a, b and e of clause 1 of Article 120 herein on their websites. Responsibilities for information disclosure shall be subject to Article 117 herein.

Article 139. Insurance brokerage practising certificates

1. Insurance brokerage training course or program shall mainly comprise:

a) General knowledge about insurance and insurance services;

b) Principles, responsibilities and code of ethics for practising as an insurance broker;

c) Domestic law of Vietnam applicable in the insurance industry;

d) Insurance brokerage skills and practising as an insurance broker.

2. The Minister of Finance shall impose detailed regulations on training program or curriculum, application requirements, procedures and processes for certification testing, issuance, revocation, withdrawal and reissuance of insurance brokerage practising certificates issued by legally-licensed domestic insurance training institutions.

Section 3. ENTITIES AND PERSONS PROVIDING INSURANCE ANCILLARY SERVICES

Article 140. Entities and persons providing insurance ancillary services

1. Insurance companies and branches of foreign non-life insurance companies can provide insurance ancillary services for insurance companies, reinsurance companies, foreign branches in Vietnam, insurance brokerage companies or mutuals providing microinsurance products.

2. Insurance brokerage companies can provide insurance ancillary services for insurance companies, reinsurance companies, foreign branches in Vietnam, insurance brokerage companies, mutuals providing microinsurance products, other entities or persons.

3. Other entities having legal personality can provide insurance ancillary services for insurance companies, reinsurance companies, foreign branches in Vietnam, insurance brokerage companies or mutuals providing microinsurance products.

4. Persons can provide consulting services for insurance companies, reinsurance companies, foreign branches in Vietnam, insurance brokerage companies or mutuals providing microinsurance products.

Article 141. Principles of provision of insurance ancillary services

1. Honesty, impartiality, transparency; protecting legitimate rights and interests of stakeholders.

2. Conforming to regulatory standards in the insurance ancillary service sector.

3. Adherence to the rules of professional ethics issued by socio-professional organizations.

4. Each contract for provision of insurance ancillary services must be made in writing.

Article 142. Responsibilities of entities and persons providing insurance ancillary services

1. Protect client’s privacy and information security; use client’s information for permissible purposes; avoid providing information for any third party without client's permission, except as provided in law.

2. Insurance brokerage companies shall not be allowed to provide loss assessment services for insurance contracts that they have arranged to conclude.

3. Entities providing insurance ancillary services can provide loss assessment services and support for payment of insurance claims against insurance contracts whereunder these entities are also policyholders, insured persons or beneficiaries.

4. Persons providing consulting services must buy professional liability insurance providing coverage and protection for provision of consulting services; entities providing insurance ancillary services must buy professional liability insurance specific to types of insurance ancillary service.

Article 143. Licensing conditions of insurance ancillary services

1. In order to be licensed to render insurance ancillary services, a person providing consulting services must meet the following conditions:

a) He/she has full civil capacity;

b) He/she holds at least an undergraduate decree on the insurance major. If not, he/she must hold at least an undergraduate degree on any other major and must complete the practicing certificate in the insurance ancillary service, including the consulting activity, issued by legally-licensed domestic or foreign training institutions.

2. In order to be licensed to render insurance ancillary services, an entity providing insurance ancillary services must meet the following conditions:

a) They must have legal personality; be legally permitted or licensed for their establishment and operation;

b) Their staff members directly involved in insurance ancillary services must have full civil capacity; must hold certificate or qualification of insurance ancillary service relevant to specific types of insurance ancillary service awarded by legally-licensed domestic or foreign training institutions;

c) Their staff members directly involved in loss assessment services must meet the conditions prescribed in point b of this clause and other credentials as assessors in accordance with law on commerce;

d) Their staff members directly involved in actuarial services must meet the conditions prescribed in point b of this clause and other credentials as actuaries.

3. The Government shall elaborate point b, c and d of clause 2 of this Article.

4. The Minister of Finance shall impose detailed regulations on types of practising certificates of insurance ancillary services, training program or curriculum, documentation requirements, application procedures and processes for certification testing, issuance, reissuance, revocation or withdrawal of practising certificates of insurance ancillary services.