Nghị định 117/2018/NĐ-CP về giữ bí mật, cung cấp thông tin khách hàng của tổ chức tín dụng, chi nhánh ngân hàng nước ngoài

THE GOVERNMENT -------	THE SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No. 117/2018/ND-CP	Hanoi, September 11, 2018

 

DECREE

PROTECTION OF CONFIDENTIALITY AND PROVISION OF CLIENT INFORMATION OF CREDIT INSTITUTIONS AND FOREIGN BANKS’ BRANCHES

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Credit Institutions dated June 16, 2010;

Pursuant to the Law on amendments to some Articles of the Law on Credit Institutions dated November 20, 2017;

Pursuant to the Law on Deposit Insurance dated June 8, 2012;

At the request of the Governor of the State Bank of Vietnam;

The Government hereby promulgates a Decree on protection of confidentiality and provision of client information of credit institutions and foreign banks’ branches.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Decree provides for protection of confidentiality and provision of client information of credit institutions and foreign banks’ branches, except in the cases mentioned in Clauses 2, 3 and 4 of this Article.

2. The protection of confidentiality and provision of client information of credit institutions and foreign banks’ branches that is on the list of state secrets shall comply with regulations of the law on protection of state secrets.

3. The protection of confidentiality and provision of client information of credit institutions and foreign banks’ branches to the State Bank of Vietnam shall comply with regulations of the Law on State Bank, Law on Credit Institutions 2010 amended in 2017 and legal documents elaborating thereof.

4. The protection of confidentiality and provision of client information of credit institutions and foreign banks’ branches to organizations and individuals for the purposes of preventing and fighting against money laundering and terrorism shall comply with regulations of the law on prevention and fight against money laundering and on prevention and fight against terrorism.

Article 2. Regulated entities

This Decree applies to:

1. Credit institutions and foreign banks’ branches.

2. Clients of credit institutions and foreign banks’ branches.

3. Regulatory authorities, other organizations or individuals provided with client information by credit institutions and foreign banks’ branches.

4. Organizations and individuals related to the provision of client information of credit institutions and foreign banks’ branches.

Article 3. Definitions

For the purposes of this Decree, the terms below shall be construed as follows:

1. “client information of a credit institution or foreign bank’s branch” (hereinafter referred to as “client information”) means information provided by a client and information generated while the client requests or is provided with licensed banking operations, products and services and includes client identification information, account information, deposit information, property information, transaction information and information about organizations and individuals that are guarantors at a credit institution or foreign bank’s branch and other relevant information.

2. “client identification information” includes:

a) Regarding an individual client: full name, signature sample, electronic signature, date of birth, nationality, job, place of registered permanent residence, current residential address, registered residence address in the foreign country regarding a foreigner, phone number, email, number, date of issue and place of issue of ID card or Citizen ID card or passport (information about visa regarding the individual client who is a foreigner) of client or legal representative or authorized representative (hereinafter referred to as “legal representative”) and other relevant information;

b) Regarding the client that is an organization: trading name, abbreviated name, establishment license or decision, enterprise registration certificate or equivalent document; address of the headquarters, phone number, fax, email and information of the legal representative specified in Point a of this Clause and other relevant information.

3. “information about client’s account” means client identification information and includes account name, number and balance, information relating to payment, money transfer, money withdrawal or money receipt by a client and other relevant information.

4. “information about client’s deposit” means client identification information and information relating to deposit made by a client, balance of deposit types of a client at a credit institution or foreign bank’s branch and other relevant information.

5. “information about client’s deposited property” means information about client’s property (articles, money, financial instruments, property rights) deposited at a credit institution or foreign bank's branch, and information about client's property managed and stored by a credit institution or foreign bank's branch as prescribed by law, and includes client identification information, property name, property value, documentary evidences for the ownership or right to use of or legitimate interests from client’s property and other relevant information.

6. “information about client’s transaction” means information generated from transactions between the client and the credit institution or foreign bank's branch and includes client identification information, transaction documents, transaction time, number of transactions, transaction value, transaction balance and other relevant information.

7. “regulatory authority that has the power to request client information” (hereinafter referred to as “regulatory authority”) means an authority, unit or organization that belongs to state administration system of the Socialist Republic of Vietnam having the right to request a credit institution or foreign bank’s branch to provide client information to perform its assigned duties as prescribed by law.

8. “other organizations” are organizations that are not regulatory authorities specified in Clause 7 of this Article.

Article 4. Principles of protection of confidentiality and provision of client information

1. Client’s information of credit institutions and foreign banks’ branches shall be kept confidential and shall be only provided in accordance with regulations of the Law on Credit Institutions 2010 amended in 2017, this Decree and relevant regulations of law.

2. Credit institutions and foreign banks’ branches must not provide client’s authentication information upon access to banking services, including client’s secret key, biometric data, access password and client’s authentication information to any entity, organization or individual unless such provision is authorized in writing by that client or in any other form as agreed upon.

3. Regulatory authorities, other organizations or individuals may request credit institutions and foreign banks’ branches to provide client information for right purposes, within the scope and power only if required by laws or accepted by clients and must be responsible for that request.

4. Regulatory authorities, other organizations or individuals must protect confidentiality of client information and use client information to serve the predetermined purposes upon request and must not provide such information to the third party without the client's consent unless otherwise prescribed by law.

5. Organizations and individuals must, according to regulations of law on storage and preservation of documents, store and preserve client information, applications for provision of client information, delivery and receipt of client information.

Article 5. Internal regulation on protection of confidentiality, storage and provision of client information

1. Credit institutions and foreign bank’s branches shall, according to regulations of law and this Decree, promulgate internal regulation on protection of confidentiality, storage and provision of client information and uniformly organize the implementation thereof.

2. Internal regulation on protection of confidentiality, storage and provision of client information shall contain at least:

a) Procedures for receiving, processing and providing client information; procedures for storing and protecting confidentiality of client information;

b) Supervision and inspection of implementation of internal regulation on protection of confidentiality, storage and provision of client information and impose penalties for violations thereof;

c) Delegation of power and obligations of units and individuals upon protection of confidentiality, storage and provision of client information.

Chapter II

SPECIFIC PROVISIONS

Section 1. PROTECTION OF CONFIDENTIALITY AND PROVISION OF CLIENT INFORMATION TO REGULATORY AUTHORITIES

Article 6. Methods for requesting and providing client information

1. Methods for requesting and providing client information:

a) Indirect method: client information is requested or provided through post service providers or electronic means, telecommunications network and computer network system.

The request for and provision of client information through electronic means, telecommunications network and computer network system shall adhere to regulations of law on electronic transaction, guidelines from credit institutions and foreign banks' branches and technical requirements laid down by parties;

b) Direct method: client information is requested or provided at the credit institutions and foreign banks’ branches and through representatives of parties.

2. Delivery and receipt of client information:

a) Regarding the request for and provision of client information through a post service provider: the parcel containing client information shall be sent by registered mail and the delivery and receipt of parcel included in the records of delivery and receipt of parcel containing client information between the credit institution/foreign bank’s branch and the post service provider.

b) The request for and provision of client information through electronic means, telecommunications network and computer network system: the transmission, receipt, provision and storage of client information shall ensure information security and comply with procedures according to regulations of law on electronic transaction, cyberinformation security and guidelines from credit institutions and foreign banks' branches;

c) Regarding direct method: the delivery and receipt of client information shall be made into a record bearing the seal and signature of the competent person delegated by the credit institution or foreign bank's branch and signature of the representative receiving client information.

Article 7. Time limit for providing client information

1. In case the time limit for providing client information for regulatory authorities is specified by a relevant law, the time limit for providing client information is the one specified by such relevant law from the date on which the satisfactory application for provision of client information prescribed in Article 9 of this Decree is received.

2. In case the time limit for providing client information for regulatory authorities is not specified by a relevant law, the time limit for providing client information shall adhere to the agreement between the credit institution/foreign bank's branch and the regulatory authority or internal regulation of the credit institution/foreign bank's branch, but not exceeding:

a) 10 working days from the receipt of the satisfactory application for provision of client information in accordance with regulations of this Decree in case client information is simple and available;

b) 25 working days from the receipt of the satisfactory application for provision of client information in accordance with regulations of this Decree in case client information is complex and unavailable.

Article 8. Procedures for providing client information

1. The regulatory authority that wishes to obtain client information shall submit an application for provision of client information to the credit institution/foreign bank's branch as prescribed in this Decree.

2. Upon receipt of the application for provision of client information, the credit institution/foreign bank's branch shall follow the instructions below:

a) If the application for provision of client information is satisfactory as prescribed in this Decree, the credit institution/foreign bank's branch shall collect and provide client information for the regulatory authority according to the application and time limit specified in Article 7 of this Decree.

If information is provided directly to the representative of the regulatory authority, the credit institution/foreign bank's branch shall request the representative to present his/her ID card or Citizen ID card or passport for comparison with that specified in the application form for provision of client information before the delivery and receipt of client information;

b) If the application for provision of client information is unsatisfactory as prescribed in this Decree, within 03 working days from the receipt of the application for provision of client information, the credit institution/foreign bank's branch shall request the regulatory authority or representative to complete it as prescribed in this Decree.

3. In the case of refusal to provide client information as prescribed in Point b Clause 1 Article 14 of this Decree or delay in providing client information due to a force majeure event, the credit institution/foreign bank's branch shall, within 05 working days from the receipt of the application for provision of client information, send the regulatory authority a notification specifying reason for the refusal or delay.

Article 9. Application for provision of client information

An application for provision of client information shall be composed of:

1. An application form for provision of client information which is signed by the competent individual specified in Article 10 of this Decree and contains the following contents:

a) Legal grounds for the power to request client information;

b) Reason for and purpose of providing client information, specifying the relation between the client and the purpose of providing client information.

c) Content and scope of client information, time limit for provision;

d) Methods for requesting or providing client information; forms of the application form for provision of client information (copy, physical copy, electronic copy and other forms prescribed by law);

dd) Full name; ID card or Citizen ID card or passport number; address and phone number of the representative receiving client information if information is provided using the method specified in Point b Clause 1 Article 6 of this Decree;

e) Other contents (if any).

2. Documents issued by a competent authority in accordance with relevant regulations or law to prove reason for and purpose of providing client information (inspection decision, audit decision, decision on pressing charges, judgment, judgment enforcement decision, prosecution decision, enforcement decision, decision on imposing penalties for violations or equivalent document).

3. The documents specified in Clause 2 of this Article do not apply to the request for provision of client information made by the regulatory authority for the purposes of collecting information, documents and evidences for handling of crime reports and petitions for prosecution; protecting national security; preventing and fighting against violations of law within its jurisdiction.

Article 10. The power to sign application form for provision of client information

The application form for provision of client information must be signed by:

1. Inspector-General or Deputy Inspector-General; Chief Inspector of Ministry or Deputy Chief Inspectors of Ministry; Chief Inspectors of provinces or Deputy Chief Inspectors of provinces; Chief Inspectors of Departments or Deputy Chief Inspectors of Departments; Chief Inspectors of districts or Deputy Chief Inspectors of districts, heads or deputy heads of agencies assigned to carry out specialized inspection, heads of inspectorates; members of inspectorates prescribed by the law on inspection.

2. State Auditor General or Deputy State Auditor General, chief auditors of specialized state audit units or local state audit units, chiefs of audit delegations, leaders of auditor teams, members of the audit delegation that are state auditors prescribed by the law on State Audit Office of Vietnam.

3. Chief Procurators or Deputy Chief Procurators, procurators of People’s Procuracies at all levels, military procuracies at all levels prescribed by the laws on People’s Procuracies.

4. Chief Justices, Deputy Chief Justices, judges and examiners of Supreme People’s Courts, Superior People’s Courts, People’s Courts of provinces and central-affiliated cities, People’s Courts of districts and equivalent, Central Military Court, military courts of military zones and the equivalent, regional military courts prescribed by the laws on courts.

5. Chiefs, deputies and investigators of investigating authorities within the system of investigating authorities; chief and deputies of investigating authorities assigned to investigate as prescribed by the laws on investigating authorities.

6. Chiefs or deputies of professional agencies in the People’s Public Security force and the People’s Army within the power prescribed by the laws on People’s Public Security Forces and People’s Army.

7. Heads or deputy heads of judgment enforcement authorities, bailiffs that are enforcing judgments as prescribed by the law on judgment enforcement.

8. General Director or Deputy General Directors of the General Department of Customs; Director or Deputy Directors of Anti-smuggling and Investigation Department; Director or Deputy Directors of Post Clearance Audit Department; Directors or Deputy Directors of Departments of Customs of provinces, inter-provinces and cities; Directors or Deputy Directors of Sub-departments of Customs; Directors or Deputy Directors of Post Clearance Audit Sub-departments prescribed by the laws on customs.

9. General Director or Deputy General Directors of the General Department of Taxation; Director or Deputy Directors of Departments of Inspection of General Department of Taxation; Director or Deputy Directors of Taxation Departments; Directors or Deputy Directors of Taxation Sub-departments prescribed by the laws on tax administration.

10. Other individuals of regulatory authorities prescribed by a relevant law having the power to sign regulatory authorities’ application form for provision of client information submitted to credit institutions and foreign banks’ branches.

Section 2. PROTECTION OF CONFIDENTIALITY AND PROVISION OF CLIENT INFORMATION TO OTHER ORGANIZATIONS AND INDIVIDUALS

Article 11. Cases in which it is eligible to provide client information

1. A credit institution or foreign bank’s branch shall only provide client information to other organizations or individuals in one of the following cases:

a) Other organizations or individuals having the right to request the credit institution or foreign bank’s branch to provide client information are specified in codes, laws and resolutions of the National Assembly.

b) The client’s consent granted in writing or other forms under the agreement with the client is available.

2. The credit institution or foreign bank’s branch shall provide client information for the client or the legal representative of that client.

Article 12. Protection of confidentiality and provision of client information

1. Methods for requesting or providing client information, time limit for providing client information and procedures for providing client information of credit institutions and foreign banks’ branches for other organizations or individuals as specified in Point a Article 11 of this Decree shall comply with regulations of codes, laws and resolutions of the National Assembly and legal documents elaborating such codes, laws and resolutions.

2. In the cases where methods for requesting or providing client information, time limit for providing client information and procedures for providing client information of credit institutions and foreign banks’ branches for other organizations or individuals as specified in Point a Article 11 of this Decree are not specified by codes, laws and resolutions of the National Assembly and legal documents elaborating such codes, laws and resolutions, follow the instructions below:

a) Methods for requesting or providing client information, time limit for providing client information and procedures for providing client information shall comply with Article 6, Clause 2 Article 7, and Article 8 of this Decree;

b) Application for provision of client information shall comply with internal regulations of credit institutions and foreign banks' branches;

c) Methods for requesting and providing, time limit, procedures and application for provision of information about client’s insured deposit for deposit insurance corporations shall adhere to regulations of the Law on Deposit Insurance, this Decree and guidelines from deposit insurance corporations.

3. Methods for requesting or providing client information, time limit for providing client information and procedures and application for provision of client information of credit institutions and foreign banks’ branches for organizations or individuals as specified in Point b Clauses 1 and 2 Article 11 of this Decree shall adhere to the agreement with the client and internal regulations of credit institutions and foreign banks’ branches.

Section 3. RIGHTS, OBLIGATIONS AND RESPONSIBILITIES OF CLIENTS, ORGANIZATIONS AND INDIVIDUALS FOR PROTECTION OF CONFIDENTIALITY AND PROVISION OF CLIENT INFORMATION

Article 13. Rights and obligations of clients

1. A client has the right to:

a) Request credit institutions and foreign banks' branches to provide his/her information under the agreement between parties and in accordance with regulations of law;

b) File complaints or petitions or request compensation for any damage he/she suffers as prescribed by law in the cases where the regulatory authority, another organization, individual, credit institution or foreign bank’s branch provides or uses client information against the law.

2. Every client has the obligation to adhere to regulations of this Decree and guidelines from credit institutions and foreign banks' branches regarding provision of client information.

Article 14. Rights and responsibilities of credit institutions and foreign banks’ branches

1. A credit institutions or foreign bank’s branch has the right to:

a) Request regulatory authorities, other organizations or individuals to complete applications for provision of client information as prescribed in this Decree;

b) Refuse to provide client information to regulatory authorities, other organizations or individuals if the application for provision of client information fails to comply with regulations of law and this Decree or the application is duplicated or the requested information is not being stored by credit institutions and foreign banks’ branches.

2. A credit institutions or foreign bank’s branch has the responsibility to:

a) Provide client information in a truthful, sufficient and promptly manner and within the scope of the application form for provision of client information;

b) Ensure security and confidentiality of client information during the provision, management, use and storage thereof;

c) Settle clients’ complaints about provision of information as prescribed by law;

d) Organize the supervision and inspection of implementation of internal regulations on protection of confidentiality, storage and provision of client information and impose penalties for violations thereof;

dd) Take legal responsibility for violation of regulations of this Decree and relevant regulations of law.

Article 15. Rights and responsibilities of regulatory authorities, other organizations or individuals

1. Regulatory authorities, other organizations or individuals may request client information of credit institutions and foreign banks’ branches in accordance with regulations of this Decree and relevant regulations of law.

2. Regulatory authorities, other organizations or individuals shall take legal responsibility for revealing client information and using client information for the wrong purpose in accordance with regulations of law and this Decree.

Chapter III

IMPLEMENTATION CLAUSE

Article 16. Transition clause

Regarding the client information request that is made before the effective date of this Decree, credit institutions and foreign banks' branches shall provide client information in accordance with regulations of law at the time of requesting information.

Article 17. Effect

1. This Decree comes into force from November 01, 2018.

2. This Decree replaces the Government’s Decree No. 70/2000/ND-CP dated November 21, 2000.

Article 18. Implementation organization

Ministers, heads of ministerial agencies, heads of Governmental agencies, Presidents of People’s Committees of provinces and central-affiliated cities, credit institutions, foreign banks’ branches and relevant organizations and individuals are responsible for the implementation of this Decree./.

 

ON BEHALF OF THE GOVERNMENT THE PRIME MINISTER Nguyen Xuan Phuc