Nghị định 17/2012/NĐ-CP hướng dẫn Luật kiểm toán độc lập

DECREE

DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON INDEPENDENT AUDIT

Pursuant to the Law on the organization of the Government of December 25, 2011;

Pursuant to the Law on independent audit of March 29, 2011;

At the proposal of the Minister of Finance;

The Government promulgates this Decree detailing and guiding the implementation of a number of articles of the Law on independent audit,

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details and guides the implementation of a number of articles of the Law on independent audit on audit professional organizations; audit firms; providing audit services across the border; audited entities; audit reports and archiving, use and destruction of audit dossiers.

Article 2. Subjects of application

This Decree is applicable to auditors, practicing auditors, audit firms, branches of foreign audit firms, foreign audit firms providing audit service across border in Vietnam, audited entities, audit professional organizations and other organizations and individuals related to activities of independent audit.

Article 3. Interpretation of terms

In this Decree, the following terms shall be defined as follows:

1. Audit firms in Vietnam: means a firm which is established and operating under provisions of Vietnamese law, fully meeting conditions of audit service business as stipulated and is granted the Certificate of satisfaction of auditing business conditions by the Ministry of Finance.

2. Person in charge of management and administration: includes owner, director of private enterprises, member of partnership, chairman of the Members’ Council, president of the company, chairman of the Management Board, member of the Management Board, member of Members’ Council, director or general director, vice director or vice general director; branch director, branch vice director of audit firms and other managerial positions stipulated in the charter or equivalent documents of enterprises and organizations.

3. Providing of auditing service across the border: means providing of auditing service by audit firms in one country for enterprises and organizations in another country.

Chapter 2.

SPECIFIC PROVISIONS

ITEM 1. AUDIT PROFESSIONAL ORGANIZATIONS

Article 4. Audit professional organizations

1. Audit professional organizations are socio-professional organizations of auditors, practicing auditors and audit firms in the whole country.

2. Audit professional organizations are entitled to:

a) To foster knowledge for auditors and practicing auditors;

b) To research, draft, update the system of Vietnamese auditing standards on basic of the standard system of international auditing in compliance with the process of building up, promulgating and publishing the Vietnamese audit standards, to submit to the Minister of Finance for issuance;

c) To participate in operation examinations for auditors;

d) To coordinate with the Ministry of Finance for examination and control in auditing service quality.

3. The Ministry of Finance stipulates in detail the conditions, modes, regime of reporting and supervision, examination and inspection in activities of audit professional organizations as stipulated in Clause 2 of this Article.

ITEM 2. AUDIT FIRMS

Article 5. Legal capital for the Limited Liability Company

1. Legal capital for the Limited liability company shall be 3 (three) billion Vietnamese dong; as from January 01, 2015, the legal capital shall be 5 (five) billion Vietnamese dong.

2. During its operation, the limited liability company must keep the equity in balance sheet not less than the legal capital as stipulated in Clause 1 of this Article. The audit firm must supplement its capital if the equity in balance sheet is less than the legal capital as stipulated in Clause 1 of this Article in the period of 03 (three) months as from the end date of the fiscal year.

Article 6. The member of limited liability company with two or more members in case such member is an organization

1. The member being an organization are entitled to contribute at maximum 35% of the charter capital of the audit limit liability company with two or more members. In case there are many organizations contributing in capital, the total capital contributed by these organizations shall be at maximum 35% of the charter capital of the limited liability company with two or more members.

2. The member being an organization shall appoint one person as its representative in the Members’ Council. The representative of member being an organization must be an auditor and register for auditing practice in the audit firm to which the organization contributes its capital.

3. A practicing auditor who is representative of member being an organization shall not permitted to contribute capital to such audit firm with individual status.

Article 7. The level of capital contribution of a practicing auditor

1. The auditing limited liability company must have at least 02 (two) limited partners who are auditors having registered for their auditing practice in the company. Capital contributed by practicing auditors must account for over 50% of the company’s charter capital.

2. The practicing auditor shall not permited to be the member of two or more audit firms at the same time.

Article 8. The minimum capital for foreign audit firms establishing branches in Vietnam and the allocated capital of branches of foreign audit firms in Vietnam.

1. The foreign audit firm which requesting for granting of the Certificate of satisfaction of auditing business conditions to its branches in Vietnam must have the equity in balance sheet being at least equal to 500,000 (five hundred thousand) US dollars at the time point of ending the fiscal year nearest time point of requesting.

2. Allocated capital of the branch of foreign audit firms in Vietnam must not be less than the legal capital applicable to the limited liability company stated in Article 5 of this Decree.

3. During its operation, the foreign audit firm must keep the equity in the balance sheet and the allocated capital of its branch in Vietnam not less than the capital stipulated in Clause 1 of this Article. The foreign audit firm, branches of the foreign audit firm must supplement their capital if their equity in balance sheet is lower than the capital levels stipulated in Clause 1 and Clause 2 of this Article in the period of 03 (three) month as from the end date of the fiscal year.

Article 9. Cases where the audit firms and branches of foreign audit firms in Vietnam are not entitled to audit

Cases where audit firms and branches of foreign audit firms in Vietnam are not entitled to perform audit as stipulated in Article 30 of the Law on independent audit shall be guided in detail as follows:

1. Audit firms, branches of foreign audit firms in Vietnam who are performing or performed in the preceding year one of the following services for audited entities:

a) Recording in Accounting Book, making financial statements;

b) Performance of internal audit service;

c) Designing and implementation procedures of internal control;

d) Other services which affect the independence of practicing auditors and audit firms, branches of foreign audit firms in Vietnam in accordance with provisions of professional ethics standards of accounting and auditing.

2. Members participating in the audit, persons in charge of management and administration, members of the Control Board, chief accountants (or person in charge of accounting) of the audit firms and branches of the foreign audit firms in Vietnam are members, founding shareholders or holding shares, contributing capital into the audited entities or having other economic, financial relations with the audited entities in accordance with provisions of professional ethical standards of accounting and auditing.

3. Persons in charge of management and administration, members of the Control Board, chief accountants (or person in charge of accounting) of the audit firm, branches of the foreign audit firm in Vietnam have parents, spouse, children, siblings being members, founding shareholders or holding shares, contributing capital and holding from 20% or more of voting rights of the audited entity or being persons in charge of management, administration, members of the Control Board, inspectors, chief accounts (or person in charge of accounting) in the audited unit.

4. Persons in charge of management, administration, members of the Control Board, inspectors, chief accounts (or person in charge of accounting) of the audited entity are also persons who contribute capital and hold from 20% or more of voting rights toward the audit firms, branches of the foreign audit firms in Vietnam.

5. The audit firms, branches of the foreign audit firms in Vietnam and audited entities have the following relationships:

a) Having the same an individual or enterprise, organization, who are founding members or involve in the foundation;

b) Together being directly or indirectly administered, controlled, contributed capital in all forms by a third party;

c) Being administered or controlled personnel, finance and business activities by by the individuals belong to the following relationships: husband and wife, parents and children (regardless of natural or adopted children, daughter-in-law or son-in-law); brothers and sisters of the same father and mother (regardless of natural or adoptive father or mother); paternal grandparents and grandchildren; maternal grandparents and grandchildren; natural uncle, aunt and nephew or niece;

d) Having contractual business cooperation agreement;

e) Being companies or legal entities in the same network in accordance with provisions of auditing standards.

6. The audited entity performed in the preceding year or is performing audit of financial statements or other auditing services for the audit firms, branches of the foreign audit firms in Vietnam.

7. The audited entity is organization contributing capital to the audit firm; the audited entity is the parent company, subsidiary company, associated company, joint venture company, superior unit, subordinate unit, company in the same conglomerate of organization contributing capital to the audit firm.

8. The audit firm directly or indirectly participates in management, control and capital contribution in all forms into the audited entity.

9. Other cases in accordance with provisions of professional ethics standards of accounting and auditing and provisions of law.

ITEM 3. PROVIDING AUDITING SERVICE ACROSS BORDER OF FOREIGN AUDIT FIRMS

Article 10. Subjects of providing the auditing service across border

Subjects of providing the auditing service across border for enterprises and organizations in Vietnam are audit firms having nationality of nation being member of the Word Trade Organization or nation having entered into a treaty with Vietnam on providing the auditing service across border.

Article 11. Conditions of providing the auditing service across border

1. The foreign audit firm fully meeting the following conditions shall be registered of providing the auditing service across border:

a) Being entitled to provide independent auditing service in accordance with the law of the country where the head office of the foreign audit firm is located;

b) Obtaining the written document from the auditing practice management agency (the state management agency on independent auditing or a professional organization) in the place where the head office of the foreign audit firm is located to permit providing the auditing service across border in Vietnam and verifying it not violating of independent auditing provisions and other provisions of law of the foreign country in 3 consecutive years preceeding the year of application for license of providing the auditing service across border.

c) Having at least 5 (five) auditors who have obtained certificates of auditing practice from the Ministry of Finance, including the legal representative;

d) Having the equity in balance sheet equivalent to 500,000 (five hundred thousand) US dollars in the end of the fiscal year preceding the year when the audit firm provides auditing service across border in Vietnam;

dd) Having bought professional indemnity insurance for auditors practicing in Vietnam;

e). Having a compulsory deposit equal to the legal capital as stipulated in clause 1, article 5 of this Decree in a commercial bank legally operating in Vietnam and having a letter of guarantee from this bank in which the bank undertakes to settle the payment in cases where liabilities incurred from contracts of providing auditing service across border in Vietnam exceed the amount of compulsory deposit;

g) Fully performing reporting and other obligations as stipulated in Article 13 of this Decree.

2. The foreign audit firm is only entitled to provide auditing services across border in Vietnam after having done its registration and obtained the certificate of satisfaction of business conditions of auditing service across border in Vietnam. The mode of providing auditing service across border must implement in according to provisions in Article 12 of this Decree.

3. The audit firm must maintain conditions stipulated in Clause 1 of this Article during the limit time of Certificate of satisfaction of business conditions of auditing service across border in Vietnam. In case one of these conditions is not fulfilled, the foreign audit firm is responsible for reporting to the Ministry of Finance during a period of 20 days since the day of not-satisfying fully conditions as prescribed.

Article 12. Mode of providing auditing service across border

1. The foreign audit firm when provides auditing service across border in Vietnam must establish a partnership with a Vietnamese audit firm who is eligible to provide auditing service in accordance with provisions of law.

2. Only audit firms who satisfy all conditions for auditing business as stipulated in Article 21 of the Law on independent auditing and in this Decree, having obtained the Certificate of satisfaction of auditing business conditions, may be allowed to joint venture with the foreign audit firms to provide auditing service across border.

3. The foreign audit firm, Vietnamese audit firms who establish partnerships with foreign audit firms to provide auditing service across border and the audited entity must enter into an auditing contract in accordance with the law of Vietnam. The auditing contract must be fully signed by legal representatives of the foreign audit firm, Vietnamese audit firm and the audited entity.

4. The foreign audit firm and the Vietnamese audit firm must enter in a partnership contract on providing auditing service across border. The partnership contract must define clearly responsibilities of the foreign audit firm and the Vietnamese audit firm in providing auditing service across border.

5. The foreign audit firm and the Vietnamese audit firm which entering in an auditing partnership contract must appoint a practicing auditor to undertake the auditing work parts that belongs to the responsibility of each firm stated in the auditing contract.

6. The auditing report must be signed by legal representative of the foreign audit firm, the Vietnamese audit firm and practicing auditors who undertake the auditing work parts that belongs to the responsibility of each firm stated in the auditing contract.

7. The auditing contract, the partnership contract, auditing dossiers and auditing reports must be made in both Vietnamese and English.

8. All payment and transfer transactions related to providing auditing service across border must be carried out in bank transfer way via a licensed credit institution in compliance with Vietnamese regulations on foreign exchange control.

Article 13. Responsibilities of foreign audit firms in providing of auditing service across border

1. Arranging personnel with appropriate professional qualifications to ensure quality of auditing service. Complying with provisions on strictly prohibited acts, cases restricted performance of auditing service applicable to practicing auditors and audit firms and other relative provisions stated in Vietnamese Law on independent audit.

2. Complying with Vietnamese auditing standards upon carryng out providing auditing service across border in Vietnam.

3. Paying taxes and conducting other financial obligations related to providing auditing service across border in accordance with the current law on tax of Vietnam.

4. Report to the Ministry of Finance, every 6 months, on implementation situation of the contract of providing auditing service across border arising in the report period in Vietnam. The report form shall be provided by the Ministry of Finance.

5. Appoint a responsible person on behalf of the reporting firm to explain to Vietnamese functional agencies of auditing contracts, auditing dossiers, auditing reports and other issues related to providing of auditing service across border in Vietnam.

6. Submit the annual financial report to the Ministry of Finance which has been audited and attached audit report of an independent auditing organization and a written comment of the auditing practice management agency in the place where the head office of the firm is located on the firm’s implementation situation of provisions of law on auditing activities and other provisions of law in time limit of 120 days as from the ending date of the fiscal year.

7. Perform rights and obligations of the audit firm stipulated in Article 28 and Article 29 and comply with other provisions related to provisions of Vietnamese law on independent auditing.

Article 14. Responsibilities of Vietnam audit firms who are partnership of foreign audit firms in providing auditing service across border

1. Archiving all auditing documents in the audit which the partnership has performed in order to provide for functional agencies upon being requested.

2. Taking responsibility before law for the audit result. To take responsibility for explanation of auditing reports, auditing dossiers and other arising issues of the audit which having done by a partnership with foreign audit firm to functional agencies.

3. Report to the Ministry of Finance, every 6 months, on implementation situation of the partnership with the foreign auditing firm in providing auditing service across border arising in the report period. The report form shall be provided by the Ministry of Finance.

4. Being subject to the annual auditing quality control as stipulated by the Ministry of Finance.

ITEM 4. AUDITTED ENTITIES

Article 15. Audited entities

1. Enterprises and organizations whose annual financial statements, as prescribed by law, must be audited by the audit firm, branches of the foreign audit firm in Vietnam, include:

a) Enterprises with foreign owned capital;

b) Credit institutions which are established and operating under the Law on credit institutions, including branches of foreign banks in Vietnam;

c) Financial organizations, insurance companies, reinsurance companies, insurance brokerage companies, branches of foreign non life insurance companies.

d) Public companies, securities issuing organizations and securities trading organizations.

2. Other enterprises and organizations are subjects of compulsory auditing under relevant provisions of law.

3. Enterprises and organizations subject to audit by the audit firm and branches of foreign audit firms including:

a) State enterprises, except those operating in the field of state secrets as prescribed by law, must be audited for the annual financial statements;

b) Enterprises, organizations implementing the national important projects, group-A projects using state funds, except for the projects in the field of state secrets as prescribed by law, must be audited for the settlement report of project completion;

c) Enterprises and organizations with 20% or more of the voting rights held by state groups, state corporations in the end of the fiscal year must be audited for annual financial statements;

d) Enterprises with 20% or more of the voting rights held by securities listing, issuing and trading organizations at the end of the fiscal year must be audited for annual financial statements;

e) The audit firm, branches of foreign audit firms in Vietnam must be audited for annual financial statements.

4. Enterprises and organizations subject to the audit of annual financial statements as stipulated in Clause 1 and Clause 2 of this Article, if as prescribed by law, must make the consolidated or comprehensive financial statements must implement audit for consolidated or general financial statements.

5. The audit of financial statements and settlement reports of project completion applicable to enterprises and organizations as stipulated in point a and b Clause 2 of this Article shall not substitute the audit by State Audit.

6. Other enterprises and organizations which are voluntary to be audited.

ITEM 5. AUDIT REPORTS

Article 16. Audit reports

1. The audit report on financial statements and the audit report on other audited works applicable to the subjects of compulsory audit under law shall be made in accordance with Vietnamese auditing standards.

2. Practicing auditors are not allowed to sign audit reports for an audited entity for more than three (3) consecutive years.

Article 17. Explanations of exclusion contents in the audit report

1. The competent state management agencies in each relevant field is entitled to request the audit firms, branches of the foreign audit firms in Vietnam, the foreign audit firms who provides auditing service across border and the audited entities to explain directly or in writing for exclusion contents in the audit report.

2. The President, Management Board, Members’ Council of audited entities are entitled to request the audit firm, branches of the audit firm in Vietnam, foreign audit firms who provide auditing service through border gate to explain directly or in writing exclusion contents in the audit report.

3. As having request of subjects stipulated in Clause 1 and Clause 2 of this Article, the audit firms, branches of the foreign audit firms in Vietnam and the foreign audit firms who provide audit service across border are responsible for explaining directly or in writing.

ITEM 6. ARCHIVE, USE AND DESTRUCTION OF AUDIT DOSSIERS

Article 18. Archiving of audit dossiers

1. The audit firms, branches of the foreign audit firms in Vietnam must design and implement policies and procedures to maintain confidentiality, safety, entirety, accessibility and recoverability of audit dossiers in accordance with provisions on accounting standards.

2. Audit dossiers may be archived in form of papers or electronic data.

3. The audit firms, branches of the foreign audit firms in Vietnam must design and implement policies and procedures on archiving of audit dossiers in the time limit of at least 10 years as from the date of issuance of audit reports in accordance with provisions on accounting standards.

Article 19. Exploitation and use of audit dossiers

Exploitation and usage of audit dossiers are only allowed in the following cases:

1. According to decision of the competent person of the audit firm, branch of the foreign audit firm in Vietnam on the base of ensure confidentiality obligations as stipulated in Article 43 of the Law on independent audit.

2. As requested by the People’s Court, People’s Procuracy, investigation agencies, inspection agencies, the State Audit, the Ministry of Finance and other agencies and organizations in accordance with provisions of law.

3. As having request inspection of audit quality; settlement of disputes, conflicts arising from audit activities and other requests in accordance with provisions of law.

Article 20. Destruction of audit dossiers

1. Audit dossiers which have gone beyond the archiving time limit, and if there is no otherwise decision by the competent state agencies shall be destroyed according to decision of the legal representative of the audit firm or branch directors of the foreign audit firm in Vietnam.

2. Each audit firm, branch of the foreign audit firm have to destruct its own audit dossiers.

3. Audit dossiers archived in the form of papers shall be destroyed by burning, cutting or shredding by machine or other ways, however, must ensure that information and data contained in destroyed audit dossiers can not be put in use again

4. Audit dossiers archived in the form of electronic date shall be destroyed in compliance with relevant laws.

5. Procedure for destroying audit documents:

a) The legal representative of the audit firm and branch director of the foreign audit firm in Vietnam shall decide on founding “the Council for Destruction of Expired Audit Dossiers”. The Council includes: the head of the audit firm or branch director of the foreign audit firm in Vietnam, representatives of the archive department and representatives of specialized departments;

b) The Council for Destruction of Expired Audit Dossiers shall carry out inventory, assessment and classification for each type of audit dossiers, set up a List of destroyed audit dossiers” and “Minute of destruction of expired audit dossiers”;

c) “The minute of destruction of expired audit dossiers” must be set up right after destruction of audit dossiers and must clearly define the following contents: types of destructed audit dossiers, conclusion and signatures of members of the Destruction Council.

Article 21. Archiving, exploitation and use of electronic audit dossiers and the documents and dossiers, documents of other services

1. Audit dossiers being archived in electronic data are cassettes and discs …must be arranged by time order and preserved with fully technical conditions to oppose the degeneration of electronic documents and oppose situation of the illegal information access from outside.

2. In cases where the audit dossiers are archived in electronic data in special equipments, information reading equipments must be stored suitablelly to ensure exploitation well when necessary.

3. Archiving, exploitation, use and destruction of audit dossiers in electronic data shall implement in accordance with provisions in Article 18, 19 and 20 of this Decree.

4. Elaboration, preservation, archiving, destruction and exploitation, use of documents and dossiers on other services as stipulated in Point b Clause 1 Article 40 of the Law on independent audit shall be made similar to audit dossiers defined in Article 18, 19, 20 and Clause 1, Clause 2 Article 21 of this Decree.

Chapter 3.

ORGANIZATION OF IMPLEMENTATION

Article 22. Transitional provisions

In the time limit of 02 (two) years, as from the effective date of the Law on independent audit, the audit firm providing audit service prior to the effective date of the Law on independent audit shall meet the conditions as prescribed in the Law on independent audit and in this Decree to be granted the Certificate of satisfaction of auditing business conditions.

Before 30 days as from the expiry date of the two-year transitional time limit, the audit firm must submit its application dossier to the Ministry of Finance for issuance of the Certificate of satisfaction of auditing business conditions as prescribed by the Law on independent audit and guiding documents.

Article 23. Effect of implementation

This Decree shall take effect as from May 01, 2012.

Article 24. Responsibility for implementation

Minister of Finance is responsible for guiding the implementation of this Decree; Ministers, heads of ministry-level agencies, heads of governmental agencies, presidents of the provincial/municipal People’s Committee shall implement this Decree./.