Chương III Nghị định 19/2023/NĐ-CP: Biện pháp phòng, chống rửa tiền

Chapter III

MONEY LAUNDERING COUNTERMEASURES (OR AML MEASURES)

Section 1. CUSTOMER IDENTIFICATION; CRITERIA FOR IDENTIFICATION OF BENEFICIAL OWNERS; COMPLEX AND UNUSUALLY LARGE TRANSACTIONS; RECEIPT OF INFORMATION, RECORDS, DOCUMENTS, MATERIALS AND REPORTS

Article 6. Customer identification (or customer due diligence)

1. A financial institution is required to undertake customer due diligence (CDD) measures:

a) when a customer first opens an account, including a payment account, e-wallet and other account; or when a customer first establishes a relationship with the financial institution to use its products and services;

b) when a customer that does not have an account, or has an account inactive during the last six consecutive months, deposits, withdraws, or transfers money totaling at least VND 400,000,000, or a foreign-currency amount of equal or greater value a day, except for a final settlements or withdrawals of savings interest, credit card debt repayments, repayments of loans to financial institutions, instalment payments registered with financial institutions, withdrawals of profits from securities or bond investment portfolios;

c) when a customer or a customer's transaction or a transaction between the involved parties has one or more signs specified in Article 27, 28, 29, 30 and 31 of the Law on Anti-Money Laundering, or other suspicious signs identified by a reporting entity;

d) when a customer provides additional information or documents that do not match the previous information or documents, or the information and documents collected and identified by the reporting entity.

2. Entities and persons doing the business of prize-awarding games, including prize-awarding electronic games; telecommunications network-based games, Internet-based games; casinos; lottery tickets; betting are required to identify their customer when the customer performs an transaction totaling at least VND 70,000,000, or a foreign-currency amount of equal or greater value a day.

3. Entities and persons doing real estate business, except for real property leasing, subleasing, and consulting services, must identify buyers and sellers when providing real estate brokerage services; must identify real property owners when providing real estate management services.

4.  Entities and persons trading in precious metals and gems must identify their customer when the customer makes a cash transaction worth at least VND 400,000,000, or a foreign-currency amount of equal or greater value to buy or sell precious metals and gems a day.

5. Entities and persons providing legal agreement services must identify their customer when acting on behalf of the customer to perform a transaction related to establishment, administration or management of legal agreements.

6. When providing services involving establishment, management and administration of businesses, entities and persons must identify their customers that use or request services.

7. When providing services of acting as (or arranging for another person to act as) a director or secretary of a company to a third party, entities and persons must apply CDD measures to that third party and director or secretary.

Article 7. Criteria for identification of beneficial owners

1. A reporting entity shall identify the beneficial owner if the customer is a natural person in the following manner:

a) In case the customer opens an account, the reporting entity needs to identify the natural person who actually owns an account or takes control of that account;

b) In case the customer establishes a relationship with the reporting entity, the reporting entity needs to identify the natural person establishing that relationship and the fact that governs that relationship.

2. A reporting entity shall identify the beneficial owner if the customer is a legal person (or a non-person entity) in the following manner:

a) The reporting entity shall identify the natural person who, essentially, directly or indirectly holds at least 25% of the charter capital of that legal person, or the natural person who is the final holder of the right to control the customer that is a legal person;

b) In case of failing to identify the natural person as prescribed in point a of this clause, the reporting entity shall identify at least one legal representative of the legal person, except for the natural person acting as the representative of state capital invested in a legal person;

c) In case a legal person is an enterprise that has been listed on domestic and foreign stock exchanges, and has their beneficial owner’s information published, the reporting entity shall determine that beneficial owner that is a natural person.

3. Reporting entities shall identify beneficial owners of legal arrangements in accordance with point a of clause 1 of Article 22 in the Law on Anti-Money Laundering.

4. Reporting entities shall identify beneficial owners of life insurance policies that are natural persons who essentially enjoy benefits as the insured in these life insurance policies.

Article 8. Complex or unusually large transactions

1. A transaction is deemed as an unusually large transaction when it is clearly disproportionate to the income of a reporting entity's customer, or does not match the value of regular transactions between a customer and a reporting entity.

2. A transaction is deemed as a complex transaction when it does not match the scale, type and line of a customer’s business, or the frequency, method and scale of equivalent transactions in the same sector or industry.

Article 9. State agencies having jurisdiction to receive information, documents, records, or reports

Reporting entities shall be required to provide information, documents, records, or reports specified in clause 1 of Article 38 in the Law on Anti-Money Laundering promptly after receiving requests from the following competent authorities:

1. Agency performing AML functions and tasks under the State Bank of Vietnam.

2. Investigating agencies, agencies assigned to conduct a number of investigative activities, or People's Procuracies, that are on duty under decisions to bring a case or decisions to prosecute the accused; national security protection agencies under the People's Public Security that are requested to provide AML information, records, documents, or reports.

3. State inspection agencies; agencies assigned to perform the function of conducting the specialized inspection of reporting entities.

Section 2. GATHERING, HANDLING, ANALYSIS, EXCHANGE, PROVISION AND TRANSFER OF AML INFORMATION

Article 10. Gathering, handling and analysis of AML information

1. Agency performing AML functions and tasks under the State Bank of Vietnam shall be entitled to request relevant entities and persons to provide information, records, documents, or reports stored at the offices of these entities and persons according to the provisions of law, and information, records and documents received and collected by these entities and persons within the scope of their functions, tasks and powers to serve the purposes of analysis, exchange, provision and transfer of AML information.

2. Relevant entities and persons shall provide information, documents, records or materials to the agency performing AML functions and tasks under the State Bank of Vietnam by the prescribed deadlines.

3. Agency performing AML functions and tasks under the State Bank of Vietnam shall process and analyze received information and reports, including:

a) Analyzing and processing information based on available information sources, and collecting additional information to identify money laundering trends and patterns with the aim of developing AML strategies and objectives in industries, sectors and countries in a specified period of time;

b) Analyzing and processing information based on available information, and collecting additional information to trace transactions, identify connections, suspicious activities related to money laundering, or other criminal activities.

Article 11. Exchange, provision and transfer of AML information with domestic competent authorities

1. Agency performing AML functions and tasks under the State Bank of Vietnam shall exchange, provide and transfer AML information in the following cases:

a) Exchanging and providing information at the request of competent procedure-conducting agencies in accordance with the Criminal Procedure Code;

b) Exchanging and providing information to competent authorities to serve the requirements of money laundering prevention and combat, including agencies having authority to conduct procedural activities according to the provisions of the Criminal Procedure Code, and relevant ministries or central authorities involved in the prevention and combat of money laundering;

c) Transferring information or case files to investigating agencies or agencies tasked with conducting a number of investigative activities when there are reasonable grounds to suspect the transactions mentioned in relevant information and reports related to money laundering.

2. Information exchanged and provided as prescribed in point a and b of clause 1 of this Article shall include:

a) Information on transactions, entities or persons suspected of violating law for the purpose of preventing and combating money laundering;

b) Information on inadequacies in mechanisms, policies and state management activities for the purpose of money laundering prevention and combat.

3. Reasonable grounds for suspecting a transaction mentioned in information or a report that is related to money laundering as prescribed at point c of clause 1 of this Article shall be as follows:

a) The transaction is related to an entity or person on the Black List;

b) The transaction is related to an entity or person that is denounced, or in emergency detention according to the notice of a competent authority; a person recommended for prosecution, arrest, or detention; the suspect, the accused, or a person convicted in accordance with the criminal procedure law of Vietnam related to money laundering;

c) The transaction is related to an entity or person that undergoes the investigation, prosecution or trial process conducted by authorities in other countries and territories worldwide;

d) With respect to other transaction, the agency performing the anti-money laundering functions and tasks under the State Bank of Vietnam finds that it may be related to money laundering or criminal activities, based on the results of analysis of suspicious transaction information.

4. Competent authorities specified in point a and b of clause 1 of this Article shall have the duty to store and use received information, reports and documents in accordance with law, and notify the results of handling information provided or transferred according to relevant regulations to the agency performing AML functions and tasks under the State Bank of Vietnam in accordance with laws.

5. Investigating agencies and agencies assigned to conduct a number of investigative activities upon receipt of information or case files as prescribed at point c of clause 1 of this Article shall have the duty to classify and handle them according to regulations of the criminal procedure law, and treat the received information, reports and documents confidential, and respond with the results and outcome of handling information to the agency performing AML functions and tasks of under the State Bank of Vietnam.

6. Agency performing AML functions and tasks under the State Bank of Vietnam shall exchange and provide information from their database to the competent authorities or agencies prescribed in point a of clause 1 of this Article within 07 working days of receipt of the request for provision of information.

7. Agency performing AML functions and duties under the State Bank of Vietnam, and other agencies or authorities specified in this Article may sign cooperation terms and conditions to facilitate exchange, provision and transfer of information in a rapid and efficient manner.

Section 3. APPLICATION OF TRANSACTION POSTPONEMENT MEASURES

Article 12. Application of transaction postponement measures

1. Grounds for suspecting or detecting the parties involved in the Blacklisted transaction to postpone their transactions shall be defined as follows: 

a) The person or entity involved in the transaction has information that completely matches that of the person or entity on the Black List;

b) The person involved in the transaction has one of the following groups of information: first and last name, birth date (day, month, year); first and last name, year of birth, nationality; first and last name, address; name and address; name and Passport number; name and identity card number, citizen identification card number or personal identification number, matching the information of the blacklisted person and, based on the collected information, is believed to be related to terrorism, terrorist financing, proliferation and financing for proliferation of weapons of mass destruction;

c) The entity involved in the transaction has one of the following information: transaction name, establishment license number, business identification number, or tax identification number, that matches the information of the entity on the Black List and, based on the collected information, is believed to be related to terrorism, terrorist financing, proliferation, and financing for proliferation of weapons of mass destruction.

2. When applying a transaction postponement measure, the reporting entity must immediately report this to the competent state agencies as follows:

a) Reporting to the competent anti-terrorism agency, managing agency or unit in charge of prevention and control of weapons of mass destruction as there are grounds to suspect or detect parties involved in transactions on the Black List; 

b) Reporting to the criminal-judgment execution management agency under the Ministry of Public Security, or the unit assigned by the Minister of Public Security as there are grounds to believe that the transaction requested to be performed is related to criminal activities, including: the translation requested to be performed by the convict in accordance with the criminal procedure law and the property involved in the transaction that is owned by, or is derived from the ownership and control of that convict; the transaction related to the entity or person performing the act related to the crime of terrorist financing;

c) Reporting to the competent state agency that has requested the reporting entity to postpone the transaction at the request of the competent state agency in accordance with relevant laws;

d) When applying the transaction postponement measure specified in point a, b and c of this clause, the reporting entity must immediately report to the agency performing AML functions and tasks under the State Bank of Vietnam.