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THE GOVERNMENT OF VIETNAM
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No.: 23/2023/ND-CP
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Hanoi, May 12, 2023
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DECREE
AMENDMENTS TO GOVERNMENT’S DECREE NO. 89/2016/ND-CP DATED JULY 01, 2016 ON ELIGIBILITY REQUIREMENTS TO BE SATISFIED BY BUSINESS ENTITIES FOR ACTING AS FOREIGN EXCHANGE AGENTS OR PROVIDING FOREIGN CURRENCY RECEIPT AND PAYMENT SERVICES, AND GOVERNMENT’S DECREE NO. 88/2019/ND-CP DATED NOVEMBER 14, 2019 ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN MONETARY AND BANKING SECTOR
Pursuant to the Law on Government Organization dated June 19, 2015; the Law on Amendments to the Law on Government Organization and the Law on Local Government Organization dated November 22, 2019;
Pursuant to the Law on the State Bank of Vietnam dated June 16, 2010;
Pursuant to the Law on Credit Institutions dated June 16, 2010 and the Law providing amendments to the Law on Credit Institutions dated November 20, 2017;
Pursuant to the Law on Penalties for Administrative Violations dated June 20, 2012; the Law on amendments to the Law on Penalties for Administrative Violations dated November 13, 2020;
Pursuant to the Law on Investment dated June 17, 2020;
Pursuant to the Law on Enterprises dated June 17, 2020;
Pursuant to the Ordinance on Foreign Exchange dated December 13, 2005; the Ordinance on amendments to the Ordinance on Foreign Exchange dated March 18, 2013;
At the request of the Governor of the State Bank of Vietnam (SBV);
The Government promulgates a Decree providing amendments to the Government’s Decree No. 89/2016/ND-CP dated July 01, 2016 on eligibility requirements to be satisfied by business entities for acting as foreign exchange agents or providing foreign currency receipt and payment services, and Government’s Decree No. 88/2019/ND-CP dated November 14, 2019 on penalties for administrative violations in monetary and banking sector.
Article 1. Amendments to Government’s Decree No. 89/2016/ND-CP dated July 01, 2016
1. Article 1 is amended as follows:
“Article 1. Scope
This Decree deals with:
1. Eligibility requirements to be satisfied by business entities to act as foreign currency agents (excluding exchange of currencies of bordering countries).
2. Eligibility requirements to be satisfied by business entities to provide foreign currency receipt and payment services, including direct receipt and payment of foreign currency, and foreign currency receipt and payment agent activities.
3. Eligibility requirements to be satisfied by business entities to act as agents for exchange of bordering countries’ currencies; documentation requirements and procedures for approval for business entities’ acting as agents for exchange of bordering countries’ currencies.”
2. Article 2 is amended as follows:
“Article 2. Regulated entities
1. Business entities acting as foreign currency agents; business entities providing foreign currency receipt and payment services; business entities acting as agents for exchange of bordering countries’ currencies.
2. Other organizations and individuals involved in activities of foreign currency agents, provision of foreign currency receipt and payment services, and activities of agents for exchange of bordering countries’ currencies.”
3. Clause 2 Article 3 is amended and Clause 4 and Clause 5 are added to Article 3 as follows:
“2. "authorizing credit institution” means the credit institution that is licensed to authorize a business entity to act as a foreign exchange agent, foreign currency receipt and payment agent, or an agent for exchange of bordering countries’ currencies. In case the business entity acts as an agent for exchange of bordering countries’ currencies, the authorizing credit institution shall be required to locate its headquarters and/or a branch in an area of the relevant border province where the business entity’s agent is located.
4. “SBV’s branch in border province” means a SBV’s branch located in a province bordering China, Laos or Cambodia.
5. “bordering countries' currencies” include Chinese Yuan Renminbi (CNY), Lao Kip (LAK), and Cambodian Riel (KHR). Currency of a country shall only be exchanged at an agent located in a land border area or border gate economic zone bordering that country. Land border areas and border gate economic zones are defined in accordance with regulations of relevant laws.”
4. Article 6a is added following Article 6 as follows:
“Article 6a. Eligibility requirements to be satisfied by business entities to act as agents for exchange of bordering countries’ currencies
1. A business entity shall be allowed to act as an agent for exchange of bordering countries' currencies only after it obtains a Certificate of registration of agent for exchange of bordering countries' currencies (hereinafter referred to as “Certificate”) issued by the SBV’s branch in border province. In order to obtain a Certificate from the SBV’s branch in a border province, the business entity shall be required to meet the following requirements:
a) Headquarters/branch requirements:
(i) It is headquartered in a land border area or border gate economic zone of that border province; or
(ii) Its headquarters and branch are located in a land border area or border gate economic zone of that border province; or
(iii) It is headquartered in that border province and has a branch located in a land border area or border gate economic zone of that border province;
b) Location of the agent for exchange of bordering countries’ currencies: This agent must be located in the same land border area or border gate economic zone where it is headquartered or its branch is located;
c) It has business process for exchange of bordering countries’ currencies; exchange rate bulletin, signboard stating name of the authorizing credit institution and name of the agent for exchange of bordering countries’ currencies;
d) It has obtained an authorization to act as an agent for exchange of bordering countries’ currencies from the authorizing credit institution;
dd) A business entity shall act as an agent for exchange of bordering countries’ currencies for an authorizing credit institution only.
2. In order to get an extension of its Certificate granted by the SBV’s branch in border province, the business entity shall be required to meet the following requirements:
a) It meets all of the requirements set forth in Clause 1 of this Article;
b) The issued Certificate remains valid for at least 30 days from the date of submission of an application for extension;
c) It has not committed any violation against SBV’s regulations on reporting for at least 03 quarters of a year from the issue date of the Certificate or the last extension of the Certificate to the date of submission of an application for extension.”
5. Article 6b is added following Article 6a as follows:
“Article 6b. Rules for preparing applications for issuance, re-issuance, modification and extension of Certificate
1. If documents included in an application are copies, their certified true copies or copies extracted from master registers or copies presented together with their originals for verification purpose or copies bearing the applicant’s certification that they are exact and accurate copies of the original documents shall be submitted. If a copy is presented together with its original for verification purpose, the receiving officer shall certify the received copy by appending his/her signature thereto and assume responsibility for the accuracy of that copy compared with its original."
2. Application form for issuance, re-issuance, modification or extension of the Certificate, reports, and the agreement signed by and between the applicant and the authorizing credit institution must bear signature of the applicant’s lawful representative.”
6. Article 6c is added following Article 6b as follows:
“Article 6c. Cases in which a Certificate is re-issued or modified
1. A business entity shall be required to follow procedures for re-issuance of the Certificate at the SBV’s branch in border province that has issued the Certificate in the following cases:
a) Its Certificate has been lost or damaged due to acts of God or conflagration or other objective causes;
b) The business entity has undergone restructuring (split-off, split-up, merger, consolidation or business type conversion) in accordance with regulations of the Law on enterprises. Within 30 days from the completion of restructuring procedures, the business entity shall following procedures for re-issuance of the Certificate with the SBV’s branch in border province.
2. A business entity shall be required to follow procedures for modification of its Certificate at the SBV’s branch in border province that has issued the Certificate in the following cases:
a) There are changes in its name and/or address;
b) The agent for exchange of bordering countries’ currencies is relocated;
c) There is an increase in the number of its agents for exchange of bordering countries’ currencies;
d) There is an increase in retainable cash amount of the bordering country’s currency.
In the case specified in Point a, within 30 days from the completion of procedures for renaming or change in its address, the business entity shall following procedures for modification of the Certificate with the SBV’s branch in border province.
3. While following procedures for re-issuance or modification of the Certificate, the business entity shall still be allowed to continue operation of its agent for exchange of bordering countries’ currencies.
4. In case the authorizing credit institution is renamed or the number of agents for exchange of bordering countries’ currencies is reduced, the business entity shall notify the SBV’s branch in border province that has issued the Certificate within 30 days from the occurrence of such event.”
7. Article 6d is added following Article 6c as follows:
“Article 6d. Applications for issuance, re-issuance, modification and extension of Certificate
1. An application for issuance of a Certificate includes:
a) The application form (made using Form No. 01 in the Appendix enclosed herewith);
b) Copies of documents proving that the location of the agent for exchange of bordering countries’ currencies to be established meets the requirement in Point b Clause 1 Article 6a of this Decree;
c) Reports on the business entity’s installation of the exchange rate bulletin and signboard stating name of the authorizing credit institution and name of the agent for exchange of bordering countries’ currencies at the transaction location;
d) The business process for exchange of bordering countries’ currencies which includes the following contents: measures for ensuring security and safety during exchange process; recording and issuance of invoices to clients, retention of documents, records, invoices and books; accounting regimes; reporting regimes; actions taken upon discovery of counterfeit money or cash unfit for circulation;
dd) The copy of the agreement on agent for exchange of bordering countries’ currencies signed with the authorizing credit institution, which includes the following contents:
(i) Names, headquarters addresses, telephone numbers of parties to the agreement;
(ii) Names and addresses of agents for exchange of bordering countries’ currencies;
(iii) Regulation that the agent for exchange of bordering countries’ currencies shall purchase currency of the bordering country using cash (except agents located in pre-exit areas of international or bilateral border gates) and re-sell such purchased amount of cash (other than the retainable cash amount) to the authorizing credit institution;
(iv) Regulations on determination of buy/sell rates (including sell rates applicable to agents located in pre-exit areas of international or bilateral border gates) for clients, and sell rates for re-selling purchased amount of currency of the bordering country to the authorizing credit institution in conformity with regulations of law on foreign exchange management; regulations on agent commissions (if any);
(v) Rights and obligations of the parties, including the following: the agent for exchange of bordering countries’ currencies is obliged to comply with the business process for exchange of bordering countries’ currencies; the authorizing credit institution is obliged to conduct periodical inspection of agents to ensure their performance of the signed agreement and compliance with regulations of laws; the agent for exchange of bordering countries’ currencies is liable to penalties in case of breach of the agreement or commission of violations against regulations on exchange of bordering countries’ currencies;
(vi) The agreement on the retainable cash amount and time limit for reselling purchased amounts of currency of the bordering country to the authorizing credit institution.
2. An application for re-issuance of a Certificate includes:
a) The application form which must indicate the reason for re-issuance (made using Form No. 01 in the Appendix enclosed herewith);
b) The copy of the agreement on agent for exchange of bordering countries’ currencies signed with the authorizing credit institution (in case of restructuring of the business entity).
3. An application for modification of a Certificate includes:
a) The application form which must indicate the reason for modification (made using Form No. 02 in the Appendix enclosed herewith);
b) Copies of documents relevant to such modification as prescribed in Clause 2 Article 6c of this Decree;
c) Reports on the business entity’s installation of the exchange rate bulletin and signboard stating name of the authorizing credit institution and name of the agent for exchange of bordering countries’ currencies at the transaction location, and copies of documents proving that the location of the agent for exchange of bordering countries’ currencies to be established meets the requirement in Point b Clause 1 Article 6a of this Decree (in the case specified in Point b or c Clause 2 Article 6c of this Decree).
4. An application for extension of a Certificate includes:
a) The application form (made using Form No. 02 in the Appendix enclosed herewith);
b) The copy of the valid agreement on agent for exchange of bordering countries’ currencies signed with the authorizing credit institution;
c) Reports on performance of the agent for exchange of bordering countries’ currencies within the scope of the issued Certificate, including the satisfaction of the requirement in Point c Clause 2 Article 6a of this Decree.”
8. Article 6dd is added following Article 6d as follows:
“Article 6dd. Procedures for issuance, re-issuance, modification and extension of Certificate
1. The business entity or its authorized branch shall submit an application by post or directly to the SBV’s branch in border province where its agent for exchange of bordering countries’ currencies is located.
2. Procedures for approval by the SBV’s branch in border province:
a) Procedures for issuance of a Certificate:
(i) If the application is inadequate or invalid, the SBV’s branch in border province shall request the applicant in writing to complete its application within 10 days from the receipt of the application;
(ii) Within 30 days from the receipt of an adequate and valid application, the SBV’s branch in border province shall consider issuing the Certificate (using Form No. 03 in the Appendix enclosed herewith) to the applicant. If the application is refused, the SBV’s branch in border province shall give a written notice indicating reasons for such refusal to the applicant;
b) Procedures for re-issuance, modification or extension of a Certificate:
(i) If the application is inadequate or invalid, the SBV’s branch in border province shall request the applicant in writing to complete its application within 05 days from the receipt of the application;
(ii) Within 20 days from the receipt of an adequate and valid application, the SBV’s branch in border province shall consider re-issuing the Certificate (using Form No. 03 in the Appendix enclosed herewith) or issuing the modified or extended Certificate (using Form No. 04 in the Appendix enclosed herewith) to the applicant. If the application is refused, the SBV’s branch in border province shall give a written notice indicating reasons for such refusal to the applicant;
c) The Certificate holder shall be the business entity but its branch.
3. Validity period of a Certificate or extended Certificate:
The validity period of a Certificate or extended Certificate shall be conformable with that of the agreement on agent for exchange of bordering countries’ currencies signed by and between the business entity and the authorizing credit institution but shall not exceed 05 years from its issue date.”
9. Article 6e is added following Article 6dd as follows:
“Article 6e. Revocation of a Certificate
1. The SBV’s branch in border province shall consider revoking the Certificate or modified or extended Certificate in the following cases:
a) The business entity does not establish its agent for exchange of bordering countries’ currencies within 12 months from the issue date of its Certificate;
b) The business entity stops performing or has earned no revenues from exchange of bordering countries’ currencies for a period of 12 consecutive months;
c) The business entity applies for approval of the SBV’s branch in border province for shutdown of its agent for exchange of bordering countries’ currencies;
d) The Certificate is revoked in accordance with law regulations on penalties for administrative violations in monetary and banking sector.
2. Revocation procedures:
a) The SBV’s branch in border province shall issue a decision to revoke the Certificate or modified or extended Certificate (using Form No. 05 in the Appendix enclosed herewith);
b) Within 15 days from the effective date of the revocation decision, the business entity shall shut down its agent for exchange of bordering countries’ currencies and return the original Certificate or modified or extended Certificate (if any) to the SBV’s branch in border province that has issued such a Certificate.”
10. Article 6g is added following Article 6e as follows:
“Article 6g. Cases resulting in automatic expiration
A Certificate or modified or extended Certificate will automatically expire in the following cases:
1. The authorizing credit institution or the business entity is dissolved or declared bankrupt in accordance with regulations of law.
2. The enterprise registration certificate or investment registration certificate or certificate of branch registration or another document of equivalent validity of the authorizing credit institution or the business entity is revoked by a competent authority in accordance with regulations of law.
3. The authorizing credit institution terminates the agreement on agent for exchange of bordering countries’ currencies signed with the business entity.”
Article 2. Amendments to Government’s Decree No. 88/2019/ND-CP dated November 14, 2019 (as amended by Government’s Decree No. 143/2021/ND-CP dated December 31, 2021)
1. Some Points of Article 3 are amended as follows:
a) Point a Clause 2 is amended as follows:
“a) Suspension of licenses for a fixed period. To be specific: the certificate of registration of foreign exchange agent or the certificate of registration of agent for exchange of bordering countries’ currencies shall be suspended for 01 – 03 months; the license for foreign currency receipt and payment and other foreign currency transactions in the business of providing prize-winning electronic games for foreigners and in the casino business shall be suspended for 03 – 06 months; the license for gold bullion trading shall be suspended for 06 – 09 months;”;
b) Point n Clause 4 (as amended by Point b Clause 4 Article 1 of the Government’s Decree No. 143/2021/ND-CP dated December 31, 2021 on amendments to the Government’s Decree No. 88/2019/ND-CP dated November 14, 2019 on penalties for administrative violations in monetary and banking sector (hereinafter referred to as “Decree No. 88/2019/ND-CP” and “Decree No. 143/2021/ND-CP”)) is amended as follows:
“n) Proposed revocation of license; certificate of registration of foreign exchange agent; certificate of registration of agent for exchange of bordering countries’ currencies; license to open and use an offshore foreign-currency account; license for gold bullion trading; written approval for provision of payment services without customers’ checking accounts; license for provision of intermediary payment services; proposed suspension, dismissal or prohibition of violating entities and/or persons responsible for the violation from holding management and supervision positions at credit institutions or foreign bank branches (FBBs); proposed dismissal and implementation of other appropriate measures by credit institutions or FBBs against violating individuals under their competence;”.
2. Clause 1 Article 3a is amended as follows:
“1. Regarding the remedial measure that is proposed revocation of license, certificate of registration of foreign exchange agent, certificate of registration of agent for exchange of bordering countries’ currencies, license to open and use an offshore foreign-currency account, license for gold bullion trading, written approval for provision of payment services without customers’ checking accounts, or license for provision of intermediary payment services.
Within 03 working days from the issue date of the penalty imposition decision, the person issuing that decision shall send a written request to a competent authority for application of this remedial measure.”.
3. Some Points and Clauses of Article 23 are amended as follows:
a) Point d Clause 3 is amended as follows:
“d) failing to comply with law regulations on registration and notification of the relevant provincial branch of SBV in case of changes relating to a foreign exchange agent or an agent for exchange of bordering countries’ currencies”;
b) Point a and Point b Clause 4 are amended as follows:
“a) entering into an agreement on foreign exchange agent or agent for exchange of bordering countries’ currencies with an ineligible entity; failing to provide instructions for or to inspect the foreign exchange agent or agent for exchange of bordering countries’ currencies as prescribed by law;
b) failing to fulfill responsibilities of a foreign exchange agent or agent for exchange of bordering countries’ currencies as prescribed by law; concurrently acting as a foreign exchange agent or agent for exchange of bordering countries’ currencies for two or more credit institutions;”;
c) Point i Clause 5 (as amended in Point b Clause 13 Article 1 of the Decree No. 143/2021/ND-CP) is amended as follows:
“i) failing to fulfill responsibilities of a foreign exchange agent or agent for exchange of bordering countries’ currencies as prescribed by law in case of a recommitted violation; concurrently acting as a foreign exchange agent or agent for exchange of bordering countries’ currencies for two or more credit institutions in case of a recommitted violation;”;
d) Point b Clause 2 Article 9 is amended as follows:
“b) The certificate of registration of foreign exchange agent or certificate of registration of agent for exchange of bordering countries’ currencies shall be suspended for 01 - 03 months if the violation in Point b Clause 4 of this Article is committed;”;
dd) Clause 10 (as amended in Point d Clause 13 Article 1 of the Decree No. 143/2021/ND-CP) is amended as follows:
“10. Remedial measure:
Proposed revocation of certificate of registration of foreign exchange agent or certificate of registration of agent for exchange of bordering countries’ currencies or license to open and use an offshore foreign-currency account if the violation prescribed in Point i Clause 5 or Point c Clause 6 of this Article is committed.”.
Article 3. Abrogation and replacement of some regulations of Decree No. 88/2019/ND-CP and Decree No. 143/2021/ND-CP
1. Some regulations of the Decree No. 88/2019/ND-CP are abrogated or replaced as follows:
a) Point o Clause 4 and Point d Clause 9 Article 23 are abrogated;
b) The phrase “các điểm d, o khoản 4” (“Points d, o Clause 4”) is replaced with the phrase “điểm d khoản 4” (“Point d Clause 4”) in Point c Clause 8 Article 23;
c) The phrase “các điểm n, o khoản 4” (“Points n, o Clause 4”) is replaced with the phrase “điểm n khoản 4” (“Point n Clause 4”) in Clause 2 Article 55 (as amended by Clause 43 Article 1 of Decree No. 143/2021/ND-CP);
d) The phrase “các Điểm h, n, o khoản 4” (“Points h, n, o Clause 4”) is replaced with the phrase “Điểm h, n khoản 4” (“Points h, n Clause 4”) in Clause 5 Article 55 (as amended by Clause 43 Article 1 of Decree No. 143/2021/ND-CP);
dd) The phrase “các Điểm b, n, o khoản 4” (“Points b, n, o Clause 4”) is replaced with the phrase “Điểm b, n khoản 4” (“Points b, n Clause 4”) in Clause 6 Article 55 (as amended by Clause 43 Article 1 of Decree No. 143/2021/ND-CP).
2. Points b, d Clause 13 Article 1 of the Decree No. 143/2021/ND-CP are abrogated.
Article 4. Effect
1. This Decree comes into force from July 01, 2023.
2. The issued licenses for foreign exchange counter will automatically expire from the effective date of this Decree, and holders of such licenses are required to terminate their foreign exchange activities accordingly. Any individual that wishes to continue performing exchange of currencies of bordering countries shall establish a business entity in order to obtain an approval from the SBV's branch in border province for running an agent for exchange of bordering countries' currencies as prescribed in this Decree.
3. This Decree nullifies Article 7 of Regulations on management of currencies of bordering countries in border areas and border gate economic zones of Vietnam enclosed with the Prime Minister’s Decision No. 140/2000/QD-TTg dated December 08, 2000.
Article 5. Responsibility for implementation
1. SBV shall promulgate written guidelines on agents for exchange of currencies of bordering countries.
2. SBV’s Governor, Ministers, heads of ministerial agencies, heads of Governmental agencies, Chairpersons of People’s Committees of central-affiliated cities or provinces, and relevant organizations and individuals are responsible for the implementation of this Decree.
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ON BEHALF OF THE GOVERNMENT
PP. PRIME MINISTER
DEPUTY PRIME MINISTER
Le Minh Khai
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