Nghị định 88/2016/NĐ-CP về chương trình hưu trí bổ sung tự nguyện

GOVERNMENT --------	SOCIALIST REPUBLIC OF VIETNAM Independence – Freedom – Happiness --------------
No.: 88/2016/ND-CP	Hanoi, July 01, 2016

 

DECREE

ON VOLUNTARY SUPPLEMENTAL RETIREMENT PROGRAM

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

Pursuant to the Law on social insurance dated November 20, 2014;

Pursuant to the Law on Investment dated November 26, 2014;

Pursuant to the Law on Enterprises dated November 26, 2014;

Pursuant to the Law on Securities dated June 29, 2006 and the Law dated November 24, 2010 on amendment of certain articles of the Law on Securities;

At the request of Minister of Finance;

The Government promulgates a Decree on voluntary supplemental retirement program.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Decree provides for the voluntary supplemental retirement program by means of establishment of retirement funds with the voluntary contributions by fund participants and employers under the form of individual retirement accounts, the management, investment, payment and supervision of retirement funds.

2. The following activities shall not be governed by this Decree:

a) Activities of funds that are under the management of Vietnam Social Security;

b) Provision of retirement insurance products by insurance companies in accordance with regulations of the Law on insurance trading and relevant instructional documents.

Article 2. Regulated entities

1. Employees and employers as regulated in the Labor Code.

2. Individuals aged 15 years or older, working without labour contracts as referred to in the Labour Code.

3.  Voluntary supplemental retirement fund management companies.

4. Providers of services relating to the establishment, operation, management and supervision of voluntary supplemental retirement funds as referred to in this Decree.

5. Entities involved in the voluntary supplemental retirement program.

Article 3. Interpretation of terms

In this Decree, these terms shall be construed as follows:

1. A fund participant refers to an employee or individual who is prescribed in Clause 2 and Clause 3 Article 6 of this Decree and has an individual retirement account opened at the retirement fund.

2. Retirement program is the abbreviated name of the voluntary supplemental retirement program which is a social insurance policy with voluntary features for the purpose of increasing retirement savings of fund participants under individual retirement accounts used to make investments and accumulation in accordance with the law.

3. Retirement fund is the abbreviated name of the voluntary supplemental retirement fund which is a financial fund functioned to execute retirement programs and established by the contributions of fund participants and employers.

4. Individual retirement account refers to an account which is opened for a fund participant and managed by a retirement fund management company as referred to in Article 18 of this Decree.

5. Assets of a retirement fund refer to the sum of balances of individual retirement accounts of employees who participate in the same voluntary supplemental retirement program and are established from the contributions of employees and employers.

6. A retirement fund management company refers to a company that has obtained a Certificate of eligibility to provide voluntary supplemental retirement fund service.  

7. Certificate of eligibility is the short name of the Certificate of eligibility to provide voluntary supplemental retirement fund service as referred to in Article 37 of this Decree.

8. A retirement fund service covers the management of individual retirement accounts under the authorization of fund participants and employers.

9. Depository institution is selected by the retirement fund management company to receive deposited assets of that retirement fund in conformity with regulations in Article 15 of this Decree.

10. Supervisory bank is selected by the retirement fund management company to supervise activities of that retirement fund in conformity with regulations in Article 16 of this Decree.

11. Retirement age refers to the age at which the employee may retire as referred to in the Labor Code.

Article 4. Rules of voluntary supplemental retirement program

1. The participation in the voluntary supplemental retirement program of employees and individuals and/or employers (who make contributions for their employees) must be entirely voluntary.

2. Contributions of a fund participant shall include those made by his/her employer (if any) and be managed under his/her individual retirement account.

3. A fund participant is entitled to take the ownership of an individual retirement account as referred to in Clause 3 Article 18 of this Decree.  The retirement fund management company shall be entrusted with assets of that retirement fund for investments.  The retirement fund management company must manage assets of a retirement fund separately from its own assets, assets of depository institutions, those of employers and assets of other retirement funds which are also under its management.

4. Retirement fund management activities must be conducted in a transparent and openness manner.

5. Investments of the retirement fund must be carried out in conformity with regulations in this Decree and the charter of that retirement fund.

6. The pension rate is determined on the basis of individual retirement account balances at the payment time as referred to in Article 18 of this Decree.

Article 5. Government's policies on voluntary supplemental retirement program

1. The Government encourages developing voluntary supplemental retirement programs by means of incentive policies provided for in laws on taxation.

2. The Government shall manage and supervise the implementation of voluntary supplemental retirement programs as well as operations of retirement funds by adopting policies and regulations to force retirement funds to operate in a transparent and openness way in order to protect lawful rights and interest of fund participants.

3. Investment results and payment rates made by retirement funds shall not be guaranteed by the Government.

Chapter II

PARTICIPATION IN VOLUNTARY SUPPLEMENTAL RETIREMENT PROGRAMS, ESTABLISHMENT AND OPERATION OF RETIREMENT FUNDS

Section 1. PARTICIPATION IN RETIREMENT PROGRAM

Article 6. Entities making contributions to retirement program

1. Employers who make contributions for their employees in accordance with regulations of the Labor Code.

2. Employees as regulated in the Labor Code.

3. Individuals aged 15 years or older, working without labour contracts as referred to in the Labour Code.

Article 7. Methods of contribution

1. Participation in retirement programs through employers, consisting of:

a) An employer makes contributions to a retirement fund for his/her employees on the basis of labour management requirements and financial capacity without the employee’s contribution.

b) Employer and his/her employees shall jointly make contributions to a retirement fund in conformity with an agreement made by and between that employer and his/her employees.

2. Direct participation in retirement program, consisting of:

a) An employee himself/herself makes all of regulated contributions to a retirement fund without his/her employer’s contribution;

b) Contributions to retirement funds made by individuals as referred to in Clause 3 Article 6 of this Decree.

Article 8. Participation in retirement program through employer

1. Based on labour management requirements and financial capacity, the employer may set up a retirement program and make contributions to the retirement fund for his/her employees upon the method of contribution prescribed in Clause 1 Article 7 of this Decree.

2. The participation in retirement program through an employer shall comply with the following process:

a) The employer shall provide announcement of the retirement program to his/her employees.

b) Employer and his/her employees shall enter into a written agreement on the participation in the retirement program as regulated by Ministry of Labour – War Invalids and Social Affairs.  The written agreement on the participation in retirement program must include the following contents:

- Name of the retirement program selected by employees;

- Basic contents of that retirement program;

- Time of starting the retirement program;

- Contribution rate, frequency and contribution period of the employer;

- Contribution rate, frequency, period and methods of contribution of relevant employee (if the employee and employer jointly make contribution to the retirement program);

- Rights and obligations of employees when they participate in the retirement fund, including conditions for receiving contributions by their employer and earnings from investment by these contributions;

- Rights and obligations of the employer during his/her participation in the retirement fund, including conditions for that the employer can take back his/her contributions made for his/her employees and earnings from investment by these contributions;

- Procedures for change of contents of the written agreement (if any);

- Termination and suspension of the participation in the retirement program.

c) The employer shall enter into a retirement fund participation contract with a retirement fund management company. Contents of the retirement fund participation contract shall comply with regulations in Article 19 of this Decree.

d) Based on the signed retirement fund participation contract and the written agreement made with the employees, the employer shall transfer contributions, including the employer’s contribution portion and contribution portions entrusted with by employees (if any), to the retirement fund, and inform the retirement fund management company, depository institution and supervisory bank of amounts transferred to each individual retirement account.

3. Contributions to each individual retirement account of the fund participant consist of:

a) The contribution made by the employer for the relevant employee in conformity with the written agreement signed by and between the employer and that employee;

b) The contribution made by the employee (if any) as regulated in the written agreement signed by and between that employee and his/her employer.

4. The termination or suspension of the participation in the retirement program by the employer and the employee shall comply with the written agreement signed by and between the employer and the employee as referred to in Point b Clause 2 of this Article and the retirement fund participation contract prescribed in Article 19 of this Decree.

Article 9. Direct participation in retirement program

1. Employees/ individuals may make direct contributions to retirement programs upon the method of contribution prescribed in Clause 2 Article 7 of this Decree.

2. Employees/ individuals may select suitable retirement programs and methods of contribution, and then enter into contracts with the retirement fund management companies according to the contract form stated in Article 19 of this Decree.

3. Employees/ individuals shall transfer their contributions to retirement funds upon provisions in the signed retirement fund participation contracts.

4. Employees/individuals shall checked updated information periodically provided by the fund management company, the depository institution and the supervisory bank about values of individual retirement accounts as referred to in Articles 28 and 29 of this Decree.

5. Employees/individuals may terminate or suspend the participation in retirement programs upon the retirement fund participation contracts prescribed in Article 19 of this Decree.

Article 10. Rights and responsibilities of the employer

1. An employer participating in the retirement program shall have the following rights:

a) Contributions made by the employer to the retirement fund for his/her employees shall be accounted into deductible expenditures upon determination of income subject to corporate income tax in accordance with regulations of the law on taxation;

b) Make decisions on the rate and time of contribution, increase, decrease, termination or suspension of contributions as regulated in the written agreement signed by the employer and the employee on the participation in the retirement program and the signed retirement fund participation contract;

c) Select and change retirement fund management company as regulated in the written agreement signed by the employer and the employee on the participation in the retirement program;

d) Get back contributions made for an employee and earnings from investment by such contributions after relevant expenses are deducted in the event that the employee fails to meet requirements stated in the written agreement signed by the employer and the employee on the participation in the retirement program as referred to in Article 26 of this Decree.

2. An employer participating in the retirement program has the following responsibilities:

a) Make contributions to the retirement fund according to the contribution percentage belonging to the employer’s responsibility as specified in the written agreement signed by the employer and the employee on the participation in the retirement program and the signed retirement fund participation contract;

b) Make contributions to the retirement fund as entrusted with by the employee according to the contribution percentage belonging to the employee’s responsibility within the period specified in the written agreement signed by the employer and the employee on the participation in the retirement program and the signed retirement fund participation contract (if any);

c) Ensure the separation between the employer’s contributions and those entrusted with by the employee (if any);

d) Comply with procedures for change of the retirement fund management company in conformity with provisions in the written agreement signed by the employer and the employee on the participation in the retirement program;

dd) Discharge duties mentioned in the written agreement signed by and between the employer and the employee on the participation in the retirement program, the retirement fund’s charter and the retirement fund participation contract as referred to in this Decree.

Article 11. Rights and responsibilities of the employee

1. An employee participating in the retirement program shall have the following rights:

a) Participate in the retirement program and have rights and interests accrued from that retirement program as referred to in this Decree;

b) Contributions made to the retirement fund shall be deducted from taxable income before calculation of personal income tax according to the rate regulated in the law on personal income tax;

c) Make decisions on the rate and time of contribution, increase, decrease, termination or suspension of contributions as regulated in the retirement fund participation contract;

d) The employee who participates in the retirement program through his/her employer may select and change between retirement programs managed by the same retirement fund management company; the employee who directly participates in the retirement program is entitled to select and change the retirement fund management company;

dd) Have an individual retirement account issued, and have the right to access to the information about to his/her individual retirement account; move his/her individual retirement account to another retirement fund management company in case of change of the retirement fund management company;

e) Receive payments from the individual retirement account as referred to in this Decree;

g) Personal retirement information and the information related to the individual retirement account will be kept secret;

h) Have the right to change from the form of participation in the retirement fund through the employer into the form of direct participation in the retirement fund;

i) In case of change of employment:

- Maintain the individual retirement account opened at the retirement fund management company at the former employer’s place under the form of direct participation in the retirement program; or

- Move the individual retirement account to the retirement fund management company at the new employer’s place.

2. An employee participating in the retirement program has the following responsibilities:

a) Fulfill obligations as regulated in the retirement fund’s charter and the retirement fund participation contract;

b) Comply with regulations in this Decree and relevant laws.

Article 12. Rights and responsibilities of individuals participating in the retirement program

1. An individual participating in the retirement program shall have the following rights:

a) Have the rights as those of an employee participating in the retirement program regulated in Points a, c, d, dd, e and g Clause 1 Article 11 of this Decree;

b) Contributions made to the retirement fund shall be deducted from taxable income before calculation of personal income tax according to the rate regulated in the law on personal income tax if that individual has participated in compulsory social insurance or voluntary social insurance (including the cases where the period of social insurance premium payment is reserved) in accordance with regulations of the law on social insurance;

c) Have the right to change from the form of direct participation in the retirement fund into the form of participation in the retirement fund through the employer.

2. Individuals participating in retirement programs shall have the same responsibilities with employees participating in retirement programs as prescribed in Clause 2 Article 11 of this Decree.

Section 2. ESTABLISHMENT AND OPERATION OF RETIREMENT FUNDS

Article 13. Establishment of retirement funds

1. Retirement fund management companies that have Certificates of eligibility for retirement fund service provision as referred to in this Decree may establish retirement funds in conformity with regulations herein.

2. The retirement fund management company shall base on demands of fund participants and its management requirements to decide the number of requirement funds and investment objectives of retirement funds in conformity with regulations in Article 20 of this Decree.

3. With regard to each established retirement fund, the retirement fund management company must:

a) Formulate and promulgate the retirement fund’s charter. The retirement fund management company shall decide contents of the retirement fund’s charter provided that it includes basic contents mentioned in Article 14 of this Decree;

b) Select and enter into contract with a depository institution to deposit assets of that retirement fund and perform other obligations as specified in Article 15 of this Decree;

c) Select and enter into contract with a supervisory bank to supervise activities of that retirement fund and perform other obligations as specified in Article 16 of this Decree.

Article 14. Retirement fund's charter

1. The retirement fund’s charter shall be promulgated by the retirement fund management company and consist of the following contents:

a) Name of the retirement fund;

b) The retirement fund management company;

c) Depository institution;

d) Supervisory bank;

dd) Relevant service providers (if any);

e) Investment objectives and policies of the retirement fund as regulated in Article 20 of this Decree and procedures for change of investment policies (if any);

g) Rights and obligations of fund participants, the employer, the retirement fund management company, the depository institution, the supervisory bank and relevant service providers (if any);

h) Provisions on moving of individual retirement account between retirement funds which are managed by the same retirement fund management company;

i) Provisions on change of the retirement fund management company;

k) Provisions on selection and change of depository institution, supervisory bank and relevant service providers (if any);

l) Principles for determining the retirement fund’s operating expenses incurred by each individual retirement account;

m) Methods of valuation of net asset value (NAV) of the retirement fund and the NAV of each individual retirement account;

n) Regulations on dispute settlement;

o) Cases where fund participants are compensated;

p) Reporting regulations;

q) Dissolution of retirement fund;

r) Commitments of the retirement fund management company, the depository institution, the supervisory bank and relevant service providers (if any) about the performance of their obligations prescribed in the retirement fund’s charter;

s) Procedures for change and/or amendment of the retirement fund’s chater.

2. The retirement fund’s charter must be expressed in a clear and understandable way, and published on the website o the retirement fund management company.

Article 15. Depository institution

1. A depository institution holding assets of a retirement fund must meet the following conditions:

a) It must be a depository bank as referred to in the Law on securities or Vietnam Securities Depository;

b) It must have no relation with the retirement fund management company as referred to in Clause 17 Article 4 of the Law on enterprises.

2. The retirement fund management company must enter into a depository contract for holding assets of each retirement fund with a depository institution that meets requirements in Clause 1 of this Article. The contract signed between the retirement fund management company and the depository institution shall consist of the following contents:

a) Rights and responsibilities of the depository institution and the retirement fund management company;

b) Depository fees;

c) Cases where the depository institution must compensate fund participants for damages as referred to as in Clause 4 Article 23 of this Decree.

3. The depository institution shall get depository fees under the contract signed between the retirement fund management company and the depository institution.

4. The depository institution shall perform obligations as specified in the contract for depository of assets of retirement fund provided that the following obligations must be fulfilled:

a) Hold assets of retirement fund in compliance with the contract signed with the retirement fund management company;

b) Make collections, payments, transfer of money and/or securities at the request of the retirement fund management company;

c) Perform rights and obligations related to the ownership of assets of retirement fund, and carry out procedures for tax declaration and payment for the fund;

d) Assure that assets of the retirement fund must be managed separately from assets of the employer, of the retirement fund management company, of the depository institution, or the supervisory bank and those of other retirement funds which are managed by the same retirement fund management company;

dd) Provide necessary information to the retirement fund management company, the supervisory bank and relevant service providers (if any) in a promptly, sufficient and accurate manner in order that they can perform their rights and obligations as referred to as in this Decree and the retirement fund's charter.

5. Assets of the retirement fund held at the depository institution shall belong to the ownership of the fund participants and the employer. The depository institution is not allowed to use assets of the retirement fund to make payments or guarantee the payment obligations for its debts or for the third party.

Article 16. Supervisory bank

1. A supervisory bank in charge of supervising a retirement fund must meet the following conditions:

a) It must be a commercial bank or foreign bank’s branch that is established and operates in Vietnam;

b) Information technology infrastructure of the supervisory bank must correspond to its obligations as referred to in Clause 4 of this Article;

c) It must have no relation with the retirement fund management company as referred to in Clause 17 Article 4 of the Law on enterprises.

2. The retirement fund management company must enter into a contract for supervision of operations of the retirement fund with a supervisory bank that meets requirements in Clause 1 of this Article. The contract signed between the retirement fund management company and the supervisory bank shall consist of the following contents:

a) Rights and responsibilities of the supervisory bank, the retirement fund management company, fund participants and the employer;

b) Fees for supervision of retirement fund paid to the supervisory bank;

c) Cases where the supervisory bank must compensate fund participants for damages as referred to as in Clause 4 Article 23 of this Decree.

3. The supervisory bank shall have the rights as specified in the contract for supervision of operations of the retirement fund provided that the following rights must be ensured:

a) Receive supervisory fees according to the contract for supervision of operations of the retirement fund signed between the retirement fund management company and the supervisory bank;

b) Request the providers of depository service of assets of retirement fund, accounting service, and management service of individual retirement accounts to provide information and documents in order that the supervisory bank can perform its supervisory obligations as referred to in Clause 4 of this Article;

c) Inspect the compliance with relevant obligations prescribed in this Decree, the retirement fund’s charter, the retirement fund participation contract, contracts for provision of accounting service or management service of individual retirement accounts by the retirement fund management company, retirement fund accounting service provider and management provider of individual retirement accounts.

4. The supervisory bank must perform obligations as specified in the contract for supervision of operations of the retirement fund provided that the following obligations must be fulfilled:

a) Inspect the compliance with relevant obligations as prescribed in this Decree, the retirement fund’s charter, the retirement fund participation contract, and contracts for provision of relevant services by the retirement fund management company and relevant service providers;

b) Inspect investment activities and transactions related to the retirement fund and individual retirement accounts as referred to in this Decree and the retirement fund’s charter;

c) Every 06 months, check the process and method of valuation of NAV of the retirement fund; inspect the valuation of NAV of the retirement fund;

d) Every 06 months, check the process and method of distribution of earnings from investment and the valuation of NAVs of individual retirement accounts; inspect the valuation of NAVs of individual retirement accounts;

dd) Prepare and retain for 10 years relevant documents in paper and electronic files in order to verify the compliance with regulations on supervision of operations of the retirement fund by the supervisory bank;

e) The supervisory bank is not allowed to provide depository service of assets of retirement fund, accounting service and management service of individual retirement accounts to the retirement fund that is a party of the supervisory contract;

g) Comply with reporting regulations in Article 33 of this Decree.

Article 17. Retirement agents

1. A retirement agent is authorized by the retirement fund management company to conduct the following acts:

a) Introduce retirement funds;

b) Enter into retirement fund participation contracts with fund participants and the employer.

2. A retirement agent must be an enterprise that is licensed to operate in any of the following sectors: banking, insurance agent or securities investment fund management.

Article 18. Individual retirement accounts

1. Each individual may have one or several individual retirement accounts issued at the same time and managed by different retirement fund management companies.

2. An individual retirement account shall be used for the following purposes:

a) Receive contributions made by the fund participant and the employer (if any);  

b) Receive earnings from investment after deducting the retirement fund’s operating expenses which must be incurred by each individual retirement account as determined in accordance with the retirement fund's charter;

c) Make payment of payables to the State budget as regulated;

d) Make payments to fund participant and the employer as referred to in this Decree.

3. Ownership of individual retirement account:

a) A fund participant may own his/her contributions and earnings from the investment after deducting the retirement fund’s operating expenses which must be incurred by each individual retirement account as determined in accordance with the retirement fund's charter;

b) The employee participating in the retirement fund shall own contributions made by the employer and earnings from the investment after deducting relevant expenses if that employee meets all conditions specified in the written agreement made between the employee and the employer on the retirement fund participation.

4. It is not allowed to use the individual retirement account for the following purposes:

a) Transfer;

b) Mortgage;

c) Handle bankruptcy procedures of the retirement fund management company, the supervisory bank or the depository institution.

5. An individual retirement account may be transferred between retirement funds by transferring the balance in cash after closing that individual retirement account into another individual retirement account at the new retirement fund. 

Article 19. Retirement fund participation contract

1. A retirement fund management company must formulate two forms of framework contracts for managing individual retirement accounts under the authorization of the employer and fund participants, among which, one is signed with the fund participant and the other is signed with the employer.

2. Form of the framework contract for participation in the retirement fund must consist of the following contents:

a) Name, objectives and investment policies of retirement funds;

b) Rights and responsibilities of fund participants, the employer and the retirement fund management company;

c) Procedures for registration of change of information about contributions and selection of retirement fund and the retirement fund management company;

d) Procedures for registration of payments made on an individual retirement account;

dd) Provisions on keeping secret of information relating to individual retirement accounts;

e) Principles for determination of the retirement fund’s operating expenses incurred by each individual retirement account;

g) Procedures and conditions for termination and suspension of the participation in the retirement fund.

Article 20. Retirement fund's investment activities

1. The retirement fund management company must clarify investment policies (including structure and standards of investment portfolio) in the retirement fund’s charter as referred to in Article 14 of this Decree.

2. The retirement fund management company shall decide the retirement fund’s investment activities as referred to in the retirement fund’s charter, the retirement fund’s investment policies and regulations in Clauses 3, 4 and 5 of this Article.

3. The retirement fund’s portfolios shall consist of:

a) Deposits at commercial banks that meet requirements on the retirement fund’s investment policies specified in the retirement fund’s charter;

b) Government bonds, government backed bonds and local authority bonds;

c) Securities investment fund certificates under conditions on investment policies specified in the retirement fund’s charter.

4. The proportion of investments in government bonds (including investments in government bonds through securities investment fund certificates) must be at least 50% of total asset value of the retirement fund.

5. The retirement fund is not allow to deposit money at the retirement fund management company or its related persons as referred to in Clause 17 Article 4 of the Law on enterprises.

Article 21. Retirement fund accounting

1. The retirement fund management company must perform the retirement fund accounting, consisting of:

a) All collections and payments of a retirement fund must be entered into the accounts;

b) Formulate and update procedures and methods of valuation of the retirement fund’s NAV;  

c) Make the valuation of the retirement fund’s NAV; 

d) Make the retirement fund’s financial statements.

2. The retirement fund management company must bear responsibility before the fund participants for the accuracy of the retirement fund accounting as regulated in Clause 1 of this Article.

3. The retirement fund management company may itself perform or enter into a contract with a qualified accounting service provider to make the retirement fund accounting as regulated in Clause 1 of this Article.

4. Operating expenses of a retirement fund include the following items:

a) Asset management fees paid to the retirement fund management company;

b) Depository fees paid to depository institution;

c) Fees for supervision of the retirement fund paid to the supervisory bank;

d) Outsourcing service fees (if any);

dd) Expenses for drafting, printing, sending prospectus, summary prospectus, financial statements, transaction confirmation, account statements and other documents to fund participants; expenses for publishing the retirement fund’s information;

e) Expenses relating to execution of transactions in assets of the retirement fund.

Article 22. Management of individual retirement accounts  

1. The retirement fund management company must carry out the management of individual retirement account, consisting of:

a) Account for all collections and payments made on an individual retirement account, including contributions, distribution of earnings from investment, determination of the retirement fund’s operating expenses, payment of pension;

b) Formulate and update procedures and methods of distribution of earnings from investment and determination of operating expenses of the retirement fund; determination of the value of an individual retirement account;

c) Determine monthly balance of an individual retirement account;

d) Make and send reports on monthly balances on individual retirement accounts to fund participants as referred to in Article 28 of this Decree.

2. The retirement fund management company must bear responsibility before the fund participants for the accuracy of the management of individual retirement accounts as regulated in Clause 1 of this Article.

3. The retirement fund management company may enter into contract with a service provider that meets conditions prescribed in Clause 4 of this Article to make the management of individual retirement accounts as regulated in Clause 1 of this Article.

4. A provider of management service of individual retirement account as regulated in Clause 1 of this Article must be one of the following entities:

a) Vietnam Securities Depository;

b) An enterprise that is licensed to operate in banking, securities investment fund management, accounting or auditing.

Article 23. Compensation to fund participants

1. A retirement fund management company shall be responsible for compensating for damages to fund participants in the events that:

a) Make investment inconsistent with regulations in this Decree or investment policies of the relevant retirement fund in its charter;

b) The retirement fund’s NAV is incorrectly determined;   

c) Fail to distribute earnings from investment and determine the individual retirement account balances in correct manner.

2. The compensation amount paid to fund participants shall be determined on the basis of damages which they suffered.

3. Procedures for making compensation to fund participants:

a) The retirement fund management company shall determine damages suffered by fund participants;

b) The retirement fund management company shall inform the supervisory bank of the level of damages suffered by fund participants;

c) The supervisory bank shall check and verify the level of damages on the basis of calculation made by the retirement fund management company;

d) The supervisory bank shall come to a conclusion with the retirement fund management company in terms of the level of damages suffered by fund participants;

dd) The retirement fund management company shall make compensation for damages to the fund participants.

4. The supervisory bank, the depository institution, the retirement fund accounting service provider and provider of management service of individual retirement accounts shall jointly bear responsibility together with the retirement fund management company and must make compensation to fund participants for damages by their mistake. The compensation amount shall comply with a civil agreement between the retirement fund management company and the supervisory bank, the depository institution, the retirement fund accounting service provider or provider of management service of individual retirement accounts.

5. The retirement fund management company must explain the compensation for damages to fund participants in financial statements and reports on operations of the retirement fund, including reasons, level of damages, the number of fund participants suffered damages, the compensation amount, method of compensation, method of settlement and other remedial activities (if any).

Section 3. PAYMENT FROM THE RETIREMENT FUND

Article 24. Rules for payment from the retirement fund

1. The following entities shall receive payment from individual retirement accounts:

a) Fund participants;

b) Employers who make contributions for their employees.

2. The payment from an individual retirement account shall be subject to the value of that individual retirement account and the payment plan specified in the retirement fund participation contract and the written agreement signed by and between the employer and the employee on the participation in the retirement fund.

3. While receiving payments, the fund participant may continue making the investment at the retirement fund via the individual retirement account.

4. A fund participant may receive monthly payments or lump sum payout from his/her individual retirement account. The Government encourages monthly payments (pension) through tax policies as referred to in this Decree and Minister of Finance’s guidelines.

5. The period of monthly payments paid to a fund participant who reaches the retirement age must be at least 10 years. The retiree may decide the rate of monthly payment provided that it must not exceed the total value of his/her individual retirement account at the time when he/she retires divided by 120 months. After 10 years, the fund participant may get lump sum payout.

6. If the rate of monthly payment which is determined in compliance with regulations in Clause 5 of this Article is lower than the statutory pay rate as referred to by prevailing laws, the rate of monthly payment must not exceed the statutory pay rate until the individual retirement account is closed.

Article 25. Payments to fund participants

1. A fund participant must confirm the payment plan from his/her individual retirement account with the retirement fund management company at the retirement fund participation contract and the written agreement signed by and between the employee and his/her employer on the participation in the retirement fund as referred to in the retirement fund’s charter.

2. The retirement fund management company shall request the depository institution to make payments to fund participants.

3. Before making payments to fund participants, the depository institution must deduct personal income tax amounts as referred to in the law on taxation.

4. The legal inheritor of a fund participant shall inherit all rights, interests and obligations if that fund participant dies or had been missing in accordance with regulations on inheritance in the Civil Code.

Article 26. Payments to employers

1. An employer may get back his/her contributions made for an employee and earnings from investment by these contributions after deducting the retirement fund's operating expenses in the event that that employee fails to meet requirements in the written agreement signed by the employer and that employee on the participation in the retirement program as referred to in Point b Clause 2 Article 8 of this Decree.

2. The retirement fund management company shall request the depository institution to make payments to the employer as referred to in the retirement fund’s charter and the written agreement signed by the employee and the employer on the participation in the retirement fund.

Section 4. INFORMATION ANNOUNCEMENT, ACCOUNTING, EXPENSES AND REPORTING BY THE RETIREMENT FUND MANAGEMENT COMPANY

Article 27. Retirement fund introduction documents  

1. Before signing a retirement fund participation contract, the retirement fund management company must provide documents introducing the retirement fund to entities who want to participate in the retirement fund as referred to in Article 6 of this Decree.

2. Retirement fund introduction documents consist of:

a) The retirement fund’s charter as referred to in Article 14 of this Decree;

b) The fact that the participation in the retirement fund is voluntary and fund participants may face risks from the retirement fund's investment activities according to investment objectives and policies as referred to in the retirement fund’s charter must be announced. The payment of pension shall be subject to the accumulation of contributions and earnings from the retirement fund's investments after deducting relevant expenses which are divided into each individual retirement account;

c) Description about rights and responsibilities of fund participants;

d) Relevant expenses incurred by each individual retirement account of fund participant;

dd) Earnings from the retirement fund's investment of 03 previous years (if any);

e) Retirement fund introduction documents must be accurate, objective, sufficient, honest and corresponding to the retirement program, and expressed in a clear and understandable way.

Article 28. Report on individual retirement account’s value

1. Every month, the retirement fund management company must make report on the individual retirement account’s value, including the following contents:

a) Contributions to the individual retirement account during that month, and accumulation of contributions until the reporting date;

b) Earnings from investment which is distributed to the individual retirement account during that month and accumulation of earnings from investment until the reporting date;

c) Payment of expenses from the individual retirement account during that month, and accumulation of payments until the reporting date;

d) Accumulated value of the individual retirement account at the beginning of the reporting period and at the reporting date.

2. Within 10 working days from the ending of month, the retirement fund management company must send report on individual retirement account to each fund participant.

Article 29. Provision of documents/information to fund participants

1. The retirement fund management company must maintain and update basic information about each retirement fund on its website. To be specific:

a) The retirement fund’s charter as referred to in Article 14 of this Decree;

b) The prospectus, audited half-year and annual financial reports;

c) Half-year and annual reports on the management of the retirement fund;

d) Half-year and annual statistical reports on transaction fees incurred from the retirement fund’s investment activities;

dd) Half-year and annual reports on operations of the retirement fund;

e) Summation of earnings from investment of 05 previous years (if any).

2. Fund participants may access to information about their individual retirement accounts on the website of the provider of management service of individual retirement accounts as referred to in Article 22 of this Decree.

Article 30. Accounting and auditing

1. The retirement fund management company must make accounting and financial statements in compliance with regulations of the law on accounting.

2. Annual financial reports of the retirement fund management company must be examined by an independent auditor.

Article 31. Expenses covered by individual retirement account

1. An individual retirement account must cover the following expenses:

a) Expenses for management of individual retirement account;

b) Depository, supervisory and auditing expenses;

c) Expenses for retirement fund management;

d) Expenses for transfer of individual retirement account between retirement funds managed by the same retirement fund management company and moving of an individual retirement account to another retirement fund management company.

dd) Other expenses as referred to in the retirement fund’s charter and the retirement fund participation contract.

2. Rules for determination of expenses prescribed in Clause 1 of this Article must be clarified in the retirement fund’s charter and the retirement fund participation contract.

Article 32. Reporting by the retirement fund management company

1. Annually, the retirement fund management company must make reports on its operating results. To be specific:

a) Reporting time: Within 03 months after the end of the reporting period;

b) Reporting period: Reports on operating results of the retirement fund management company as of January 01^st to December 31^st of each year;

c) Reporting contents:

- Financial statements verified by an independent auditor;

- Reports on the management of the retirement fund, reports on risk management and internal control system as regulated by Minister of Finance.

d) Places of receiving reports: Ministry of Finance; Ministry of Labour – War Invalids and Social Affairs.

2. The retirement fund management company must send extraordinary reports as regulated in Article 40 of this Decree or at the request of Ministry of Finance.

Article 33. Reporting by the supervisory bank

1. Annually, the supervisory bank must make reports on supervisory results. To be specific:

a) Reporting time: Within 03 months after the end of the reporting period;

b) Reporting period: Reports on the supervision of the retirement fund as of January 01^st to December 31^st of each year;

c) Reporting contents:

- Evaluation of inspection and supervision results as referred to in Points a, b, c and d Clause 4 Article 16 of this Decree;

- Violations (if any) committed by the retirement fund management company and relevant service providers and proposed remedial measures.

d) Places of receiving reports: Ministry of Finance; Ministry of Labour – War Invalids and Social Affairs.

2. The supervisory bank must report any discovered violations against the laws or the retirement fund’s charter to Ministry of Finance and inform the retirement fund management company of such violations within 02 working days from the date on which they are discovered, and at the same time requests the retirement fund management company to make rectifications or remedial measures within regulated period.

3. Ministry of Finance can request the supervisory bank to submit extraordinary reports on the supervision of the retirement fund in necessary cases other than those specified in Clauses 1 and 2 of this Article. The supervisory bank must submit reports to Ministry of Finance and Ministry of Labour – War Invalids and Social Affairs within 02 working days from the receipt of written request for reporting.

Chapter III

VOLUNTARY RETIREMENT FUND MANAGEMENT COMPANIES

Article 34. Conditions for issuance of Certificate of eligibility

1. A retirement fund management company must be established under the law of Vietnam and be licensed to operate in life insurance and/or fund management sectors in accordance with regulations of specialized laws, and must satisfy all of the following conditions:

a) A life insurance company must satisfy all conditions for developing retirement insurance products in accordance with regulations of the law on retirement insurance business;

b) A fund management company must have at least 05 years of experience in the fund management sector; total value of assets of open funds or bond funds under its management must be at least VND 1,000 billion.

2. A retirement fund management company must not be in the restructuring planning or under the special control or supervision upon regulatory body’s decision.

3. The draft of the retirement fund’s charter is required for each retirement fund which will be established in conformity with regulations in Article 14 of this Decree.

4. A retirement fund management company must enter into principle contracts with the following service providers:

a) The depository institution to hold assets of retirement funds as referred to in Article 15 of this Decree;

b) The supervisory bank to supervise operations of retirement funds and manage individual retirement accounts as referred to in Article 16 of this Decree.

5. The retirement fund management company must have plans for running retirement fund management service, consisting of the following contents:

a) Operating plans and strategies of retirement funds in the next 05 years;

b) Estimated revenues and expenses in the next 05 years;

c) Plans on information technology infrastructure for managing each individual retirement account in order to ensure the making of contributions, investments, payment of expenses, taxes and fines, and other payments to relevant entities;

d) Framework contracts for retirement fund participation must be available in conformity with regulations in Article 19 of this Decree.

6. At least 05 employees who have at least 05 years of experience in retirement fund management, securities investment fund management or policyholder fund management are contracted. Among which at least 03 employees have fund management practicing certificates granted by the State Securities Commission of Vietnam or are members of chartered financial analyst associations (CFA). 

7. Risk management process and internal control system must be available.

Article 35. Application for issuance of Certificate of eligibility

1. The application form for issuance of Certificate of eligibility (information about the enterprise’s code)

2. The copy of the license to operate in specialized sector (The copy originated from the master register or certified by competent authority, or the copy without certification provided that it must be enclosed with its original for comparison).

3. Copies of principle contracts signed with the depository institution and the supervisor bank.

4. The plan for running retirement fund management service:

a) Operating plans and strategies of retirement funds;

b) Estimated revenues and expenses in the next 05 years;

c) Plans on information technology infrastructure for managing each individual retirement account in order to ensure the making of contributions, investments, payment of expenses, payments to fund participants and employers, and payment of personal income tax;

d) Framework contracts for retirement fund participation in conformity with regulations in Article 19 of this Decree.

5. Documents proving that at least 05 employees meet conditions in Article 34 of this Decree, including the following documents:

a) Copies of labour contracts (copies certified by competent authorities or copies without certification provided that they must be enclosed with their originals for comparison);

b) Employees’ curricula vitae which must be certified by competent authorities (working experience and qualifications (if any) are specified);

c) Copies of certificates as referred to in Clause 6 Article 34 of this Decree.

6. Risk management process and internal control system.

Article 36. Procedures for issuance of Certificate of eligibility

1. The company shall submit 01 set of the application for issuance of Certificate of eligibility as referred to in Article 35 of this Decree to Ministry of Finance for checking its sufficiency and validity.

2. Within 05 working days from the receipt of the application, Ministry of Finance shall make the notice of the sufficiency and validity of the application, and request the applicant to supplement documents (if any) and send 02 sets of the valid application for appraisal.

3. Within 30 working days from the receipt of the valid application, Ministry of Finance shall take charge and coordinate with Ministry of Labour – War Invalids and Social Affairs, Ministry of Planning and Investment and relevant entities to appraise and consider the application, and issue Certificate of eligibility.  If the application is rejected, Ministry of Finance shall give written reasons to the applicant.

4. The application shall be appraised in accordance with contents stated in Article 34 of this Decree.

Article 37. Certificate of eligibility

1. A Certificate of eligibility shall consist of the following contents:

a) Name of the retirement fund management company;

b) Main office’s address and website of the retirement fund management company;

c) Number and issued date of business registration certificate;

d) Number and issued date of Certificate of eligibility;

dd) Legal representative of the retirement fund management company;

e) Contents and scope of operations.

2. In case of re-issuance or amendment of Certificate of eligibility, the time of re-issuance or amendment must be specified, and the number of the initially issued certificate of eligibility shall be remained.

Article 38. Re-issuance of Certificate of eligibility

1. A Certificate of eligibility shall be re-issued in the following cases:

a) The issued Certificate of eligibility is lost or damaged;

b) The retirement fund management company carries out the restructuring (separation, division, amalgamation, merging or change of type of the company) and remain its satisfaction of conditions in Article 34 of this Decree.

2. Procedures for re-issuance of Certificate of eligibility in the cases stated in Point a Clause 1 of this Article:

a) The application for re-issuance of Certificate of eligibility shall consist of:

- The original of the issued Certificate of eligibility (except for the cases where the issued certificate of eligibility is lost);

- The application form for re-issuance of Certificate of eligibility.

b) Within 05 working days from the receipt of the application form for re-issuance of certificate of eligibility, Ministry of Finance shall consider and re-issue Certificate of eligibility.

3. Procedures for re-issuance of Certificate of eligibility in the cases stated in Point b Clause 1 of this Article:

a) The application consists of:

- The application form for re-issuance of Certificate of eligibility;

- Documents proving the applicant’s satisfaction of conditions for issuance of Certificate of eligibility as referred to in Article 34 of this Decree, including documents and papers prescribed in Clauses 2, 3, 4, 5 and 6 Article 35 of this Decree.

b) Within 15 working days from the receipt of the valid application, Ministry of Finance shall take charge and coordinate with Ministry of Labour – War Invalids and Social Affairs to appraise and consider the application, and re-issue Certificate of eligibility.  If the application is rejected, Ministry of Finance shall give written reasons to the applicant.

Article 39. Amendment of Certificate of eligibility

1. The retirement fund management company must carry out the procedures for amendment of Certificate of eligibility within 10 working days from the date on which the change of contents in Certificate of eligibility as prescribed in Article 37 of this Decree occurs.

2. The application for amendment of Certificate of eligibility consists of:

a) The application form for amendment of Certificate of eligibility, including reasons for amendment;

b) The original of the latest Certificate of eligibility;

c) Documents proving amended contents.

3. Within 15 working days from the receipt of the valid application, Ministry of Finance shall take charge and coordinate with Ministry of Labour – War Invalids and Social Affairs to appraise and consider the application in order to amend Certificate of eligibility.  If the application is rejected, Ministry of Finance shall give written reasons to the applicant.

Article 40. Changes to be informed to Ministry of Finance

Within 10 working days from the date on which any of the following changes occurs, the retirement fund management company must give a written notice to Ministry of Finance:

1. The retirement fund management company is subject to the restructuring planning or under the special control or supervision.

2. The retirement fund management company is dissolved or bankrupted, or itself terminates the provision of retirement fund management service.

3. The retirement fund management company has the business registration certificate, or the license to operate in insurance or securities investment fund management revoked.

4. There is a change of depository institution.

5. There is a change of supervisory bank.

Article 41. Revocation of Certificate of eligibility

1. A Certificate of eligibility which has been issued to a retirement fund management company shall be revoked in the following cases:

a) The retirement fund management company is dissolved or bankrupted, or itself terminates the provision of retirement fund management service;

b) The retirement fund management company has the business registration certificate, or the license to operate in insurance or securities investment fund management revoked.

2. Procedures for the revocation of Certificate of eligibility:

a) A Certificate of eligibility shall automatically be invalid in the cases referred to in Clause 1 of this Article;

b) Ministry of Finance shall make a decision on the revocation of Certificate of eligibility and publish it on the website of Ministry of Finance.

3. The retirement fund management company must terminate its activities relating to the retirement fund management immediately when Certificate of eligibility is automatically invalid.

4. If a retirement fund management company has its Certificate of eligibility revoked, Ministry of Finance shall appoint another qualified retirement fund management company to manage retirement funds which are under the management of the retirement fund management company having its Certificate of eligibility revoked. The appointed company must have Certificate of eligibility granted and presently manage at least 01 retirement fund.

5. Fund participants may maintain their participation in retirement funds which are managed by the retirement fund management company appointed by Ministry of Finance, or move their individual retirement accounts to retirement funds managed by other retirement fund management companies.

Article 42. Rights and obligations of a retirement fund management company

1. A retirement fund management company shall have the following rights:

a) Decide the number of retirement funds and investment policies of retirement funds;

b) Enter into contract for retirement fund management;

c) Select and sign contracts with depository institution, supervisory bank and relevant service providers;

d) Decide the retirement fund’s investments in conformity with the retirement fund’s charter and regulations in this Decree.

2.

A retirement fund management company must perform the following obligations:
a) Establish, invest and manage retirement funds in accordance with regulations in this Decree;

b) Formulate and promulgate the retirement fund’s charter for each established retirement fund;

c) Select and sign contracts with depository institution and supervisory bank;  

d) Decide the retirement fund’s investments in conformity with the retirement fund’s charter and regulations in this Decree;

dd) Itself perform or enter into contract with accounting service provider to perform the retirement fund accounting in accordance with regulations in this Decree;

e) Manage individual retirement accounts or enter into contract with provider of management service of individual retirement accounts in accordance with regulations in this Decree;

g) Transfer individual retirement accounts between retirement funds under its management, and transfer them to other retirement fund management companies as referred to in this Decree;

h) Publish information, and make accounting and reporting in accordance with regulations in this Decree;

i) Make compensation to fund participants (if any) as referred to in Article 23 of this Decree.

Chapter IV

INSPECTION AND RESPONSIBILITIES OF REGULATORY BODIES

Article 43. Inspection

1. The inspection shall be carried out on a regular or irregular basis. The irregular inspection shall be carried out only when the retirement fund management company denotes the violation against the law, or as requested to settle complaints or denunciations or anti-corruption, or as assigned by heads of regulatory bodies. A retirement fund management company shall not bear more than one time of inspection per year.

2. Ministry of Finance shall preside over and coordinate with Ministry of Labour, War Invalids and Social Affairs, Ministry of Planning and Investment and relevant entities to carry out the inspection for every 05 years of the compliance with regulations on the provision of retirement fund management service as referred to in this Decree.

3. The inspection shall include the consideration whether a retirement fund management company is qualified to maintain its operations or has its Certificate of eligibility revoked, and its compliance with regulations on the provision of retirement fund management service as referred to in this Decree.

4. The inspection of performance of tax obligations by a retirement fund management company shall be conducted in compliance with regulations of the law on taxation.

Article 44.Responsibilities of Ministry of Finance  

1. Instruct tax policies for voluntary retirement programs as prescribed in Clause 4 Article 24 and reporting regulations to be complied by retirement fund management companies as referred to in Article 32 of this Decree.

2. Preside over and coordinate with Ministry of Labour, War Invalids and Social Affairs to summarize, monitor and evaluate the implementation of this Decree.

3. Preside over and coordinate with Ministry of Labour – War Invalids and Social Affairs, Ministry of Planning and Investment and relevant entities to issue/re-issue/amend/revoke Certificates of eligibility in accordance with regulations in this Decree.

4. Monitor and evaluate operations of retirement fund management companies by means of reporting as referred to in this Decree.

5. Preside over and coordinate with Ministry of Labour – War Invalids and Social Affairs to carry out the inspection of retirement fund management companies as referred to in this Decree on a regular basis of every 05 years or on an irregular basis in conformity with requirements on management as prescribed in Article 43 of this Decree.

Article 45. Responsibilities of Ministry of Labour – War Invalids and Social Affairs

1. Provide guidelines for formulating written agreements on retirement fund participation as prescribed in Point b Clause 1 Article 8 of this Decree.

2. Preside over and coordinate with Ministry of Finance to summarize, monitor and evaluate the participation in retirement funds by fund participants and employers in accordance with regulations in this Decree.

3. Coordinate with Ministry of Finance to summarize, monitor and evaluate the implementation of this Decree.

4. Coordinate with Ministry of Finance to consider and provide advice to the issuance/re-issuance/amendment and revocation of Certificates of eligibility in accordance with regulations in this Decree.

5. Coordinate with Ministry of Finance to carry out the inspection of retirement fund management companies as referred to in this Decree on a regular basis of every 05 years or on an irregular basis in conformity with requirements on management as prescribed in Article 43 of this Decree.

Article 46.Responsibilities of Ministry of Planning and Investment

1. Coordinate with Ministry of Finance to consider and provide advice to the issuance/re-issuance/amendment and revocation of Certificates of eligibility in accordance with regulations in this Decree.

2. Coordinate with Ministry of Finance to carry out the inspection of retirement fund management companies as referred to in this Decree on a regular basis of every 05 years or on an irregular basis in conformity with requirements on management as prescribed in Article 43 of this Decree.

Chapter V

IMPLEMENTATION

Article 47. Effect

This Decree takes effect as of July 01, 2016.

Article 48. Implementation

Ministers, heads of ministerial-level agencies, heads of affiliates of the Government, chairpersons of people’s committees of central-affiliated cities or provinces, retirement fund management companies and relevant entities shall be responsible for implementing this Decree./.

 

ON BEHALF OF GOVERNMENT PRIME MINISTER Nguyen Xuan Phuc