Phụ lục: Thông tư 22/2009/TT-NHNN

CIRCULAR

GUIDING THE IMPLEMENTATION OF MEASURES OF MONEY LAUNDERING PREVENTION AND COMBATING

Pursuant to Article 27 of the Decree No. 74/2005/ND-CP dated 07/06/2005 of the Government on the prevention from, combating against money laundering (hereinafter shortly referred to as the Decree No. 74), the State Bank hereby provides guidance on the implementation of measures of money laundering prevention and combating as follows:

Section I

GENERAL PROVISIONS

Article 1. Governing scope

This Circular provides guidance on measures of prevention from, combating against money laundering in Vietnam in monetary or other asset transactions.

Article 2. Subjects of application

This Circular shall be applicable to organizations which are established and operate in accordance with the Law on Credit Institutions and other organizations which engage in banking activity, including:

a. State-owned credit institutions;

b. Joint stock credit institutions;

c. Co-operative credit institutions (including co-operative banks, people’s credit fund and other forms);

d. Joint venture credit institutions;

dd. 100% foreign owned credit institutions;

e. Foreign bank branches in Vietnam;

g. Vietnam Postal Savings Service Company;

h. Foreign currency exchange agents;

i. Payment service suppliers (excluding organizations mentioned in this Article, which have already been authorized to supply payment service).

Article 3. Interpretation

In this Circular, following terms shall be construed as follows:

1. Customer information update means any amendment of, supplement to the information which has been identified about the customer to ensure that the information is adequate, accurate during the establishment of the relationship, transaction with the customer.

2. Suspicious transaction means any transaction as defined in Article 9 of this Circular.

3. Reporting organization means any organization as stipulated in Article 2 of this Circular.

4. Warning list means the list of individuals who, organizations which:

a. are related to a criminal act established by the Ministry of Public Security in order to prevent from, combat against money laundering and prevent from the use of money or asset to facilitate or finance criminal activities inside or outside Vietnam’s territory.

b. May be related to money laundering established by Anti-money laundering Office of Banking Inspection and Supervision Agency or established by a reporting organization.

5. Beneficiary owner means the last owner or controller to a monetary transaction or other asset transaction.

6. Cash transaction of big value means cash transactions of which value must be reported in accordance with provisions in Article 9 of the Decree No. 74.

7. None-performance of transaction means the case where the reporting organization keeps intact the status of account or transaction since the time they decide applying the temporary measure.

8. Necessary case mean cases where the reporting organization finds out that its customer or parties involved in the requested transaction are named in the warning list or are reasonably believed to relate a criminal activity.

Section II

MEASURES OF PREVENTION FROM, COMBATING AGAINST MONEY LAUNDERING

Article 4. Internal regulations on money laundering prevention and combating

1. Pursuant to provisions in this Circular and related legal documents, reporting organizations must set up and issue internal regulations on money laundering prevention and combating, including basic policies, provisions, processes and procedures as follows:

a. Policy on customer acceptance;

b. Process, procedures on customer identification and information update;

c. Provisions on transactions to be reported;

d. Process on the examination, detection and reporting of suspicious transaction;

dd. Provisions on the method of communicating with customers whose signs are suspicious;

e. Provisions on information archive and security;

g. Provisions on the temporary measures applied in the prevention from, combating against money laundering and principles of dealing with cases of delay, failure to perform the transaction;

h. Provisions on the cooperation with law executing agencies in the prevention from, combating against money laundering and responsibility of reporting, supplying information to the Anti-money laundering office of the Banking Inspection and Supervision Agency and competent state agencies;

i. Provisions on the training, improvement of awareness and professional skills of prevention from, combating against money laundering;

k. Provisions on internal control and audit over the compliance with policies, provisions, processes and procedures concerning money laundering prevention and combating; responsibilities of the person in charge of money laundering prevention and combating and every individual, division for the implementation of internal regulations on money laundering prevention and combating.

2. Contents of the internal regulations must be in line with the organizational structure, operation scale and money laundering risk level in operation of the reporting organization.

3. Within a period of 3 months from the effectiveness of this Circular, reporting organizations shall be responsible for examining, amending, supplementing or newly issuing documents relating to their internal regulation on prevention from, combating against money laundering in line with provisions of this Circular and sending performance report together with related documents to the Anti-money laundering Office of the Banking Inspection and Supervision Agency.

4. Reporting organizations shall, on a regular basis, review and assess their internal regulations on prevention from, combating against money laundering so as to ensure the conformity with provisions of applicable laws, the change and development of banking products, services.

5. Internal regulations on money laundering prevention and combating should be disseminated to every individual who, division which is responsible for the prevention from, combating against money laundering in the reporting organization, including those who are employed by the reporting organization to work for a period of 6 months and more, related to financial, monetary transactions at the head office, operation departments, branches operating in Vietnam and overseas.

6. Reporting organizations shall make own decision on the supply of internal regulations on the prevention from, combating against money laundering to foreign financial institutions in correspondent banking relationship upon request.

Article 5. Arranging officer, division in charge of prevention from, combating against money laundering

1. Each reporting organization should appoint a member of the Executive Board to be in charge of organizing, conducting, inspecting the compliance with provisions of applicable laws on prevention from, combating against money laundering at their unit (hereinafter referred to as the person in charge of money laundering prevention and combating) and register with the Anti-money laundering office of the Banking Inspection and Supervision Agency enclosing with such details as name, address of the work office, phone number, fax number, email address for contact when required. In case of changing the person in charge of money laundering prevention and combating or information relating to that person, the reporting organization shall be required to timely make written report to the Anti-money laundering office of the Banking Inspection and Supervision Agency.

2. Depending on the scale, scope and specific features of their own operation, the reporting organization shall consider, make own decision on the establishment of a specialized unit (division, department) or appoint a unit at the head office to undertake the prevention from, combating against money laundering; at the operation department, branches, the reporting organization shall arrange one or several officers to be in charge of prevention from, combating against money laundering.

Article 6. Identification and update of customer information

1. Cases required to identify customer

a. Customer establishes a transaction relationship or opens an account for the first time with the reporting organization;

b. Customer performs cash transaction of big value or electronic money remittance transaction;

c. Where his transaction shows any suspicious sign;

d. Where the reporting organization is in doubt about the truthfulness or completeness of customer identification information previously collected.

2. Contents of customer identification information:

Reporting organizations shall design their own customer identification form, providing that following required information must be ensured:

a. Information about customer

- For individual customer: full name, date of birth, nationality; occupation, position; passport number, visa, ID card; address (for Vietnamese people: permanent resident address and current resident address; for foreigner: registered address in foreign country and temporarily registered address in Vietnam), phone number; customer profile (if any);

- For corporate customer: full trading name and abbreviated name; address of the head office, phone number, fax number; establishment agency; line of business.

Information about the representative of the organization includes the same information as for individual customer stated above.

b. Date of opening account or performing transaction.

c. Information about beneficiary owner.

d. Information about individual, organization having main relationship with the customer (for example, supplier and consumers of the customer).

dd. Purpose and value of the transaction.

e. For electronic money remittance transaction, information about name, address, account number… of the person who issues the first remittance order (if any) should be included.

3. Measures of customer identification:

a. Using reliable original documents, data to identify and verify customer identification, such as:

- For individual customer: valid ID card or passport; family record book and other documents issued by a competent agency (driving license, health insurance card…);

- For corporate customer: License or Decision on the establishment; Decision on the change of name, split, separation, merger; business registration certificate, tax registration certificate; decision on the appointment of General Director (Director), Chief Accountant.

b. Reporting organization may use a third party to verify the customer identification, such as:

- Through individuals who, organizations which (including other reporting organizations) have been maintaining relationship with the customer and comparing the obtained information with the information provided by the customer;

- Through the management agency or other competent state agencies;

- Reporting organizations may hire, cooperate with other organizations to verify the customer identification. However, the reporting organizations shall take the final responsibility for identification and update of customer information.

4. Reporting organizations shall, on a regular basis, update customer information to ensure an adequate knowledge about the customer during the establishment of relationship with the customer.

5. Reporting organizations shall classify their customers by themselves by level of risk in money laundering (high, medium, low). For customer with high level of risk in money laundering, reporting organizations should provide additional information about customer and the approval from the division in charge of money laundering prevention and combating should be obtained prior to establishing the relationship.

Article 7. Checking customers and transactions

1. Before establishing the relationship or supplying banking services to the customer, especially in performing overseas payment remittance orders, reporting organizations shall check the customer and related parties in accordance with the warning list.

2. Reporting organizations should pay special attention to significant, complicated, extraordinary transactions and carefully check documents, materials relating to the basis and purpose of the transaction in order to find out any suspicious transaction.

Article 8. Cash transaction and reporting cash transaction

1. Value amount of cash transaction that needs reporting:

a. Normal cash transaction: one or several transactions of cash deposit or withdrawal in a day with total value of VND 200,000,000 (two hundred million dong) and more, performed by one customer, either individual or corporate, in Vietnamese dong or in foreign currency or in gold that is converted at the exchange rate or gold price at the time of arising the transaction. Reporting organization shall not be required to report balance on the deposit account of their customer.

b. Savings deposit transaction: one or several transactions of cash savings deposit or withdrawal in a day with total value of VND 500,000,000 (five hundred million dong) and more, performed by one individual customer in Vietnamese dong or in foreign currency or in gold that is converted at the exchange rate or gold price at the time of arising the transaction. Reporting organization shall not be required to report balance on the savings deposit account of their customer.

2. Reporting organizations shall be required to make report on cash transactions of big value in line with Forms 01, 02, 03 attached to this Circular on the basis of consolidation of entire system.

3. In case where the customer deposits foreign currency in cash to buy Vietnamese dong in cash or deposits Vietnamese Dong in cash to buy foreign currency in cash, it is required to make only report about cash deposit or withdrawal transaction.

4. In case where the customer deposits cash into account of another person or deposits cash for remittance (where he does not have an account), reporting organization shall require the customer to present valid identity card or passport or other reliable documents with photo issued by a competent agency and record full name, address, phone number… and copy of these documents.

5. Reporting organization shall check, screen cash transactions of big value so as to detect suspicious transactions.

Article 9. Suspicious transactions and reporting suspicious transactions

1. Apart from signals of a suspicious transaction as stipulated in Paragraph 1 Article 10 of the Decree No.74, the State Bank hereby provides additional guidance on signals of a suspicious transaction as follows:

a. Home phone number or office phone number of the customer cannot be connected or this number does not exist after opening account or performing the transaction.

b. The customer frequently changes money of small face value to big face value with total value of VND 200,000,000 (two hundred million dong) and more in each time of changing.

c. The deposit, withdrawal or remittance transaction is performed by an individual or organization relating to an illegal activity, which has already been released by mass media.

d. Information about capital contributions in the financing, investment, lending, financial lease or investment entrustment operations of the customer is not clear, transparent in terms of origin.

dd. Information about the pledge, mortgage asset of the borrower is not clear, transparent in terms of origin.

2. Based on the nature of the business activity, reporting organizations shall, by their own decision, add suspicious signals as provided for in Paragraph 1 of this Article by each operational division, sector of business.

3. The person who is competent to sign reports to be sent to the Anti-money laundering office of the Banking Inspection and Supervision Agency and competent state agencies shall be the one who is in charge of the prevention from, combating against money laundering or the head of the reporting organization.

For operation departments, branches of the reporting organizations, the person who is competent to sign reports shall be the one who is in charge of the unit. These units shall be responsible for reporting the Anti-money laundering office of the Banking Inspection and Supervision Agency and competent state agencies through their head offices; in case of necessity, they may directly make report to the Anti-money laundering office of the Banking Inspection and Supervision Agency, competent state agencies and to their head offices at the same time.

4. Upon detecting any suspicious transaction, reporting organizations must make written report to the Anti-money laundering office of the Banking Inspection and Supervision Agency in line with Form No.04 attached to this Circular. In case of necessity, reporting organizations may report via fax or telephone, but a written report must be sent promptly thereafter.

5. Reporting organizations shall be responsible for following up the developments of the reported transaction, updating arising information and reporting the Anti-money laundering office of the Banking Inspection and Supervision Agency and competent state agencies.

Article 10. International payment remittance

1. Reporting organizations shall be required to make a statistic report on international payment remittance to and from Vietnam by each item of remittance and record at their units. Statistic report on the international payment remittance transactions shall be sent to the Anti-money laundering office of the Banking Inspection and Supervision Agency in line with guiding documents of the State Bank.

2. Reporting organizations which were licensed by the State Bank and have been supplying international remittance payment services shall be required to establish an information technology system in service of the money laundering prevention and combating.

Article 11. Reporting deadline

1. Reporting organizations shall be required to report the Anti-money laundering office of the Banking Inspection and Supervision Agency within a period of 48 hours for a suspicious transaction since the time of detecting suspicious signal.

2. Report on cash transactions of big value shall be temporarily kept at the reporting organization in written form and in electronic file in computer. The written report shall be sent to the Anti-money laundering office of the Banking Inspection and Supervision Agency upon request. Report on cash transactions of big value in the electronic file saved in the computer shall be sent to the Anti-money laundering office of the Banking Inspection and Supervision Agency in accordance with guiding document of the State Bank.

3. In case of detecting any transaction to be related to a criminal activity, the reporting organizations shall be obliged to report competent state agencies within 24 hours since the time of detection.

Article 12. Information security

1. Documents, records relating to reported transactions in line with this Circular shall be documents, items containing state secret in Banking sector, which is subject to the “Secret” level, reporting organizations shall only be authorized to provide to the Anti-money laundering office of the Banking Inspection and Supervision Agency and competent state agencies in accordance with provisions of applicable laws.

2. Individuals, organizations performing the responsibility of reporting or providing customer information relating to transactions to be reported in accordance with provisions of the Decree No.74 and guidance of this Circular shall not be deemed as violating provisions of applicable laws on keeping secret of information about deposit and deposited asset of the customer or other provisions on customer information security.

3. Upon identifying customer or checking suspicious transactions, reporting organizations operating in Vietnam may exchange information about customers with one another, providing that information is used for proper purpose and only used for internal activities.

4. Branches of foreign banks, 100% foreign owned banks operating in Vietnam may supply customer identification information to their Head offices in foreign countries or their branches, subsidiary companies in order to serve the money laundering prevention, combating. Information receiving organizations shall be responsible for keeping secret of information, be prohibited from disclosing information to any third party unless they obtain a written consent from a competent agency of Vietnam.

5. With regards to information relating to customer’s deposit and deposited asset, which is “Secret” information of state secret in Banking industry, the reporting organization shall only be authorized to supply to overseas financial institutions which have correspondent banking relationship in order to serve the money laundering prevention and combating upon the availability of the approval from the Governor of the State Bank. The receiving parties must use information for proper purpose and not disclose to any third party.

Article 13. Application of temporary measures

1. The reporting organization shall apply temporary measures in line with the scope of competence, in compliance with provisions of applicable laws and without prejudice to the safety of the financial, monetary system.

2. The reporting organization shall only be authorized to execute the right not to perform transaction where:

a. Transactions are related to individuals, organizations named in the warning list as stated at point a, Paragraph 4 Article 3 of this Circular.

b. It is reasonable to believe that the requested transaction is related to a criminal activity.

3. The reporting organization shall not be liable to any damage arising from the non-performance of the transaction in accordance with provisions of applicable laws.

4. The blockade of account shall be implemented in accordance with current provisions of applicable laws.

Article 14. Internal control and audit

1. The reporting organization shall be required to establish an internal control system in order to ensure the compliance with provisions of applicable laws and internal regulations on the prevention from, combating against money laundering.

2. On an annual basis, the reporting organization shall be required to perform the internal audit for the money laundering prevention and combating activity so as to examine, check, assess, on an independent, objective manner, the compliance with the established internal regulation and recommend, propose measures to improve the efficiency, effectiveness of the money laundering prevention and combating activity.

3. Any act of violation detected during the internal control, audit must be reported to the person in charge of money laundering prevention and combating and the head of the reporting organization for settlement.

4. Within a period of 60 days at the latest since the ending of the fiscal year, the reporting organization shall send internal audit report on prevention from, combating against money laundering to the Anti-money laundering office of the Banking Inspection and Supervision Agency.

Article 15. Documents archive

The reporting organization shall be responsible for archiving information, documents of customer identification and information, documents relating to transactions to be reported in accordance with provisions in the Decree No.74 and this Circular for at least 5 years from the closing of the account or from the ending of the transaction.

Article 16. Training

1. On an annual basis, the reporting organization shall set up and carry out the program of training and raising awareness of the measures of prevention from, combating against money laundering for all officers and staff relating to money and other asset transactions of the reporting organization. The reporting organization must have a policy on giving priority to the training of those staff who directly transact with the customers and officers, staff in charge of prevention from, combating against money laundering.

2. The reporting organization shall, by its own decision, select the training form that is in correspondence with its organizational and operation features; take initiative in coordinating with the Banking Inspection and Supervision Agency and concerned units to organize the training for officers, staff with respect to the professional skill and operations of prevention from, combating against money laundering.

3. Contents of officers, staff training must be in line with their work and level of money laundering risk relating to their work; be suitable with their responsibility for the implementation of internal regulations on the prevention from, combating against money laundering and include following main contents:

a. Provisions of laws and internal regulations on the prevention from, combating against money laundering; legal responsibility in case of failing to implement provisions of laws on the prevention from, combating against money laundering.

b. Methods, tricks of money laundering and money laundering tendency in the coming time.

c. Risk of money laundering relating to the product, service, work that they are in charge of.

4. Within a period of 6 months since the time of recruiting staff to execute duties relating to monetary and other asset transactions, the reporting organization shall provide training to the new employees with basic knowledge in service of the prevention from, combating against money laundering.

Section III

IMPLEMENTING ORGANIZATION

Article 17. Implementation effectiveness

This Circular shall be effective after 45 days since its signing date. In the implementation, any problem or difficulty, query that may arise should be reflected by the reporting organizations to the State Bank of Vietnam (through the Banking Inspection and Supervision Agency) for timely settlement.

Article 18. Implementing organization

The Director of Administrative Department, Chief of the Banking Inspection and Supervision Agency, Heads of units of the State Bank of Vietnam, Managers of the State Bank branches in provinces, cities under the central Government’s management, Chairman of the Board of Directors, General Directors (Directors) of reporting organizations shall be responsible for the implementation of this Circular.

Form No. 01

Name of the reporting organization:

…………………………………….

REPORT

ON THE CASH DEPOSIT TRANSACTIONS WITH TOTAL VALUE OF VND 200,000,000 AND MORE
(Attached to the Circular No. 22/2009/TT-NHNN dated 17 November 2009 on guiding the implementation of measures of prevention from, combating against money laundering)

Note:

(2) date, month, year when the transaction arises;

(3) Stating full name (for individual customer); full name and abbreviated name (for corporate customer);

(4) Stating fully and in details each column; if there is not information, stating “Not available”

(5) Stating total amount deposited in a day; In case of foreign currency or gold, it shall be converted into Vietnamese Dong under exchange rate or gold price at the time where the transaction arises;

(6) Stating the symbol of the type of money, gold which the customer has deposited (for example: VND, USD, EUR, XAU, etc...);

(7) Stating the number of the account to which the customer deposits their money (if any);

(8) Stating the reasons, purposes of the transaction;

(9) Officials who are in charge of money laundering prevention, combating at the unit sign and state their full name;

(10) Signing, clearly stating full name and sealing.

Form No. 02

Name of the reporting organization:

…………………………………….

REPORT

ON THE CASH WITHDRAWAL TRANSACTIONS WITH TOTAL VALUE OF VND 200,000,000 AND MORE
(Attached to the Circular No. 22/2009/TT-NHNN dated 17 November 2009 on guiding the implementation of measures of prevention from, combating against money laundering)

Note:

(2) Date, month, year when the transaction arises;

(3) Stating full name (for individual customer); full name and abbreviated name (for corporate customer);

(4) Stating fully and in details each column; if there is not information, stating “Not available”;

(5) Stating total amounts withdrawn in a day; in case of foreign currency or gold, it shall be converted into Vietnamese Dong under exchange rate or gold price at the time where the transaction arises;

(6) Stating the symbol of the type of money, gold which the customer has withdrawn (for example: VND, USD, EUR, XAU, etc...);

(7) Stating the number of the account from which customer withdraws their money (if any);

(8) Stating the reasons, purposes of the transaction;

(9) Officials who are in charge of money laundering prevention, combating at the unit sign and state their full name;

(10) Signing, clearly stating full name and sealing.

Form No. 03

Name of the reporting organization:

…………………………………….

REPORT

ON THE CASH SAVINGS DEPOSIT OR WITHDRAWAL TRANSACTIONS WITH TOTAL VALUE OF VND 500,000,000 AND MORE
(Attached to the Circular No.22/2009/TT-NHNN dated 17 November 2009 on guiding the implementation of measures of prevention from, combating against money laundering)

Note:

(2) date, month, year when the transaction arises;

(3) Stating full name of customers;

(4) Stating fully and in details each column; if there is not information, stating “not available”;

(5) Stating total amounts deposited or withdrawn in a day; in case of foreign currency or gold, it shall be converted into Vietnamese Dong under exchange rate or gold price at the time where the transaction arises;

(6) Stating the symbol of the type of money, gold which the customer has deposited or withdrawn (for example: VND, USD, EUR, XAU, etc...);

(7) Stating the number of the savings account to which the customer has deposited or from which the customer has withdrawn their money (if any);

(9) Stating the reasons, purposes of the transaction;

(10) Officials who are in charge of money laundering prevention, combating at the unit sign and stating their full name;

(11) Signing, clearly stating full name and sealing.