Thông tư 13/2019/TT-NHNN sửa đổi Thông tư có liên quan đến việc cấp giấy phép, tổ chức và hoạt động của tổ chức tín dụng, chi nhánh ngân hàng nước ngoài do Ngân hàng Nhà nước Việt Nam ban hành

CIRCULAR

AMENDMENTS TO CIRCULARS ON LICENSING, ORGANIZATION AND OPERATION OF CREDIT INSTITUTIONS AND FOREIGN BANKS’ BRANCHES

Pursuant to the Law on the State Bank of Vietnam dated June 16, 2010;

Pursuant to the Law on credit institutions dated June 16, 2010 and the Law on amendments to the Law on credit institutions dated November 20, 2017;

Pursuant to the Law on cooperatives dated November 20, 2012;

Pursuant to the Government’s Decree No. 26/2014/ND-CP dated April 07, 2014 on organization and operation of the Banking Supervision Agency;

Pursuant to the Government’s Decree No. 43/2019/ND-CP dated May 17, 2019 on amendments to the Government’s Decree No. 26/2014/ND-CP dated April 07, 2014 on organization and operation of the Banking Supervision Agency;

The Government’s Decree 16/2017/ND-CP dated February 17, 2017 defining the functions, tasks, powers and organizational structure of the State Bank of Vietnam;

At the request of the Head of the Banking Supervision Agency;

The Governor of the State bank of Vietnam promulgates a Circular providing amendments to Circulars on licensing, organization and operation of credit institutions and foreign banks’ branches.

Article 1. Amendments to Circular No. 03/2018/TT-NHNN dated February 23, 2018 of the Governor of the State Bank of Vietnam on licensing, organization and operation of microfinance institutions (MFIs)

1. Clause 2 Article 36 is amended as follows:

“2. Inspecting, supervising and taking actions against violations committed by MFIs during the implementation of the regulations of this Circular and other relevant provisions of law.”.

2. Clause 1 Article 37 is amended as follows:

“1. Inspecting, supervising and taking actions against violations committed by units affiliated to MFIs in the provinces in accordance with provisions of law.".

Article 2. Amendments to Circular No. 22/2018/TT-NHNN dated September 05, 2018 of the Governor of the State Bank of Vietnam on procedures and application for approval for provisional lists of personnel of commercial banks, non-bank credit institutions and foreign banks’ branches (hereinafter referred to as “Circular No. 22/2018/TT-NHNN”)

1. Clause 3 Article 3 is amended as follows:

“3. The application enclosed with a list of documents prepared by the credit institution/foreign bank’s branch shall be submitted by post or directly to the State Bank or the branch of the State Bank in the province or central-affiliated city (hereinafter referred to as “State Bank’s provincial branch”) according to their competence prescribed in Article 4 of this Circular.”.

2. Article 4 is amended as follows:

“Article 4. Power to give approval for provisional lists of personnel of credit institutions and foreign banks’ branches

1. The Governor of the State Bank of Vietnam shall consider approving provisional lists of personnel of credit institutions and foreign banks’ branches, except cases prescribed in Clause 2 of this Article.

2. Director of each State Bank’s provincial branch shall consider approving provisional lists of personnel of foreign banks’ branches that have their headquarters located in that province and are subject to micro-inspection of the State Bank’s provincial branch.”.

3. Point b Clause 1 Article 6 is amended as follows:

 “b) The provisional list of personnel, which specifies full names, titles and current working units; titles to be elected or appointed at the credit institution; names of recommenders; percentages of shares owned or capital contributed by persons acting as representatives as authorized by recommenders (if any);”.

4. Point dd is added to Clause 1 Article 6 as follows:

“dd) The written commitment to ensure that the personnel to be elected or appointed are not prohibited from holding certain positions in accordance with regulations of the Law on Credit Institutions.”.

5. Clause 4 Article 6 is amended as follows:

“4. Criminal record of personnel to be elected or appointed:

a) In case the proposed personnel holds Vietnamese nationality, his/her criminal record must be issued by the agency managing criminal record database and contain sufficient information about criminal records (including the criminal records that have been or not been expunged) and prohibition from holding certain positions, incorporation and management of enterprises and cooperatives;

b) In case the proposed personnel does not hold Vietnamese nationality, his/her criminal record or another document of equivalent validity (which contains sufficient information about criminal records and prohibition from holding certain positions, incorporation and management of enterprises and cooperatives) must be issued by a Vietnamese competent authority or foreign competent authority as prescribed. In case the criminal record or another document of equivalent validity issued by a foreign competent authority does not contain information about the prohibition from holding certain positions, incorporation and management of enterprises and cooperatives, the owner (if the credit institution is a single-member limited liability company), the capital contributor (if the credit institution is a multi-member limited liability company), shareholder, group of shareholders, Board of Directors or Board of Controllers (if credit institution is a joint-stock company) that recommends personnel shall give a written explanation that there is no competent authority in the issuing country issuing the criminal record or another document of equivalent validity which contains the required information and give a written commitment to ensure that the proposed personnel is not prohibited from holding certain positions in accordance with regulations of the Law on Credit Institutions;

c) The criminal record or another document of equivalent validity prescribed in Point a and Point b of this Clause must be issued by a competent authority at least 06 months before the credit institution submits the application for approval for its provisional list of personnel.”.

6. Clause 2a is added to Clause 2 Article 7 as follows:

 “2a. Criminal record of personnel to be appointed:

a) In case the personnel to be appointed holds Vietnamese nationality, his/her criminal record must be issued by the agency managing criminal record database and contain sufficient information about criminal records (including the criminal records that have been or not been expunged) and prohibition from holding certain positions, incorporation and management of enterprises and cooperatives;

b) In case the personnel to be appointed does not hold Vietnamese nationality, his/her criminal record or another document of equivalent validity (which contains sufficient information about criminal records and prohibition from holding certain positions, incorporation and management of enterprises and cooperatives) must be issued by a Vietnamese competent authority or foreign competent authority as prescribed. In case the criminal record or another document of equivalent validity issued by a foreign competent authority does not contain information about the prohibition from holding certain positions, incorporation and management of enterprises and cooperatives, the foreign bank shall give a written explanation that there is no competent authority in the issuing country issuing the criminal record or another document of equivalent validity which contains the required information and give a written commitment to ensure that the personnel to be appointed is not prohibited from holding certain positions in accordance with regulations of the Law on Credit Institutions;

c) The criminal record or another document of equivalent validity prescribed in Point a and Point b of this Clause must be issued by a competent authority at least 06 months before the foreign bank’s branch submits the application for approval for its provisional list of personnel.”.

7. Clause 3 Article 7 is amended as follows:

“3. The documents prescribed in Clauses 3, 5, 6, 8 Article 6 of this Circular.".

8. Article 8 is amended as follows:

“Article 8. Procedures for approval for provisional lists of personnel of credit institutions and foreign banks’ branches

1. The credit institution or foreign bank’s branch shall prepare and submit an application as prescribed in Article 6 or Article 7 of this Circular to the State Bank if it is subject to Clause 1 Article 4 of this Circular or to the State Bank's branch if it is subject to Clause 2 Article 4 of this Circular. If the application is unsatisfactory, within 07 working days from the receipt of the application, the State Bank (via the Banking Supervision Agency) or the State Bank’s branch shall request the credit institution or foreign bank’s branch in writing to complete it.

2. The credit institution or foreign bank’s branch shall complete the application at the request of the State Bank (via the Banking Supervision Agency) or the State Bank’s branch within a maximum period of 45 working days from the date on which additional documents are requested in writing by the State Bank (via the Banking Supervision Agency) or the State Bank’s branch. After the aforementioned time limit, the credit institution or foreign bank’s branch shall re-submit an application as prescribed in this Circular to the State Bank or State Bank’s branch for consideration.

3. Within 30 working days from the receipt of satisfactory application prescribed in Articles 6 and 7 of this Circular, the State Bank or State Bank’s branch shall send a written approval or written rejection of the provisional list of the credit institution or foreign bank’s branch.

In case of rejection, a written explanation shall be provided for the credit institution or foreign bank’s branch.”.

9. Article 11 is amended as follows:

“Article 11. Notification and reporting

1. The credit institution or foreign bank’s branch shall promptly notify the State Bank in writing of changes related to the fulfillment of standards and conditions by personnel to be elected or appointed that occur during the State Bank’s processing of its application for approval for provisional list of personnel or during the period lasting from the date on which the State Bank grants the written approval for its provisional list of personnel to the date on which the personnel is elected or appointed. To be specific:

a) The credit institution or foreign bank’s branch prescribed in Clause 1 Article 4 of this Circular shall send such notification to the Banking Supervision Agency;

b) The foreign bank’s branch prescribed in Clause 2 Article 4 of this Circular shall send such notification to the State Bank’s branch in the province where its headquarters is located.

2. Within 10 working days from the date of election or appointment of President and members of Board of Directors, President and members of Board of Members, Head and members of Board of Controllers or Director General (or Director), the credit institution or foreign bank’s branch shall send a notification of the list of elected or appointed persons, made using the form provided in the Appendix 03 enclosed herewith, to the State Bank in accordance with Points a, b Clause 1 of this Article.”.

10. Clause 1 Article 12 is amended as follows:

“1. The Banking Supervision Agency shall take charge of assessing the fulfillment of application requirements, standards and conditions of personnel to be elected or appointed by credit institutions and foreign banks’ branches that are subject to Clause 1 Article 4 of this Circular in accordance with regulations of the Law on Credit Institutions and this Circular; taking opinions from relevant agencies; consolidating and requesting the State Bank's Governor to grant written approval or rejection to applications for approval for provisional lists of personnel of credit institutions and foreign banks’ branches.”.

11. Clause 3 Article 12 is amended as follows:

“3. Receive and review notifications of credit institutions and foreign banks’ branches as regulated in Clause 2 Article 11 of this Circular. If errors are found, the Banking Supervision Authority shall request the credit institutions and foreign banks’ branches to correct them or propose correction measures to the Governor of the State Bank.”.

12. Article 13 is amended as follows:

“Article 13. Responsibility of each State Bank's branch

1. Within 30 working days from the receipt of satisfactory application from a foreign bank's branch that is subject to Clause 2 Article 4 of this Circular, the State Bank’s branch shall assess the fulfillment of application requirements, standards and conditions of personnel to be elected or appointed by that foreign bank's branch in accordance with regulations of the Law on Credit Institutions and this Circular; take opinions from relevant agencies; grant written approval or rejection to applications for approval for the provisional list of personnel of that foreign bank's branch.

2. The State Bank’s branch shall give written opinions at the Banking Supervision Agency within 05 working days from the receipt of the written request from the latter.

3. Receive notifications from foreign banks’ branches as prescribed in Clause 1 Article 11 of this Circular; consider the fulfillment of standards and conditions of personnel to be elected or appointed or propose solutions therefor.

4. Receive and review notifications of foreign banks’ branches as regulated in Clause 2 Article 11 of this Circular. If errors are found, the State Bank’s branch shall request the foreign banks’ branches to correct them or propose measures for correction of errors beyond its power to the Governor of the State Bank.”.

13. Point a4 is added to Point 4 of the Appendix 01 as follows:

 “4a. Information about prohibition from holding certain positions, incorporation and management of enterprises and cooperatives (in case the criminal record or another document of equivalent validity issued by foreign competent authority does not contain this information).".

Article 3. Amendments to Circular No. 23/2018/TT-NHNN dated September 14, 2018 of the Governor of the State Bank of Vietnam on restructuring, license revocation and liquidation of assets of people’s credit funds

1. Point c(iii) Clause 1 Article 13 is abrogated.

2. Point d Clause 1 Article 13 is amended as follows:

“d) Within 15 days from the receipt of the written request for opinions, the Commune-level People’s Committee shall provide its opinions about requested contents;”.

3. Point c, Point d Clause 1 Article 17 are amended as follows:

“c) Within 15 days from the receipt of the satisfactory application, the State Bank’s branch shall send its written request to:

(i) The Commune-level people’s committee of the place where the headquarters of the people's credit fund is located for its opinions about the dissolution and license revocation, and their impacts on local political, social and economic stability;

(ii) The Co-operative Bank of Vietnam for its opinions about impacts of the dissolution and license revocation;

d) Within 15 days from the receipt of the written request for opinions from the State Bank's branch, the agencies mentioned in Point c of this Clause are required to provide written opinions about requested contents;”.

4. Clause 2 Article 27 is amended as follows:

“2. The liquidation supervision team shall consist of at least 03 members, including representatives of the State Bank’s branch, Cooperative Bank of Vietnam and Deposit Insurance of Vietnam (in case the Deposit Insurance of Vietnam grants special loans to the people’s credit fund).”.

5. Point d Clause 1 Article 31 is amended as follows:

“d) Inspect the restructuring of local people’s credit funds in accordance with regulations herein and relevant laws.”.

6. Article 32 is amended as follows:

“Article 32. Responsibility of Banking Supervision Agency

1. Take charge of receiving reports from State Bank’s branches on approval for restructuring, license revocation and liquidation of assets of people's credit funds in accordance with regulations in Clause 3 Article 31 hereof.

2. Take charge of providing advice and requesting the State Bank’s Governor to make decisions on amendments to regulations on restructuring, license revocation and liquidation of assets of people’s credit funds.

3. Take charge of providing advice and requesting the State Bank’s Governor to consider and request the Government to make decisions on guidelines for dissolution of people’s credit funds placed under special control as regulated in Clause 1 Article 18 hereof.”.

Article 4. Amendments to Circular No. 36/2014/TT-NHNN dated November 20, 2014 of the Governor of the State Bank of Vietnam providing for prudential ratios and limits for operations of credit institutions and foreign banks’ branches

Point c Clause 1 and Clause 5 Article 29 are abrogated.

Article 5. Transition

Applications for approval for provisional lists of personnel of foreign banks’ branches submitted to the Banking Supervision Agency before August 26, 2019, the Banking Supervision Agency shall continue processing received applications and request the Governor of the State Bank to consider giving approval in accordance with the Circular No. 22/2018/TT-NHNN as amended in Article 2 of this Circular.

Article 6. Responsibility for implementation

The Chief of the Office, Head of Banking Supervision Agency, heads of affiliated entities of the State Bank, Directors of the State Bank’s branches in centrally-affiliated cities and provinces, Presidents and members of Board of Directors, Presidents and members of Board of Members, Heads and members of Board of Controllers, and General Directors (or Directors) of credit institutions and General Directors (or Directors) of foreign banks’ branches shall be responsible for implementing this Circular.

Article 7. Implementation

1. This Circular comes into force from October 05, 2019, except regulations in Clause 2 of this Article.

2. Article 2 of this Circular comes into force from August 26, 2019./.

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