Nghị định 87/2019/NĐ-CP sửa đổi Nghị định 116/2013/NĐ-CP hướng dẫn Luật Phòng, chống rửa tiền

DECREE

AMENDING A NUMBER OF ARTICLES OF THE GOVERNMENT'S DECREE NO. 116/2013/ND-CP DATED OCTOBER 04, 2013 DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE ANTI-MONEY LAUNDERING LAW

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

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

Pursuant to the Anti-Money Laundering Law dated June 18, 2012;

Pursuant to the Anti-Terrorism Law dated June 12, 2013;

Pursuant to the Criminal Procedure Code dated November 27, 2015;

Pursuant to the Law on Inspection dated November 15, 2010;

Pursuant to the Law on Execution of Criminal Judgments dated June 17, 2010;

Pursuant to the Law on Enforcement of Civil Judgments dated November 14, 2008; Law on amendments to some Articles of Law on Enforcement of Congo Jungles dated November 25, 2014;

Pursuant to the Law on Organization of Criminal Investigation Bodies dated November 26, 2015;

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

At the request of the Governor of the State Bank of Vietnam;

The Government promulgates a Decree amending a number of Articles of the Government's Decree No. 116/2013/ND-CP dated October 04, 2013 detailing the implementation of a number of Articles of the Anti-Money Laundering Law.

Article 1. Amendments to a number of Articles of the Government's Decree No. 116/2013/ND-CP dated October 04, 2013 detailing the implementation of a number of Articles of the Anti-Money Laundering Law

1. Clause 2 Article 2 is amended as follows:

“2. Other organizations and individuals related to anti-money laundering (hereinafter referred to as “AML”) include:

a) Organizations providing payment services;

b) Foreign organizations and individuals or stateless persons not operating or residing in the Vietnamese territory but conducting financial transactions and/or other property transactions with the organizations and individuals mentioned in Clause 1 of this Article.”

2. Clause 3 is added to Article 2 as follows:

“3. Organizations providing payment services must implement AML measures according to regulations of AML laws for reporting entities being the financial organizations defined in Clause 3 Article 4 of the Anti-Money Laundering Law.”

3. Article 5 is amended as follows:

“Article 5. Beneficial owners

1. The reporting entity must ascertain the ultimate beneficial owner of its client and take measures to identify and update information on such beneficial owner i.e.

a) The individual having the actual ownership of an account or a transaction such as the account holder, account co-holder or any person having control over the account or benefiting from the transaction;

b) The individual having the control over a juridical person such as the individual directly or indirectly holding at least 25% of the charter capital of such juridical person; owner of a sole proprietorship or another individual having actual control over such juridical person;

c) The individual having control over an investment trust or authorization agreement such as the trustor being an individual; or another individual having control over the trustor.

2. Identification of the beneficial owner and verification of information used to identify the beneficial owner shall comply with regulations in Article 4 of this Decree, excluding the cases where the beneficial owner is an individual representing state capital in an organization.”

4. Clause 5 is added to Article 6 as follows:

“5. Based on assessment of money laundering and terrorism financing (hereinafter referred to as “ML/TF”) risks prepared by the reporting entity, the reporting entity may implement simple client identification measures for the clients with low ML/TF risks, including one or all of the following measures:

a) Information on purposes and nature of business relations is not required if such purposes and nature can be identified based on types of completed transactions or established business relations;  

b) Verification of client and beneficial owner’s identities after establishment of business relations;

c) Reduction of frequency of updates of client’s identity;

d) Alleviation of transaction monitoring and control.

The reporting entity may not implement simple client identification measures for the cases suspected to be ML/TF-related.

The State Bank of Vietnam shall take charge and cooperate with relevant Ministries and regulatory bodies in providing guidelines for the criteria used in ML/TF risk assessment for reporting entities."

5. Point a Clause 2 Article 8 is amended as follows:

 “a) Request the client to provide information as prescribed in Article 4 of this Decree and decide whether to meet the client in person when the relation is established for the first time. If not meeting the client in person, the reporting entity must apply measures, methods and technology to identify and verify the client.”

6. Points b and c Clause 2 Article 11 are amended as follows:

“b) Charter capital;

c) List of founding shareholders and list of authorized representatives for foreign shareholders being organizations (if any);”

7. Point a Clause 1 Article 14 is amended as follows:

“a) Property in a transaction is suspected to have been acquired from criminal activities when: The transaction is requested by a person denounced or charged or a suspect, defendant or convict as defined by laws on criminal procedures, and property in the transaction is owned by such individual, or originates from property owned or controlled by such individual or by individuals and/or organizations related to such individual, during or after the time the offence was committed;”

8. Point d Clause 3 Article 17 is amended as follows:

 “d) The tax authority or the assigned investigating body if the transaction related to an individual or organization is suspected to have violated tax laws, customs laws or other relevant laws. The request for information must be signed by heads or deputy heads of the tax authority and/or the assigned investigating body;”

9. Clause 5 is added to Article 17 as follows:

 “The reporting entity shall provide information at the request of investigating authorities at all levels after a denunciation, disclosed criminal information and/or requisition for charges is processed, including information pertaining to state secrets. Investigating authorities shall retain, manage and use information pertaining to state secrets received according to regulations of laws on state secrets protection.”

10. Clause 2 Article 18 is amended as follows:

“2. An organization or individual will be suspected to be involved in money laundering for the purpose of terrorism financing if:

a) The organization or individual has conducted or intends to conduct a transaction related to an organization or individual listed in a relevant resolution of the United Nations Security Council;

b) The organization or individual has conducted or intends to conduct a transaction related to an organization or individual specified in lists of terrorist and terrorism financing organizations and individuals compiled by other international organizations or countries and warned by the State Bank of Vietnam;

c) The organization or individual has conducted or intends to conduct a transaction related to an organization or individual convicted of terrorism and/or terrorism financing in Vietnam;

d) The organization or individual has conducted or intends to conduct a transaction related to a terrorist or terrorism financing organization or individual whose information is acquired from other information sources by the reporting entity.”

11. Point e Clause 2 Article 20 is amended as follows:

“e) Other transactions suspected to be related to criminal activities by the AML agency affiliated to the State Bank of Vietnam based on authenticated documents and experience.”

12. Point b Clause 3 Article 20 is amended as follows:

“b) Other transactions suspected to be related to money laundering for the purpose of terrorism financing by the AML agency affiliated to the State Bank of Vietnam based on authenticated documents and experience.”

13. Point d Clause 4 Article 20 is amended as follows:

“d) The assigned investigating bodies.”

14. Point d is added to Clause 1 Article 21 as follows:

“d) At the request of inspecting, sentence enforcement, tax and customs authorities.”

15. Clause 5 Article 20 is amended as follows:

 “5. Competent authorities shall receive information on suspicious transactions transferred by the State Bank. If there are signs constituting crimes and adequate grounds, competent authorities shall classify and process such transactions according to regulations on receipt and process of denunciations and disclosed criminal information of laws on criminal procedures. For information with unclear criminal signs, competent authorities shall classify and verify the suspicious contents.

16. Clause 4 Article 22 is amended as follows:

“4. When applying the transaction delay measure, the reporting entity must inform competent authorities via a written report and the telephone immediately and, concurrently, report to the State Bank of Vietnam.”

17. Article 23 is amended as follows:

“Article 23. Account freeze and property sealing or impoundment

1. The reporting entity shall freeze an account or seal or impound property upon decision of competent authorities.

2. The competent authorities defined in regulations of criminal procedure laws, sentence enforcement laws and investigation laws have the power to decide to request reporting entities to freeze accounts or seal or impound property and shall be answerable for such decision.

3. Account freeze or property sealing or impoundment must be recorded in writing and include the following basic information: Name of the reporting entity freezing the account or sealing or impounding property; full name of the account holder or organization/individual related to property being sealed or impounded; frozen amount; beginning and end of period of account freeze or property sealing or impoundment; reason for requesting account freeze or property sealing or impoundment; or using the specimen used in criminal procedures.

4. The reporting entity must report to the State Bank of Vietnam in writing immediately after freezing an account or sealing or impounding property according to the regulation of Clause 1 of this Article.

5. The State Bank of Vietnam shall ex officio cooperate with competent authorities in freezing accounts or sealing or impounding property according to regulations of Clause 1 herein.”

Article 2. Responsibilities

Ministers, heads of Ministerial-level agencies, heads of Governmental agencies, Chairpersons of People’s Communities of provinces and central-affiliated cities and relevant organizations and individuals shall implement this Decree.

Article 3. Implementation clause

This Decree takes effect from the date on which it is signed./.

---------------

This document is handled by Luật Dương Gia. Document reference purposes only. Any comments, please send to email: dichvu@luatduonggia.vn