Thông tư 20/2019/TT-NHNN sửa đổi Thông tư 35/2013/TT-NHNN hướng dẫn thực hiện quy định về phòng, chống rửa tiền do Ngân hàng Nhà nước Việt Nam ban hành

CIRCULAR

AMENDING A NUMBER OF ARTICLES OF THE CIRCULAR NO. 35/2013/TT-NHNN DATED DECEMBER 31, 2013 GUIDING IMPLEMENTATION OF A NUMBER OF REGULATIONS ON ANTI-MONEY LAUNDERING

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 Law on Customs dated June 23, 2014;

Pursuant to 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 Government’s Decree No. 87/2019/ND-CP dated November 14, 2019 amending a number of Articles of the 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 Government’s Decree No. 122/2013/ND-CP dated October 11, 2013 on suspension of circulation, freeze, sealing, impoundment and disposal of colors and patterns involved in terrorism and terrorism financing; and compilation of the list of organizations and individuals involved in terrorism and terrorism financing;

Pursuant to the Government’s Decree No. 16/2017/ND-CP dated February 17, 2017 on functions, tasks, authority and organizational structure of the State Bank of Vietnam;  

At the request of the Chief Banking Inspector,

The Governor of the State Bank of Vietnam promulgates a Circular amending a number of Articles of the Circular No. 35/2013/TT-NHNN dated December 31, 2013 guiding implementation of a number of regulations on anti-money laundering.

Article 1. Amendments to a number of Articles of the Circular No. 35/2013/TT-NHNN dated December 31, 2013 guiding implementation of a number of regulations on anti-money laundering

1. Article 1 is amended as follows:

“Article 1. Scope

This Circular provides for enhanced assessment of high risk clients; update of client’s information; announcement of list of foreign individuals of political influence; anti-terrorism financing; content and forms of reports, including reports on high value transactions, suspicious transactions, electronic money transfers, and money laundering (“ML”) for the purpose of terrorism financing (“TF”); values of foreign currencies in cash, Vietnamese dong in cash, precious metals and precious stones, and negotiable instruments requiring custom declaration and documents to be presented to customs authorities at border checkpoints when individuals entering or exiting Vietnam carry foreign currencies in cash, Vietnamese dong in cash, precious metals and/or precious stones.”

2. Article 3a is added after Article 3 as follows:

 “Article 3a. Assessment of money laundering and terrorism financing risks

The reporting entity holds the following responsibilities:

1. Based on results of ML/TF risk assessments of its country, sector and area, the reporting entity must conduct an ML/TF risk assessment to grasp its ML/TF risks (to its clients, country or region, products, services, transactions or distribution channels); the assessment result must be approved, signed and promulgated by its Board of Directors or General Director.

2. Based on the result of its ML/TF risk assessment, the reporting entity must formulate policies and procedures for management of the detected risks. Such policies and procedures must be approved, signed and promulgated by its Board of Directors or General Director.

3. Annually, the reporting entity must update and revise the result of its ML/TF risk assessment and promulgated risk management policies and procedures.

4. The reporting entity must send the result of its assessment or update of ML/TF risks and risk management policies and procedures to the State Bank (Anti-Money Laundering Department (“AML Department”)) and to its supervisory authority within 30 days starting from the date of promulgation, update or revision; and, concurrently, announce such result, policies and procedures in the whole system of the reporting entity.

5. The risk management policies and procedures must include enhanced control measures for high ML/TF risks and simple control measures for low ML/TF risks.

6. For international electronic money transactions, based on the result of the ML/TF risk assessment, the reporting entity serving beneficiaries and intermediary organizations must formulate risk-based policies and procedures to identify:

a) Transactions that have met the requirements for conduction;

b) Suitable handling measures, including transaction refusal or transaction suspension, or post-transaction monitoring measures for the transactions lacking information on the remitter and/or beneficiary as prescribed in Point c Clause 2 Article 7 of this Circular.”

3. Article 3b is added after Article 3a as follows:

 “Article 3b. Responsibilities for update of client’s information

Based on client identification measures, the reporting entities must regularly update client’s information, data, risks and business relations collected to their databases.”

4. Point c Clause 2 Article 7 and title thereof are amended as follows:

“Article 7. Electronic money transfers”

“c) The individual or organization being the remitter and individual or organization being the beneficiary:

(i) For individuals: Full name; number of unexpired identity card or passport; account number (if any); transaction code; amount of money and type of currency of the transaction; current address; permanent address; temporary address; country;

(ii) For organizations: Name; tax identification number; number of enterprise registration certificate; account number; transaction code; amount of money and type of currency of the transaction; current address; premises address; country;

(iii) For domestic electronic money transfers: If the remitter or beneficiary is a foreigner, number of visa (if any), overseas address and Vietnamese address are required in addition to the information specified in Point c(i) and c(ii) herein;

(iv) For electronic money transfers from Vietnam to another country: Number of unexpired identity card or passport of the beneficiary being an individual, and tax identification number and number of enterprise registration certificate of the beneficiary being an organization are not required;

(v) For electronic money transfers from another country to Vietnam: Number of unexpired identity card or passport of the remitter being an individual, and tax identification number and number of enterprise registration certificate of the remitter being an organization are not required.”

5. Clause 5, Clause 6 and Clause 7 are added to Article 7 as follows:

“5. For international electronic money transfers of USD one thousand or more, the reporting entity serving the beneficiary must verify and identify the beneficiary according to regulations of Article 11 of the Anti-Money Laundering Law (“AML Law”) and retain such identification information as prescribed by law. 

6. During and after the transfers, the reporting subject serving the beneficiary must implement monitoring measures to detect international electronic money transfers that lack information on the persons issuing the transfer orders or beneficiaries according to regulations of Point c Clause 2 herein and the handling measures defined in Point b Clause 6 Article 3a.

7. The reporting entity must implement measures for account suspension and freeze, and sealing and impoundment of cash and property and comply with regulations that prohibit transactions with organizations and individuals involved in terrorism and TF that are included in designation lists in Resolutions of the United Nations Security Council (“designation list”) and black lists compiled by the Ministry of Public Security according to regulations of laws (“black list”).”

6. Clause 1 Article 8 is amended as follows:

“1. When detecting or there are grounds for presuming that an organization or individual included in a designation list or black list or another organization or individual has committed an act related to TF or ML for the purpose of TF, the reporting entity shall report to the anti-terrorism force of the Ministry of Public Security and the AML Department as regulated by Article 10 of this Circular.”

7. Point c Clause 2 Article 8 is amended as follows:

“c) An organization or individual committing an act related to TF or ML for the purpose of TF: Name; nationality; other information such as number of unexpired identity card or passport, number of business registration certificate or enterprise registration certificate, tax identification number, address, account number and transaction code;”

8. Title of Article 9 is amended and Clause 4 is added to Article 9 as follows:

“Article 9. Values of foreign currencies in cash, Vietnamese dong in cash, precious metals, precious stones and negotiable instruments requiring customs declaration and documents to be presented to customs authorities at border collies when individuals entering or exiting Vietnam carry foreign currencies in cash, Vietnamese dong in cash, precious metals and/or precious stones requiring customs declaration”

“4. When individuals, including residents and non-residents, enter or exit Vietnam and carry foreign currencies in cash, Vietnamese dong in cash, precious metals and/or precious stones  requiring customs declaration, they shall present the following documents to customs authorities at border checkpoints:

a) For precious metals and precious stones (excluding gold):

(i) Invoices of enterprises or organizations permitted to trade precious metals and/or precious stones; or other documents proving the legal origin of the precious metals and precious stones if such invoices are not available;

(ii) The documents presented to customs authorities at border checkpoints must be the authentic copies or certified true copies according to regulations of laws;

b) For foreign currencies in cash, Vietnamese dong in cash and gold, the documents presented to customs authorities at border checkpoints are stipulated by the State Bank;

c) If an invoice or a document proving the origin is in a foreign language:

(i) For individuals exiting Vietnam: a certified Vietnamese translation as prescribed by law, unless the individual has presented the authentic copy or certified true copy earlier;

(ii) For individual entering Vietnam: the authentic copy or certified true copy.”

9. Article 10b is amended as follows:

 “Article 10b. Anti-terrorism financing

1. The reporting entities must promptly check for updates on the designation lists and black lists posted on the web portal of the Ministry of Public Security, and review their clients, relevant parties and transactions according to these lists. 

2. The reporting entities must implement the measures provided for from Article 3 to Article 14 and from Article 16 to Article 18 of the (amended) Government's Decree No. 116/2013/ND-CP dated October 04, 2013 detailing the implementation of a number of Articles of the AML Law to identify clients and apply measures for prevention of TF and ML for the purpose of TF.

3. If suspecting a client or a client’s transaction to be involved in TF or ML for the purpose of TF, the reporting entity must delay the transaction according to regulations of AML laws or suspend or freeze the account, or seal or impound cash and/or property according to regulations of anti-terrorism laws; report the transaction suspected of TF or ML for the purpose of TF to the AML Department; report the transaction delay, account suspension or freeze, cash and/or property sealing or impoundment to the Ministry of Public Security and AML Department as prescribed in Article 10 of this Circular.

4. Contents and deadlines of the reports are specified in Clause 2 and Clause 3 Article 8 of this Circular."

10. Article 10c is added after Article 10b as follows:

 “Article 10c. Update of information of clients involved in legal arrangements

1. Legal arrangements are trust agreements made in writing between domestic and foreign organizations and individuals.

2. Besides the required client's information defined in regulations of Articles 9 and 10 of the AML Law, the reporting entity shall request its client to provide information to determine such client’s involvement in legal arrangements upon account opening, business relation establishment or conducting high value transactions. Such information includes:

a) Name of the trustor (if any);

b) Date of the trust agreement;

c) Contents of the trust agreement, including value of the money and assets placed in the trust;

d) Home country of the trustor;

dd) The trust’s identification number assigned by competent authorities (if any);

e) Information on identity of the beneficiary and information on relevant organizations and individuals (if any).

3. The reporting entity shall verify and retain trust-related documents containing the required information specified in Clause 2 of this Article.”

11. Article 12 is amended as follows:

“Article 12. Responsibilities

The Banking Supervision Agency (AML Department) shall:

1. Propose to the Governor announcement of the national risk assessment result and national action plan for resolution of ML and TF risks to the Ministry of Public Security, Ministry of Finance, Ministry of Construction, Ministry of Natural Resources and Environment, Ministry of Planning and Investment, Ministry of Justice, Ministry of Industry and Trade, Ministry of Inflammation and Comprehension, Ministry of Home Affairs, Ministry of Foreign Affairs, Ministry of National Defense, Ministry of Transport, Ministry of Science and Technology; Government Inspectorate; Committee for Foreign Non-Governmental Organization Affairs and the reporting entities under state management of the State Bank; and post such result and plan on the web portal of the State Bank.

2. Take charge and cooperate with relevant units in developing and proposing guidelines on criteria used in ML/TF risk assessment for the reporting entities to the Governor.

3. Propose regulations on implementation of enhanced assessment measures suitable to levels of ML risks in business relations and transactions with clients being organizations and individuals from countries and territories with high ML/TF risks specified by the Financial Action Task Force (FATF) to the Governor and inform such regulations to the reporting entities for their compliance.

4. Submit list of countries and territories with high ML/TF risks to the Governor 07 (seven) days after the date on which such list was announced by the FATF for the Governor to request the bodies specified in Clause 1 of this Article and the reporting entities to implement suitable enhanced assessment measures in writing.

5. Advise the Governor on formulation of inspecting and monitoring plans, and inspect, monitor and handle violations of the reporting entities within its competence according to the levels of ML/TF risks of the country and each area and reporting entity.”

Article 2. Responsibilities

Head of Office of the State Bank, Chief Banking Inspector, heads of relevant affiliates of the State Bank, Directors of State Bank branches of provinces and central-affiliated cities and the reporting entities specified in Clause 1 Article 2 of the Circular No. 35/2013/TT-NHNN shall implement this Circular.

Article 3. Effect

1. This Circular takes effect from November 14, 2019.

2. Clause 5 Article 1 of the Circular No. 31/2014/TT-NHNN dated November 11, 2014 by the Governor of the State Bank of Vietnam amending a number of Articles of the Circular No. 35/2013/TT-NHNN dated December 31, 2013 guiding implementation of a number of regulations on anti-money laundering is annulled./.

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