Nghị định 151/2018/NĐ-CP sửa đổi, bổ sung Nghị định về điều kiện đầu tư, kinh doanh thuộc quản lý Nhà nước của Bộ Tài chính

THE GOVERNMENT

Decree No. 151/2018/ND-CP dated November 07, 2018 of the Government on amendments to some Decrees on business conditions under the management of the Ministry of Finance

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

Pursuant to the Law on Securities dated June 29, 2006 and Law on amendments a number of Articles of the Law on Securities dated November 24, 2010;

Pursuant to the Law on Insurance Business dated December 09, 2000 and Law on amendments a number of Articles of the Law on Insurance Business dated November 24, 2010;

Pursuant to the Law on Independent Audit dated March 29, 2011;

Pursuant to the Law on Prices dated June 20, 2012;

Pursuant to the Law on Accounting dated November 20, 2015;

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

Pursuant to the Law on amendments to Article 6 and Appendix 4 on the List of conditional business lines stipulated in the Law on Investment dated November 22, 2016;

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

At the request of the Minister of Finance;

The Government hereby promulgates a Decree on amendments to some Decrees on business conditions under the management of the Ministry of Finance.

Chapter I

ACCOUNTING AND AUDITING

Article 1. To amend and repeal a number of Articles of the Decree No. 84/2016/ND-CP dated July 01, 2016 on standards and conditions to be satisfied by eligibility requirements for practicing auditors and auditing firms accredited to provide audit services for public interest entities

1. To amend a number of Articles of the Decree No. 84/2016/ND-CP dated July 01, 2016 as follows:

a) To amend Point dd Clause 1 of Article 5 as follows:

“dd) At least 200 entities receive audit reports on their annual financial statements issued by the auditing firm from October 01 of the previous year to September 30 of the year in which the application for registration is submitted.”

b) To amend Points b and c Clause 2 of Article 5 as follows:

“b) It has operated in Vietnam for at least 24 months from the date on which the initial list of practicing auditors is approved by a competent authority or an initial certificate of eligibility for provision of audit services is issued to the submission date of application;

c) At least 250 entities receive audit reports on their annual financial statements issued by the auditing firm from October 01 of the previous year to September 30 of the year in which the application for registration is submitted.”

2. To repeal a number of Articles of the Decree No. 84/2016/ND-CP dated July 01, 2016 as follows:

a) To repeal Points a, e, g, h and i Clause 1 of Article 5.

b) To repeal Clause 2, Point g Clause 4 and Clause 5 of Article 9.

Article 2. To repeal a number of Articles of the Decree No. 174/2016/ND-CP dated December 30, 2016 on detailing a number of articles of the Law on Accounting

1. To repeal Points b, d and dd Clause 1 of Article 30.

2. To repeal Points b and d Clause 1 of Article 34.

Article 3. To repeal a number of Articles of the Decree No. 17/2012/ND-CP dated March 13, 2012 detailing and guiding the implementation of a number of articles of the Law on independent audit

1. To repeal Clause 2 of Article 6.

2. To repeal Points b, dd and g Clause 1 of Article 11.

Chapter II

LOTTERY, PRIZE-REWARDING ELECTRONIC GAMES FOR FOREIGNERS, CREDIT RATING SERVICES, CASINO, BETTING AND VOLUNTARY RETIREMENT FUND MANAGEMENT SERVICES

Article 4. To amend and repeal a number of Articles of the Government’s Decree No. 30/2007/ND-CP dated March 01, 2007 on lottery business

1. To amend Point a Clause 2 of Article 12 as follows:

“a) Regarding an individual, he/she must be a Vietnamese citizen who permanently resides in Vietnam. Regarding an organization, it must be a business entity legally established and operating in Vietnam;”

2. To repeal Clause 2 of Article 23.

Article 5. To repeal Clause 9 Article 1 of the Government’s Decree No. 78/2012/ND-CP dated October 05, 2012 on amendments a number of Articles of the Government’s Decree No. 30/2007/ND-CP dated March 01, 2007 on lottery business.

Article 6. To amend and repeal a number of Articles of the Government’s Decree No. 86/2013/ND-CP dated July 29, 2013 on the business of prize-winning electronic games for foreigners

1. To amend a number of Articles of the Government’s Decree No. 86/2013/ND-CP dated July 29, 2013 as follows:

a) To amend Points b and c Clause 2 of Article 5 as follows:

“b) It is required to install electronic equipment and camera system for constant monitoring and surveillance of all activities carried out within the business location (24/24h). All footages must be stored within at least 15 days from the recording date. All footages recorded at the entrance gate, in areas where prize-rewarding electronic gaming machines are located, checkout counter and areas where cash or tokens are converted and cash and token containers are located must be stored within at least 30 days from the recording date;

c) It is required to satisfy security and order conditions as prescribed by the law on security and order conditions for some business lines subject to conditions;”

b) To amend Clause 1 of Article 19 (amended in Clause 6 Article 1 of the Government’s Decree No. 175/2016/ND-CP dated December 30, 2016 on amendments a number of Articles specified in the Government’s Decree No. 86/2013/ND-CP dated July 29, 2013 on the business of prize-rewarding electronic games for foreigners) as follows:

“1. A company shall only qualify for the certification of eligibility for prize-rewarding electronic gaming business after registering for conducting the prize-rewarding electronic gaming business pursuant to the Law of Investment and the Enterprise Law and satisfying all conditions specified in Clause 3 of this Article.”

c) To amend Point c Clause 3 of Article 19 as follows:

“c) There are persons in charge of managing or controlling the casino. Such persons must obtain at least a bachelor’s degree and have at least 03 years of experience in the management of business of prize-winning electronic games.”

d) To amend Point e Clause 3 of Article 19 as follows:

“e) The company must have a prize-winning electronic game business plan to maintain security and social order as prescribed by law.”

dd) To amend Clause 9 of Article 20 as follows:

“9. A business plan contains at least: Targets, quantity and categories of prize-rewarding electronic games, expected needs for foreign currency receipt and spending, measures to assure security and social order of the business location and methods for implementing the plan."

2. To repeal Point d Clause 3 of Article 19.

Article 7. To amend and repeal a number of Articles of the Government’s Decree No. 88/2014/ND-CP dated September 26, 2014 on credit rating services

1. To amend Clauses 7 and 8 Article 14 of the Government’s Decree No. 88/2014/ND-CP dated September 26, 2014 as follows:

“7. Have a business process satisfying regulations in Article 31 of this Decree.

8. Have a business plan made in accordance with Article 8 of this Decree and containing at least:

a) Expected revenues and operating costs;

b) Expected data sources to be used.”

2. To repeal a number of Articles of the Government’s Decree No. 88/2014/ND-CP dated September 26, 2014 as follows:

a) To repeal Clauses 1 and 10 of Article 14;

b) To repeal Clause 2 of Article 15;

c) To repeal Clauses 1 and 2 of Article 19;

d) To repeal Clause 1 of Article 20;

dd) To repeal Clause 1 of Article 21.

Article 8. To amend and repeal a number of Articles of the Government’s Decree No. 03/2017/ND-CP dated January 16, 2017 on casino business

1. To amend Point d Clause 1 of Article 24 as follows:

“d) There are persons in charge of managing or controlling the casino. Such persons must obtain at least a bachelor’s degree and having at least 1 year of experience in the management of casino business.”

2. To repeal Clause 3 of Article 24.

Article 9. To amend and repeal a number of Articles of the Government’s Decree No. 06/2017/ND-CP dated January 24, 2017 on business of betting on horse racing, greyhound racing and international soccer

1. To amend a number of Articles of the Government’s Decree No. 06/2017/ND-CP dated January 24, 2017 as follows:

a) To amend Points d and e Clause 1 of Article 30 as follows:

“d) A plan on investment in the technological system, technical equipment and business software to ensure their accurate, safe and stable operation;

e) A commitment to community assistance.”

b) To amend Points b and dd Clause 2 of Article 38 as follows:

“b) A plan on investment in the technological system, technical equipment and business software to ensure their accurate, safe and stable operation;

dd) A commitment to community assistance.”

2. To repeal a number of Articles of the Government’s Decree No. 06/2017/ND-CP dated January 24, 2017 as follows:

a) To repeal Point dd Clause 1 of Article 30.

b) To repeal Point d Clause 2 of Article 38.

Article 10. To amend and repeal a number of Articles of the Government’s Decree No. 88/2016/ND-CP dated July 01, 2016 on voluntary supplemental retirement program

1. To amend a number of Articles of the Government’s Decree No. 88/2016/ND-CP dated July 01, 2016 as follows:

a) To amend Point e Clause 4 of Article 16 as follows:

“e) The supervisory bank is allowed to provide other services to the retirement fund that is a party of the supervisory contract but is required to separate organizational structures of divisions in charge;”

b) To amend Clause 2 of Article 34 as follows:

“2. A retirement fund management company must not be in the restructuring planning upon regulatory body’s decision.”

2. To repeal a number of Articles of the Government’s Decree No. 88/2016/ND-CP dated July 01, 2016 as follows:

b) To repeal Point b Clause 5 of Article 34.

b) To repeal Point b Clause 4 of Article 35.

Chapter III

INSURANCE BUSINESS

Article 11. To amend and repeal a number of Articles of the Decree No.73/2016/ND-CP dated July 01, 2016 on details of implementation of the Law on Insurance business and the Law on amendments to certain articles of the Law on Insurance Business

1. To amend a number of Articles of the Decree No. 73/2016/ND-CP dated July 01, 2016 as follows:

a) To amend Point c Clause 1 of Article 6 as follows:

“c. Corporate investors contributing to at least 10% of the charter capital are required to have conducted a profitable business in 03 consecutive years immediately preceding the year in which the application for licensing is submitted;”

b) To amend the text of the second dash in Point a Clause 1 of Article 7 as follows:

Have operated for at least 7 years in the sector of business in which they intend to engage in Vietnam;”

c) To amend the text of the fourth dash in Point a Clause 1 of Article 7 as follows:

Have not seriously violated any laws on insurance business of the home country for 03 consecutive years immediately preceding the year in which the application for licensing is submitted.”

d) To amend Point a Clause 2 of Article 7 as follows:

“a) At least 02 shareholders are organizations, which meet the requirements stated in Clause 1 Article 7 of this Decree and together hold at least 20% of shares in the insurance joint-stock company to be incorporated;”

dd) To amend Point dd Clause 2 of Article 8 as follows:

“dd) Have undertaken in writing to assume liability for all duties and commitments of the branches in Vietnam;”

e) To amend Points b and c Clause 2 of Article 9 as follows:

“b) Have operated for at least 7 years in the sector of insurance brokerage.

c) Have not seriously violated any laws on insurance brokerage of the home country for 03 consecutive years immediately preceding the year in which the application for licensing is submitted.”

g) To amend Point d Clause 10 of Article 11 as follows:

“d) No serious violation of the foreign organization of any laws on insurance business in its home country for 03 consecutive years immediately preceding the year in which the application for licensing is submitted.”

h) To amend Point d Clause 11 of Article 12 as follows:

“d) No serious violation of the foreign organization of any laws on insurance business in its home country for 03 consecutive years immediately preceding the year in which the application for licensing is submitted.”

i) To amend Point d Clause 8 of Article 13 as follows:

“d) No serious violation of the foreign non-life insurance enterprise of any laws on insurance business of its home country for 03 consecutive years immediately preceding the year in which the application for licensing is submitted.”

k) To amend Clause 9 of Article 13 as follows:

“9. The written undertaking(s) of the foreign non-life insurance enterprise as per Clause 2 Article 8 of this Decree.”

l) To amend Point c Clause 10 of Article 14 as follows:

“c) No serious violation of the foreign organization of any laws on insurance brokerage in its home country for 03 consecutive years immediately preceding the year in which the application for licensing is submitted.”

2. To repeal a number of  Articles of the Decree No. 73/2016/ND-CP dated July 01, 2016 as follows:

a) To repeal Point a of Clause 1, and Clause 2 of Article 6;

b) To repeal the text of the first dash in Point b of Clause 1, and Point b Clause 2 of Article 7;

c) To repeal Point c Clause 2 of Article 8;

d) To repeal Point a Clause 8 of Article 13;

dd) To repeal Points a and c Clause 1; Points a and c Clause 2; Point b Clause 3; Points a and b Clause 4 of Article 86.

Chapter IV

VALUATION

Article 12. To amend Clause 1 Article 18 of the Government’s Decree No. 89/2013/ND-CP dated August 06, 2013 detailing a number of articles of the Price Law regarding valuation

“1. The total stake of the shareholder that is an organization or of the contributing member that is an organization must not exceed 35% of charter capital of the valuation joint-stock company or valuation multi-member limited liability company.”

Chapter V

SECURITIES TRADING

Article 13. To amend a number of Articles of the Government’s Decree No. 58/2012/ND-CP dated July 20, 2012 stipulating in detail and guiding the implementation of a number of articles of the Securities Law and the Law amending and supplementing a number of Articles of Securities Law

1. To amend Point b Clause 1 of Article 71 as follows:

“b) Proprietary trading: VND 50 billion;”

2. To amend Point b Clause 6 of Article 71 as follows:

“b) The organization has conducted a profitable business during the latest 2 years. In addition:

In case the organization is a commercial bank, insurance enterprise or securities-trading organization, it must not be under operational control, special control or other warning status and must fulfill all conditions to contribute capital and make investment in accordance with applicable laws.

In case the organization is another business entity:

- It has operated for at least 05 consecutive years immediately preceding the year in which it contributes capital for establishment of the securities-trading organization.

- After deducting long-term assets, the remaining of the equity is at least equal to the intended contribution;

- The working capital is at least equal to the intended contribution.”

3. To amend Point a Clause 1 of Article 74 as follows:

“a) The organization must be regularly under supervision of the finance, banking or securities authority in the country where the organization is established and operates;”

4. To amend Clause 2 of Article 74 as follows:

“2. The foreign securities-trading organization providing securities brokerage services is entitled to establish a representative office of the securities company in Vietnam if the conditions mentioned in Points a and b Clause 1 of this Article are met.”

Article 14. To amend and repeal a number of Articles of the Government’s Decree No. 86/2016/ND-CP dated July 01, 2016 on requirements for investment and trading in securities

1. To amend a number of Articles of the Government’s Decree No. 86/2016/ND-CP dated July 01, 2016 as follows:

a) To amend Clause 1 of Article 5 as follows:

“1. Requirements pertaining to premises, facilities and equipment:

Have premises ensuring securities trading; adequate facilities, office equipment, computer and software system for investment analysis, risk analysis and management, storage of documents and equipment, and equipment for assurance of security in premises of the company in accordance with regulations on business process. Securities underwriting service and securities investment consulting services are not required to satisfy the requirements pertaining to equipment.”

b) To amend Points a, b and d Clause 3 of Article 5 as follows:

“a) He/she is not facing a criminal prosecution or serving an imprisonment sentence or is prohibited from business practicing job by a court as prescribed by law;

b) He/she must have at least 02 years experience of working in services departments in the field of finance, banking and/or securities or in finance, accounting and/or investment departments of other enterprises and have at least 02 years experience in administration;

d) He/she is not facing penalty/penalties as prescribed by laws on securities and securities market within the latest 06 months from the submission date of application;”

c) To amend Point b Clause 1 of Article 8 as follows:

“b) It is not in the state of warning, control, special control, mandatory suspension, voluntary suspension, consolidation, acquisition, dissolution, or bankruptcy;

d) To amend Points a and d Clause 4 of Article 8 as follows:

“a) It is licensed to provide securities brokerage, proprietary trading and securities underwriting services and has its provision of day trading service adopted by the Board of Directors or Board of Members or owner(s) of the securities company;

d) Liquidity ratio accounts for at least 220% in the latest 06 consecutive months by the time of registration of day trading services.”

dd) To amend Point a Clause 1 of Article 10 as follows:

“a) It is operating legally, not in the state of consolidation, merger, full division, partial division, dissolution, or bankruptcy; is licensed to provide securities trading services that are expected to register for the branch in Vietnam; the securities authority of the home country has signed bilateral or multilateral arrangements with State Securities Commission of Vietnam;”

e) To amend Point b Clause 3 of Article 11 as follows:

“b) He/she must have at least 04 years experience of working in services departments in the field of finance, banking, and/or insurance or in finance, accounting and/or investment departments of other enterprises;”

g) To amend Clause 4 of Article 11 as follows:

“4. Requirements pertaining to shareholders and contributing members:

Structure of shareholders and conditions to be satisfied by contributing members shall comply with Clauses 5, 6, 8 and 10 Article 71 of the Decree No.58/2012/ND-CP and regulations on foreign contractors in Clauses 21 and 24 Article 1 of the Decree No. 60/2015/ND-CP. In the cases where the fund management company is structured in the form of a single member limited liability company, the owner must be a commercial bank, an insurer, a securities company or a foreign organization satisfying the requirements prescribed in Article 4 of this Decree.”

2. To repeal a number of Articles of the Government’s Decree No. 86/2016/ND-CP dated July 01, 2016 as follows:

a) To repeal Point dd of Clause 3, and Point a Clause 4 of Article 5;

b) To repeal Points c and d Clause 1 of Article 8;

c) To repeal Point d Clause 3 of Article 11;

d) To repeal Clause 1 of Article 12;

dd) To repeal Point c of Clause 1, and Point a Clause 2 of Article 13;

e) To repeal Points a and b Clause 3 of Article 14;

g) To repeal Clause 4 of Article 17;

h) To repeal Clauses 3 and 4 of Article 18;

i) To repeal Article 19.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 15. Effect and transition clause

1. This Decree takes effect on the signing date.

2. Organizations and individuals that have submitted applications for the certificates of eligibility for business in the fields of accounting, auditing, valuation, lottery, prize-rewarding electronic games for foreigners, casino, betting, credit rating services and voluntary retirement fund management services; establishment licenses and licenses to operate in the fields of insurance business and securities trading; certificate of registration of representative office of the foreign securities-trading organization; for approval for margin trading or day trading by securities companies; for approval for provision of audit services for public interest entities by auditing firms before the effective date of this Decree but have not yet been granted the certificate/license or approval are entitled to apply business conditions mentioned in this Decree.

3. Ministers, heads of ministerial agencies, heads of Governmental agencies and Presidents of People’s Committees of provinces and central-affiliated cities shall provide guidelines and implement this Decree./.

For the Government

The Prime Minister

Nguyen Xuan Phuc