Thông tư 194/2014/TT-BTC sửa hướng dẫn Luật Kinh doanh bảo hiểm

THE MINISTRY OF FINANCE

Circular No.194/2014/TT-BTC dated December 17, 2014 of the Ministry of Finance onamending and supplementing a number of articles of theCircular No. 124/2012/TT-BTC dated July 30, 2012 of the Ministry of Finance guiding the implementation of a number of articles of the Government’s Decree No. 45/2007/ND-CP of March 27, 2007, detailing a number of articles of the Insurance Business Law, and the Government’s Decree No. 123/2011/ND-CP of December 28, 2011, detailing a number of articles of the Law Amending and Supplementing a Number of Articles of the Insurance Business Law and the Circular No. 125/2012/TT-BTC dated July 07, 2012 of the Ministry of Finance on guiding financial regime applicable to insurers, reinsurance businesses, insurance brokers and branches of foreign non-life insurers

Pursuant to the Law on Insurance Business 2000 and the Law amending and supplementing a number of the Law on Insurance Business 2010;

Pursuant to Decree No. 45/2007/ND-CP dated 27 March 2007 of the Government stipulating in detail the implementation of a number of articles of the Law on insurance business;

Pursuant to Decree No. 46/2007/ND-CP dated 27 March 2007 of Government stipulating the financial regulation for insurance enterprises and insurance brokerage enterprises;

Pursuant to Decree No. 123/2011/ND-CP dated 28 December 2011 of the Government stipulating in detail the implementation of a number of articles of the Law amending and supplementing of a number of articles of the Law on insurance business and amending and supplementing of a number of articles of Decree No. 45/2007/ND-CP dated 27 March 2007 of the Government stipulating in detail the implementation of a number of articles of the Law on insurance business;

Pursuant to Decree No. 68/2014/ND-CP dated 09 July 2014 of the Government amending and supplementing of a number of articles of Decree No. 45/2007/ND-CP dated 27 March 2007 of the Government stipulating in detail the implementation of a number of articles of the Law on insurance business;

Pursuant to Decree No. 215/2013/ND-CP dated 23 December 2013 of the Government defining functions, duties, power and organizational structure of the Ministry of Finance;

At the request of Director of the Insurance SupervisoryAuthority Department,

The Minister of Finance issues the Circular amending and supplementing a number of articles of Circular No. 124/2012/TT-BTC dated 30 July 2012 of the Ministry of Finance guiding the implementation of a number of articles of Decree No. 45/2007/ND-CP dated 27 March 2007 of the Government stipulating in detail the implementation of a number of articles of the Law on insurance business and Decree No. 123/2011/ND-CP dated 28 December 2011 of the Government stipulating in detail the implementation of a number of articles of the Law amending and supplementing a number of articles of the Law on Insurance Business (hereafter referred to as “Circular No. 124/2012/TT-BTC”) and Circular No. 125/2012/TT-BTC dated 30 July 2012 of the Ministry of Finance guiding the financial regulation for insurance enterprises, re-insurance enterprises, insurance brokerage enterprises and branches of foreign non-life insurance enterprises (hereafter referred to as “Circular No.125/2012/TT-BTC”).

Article 1. To amend and supplement a number of articles of Circular No. 124/2012/TT-BTC

1. To supplement item dd, Point 1.2, Clause 1, Article 5 as follows:

 “dd) The provisions specified at item a, b and c, Point 1.2 of this Clause do not apply to the Insurance Broker Joint Stock Company.”

2. To amend Clause 7 of Article 7 as follows:

 “7. Evidences which demonstrate the use right of location where the main office is planned to be located and the establishment of branches of enterprise (if any).”

3. To amend Clause 3, Article 11 as follows:

 “3. Within sixty (60) days after fully receiving valid dossier of the investor, the Ministry of Finance shall issue the Permit of establishment and operation to the insurance enterprises and branches of foreign insurance enterprises under the Form specified in Annex 2 issued with this Circular.”

4. To supplement paragraph g, Clause 2, Article 12 as follows:

 “g) Establish the infrastructure system, equipment and software of information technology to meet the requirements for corporate governance and state management of insurance business activities.”

5. To amend Clause 2, Article 13 as follows:

 “2. Within fourteen (14) days after fully receiving dossier in accordance with the provisions in Clause 1 of this Article, the Ministry of Finance shall issue the adjustment License under the Form specified in Annex 7 issued with this Circular. In case of disapproval, the Ministry of Finance shall specify the reasons in writing.”

6. To amend Point c, Clause 1 and Point b, Clause 2 of Article 15 as follows:

a) To amend Point c, Clause 1 as follows:

 “c) Within fourteen (14) days after fully receiving valid dossier in accordance with the provisions specified at Point b, Clause 1 of this Article, the Ministry of Finance shall issue a written approval or disapproval for licensing. In case of disapproval, the Ministry of Finance must specify the reasons. In case of approval, the Ministry of Finance shall issue the adjustment License under the Form specified in Annex 7 issued with this Circular.”

b) To amend Point b, Clause 2 as follows:

 “b) Within fourteen (14) days after fully receiving valid dossier in accordance with the provisions specified at Point A of this Clause 1, the Ministry of Finance shall issue a written approval or disapproval. In case of disapproval, the Ministry of Finance must specify the reasons. In case of approval, the Ministry of Finance shall issue the adjustment License under the Form specified in Annex 7 issued with this Circular.”

7. To amend Clause 2, Article 16 as follows:

 “2. Within fourteen (14) days after fully receiving valid dossier in accordance with the provisions specified in Clause 1 of this Article, the Ministry of Finance shall issue a written approval or disapproval and specify reasons in case of disapproval.”

8. To amend Clause 5, Article 17 as follows:

 “5. Within fourteen (14) days after fully receiving valid dossier in accordance with the provisions specified in Clause 3 of this Article (for insurance enterprises) and Clause 4 of this Article (for branches of foreign insurance enterprises), the Ministry of Finance shall issue a written approval or disapproval and specify reasons in case of disapproval or issue the adjustment License under the Form specified in Annex 7 issued with this Circular.”

9. To amend Clause 3, Article 21 as follows:

 “3. Within fourteen (14) days after fully receiving valid dossier in accordance with the provisions specified in Clause 2 of this Article, the Ministry of Finance shall issue the written approval or disapproval and specify the reasons in case of disapproval. If the above time limit is over but there is no written reply from the Ministry of Finance, the request for change of Chairman, General Director (Director) of insurance enterprises or of branches of foreign insurance enterprises is obviously approved.”

10. To amend and supplement Clause 4, Article 28 as follows:

 “4. Having at least three (03) years of experience working in the field of insurance.”

11. To amend Clause 4, Article 32 as follows:

 “4. Within seven (7) days after fully receiving valid dossier in accordance with the provisions specified at Point b, Clause 1 or Point b, Clause 2 of this Article, the Ministry of Finance shall issue the written approval or disapproval for appointment or change of actuary of life insurance enterprise. In case of disapproval, the Ministry of Finance shall specify the reasons. If the above time limit is over but there is no written reply from the Ministry of Finance, the request for change of actuary of insurance enterprises is obviously approved.”

12. To amend and supplement Article 34 as follows:

 “Article 34. Standards and employment of redundant actuary and affordability of non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises.

1. Standard of redundant actuary and affordability:

a) Being a fellow of insurance calculation Society or official fellow of international Society of Actuaries, or

b) Having at least five (05) years of experience working in the field of non-life insurance (for non-life insurance enterprises and branches of foreign insurance enterprises) or in the field of health insurance (for specialized health business enterprises) and having at least 02 actuary certificate issued by one of the following Societies: actuarial Society of UK, actuarial Society of Scotland, actuarial Society of America, actuarial Society of Australia and actuarial Society of Canada;

c) Having no prosecution for criminal responsibility for crimes related to his/her duties;

d) Having no violation of rules of actuarial practice ethics practice (for the case of the redundant actuary  and affordability of enterprises and branches of foreign insurance enterprises as a fellow of Society of Actuaries or official fellow of international Society of Actuaries).

2. Form of employment of redundant actuary and affordability:

Non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises are entitled to employ the redundant actuary and affordability in the following forms:

a) Employ employee of non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises.

b) Hiring actuary from the actuarial services provider;

c) Hiring or employing actuary of investor or parent company or company in the same group of non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises.

3. From 01 January 2016, the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises must use redundant actuary of profession and affordability meeting the standards specified in Clause 1 of this Article.”

13. To amend and supplement Clause 1, Article 35 as follows:

“1.The non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises shall submit a dossier to the Ministry of Finance to register the redundant actuary of profession and affordability including the following documents:

a) In case of employment of staff of non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises:

- Application for registering the redundant actuary of profession and affordability with the signature of the Chairman or General Director (Director) of the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises;

- Degree or certificate (notarized copy), curriculum vitae of the person who is expected to be appointed as the redundant actuary of profession and affordability with of the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises;

- Judicial record (the original) of the person who is expected to be appointed as the redundant actuary of profession and affordability with of the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises;

- Certificate of membership (certified copy) and certification document of Society of Actuaries on non violation of actuarial practice ethics (the original) to the time of expected appointment in case of being the fellow of Society of Actuaries.

- Labor contract (certified copy) or principle contract (the original) signed between the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises with the person who is expected to be appointed as a redundant actuary of profession and affordability.

b) In case of hiring actuary from the actuarial services provider:

- The documents specified from the first dash to the fourth dash, Point a, Clause 1 of this Article;

- Principle contract (the original) to provide services signed between the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises with the actuarial services provider;

- Establishment License of the actuarial services provider (certified copy);

c) In case of hiring or employing actuary of investor or parent company or company in the same group of non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises:

- Documents specified at Point a, Clause 1 of this Article;

- Written agreement or approval (the original) on permitting the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises to hire or employ the actuary of investor or parent company or company in the same group of non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises.”

14. To supplement Clause 2 of Article 37 as follows:

“2. Where the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises coinsure a subject, the insurance contract must specify the name of the heading non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises, the percentage of co-insurance of each non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises. The enterprises and branches of foreign insurance enterprises coinsuring must jointly take responsibility for the commitments in the insurance contract with the insurance buyer.”

15. To amend Clause 5 of Article 39 as follows:

“5. Time limit for approving the life and health insurance products

Within twenty first (21) days, from the date of fully receiving valid dossier specified in Clause 3 of this Article, the Ministry of Finance shall issue the written approval or disapproval. In case of disapproval, the Ministry of Finance must specify the reasons.”

16. To amend and supplement Clause 2 of Article 40 as follows:

“2. Where the result of insurance business of the insurance enterprise suffers from loss in two (02) consecutive financial years affecting the interests of the insurance buyer, the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises must immediately notify the Ministry of Finance of the reality, cause and remedial plan of such type of insurance and comply with the requirements of the Ministry of Finance.”

17. To supplement Point 3.6, Clause 3 and 6 of Article 41 as follows:

a) To supplement g Point 3.6, Clause 3 as follows:

“3.6. The maximum commission of insurance agent for insurance contracts of guarantee insurance is 10% ”

b) To supplement Clause 6 as follows:

“6. The life insurance enterprise shall make uniform payment of commission and management of insurance agent between the insurance agent working at enterprise and insurance agent recruited from the other life insurance enterprises.”

18. To amend and supplement Article 49 as follows:

“Article 49. Training, examination and issuance of insurance agent certificate

1. The insurance agent training establishment shall carry out the training of insurance agent in accordance with the provisions in Article 31 and 32 of Decree No. 45/2007/ND-CP dated 27 March 2007 of the Government detailing the implementation of a number of articles of the Law on insurance business.

2. The Ministry of Finance (DepartmentofInsurance Supervisory Authority) directly or coordinate with the insurance agent training establishment to organize examination and prepare exam question in accordance with current regulations of law on insurance business and approve the result of exam of insurance agent .

3. Based on the result of exam of insurance agent approved by the Ministry of Finance (DepartmentofInsurance Supervisory Authority), the insurance agent training establishment shall issue the insurance agent certificate under the Form specified in Annex 12 issued with this Circular.

4. The insurance business enterprises and branches of foreign insurance enterprises shall issue the insurance agent card to insurance agents of enterprises and branches of foreign insurance enterprises. The insurance agent card must specify the full name, code of agent with its photo. The insurance agent must wear the card while performing the insurance agent activities”.

19. To amend and supplement Clause 3 of Article 57 as follows:

“3. Within 7 days after fully receiving valid dossier specified in Clause 2 of this Article, the Ministry shall issue the adjustment License under the Form specified in Annex 20 issue with this Circular and specify the reasons in case of disapproval.”

20. To amend Clause 4 of Article 59 as follows:

“4. Within fourteen (14) days, from the date of fully receiving dossier for operation time, the Ministry of Finance shall issue a written approval or disapproval and specify the reasons in case of disapproval.”

21. To annul Clause 6 of Article 4.

22. To annul Article 48.

Article 2.To amend and supplement a number of articles of Circular No. 125/2012/TT-BTC

1. To amend and supplement the Item a, Point 3.1 and item a, Point 3.2, Clause 3, Article 4 as follows :

a) To amend and supplement the Item a of Point 3.1 as follows:

“a) Operation area: The insurance enterprises have the right to open their branches in the territory of Vietnam.”

b) To amend and supplement Item a of Point 3.2 as follows:

“a) In case of opening branches outside the territory of Vietnam, the insurance enterprises must comply with the provisions in Clause 2, Article 12 of this Circular.”

2. To amend and supplement Clause 3 and the second dash of Item b, Point 4.1, Clause 4, Article 8 as follows:

a) To amend and supplement Clause 3 as follows:

“3. The life insurance enterprises must not change the method and basic for provision appropriation of insurance operation for the financial year. In case of change of method and basic for provision appropriation of insurance operation for the following financial year, the life insurance enterprise must request the Ministry of Finance for approval in writing before application.

In case of risk of un-affordability or major change of death percentage or technical interests, the Ministry of Finance may require or at the request of the life insurance enterprise to permit the change of method and basic for provision appropriation of insurance operation accordingly”.

b) To amend and supplement the second dash of Item b, Point 4.1, Clause 4 as follows:

“Appropriation basic: The Table of mortality CSO1980, the maximum technical interest must not exceed 80% of average interest of the 10-year term Government bond issued in the last six (06) months before the time of provision appropriation and other technical bases consistent with the insurance interests which the insurance enterprises have committed to their customers for the insurance products approved by the Ministry of Finance. In case there is no 10-year term Government bond issued in the last six (06) months, the interest of 10-year term Government bond issued at the latest time before the provision appropriation.”

3. To amend the first dash of Item b, Point 1.1, Clause 1 and Item b, Point 2.4, Clause 2, Article 12 as follows:

a) To amend the first dash of Item b, Point 1.1, Clause 1 as follows:

“-The non-life insurance enterprises, specialized health business enterprises, re-insurance enterprises or branches of foreign insurance enterprises must make investment under the provisions in Clause 1, Article 14 of Decree No. 46/2007/ND-CP”

b) To amend Item b, Point 2.4 of Clause 2 as follows:

“b) Within fourteen (14) days from the date of fully receiving valid dossier, the Ministry of Finance shall issue a written approval or disapproval and specify the reasons in case of disapproval.”

4. To amend and supplement Item c, d and dd, Point 1.1, Clause 1 of Article 18 as follows:

a) To amend and supplement Item c as follows:

“c) When the insurance contract has been signed, the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises have agreement with the insurance buyer on the time limit for payment of premium (including the extension time). The time limit for payment of premium must be specified in the insurance contract as follows:

- In case of one-time payment of premium: The time limit for payment of premium must not exceed 30 days from the effective date of the insurance contract. If the insurance period is less than 30 days, the time limit for payment of premium must not exceed the insurance period.

The non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises shall record the revenues of premium paid by the insurance buyer under the agreements of insurance contract upon its effect.

- In case of periodical payment of premium: The time limit for payment of premium of the first payment of premium must not exceed the 30 days from the effective date of insurance contract. This provision does not apply to the following payments of premium.

The non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises shall record the revenues of premium of the first payment of premium upon the effective date of insurance contract and only record the revenues of premium of the following payments of premium when the insurance buyer has fully paid the premium under the agreements of insurance contract.

- Where the insurance buyer has not fully paid the premium under the time limit for payment of premium, the insurance contract shall terminate its effect upon the expiration of time limit for payment of premium.

If there is no insurance event occurred within the time limit for payment of premium, the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises shall be entitled to the revenues of premium corresponding to the time limit for payment of premium and record the reduction in revenues corresponding to the time of no arising insurance liability of the insurance contract.

In case of occurrence of insurance event within the time limit of payment of premium, the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises are responsible for insurance compensation and payment of insurance and have the right to collect all premium to be paid under the insurance contract.

- In case of insurance of goods transported for customers with a lot of shipments insured in a year and tourism insurance for customers traveling a lot in a year, if the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises and the insurance buyer have signed the principle insurance contract (package insurance contract) on the way to participate in the insurance and method of payment, the time limit for payment of premium of insurance contracts signed in this month must not be later than the 25th date of the following month .”

b) To supplement item d as follows:

“d) When the insurance contract is signed and the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises have agreed to permit the insurance buyer to owe its premium. The premium owing must be specified in the insurance contract and is applied only when the insurance buyer has its collaterals or guarantee of payment of premium.

In case of owing of premium with collateral, the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises and the insurance buyer shall comply with regulations of law on guaranteed transaction.

In case of owing of premium with guaranteed payment of premium, the guarantee organization must have a function of provision of guarantee services and contract to guarantee the payment of premium.”

c) To supplement item dd as follows:

“dd) When the insurance contract has been signed and the life insurance enterprise has agreed upon periodical payment of premium from the insurance buyer as specified in the insurance contract. The life insurance enterprise shall record the revenues of premium corresponding to the period or periods in which the premium has been generated, not record the revenues of undue premium under the insurance contract.”

5. To amend and supplement the second dash, Point h, Clause 1 of Article 19 as follows:

“Expenditure for bonus and assistance to the non-life insurance and health insurance agent corresponding to the insurance contracts done in the financial year must not exceed 50% of commission percentage of each insurance operation as specified at Points 3.1, 3.3 and 3.4, Article 41 of Circular No. 124/2012/TT-BTC.”

6. To supplement Section 7a after Section 7 as follows:

 “SEPARATE THE OWNER’S EQUITY AND PREMIUM IN NON-LIFE INSURANCE AND HEALTH INSURANCE

Article 27a. Responsibility of non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises

1. From 01 January 2016, the non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises must separate the owner’s equity and premium earned from the insurance buyer.

a) Separately monitor the revenues and expenses from the insurance business according to each type of insurance operation.

b) Record and separately monitor the properties invested from the owner’s equity and from the idle capital from the operational provision.

c) Separately monitor the revenues and expenses of financial operation related to the properties invested from the owner’s equity and from the idle capital from the operational provision.

d) The revenues and expenses related directly to the operation of the non-life enterprises, specialized health business enterprises or branches of foreign insurance enterprises shall be recorded directly to such operation. The general revenues and expenses must be allocated in the principle of rationality and consistency.

2. The Board of Directors (Member Board, Company Chairman) shall develop the mechanism and principle to allocate the general revenues and expenses as prescribed at Point d, Clause 1 of this Article and monitor the implementation of such mechanism and principle.

3. The non-life insurance enterprises, specialized health business enterprises or branches of foreign insurance enterprises are responsible for making periodical report to the Ministry of Finance on the separation of owner’s equity and premium as prescribed in Clause 1 of this Article .”

7. To supplement Point 1.6, Clause 1 of Article 29 as follows:

“1.6. Provisions at Points1.1, 1.2, 1.3 and 1.4 of this Clause do not apply to the Insurance Broker Joint Stock Company.”

8. To annul Item c, Point 3.2 of Article 4.

9. To annul Clause 4 of Article 11.

Article 3. Implementation organization

1.This Circular takes effect from 01 February 2015.

2. Any problem arising in the course of implementation should be promptly reported to the Ministry of Finance for review and settlement.

For the Minister

The Deputy Minister

Tran Xuan Ha