Thông tư 02/2016/TT-NHNN về dịch vụ bảo quản tài sản của tổ chức tín dụng

THE STATE BANK OF VIETNAM

Circular No. 02/2016/TT-NHNN datedFebruary 26, 2016 of the State Bank of Vietnam on provision of the custody services,security cabinets andsafes for lease by credit institutions

Pursuant to the Law No. 46/2010/QH12 on the State bank of Vietnam dated June 16, 2010;

Pursuant to the Law No. 47/2010/QH12 on Credit Institutions dated June 16, 2010;

Pursuant to the Government s Decree No. 156/2013/ND-CP dated November 11, 2013 defining functions, tasks, entitlements and organizational structure of the State bank of Vietnam;

At requests of the Director of Issue and Vault Department, the Governor of the State Bank of Vietnam hereby releases the Circular on provisions of custody services, safes and cabinets for lease by credit institutions.

Article 1. Scope of adjustment of subject of application

1. Scope of adjustment

This Circular provides regulations on custodyservices,security cabinets and safes for lease by credit institutions and branches of foreign banks (hereinafter referred to as “credit institution”).

2. Subject of application

a) Credit institutions permitted to provide custody services, security cabinets and safes for lease;

b) Individuals and juridical persons who use custody services; or lease security cabinets or safes from credit institutions under the Civil Code(hereinafter referred to as “client”)

Article 2. Interpretation

For the purpose of this Circular, terms herein shall be construed as follows:

1. Custody service refers to a service provided by a credit institution to protect client’s property under an agreement concluded between the credit institution and client.

2. Security cabinets and safes for lease refer to a service wherebytheclient may lease security cabinets or safes to store their property from the credit institution under an agreement.

3.Custody property or property stored in leased cabinets or safes refers to any kind of property, document and paper under the agreement concluded between the credit institution and client, and in accordance with Article 5 hereof.

Article 3. Rules for provisions of custody services, security cabinets and safes for lease

1. A credit institutions ispermittedto provide custody services, safes and security cabinets for lease only if:

a)Such servicesare included in the LicenseforEstablishment and Operation; and

b) The internal regulation and procedure for provision of custody services, safes and security cabinets for lease are introduced.

2. For the performance of custodyservices,every credit institution shall:

a) Use separate vaults that meet the vault standards stipulated by the State Bank of Vietnam (hereinafter referred to as “State Bank”) or separate cash booths whose doors satisfy vault door standards under the State Bank’s regulations located in the vault; or have security cabinets or safes in their vaults available for storage clients’ property;

b) Have property storage boxes available.

3. Any credit institution providing security cabinets and safes for lease shall:

a) Have separate vaults that meet the vault standards stipulated by the State Bank of Vietnam (hereinafter referred to as “State Bank”) or separate cash booths whose doors satisfy vault door standards under the State Bank’s regulations on provision of security cabinet sand safes for lease;

b) Have security cabinets and safes available.

c) Install CCTV and security control systems to monitor the access to vaults

Article 4. Service provider networks of custody services, safes and security cabinets for lease

The credit institution shall perform custody services or provide security cabinets and safe for lease only at their head office, branches and transaction offices that satisfy requirements in clauses 2 and 3, Article 3 hereof.

Article 5. Property secured by custody services, safes and security cabinets for lease

1. Property other than those prohibited by laws.

2. Property other than flammable or explosive substances or self-destruct objects

3. For property needing storing in special conditions, the client shall promptly notify the credit institutions of the property status andstorageconditions. Otherwise, the client shall be responsible forhis/herproperty whichisdamaged or destructed due to unsuitablestorageconditions, and shall reimburse for any damage to the credit institution.

Article 6.Agreements oncustody services,andsafes and security cabinets for lease

1. The credit institution, when providing custody services or security cabinets or safes for lease,shall conclude the agreement in accordance with provisions hereof and other regulations of laws.

2. The custodial agreement shall include the following contents, but not limited to:

a) Name and address of both parties to the agreement;

b) ID/passport number (for individuals); ID/passport number of legal representative of the juridical person; Decision on Establishment/Investment Certificate/Business Registration Certificate/Enterprise Registration Certificate numberor personal identification document, its place of issue and date of issue (for juridical persons);

c) For custody of physical property:the agreement shall specify thename of asset, property serial number ( excluding serial numbers on currency or foreign currencies), amount, weight, quality, size, status and relevant documents (if any);

d) For custody of sealed property:the agreement shall specify thename of asset, property serial number (excluding currency/ foreign currency serial numbers) and quantity;

dd) Safe or cabinet serial number;

e)Durationof the agreementunder clause 1, Article 7 hereof.

g) The amount of service charges, method of payment and period of payment; the amount of overdue service chargeincase that the client does not withdraw his/her propertybythe expiry of the agreement;

h) Propertystoragemethods (for any property needingstoringin special conditions);

i) Responsibilitiesfor loss of or damage tothepropertyby both parties;

k) Arrangements in case that the client does not withdraw his/her propertybythe expiry date of the agreement

l) Rights and obligations to the agreement by both parties;

3.Everyagreementon leasing security cabinets or safesshall include the following contents, but not limited to:

a) Contents specified in point a, b, e, k and l, clause 2 of this Article;

b) Safe or cabinet serial number;

c) The amount of service charges, method of payment and payment period; the amount of overdue service charge in case that the client does not carry out the procedure for settlement or extensionof the agreement bythe expiry of the agreement;

d) Usage of security cabinetsor safes

Article 7. Duration of agreements

1. Every agreement shall specify: the duration of agreement, terms of termination prior to expiry, arrangements in case that the client does not withdraw his/her property after the expiry of the agreement, the period of time when the prior notice of return of asset is issued, terms of termination for thepermanentcustodialagreement, or permanent agreementfor leasing security cabinets or asset(hereinafter referred to as “permanent agreement”)

2. With regards to permanent agreements

a) The client shall be entitled to terminate the permanent agreementand request the credit institution to return his/her propertyat any time but shall submit a prior notice to the credit institution within an acceptable period of time as agreed in the agreement;

b) The credit institution shall be entitled to terminate the permanent agreement and request the client to withdraw his/her property at any time but shall submit a prior notice to the client within an acceptable period of time as agreed in the agreement;

Article 8. Procedures for custody service performing

1. The credit institution shall conclude a custodial agreement with the client.

2. The credit institution may receive physical property or sealed property.

a) For physical property :(i) The client shall make a statement of physical property using the Annex I hereof;

(ii) The custody of precious metalsand gemstonesshall follow the procedure for custody of physical property under the State Bank’s regulations on classification, packaging and custody of precious metals and gemstones;

(iii)The custody of cash, foreign currency cash and valuable papers shall follow the regulations on cash collection and spending under the State Bank’s regulations on custody, storage and conveyance of cash, treasures and valuable papers;

(iv) For other kinds of property, the credit institution shall introduce a procedure for custody of clients’ property.

(v) As the physical property is deposited, the credit institution shallpreparea depositing record using the Annex II hereof..

b) For sealed property:

(i) The client shall make a statement of sealed property using the Annex I hereof;

(ii)The credit institution receiving the client’s property storage box that is packed or sealed under clause 3 of this Article shall not carry out any testing on precious metals or gemstones, or count the amount of cash, valuable papers or others.

(iii) As the sealed property is deposited, the credit institution shall prepare a depositing record using the Annex II hereof.

c) Clients shall be liable for the legitimacy and validity of their property.

3. Property packaging and sealing:

a) The client’s property shall be packed and sealed together with the depositing record using the Annex II hereof. The seal label shall specify name of asset, quantity, full name and signature of packer and sealer, date of seal. Every property storage box shall bear a reference number as per that in the agreement.

(b) Precious metals and gemstone shall be packed and sealed in accordance with the regulations on packaging and sealing of physical property under the State Bank’s regulation on classification, packaging and custody of precious metals and gemstones;

(c) The packaging and sealing of cash, valuable papers and foreign currency cash shall follow the State Bank’s regulation on handover storage and conveyance of cash, treasures and valuable papers.

(d) For other kinds of property, the credit institution shall introduce a procedure for packaging and sealing of clients’ property.

dd) In case of physical property, the credit institution shall pack and seal such property on their own. In case of sealed property, the credit institution shall provide instructions and witness the packaging and sealing by the client.

4. The client’s property storage boxes shall be stored after being packed or sealed.

5. The client shall present his/her ID card/passport (for individuals); or ID card/passport of the legal representative of a juridical person (for juridical persons), custodial agreement and depositing record for the withdrawal of his/her custody property.The credit institution shall verify the validity and legitimacy of such documents, carry out the procedure for agreement settlement, and prepare a record of withdrawal using the Annex II hereof.

The client shall check the seal label on his/her property storage box before opening. Both parties shall make a record of property box condition assessment using the Annex III hereof; In the event that the seal label is torn, faded or lost, both parties shall consider handling or have the third party inspected.

Article 9. Procedures for leasing security cabinets and safes

1. The credit institution shall conclude an agreement for leasing security cabinets and safe with the client.

2. After the agreement is signed, the credit institution shall give the client his/her cabinet/safe keys. Each drawer shall have at least one lock with only 02 keys kept by the client.Where the client keep only one key, the spare key shall be sealed by the client in the presence of the credit institution and such spare key shall be kept at the credit institution.

3. The client shall present his/her ID card/passport (for individuals); or ID card/passport of the legal representative of a juridical person (for juridical persons), custodial agreement and depositing record prior to the access to the vault.

The client and his/her property shall undergo the security check by the credit institution before entering or leaving the vault.The credit institution shall not inspect or check the property quantity, weight, quality, size and status. Every client shall be totally responsible for their property if they use safe and cabinet services

4. Any client entering or leaving the vault shall comply with the credit institution’s regulations on vault access; and shall use only the safe or cabinet that has the same serial number as that in the custodial agreement.

Article 10. Handling of issues arising in connection with custody services, security cabinets or safes for lease

1. Any issue arising in connection with the operating of custody services, security cabinets or safes for lease shall be dealt with in accordance with the custodial agreement between the credit institution and client; and this Article.

2. For custody services:

a) Any client requesting to check his/her property storage box shall present his/her ID card/passport (for individuals); or ID card/passport of the legal representative of a juridical person (for juridical persons), custodial agreement and depositing record. Every client shall check their property storage box at the counter in the presence of the credit institution. The client shall only check the box and its seal label, and shall not tear the seal label;

b) In the event of withdrawal of part of property or addition of additional property:

(i)For physical property, the client and credit institution shall carry out procedures for withdrawal part of propertyor addition of property, and conclude an agreement Annex on that fact;

(ii)For sealed property, the client shall carry out the procedure for withdrawing the whole property and re-depositing his/her property;

c) If any client requests to withdraws all his/her property before the expiry of the custodial agreement, the agreement shall be terminated prior to the expiration; and the client shall fully pay service charges and expenses incurring in connection with the early withdrawal, unless otherwise indicated in the agreement;

d) If any client does not withdraw his /her property after the expiry of agreement, the credit institution shall notify such client and collect an overdue charge.

dd) In case of loss of the custodial agreement or depositing record, the client shall notice the credit institution in writing. The credit institution shall issue a copy of agreement or depositing record to the client;

e) Any juridical person changing their name, address or legal representative shall submit a written notice and proofs of such changes to the credit institution;

g) Every client may authorize another person to sign and execute the custodial agreement under provision of laws.

h) Other issues arising in connection with the operating of custody service (if any) shall be specified in the agreement.

3. With regards to security cabinets or safes for lease services:

a)If any client does not apply for extension of custodial agreement nor has the agreement settled, the credit institution shall notify such client and collect an overdue charge.

b) In case of loss of the agreement, the client shall notice the credit institution in writing.The credit institution shall issue a copy of the custodial agreement to the client;

c) In case of loss of safe or cabinet keys, even if only one key is lost, the client shall promptly notice the credit institution in writing. The credit institution shall replace the cabinet/safe lock in the presence of the client and give the new keys to the client. Expenses for lock replacement shall be paid by the client;

d) Any juridical person changing their name, address and legal representative shall submit a written notice and proofs of such changes to the credit institution;

dd) Every client may have the right to authorize another person to sign and execute the agreement on leasing security cabinets/safes under provisions of laws. h) Other issues arising in connection with the operating of the services (if any) shall be specified in the agreement.

Article 11. Charges for custody services, safes and security cabinets for lease

The credit institution shall decide and publish the schedule of charges for custody services or security cabinets and safe for lease at their head office, branches and transaction offices.

Article 12. Custody, Conveyance, inspection, statistics, redundancy/shortage handling, log books and vault management

1. The custody, carriage, inspection, statistics and handling of property redundancy/shortage, log book keeping and vault management shall conform to the State Bank’s regulation on deposit, withdrawal, custody and conveyance of cash/treasures/valuable papers.

2. Vaults and key custodian shall be allocated and managed by the credit institution and shall guarantee the absolute security of property.

Article 13. Responsibilities of the State Bank’s affiliates

1. The Issue and Vault Department shall take charge of dealing with issues in connection with the implementation of this Circular and shall inspect the implementation of this Circular.

2. The Bank Supervision and Inspection Agency and branches of the State bank of provinces shall be responsible for the implementation of this Circular, within their competence.

Article 12. Responsibilities of credit institutions

Every credit institution shall:

1. Ensure the quantity, weight, size and property shape or form or the seal of property package handed over by the client; guarantee the service convenience, security and confidentiality. Do not use client’s property in any shape or form; and return the received property to the client.

2. Issue internal regulations and procedures for provision of custody services or security cabinets and safe for lease under provisions hereof; and provide instructions on such services for clients. The internal procedures shall be submitted to the Issue and Vault Department-State Bank.

3. Fulfill all obligations in the agreement for custody, security cabinets or safe for lease and comply with provisions of laws.

Article 15. Transitional provisions

1. Every agreement on property custody, or leasing security cabinets or safes that is signed before the effective date of this Circular and conformable to provisions of laws as the time of signature shall be executed as agreed in the agreement. Any adjustment or supplementation to such agreement shall be made in accordance with provisions hereof.

2. Any credit institution providing custody services or security cabinets and safe for lease before the effective date of this Circular is entitled to continued to provide such services in accordance with provisions hereof.Any credit institution that has not satisfied requirements in Article 3 hereof shall meet such requirements within 12 months from the effective date of this Circular.

3. After the time limit set in clause e of this Article, every credit institution failing to satisfy requirements in Article 3 hereof shall terminate the provision of custody services and security cabinet and safe for lease, except for agreements concluded under the clauses 1 and 2 of this Article.

Article 16. Implementation

1. This Circular takes effect on April 09, 2016.

2. The Chief of Office, Director of the Issue and Vault Department, Heads of members of the State Bank of Vietnam, Director of branches of the State Banks in provinces, the President of the Board of Directors, President of the Member assembly, Director General of credit institutions shall be responsible for the implementation of this Circular./.

For the Governor

The Deputy Governor

Dao Minh Tu

ANNEX I

(Issued with the Circular No. 02/2016/TT-NHNN dated February 26, 2016 by the State Bank of Vietnam)

STATEMENT OF PROPERTY

Date..............

Client’s full name: ...................................................................................................

Organization: ..........................................................................................................

Address: .................................................................................................................

Contents: ................................................................................................................

Note:

- If the property is sealed, columns from 6 through 9 shall be left blank.

ANNEX II

(Issued with the Circular No. 02/2016/TT-NHNN dated February 26, 2016 by the State Bank of Vietnam)

DEPOSITING/WITHDRAWAL RECORD

 From...(i).../ To...(i)...

This Record is made as of (ii).....................................................................[date]

Reasons and basis for depositing/withdrawing: ..........................................................

Client:…………………………….

- Mr.(Mrs./Ms) :……………………………………Title: ……………………………………

- Organization: ..............................................................................................................

- Address: .....................................................................................................................

- Power of attorney No. : ..............................................................................................

- ID/Passport No: ………………………Date of issue………………………Place of issue: ………………………

Credit institution:

- Mr.(Mrs./Ms) :……………………………………Position: ……………………………………ID/Passport No: ................

- Mr.(Mrs./Ms) :……………………………………Position: ……………………………………ID/Passport No: ................

........................................................................................................................................

Has been deposited/withdrawn the property with the total value of (in letters) : ..................................................................................

Including:

Methods of Depositing:..........................(iii).............................................................................

Notes:

ANNEX III

(Issued together with the Circular No. 02/2016/TT-NHNN dated February 26, 2016 by the State Bank of Vietnam)

RECORD OF PROPERY STORAGE BOX CONDITION ASSESSMENT

This record is made as of..............[date] in................[location]  

Reasons and basis: ..............................................................................................

Client:

- Mr.(Mrs./Ms) :……………………………………Title: ……………………………………

- Organization: .............................................................................................................

- Address: ....................................................................................................................

- Power of attorney No. : ............................................................................................

- ID/Passport No:…………….. Date of issue:………….. Place of issue:……………....

Credit institution: …………………………….

- Mr.(Mrs./Ms) :……………………………………Title: ……………………………………ID/Passport No: ................

- Mr.(Mrs./Ms) :……………………………………Title: ……………………………………ID/Passport No: ................

.........................................................................................................................................

hereby certify the property storage box condition as follows:

Property storage box No: ............................................................................

Status: ......................................................................................................................