Thông tư 03/2006/TT-NHNN của Ngân hàng Nhà nước Việt Nam về việc hướng dẫn một số nội dung tại Nghị định số 89/1999/NĐ-CP ngày 01/9/1999 về bảo hiểm tiền gửi và Nghị định số 109/2005/NĐ-CP ngày 24/8/2005 của Chính phủ về việc sửa đổi, bổ sung một số điều của Nghị định số 89/1999/NĐ-CP

CIRCULAR

GUIDING A NUMBER OF CONTENTS OF THE GOVERNMENT S DECREE No. 89/1999/ ND-CP OF SEPTEMBER 1, 1999, ON DEPOSIT INSURANCE, AND DECREE No. 109/2005/ND-CP OF AUGUST 24, 2005, AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE No. 89/1999/ND-CP

Pursuant to the Government s Decree No. 89/1999/ ND-CP of September 1, 1999, on deposit insurance (the Government s Decree No. 89/1999/ND-CP), and Decree No. 109/2005/ND-CP of August 24, 2005, amending and supplementing a number of articles of Decree No. 89/1999/ND-CP of September 1,1999 (the Government s Decree No. 109/2005/ND-CP), the State Bank of Vietnam hereby guides the implementation of a number of contents of these Decrees as follows:

Section I. GENERAL PROVISIONS

1. Subjects of application:

a/ Credit institutions and organizations other than credit institutions that are licensed to conduct a number of banking operations within the territory of the Socialist Republic of Vietnam under the provisions of the Law on Credit Institutions and take deposits from organizations or individuals must participate in compulsory deposit insurance (hereinafter referred to as the insured organizations). This Circular does not apply to deposit recipients that are allowed not to participate in deposit insurance by the Government;

b/ Clients eligible for deposit insurance are the subjects defined in Clause 2, Article 1 of the Government s Decree No. 109/2005/ND-CP that have money deposited at insured organizations (hereinafter referred to as depositors);

c/ Vietnam Deposit Insurance.

2. Deposits to be insured shall be those in Vietnam dong deposited at insured organizations by individuals, households, cooperative groups, private enterprises or partnerships, except the following cases:

a/ Deposits of shareholders owning more than 10% of the charter capital or holding more than 10% of the voting share capital of such insured organizations;

b/ Deposits of members of Managing Boards or Control Boards, general directors (directors), or deputy general directors (deputy directors) of such insured organizations;

c/ Deposits used as security for the performance of depositors obligations;

d/ Deposits used for the purchase of non-bearer valuable papers issued by insured organizations.

Section II. ISSUANCE AND REVOCATION OF DEPOSIT INSURANCE CERTIFICATES

3. Vietnam Deposit Insurance shall issue deposit insurance certificates to, and revoke them from, insured organizations.

4. Insured organizations must complete the procedures for participation in deposit insurance before commencing their operation of taking deposits. Organizations which are engaged in the operation of taking deposits but have not yet participated in deposit insurance must complete the procedures for participation in deposit insurance within 30 days after the effective date of this Circular.

5. A dossier of registration for participation in deposit insurance comprises:

a/ The written registration for participation in deposit insurance, made according to a form set by Vietnam Deposit Insurance;

b/ The establishment decision and banking operation permit or the establishment and banking operation permit, issued by a competent state management agency;

c/ The business registration certificate;

d/ The organization and operation charter;

e/ The list of members of the Managing Board and Control Board, the general director (director), appointed or approved by a competent state management agency;

f/ The latest year s financial statement, certified by a competent state management agency or audited (if the organization has operated for one year or more). Particularly for financial statements of grassroots people s credit funds, the grassroots people s credit funds shall bear self-responsibility for the statements truthfulness and accuracy;

g/ The organization and operation charter or regulation of the managing unit of which the insured organization is a member.

6. Within 15 days after receiving complete dossiers of registration for participation in deposit insurance, Vietnam Deposit Insurance shall issue deposit insurance certificates to insured organizations and report thereon in writing to the State Bank of Vietnam. The insured organizations must publish such certificates on Vietnamese dailies for 3 (three) consecutive issues (at least one central newspaper or one local newspaper of the place where its head office, branch or transaction office is located).

7. Deposit insurance certificates must be publicly posted up. Insured organizations are strictly prohibited to forge, erase, transfer, lease or lend their deposit insurance certificates.

8. An insured organization must send the (notarized copies of) written approval of the changes to Vietnam Deposit Insurance within 5 working days after making one of the following changes:

a/ Contents and scope of operation;

b/ The business registration certificate;

c/ The organization and operation charter;

d/ The organization and operation charter or regulation of the managing unit of which the insured organization is a member.

9. Insured organizations shall have their deposit insurance certificates revoked in the following cases where:

a/ Past 3 months after the payment date, they still fail to fully pay the insurance premiums. In this case, Vietnam Deposit Insurance must send a written report thereon to the State Bank for the latter to immediately issue decisions on ceasing the mobilization of deposits by such insured organizations;

b/ The State Bank issues documents terminating the operation of taking deposits;

c/ Competent state agencies issue documents requesting the insured organizations to terminate transactions for liquidation of assets or the court decides to carry out procedures for asset liquidation.

10. Within 3 working days after issuing a decision on revocation of a deposit insurance certificate, Vietnam Deposit Insurance must revoke the deposit insurance certificate and publish the revocation on Vietnamese dailies for 3 (three) consecutive issues (at least one central newspaper and one local newspaper of the place where the head office, branch or transaction office of the organization having its deposit insurance certificate revoked is located).

11. Insured organizations which have their deposit insurance certificates revoked may resume their participation in deposit insurance and be re-granted deposit insurance certificates in cases where they have fully paid the insurance premiums according to regulations or where the Vietnam State Bank has allowed them to resume taking deposits. In this case, the insured organizations shall send documents requesting the resumption of their participation in deposit insurance to Vietnam Deposit Insurance and publish the re-grant of deposit insurance certificates on mass media according to the provisions of Point 6 of this Circular.

12. Vietnam Deposit Insurance shall have to insure the insured deposit amounts within 6 months after the issuance of decisions on revocation of deposit insurance certificates of insured organizations.

Section III. DEPOSIT INSURANCE PREMIUMS

13. Insured organizations must pay to Vietnam Deposit Insurance an annual premium representing 0.15% of the average deposit balance of all deposits insured at such insured organizations.

14. Vietnam Deposit Insurance shall guide insured organizations in calculating and paying deposit insurance premiums according to the regulations on payment of insurance premiums as follows:

a/ Deposit insurance premiums shall be calculated and paid quarterly into Vietnam Deposit Insurance s account no later than the 20thday of the first month of the quarter when deposit insurance premiums are collected.

b/ The average deposit balance of all insured deposits of the quarter preceding the quarter when deposit insurance premiums are paid shall serve as a basis for calculation of deposit insurance premiums.

c/ The payable amount of quarterly deposit insurance premium shall be calculated according to the following formula:

- P is the amount of quarterly payable deposit insurance premium;

- S0is the insured deposit balance at the beginning of the first month of the quarter preceding the quarter when deposit insurance premiums are collected;

- S, S2and S3are the insured deposit balance at the end of the first, second and third month of the quarter preceding the quarter when deposit insurance premiums are collected;

The amount of payable deposit insurance premium shall be rounded to the unit of a thousand Vietnam dong.

d/ Vietnam Deposit Insurance shall have to examine the payment of deposit insurance premiums by insured organizations and, if detecting inaccuracy in premium calculation or payment, retrospectively collect the deficit premium amounts or refund the overpaid premium amounts within 15 working days after the detection. Insured organizations which violate regulations on the time limit for insurance premium payment shall, apart from paying the deficit premium amounts, be subject to a fine representing 0.1% (one thousandth) of the lately paid amount for each day of late payment.

15. Thirty days after the deadline for deposit insurance premium payment, if insured organizations fail to fully pay deposit insurance premiums, including fines, Vietnam Deposit Insurance may:

a/ Request the State Bank (for credit institutions) or the State Treasury or credit institutions (for other organizations licensed to conduct a number of banking operations) where the insured organizations open their accounts to make via-account payment of insurance premiums and fines.

b/ Where the insured organizations account balance is insufficient for the via-account payment mentioned above, Vietnam Deposit Insurance shall report thereon in writing to the Vietnam State Bank and, past the 3-month duration, if the insured organizations fail to fully pay the insurance premiums, handle such organizations according to the provisions of Point 9 of this Circular.

16. Vietnam Deposit Insurance shall guide the process and procedures related to the calculation and payment of deposit insurance premiums (including fines) of insured organizations.

Section IV. INSPECTION AND SUPERVISION OF INSURED ORGANIZATIONS, AND HANDLING MEASURES

17. Insured organizations shall have to send asorted reports to Vietnam Deposit Insurance according to the latter s regulations.

18. Insured organizations must send written reports immediately to Vietnam Deposit Insurance in the following cases where:

a/ They meet with solvency deficiency: to report on causes of difficulties, expected consequences and remedies; structures and amounts of insured deposits; estimates of temporary deficit amounts for payment; proposals to Vietnam Deposit Insurance and competent state management agencies for supporting measures (if necessary).

b/ There is a change in members of Management Boards or Control Boards or general directors (directors).

19. Within 90 days after the end of a fiscal year, insured organizations shall have to send annual financial statements to Vietnam Deposit Insurance.

20. Vietnam Deposit Insurance may inspect the insured organizations observance of the provisions of the Government s Decree No. 89/1999/ND-CP and Decree No. 109/2005/ND-CP.

21. In the course of supervising and inspecting insured organizations, if detecting that insured organizations violate regulations on safety in banking operations, Vietnam Deposit Insurance may request the insured organizations to take remedies and, at the same time, send written reports thereon immediately to the State Bank for monitoring and handling.

22. If deeming that insured organizations activities may lead to insolvency and/or great material losses or seriously affect other credit institutions, Vietnam Deposit Insurance shall report thereon in writing immediately to the State Bank and, at the same time, request the insured organizations to take timely remedies.

23. Within 90 days after insured organizations have their deposit insurance certificates revoked as provided for at Point a or b, Clause 9 of this Circular, the State Bank s Inspectorate shall conduct inspection in order to make conclusions on their violations, which shall serve as a basis for Vietnam Deposit Insurance to provide support or pay deposit insurance according to the provisions of Sections V and VI of this Circular.

Section V. VIETNAM DEPOSIT INSURANCE S SUPPORT FOR INSURED ORGANIZATIONS

24. Vietnam Deposit Insurance shall provide financial support for insured organizations only after the State Bank gives written certification that the insured organizations dissolution or bankruptcy may cause serious impacts on the safety of the financial and banking system and the political, economic and social stability. Vietnam Deposit Insurance shall provide financial support for the insured organizations in forms of loans or guarantee or redemption of clients debts at the insured organizations or in other forms in accordance with the provisions of law.

25. The Management Board of Vietnam Deposit Insurance shall consider and decide on forms of financial support.

26. Vietnam Deposit Insurance s financial supports shall be used first of all to refund all other debts of insured organizations.

Section VI. MAKING PAYMENT TO INSURED DEPOSITORS

27. For insured organizations which are certified by competent state agencies as being incapable of paying due debts, within 60 days after competent state agencies request in writing the insured organizations to terminate transactions for liquidation or after the court decides to carry out procedures for liquidation of assets of the insured organizations according to the provisions of law on bankruptcy, Vietnam Deposit Insurance shall have to pay insurance money to persons depositing money at the insured organizations.

28. The payment of insurance sums to depositors shall be made as follows:

28.1. Vietnam Deposit Insurance shall have to immediately revoke the deposit insurance certificates;

28.2. Within 10 working days after obtaining documents of competent state management agencies or the court, insured organizations must submit to Vietnam Deposit Insurance dossiers of request for payment of insurance money. Such a dossier comprises a list of depositors and their respective deposit amounts at the insured organization; a list of depositors and their deposit amounts proposed for payment by Vietnam Deposit Insurance;

28.3. Within 5 working days after the insured organizations submit complete dossiers of request for payment of deposit insurance sums, Vietnam Deposit Insurance shall examine vouchers and books in order to determine accurately the payable amounts;

28.4. Within 10 working days after the end of the inspection specified at Point 28.3 of this Section, Vietnam Deposit Insurance must plan the payment of insurance sums to depositors and publicly announce such payment on Vietnamese dailies for 3 (three) consecutive issues (at least one central newspaper or one local newspaper of the place where the insured organization s head office, branch or transaction office is located) and, at the same time, post up the lists of insured depositors to be paid insurance sums at the head office, branch and transaction office of the insured organization and places for payment of insurance sums. Such a notice must clearly state the place, time and mode of payment of insurance sums;

28.5. Vietnam Deposit Insurance shall directly pay insurance sums to depositors or authorize credit institutions to do so on the basis of authorization contracts according to the provisions of law;

28.6. Authorization contracts for payment of insurance sums between Vietnam Deposit Insurance and credit institutions must be signed in accordance with the provisions of law. Such contracts must clearly define the responsibilities of credit institutions in the use of the money amounts transferred by Vietnam Deposit Insurance for timely payment with correct amounts. Credit institutions authorized by Vietnam Deposit Insurance to pay insurance sums must meet the following conditions:

a/ Being insured organizations;

b/ Having satisfied criteria of safety in banking operation for at least 6 latest months;

c/ Having their head offices or branches or transaction offices situated at locations convenient for payment of insurance sums.

29. The maximum insurance sum to be paid by Vietnam Deposit Insurance to all deposits (including both principal and interest) of a depositor at an insured organization shall be 50 million Vietnam dong and determined as follows:

a/ The balance of all deposits (including both principal and interest) of a qualified individual or organization insured under the provisions of law at an insured organization shall be aggregated to determine the deposit insurance sum;

b/ The insured deposits of account co-holders (including many individuals, one or many individuals and an organization, or many organizations) shall be considered the deposits of a depositor, and the maximum insurance sum payable to such deposits (including both principal and interest) shall be VND 50 million and equally divided to such account co-holders (except where the account co-holders make other commitments or agreements in accordance with the provisions of law on the use of accounts). If one of the above-said account co-holders has other deposits insured at the same insured organization, such deposits shall be added to the insurance sum into accounts of the co-holders to determine the insurance sum to be paid to such organizations or individuals;

c/ Depositors that have a total amount of insured deposits (including both principal and interest) at an insured organization being equal to or less than VND 50 million shall have all their deposits paid by Vietnam Deposit Insurance. Depositors that have a total amount of insured deposits (including both principal and interest) being over VND 50 million, the amount in excess of VND 50 million shall be paid in the course of liquidation of the insured organization s assets in accordance with the provisions of law on dissolution or bankruptcy;

d/ Where depositors are obliged to pay debts to insured organizations, the insured deposits of such depositors shall be the difference between the deposits and the amounts still owed by such depositors to the insured organizations.

30. Insured depositors shall receive insurance money when they fully meet the following conditions:

a/ Being on lists of insured depositors, approved by the Management Board of Vietnam Deposit Insurance;

b/ Having written proposals enclosed with papers proving the lawful ownership of their deposits at the insured organizations, together with their identity cards or passports;

c/ Where insurance sums are paid to representatives (representatives at law or authorized representatives) or heirs of depositors, the misplaced persons must have papers proving their lawful ownership of the insured deposits; the recipients of deposit insurance sums must present all papers proving their right to receive insurance money and lawful ownership of insured deposits, passports or identity cards, etc., upon receipt of money.

d/ Vietnam Deposit Insurance shall specify the dossiers, procedures and order of paying deposit insurance to depositors.

31. Within ten years after a deposit insurer issues the first notice on payment of insurance sums, deposit insurance money amounts without recipients and without plausible reasons shall be added to the working capital sources of the deposit insurers and the persons who used to have the right to own the insured deposit amounts shall not have the right to request the deposit insurers to pay them such amounts.

32. Vietnam Deposit Insurance shall become the creditor of insured organizations for paid insurance money. Vietnam Deposit Insurance shall be distributed the asset value according to the order of payment like for depositors in cases where insured organizations are dissolved or go bankrupt according to the provisions of law on dissolution or bankruptcy. Vietnam Deposit Insurance may participate in managing and liquidating assets of the insured organizations according to the provisions of law.

Section VII. INFORMATION EXCHANGE, INSPECTION AND SUPERVISION COORDINATION BETWEEN VIETNAM DEPOSIT INSURANCE AND THE STATE BANK

33. Coordination in information exchange:

a/Vietnam Deposit Insurance shall have to supply the State Bank with information related to the operation of insured organizations, including:

- Quarterly supply of information related to the operations of insured organizations;

- Quarterly supply of information on insured organizations observance of regulations on deposit insurance and safety in banking operations;

- Biannual supply of information on financial supports and payment of insurance sums to insured organizations;

- Annual plan on inspection of insured organizations observance of the Government s regulations on deposit insurance;

- Results of annual classification and evaluation of insured organizations observance of regulations on deposit insurance;

- Irregular information upon detecting that insured organizations are in danger of insolvency or have great losses in capital or assets, adversely and seriously affecting other credit institutions;

- Other information on insured organizations operations and law observance, if necessary.

b/ The State Bank shall supply Vietnam Deposit Insurance with information related to insured organizations, specifically:

- The State Bank s Inspectorate shall supply results of inspection and supervision of insured organizations, including:

+ Quarterly notices on insured organizations violation of regulations on safety in banking operations;

+ Results of annual classification of insured organizations;

+ Irregular information on insured organizations being in danger of insolvency or having high ratios of overdue debts or great losses in capital or assets, adversely and seriously affecting other credit institutions, within 10 days after the Inspectorate s conclusions, and under the State Bank Governor s permission.

The supply of information shall comply with the division of responsibilities for inspection and supervision of credit institutions head offices provided for in Circular No. 04/2000/TT-NHNN3 of March 28, 2000, guiding the implementation of the Government s Decree No. 91/1999/ND-CP.

- The Department for Banks, the Department for Cooperative Credit Institutions and the State Bank s provincial/municipal branches shall have to:

+ Notify the establishment, and revocation of operation permits, of insured organizations (within 3 working days after the issuance of decisions on such establishment or revocation);

+ Notify the partial or full termination of operations of insured organizations (within 3 working days after the issuance of decisions on such termination);

+ Notify the separation, division, consolidation, merger and redemption of insured organizations;

+ Notify the placing of insured organizations under special control;

+ Supply all dossiers related to insured organizations when such organizations have their operation permits revoked by the State Bank.

- The Monetary Policy Department and the Department for Banking Informatics Technology:

+ To coordinate in supplying data on operation of credit institutions under the State Bank Governor s permission;

+ To coordinate in supplying data related to insured organizations which are assessed to be in danger of insolvency.

34. In special cases, when deeming it necessary, upon detecting that insured organizations are in danger of insolvency or have great material losses, the State Bank s Inspectorate shall coordinate with Vietnam Deposit Insurance in conducting on-the-spot inspections of such insured organizations.

Section VIII. IMPLEMENTATION PROVISIONS

35. This Circular takes effect 15 days after its publication in "CONG BAO" and replaces the State Bank Governor s Circular No. 03/2000m"-NHNN5 of March 16, 2000, guiding the implementation of the Government s Decree No. 89/1999/ND-CP of September 1, 1999, on deposit insurance, Decision No. 1077/2001/QD-NHNN of August 27, 2001, amending and supplementing a number of contents in Circular No. 03/2000/TT-NHNN5 of March 16,2000, and Circular No. 12/2003/TT-NHNN of December 23, 2003, amending and supplementing Circular No. 03/ 2000/TT-NHNN5 of March 16, 2000, guiding the implementation of the Government s Decree No. 89/ 1999/ND-CP of September 1, 1999, on deposit insurance.

36. The director of the Office, the director of the Department for Banks and Non-Bank Credit Institutions, heads of units under the State Bank, directors of the State Bank s provincial/municipal branches, the chairman of the Management Board and the general director of Vietnam Deposit Insurance, chairmen of managing boards and general directors (directors) of insured organizations shall, within the ambit of their respective functions and tasks, have to organize and guide the implementation of, and implement this Circular.

37. The supplementation or amendment of this Circular shall be decided by the State Bank Governor.