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THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No.: 49/2017/ND-CP
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Hanoi, April 24,
2017
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DECREE
AMENDMENTS
TO ARTCILE 15 OF THE GOVERNMENT’S DECREE NO. 25/2011/ND-CP DATED APRIL 06, 2011
ELABORATING AND GUIDING THE IMPLEMENTATION OF THE LAW ON TELECOMMUNICATIONS,
AND ARTICLE 30 OF THE GOVERNMENT’S DECREE NO. 174/2013/ND-CP DATED NOVEMBER 13,
2013 ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN POSTS, TELECOMMUNICATIONS,
INFORMATION TECHNOLOGY AND RADIO FREQUENCY SECTORS
Pursuant to the Law on Government Organization
dated June 19, 2015;
Pursuant to the Law on Actions against Administrative
Violations dated June 20, 2012;
Pursuant to the Law on Telecommunications dated
November 23, 2009;
At the request of Minister of Information and
Communications;
The Government promulgates this Decree providing
amendments to Article 15 of the Government’s Decree No. 25/2011/ND-CP dated
April 06, 2011 elaborating and guiding the implementation of the Law on
Telecommunications, and Article 30 of the Government’s Decree No.
174/2013/ND-CP dated November 13, 2013 on penalties for administrative violations
in posts, telecommunications, information technology and radio frequency
sectors.
Article 1. Amendments to
Article 15 of the Government’s Decree No. 25/2011/ND-CP dated April 06, 2011
elaborating and guiding the implementation of the Law on Telecommunications
(hereinafter referred to as Article 15 of Decree No. 25):
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1. The conclusion of standard form contracts or
contracts containing general terms and conditions (hereinafter referred to as
the “Contract”) must be performed at points of telecommunications services
(hereinafter referred to as the “POS”), consisting of:
a) POS with determined address established by
telecommunications enterprises;
b) Mobile POS established by telecommunications
enterprises;
c) POS with determined address established by
another enterprise with the authorization of the telecommunications enterprise
under an authorization contract to conclude Contracts for supply of
telecommunications services (hereinafter referred to as “Authorized POS).
2. A POS is eligible for performing the conclusion
of Contracts when it satisfies all of the following requirements:
a) Have a signboard showing the following
information: “Point of Telecommunications Services”; name or trademark of the
telecommunications enterprise that establishes or gives authorization to the
POS; address; contact telephone number;
b) Post the standard form contract and the contract
containing general terms and conditions for supply of telecommunications
services; process of concluding Contract; the original or the certified copy of
the authorization contract signed by and between the telecommunications
enterprise and the enterprise establishing the authorized POS;
c) Equip enough equipment for inputting paper-based
information of clients; digitizing their documents; taking photos of persons
concluding Contracts (for mobile telecommunications services) and transmitting
information, digital representations of documents and photos to the
telecommunications enterprise’s centralized database. Documents and photos must
be clearly and sharply digitized and taken; digital representations must
include sufficient information specified in paper documents presented by
clients when concluding the Contracts; photo must include date and time of
taking photo;
d) Ensure that the employees who are responsible
for performing the conclusion of Contracts have successfully completed training
courses in process and procedures thereof.
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a) For individual clients: the original of
unexpired passport or ID card or citizen’s identity card (if the client is a
Vietnamese citizen), or passport which is still valid for use in Vietnam (if
the client is a foreigner) (hereinafter referred to as “identity papers”);
b) For organizational clients: the original or
certified copy of establishment decision or business and tax registration
certificate or investment license or certificate of enterprise registration
(hereinafter referred to as “certificate of legal entity). The organizational
client is also required to present the list of its employees (enclosed with
certificates of employment) who are allowed to use mobile telecommunications
services which are provided under the Contract signed by and between the
organization and the telecommunications enterprise, and identity papers of each
employee. If the Contract is concluded by a person who is not the legal
representative of the organization, he/she must present the power of attorney
granted by the legal representative and his/her identity paper;
c) If a person aged under 14 or ward as defined in
the Civil Code uses telecommunications services, he/she must have a Contract
concluded by his/her parent or guardian.
4. After receiving documents presented by the
client for concluding Contract, the POS is entitled and obliged to:
a) collate documents/ identity papers presented by
the client who is going to perform the conclusion of Contract under provisions
in Clause 3 of this Article;
b) refuse to conclude Contract with the client that
fails to present all of documents as prescribed in Clause 3 of this Article or
whose documents/papers are unclear and unable to be digitized;
c) fully and exactly input subscriber information
as prescribed in Clause 5 of this Article;
d) conclude Contract with the client whose
documents/papers presented conform to regulations herein;
dd) store subscriber information on the POS’s
subscriber information database and transmit it to the centralized database of
the telecommunications enterprise;
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g) ensure subscriber information security under
regulations of law.
5. Subscriber information includes:
a) Subscriber numbers; user of each subscriber
number: for individual client (subscriber number for the client
himself/herself; for his/her biological or adopted child aged under 14; for
his/her ward; for equipment); for organizational client (subscriber numbers for
its employees; for equipment);
b) Individual’s information as shown in his/her
identity paper, including: full name; date of birth; nationality; number, date
of issue, issuing authority or place of issue of identity paper; place of
permanent residence (if client is a Vietnamese citizen);
c) Organization's information as shown in
documents, including: name of organization; head office's address; information
in identity paper presented by the person concluding the Contract, and
information in identity paper of each employee of the organization in line with
the subscriber number used by such employee (if the organization grants power
to its employee to use the subscriber number) under provisions in Point b of
this Clause;
d) Digital representations of documents presented
by clients when concluding Contracts;
dd) Photos of persons who directly conclude
Contracts (for mobile telecommunications services); digital representation of
certificate of subscriber information or certificate of subscriber information
bearing electronic signature (for prepaid telecommunications services);
e) Billing method (prepaid or postpaid);
g) Full name of advisor; time of concluding
Contract; time of updating subscriber information (if subscriber information is
updated by the client); the POS’s address and telephone number.
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7. The conclusion of Contracts with users of
prepaid services of each mobile telecommunications network is performed in
accordance with the following regulations:
a) For the first three subscriber numbers, the
client must present required documents and sign the paper-based or electronic
certificate of subscriber information. The certificate of subscriber
information must include types of information prescribed in Points a, b or
Point c Clause 5 of this Article;
b) For the fourth subscriber number forwards, the
client must conclude a standard form contract with the mobile
telecommunications service provider. The mobile telecommunications
service provider must inspect and ensure that subscriber numbers provided to
such client must be used in compliance with regulations in Points b, d Clause 9
of this Article.
8. Responsibility of telecommunications enterprise:
a) Ensure that its POS strictly complies with
regulations in Clauses 2, 4 of this Article. Telecommunications enterprise
shall assume responsibility under the law for subscriber information collected,
collated, stored and managed at the POS as regulated;
b) Establish technical system and centralized
database to input, store and manage information collected in course of supply
of services to subscribers, including: subscriber information as prescribed in
Clause 5 of this Article; the commencement date when the service is available
for the subscriber; subscriber status: active, one-way deactivation (receiving
incoming calls only) or two-way deactivation (this subscriber number can
neither make nor receive calls); the quantity of subscriber numbers; date of
termination of services (in case of termination or transfer of right to use the
services). Information concerning subscribers that terminate or transfer
the right to use the services must be stored within duration of at least 2
years;
c) Connect its centralized database with the
database of Ministry of Information and Communications and that of Ministry of
Public Security as regulated by law;
d) Provide sufficient information; demonstrate that
subscriber information stored in its centralized database has been properly
collected, collated, stored and managed as regulated; arrange personnel and
technical facilities at its branches to serve the inspection of subscriber
information upon the request of a competent state authority;
dd) Formulate and implement internal procedures for
checking subscriber information stored in its centralized database to ensure
the strict adherence to regulations;
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After 15 days as from the date of the first
notification, one-way service shall be suspended if the client fails to make
response, and the client is also informed that after 15 days as from the date
of suspension of one-way service, two-way service shall be suspended if no
response is made.
After 15 days as from the date of suspension of
one-way service, two-way service shall be suspended if no response is given by
the client, and the client is also informed that after 30 days as from the date
of suspension of two-way service, the Contract shall be finalized if the
telecommunications enterprise receives no response from such client.
After 30 days as from the date of suspension of
two-way service, the Contract for supply of telecommunications services shall
be finalized if no response is given by the client;
g) A Contract for supply of mobile
telecommunications services must include specific provisions on contract
finalization and termination of service supply in case the subscriber fails to
conclude a new Contract as prescribed in Point e of this Clause;
h) The telecommunications enterprise may provide
subscriber numbers of which Contracts have been terminated as regulated in
Point e of this Clause to other clients;
i) The telecommunications enterprise must instruct
prepaid mobile subscribers to check their subscriber information by accessing
its website or sending an instant message "TTTB" to 1414, and reply
subscribers' request by a message including the following information: full name,
date of birth, number and issuing authority of identity paper, and the list of
subscriber numbers used by an individual subscriber, or name of organization
and certificate of legal entity of an organizational subscriber. The
subscriber shall only check information concerning his/her subscriber number
and cannot check the information of other subscribers.
k) Conclude new Contracts upon the request of
subscribers under provisions in Clauses 4, 7 of this Article;
l) When receiving request from a client for
termination of services supplied to subscribers that use information in
identity paper or certificate of legal entity of such client, the
telecommunications enterprise must verify and request such subscribers to
update their subscriber information as regulated in Point e of this Clause, and
give a response to the requesting client;
m) Ensure subscriber information security as
regulated by law;
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9. Rights and responsibility of subscriber:
a) Present required documents/papers when
concluding Contract in accordance with regulations in Clause 3 of this Article
and assume responsibility for the legality of presented documents/papers;
b) Only conclude Contract for using subscriber
numbers for himself/herself, his/her biological or adopted children aged under
14 and his/her wards as regulated by law (if subscriber numbers are used by
persons); for personal or family equipment (if subscriber number is provided to
equipment). Organize the conclusion of Contract for subscriber numbers provided
to employees and equipment of organizational subscriber;
c) Assume responsibility under the law for use of
subscriber numbers provided;
d) In case of transfer of right to use subscriber
number, the transferor and the transferee must conclude a new Contract for
using such subscriber number with the telecommunications enterprise;
dd) Update subscriber information when having
change to documents presented at the time of concluding Contract or as
requested by the telecommunications enterprise as regulated;
e) Check subscriber information stored in the
telecommunications enterprise’s centralized database as regulated in Point i
Clause 8 of this Article; ensure the accuracy of subscriber information in
comparison with that in identity paper or certificate of legal entity of the
subscriber. The subscriber is responsible for updating/correcting subscriber
information upon the detection of inaccurate information or as requested by the
telecommunications enterprise as regulated.
g) Request the telecommunications enterprise to
finalize the Contract and terminate services provided to other entities using
the information of the subscriber’s identity paper or certificate of legal
entity.
10. Subscriber information shall be used for:
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b) serving the state management of
telecommunications operations;
c) serving the management of professional
operations, network operations and supply of services by telecommunications
enterprises.
11. Prohibited acts:
a) Forging or using identity paper or certificate
of legal entity of another entity to conclude Contract with telecommunications
enterprise.
b) Pre-inputting subscriber information; activating
prepaid mobile services for SIM cards when the conclusion of Contract is not
yet completed as regulated;
c) Trading or selling SIM cards of which subscriber
information has been already input or prepaid mobile services have been
activated;
d) Revealing or using mobile subscriber information
in contravention of law;
dd) Using universal SIM cards or device with
function to activate SIM cards without taking the SIM card out to input
subscriber information, or to activate prepaid mobile services for SIM cards.”
Article 2. Amendments to
Article 30 of the Government’s Decree No. 174/2013/ND-CP dated November 13,
2013 on penalties for administrative violations in posts, telecommunications,
information technology and radio frequency sectors:
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1. A fine ranging from VND 200,000 to VND 500,000
shall be imposed for any of the following violations:
a) Forging or using documents/papers of other
entities to conclude a Contract;
b) Failing to conclude a new Contract with the
telecommunications enterprise when transferring the right to use a subscriber
number as regulated.
2. A fine ranging from VND 800,000 to VND 1,000,000
per subscriber number shall be imposed on the mobile telecommunications service
provider, provided that total fine shall not exceed VND 200,000,000 for each
violation, for one of the following violations:
a) Supplying services to a subscriber who fails to
provide information as prescribed in Clause 5 Article 15 of the Decree No.
25/2011/ND-CP , amended in Article 1 herein;
b) Concluding Contracts in contravention of any of
regulations in Clauses 4, 6, and 7 Article 15 of the Decree No. 25/2011/ND-CP ,
amended in Article 1 herein.
3. A fine ranging from VND 10,000,000 to VND
20,000,000 per POS shall be imposed on the mobile telecommunications service
provider, provided that total fine shall not exceed VND 200,000,000 for each
violation, if the POS commits one of the following violations:
a) Failing to comply with any of regulations in
Points a, b, c, d Clause 4 Article 15 of the Decree No. 25/2011/ND-CP , amended
in Article 1 herein;
b) Failing to get signature of the subscriber owner
or of the legal representative of the organization, or of the authorized person
on paper-based or digitized or electronic certificate of subscriber
information;
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d) Failing to hang a signboard or hanging a
signboard containing insufficient information as prescribed in Point a Clause 2
Article 15 of the Decree No. 25/2011/ND-CP , amended in Article 1 herein;
dd) Failing to post or insufficiently posting types
of documents prescribed in Point b Clause 2 Article 15 of the Decree No.
25/2011/ND-CP , amended in Article 1 herein;
e) Failing to have equipment/facilities as
prescribed in Point c Clause 2 Article 15 of the Decree No. 25/2011/ND-CP ,
amended in Article 1 herein;
g) Digital representations or photos are not clear
and sharp, or photos do not contain date and time of taking photo.
4. A fine ranging from VND 20,000,000 to VND
30,000,000 per POS shall be imposed on the mobile telecommunications service
provider, provided that total fine shall not exceed VND 200,000,000 for each
violation, if the POS commits one of the following violations:
a) Accepting documents which fail to satisfy
requirements mentioned in Clause 3 Article 15 of the Decree No. 25/2011/ND-CP ,
amended in Article 1 herein, when concluding Contracts with clients;
b) Failing to strictly comply with regulations in
Point dd or Point e Clause 4 Article 15 of the Decree No. 25/2011/ND-CP ,
amended in Article 1 herein;
c) Failing to provide or insufficiently providing
information, or failing to prove subscriber information stored in the POS’s
centralized database as regulated in Point a Clause 8 Article 15 of the Decree
No. 25/2011/ND-CP , amended in Article 1 herein.
5. A fine ranging from VND 30,000,000 to VND 40,000,000
shall be imposed for any of the following violations:
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b) Selling SIM cards with subscriber information
already input or prepaid mobile services activated;
c) Selling terminal devices without SIM card with
subscriber information already input or prepaid mobile services activated;
d) Trading, exchanging or using universal SIM cards
or devices with function to activate SIM cards without taking the SIM card out
to input subscriber information, or to activate prepaid mobile services for SIM
cards;
dd) Failing to publish on the telecommunications
enterprise's website the list of POS or publishing the list of POS containing
insufficient information as regulated.
6. A fine ranging from VND 40,000,000 to VND
60,000,000 shall be imposed for concluding Contracts without obtaining the
authorization as regulated by law.
7. A fine ranging from VND 80,000,000 to VND
100,000,000 shall be imposed on the mobile telecommunications service provider
for any of the following violations:
a) Granting authorization to other entities to
conclude Contracts in contravention of regulations in Point c Clause 1 Article
15 of the Decree No. 25/2011/ND-CP , amended in Article 1 herein;
b) Accepting subscriber information provided by POS
other than the authorized ones;
c) Failing to notify or request subscribers whose
subscriber information fails to meet requirements to conclude new Contracts;
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dd) Failing to notify or request the individual
subscriber to conclude the Contract when using more than 03 prepaid subscriber
numbers;
e) Failing to provide subscriber information as
requested by a competent state authority;
g) Failing to provide methods of self-checking
subscriber information or providing insufficient subscriber information to the
subscriber owner for self-checking as regulated;
h) Failing to comply with the request of a
competent state authority for checking of subscriber information stored in the
telecommunications enterprise's centralized database to ensure the adherence to
the law.
8. A fine ranging from VND 180,000,000 to VND
200,000,000 shall be imposed on the mobile telecommunications service provider
for any of the following violations:
a) Failing to establish technical facilities or
centralized database to input, store and manage subscriber information under
provisions in Point b Clause 8 Article 15 of the Decree No. 25/2011/ND-CP ,
amended in Article 1 herein;
b) The centralized database on subscriber
information fails to store all types of subscriber information and types of
information prescribed in Point b Clause 8 Article 15 of the Decree No.
25/2011/ND-CP , amended in Article 1 herein;
c) Failing to store or insufficiently storing
subscriber information as regulated;
d) Failing to adopt internal procedures for
reviewing and checking subscriber information stored in the database;
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9. A fine ranging from VND 80,000,000 to VND
100,000,000 shall be imposed on the legal representative of the mobile
telecommunications service provider for failure to:
a) arrange personnel and technical facilities to
ensure the access to its centralized database for inspecting subscriber
information upon the request of a competent state authority;
b) formulate internal procedures for checking
subscriber information stored in its centralized database to ensure the strict
adherence to regulations.
10. A fine ranging from VND 80,000,000 to VND
100,000,000 shall be imposed for providing or adopting information technology
applications to forging of information, or photos of documents of organization
or individual, or photo of the person concluding Contract for use of
telecommunications services.
11. Additional penalties:
Confiscate exhibits of administrative violations,
excluding the organization or individual’s documents, if any of the violations
prescribed in Clause 5 of this Article is committed.
12. Remedial measures:
a) Enforced transfer of total amount top up primary
accounts of SIM cards of mobile subscribers using mobile telecommunications
services as from the date of entry into force of this Decree if any of the
violations prescribed in Clause 2, Points a, b, c Clause 5, Point dd Clause 7
and Clause 10 of this Article is committed. In case it is unable to
determine total top-up amount, the amount payable is calculated by applying the
following formula: VND 100,000 x total months in which the violation occurs;
a) Enforced transfer of total amount top up primary
accounts of SIM cards after 12 months as from the date of entry into force of
this Decree for mobile subscribers that use mobile telecommunications services
before the date of entry into force of this Decree and commit any of the
violations prescribed in Clause 2, Points a, b, c Clause 5, Point dd Clause 7
and Clause 10 of this Article is committed. In case it is unable to
determine total top-up amount, the amount payable is calculated by applying the
following formula: VND 100,000 x total months in which the violation occurs.”
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This Decree shall come into force as from the date
on which it is signed.
Article 4. Transitional
provisions
1. Within duration of 03 months as from the date of
entry into force of this Decree, telecommunications enterprises are responsible
for concluding Contracts with authorized places of supply of telecommunications
services; reviewing, notifying and finalizing Contracts, and recalling SIM
cards which have been delivered by telecommunications enterprises to their
agents. Over the said duration, the subscriber information management and
actions against administrative penalties shall be governed by regulations of
this Decree; existing subscriber information registration offices and SIM
distributors that fail to conclude Contracts with telecommunications
enterprises as regulated herein must stop receiving requests for subscriber
information registration and selling SIM cards.
2. Within duration of 12 months as from the date of
entry into force of this Decree, mobile telecommunications service providers
shall review, instruct and request their clients who use prepaid mobile
subscribers but fail to provide sufficient subscriber information as regulated
Clauses 5, 7 Article 15 of the Decree No. 25/2011/ND-CP amended in Article 1
herein to perform the conclusion of Contracts in accordance with this
Decree. Other than POS prescribed in Clause 1 Article
15 of Decree No. 25/2011/ND-CP amended in Article 1 herein, telecommunications
enterprises may appoint their employees to directly contact existing
subscribers to instruct them in implementing regulations in Clauses 3, 4
Article 15 of Decree No. 25/2011/ND-CP amended in Article 1 herein. If the
telecommunications enterprise has reasonable grounds to affirm that subscriber
information is accurate and it is not necessary to conclude new Contracts with
such subscriber owners, it shall assume responsibility under the law for the
accuracy of such subscriber information, supplement photos and extract or
update subscriber information in conformity with regulations in Clause 5
Article 15 of the Decree No. 25/2011/ND-CP amended in Article 1 herein. After
12 months as from the date of entry into force of this Decree,
telecommunications enterprise must ensure that subscriber information stored in
its centralized database complies with regulations herein.
3. With respect of subscribers who are supplied
with mobile telecommunications services before the date of entry into force of
this Decree, Clause 2 and Point dd Clause 7 Article 30 of Decree No.
174/2013/ND-CP amended in Clause 2 herein shall be applied after 12 months as
from the date of entry into force of this Decree.
4. As from the date of entry into force of this
Decree, the Circular No. 04/2012/TT-BTTTT dated April 13, 2012 by Minister of
Information and Communications on management of prepaid subscriber numbers
shall be null and void.
Article 5. Implementation organization
1. Ministry of Information and Communications shall
take charge of and cooperate with relevant ministries and regulatory bodies in
instructing and organizing the implementation of this Decree.
2. Ministers, heads of ministerial-level agencies,
heads of the Government’s affiliates, Chairpersons of people’s committees of
central-affiliated cities or provinces, and relevant organizations and
individuals shall be responsible for implementing this Decree./.
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ON BEHALF OF
THE GOVERNMENT
PRIME MINISTER
Nguyen Xuan Phuc