THE
MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
86/2009/TT-BTC
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Hanoi,
April 28, 2009
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CIRCULAR
AMENDING
AND SUPPLEMENTING A NUMBER OF PROVISIONS OF THE FINANCE MINISTRY'S CIRCULAR No.
155/2007/TT-BTC OF DECEMBER 20,2007, GUIDING THE IMPLEMENTATION OF THE
GOVERNMENT'S DECREE No. 45/2007/ND-CPOF MARCH 27, 2007, DETAILING THE
IMPLEMENTATION OF THE LAW ON INSURANCE BUSINESS, AND THE FINANCE MINISTRY'S
CIRCULAR No. 156/ 2007/TT-BTC OF DECEMBER 20, 2007, GUIDING THE IMPLEMENTATION
OF THE GOVERNMENT'S DECREE No. 46/2007/ND-CP OF MARCH 27, 2007, ON FINANCIAL
REGULATIONS APPLICABLE TO INSURANCE ENTERPRISES AND INSURANCE BROKERAGE
ENTERPRISES
Pursuant to December 9, 2000
Law No. 24/2000/QH10 on Insurance Business;
Pursuant to the Government's Decree No. 45/2007/ND-CP of March 27, 2007,
detailing a number of articles of the Law on Insurance Business;
Pursuant to the Government’s Decree No. 46/2007/ND-CP of March 27, 2007, on
financial regulations applicable to insurance enterprises and insurance
brokerage enterprises;
Pursuant to the Government’s Decree No. 118 2008/ND-CP of November 27, 2008,
defining the junctions, tasks, powers and organizational structure of the
Ministry of Finance;
The Ministry of Finance amends and supplements a number of provisions of
the Finance Ministry's Circular No. 155/2007/TT-BTC of December 20, 2007,
guiding the implementation of the Government's Decree No. 45/2007/ND-CP of
March 27, 2007, detailing a number of articles of the Law on Insurance Business
(below referred to as Circular No. 155), and Circular No. 156/2007/TT-BTC of
December 20, 2007, guiding the implementation of the Government's Decree No.
46/2007/ND-CP of March 27, 2007, on financial regulations applicable to
insurance enterprises and insurance brokerage enterprises <below referred to
as Circular No. 156), as follows:
Article 1. To amend and
supplement Circular No. 155
1. To amend and supplement
Point 2.2, Clause 2, Section II on appraisal of financial capacity, as follows:
"2.2.1. A list of
organizations and individuals that contribute capital to establishing the
insurance enterprise or insurance brokerage enterprise, specifying
organizations and individuals being founding shareholders (members); levels of
contributed capital; number and types of shares (for dossiers of application
for licenses to establish joint-stock enterprises); modes of capital contribution,
and time limits for capital contribution;
2.2.2. Pounding shareholders
shall jointly hold at least 50% ol the initial charter capital of the insurance
enterprise or insurance brokerage enterprise for 3 years (for dossiers of
application for licenses to establish joint-stock enterprises);
2.2.3. The document of a
competent authority of the country in which the enterprise is headquartered
certifying that the foreign investor has a sound financial status and fully
meets management requirements in its country by the end of the fiscal year
preceding the year of application for a license;
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2.2.5. Proofs evidencing
investors' ability to contribute adequate capital as registered for the
establishment of the insurance enterprise or insurance brokerage enterprise:
a/ Financial statements of 3
consecutive years preceding the year of application for a license to establish
the insurance enterprise or insurance brokerage enterprise certified by an
independent audit organization, for organizations being founding shareholders
(members) or contributing 10% or more of charter capital; financial statements
of 3 consecutive years preceding the year of application for a license to
establish the insurance enterprise or insurance brokerage enterprise, for
legal-person investors other than founding shareholders (members) or
contributing less than 10% of charter capital;
b/ Capital contributed to
establishing the insurance enterprise or insurance brokerage enterprise must
come from lawful sources; it is not permitted to use loans or entrusted
investment capital in any forms as capital contributed to establishing an
insurance enterprise or insurance brokerage enterprise;
c/ For Vietnamese organizations
contributing capital to establishing the insurance enterprise in the capacity
as founding shareholder or shareholder contributing 10% or more of charter
capital: being enterprises set up under the Enterprise Law, having an equity
capital of at least VND 150 (one hundred and fifty) billion, contributing to
the insurance enterprise an amount of money not exceeding 25% of its equity
capital, and running a profitable business as certified in the audited
financial statements of the last 3 consecutive years.
d/ For Vietnamese organizations
contributing capital to establishing the insurance enterprise at the level of
less than 10% of the insurance enterprise's charter capital: being enterprises
set up under the Enterprise Law, having a sound financial status in the last 3
fiscal years, and having their equity capital, after subtracting long-term
investments, being larger than the capital amount to be contributed to the
insurance enterprise.
2.2.6. Having at least 4
organizations contributing to establishing the insurance enterprise."
2. To add Clause 3 to Section
II on procedures to be carried out for granting a license for establishment and
operation of an insurance enterprise or insurance brokerage enterprise as
follows:
"3.1. On the basis of a
complete and valid dossier and the investors' satisfaction of prescribed
conditions, the Ministry of Finance shall issue a document to grant
in-principle approval.
3.2. Within 6 months after the
date of obtaining the in-principle approval, the insurance enterprise or
insurance brokerage enterprise shall fully remit charter capital and submit to
the Ministry of Finance the bank's certification of the chaaer capital amount
already remitted into a frozen account by each organization and individual on the
registered list in the dossier of application for a license.
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- Persons holding such
managerial and executive positions as director general (director), chairman of
the Board of Directors (Members' Council or company president), deputy director
general (deputy director), chief accountant and actuary (for life insurance) or
head of the section for insurance operations exploitation, survey and
compensation, head of the investment section and reserve and solvency actuary
(for non-life insurance) satisfy the conditions prescribed in Circular No. 155.
and this Circular;
- Conditions on information
technology for professional operations, accounting and finance, investment,
information personnel and infrastructure.
3.4. After the insurance
enterprise fully satisfies the conditions for commencement of operation as
specified at Points 3.1, 3.2 and 3.3, the Ministry of Finance shall officially
grant an establishment and operation license to it. Past 6 months, if the
insurance enterprise fails to satisfy one of the conditions specified at Point
3.2 or 3.3, the in-principle approval stated at Point 3.1 will no longer be
valid.
3.5. Apart from the provisions
of Point 3.2 above, the insurance brokerage enterprise shall prove that it
fully satisfies the following conditions:
- Persons holding such
managerial or executive positions as director general (director), chairman of
Board of Directors (Members' Council or company prcsidcni), deputy director
general (deputy director) and chief accountant meet the conditions prescribed
in Circular No. 155. and this Circular.
- All staff members of
professional sections possess diplomas or certificates of training in their
working domains, which are awarded by accredited domestic or international
insurance training establishments:
- Conditions on information
technology for professional opciations. accounting-finance and inveslmenl
activities, information personnel and infrastructure.
3.6. After the insurance
brokerage enterprise fully satisfies the conditions for commencement of
operation as specified at Points 3.1, 3.2 and 3.5, the Ministry of Finance
shall officially grant an establishment and operation license to it. Past 6
months, if the insurance brokerage enterprise still fails to satisfy one of the
conditions specified at Point 3.2 or 3.5, the in-principle approval stated at
Point 3.1 will no longer be valid."
3. To convert Clause 3,
Section H on procedures to be carried out before the insurance enterprise or
insurance brokerage enterprise officially commences its operation into Clause
4.
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"4.1.3. To convene a
meeting to elect the Board of Directors, the Members' Council, president and
director general (director) as prescribed in its charter in accordance with
law; and to complete procedures of application for approval of the president
and director general (director)."
5. To add Point 2.5 to Clause
2, Section III on increase or decrease of charter capital of insurance enterprises
or insurance brokerage enterprises, as follows:
"2.5. Within 6 months after
obtaining the Ministry of Finance's in-principle approval of the increase or
decrease of charter capital, the insurance enterprise or insurance brokerage
enterprise shall complete the increase or decrease of its charter capital
according to the approved plan and report the results to the Ministry of
Finance for the latter to consider and grant a modified license. If failing to
implement the approved plan on capital increase, the insurance enterprise or
insurance brokerage enterprise shall report to the Ministry of Finance for
consideration and settlement."
6. To amend Point 4.3, Clause
4, Section III on relocation of head offices, branches or
representative offices of insurance enterprises or insurance brokerage
enterprises, as follows:
"4.3. Proofs of the right
to use the venue of the head office, branch or representative office (rented or
owned)."
7. To amend and supplement
Clause 1, Section IV on criteria for managers and executives of insurance
enterprises or insurance brokerage enterprises, as follows:
7.1. To add Points 1.1.5 and
1.1.6 on general criteria as follows:
"1.1.5. Within three
consecutive years before being appointed as managers or executives of an
insurance enterprise or insurance brokerage enterprise:
- Having never been sanctioned
for administrative violations in insurance business in the form of forcible
dismissal of the managerial or executive positions approved by the Ministry of
Finance or forcible termination of the positions appointed by enterprises;
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"1.1.6. When being appointed
as managers or executives of the insurance enterprise or insurance brokerage
enterprise, not directly involved in any cases under investigation or
verification by competent agencies."
7.2. To amend Points 1.4.2 and
1.4.3 on criteria for a director general (director) or representative at law as
follows:
"1.4.2. Possessing a
university or postgraduate degree;
1.4.3. Having a diploma or
certificate of training in the professional domain he/she will be in charge of.
awarded by an accredited domestic or international insurance training
establishment;
1.4.4. Having directly worked
for at least 5 years in the domain of insurance, finance or banking;
1.4.5. Having held for at least
3 years the position of head of a professional section at the head office or
the position of branch director of an insurance enterprise (in case of holding
the position in an insurance enterprise) or insurance brokerage enterprise (in
case of holding the position in an insurance brokerage enterprise);
1.4.6. Residing in Vietnam during
his/her term of office."
7.3. To amend Point 1.5 on
criteria for a deputy director general (deputy director), branch director, head
of representative office, chief accountant or head of the Control Board as
follows:
"1.5.1. Meeting the general
criteria specified at Point 1.1 above;
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1.5.3. Possessing a diploma or
certificate of training in the domain he/she will be in charge of, awarded by
an accredited domestic or international insurance training establishment;
1.5.4. Having directly worked
for at least 3 years in the domain of insurance, finance or banking and the
professional domain he/she will be in charge of."
7.4. To amend and supplement
Point 1.6 on criteria for the head of the section for insurance operations
exploitation, insurance compensation, reinsurance and investment as follows:
"1.6. Criteria for the head
of the section for insurance operations exploitation, insurance compensation,
reinsurance or investment:
1.6.1. Meeting general criteria
specified at Point 1.1 above;
1.6.2. Possessing a university
or postgraduate degree;
1.6.3. Possessing a diploma or
certificate of training in the domain he/she will be in charge of. awarded by
an accredited domestic or international insurance training establishment;
1.6.4. Having worked for at
least 3 years in the domain he/she will be in charge of."
7.5. To amend and supplement
Point 1.7 on principles for appointment of positions in insurance enterprises
and insurance brokerage enterprises as follows:
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b/ To add Points 1.7.3 and 1.7.4
to Section IV, as follows:
1.7.3. The director general
(director) of or deputy general director (deputy director) may not concurrently
hold the position of director or head of more than one branch or representative
office.
Branch directors and heads of
professional sections at the head office of an insurance enterprise or
insurance brokerage enterprise may not concurrently hold the position of
director of another branch, head of a branch-based representative office or
head of another representative office of that insurance enterprise or insurance
brokerage enterprise.
1.7.4. The director general
(director) or deputy director general (deputy director) of an insurance
enterprise may not concurrently act as an actuary of that insurance
enterprise."
8. To amend and supplement
Clause 2, Section IV on internal supervision and control, as follows:
To annul Points 2.1, 2.2 and 2.3
of this Clause and replace them with the following:
"2.1. Insurance enterprises
and insurance brokerage enterprises shall formulate an internal supervision and
control process and conduct internal supervision and control independently from
their execution and business activities, ensuring the assessment and prompt
detection of all risks threatening to adversely affect their operation
efficiency and objectives for immediately reporting to enterprises' competent
persons so as to take appropriate handling measures.
2.2. Persons in charge of
internal supervision and control must possess a university or postgraduate
degree; and have worked for at least 3 years in the domain of finance, banking
or insurance."
9. To add Clause 4 to Section
IV on actuaries for calculation of operational reserves in non-life insurance,
as follows:
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4.1. A non-life insurance
enterprise must employ actuaries to perforin the following duties:
4.1.1. To set
up operational reserves as prescribed by law.
4.1.2. To assess the situation
of compensation payment and the levels of reserve set up in previous fiscal
years, compare them with the level already set up and executed, and make
reports to the Ministry of Finance according to the form attached to this
Circular (not printed herein).
4.1.3. To periodically assess
the insurance enterprise's solvency and give certification in the solvency
report sent to the Ministry of Finance as prescribed by law.
4.2 Criteria for actuaries for
calculation of operational reserves and solvency in non-life insurance
enterprises:
4.2.1. Possessing a university
or postgraduate degree:
4.2.2. Having worked for at
least 5 years in the finance and accounting section of an insurance enterprise;
4.2.3. Having good moral
qualities, having never been sanctioned for administrative violations in
insurance business;
4 3. Non-life insurance
enterprises shall register their actuaries with the Ministry of Finance A
registration dossier contains the following information'
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- Diplomas, certificates and
curricula vitae evidencing the professional capacity, qualifications and
experience of the to-be-appointed actuary.
4.4. When necessary, the
Ministry of Finance may request actuaries or persons to be appointed as
actuaries to prove to the Ministry of Finance that they are professionally
qualified to perform tasks specified at Point 4.1, Clause 4, Article 1 of this
Circular."
10. To amend and supplement
Point 3.3.3, Clause 3, Section V on insurance exploitation,
as follows:
"3.3.3. Insurance
enterprises are prohibited from taking advantage of the prestige, influence and
direction of state management agencies, their superior managing agencies and
capital contributors to provide insurance services, affecting the lawful rights
and interests of insurance buyers."
11. To amend Point 23, Clause
2, Section VI on retention levels, as follows:
"2.3. Insurance enterprises
may only retain the maximum level of liability per risk or loss not exceeding
of their equity capital."
12. To amend Point 4.2,
Clause 4, Section VI on conditions on foreign reinsurance-assuming enterprises,
as follows:
"4.2. Leading
reinsurance-assuming enterprises and enterprises assuming reinsurance equal to
10% or more of total liabilities of each reinsurance contract must be rated at
least "BBB" by Standard & Poor's. "B++" by A.M.Best.
"Baa" by Moody's or get equivalent ratings in the fiscal year right
before the time of entry into reinsurance contracts.
In case of reinsurance to
overseas parent companies or companies within the same group without any credit
rating according to the above provision, insurance enterprises shall report
such in writing to the Ministry of Finance."
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13.1. To rename Clause 1,
Section VII. As follows:
"Provisions on training of insurance
agents, examination for certificate awarding and award of insurance agent
training certificates"
13.2. To amend and supplement
Point 1.1, Clause 1. Section VII, as follows:
"1.1. Insurance agent
training institutions that wish to train insurance agents shall send a written
request to the Ministry of Finance for approval of insurance agent training
programs as prescribed in Clause 2, Article 31 of the Government's Decree No.
45/2007/ND-CP, together with training processes and assessment oil raining
processes, the process of examination for awarding insurance agent training
certificates (in case they are authorized by the Ministry of Finance to
organize examination) and the process of awarding and management of insurance
agent training certificates."
13.3. To amend and supplement
Point 1.3.1, Clause 1. Section VII. as follows:
"1.3.1. Only insurance
agent training institutions approved by the Ministry of Finance may award
insurance agent training certificates. To be awarded a certificate, the trainee
must complete the insurance agency training program and pass an exam for
awarding insurance agent training certificates organized by the Ministry of
Finance or an insurance agent training institution authorized by the Ministry
of Finance."
14. To supplement Clause 5,
Section VIII on insurance brokerage, as follows:
"5.5. Using collaborators
to perform one or several stages of the insurance brokerage process."
Article 2. To amend and
supplement Circular No. 156
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"c/The reserve calculation
bases: Life insurance enterprises shall use the following bases for calculating
mathematical reserve:
+ The mortality table included
in the Appendix to Circular No. 156 (the mortality table CSO 1980).
+ The maximum technical interest
rate equal to 80% of the interest rate of government bonds with a 10-year term
at the latest time prior to the time of setting up the reserves. Life insurance
enterprises may reduce technical interest rates to comply with this provision.
If life insurance enterprises wish to increase technical interest rales, they
shall obtain the Ministry of Finance's approval in accordance with Point 3.3,
Clause 3, Section III. of Circular No. 156."
2. To amend and supplement
Point 1.2.1, Clause 1, Section VI on turnover from insurance business
activities, as follows:
"1.2.1. Turnover from
non-life insurance business activities, which consists of receivable amounts
arising in the period, shall be determined on the following principle:
- Insurance enterprises shall
account the collected principal premiums as incomes when their liabilities
toward insurance buyers arise.
Specifically:
+ Insurance policies have been
concluded between insurance enterprises and insurance buyers and insurance
buyers have fully paid insurance premiums.
+ There is evidence that
insurance enterprises have accepted insurance and insurance buyers have fully
paid insurance premiums.
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* In case insurance
enterprises have agreed to allow insurance buyers to delay the payment of
insurance premium arrears, such a delay must be recorded in an annex to insurance
policies made when the insurance policies are still valid and prior to the date
when the loss arises.
* In case insurance
enterprises have agreed with insurance buyers on periodical payment of
insurance premiums, they shall account insurance premiums as incomes
corresponding to the period or periods during which insurance premiums have
been paid and may not account as incomes premium amounts not yet due and paid
by insurance buyers as agreed upon.
* In all cases, the
extended duration for payment of insurance premium arrears must not exceed the
insurance term under insurance policies. Particularly for the case of providing
cargo transportation insurance to clients having many shipments insured in a
year, if the insurance enterprises and insurance buyers have entered into
in-principle insurance policies (open insurance policies) on methods of
insurance and modes of payment, the deadline for payment of insurance premiums
for insurance policies signed in a month must not be beyond the 15th of the
subsequent month.
* In case insurance buyers
fail to fully pay insurance premiums or fail to pay insurance premiums within
the time limit agreed upon in insurance policies, insurance policies will cease
to be effective on the day following the day when insurance buyers have to pay
insurance premiums as agreed upon in insurance policies.
* Insurance enterprises
shall record a decrease in their turnover corresponding to the duration in
which no insurance liabilities arise because insurance buyers fail to pay
insurance premiums
In case insurance policies
contain no agreements on the time limit for payment of insurance premiums, no
liabilities will arise for these insurance policies and insurance enterprises
may not account these insurance premiums as turnover.
- In case of co-insurance,
insurance enterprises shall account as incomes collected principal insurance
premiums allocated according to the coinsurance ratio.
- Insurance enterprises shall
account collected charges lor reinsurance assumption, commissions for reinsurance
cession and other received revenues from reinsurance cession when reinsurance
payment sheets are certified.
If insurance enterprises have
agreed with reinsurance ceding parties on periodical payment of insurance premiums,
they shall account as incomes insurance premiums corresponding to the period or
periods of which insurance premiums have been paid and may not account as
incomes premiums amounts not yet due and paid by reinsurance ceding parties as
agreed upon.
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- For paid amounts in order to
reduce revenues: Insurance enterprises shall account them as income decrease
immediately after economic activities arise and there is evidence of acceptance
of involved parties, regardless of whether they have paid them or not."
Life insurance enterprises shall
account their turnovers under Circular No. 156.
3. To amend Point 2.1, Clause
2, Section VI, on expenditures for business insurance activities as follows:
"2.1. Expenditures for
business insurance activities:
2.1.1. Indemnities paid under
principal insurance policies (payment of principal insurance indemnities, for
non-life insurance, or payment of insurance sums, for life insurance) or
reinsurance policies, after subtracting receivable amounts in order to reduce
expenditures such as compensations received from reinsurance cession,
compensations received from third parties, amounts received from the handling
of goods for which compensation have been wholly paid;
Principal indemnities shall be
paid by non-life insurance policies in accordance with the insurance scope and
insurance conditions prescribed in the insurance policies agreed upon between
involved parties and upon evidence of the occurrence of damage.
2.1.2. Deductions for setting up
operational reserves under Section III of this Circular;
2.1.3. Insurance and insurance
brokerage commissions paid under Section V of Circular No. 155;
2.1.4. Expenses for loss survey
under Article 26 of Decree No. 45/2007/ND-CP;
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2.1.6. Expenses for the handling
of damaged goods for which compensations have been wholly paid;
2.1.7. Expenses for management
of insurance agents:
- For life insurance enterprises,
expenses for management of insurance agents include expenses for training and
examination for awarding agent certificates, expenses for training to improve
agents' knowledge. It is prohibited to provide supports to insurance agents in
am forms other than insurance agency commissions paid under the Finance
Ministry's regulations.
2.1.8. Expenses for loss
prevention and mitigation, which must not exceed 2% of insurance premiums
actually collected in the fiscal year to pay for loss prevention and mitigation
measures specified in Clause 2, Article 25 of Decree No. 45/2007/ND-CP;
Expenses for loss prevention and
mitigation must be paid for proper purposes in accordance with law with
sufficient invoices, vouchers or evidence.
2.1.9. Expenses for assessment
of risks of the subject matters of insurance, including expenses for gathering
information on, investigating and verifying the subject matters;
2.1.10. Deduction of 5% of
annually collected total premiums of compulsory fire and explosion insurance
for use as funds for fire and explosion fighting; deduction of at least 2% of
annually collected premiums of compulsory insurance for civil liability of
motor vehicle owners for contribution to the fund for motor vehicle insurance;
and other deductions for use as funds for insurance operations as prescribed by
law;
2.1.11. Other expenses and
deductions in accordance with law".
4. To amend Point 2.1.1,
Clause 2, Section VII on expenditures of insurance brokerage enterprises, as
follows:
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5. To amend Point 2.3.1,
Clause 2, Section XI on statistical reports and professional reports of life
insurance enterprises, as follows:
"2.3.1. Monthly report on
business results shall be made according to the form attached to this Circular
(not printed herein).
Article 3. Organization
of implementation
1. This Circular takes effect 45
days from the date of its signing.
2. Any problems arising in the
course of implementation should be promptly reported to the Ministry of Finance
for study and settlement.
FOR
THE MINISTER OF FINANCE
VICE MINISTER
Tran Xuan Ha