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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No:
17/2012/ND-CP
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Hanoi
, March 13, 2012
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DECREE
DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF
ARTICLES OF THE LAW ON INDEPENDENT AUDIT
Pursuant to the Law on the
organization of the Government of December 25, 2011;
Pursuant to the Law on
independent audit of March 29, 2011;
At the proposal of the
Minister of Finance;
The Government promulgates this
Decree detailing and guiding the implementation of a number of articles of the
Law on independent audit,
Chapter 1.
GENERAL PROVISIONS
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This Decree details and guides
the implementation of a number of articles of the Law on independent audit on
audit professional organizations; audit firms; providing audit services across
the border; audited entities; audit reports and archiving, use and destruction
of audit dossiers.
Article 2.
Subjects of application
This Decree is applicable to
auditors, practicing auditors, audit firms, branches of foreign audit firms,
foreign audit firms providing audit service across border in Vietnam, audited
entities, audit professional organizations and other organizations and
individuals related to activities of independent audit.
Article 3.
Interpretation of terms
In this Decree, the following
terms shall be defined as follows:
1. Audit firms in Vietnam:
means a firm which is established and operating under provisions of Vietnamese
law, fully meeting conditions of audit service business as stipulated and is
granted the Certificate of satisfaction of auditing business conditions by the
Ministry of Finance.
2. Person in charge of
management and administration: includes owner, director of private enterprises,
member of partnership, chairman of the Members’ Council, president of the
company, chairman of the Management Board, member of the Management Board,
member of Members’ Council, director or general director, vice director or vice
general director; branch director, branch vice director of audit firms and
other managerial positions stipulated in the charter or equivalent documents of
enterprises and organizations.
3. Providing of auditing
service across the border: means providing of auditing service by audit
firms in one country for enterprises and organizations in another country.
Chapter 2.
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ITEM 1. AUDIT
PROFESSIONAL ORGANIZATIONS
Article 4.
Audit professional organizations
1. Audit professional
organizations are socio-professional organizations of auditors, practicing
auditors and audit firms in the whole country.
2. Audit professional
organizations are entitled to:
a) To foster knowledge for
auditors and practicing auditors;
b) To research, draft, update
the system of Vietnamese auditing standards on basic of the standard system of
international auditing in compliance with the process of building up,
promulgating and publishing the Vietnamese audit standards, to submit to the
Minister of Finance for issuance;
c) To participate in operation
examinations for auditors;
d) To coordinate with the
Ministry of Finance for examination and control in auditing service quality.
3. The Ministry of Finance
stipulates in detail the conditions, modes, regime of reporting and
supervision, examination and inspection in activities of audit professional
organizations as stipulated in Clause 2 of this Article.
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Article 5.
Legal capital for the Limited Liability Company
1. Legal capital for the Limited
liability company shall be 3 (three) billion Vietnamese dong; as from January
01, 2015, the legal capital shall be 5 (five) billion Vietnamese dong.
2. During its operation, the
limited liability company must keep the equity in balance sheet not less than the
legal capital as stipulated in Clause 1 of this Article. The audit firm must
supplement its capital if the equity in balance sheet is less than the legal
capital as stipulated in Clause 1 of this Article in the period of 03 (three)
months as from the end date of the fiscal year.
Article 6.
The member of limited liability company with two or more members in case such
member is an organization
1. The member being an
organization are entitled to contribute at maximum 35% of the charter capital
of the audit limit liability company with two or more members. In case there
are many organizations contributing in capital, the total capital contributed
by these organizations shall be at maximum 35% of the charter capital of the
limited liability company with two or more members.
2. The member being an
organization shall appoint one person as its representative in the Members’
Council. The representative of member being an organization must be an auditor
and register for auditing practice in the audit firm to which the organization
contributes its capital.
3. A practicing auditor who is
representative of member being an organization shall not permitted to
contribute capital to such audit firm with individual status.
Article 7.
The level of capital contribution of a practicing auditor
1. The auditing limited
liability company must have at least 02 (two) limited partners who are auditors
having registered for their auditing practice in the company. Capital
contributed by practicing auditors must account for over 50% of the company’s
charter capital.
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Article 8.
The minimum capital for foreign audit firms establishing branches in Vietnam
and the allocated capital of branches of foreign audit firms in Vietnam.
1. The foreign audit firm which
requesting for granting of the Certificate of satisfaction of auditing business
conditions to its branches in Vietnam must have the equity in balance sheet
being at least equal to 500,000 (five hundred thousand) US dollars at the time
point of ending the fiscal year nearest time point of requesting.
2. Allocated capital of the
branch of foreign audit firms in Vietnam must not be less than the legal
capital applicable to the limited liability company stated in Article 5 of this
Decree.
3. During its operation, the
foreign audit firm must keep the equity in the balance sheet and the allocated
capital of its branch in Vietnam not less than the capital stipulated in Clause
1 of this Article. The foreign audit firm, branches of the foreign audit firm
must supplement their capital if their equity in balance sheet is lower than
the capital levels stipulated in Clause 1 and Clause 2 of this Article in the
period of 03 (three) month as from the end date of the fiscal year.
Article 9.
Cases where the audit firms and branches of foreign audit firms in Vietnam are
not entitled to audit
Cases where audit firms and
branches of foreign audit firms in Vietnam are not entitled to perform audit as
stipulated in Article 30 of the Law on independent audit shall be guided in
detail as follows:
1. Audit firms, branches of
foreign audit firms in Vietnam who are performing or performed in the preceding
year one of the following services for audited entities:
a) Recording in Accounting Book,
making financial statements;
b) Performance of internal audit
service;
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d) Other services which affect
the independence of practicing auditors and audit firms, branches of foreign
audit firms in Vietnam in accordance with provisions of professional ethics
standards of accounting and auditing.
2. Members participating in the
audit, persons in charge of management and administration,
members of the Control Board, chief accountants (or person in charge of
accounting) of the audit firms and branches of the foreign audit
firms in Vietnam are members, founding shareholders or holding shares,
contributing capital into the audited entities or having other economic,
financial relations with the audited entities in accordance with provisions of
professional ethical standards of accounting and auditing.
3. Persons in charge of
management and administration, members of the Control Board, chief accountants
(or person in charge of accounting) of the audit firm, branches of the foreign
audit firm in Vietnam have parents, spouse, children, siblings being members,
founding shareholders or holding shares, contributing capital and holding from
20% or more of voting rights of the audited entity or being persons in charge
of management, administration, members of the Control Board, inspectors, chief
accounts (or person in charge of accounting) in the audited unit.
4. Persons in charge of
management, administration, members of the Control Board, inspectors, chief
accounts (or person in charge of accounting) of the audited entity are also
persons who contribute capital and hold from 20% or more of voting rights
toward the audit firms, branches of the foreign audit firms in Vietnam.
5. The audit firms, branches of
the foreign audit firms in Vietnam and audited entities have the following
relationships:
a) Having the same an individual
or enterprise, organization, who are founding members or involve in the
foundation;
b) Together being directly or
indirectly administered, controlled, contributed capital in all forms by a
third party;
c) Being administered or
controlled personnel, finance and business activities by by the individuals
belong to the following relationships: husband and wife, parents and children
(regardless of natural or adopted children, daughter-in-law or son-in-law);
brothers and sisters of the same father and mother (regardless of natural or
adoptive father or mother); paternal grandparents and grandchildren; maternal
grandparents and grandchildren; natural uncle, aunt and nephew or niece;
d) Having contractual business
cooperation agreement;
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6. The audited entity performed
in the preceding year or is performing audit of financial statements or other
auditing services for the audit firms, branches of the foreign audit firms in
Vietnam.
7. The audited entity is
organization contributing capital to the audit firm; the audited entity is the
parent company, subsidiary company, associated company, joint venture company,
superior unit, subordinate unit, company in the same conglomerate of
organization contributing capital to the audit firm.
8. The audit firm directly or
indirectly participates in management, control and capital contribution in all
forms into the audited entity.
9. Other cases in accordance
with provisions of professional ethics standards of accounting and auditing and
provisions of law.
ITEM 3.
PROVIDING AUDITING SERVICE ACROSS BORDER OF FOREIGN AUDIT FIRMS
Article 10.
Subjects of providing the auditing service across border
Subjects of providing the
auditing service across border for enterprises and organizations in
Vietnam are audit firms having nationality of nation being member of the Word
Trade Organization or nation having entered into a treaty with Vietnam on
providing the auditing service across border.
Article 11.
Conditions of providing the auditing service across border
1. The foreign audit firm fully
meeting the following conditions shall be registered of providing the auditing
service across border:
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b) Obtaining the written
document from the auditing practice management agency (the state management
agency on independent auditing or a professional organization) in the place
where the head office of the foreign audit firm is located to permit providing
the auditing service across border in Vietnam and verifying it not violating of
independent auditing provisions and other provisions of law of the foreign
country in 3 consecutive years preceeding the year of application for license
of providing the auditing service across border.
c) Having at least 5 (five)
auditors who have obtained certificates of auditing practice from the Ministry
of Finance, including the legal representative;
d) Having the equity in balance
sheet equivalent to 500,000 (five hundred thousand) US dollars in the end of
the fiscal year preceding the year when the audit firm provides auditing
service across border in Vietnam;
dd) Having bought professional
indemnity insurance for auditors practicing in Vietnam;
e). Having a compulsory deposit
equal to the legal capital as stipulated in clause 1, article 5 of this Decree
in a commercial bank legally operating in Vietnam and having a letter of
guarantee from this bank in which the bank undertakes to settle the payment in
cases where liabilities incurred from contracts of providing auditing service
across border in Vietnam exceed the amount of compulsory deposit;
g) Fully performing reporting
and other obligations as stipulated in Article 13 of this Decree.
2. The foreign audit firm is
only entitled to provide auditing services across border in Vietnam after
having done its registration and obtained the certificate of satisfaction of
business conditions of auditing service across border in Vietnam. The mode of providing
auditing service across border must implement in according to provisions in
Article 12 of this Decree.
3. The audit firm must maintain
conditions stipulated in Clause 1 of this Article during the limit time of
Certificate of satisfaction of business conditions of auditing service across
border in Vietnam. In case one of these conditions is not fulfilled, the
foreign audit firm is responsible for reporting to the Ministry of Finance
during a period of 20 days since the day of not-satisfying fully conditions as
prescribed.
Article 12.
Mode of providing auditing service across border
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2. Only audit firms who satisfy
all conditions for auditing business as stipulated in Article 21 of the Law on
independent auditing and in this Decree, having obtained the Certificate of
satisfaction of auditing business conditions, may be allowed to joint venture
with the foreign audit firms to provide auditing service across border.
3. The foreign audit firm,
Vietnamese audit firms who establish partnerships with foreign audit firms to
provide auditing service across border and the audited entity must enter into
an auditing contract in accordance with the law of Vietnam. The auditing
contract must be fully signed by legal representatives of the foreign audit
firm, Vietnamese audit firm and the audited entity.
4. The foreign audit firm and
the Vietnamese audit firm must enter in a partnership contract on providing
auditing service across border. The partnership contract must define clearly
responsibilities of the foreign audit firm and the Vietnamese audit firm in
providing auditing service across border.
5. The foreign audit firm and
the Vietnamese audit firm which entering in an auditing partnership contract
must appoint a practicing auditor to undertake the auditing work parts that
belongs to the responsibility of each firm stated in the auditing contract.
6. The auditing report must be
signed by legal representative of the foreign audit firm, the Vietnamese audit
firm and practicing auditors who undertake the auditing work parts that belongs
to the responsibility of each firm stated in the auditing contract.
7. The auditing contract, the
partnership contract, auditing dossiers and auditing reports must be made in
both Vietnamese and English.
8. All payment and transfer
transactions related to providing auditing service across border must be
carried out in bank transfer way via a licensed credit institution in
compliance with Vietnamese regulations on foreign exchange control.
Article 13.
Responsibilities of foreign audit firms in providing of auditing service across
border
1. Arranging personnel with
appropriate professional qualifications to ensure quality of auditing service.
Complying with provisions on strictly prohibited acts, cases restricted
performance of auditing service applicable to practicing auditors and audit
firms and other relative provisions stated in Vietnamese Law on independent
audit.
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3. Paying taxes and conducting other
financial obligations related to providing auditing service across border in
accordance with the current law on tax of Vietnam.
4. Report to the Ministry of
Finance, every 6 months, on implementation situation of the contract of
providing auditing service across border arising in the report period in
Vietnam. The report form shall be provided by the Ministry of Finance.
5. Appoint a responsible person
on behalf of the reporting firm to explain to Vietnamese functional agencies of
auditing contracts, auditing dossiers, auditing reports and other issues
related to providing of auditing service across border in Vietnam.
6. Submit the annual financial
report to the Ministry of Finance which has been audited and attached audit
report of an independent auditing organization and a written comment of the
auditing practice management agency in the place where the head office of the
firm is located on the firm’s implementation situation of provisions of law on
auditing activities and other provisions of law in time limit of 120 days as
from the ending date of the fiscal year.
7. Perform rights and
obligations of the audit firm stipulated in Article 28 and Article 29 and
comply with other provisions related to provisions of Vietnamese law on
independent auditing.
Article 14.
Responsibilities of Vietnam audit firms who are partnership of foreign audit
firms in providing auditing service across border
1. Archiving all auditing
documents in the audit which the partnership has performed in order to provide
for functional agencies upon being requested.
2. Taking responsibility before
law for the audit result. To take responsibility for explanation of auditing
reports, auditing dossiers and other arising issues of the audit which having
done by a partnership with foreign audit firm to functional agencies.
3. Report to the Ministry of
Finance, every 6 months, on implementation situation of the partnership with
the foreign auditing firm in providing auditing service across border arising
in the report period. The report form shall be provided by the Ministry of
Finance.
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ITEM 4.
AUDITTED ENTITIES
Article 15.
Audited entities
1. Enterprises and organizations
whose annual financial statements, as prescribed by law, must be audited by the
audit firm, branches of the foreign audit firm in Vietnam, include:
a) Enterprises with foreign
owned capital;
b) Credit institutions which are
established and operating under the Law on credit institutions, including
branches of foreign banks in Vietnam;
c) Financial organizations,
insurance companies, reinsurance companies, insurance brokerage companies,
branches of foreign non life insurance companies.
d) Public companies, securities
issuing organizations and securities trading organizations.
2. Other enterprises and
organizations are subjects of compulsory auditing under relevant provisions of
law.
3. Enterprises and organizations
subject to audit by the audit firm and branches of foreign audit firms
including:
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b) Enterprises,
organizations implementing the national important projects, group-A projects
using state funds, except for the projects in the field of state secrets as
prescribed by law, must be audited for the settlement report of project
completion;
c) Enterprises and
organizations with 20% or more of the voting rights held by state groups, state
corporations in the end of the fiscal year must be audited for annual financial
statements;
d) Enterprises
with 20% or more of the voting rights held by securities listing, issuing and
trading organizations at the end of the fiscal year must be audited for annual
financial statements;
e) The audit firm, branches of
foreign audit firms in Vietnam must be audited for annual financial statements.
4. Enterprises and organizations
subject to the audit of annual financial statements as stipulated in Clause 1
and Clause 2 of this Article, if as prescribed by law, must make the
consolidated or comprehensive financial statements must implement audit for
consolidated or general financial statements.
5. The audit of financial
statements and settlement reports of project completion applicable
to enterprises and organizations as stipulated in point a and b Clause 2 of
this Article shall not substitute the audit by State Audit.
6. Other enterprises and
organizations which are voluntary to be audited.
ITEM 5. AUDIT
REPORTS
Article 16.
Audit reports
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2. Practicing auditors are not
allowed to sign audit reports for an audited entity for more than three (3)
consecutive years.
Article 17.
Explanations of exclusion contents in the audit report
1. The competent state
management agencies in each relevant field is entitled to request the audit
firms, branches of the foreign audit firms in Vietnam, the foreign audit firms
who provides auditing service across border and the audited entities to explain
directly or in writing for exclusion contents in the audit report.
2. The President, Management
Board, Members’ Council of audited entities are entitled to request the audit
firm, branches of the audit firm in Vietnam, foreign audit firms who provide
auditing service through border gate to explain directly or in writing
exclusion contents in the audit report.
3. As having request of subjects
stipulated in Clause 1 and Clause 2 of this Article, the audit firms, branches
of the foreign audit firms in Vietnam and the foreign audit firms who provide audit
service across border are responsible for explaining directly or in writing.
ITEM 6.
ARCHIVE, USE AND DESTRUCTION OF AUDIT DOSSIERS
Article 18.
Archiving of audit dossiers
1. The audit firms, branches of
the foreign audit firms in Vietnam must design and implement policies and
procedures to maintain confidentiality, safety, entirety, accessibility and
recoverability of audit dossiers in accordance with provisions on accounting
standards.
2. Audit dossiers may be
archived in form of papers or electronic data.
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Article 19.
Exploitation and use of audit dossiers
Exploitation and usage of audit
dossiers are only allowed in the following cases:
1. According to decision of the
competent person of the audit firm, branch of the foreign audit firm in Vietnam
on the base of ensure confidentiality obligations as stipulated in Article 43
of the Law on independent audit.
2. As requested by the People’s
Court, People’s Procuracy, investigation agencies, inspection agencies, the
State Audit, the Ministry of Finance and other agencies and organizations in
accordance with provisions of law.
3. As having request inspection
of audit quality; settlement of disputes, conflicts arising from audit
activities and other requests in accordance with provisions of law.
Article 20.
Destruction of audit dossiers
1. Audit dossiers which have
gone beyond the archiving time limit, and if there is no otherwise decision by
the competent state agencies shall be destroyed according to decision of the
legal representative of the audit firm or branch directors of the foreign audit
firm in Vietnam.
2. Each audit firm, branch of
the foreign audit firm have to destruct its own audit dossiers.
3. Audit dossiers archived in
the form of papers shall be destroyed by burning, cutting or shredding by
machine or other ways, however, must ensure that information and data contained
in destroyed audit dossiers can not be put in use again
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5. Procedure for destroying
audit documents:
a) The legal representative of
the audit firm and branch director of the foreign audit firm in Vietnam shall
decide on founding “the Council for Destruction of Expired Audit Dossiers”. The
Council includes: the head of the audit firm or branch director of the foreign
audit firm in Vietnam, representatives of the archive department and
representatives of specialized departments;
b) The Council for Destruction
of Expired Audit Dossiers shall carry out inventory, assessment and
classification for each type of audit dossiers, set up a List of destroyed
audit dossiers” and “Minute of destruction of expired audit dossiers”;
c) “The minute of destruction of
expired audit dossiers” must be set up right after destruction of audit
dossiers and must clearly define the following contents: types of destructed
audit dossiers, conclusion and signatures of members of the Destruction
Council.
Article 21.
Archiving, exploitation and use of electronic audit dossiers and the documents
and dossiers, documents of other services
1. Audit dossiers being archived
in electronic data are cassettes and discs …must be arranged by time order and
preserved with fully technical conditions to oppose the degeneration of electronic
documents and oppose situation of the illegal information access from outside.
2. In cases where the audit
dossiers are archived in electronic data in special equipments, information
reading equipments must be stored suitablelly to ensure exploitation well when
necessary.
3. Archiving, exploitation, use
and destruction of audit dossiers in electronic data shall implement in
accordance with provisions in Article 18, 19 and 20 of this Decree.
4. Elaboration, preservation, archiving,
destruction and exploitation, use of documents and dossiers on other services
as stipulated in Point b Clause 1 Article 40 of the Law on independent audit
shall be made similar to audit dossiers defined in Article 18, 19, 20 and
Clause 1, Clause 2 Article 21 of this Decree.
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ORGANIZATION OF
IMPLEMENTATION
Article 22.
Transitional provisions
In the time
limit of 02 (two) years, as from the effective date of the Law on independent
audit, the audit firm providing audit service prior to the effective date of
the Law on independent audit shall meet the conditions as prescribed in the Law
on independent audit and in this Decree to be granted the Certificate of
satisfaction of auditing business conditions.
Before 30
days as from the expiry date of the two-year transitional time limit, the audit
firm must submit its application dossier to the Ministry of Finance for
issuance of the Certificate of satisfaction of auditing business conditions as
prescribed by the Law on independent audit and guiding documents.
Article 23.
Effect of implementation
This Decree shall take effect as
from May 01, 2012.
Article 24.
Responsibility for implementation
Minister of
Finance is responsible for guiding the implementation of this Decree;
Ministers, heads of ministry-level agencies, heads of governmental agencies,
presidents of the provincial/municipal People’s Committee shall implement this
Decree./.
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