STATE
BANK OF VIETNAM
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No.
41/2011/TT-NHNN
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Hanoi, 15 December 2011
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CIRCULAR
GUIDING
THE IDENTIFICATION AND UPDATE OF CUSTOMER INFORMATION ON THE RISK BASIS FOR
SERVING THE ANTI-MONEY LAUNDERING
- Pursuant to the Law on the
State Bank of Vietnam No. 46/2010/QH12 dated 16 June 2010;
- Pursuant to the Law on
Credit Institutions No. 47/2010/QH12 dated 16 June 2010;
- Pursuant to the Decree No.
96/2008/ND-CP dated 26 August 2008 of the Government providing for the
functions, duties, authorities and organizational structure of the State Bank
of Vietnam;
- Pursuant to the Decree No.
74/2005/ND-CP dated 7 June 2005 of the Government on anti-money laundering;
- In response to the Decision
No. 287/QD-TTg dated 24 February 2011 of the Prime Minister on the amendment,
supplement of the Decision No. 1451/QD-TTg dated 12 August 2010 on the
"issuance of the National Action Plan on anti-money laundering and
counter-terrorism finance",
The State Bank of Vietnam hereby provides guidance on the identification and update of customer information
on the risk basis for the purpose of anti-money laundering as follows:
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Article 1. Governing scope
This Circular provides for the
identification and update of customer information on the risk basis for the
purpose of anti-money laundering.
Article 2. Subjects of
application
This Circular shall be
applicable to:
1. Credit institutions, foreign
bank's branches that are established and operate in accordance with the Law on
Credit institutions.
2. Foreign currency exchange
agents, enterprises engaging in gold trading, payment and payment intermediary
service suppliers that are licensed by the State Bank.
Article 3. Interpretation
In this Circular, following
terms shall be construed as follows:
1. Correspondent bank activity
shall mean the supply of banking, payment and other services by a bank at a
certain country, territory (hereinafter called Correspondent bank) to another
bank in another country, territory (hereinafter referred to as Partner bank).
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3. Money or alternative value
remittances shall mean the remittance of money, values (cheques, bills of
exchange, payment card or valuable papers) from this place to another place,
which is supplied by an individual, an entity that has not been licensed or
managed by the competent state agency.
4. Politically exposed person
shall mean a person who is assigned to hold a senior position in the state
system of a foreign country, including the leader of a state, government,
senior official of the government, court, army; or a senior manager of a
state-owned company of a foreign country, senior official of a politic party;
and a member of family or those who have closely relations with that person.
5. Shell bank shall mean a bank
that has no visible head office and is not subject to the management,
supervision of any competent state authority of any country, territory.
6. Recommended business activity
shall mean the business activity of the reporting entity to its customers
through the recommendation of an intermediary party, which is a member of the
same group, corporation, financial institution or brokerage service suppliers.
7. Financial task force shall
mean the Inter-governmental organization, which functions in research, issuance
and supervision over the implementation of international standards on
anti-money laundering and counter-terrorism finance.
Section 2: SPECIFIC
PROVISIONS
Article 4. Bases for defining
risk level
1. Money laundering risk level
may be defined on following bases:
a. Type of customer: residents
or non-residents; corporate or individual customer; customer in the warning
list; customers involving in real estates, pawn transactions, casino, or
dealing in commodities of which the revenue is mainly in cash, trading via
internet;
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c. Geographical location where
the customer resides or locates his office: countries in the list of embargo as
mentioned in the Resolution of the United Nation Security Council; countries in
the list that announce in public not to comply or not fully comply with
recommendations on anti-money laundering and counter-terrorism finance as
promulgated periodically by the Financial Task Force (hereinafter shortly
referred to as the List of public announcement); regions where exist lots of
drug activities.
d. Other bases in line with
internal regulations of the reporting entity
2. The reporting entity may
define the money laundering risk level based on foundations as provided for in
Paragraph 1 hereinabove, providing that it shall pay more attention to
transactions and business relationships of the customers with organizations,
individuals from countries that are in the List of public announcement. Where
it is necessary, the reporting entity shall verify the basis and purpose of
such transactions. If having a doubt that the transactions are linked to money
laundering, the reporting entity shall report the doubtful transaction to the
Anti-money laundering office.
Article 5. Classification and
identification of customers by risk level
1. Depending on the scale and
scope of activity, transaction of customers, reporting entities shall check and
classify their customers by high, medium and low risk levels.
2. For customers with high risk
level, the reporting entities must enhance to apply customer identification
measures at a more closely level.
Article 6. Beneficiary owner
1. The reporting entity shall be
responsible for identifying, updating information and keeping documents,
materials about the beneficiary owner.
2. Information about the
beneficiary owner shall include personal customer identification information as
provided for in Point a Paragraph 2 Article 6 of the Circular No.22/2009/TT-NHNN
dated 17 November 2009 of the State Bank of Vietnam on guiding the
implementation of anti-money laundering measures and information about the
holding proportion in the entity or controlling power of the beneficiary owner
to the entity.
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1. The reporting entity shall be
responsible for identifying customers who are politically exposed persons.
2. In the event where a customer
is a politically exposed person, the reporting entity shall apply enhanced
measures as follows:
a. To obtain approval of the
General Director (Director) or authorized Deputy General Director (Deputy
Director) before establishing the relationship or immediately after the current
customer is identified as a politically exposed person;
b. To take measures for finding
out about the origin of the money and assets of the customer.
Article 8. Correspondent bank
activity
1. The reporting entity shall be
prohibited from entering into correspondent bank contract or transactions with
shell banks.
2. In correspondent bank
activity, the reporting entity as a correspondent bank shall:
a. Ensure to obtain the approval
of the General Director (Director) or authorized Deputy General Director
(Deputy Director) before establishing the correspondent bank relationship with
the partner bank;
b. To collect information about
activities of the partner bank and make sure that the partner bank is under the
management, supervision of the competent authorities;
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d. To take measures for making
sure that the correspondent bank relationship is not misused for money
laundering.
dd. In case where a customer of
the partner bank may make payment through the account maintained by the partner
bank at the reporting entity, the reporting entity shall make sure that the
partner bank has already verified customer identification information, has
continuously monitored the customer and is able to supply customer
identification information upon request.
Article 9. Transactions via
electronic media and indirect transactions
1. The reporting entity shall be
responsible for measuring the money laundering risk level in applying
electronic media in banking and payment transactions with the non face-to-face
customer, such as internet banking, mobile banking, banking card.
2. The reporting entity shall be
responsible for ensuring that the information update in respect of the
customers as stipulated in Paragraph 1 of this Article is not less efficient
than the face-to-face customers through such procedures as requiring the
certification, supplement of documents, independent contact with the customers.
Article 10. Recommended
business activity
1. In carrying out recommended
business activities, the reporting entity may identify its customers through an
intermediary party, providing that following requirements must be ensured:
a. The intermediary party shall
collect, archive and timely and fully supply customer identification
information to the reporting entity upon request;
b. The intermediary party has in
place the measures for complying with requirements on identification and update
of customer information in line with recommendations of the Financial Task Force
and is subject to the management, supervision of a competent state authority.
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Article 11. Money or
alternative value remittance
1. The reporting entity shall be
required to have measures in place for identifying customers who are suppliers
of money or alternative value remittance services.
2. Upon finding out that the
customer is a supplier of money or alternative value remittance services, the
reporting entity shall be responsible for taking enhanced measures for customer
identification and reporting the Anti-money launder office for settlement in
accordance with provisions of applicable laws.
Section 3: IMPLEMENTATION
PROVISIONS
Article 12. Implementation
effectiveness
This Circular shall be effective
from 01 February 2012.
Article 13. Dealing with
violation
1. Any person committing
violation in relation to money laundering shall be treated in accordance with
the Criminal Code of the Socialist Republic of Vietnam.
2. Any individual, organization
breaking provisions of this Circular, but not serious enough for criminal
prosecution, shall be punished with administrative measures in accordance with
provisions of applicable laws and of the Decree No. 74/2005/ND-CP dated 7 June
2005 of the Government on anti-money laundering.
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Director of the Administrative
Department, Chief of the Banking Inspection and Supervision Department; Head of
units of the State Bank; General Manager of State Bank's branches in provinces,
cities under the central Government management, Chairman of the Board of
Directors, Chairman of the Board of Members, General Director (Director) of
reporting entities shall be responsible for the implementation of this
Circular.
FOR
THE GOVERNOR OF THE STATE BANK
DEPUTY GOVERNOR
Tran Minh Tuan