THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No: 118/2003/ND-CP
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Hanoi, October 13, 2003
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DECREE
PROVIDING FOR THE SANCTIONING OF ADMINISTRATIVE
VIOLATIONS IN THE FIELD OF INSURANCE BUSINESS
THE GOVERNMENT
Pursuant to the
December 25, 2001 Law on Organization of the Government;
Pursuant to the December 9, 2000 Law on Insurance Business;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative
Violations;
At the proposal of the Minister of Finance,
DECREES:
Chapter
I
GENERAL
PROVISIONS
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1. The sanctioning of
administrative violations in the field of insurance business shall apply to
individuals, agencies and organizations (hereinafter referred collectively to
as individuals and organizations) that intentionally or unintentionally violate
the legislation on insurance business activities, which are not crimes and,
according to law provisions, must be administratively sanctioned.
2. This Decree shall
apply to:
a) Individuals and
organizations that commit administrative violations in the field of insurance
business prescribed in Chapter II of this Decree.
b) Foreign individuals
and organizations operating in the Vietnamese territory and committing acts of
administrative violations in the field of insurance business prescribed in this
Decree, except otherwise provided for by international treaties which Vietnam
has signed or acceded to.
Article
2.- Sanctioning principles
1. All administrative
violations in the field of insurance business must be detected in time and
immediately stopped. The sanctioning of administrative violations must be
carried out promptly, justly and resolutely; all consequences caused by
administrative violations must be overcome strictly according to law provisions.
2. The sanctioning of
administrative violations in the field of insurance business shall be effected
by competent persons defined in this Decree.
3. An act of
administrative violation in the field of insurance business shall be sanctioned
only once. Organizations or individuals that commit many acts of administrative
violations shall be sanctioned for each act of violation.
4. The sanctioning of
administrative violations in the field of insurance business must be based on
the nature and seriousness of the violations, the personal background of the
violators and extenuating as well as aggravating circumstances prescribed in
Articles 8 and 9 of the Ordinance on Handling of Administrative Violations in
order to decide the appropriate handling forms and measures.
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1. The statute of
limitations for sanctioning an administrative violation in the field of
insurance business shall be two years as from the date the individual or
organization commits act of administrative violation the field of insurance
business. Past the above-mentioned time limit, sanction shall not be imposed
but consequence-overcoming measures prescribed at Points a and e, Clause 3,
Article 12 of the Ordinance on Handling of Administrative Violations shall
still apply.
2. Individuals who
have been prosecuted or given the decisions to bring their cases to court for trial
according to criminal procedures but latter given decisions to suspend the
investigation or the cases while their violation acts show signs of
administrative violations shall be administratively sanctioned; the statute of
limitations for sanctioning the administrative violations shall be 3 months as
from the date the persons with sanctioning competence receive the suspension
decisions and dossiers of the violation cases.
3. Within the time
limits prescribed in Clauses 1 and 2 of this Article, if the violating
individuals continue to commit administrative violations or deliberately shirk
or obstruct the sanctioning, the statute of limitations for sanctioning
prescribed in Clauses 1 and 2 of this Article shall not apply; the statute of
limitations for sanctioning administrative violations shall be recounted from
the time of committing new administrative violations or the time of stopping
acts of shirking or obstructing the sanctioning.
Article
4.- Time limits for being considered as
having not yet been sanctioned for administrative violations.
1. Individuals and
organizations that are sanctioned for administrative violations and do not
repeat their violations within one year counting from the date of completely
serving the sanctioning decisions or the date when the execution of the
sanctioning decisions expires shall be considered as having not yet been
sanctioned for administrative violations.
2. If past 2 years as
from the date of completely serving the handling decisions, the individuals
subject to the application of other administratively handling measures shall be
considered as having not yet been subject to such measures.
Chapter
II
VIOLATION
ACTS, SANCTIONING FORMS AND LEVELS
Section
1. ADMINISTRATIVE VIOLATIONS ON MANAGEMENT AND USE OF LICENSES
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1. Caution or a fine
of between VND 1,000,000 and 5,000,000 for one of the following acts:
a) Failing to publicize
or untruthfully publicizing the operation contents under the relevant law
provisions;
b) Failing to commence
operation after 12 months as from the date of being licensed;
c) Publicizing late as
compared to the prescribed deadline the approved change contents as provided
for in Article 69 of the Insurance Business Law.
2. A fine of between
VND 1,000,000 and 3,000,000 for acts of leasing, lending establishment and
operation licenses, representative office- establishing licenses.
3. A fine of between
VND 2,000,000 and 5,000,000 for one of the following acts:
a) Renting, borrowing,
transferring establishment and operation licenses or representative office-
establishing licenses;
b) Erasing, modifying
establishment and operation licenses or representative office- establishing
licenses;
c) Doing business or
operating in contravention of the contents inscribed in the establishment and
operation licenses or representative office-establishing licenses;
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4. A fine of between
VND 5,000,000 and 10,000,000 for one of the following acts:
a) Doing insurance
business or insurance brokerage business without licenses;
b) Receiving insurance
brokerage services provided by foreign insurance brokerage enterprises which
are not licensed to operate in Vietnam.
5. Additional
sanctioning form
Deprivation of the
right to use establishment and operation licenses or representative
office-establishing licenses for administrative violation acts prescribed at
Point b, Clause 1; Clause 2; Points b and c, Clause 3 of this Article.
6. Application of
redressing measures
Being forced to publicize
the operation contents or make correction of untruthfully announced operation
contents, for administrative violation acts prescribed at Point a, Clause 1 of
this Article.
Article
6.- Violation of regulations on working
offices, establishing or dissolving insurance enterprises, insurance brokerage
enterprises
1. A fine of between
VND 1,000,000 and 5,000,000 for acts of opening, terminating the operation of,
or relocating, the head-offices, branches and/or representative offices of
insurance enterprises or insurance brokerage enterprises without the Finance
Ministry's written approval.
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3. Additional
sanctioning form
Deprivation of the
right to use establishment and operation licenses for administration violation
acts prescribed in Clauses 1 and 2 of this Article.
4. Application of
redressing measures
Being compelled to
restore the initial state which was altered due to administrative violations
prescribed in Clauses 1 and 2 of this Article.
Article
7.- Violations of regulations on administration,
management and control
A fine of between VND
1,000,000 and 3,000,000 shall be imposed for acts of changing the Managing
Board chairmen, general directors (directors) without the Finance Ministry's
written approval.
Article
8.- Violations on changing the names,
capital level, contents and scope of operation
1. A fine of between
VND 3,000,000 and 5,000,000 for changing the names of insurance enterprises or
insurance brokerage enterprises without the Finance Ministry's written approval.
2. A fine of between
VND 10,000,000 and 15,000,000 for acts of changing one of the following
contents without the Finance Ministry's written approval:
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b) The operation
contents, scope and time;
c) Transfer of shares,
contributed capital portions, which account for 10% of the charter capital or
more.
3. Application of
redressing measures:
a) Being compelled to
restore the initial state which was altered due to administrative violation
acts prescribed in Clauses 1 and 2 of this Article;
b) Suspending
operation for a definite term; narrowing the operation contents, scope and
geographical areas for administrative violation acts prescribed in Clauses 1
and 2 of this Article.
Article
9.- Violations of regulations on transfer of
insurance contracts
1. A fine of between
VND 10,000,000 and 15,000,000 for one of the following acts:
a) Carrying out the
transfer of insurance contracts when failing to fully satisfy the transfer
conditions as provided for by law;
b) Carrying out the transfer
of insurance contracts when not yet so approved in writing by the Finance
Ministry;
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2. Application of
redressing measures
a) Being compelled to
restore the initial state which was altered due to administrative violation
acts prescribed in Clause 1 of this Article;
b) Suspending
operation for a definite term, narrowing the operation contents, scope and
geographical areas, for the administrative-violation acts prescribed in Clause
1 of this Article.
Section
2. ADMINISTRATIVE VIOLATIONS ON INSURANCE UNDERWRITING
Article
10.- Unlawful competition
1. A fine of between
VND 10,000,000 and 20,000,000 shall be imposed on individuals and organizations
committing one of the following acts:
a) Giving information,
advertisement with untruthful contents and scope of operation and/or insurance
conditions, thus harming the legitimate rights and interests of the insurance
buyers or of other insurance enterprises;
b) Competing for
customers by ways of obstructing, dragging, buying off or intimidating
personnel or customers of other insurance enterprises, insurance agents and/or
insurance brokerage enterprises;
c) Making unlawful
sale promotion;
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2. Application of
redressing measures:
a) Being compelled to
make corrections in forms and according to procedures prescribed by law, for
administrative-violation acts defined at Point a, Clause 1 of this Article;
b) Suspending
operation for a definite period of time; narrowing the operation contents,
scope and geographical areas, for administrative-violation acts prescribed in
Clause 1 of this Article.
Article
11.- Illegally forcing the entry into
insurance contracts
1. Caution or a fine
of between VND 2,000,000 and 5,000,000 for acts of forcing the purchase of
insurance, the use of insurance brokerage and/or re-insurance brokerage
services in any forms.
2. Application of
redressing measures:
a) Being compelled to
restore the initial state which was altered due to administrative-violation
acts prescribed in Clause 1 of this Article;
b) Suspending
operation for a definite period of time; narrowing the operation contents,
scope and geographical areas, for administrative-violation acts prescribed in
Clause 1 of this Article.
Article
12.- Violation of regulations on
compulsory insurance
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a) Refusing to sell
compulsory insurance to individuals and organizations that have demand to buy
compulsory insurance by insurance enterprises which are entitled to do business
in compulsory insurance;
b) Failing to perform
the obligation of buying professional responsibility insurance for insurance
brokerage activities at insurance enterprises operating in Vietnam by insurance
brokerage enterprises.
2. Application of
redressing measures
Suspending operation
for a definite period of time; narrowing the operation contents, scope and
geographical areas, for administrative-violation acts prescribed in Clause 1 of
this Article.
Article
13.- Violation of regulations on
compulsory re-insurance
1. Caution or a fine
of between VND 2,000,000 and 5,000,000 on individuals and organizations
committing one of the following acts:
a) Failing to perform
the compulsory re-insurance obligation according to law provisions by insurance
enterprises;
b) Refusing to accept
total or partial compulsory re-insurance as provided for by law.
2. Application of
redressing measures:
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Article
14.- Illegally participating in insurance
overseas
A fine of between VND
5,000,000 and 10,000,000 on individuals and organizations committing one of the
following acts:
1. Buying insurance of
foreign insurance enterprises which have no offices in Vietnam or of foreign
insurance enterprises conducting insurance business in Vietnam in contravention
of law provisions;
2. Forcing individuals
and/or organizations to participate in insurance overseas in contravention of
law provisions.
Article
15.- Acts of seeking personal profits in
insurance participation, insurance indemnification, insurance sum payment,
insurance-complaint settlement
1. Caution or a fine
of between VND 1,000,000 and 5,000,000 on individuals or organizations
committing acts of seeking personal profits to receive indemnities, insurance
sum.
2. A fine of between
VND 2,000,000 and 10,000,000 on officials or personnel of insurance
enterprises, insurance agents or insurance brokerage enterprises, who commit
one of the following acts:
a) Requesting
insurance interest beneficiaries to pay remuneration or other material
interests in contravention of law in the course of settling compensation,
payment of insurance money;
b) Conniving with
insurance interest beneficiaries in settling the insurance indemnification
and/or payment of insurance sums in contravention of law.
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Being compelled to
restore the initial state, which was altered due to administrative violation
acts prescribed in Clauses 1 and 2 of this Article.
Article
16.- Violations on secrets of insurance
business activities
Caution or a fine of
between VND 2,000,000 and 5,000,000 on insurance enterprises, officials, personnel
or insurance agents of insurance enterprises, that commit acts of disclosing
secrets, information related to the entry into, performance and/or termination
of, insurance contracts.
Article
17.- Violation of regulations on use of
terms, rules, tables of insurance charge, commission
1. A fine of between
VND 5,000,000 and 10,000,000 for one of the following acts:
a) Using rules, terms
not yet been registered with the Finance Ministry or failing to abide by the
rules, terms and/or insurance charge tables approved and promulgated by the
Finance Ministry, by insurance enterprises;
b) Paying insurance
commissions higher than the rates or paying insurance not to the right
subjects, as prescribed by law;
c) Providing
consultancy or recommendation to the insurance buyers by insurance brokerage
enterprises, on the rules, terms and/ or insurance charge table, which have not
yet been promulgated or approved by the Finance Ministry or not yet been
registered with the Finance Ministry.
2. Application of redressing
measures
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b) Suspending
operation for a definite period of time; narrowing the operation contents, scope
and geographical areas, for administrative violation acts prescribed in Clause
1 of this Article.
Article
18.- Violation of regulations on
recruitment, training, employment and activities of insurance agents
1. Caution or a fine
of between VND 2,000,000 and 5,000,000 for one of the following acts:
a) Failing to abide by
the regulations on training of insurance agents, recruitment and employment of
insurance agents that are unqualified for insurance agency activities, have no
agent certificates and/or do not sign insurance agency contracts;
b) Failing to satisfy
all conditions prescribed in Article 86 of the Insurance Business Law by
individuals engaged in agency activities;
c) Providing
untruthful information by insurance agents in an attempt to deceive the
insurance buyers.
2. Application of
redressing measures
Being compelled to
restore the initial state, which was altered due to administrative violation
acts prescribed in Clause 1 of this Article.
Section
3. ADMINISTRATIVE VIOLATIONS OF FINANCIAL, BOOK-KEEPING ACCOUNTING AND
FINANCIAL STATEMENT REGIMES
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1. Caution for one of
the following acts:
a) Failing to ensure
the capital contribution schedule as provided for in the charter;
b) Failing to fully
pay or not paying security deposit strictly according to regulations.
2. A fine of between
VND 10,000,000 and 20,000,000 for one of the following acts:
a) Failing to maintain
the minimum contributed charter capital level equal to the legal capital level;
b) Using the security
deposit money in contravention of law provisions.
3. Application of
redressing measures:
a) Being compelled to
supplement the minimum charter capital equal to the legal capital level, for
administrative violation acts prescribed at Point a, Clause 2 of this Article;
b) Being compelled to
supplement the security deposits or to pay the security deposits as provided
for by law;
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d) Suspending
operation for a definite period of time; narrowing the operation contents,
scope and geographical areas, for administrative-violation acts prescribed in Clauses
1 and 2 of this Article.
Article
20.- Violation of regulations on
compulsory reserves, deduction for setting up, management and use of operation
reserves
1. Caution for acts of
failing to register methods of deduction for setting up of operation reserves
with the Finance Ministry by insurance enterprises.
2. A fine of between
VND 20,000,000 and 30,000,000 for one of the following acts:
a) Failing to make
deductions for setting up of, or making deduction not enough for, the operation
reserves as prescribed;
b) Failing to abide by
the methods of making deduction for setting up of operation reserves, which
have been registered with the Finance Ministry;
c) Failing to make
deductions for setting up of, or making deduction not enough for, compulsory
reserves as prescribed;
d) Using the
compulsory reserve fund, operation reserves not according to regulations.
3. Application of
redressing measures:
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b) Recovering the
operation reserve money and/or compulsory reserves, which have been
compulsorily used not in accordance with law provisions, for administrative
violation acts prescribed at Point d, Clause 2 of this Article;
c) Suspending
operation for a definite period of time; narrowing operation contents, scope
and geographical areas, for administrative-violation acts prescribed in Clauses
1 and 2 of this Article.
Article
21.- Violation of regulations on capital
investment
1. A fine of between
VND 20,000,000 and 30,000,000 for one of the following acts:
a) Investment outsides
the domains permitted for investment under the provisions of law;
b) Investment beyond
the permitted ratio in each investment list;
c) Using operation
reserve capital sources for investment overseas;
d) Using investment
capital sources in contravention of regulations.
2. Application of
redressing measures:
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b) Recovering the
amounts of investment made in contravention of law provisions for
administrative-violation acts prescribed in Clause 1 of this Article.
c) Suspending
operation for a definite period of time; narrowing the operation contents,
scope and geographical areas, for administrative violation acts prescribed in
Clause 1 of this Article.
Article
22.- Violation of regulation on financial
safety in operation of insurance enterprises
1. A fine of between
VND 20,000,000 and 30,000,000 for one of the following acts:
a) Failing to report
in time to the Finance Ministry when the enterprises are in danger of
insolvency;
b) Failing to beat the
deadline for elaboration and execution of plans on restoration of solvency,
consolidation of the organization and operation of the enterprises;
c) Failing to
implement the Finance Ministry's request for restoration of solvency.
2. A fine of between
VND 50,000,000 and 70,000,000 on insurance enterprises which fail to maintain
the solvency at any time in the course of their operation.
3. Application of
redressing measures:
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b) Suspending
operation for a definite period of time; narrowing the operation contents,
scope and geographical areas, for administrative-violation acts prescribed in
Clauses 1 and 2 of this Article.
Article
23.- Violations on the management of
information, reports on insurance business activities
Acts of violation and
the handling of administrative violations of the regimes of accounting,
reporting, supply of information related to insurance business activities shall
comply with the regulations on sanctioning administrative violations in the
field of accounting.
Article
24.- Violation of regulations on
inspection, examination and supervision by competent State bodies
1. Caution for acts of
delaying, shirking or failing the supply of materials and data at the requests
of inspecting agencies, inspecting teams, competent State bodies in the course
of inspection, examination and supervision; or employing tricks to cope with
inspectors, officials of competent State bodies, who are performing their
official duties.
2. A fine of between
VND 2,000,000 and 5,000,000 for one of the following acts:
a) Failing to abide by
the handling decisions of inspecting agencies, competent State bodies;
b) Intervening in the
handling by inspecting agencies or competent State bodies;
c) Hiding, modifying
vouchers and/or books or changing material evidences while being inspected;
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3. Application of
redressing measures:
Suspending operation
for a definite period of time; narrowing the operation contents, scope and
geographical areas, administrative violation acts prescribed in Clauses 1 and 2
of this Article.
Chapter
III
COMPETENCE
TO SANCTION ADMINISTRATIVE VIOLATIONS IN THE FIELD OF INSURANCE BUSINESS
Article
25.- Competence to sanction administrative
violations in the field of insurance business
1. The
provincial-level People's Committee presidents, the district-level People's
Committee presidents shall, within the scope of their respective jurisdiction
prescribed in Articles 29 and 30 of the Ordinance on Handling of Administrative
Violations, be competent to sanction administrative violations in the field of
insurance business.
2. Inspectors of the
Finance Ministry, inspectors of the provincial/municipal Finance Services, who
are performing their official duties, shall have the power:
a) To impose caution;
b) To apply redressing
measures prescribed in this Decree, except for the measures of suspending
operation for a definite period of time and narrowing operation contents, scope
and geographical areas for administrative-violation acts prescribed in this
Decree.
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a) To impose caution;
b) To impose a fine of
up to VND 20,000,000;
c) To apply redressing
measures prescribed in this Decree, except for measures of suspending operation
for a definite period of time; and narrowing the operation contents, scope and
geographical areas for administrative violation acts prescribed in this Decree.
4. The Finance
Ministry's chief inspector shall have the power:
a) To impose caution;
b) To impose a fine of
up to the highest level prescribed in this Decree;
c) To apply additional
sanctioning forms and redressing measures prescribed in this Decree.
Chapter
IV
SANCTIONING
PROCEDURES, EXECUTING SANCTIONING DECISIONS AND COMPLAINTS
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The procedures for
sanctioning administrative violations in the field of insurance business shall
comply with the provisions in Chapter VI of the Ordinance on Handling of
Administrative Violations of July 2, 2002.
Article
27.- Coercive execution of decisions on
sanctioning administrative violations in the field of insurance business
The coercive execution
of decisions on sanctioning administrative violations in the field of insurance
business shall comply with the provisions in Article 66 of the Ordinance on
Handling of Administrative Violations of July 2, 2002.
Article
28.- Administratively sanctioning the acts
of opposing persons performing official duties in the field of insurance
business
The administrative
sanctioning of persons who commit acts of opposing people who are performing their
official duties in the field of insurance business shall comply with the law
provisions on sanctioning administrative violations in the field of security
and order.
Article
29.- Commendation and discipline
1. Individuals and
organizations recording achievements in preventing and combating acts of
administrative violations in the field of insurance business shall be
considered for commendation/reward according to the general regulations of the
State.
2. Persons competent
to handle administrative violations in the field of insurance business, who
commit acts of covering up administrative violations in the field of insurance
business or failing to comply with the regulations on sanctioning
administrative violations in the field of insurance business prescribed in this
Decree, shall, depending on the nature and seriousness of their violations, be
disciplined or examined for penal liability, and if causing damage, have to pay
compensations therefor according to law provisions.
Article
30.- The statute of limitations for
execution of sanctioning decisions
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Article
31.- Complaints and denunciations
The complaints and
denunciations against decisions on sanctioning administrative violations in the
field of insurance business and the settlement thereof shall comply with the
law provisions on complaints and denunciations.
Chapter
V
IMPLEMENTATION
PROVISIONS
Article
32.- Implementation organization
The Minister of
Finance shall have to guide, examine and supervise the implementation of this
Decree.
Article
33.- Implementation provisions
1. This Decree takes
implementation effect 15 days after its publication in the Official Gazette.
2. The ministers, the
heads of the ministerial-level agencies, the heads of the Government-attached
agencies and the presidents of the People's Committees of the provinces or
centrally-run cities shall have to implement this Decree.
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai