Thông tư 86/2009/TT-BTC

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

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;

2.2.4. The structure of capital contributed to establishing the insurance enterprise or insurance brokerage enterprise in accordance with 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 Decree No. 46/ 2007/ND-CP) and guiding documents;

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.

3.3. Apart from the provision of Point 3.2, the insurance enterprise shall prove that it fully satisfies the following conditions;

- 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.

4. To amend and supplement Point 3.1.3, Clause 3, Section II on procedures to be carried out before the insurance enterprise or insurance brokerage enterprise officially commences its operation, as follows:

"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;

- Having never been disciplined in the form of dismissal from post or sack due to violations of the internal process of insurance operations exploitation, survey, compensation, internal control, finance and investment management, and management of re-insurance programs in an insurance enterprise or the professional process of insurance brokerage operations, internal control or professional ethics in an insurance brokerage enterprise."

"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;

1.5.2. Possessing a university or postgraduate degree;

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:

a/ To remove the phrase "Except for dependent companies" at Points 1.7.1 and 1.7.2.

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:

"4. Actuaries for calculation of operational reserves and solvency of non-life insurance enterprises

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'

- The written registration of the actuary, signed by the chairman of the Board of Directors or the director general.

- 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."

13. To amend and supplement Clause 1, Section VII, as follows:

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

1. To amend Point 3.4.1.C, Clause 3, Section III on reserve calculation bases, as follows:

"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.

+ Insurance policies have been concluded and insurance enterprises have agreed to allow insurance buyers to owe insurance premiums under insurance policies.

*  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.

- For other revenues: Insurance enterprises shall account them as incomes immediately after economic activities arise and there is evidence of acceptance of payment by involved parties, regardless of whether they have collected them or not.

- 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;

2.1.5. Expenses for agency services including loss survey, consideration and payment of indemnities, request for compensations from third parties;

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:

"2.1.1. Expenses for insurance brokerage activities: expenses for insurance brokerage activities and purchase of professional liability insurance. Insurance brokerage enterprises may not pay collaborators or make payment in any other forms to perform one or several stages of insurance brokerage."

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.