Thông tư 38/2019/TT-NHNN

CIRCULAR

PROVISION OF PAYMENT SERVICES WITHOUT CHECKING ACCOUNTS BY PUBLIC POSTAL SERVICE PROVIDERS

Pursuant to the Law on the State Bank of Vietnam dated June 16, 2010;

Pursuant to the Law on Credit Institutions dated June 16, 2010 and the Law on amendments to the Law on Credit Institutions dated November 20, 2017;

Pursuant to the Law on Postal Services dated June 17, 2010;

Pursuant to the Government’s Decree No. 101/2012/ND-CP dated November 22, 2012 on Non-cash Payment; the Government's Decree No. 80/2016/ND-CP dated July 01, 2016 providing Amendments to the Government’s Decree No. 101/2012/ND-CP dated November 22, 2012 on Non-cash Payment;

Pursuant to the Government’s Decree 16/2017/ND-CP dated February 17, 2017 defining the Functions, Tasks, Powers and Organizational Structure of the State Bank of Vietnam;

At the request of the Director of the Payment Department;

The Governor of the State Bank of Vietnam promulgates a Circular prescribing the provision of payment services without checking accounts by public postal service providers.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides regulations on provision of non-cash payment services by public postal service providers, including money transfer, collection and payment services, which are rendered without checking accounts of clients.

Article 2. Regulated entities

1. Enterprises that provide public postal services (hereinafter referred to as “service providers”).

2. Organizations and individuals that use non-cash payment services rendered by public postal service providers without using their checking accounts (hereinafter referred to as “clients”).

Article 3. Required documents

1. Service providers shall stipulate the format, forms, printing and issuance of documents used for making payments, which must correspond to payment process of each service type and comply with relevant laws.

2. Payment documents must be prepared, signed, verified, transferred, managed, used and retained in accordance with law regulations on accounting documents.

3. Information and data included in electronic documents must be properly verified so as to ensure their legitimacy, validity and integrity. Additionally, such documents must be protected from unauthorized access and copying.

Chapter II

PROVISION OF PAYMENT SERVICES WITHOUT CHECKING ACCOUNTS

Article 4. Money transfer services

1. Service providers shall render money transfer services in a quick, accurate and safe manner in accordance with laws; formulate and issue their internal procedures, which must include the following contents:

a) Regulations on steps, including preparation, verification and retention of money transfer documents; processing of money transfer orders; errors and handling of errors, trace requests and complaints; bookkeeping as prescribed in current regulations on accounting, and monitoring of accounting records;

b) Specific regulations on limits on sending, receiving amounts at points of services, which must be correspond to their material facilities, technical infrastructure and operating apparatus so as to ensure safety and adherence to laws while rendering services;

c) Regulations on responsibility of each department/person in charge of managing, operating and performing money transfer procedures, including: their compliance with procedures in payment transactions, regulations on information security and confidentiality, responsibility for cooperation in trace request and complaint handling, and responsibility to make compensation for any damage caused to clients;

d) Other relevant provisions.

2. Processing of money transfer orders

a) When receiving a money transfer order, the receiver, who is an employee of the service provider, shall check and verify information in the received money transfer order. After verification, if payment documents provided by the client are lawful and valid, and the cash amount deposited by the client matches with the amount specified in his/her money transfer order, the service provider’s employee shall sign received documents and complete procedures for sending money. Within a working day from the receipt of lawful and valid payment documents, the service provider must process the client's money transfer order and send money according to the received order;

b) When receiving a money transfer order, the beneficiary’s service provider shall check the legitimacy and validity of received documents, and credit the received amounts on an appropriate account, and request the beneficiary to receive cash at the service provider’s office or deliver money to the address given by the sender as agreed;

c) If the beneficiary fails to present and receive cash as notified by the beneficiary's service provider or it is unable to contact the beneficiary, within a maximum period of 30 days from the receipt of the money transfer order, procedures shall be carried for returning money to the sender.

3. Errors and handling of errors, trace requests and complaints

a) Upon detection of an error or figures-related difference during money transfer process (hereinafter referred to as "errors"), related parties shall take appropriate measures for correcting error and ensuring accurate figures so as to avoid negatively influencing the money transfer or causing damage to clients. Errors arising from money transfer must by handled according to the following rules:

(i) Regulations on and methods of error handling in accounting and money transfer operations must be strictly complied. To be specific: each error must be handled by the operations unit at which it occurs; any unauthorized correction of figures or error handling is prohibited;

(ii) Depending on the nature and severity of the violation, the individual or entity that causes error or contravenes regulations on and methods of error handling shall be properly handled and make compensation for any damage caused to related parties as regulated by laws;

b) Each service provider must stipulate the time limit for making trace requests and complaints by clients which must be at least 60 days from the commencement of the relevant transaction;

c) The service provider shall respond to trace requests and complaints made by clients as follows:

(i) There are at least two methods adopted for receiving trace requests and complaints, including the receipt of trace requests and complaints via telephone exchange (with recording) and via transaction offices of the service provider; basic information provided by the client must be verified;

(ii) Trace request/ complaint forms must be available for clients. If a trace request or complaint is made via telephone exchange, the service provider shall request the client to submit a written trace request/complaint form within a prescribed time limit, which shall be then used as the basis for handling such trace request/ complaint. If a client authorizes another person to make trace request/complaint, such authorization should be made in accordance with the law on authorization;

(iii) The service provider shall respond to or handle enquiries and complaints of its clients within the agreed-upon period which shall not be longer than 30 days from the receipt of the complaint from the client as prescribed in Point c(i) of this Clause;

d) Trace request/complaint handling results:

(i) Within a maximum period of 05 working days from the notification of handling results of a trace request/complaint to the client, the service provider shall return money to the client and make compensation for damage incurred by the client (the compensation amount shall not exceed the sending amounts) if such damage is caused by its mistake and/or is not classified as a force majeure event as agreed upon with the client;

If an error is caused by the client (the money sender), the service provider shall cooperate with the sender to process the money transfer order if the money is not yet sent to the beneficiary and return money to the sender if requested;

(ii) If reasons or faults cannot be found or determined within the time limit for a trace request/complaint mentioned in Point c of this Clause, within 15 following working days, the service provider must reach an agreement with the client on measures for handing the trace request/complaint. In case of failure to reach an agreement, the dispute shall be settled in accordance with law regulations.

Article 5. Collection and payment services

1. Service providers shall formulate and issue their internal procedures for provision of collection and payment services, in which regulations on steps, contents of verification, and responsibility of each department/individual must be specified so as to ensure that services are rendered in a quick, accurate and safe manner as prescribed by law.

2. Contract/agreement on collection and payment services

 In order to use collection or payment service, the requesting party or the payer must provide the service provider with necessary documents related to the amounts to be collected or paid, which shall be used as the basis for the service provider to collect money or make payment. The service provider shall collect money or make payment according to the contract/agreement signed with the requesting party or the payer and relevant laws.

Depending on each type of collection or payment services, the service provider shall enter into a contract/agreement with its client, which must include the following contents:

a) Number of the contract/agreement;

b) Date of the contract/agreement;

c) Names and addresses of the parties;

d) Agreements on time limits for completing transactions/statements;

dd) Scope of services;

e) Eligible clients;

g) Transaction location;

h) Safety and confidentiality measures;

i) Rights and obligations of the parties;

k) Responsibility for cooperation in handling trace requests, complaints and disputes that arise during the provision of services, including the parties' responsibility to receive information from clients, handling time limits, responsibility and methods for making compensation for losses;

l) Regulations on service fees;

m) Other contents as agreed upon between the parties in conformity with this Circular and relevant laws.

Article 6. Rights and responsibility of clients

1. Clients are entitled to request for information and receive notifications, instructions and warnings from service providers for identifying and preventing risks during their use of payment services without their checking accounts.

2. They are entitled to make complaints and request service providers to make compensation for damage if the service provider makes payment transactions later than the agreed schedule, fails to make payments, transfers money to wrong persons, uses beneficiaries’ information different from that provided by clients, insufficiently transfers money compared to the amounts deposited by clients, improperly collects service fees or collects service fees higher than the fee rates announced by the service provider or commits other violations as agreed upon with clients.

3. Clients shall take legal responsibility for accuracy and truthfulness of information and payment documents they provided; keep information related to their transactions confidential so as to ensure security and confidentiality of payment transactions; inform the service provider immediately when detecting any mistakes or errors in their payment transactions or suspecting that transaction-related information is misused.

4. They are prohibited from use payment services for the purposes of money laundering, terrorism financing or fraudulence or committing other violations.

5. They shall perform other rights and responsibility as prescribed in this Circular and relevant laws.

Article 7. Rights and responsibility of service providers

1. Each service provider is entitled to refuse or terminate its payment services rendered to the client who fails to satisfy requirements, commits breach of contract/agreement signed between the parties, or commits violations against regulations on anti-money laundering and combating the financing of terrorism.

2. It must build material facilities and information technology systems at its points of service to ensure its thorough, confidential and safe provision of payment services.

3. It must adopt measures for ensuring its solvency at all points of service, and maintain the sum of the balance on its checking account opened at a licensed bank and the cash amount in hand higher than the amounts payable to clients at the time of conducting payment transactions.

4. It must promulgate risk management regulations, including identification and classification of risks associated with each type of provided services, confidentiality, integrity and accuracy of information related to transactions, measures for assessment, control and prevention of risks, and compliance with law regulations.

5. It must also issue process and procedures for handling trace requests, complaints and disputes; mechanism for damage compensation in case of risks or incidents occurring during the provision of services.

6. It must promulgate regulations on delivery, maintenance and provision of safes at their points of services, collect and transport cash for depositing to its checking account opened at a licensed bank at the end of day, and adopt measures for fire prevention and firefighting as regulated; ensure security and safety of transported cash as well as determine cash in hand at the end of day at each point of services in conformity with its management and liquidity for clients.

7. The following must be openly posted at all points of service and published on the website of the service provider: procedures for providing each type of services and to each group of clients; procedures for handling trace requests, complaints and disputes; mechanism for damage compensation; service fees (for charged services).

8. The service provider must issue regulations on adherence to law regulations on anti-money laundering and counter the financing of terrorism.

9. It must provide information related to payment transactions, personal identification of clients and other information as requested by clients, regulatory authorities or as regulated by law.

10. The service provider shall perform other rights and responsibility as prescribed in this Circular and relevant laws.

Article 8. Reporting

1. Service providers shall submit quarterly reports and annual reports, which are made according to the Appendix enclosed herewith, to the State Bank of Vietnam (via Payment Department) on their provision of services by the 05^th of the following quarter and by January 15 of the following year respectively.

2. Service providers shall submit reports immediately to the State Bank of Vietnam in the following cases:

a) A report is submitted at the request of the State Bank of Vietnam to serve state management tasks;

b) There is any event or problem that may interrupt the provision of payment services and negatively impact the operation of the service provider or other relevant entities.

Chapter III

IMPLEMENTATION PROVISIONS

Article 9. Entry into force

This Circular comes into force from February 19, 2020.

Article 10. Implementation

1. The Payment Department shall be responsible for monitoring, instructing, inspecting and cooperating with relevant units to respond to any difficulties that arise during the implementation of this Circular.

2. The Banking Supervision Agency and SBV’s branches in provinces and central-affiliated cities shall inspect the provision of payment services without clients’ checking accounts by service providers in accordance with relevant laws, submit reports to the Governor of the State Bank of Vietnam on any violations and promptly take actions against violations within their competence, and send notifications thereof to the Payment Department for monitoring.

3. The Information Technology Department shall cooperate with the Payment Department in inspecting service providers’ compliance with regulations on information security and confidentiality and risk management in electronic transactions.

4. Within 03 months after this Circular comes into force, service providers shall review and ensure that their internal procedures comply with this Circular, and send their internal procedures (including amendments thereof) to the State Bank of Vietnam (via the Payment Department).

5. Chief of the Ministry’s Office, Head of the Payment Department, Head of the Banking Supervision Agency, heads of units affiliated to SBV, Directors of SBV’s branches in provinces or central-affiliated cities, Chairpersons of Boards of Directors, and General Directors of service providers shall be responsible for the implementation of this Circular./.