Thông tư 41/2011/TT-NHNN

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:

Section 1: GENERAL PROVISIONS

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).

2. Reporting entities shall mean entities whose names are listed in Article 2 of this Circular.

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;

b. Type of product, service that the customer commonly uses: cash deposit, transfer, electronic remittance, card transaction, money exchanges;

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.

Article 7. Politically exposed person

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;

c. To assess, on an annual basis, the implementation of measures on anti-money laundering by the partner bank.

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.

2. The identification of customer basing on the intermediary party does not exclude the responsibility of the reporting entity in the identification and update of customer information.

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.

Article 14. Implementation organization

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.