Thông tư 44/2014/TT-NHNN

CIRCULAR

GUIDING SELECTED ISSUES REGARDING JUDICIAL SURVEY IN RESPECT OF CURRENCY AND BANKING SECTOR

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 Law on Judicial Survey No. 13/2012/QH13 dated 20 June 2012;

Pursuant to governmental Decree No. 85/2013/NĐ-CP dated 29 July 2013 detailing and enforcement measures applied to the Law on Judicial Survey;

Pursuant to governmental Decree No. 156/2013/NĐ-CP dated 11 November 2013 regulating the functions, duties, authority and organizational structure of the State Bank of Vietnam ["SBV”];

As proposed by the Head of the Banking Supervisory Agency;

The SBV’s Governor hereby issues this Circular to give guidance on selected issues regarding judicial survey in respect of currency and banking sector.

Chapter I

GENERAL REGULATIONS

Article 1. Governing scope

This Circular prescribes the criteria for appointing judicial surveyors in the fields of currency and banking; requirements on material facilities applied to judicial survey Offices of banks; compiling and posting on website the list of judicial surveyors appointed by SBV’s Governor (hereafter referred to as “State Bank”); compiling and popularizing the list of particular judicial surveyors and/or particular judicial survey organizations in charge of the cases related to currency and banking sector; guidance on the application of professional standards to judicial survey activities pertaining to currency and banking and other issues related to currency and banking judicial surveys.

Article 2. Applied entities

1. The officers, officials, civil servants working for the SBV.

2. Organizations and/or individuals related to judicial survey activities pertaining to currency and banking.

Article 3. Judicial surveys in respect of currency and banking

1. Judicial surveys related to monetary notes, coins issued by the SBV.

2. Judicial surveys pertaining to foreign exchange, foreign exchange activities and gold trading.

3. Judicial surveys on banking activities, including: credit loans, deposits and provision of bank-account-based payment services.

4. Judicial surveys related to deposit insurance.

5. Judicial surveys on other activities related to currency and banking in accordance with the related laws.

Chapter II

SPECIFIC REGULATIONS

Article 4. Criteria for appointing judicial surveyors in the fields of currency and banking

1. General criteria for appointing judicial surveyors in the fields of currency and banking

a) The appointment criteria shall conform to Clause 01 of Article 7 of the Law on Judicial Survey and excluded from the cases mentioned in Clause 2 of Article 7 of the same Law.

b) The criterion, “having been engaged in practical professional activities in his/her trained area for at least 5 years”, defined in Point b of Clause 01 – Article 7 of the Law on Judicial Survey, includes the time period of direct involvement in the mentioned practical professional activities which is calculated since the date the incumbent is appointed to a rank of governmental official, civil servant or enters into the labor contract.

c) The criterion, “Possessing a university or higher degree”, defined in Point b of Clause 01 – Article 7 of the Law on Judicial Survey, means the incumbent shall be certified with a university degree or higher (in case such degree is issued by a foreign educational institution, it shall be accredited by Vietnam as prescribed in the law related to education and training and related international agreements to which the Socialist Republic of Vietnam is a member).

2. Criteria for appointing judicial surveyors in banking sector

a) The criteria defined in Clause 01 herein;

b) Holding a university or higher degree with the major being: banking, finance, accounting, economics, law.

3. Criteria for appointing judicial surveyors with regard to monetary note and coin survey

a) The criteria defined in Clause 01 herein;

b) Holding a university or higher degree with the major being: information technology, printing art and techniques (technology).

4. Criteria for appointing judicial surveyors in the fields of currency and banking but beyond the regulations defined in Clauses 2 and 3 of this Article

a) The criteria defined in Clause 01 herein;

b) Holding a university or higher degree with the major being: Economics, finance, law or the particular major in which the incumbent will involve in as a surveyor.

Article 5. Documents required for the appointment of a judicial surveyor at the SBV

1. The documents required for the appointment of a judicial surveyor to be submitted by the Head of an agency, unit under the SBV, Director of the SBV branch of a province, city under Central management (hereafter referred to as "Head of the SBV subsidiary").

2. Copy of the university or higher diploma as prescribed in Clause 2 of Article 4 herein.

3. Curriculum vitae [“CV”] and judicial CV.

4. Written confirmation on the employment period issued by the incumbent’s employer for whom s/he will work; Copy of a written acknowledgement on the period of actual professional activities issued by the incumbent’s ex-employer.

Article 6. Procedure on the appointment of a judicial surveyor at the SBV

1. The Leader of the SBV’s subsidiary shall select the qualified person as prescribed in Article 4 herein, prepare and submit to the Department of Personnel and Organization required documents to appoint him/her to be the judicial surveyor.

2. The Director General of the Department of Personnel and Organization shall take the lead and cooperate with related agencies to peruse the submitted documents, select and submit to the SBV’s Governor for appointment decision.

Article 7. Procedure on removing a judicial surveyor from the SBV

1. In case of removing a judicial surveyor, required document for such removal shall conform to Clauses 01 ad 2 of Article 10 of the Law on Judicial Survey.

2. The Leader of the SBV’s subsidiary shall prepare and submit to the Department of Personnel and Organization required document to remove a judicial surveyor. The Department of Personnel and Organization shall take the lead and cooperate with related agencies to check the submitted document and submit to the SBV’s Governor for his decision on the removal of the related judicial surveyor.

Article 8. Compilation and posting on website the list of judicial surveyors; compilation and publicizing the lists of particular judicial surveyors and particular judicial survey organizations in charge of the cases

1. Compilation and posting on website the list of judicial surveyors appointed by the SBV’s Governor

a) Based on the Decisions on the appointment or removal of judicial surveyors appointed by the SBV’s Governor, the Department of Personnel and Organization shall compile and send the list of judicial surveyors and/or modify such list to send to the SBV’s office for being posted on the SBV’s website, simultaneously to the Ministry of Justice [“MOJ”] for master list compilation;

b) The SBV’s office shall post the list of judicial surveyors and modify such list on the SBV’s website within 3 (three) working days since the receiving day of the list.

2. Compilation and popularization of the list of particular judicial surveyors and particular judicial survey organizations in charge of the cases

a) Yearly, before the 31^st of October, the Leaders of the SBV’s subsidiaries shall select qualified staff who meet the requirements defined in Clauses 01 and 2 of Article 18 of the Law on Judicial Survey and qualified organizations as defined in Clause 01 of Article 19 of the mentioned Law and compile them in a list before sending it to the Department of Personnel and Organization;

b) The Department of Personnel and Organization shall review and consolidate the lists of particular judicial surveyors and particular judicial survey organizations in charge of the cases as defined in Point a of this Clause before submitting them to the SBV’s Governor for his decision on the final lists prior to the 31^st of November yearly;

c) Based on the Decision on the list of particular judicial surveyors and particular judicial survey organizations in charge of the cases issued by the SBV’s Governor, the Department of Personnel and Organization shall send to the SBV’s office the lists, attached with detailed information on the related surveyors and organizations, as defined in Article 24 of governmental Decree No. 85/2013/NĐ-CP dated 29 July 2013 which details and sets forth the enforcement measures of the Law on Judicial Survey so that they can be posted on the SBV’s website, and simultaneously share the lists with the MOF for compilation to the master list. In case the information on particular judicial surveyors and/or particular judicial survey organizations in charge of the cases is amended, the Department of Personnel and Organization shall modify the lists and notify the MOJ within 7 working days since the date the lists are modified;

d) The SBV’s office shall post the mentioned lists and information of the particular judicial surveyors and particular judicial survey organizations in charge of the cases on the SBV’s website within 3 working days since the receiving date of the lists.

Article 9. Professional standards to be applied to judicial survey activities

The professional standards to be applied to the judicial survey activities in the fields of currency and banking include legislative documents related to currency, banking activities, foreign exchange activities and other related legislative documents.

Article 10. Requirements on material facilities required for judicial surveyor Offices in banking sector

The judicial survey Office for the banking sector shall meet the following requirements:

1. Separate office with at least 3-year ownership or use entitlement since the date the decision on judicial survey Office establishment is issued by the competent Authority.

2. Separate offices for surveyors and staff; cabinets or storage or separate area for storing survey documents.

3. Publicized price schedule of judicial survey charges.

Article 11. Submission of solicitation for judicial surveys to the SBV

1. In case a written solicitation and/or request for judicial survey is submitted by a solicitor and/or requester to the SBV, the Banking Supervisory Agency shall take the lead and cooperate with the Leader of the SBV’s related subsidiary shall select appropriate judicial surveyor, particular survey specialist in charge of the case or eligible officer, civil servant as defined in Clause 01 of Article 18 of the Law on Judicial Survey based on the details of the submitted solicitation.  After the surveyor is selected, the Banking Supervisory Agency shall submit related appointment document to the SBV’s Governor through the Department of Personnel and Organization for his decision on such appointment.

In case the issues solicited and/or requested to be surveyed are ultra vires to the SBV, within 5 working days since the receiving date of the written solicitation and/or request for judicial survey, a letter of rejection shall be sent by the Banking Supervisory Agency to the solicitor or requester, stating clear reasons, and submit such to the SBV’s Governor for his consideration and decision.

2. In case the judicial survey solicitation and/or request is made directly to the surveyor, particular survey specialist in charge of the case who is officer, civil servant of the SVB’s subsidiary, such surveyor or specialist shall report to his/her direct Supervisor for the survey to be arranged and facilitated.

Chapter III

IMPLEMENTATION

Article 12. Implementation validity

1. This Circular takes effect as of 12 February 2015.

2. During the execution, in case of any difficulties and/or bottlenecks, related individuals and/or organizations are requested to report to the SBV for appropriate modification and/or supplementation.

Article 13. Implementation

1. The Banking Supervisory Agency shall take the lead and cooperate with the Department of Personnel and Organization to give guidance and inspect the enforcement of this Circular.

2. Yearly, the Banking Supervisory Agency, in cooperation with the related agencies, shall summarize and evaluate the SBV’s organization and operation of judicial surveys with regard to currency and banking before reporting to the MOJ for compiling into the master report submitted to the Government.

3. Office Chief, Chief Inspector, supervisors, Director General of the Department of Personnel and Organization, Heads of the SBV’s subsidiaries, directors of the SBV branches of the provinces, cities under Central management shall arrange the enforcement of this Circular.