Circular No. 03/2010/TT-BTC guiding the implementation of Decree No. 41/2009/NĐ-CP dated May 5, 2009 of the Government on administrative penalties for violations in the insurance business sector.

CIRCULAR

Guidelines for Implementing Decree No. 41/2009/NĐ-CP dated May 5, 2009 of the Government on Administrative Sanctions for Violations in the Insurance Business Sector

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Pursuant to the Law on Insurance No. 24/2000/QH10 dated December 9, 2000;

Pursuant to the Ordinance on Handling Administrative Violations dated July 2, 2002 and the Ordinance Amending and Supplementing Certain Provisions of the Ordinance on Handling Administrative Violations dated April 2, 2008 (hereinafter referred to as the "Ordinance on Handling Administrative Violations");

Pursuant to Decree No. 118/2008/NĐ-CP dated November 27, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

Pursuant to Decree No. 41/2009/NĐ-CP dated May 5, 2009 of the Government on Administrative Sanctions for Violations in the Insurance Business Sector;

The Ministry of Finance issues guidelines for certain provisions of Decree No. 41/2009/NĐ-CP dated May 5, 2009 of the Government on Administrative Sanctions for Violations in the Insurance Business Sector as follows:

Part I
GENERAL PROVISIONS

Article 1. These Circulars guide the implementation of Decree No. 41/2009/NĐ-CP dated May 5, 2009 of the Government on Administrative Sanctions for Violations in the Insurance Business Sector (hereinafter referred to as "Decree No. 41/2009/NĐ-CP").

Article 2. Insurance companies, insurance brokerage companies, insurance agents, and other organizations and individuals related thereto shall be responsible for complying with the provisions of this Circular and relevant laws.

Article 3. Principles for Determining the Subject of Administrative Sanction

1. Where Decree No. 41/2009/NĐ-CP stipulates that the subject of administrative sanction is an organization, then the subject to be considered and subject to administrative sanctions is the organization; where it stipulates that the subject of administrative sanction is an individual, then the subject to be considered and subject to administrative sanctions is the individual;

2. Where Decree No. 41/2009/NĐ-CP stipulates that the subject of administrative sanction is an organization or an individual, the primary subject to be considered and subject to administrative sanctions first is the organization. Individuals involved will only be considered and subject to administrative sanctions when:

a) The administrative violation is directly caused by the individual or the individual is the person who directly makes the decision;

b) The administrative violation is due to the individual's failure to comply with legal regulations, internal management regulations of the organization, or written instructions from superiors.

Article 4. Aggravating and Mitigating Circumstances in Administrative Sanctions

For violations subject to a penalty range or time frame for supplementary penalties, the authority imposing the administrative sanction shall base its decision on the nature and degree of the violation, and aggravating or mitigating circumstances prescribed in the Ordinance on Handling Administrative Violations and implementing guidance documents to determine specific penalties or penalty periods.

Part II
VIOLATIONS

Article 5. Specific Guidance on Certain Violations Prescribed in Decree No. 41/2009/NĐ-CP

1. Point b, Clause 3, Article 12 of Decree No. 41/2009/NĐ-CP:"Transferring shares or capital contributions representing 10% or more of the charter capital"means transactions that change 10% or more of the contributed charter capital of an insurance company or insurance brokerage company.

2. Point a, point c, Clause 1, Article 16 of Decree No. 41/2009/NĐ-CP: "Providing false information or advertising about the content, scope of operations, and insurance conditions" and "Information affecting the legitimate rights and interests of other insurance companies"refers to the following actions:

a) An insurance company providing false information or advertising about the content and scope of operations as specified in the License for Establishment and Operation issued by the Ministry of Finance;

b) An insurance company providing false information or advertising about insurance conditions as stipulated in the rules and terms of insurance products approved by the Ministry of Finance (or registered and reported by the insurance company to the Ministry of Finance);

c) An insurance company disseminating information that directly or indirectly affects the legitimate rights and interests of other insurance companies, including information that damages their reputation or leads customers to misunderstand, thereby adversely impacting their business operations.

Such information and advertisements may be presented in various forms such as formal written communications, public media, websites, and other methods.

3. Point b, Clause 2, Article 16 of Decree No. 41/2009/NĐ-CP: "Competing for clients through measures to obstruct, lure, bribe, or threaten employees or clients of other insurance companies, insurance agents, or insurance brokers"refers to actions taken by an insurance company using business, administrative, economic, and other measures to obstruct, lure, bribe, or threaten clients of another insurance company to cancel or terminate insurance contracts, thereby affecting the business operations of those companies.

4. Point a, Clause 1, Article 17 of Decree No. 41/2009/NĐ-CP: "Failing to disclose and provide transparent information about products and services, leading to customer misunderstanding" refers to the following actions:

a) An insurance company failing to provide full information about the rules and terms of insurance products it is authorized to offer, information about insurance contracts signed between the company and customers, and other information related to the rights and responsibilities of customers when participating in insurance.

b) An insurance company failing to comply with other legal requirements for disclosure and transparency in sales.

5. Point b, Clause 1, Article 17 of Decree No. 41/2009/NĐ-CP:"Discriminating in insurance conditions and premiums among insured objects with the same level of risk" refers to an insurance company applying different premium rates or insurance conditions to insured objects with the same level of risk.

6. Point b, Clause 3, Article 17 of Decree No. 41/2009/NĐ-CP: "Using influence to require, prevent, or compel subordinate units or related persons to participate in insurance at a particular insurance company in any form"This is the act of organizations, individuals, supervisory bodies, project sponsors using business, administrative, economic measures, or other measures to require, prevent, or compel subordinate units or related persons to participate in insurance at a specific insurance company, not complying with regulations on fair competition among insurance companies.

Article 6Other violations shall be implemented according to the provisions of Decree 41/2009/NĐ-CP.

Part III
AUTHORITY AND PROCEDURES FOR IMPOSING ADMINISTRATIVE PENALTIES FOR VIOLATIONS

Article 7. Competent Authority for Imposing Administrative Penalties

1. The Chairman of the Provincial People's Committee within their scope of authority as stipulated in the Administrative Violation Handling Ordinance has the right to impose administrative penalties in the field of insurance business according to the provisions of Decree 41/2009/NĐ-CP.

2. The Head of the Specialized Insurance Inspectorate under the Insurance Management and Supervision Department, Ministry of Finance has the right:

a. To impose fines up to the highest level prescribed in Decree 41/2009/NĐ-CP;

b. To apply additional penalty forms and remedial measures according to the provisions of Decree 41/2009/NĐ-CP.

3. The competent authority imposing penalties shall be responsible for inspecting and supervising the implementation of administrative violation penalty decisions issued by themselves.

Article 8. Coordination in Imposing Administrative Penalties

During the inspection and examination process by functional agencies, if violations in the field of insurance business are discovered but do not fall within their authority to impose penalties, the agencies conducting inspections and examinations must transfer the violation files to the Head of the Specialized Insurance Inspectorate for consideration and imposition of penalties according to the provisions of Decree 41/2009/NĐ-CP and this Circular.

Article 9. Procedures for Imposing Administrative Penalties

1. Establishing an Administrative Violation Record

a) The person authorized to perform official duties has the responsibility to establish an administrative violation record for violations they discover and promptly transfer it to the person authorized to impose penalties. The model for the administrative violation record in the insurance business sector is specified in Appendix 1 attached to this Circular.

b) The record must be established in at least two copies; it must be signed by the person establishing the record, the violator or representative of the violating organization, witnesses, victims or representatives of victim organizations (if any). If the record consists of multiple pages, then those mentioned above must sign each page of the record. If the violator, representative of the violating organization, witness, victim or representative of the victim organization refuse to sign, the person establishing the record must clearly note the reason in the record.

c) Once completed, the record must be handed over to the individual or organization that violated one copy; if the violation exceeds the penalty-imposing authority of the person establishing the record, the record must be sent to the person with the appropriate authority to impose penalties.

2. Time Limit for Issuing Penalty Decisions

a) For simple cases where the violation is clear and does not require further verification, a penalty decision must be issued within ten days from the date of recording the administrative violation. The administrative penalty decision must follow the prescribed format.

b) For cases with complex circumstances such as evidence requiring appraisal, the need to identify the administrative violator or other complex circumstances, the time limit for issuing a penalty decision is thirty days from the date of recording the violation.

c) In cases where additional time is needed to verify and collect evidence, no later than ten days before the deadline set out in point b, Clause 2, Article 2 of this Decree, the person authorized to impose penalties must report in writing to their direct superior requesting an extension; the extension must be in writing; the extension period may not exceed thirty days and may not be extended more than twice.

3. Penalty Decision

a) The model for the penalty decision is specified in Appendix 2 of this Circular.

b) When imposing penalties on organizations or individuals who have committed multiple administrative violations, the person authorized to impose penalties shall issue only one penalty decision specifying the form and level of penalty for each violation; if the penalties are fines, they shall be combined into a total fine.

c) In the penalty decision, it must clearly state that if the individual or organization being penalized does not voluntarily comply, they will be subject to compulsory enforcement; the right to appeal or initiate litigation against the administrative penalty decision according to the law.

d) The penalty decision takes effect from the date of signature, except when another effective date is specified in the decision.

đ) The penalty decision must be sent to the individual or organization being penalized and the revenue collection agency within three days from the date of issuance of the penalty decision.

4. Procedures for Paying Fines

a) Individuals or organizations fined must pay the fine and receive a receipt for payment.

b) Collected fines must be deposited into the State Budget through an account opened at the State Treasury.

5. Transfer of Violation Files Showing Criminal Offense Indicators for Criminal Prosecution

a) When examining a violation case to decide on a penalty, if it is found that the violation indicates a criminal offense, the person authorized to impose penalties must immediately transfer the file to the competent criminal prosecution agency.

Strictly prohibited is the retention of violation cases showing criminal offense indicators for administrative penalties.

b) In cases where a penalty decision has already been issued, if it is subsequently discovered that the violation indicates a criminal offense and the statute of limitations for criminal prosecution has not expired, the person who issued the penalty decision must revoke the decision and within three days from the date of revoking the penalty decision, must transfer the violation file to the competent criminal prosecution agency.

6. Returning Violation Files for Administrative Penalties in the Insurance Business Sector

In cases where the violation files have been processed by the criminal prosecution agency but it is determined that the violation does not constitute a criminal offense but shows administrative violation indicators, the person authorized by the criminal prosecution agency must issue a decision to return the violation file to the Head of the Specialized Insurance Inspectorate and within three days from the date of issuing the decision, must send the violation file along with the decision to the Head of the Specialized Insurance Inspectorate to consider issuing an administrative penalty decision according to the law.

7. Compliance with Administrative Penalty Decisions

a) Individuals and organizations subject to administrative penalties must comply with the penalty decision within ten days from the date they receive the penalty decision, except where otherwise provided by law.

b) If, beyond the time limit specified in point a, Clause 7 of this Article, individuals and organizations subject to administrative penalties do not voluntarily comply with the penalty decision, they will be compelled to enforce it according to the provisions of the Administrative Violation Handling Ordinance.

8. Time Limit for Enforcement of Administrative Penalty Decisions

The time limit for enforcing an administrative penalty decision is one year, starting from the date of issuance of the penalty decision; if the decision is not enforced beyond this period, the penalty decision will no longer be enforced but the measures to remedy the consequences recorded in the decision will still be applied.

In cases where individuals or organizations subject to penalties intentionally evade or delay compliance, the time limit mentioned above shall be recalculated from the date such evasive or delaying actions cease.

Part IV
IMPLEMENTATION

Article 10. This Circular takes effect forty-five days from the date of signature.

Article 11. The Director of the Insurance Management and Supervision Department, the Head of the Specialized Insurance Inspection Agency shall direct and guide relevant units and individuals to strictly implement administrative penalties in the insurance business field.

Article 12During implementation, if there are any difficulties, please promptly reflect them to the Ministry of Finance for consideration and resolution./.

Appendix 1

ADMINISTRATIVE VIOLATION RECORD

Regarding the act...

Today, at...hours...day...month...year...at...

 

We include ^:

1. Mr. (Mrs.)...Position: ...;

2. Mr. (Mrs.)...Position: ...;

........

With the presence of:

1. Mr. (Mrs.)...Occupation/position:...;

Permanent address (temporary residence):...;

Identity card number:...Date of issue:...;Issued by:...;

2.Mr. (Mrs.)...Occupation/position:...;

Permanent address:...;

Identity card number:...Date of issue:...;Issued by:...;

............................................................ ,

Proceeding to establish an administrative violation record regarding ...against:

Mr. (Mrs.)/organization: ...Occupation (field of activity): ...;

Permanent address (office address): ...;

Identity card number/Decision on establishment or registration for business operation...;

Issued on...at...;

Have committed the following administrative violations:

1..., violating Article...Clause...Point...of Government Decree No. 41/2009/NĐ-CP dated May 5, 2009, stipulating administrative penalties in the insurance business sector;

2. ………...

The person/entity suffering damage:

Name:...;

Address: ...;

Identity card number/Decision on establishment or registration for business operation...;

Issued on...at...;

Statement of the violator/administrator of the organization that violated: …

Statement of the witness:...

Statement of the person/entity suffering damage due to the administrative violation (if any):...

We temporarily detain the following items, means, and documents related to the violation to transfer to:...for the competent authority to resolve.

Apart from the items, means, and documents mentioned above, we do not detain anything else.

This record is made in three copies with identical content and value, one copy is given to the violator/representative of the organization that violated and two copies are handed over to the competent authority imposing the penalty.

After reading the record, those present agree with the content of the record, have no other comments, and sign the record or provide other comments as follows: …

Additional comments (if any): ...

This record consists of...pages, signed and confirmed by all present on each page.

 

 

DIRECTOR OF THE STATE BANK OF VIETNAM

Pursuant to …;

ADMINISTRATIVE PENALTY DECISION ON...

Pursuant to the Law on Insurance Business No. 24/2000/QH10 dated December 9, 2000;

Based on the Administrative Violation Handling Ordinance dated July 2, 2002 and the Ordinance amending and supplementing certain articles of the Administrative Violation Handling Ordinance dated April 2, 2008;

Pursuant to Decree No. 118/2008/NĐ-CP dated November 27, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

Pursuant to Decree No. 41/2009/NĐ-CP dated May 5, 2009 of the Government on Administrative Sanctions for Violations in the Insurance Business Sector;

Based on Circular No. .../2010/TT-BTC dated...issued by the Ministry of Finance guiding the implementation of Government Decree No. 41/2009/NĐ-CP dated May 5, 2009 on administrative penalties in the insurance business sector

Based on the Administrative Violation Record established by...at...hours...day...month...year...at...;

I, ...Position:...;

Unit...,

DECISION:

 

Article 1. Imposing administrative penalties on:

Mr. (Mrs.)/organization: ...;

Occupation (field of activity):...;

Address:...;

Identity card number/Decision on establishment or registration for business operation...;

Issued on...at...;

With the following forms:

1. Principal forms of administrative penalty:

Imposing a fine of...dong. (In words:...).

2. Additional penalty form (if any):

...........

...........

3. Measures to remedy the consequences (if any):

Reason:

- Has committed the administrative violation...as stipulated in Article...Clause...Point...of Government Decree No. 41/2009/NĐ-CP dated May 5, 2009 on administrative penalties in the insurance business sector

- …………..

Related circumstances concerning the handling of the violation: ...

Article 2. Mr. (Mrs.)/organization...must strictly comply with the Administrative Penalty Decision within ten (10) days from the date of receipt of the Decision, which is...day...month...year..., except in cases of deferred compliance or...

Beyond this period, if Mr. (Mrs.)/organization...intentionally fails to comply with the Administrative Penalty Decision, enforcement will be compulsory.

The fine amount stipulated in Article 1 must be paid into the account number:...of the State Treasury...within ten (10) days from the date of receipt of the Administrative Penalty Decision.

Mr. (Mrs.)/organization...has the right to appeal or initiate legal proceedings against this Administrative Penalty Decision in accordance with the law.

Article 3. This Decision takes effect from...day...month...year...

Within three (3) days, this Decision will be sent to:

1. Mr. (Mrs.)/organization:...to comply with;

2. Treasury...to collect the fine;

3....................... .

This Decision consists of...pages, stamped across the pages.

 

DECISION MAKER

(Sign, write full name and stamp)