Decree No. 23/2023/ND-CP Amending and supplementing some articles of Decree No. 89/2016/ND-CP dated July 1, 2016 of the Government on conditions for foreign currency exchange agency activities and foreign currency receipt and payment service provision activities of economic organizations, and Decree No. 88/2019/ND-CP dated November 14, 2019 of the Government on administrative penalties in the field of finance and banking.

DECREE

Amending and supplementing some articles of Decree No. 89/2016/NĐ-CP dated July 1, 2016 of the Government on conditions for foreign exchange trading agency activities and foreign currency receipt and payment service provision activities of economic organizations and Decree No. 88/2019/NĐ-CP dated November 14, 2019 of the Government on administrative penalties in the field of currency and banking On the basis of the Foreign Exchange Law dated December 13, 2005; the Law amending and supplementing some articles of the Foreign Exchange Law dated March 18, 2013; The Government issues this Decree to amend and supplement some articles of Decree No. 89/2016/NĐ-CP dated July 1, 2016 of the Government on conditions for foreign exchange trading agency activities and foreign currency receipt and payment service provision activities of economic organizations and Decree No. 88/2019/NĐ-CP dated November 14, 2019 of the Government on administrative penalties in the field of currency and banking Article 1. Amending and supplementing some articles of Decree No. 89/2016/NĐ-CP dated July 1, 2016 of the Government on conditions for foreign exchange trading agency activities and foreign currency receipt and payment service provision activities of economic organizations

 _______________

||| Pursuant to the Law on Organization of the Government dated June 19, 2015; Law Amending and Supplementing Certain Provisions of the Law on Government Organization and the Law on Local Administration dated November 22, 2019;

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; the Law Amending and Supplementing Certain Articles of the Law on Credit Institutions dated November 20, 2017;

Pursuant to the Law on Handling Administrative Violations dated June 20, 2012; the Law Amending and Supplementing Certain Provisions of the Law on Handling Administrative Violations dated November 13, 2020;

Pursuant to the Investment Law dated June 17, 2020;

Pursuant to the Law on Enterprises dated June 17, 2020;

1. Article 1 shall be amended and supplemented as follows:

At the proposal of the Governor of the State Bank of Vietnam;

1. Conditions for economic organizations conducting foreign exchange trading agency activities (excluding border country currency exchange activities). 2. Conditions for economic organizations conducting foreign currency receipt and payment service provision activities including direct foreign currency receipt and payment activities and foreign currency payment agency activities. 3. Conditions for economic organizations conducting border country currency exchange agency activities; dossier, procedures, and formalities for approving economic organizations conducting border country currency exchange agency activities.".

2. Article 2 shall be amended and supplemented as follows:

1. Economic organizations conducting foreign exchange trading agency activities; economic organizations conducting foreign currency receipt and payment service provision activities; economic organizations conducting border country currency exchange agency activities.

"Article 1. Scope of Regulation

This Decree provides for:

2. Other organizations and individuals related to foreign exchange trading agency activities, foreign currency receipt and payment service provision activities, and border country currency exchange agency activities."

3. Amending Clause 2, supplementing Clauses 4 and 5 of Article 3 as follows:

"2. Authorized credit institution is a credit institution permitted to authorize economic organizations to act as foreign exchange trading agents or foreign currency payment agents or border country currency exchange agents. For border country currency exchange agency activities, the authorized credit institution must have its headquarters and/or branch in the border province where the economic organization's border country currency exchange agency is located.

4. State Bank Branch in Border Province is the State Bank Branch in provinces sharing borders with China, Laos, and Cambodia.

"Article 2. Applicability

5. Border country currency is Chinese Yuan Renminbi (CNY), Lao Kip (LAK), Cambodian Riel (KHR). Currency of which country can only be exchanged in the land border area or border economic zone adjacent to that country. The land border area and border economic zone are defined according to relevant laws."

4. Supplementing Article 6a after Article 6 as follows:

3. Amend Clause 2, and supplement Clause 4, Clause 5 of Article 3 as follows:

"2. A credit organization authorized to delegate is a credit organization permitted to authorize an economic organization to act as an agent for foreign currency exchange or as an agent for paying out foreign currency, or as an agent for exchanging border country currency. For the activity of acting as an agent for exchanging border country currency, the authorizing credit organization must have its main office and/or branch in the border province where the economic organization sets up the agency for exchanging border country currency.

4. The State Bank branch in a border province is the State Bank branch located in provinces sharing borders with China, Laos, and Cambodia.

5. Border country currency refers to the Chinese Yuan Renminbi (CNY), Lao Kip (LAK), and Cambodian Riel (KHR). Currency from any country can only be exchanged in the land border area or at the border economic zone adjacent to that country. The land border area and the border economic zone are defined according to relevant laws."

4. Supplement Article 6a following Article 6 as follows:

"Article 6a. Conditions for economic organizations to carry out foreign currency exchange agency activities of neighboring countries

1. Economic organizations may only carry out foreign currency exchange agency activities of neighboring countries after being granted a Registration Certificate for Foreign Currency Exchange Agency Activities of Neighboring Countries (hereinafter referred to as the Registration Certificate) by the State Bank Branch at the border province. The conditions for economic organizations to be considered for issuance of the Registration Certificate by the State Bank Branch at the border province include:

a) Conditions regarding headquarters and branches:

(i) Having headquarters located in the land border area, border economic zone within the border province; or

(ii) Having headquarters and branches located in the land border area, border economic zone within one border province; or

(iii) Having headquarters in a border province and branches in the land border area, border economic zone within one border province;

b) Conditions regarding the location of foreign currency exchange agency offices of neighboring countries: Having the location of foreign currency exchange agency offices of neighboring countries situated in the land border area, border economic zone within the area where the economic organization has its headquarters or branch;

c) Having procedures for foreign currency exchange agency activities of neighboring countries; having a public exchange rate notice board, signboard displaying the name of the authorized credit institution and the name of the foreign currency exchange agency office of neighboring countries at the transaction site;

d) Being authorized by a credit institution to act as a foreign currency exchange agency of neighboring countries;

đ) An economic organization can only act as a foreign currency exchange agency of neighboring countries for one authorized credit institution.

2. Conditions for economic organizations to be considered for extension of the Registration Certificate by the State Bank Branch at the border province include:

a) Meeting the conditions stipulated in Clause 1 of this Article;

b) The Registration Certificate already issued must still be valid for a minimum of 30 days from the date of submitting the application for extension;

c) Not violating reporting regulations of the State Bank of Vietnam for a minimum of three quarters in one year from the date the Registration Certificate was issued or most recently extended until the date of requesting an extension."

5. Supplement Article 6b following Article 6a as follows:

"Article 6b. Principles for preparing applications for issuance, reissuance, amendment, and extension of the Registration Certificate

1. For application components that are copies, economic organizations may choose to submit certified copies, copies from original books, copies accompanied by presentation of the original for verification, or copies with confirmation by the economic organization regarding the accuracy of the copy compared to the original. In cases where economic organizations submit applications with copies accompanied by presentation of the original for verification, the person verifying the application must sign to confirm the accuracy of the copy compared to the original and bear responsibility for the accuracy of the copy.

2. Application components such as requests for issuance, reissuance, amendment, and extension of the Registration Certificate, reports, and foreign currency exchange agency contracts with authorized credit institutions must be signed by the legal representative of the economic organization."

6. Supplement Article 6c following Article 6b as follows:

"Article 6c. Cases for Reissuance and Amendment of the Registration Certificate

1. Economic organizations must apply for reissuance of the Registration Certificate at the State Bank Branch at the border province where the certificate was issued in the following cases:

a) The Registration Certificate is lost, damaged due to natural disasters, fire, or other objective reasons;

b) After restructuring (splitting, separating, merging, consolidating, or changing business form) according to the Law on Enterprises, economic organizations must apply for reissuance of the Registration Certificate with the State Bank Branch at the border province within thirty days from the completion of the restructuring process.

2. Economic organizations must apply for amendment of the Registration Certificate at the State Bank Branch at the border province where the certificate was issued in the following cases of change:

a) Change of name or address of the economic organization;

b) Change of location of foreign currency exchange agency offices of neighboring countries;

c) Increase in the number of foreign currency exchange agency offices of neighboring countries;

d) Increase in the amount of foreign currency reserve funds.

For the case specified in Point a, within thirty days from the completion of the name and address change procedures, economic organizations must apply for amendment of the Registration Certificate with the State Bank Branch at the border province.

3. Economic organizations may continue to carry out foreign currency exchange agency activities of neighboring countries during the period of applying for reissuance or amendment of the Registration Certificate.

4. In cases of changes in the name of the authorized credit institution or reduction in the number of foreign currency exchange agency offices of neighboring countries, economic organizations must notify the State Bank Branch at the border province where the certificate was issued within thirty days from the date of the change."

7. Supplement Article 6d following Article 6c as follows:

"Article 6d. Documents for Applications for Issuance, Reissuance, Amendment, and Extension of the Registration Certificate

1. Documents for application for issuance of the Registration Certificate include:

a) Request for issuance of the Registration Certificate (according to Model No. 01 prescribed in the Appendix attached to this Decree);

b) Copies of documents proving the establishment of foreign currency exchange agency offices of neighboring countries at the locations as stipulated in Point b, Clause 1 of this Decree;

c) Report on the economic organization's provision of complete public exchange rate notice boards, signboards displaying the name of the authorized credit institution and the name of the foreign currency exchange agency office of neighboring countries at the transaction site;

d) Procedures for foreign currency exchange agency activities of neighboring countries including the following main contents: measures to ensure security and safety during foreign currency exchange agency activities; record keeping, issuing invoices to customers, retaining vouchers, invoices, ledgers; accounting and financial reporting systems; measures for handling counterfeit money or non-circulating money when discovered;

đ) Copies of foreign currency exchange agency contracts with authorized credit institutions, including the following main contents:

(i) Names, addresses of headquarters, contact phone numbers of the parties signing the contract;

(ii) Names, addresses of foreign currency exchange agency offices of neighboring countries;

(iii) Provisions on border exchange agencies only being allowed to purchase currency from countries with which they share borders in cash (except for agencies located in departure waiting areas at international border gates and main border gates) and resell the purchased cash (excluding the amount of cash reserves left over) to authorized credit institutions;

(iv) Provisions on the principles for determining buying and selling exchange rates (provisions on determining selling exchange rates apply only to agencies located in departure waiting areas at international border gates and main border gates) for customers and the selling exchange rate for reselling cash from countries with which they share borders to authorized credit institutions in accordance with foreign exchange management regulations; provisions on types of agency commission fees (if applicable);

(v) Rights and obligations of parties involved in the contract, including clear stipulations that border exchange agencies must strictly follow the procedures for exchanging currency from countries with which they share borders; provisions requiring authorized credit institutions to periodically inspect the activities of these agencies to ensure compliance with the contract and legal regulations; provisions on handling violations when border exchange agencies breach the contract and legal regulations governing border exchange agencies;

(vi) Agreement on the amount of cash reserves to be kept and the deadline for selling the purchased cash from countries with which they share borders to authorized credit institutions.

2. Documents for requesting reissue of the Certificate include:

a) A request form for reissuing the Certificate, detailing the specific reasons for requesting the reissue (in accordance with Form No. 01 prescribed in the Appendix issued together with this Decree);

b) A copy of the border exchange agency contract signed with the authorized credit institution (for cases where an economic organization has been restructured).

3. Documents for requesting amendment of the Certificate include:

a) A request form for amending the Certificate, detailing the specific reasons for requesting the amendment (in accordance with Form No. 02 prescribed in the Appendix issued together with this Decree);

b) Copies of relevant documents related to the amendment as stipulated in Clause 2 of Article 6c of this Decree;

c) A report on the economic organization's provision of complete public exchange rate boards, signs displaying the name of the authorized credit institution and the name of the border exchange agency at the transaction location, and copies of documents proving the placement of the border exchange agency at the designated location as stipulated in Point c of Clause 1 of Article 6a of this Decree (for cases as specified in Points b and c of Clause 2 of Article 6c of this Decree).

4. Documents for requesting extension of the Certificate include:

a) A request form for extending the Certificate (in accordance with Form No. 02 prescribed in the Appendix issued together with this Decree);

b) A copy of the valid border exchange agency contract signed with the authorized credit institution;

c) A report evaluating the results of the border exchange agency operations under the issued Certificate, ensuring compliance with the conditions stipulated in Point c of Clause 2 of Article 6a of this Decree."

"Article 6d. Procedures and formalities for issuing, reissuing, amending, and extending the Certificate

1. Economic organizations wishing to issue, reissue, amend, or extend the Certificate shall submit one set of documents through postal service or directly to the State Bank branch in the border province where the economic organization's border exchange agency is located.

2. Procedures and formalities for approval by the State Bank branch in the border province:

a) Procedures and formalities for issuing the Certificate:

(i) In cases where the submitted documents are incomplete or invalid, within 10 days from the date of receipt of the documents, the State Bank branch in the border province will issue a written request for the economic organization to supplement the documents;

(ii) Within 30 days from the date of receiving complete and valid documents, the State Bank branch in the border province will consider issuing the Certificate (in accordance with Form No. 03 prescribed in the Appendix issued together with this Decree) to the economic organization. If rejected, the State Bank branch in the border province will issue a written notice specifying the reasons;

b) Procedures and formalities for reissuing, amending, and extending the Certificate:

(i) In cases where the submitted documents are incomplete or invalid, within five working days from the date of receipt of the documents, the State Bank branch in the border province will issue a written request for the economic organization to supplement the documents;

(ii) Within 20 days from the date of receiving complete and valid documents, the State Bank branch in the border province will consider reissuing the Certificate (in accordance with Form No. 03 prescribed in the Appendix issued together with this Decree), amending or extending the Certificate (in accordance with Form No. 04 prescribed in the Appendix issued together with this Decree) to the economic organization. If rejected, the State Bank branch in the border province will issue a written notice specifying the reasons;
c) The Certificate will only be issued to economic organizations, not to branches of economic organizations.

3. Validity period of the Certificate and extended Certificate: The validity period of the Certificate and extended Certificate corresponds to the validity period of the border exchange agency contract signed between the economic organization and the authorized credit institution but shall not exceed five years from the date of issuance.

9. Supplement Article 6e after Article 6d as follows:

"Article 6e. Revocation of the Certificate

1. The State Bank branch in the border province will revoke the Certificate and amended/extended Certificate in the following cases:

a) An economic organization does not engage in border exchange agency activities within 12 months from the date of issuance of the Certificate;

b) An economic organization ceases operations or does not generate turnover from border exchange activities for 12 consecutive months;

c) An economic organization sends a written request to the State Bank branch in the border province to terminate its border exchange agency activities;

d) Cases of revocation according to legal regulations on administrative penalties in the field of currency and banking.

2. Procedures and formalities for revocation:"

a) The provincial border branch of the State Bank issues a Decision to revoke the Certificate, Certificate of amendment/extension (in accordance with Model No. 05 prescribed in the Appendix accompanying this Decree);

b) Within fifteen days from the date the Revocation Decision takes effect, the economic organization shall be responsible for terminating the agency exchange business of the neighboring country and returning the original Certificate, Certificate of amendment/extension (if any) to the provincial border branch of the State Bank that issued the Certificate, Certificate of amendment/extension.

10. Supplement Article 6g following Article 6e as follows:

"Article 6g. Cases of automatic expiration

The Certificate, Certificate of amendment/extension automatically expires in the following cases:

1. The credit institution's authorized party or the economic organization is dissolved or declared bankrupt in accordance with the provisions of the law.

2. The credit institution's authorized party or the economic organization has its business registration certificate, investment registration certificate, branch operation registration certificate, or other equivalent certificates revoked by the competent state authority in accordance with the provisions of the law.

3. The credit institution's authorized party terminates the agency exchange contract of the neighboring country with the economic organization."

1. Amend and supplement some points of Article 3 as follows:

a) Amend and supplement Point a Clause 2 as follows:

"a) Revoke the right to use a time-limited permit for: certificate of registration for foreign currency exchange agency, certificate of registration for neighboring country currency exchange agency for a period of one to three months; license for receiving and paying foreign currencies and other foreign exchange activities for foreigner-oriented electronic game business, casino business for a period of three to six months; license for buying and selling gold bars for a period of six to nine months;"

b) Amend and supplement point n clause 4 (which has been amended and supplemented by point b clause 4 Article 1 of Decree No. 143/2021/ND-CP dated December 31, 2021 amending and supplementing some articles of Decree No. 88/2019/ND-CP dated November 14, 2019 of the Government on administrative penalties in the field of currency and banking (hereinafter referred to as Decree No. 88/2019/ND-CP and Decree No. 143/2021/ND-CP)) as follows:

"n) Propose or request the competent authority to consider and apply measures: revoke the license; revoke the certificate of registration for foreign currency exchange agency; revoke the certificate of registration for neighboring country currency exchange agency; revoke the license for opening and using foreign currency accounts abroad; revoke the license for buying and selling gold bars; revoke the approval document for providing non-account payment settlement services; revoke the license for providing intermediary payment settlement services; suspend or dismiss management, operational, supervisory positions; prohibit from assuming management, operational, supervisory positions at credit institutions, foreign bank branches for individuals who violate and/or individuals responsible for the violation, require credit institutions, foreign bank branches to dismiss such individuals and implement other legal measures according to their authority;"

2. Amend and supplement clause 1 of Article 3a as follows:

"1. For remedial measures involving the proposal to the competent authority to consider and apply measures: revoke the license; revoke the certificate of registration for foreign currency exchange agency; revoke the certificate of registration for neighboring country currency exchange agency; revoke the license for opening and using foreign currency accounts abroad; revoke the license for buying and selling gold bars; revoke the approval document for providing non-account payment settlement services; revoke the license for providing intermediary payment settlement services.

Within three working days from the date of issuance of the administrative penalty decision, the person issuing the administrative penalty decision shall be responsible for sending a document proposing the competent authority to consider and apply these remedial measures."

3. Amend and supplement some points and clauses of Article 23 as follows:

a) Amend and supplement point d clause 3 as follows:

"d) Failure to comply with the legal regulations on registering and notifying the provincial or city branch of the State Bank regarding changes related to foreign currency exchange agency activities; neighboring country currency exchange agency activities;"

b) Amend and supplement point a, point b clause 4 as follows:

"a) Entering into a foreign currency exchange agency contract, neighboring country currency exchange agency contract with an entity that does not meet the conditions for being a foreign currency exchange agent, neighboring country currency exchange agent; failing to guide and inspect the foreign currency exchange agent, neighboring country currency exchange agent in accordance with the law;

b) Failing to comply with the responsibilities of a foreign currency exchange agent, neighboring country currency exchange agent as stipulated by the law; acting as a foreign currency exchange agent, neighboring country currency exchange agent for two or more credit institutions simultaneously contrary to the law;"

c) Amend and supplement point i clause 5 (which has been amended and supplemented by point b clause 13 Article 1 of Decree No. 143/2021/ND-CP) as follows:

"i) Failing to comply with the responsibilities of a foreign currency exchange agent, neighboring country currency exchange agent as stipulated by the law in case of recurrence; acting as a foreign currency exchange agent, neighboring country currency exchange agent for two or more credit institutions simultaneously contrary to the law in case of recurrence;"

d) Amend and supplement point b clause 9 as follows:

"b) Revoke the right to use the certificate of registration for foreign exchange agencies, the certificate of registration for agencies exchanging bordering countries' currency for a period of from one month to three months for acts violating the provisions set forth in point b, Clause 4 of this Article;"

d) Amend and supplement Clause 10 (which has been amended and supplemented by point d, Clause 13 of Article 1 of Decree No. 143/2021/NĐ-CP) as follows:

"10. Measures to remedy consequences:

Request the competent authority to recover the certificate of registration for foreign exchange agencies, the certificate of registration for agencies exchanging bordering countries' currency, and the permit to open and use foreign currency accounts abroad for acts violating the provisions set forth in point i, Clause 5, and point c, Clause 6 of this Article."

1. Abolish and replace some provisions of Decree No. 88/2019/NĐ-CP as follows:

a) Abolish point o, Clause 4, and point d, Clause 9, Article 23;

b) Replace the phrase "points d, o, Clause 4" with the phrase "point d, Clause 4" at point c, Clause 8, Article 23;

c) Replace the phrase "points n, o, Clause 4" with the phrase "point n, Clause 4" at Clause 2, Article 55 (which has been amended and supplemented by Clause 43, Article 1 of Decree No. 143/2021/NĐ-CP);

d) Replace the phrase "points h, n, o, Clause 4" with the phrase "points h, n, Clause 4" at Clause 5, Article 55 (which has been amended and supplemented by Clause 43, Article 1 of Decree No. 143/2021/NĐ-CP);

d) Replace the phrase "points b, n, o, Clause 4" with the phrase "points b, n, Clause 4" at Clause 6, Article 55 (which has been amended and supplemented by Clause 43, Article 1 of Decree No. 143/2021/NĐ-CP).

2. Abolish points b and d, Clause 13, Article 1 of Decree No. 143/2021/NĐ-CP.

Article 4. Effective date

1. This Decree takes effect from July 1, 2023.

2. From the date this Decree takes effect, the license for establishing foreign exchange counters issued to individuals automatically becomes invalid, and individuals must cease foreign exchange activities. Individuals who wish to continue engaging in the exchange of bordering countries' currency must establish an economic organization to be considered for permission to carry out agency foreign exchange activities according to the provisions of this Decree by the State Bank branch in border provinces.

3. This Decree abolishes Article 7 of the Regulation on Management of Bordering Countries' Currency in Border Areas and Economic Zones of Vietnam's Gateways, promulgated together with Decision No. 140/2000/QĐ-TTg dated December 8, 2000, of the Government.

Article 5. Responsibilities for Implementation

1. The State Bank of Vietnam shall be responsible for issuing guiding documents regarding the operation of agencies exchanging bordering countries' currency.

2. The Governor of the State Bank of Vietnam, Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of People's Committees of provinces and centrally governed cities, and organizations and individuals concerned shall be responsible for implementing this Decree.