Circular No. 31/2011/TT-NHNN on inspection and handling of regulatory legal documents of the State Bank of Vietnam

CIRCULAR

Regulations on the inspection and handling of normative legal documents of the State Bank of Vietnam

Pursuant to the Law on the State Bank of Vietnam No. 46/QH12 dated June 16, 2010;

BASED ON THE LAW ON ENACTING LEGAL DOCUMENTS NO. 17/2008/QH12 dated June 3, 2008;

Pursuant to Decree No. 40/2010/ND-CP dated April 12, 2010 of the Government on inspection and handling of normative legal documents;

Pursuant to the Government Decree No. 96/2008/NĐ-CP dated August 26, 2008 stipulating the functions, tasks, powers, and organizational structure of the State Bank of Vietnam,

The State Bank of Vietnam hereby provides specific regulations on the inspection and handling of normative legal documents as follows:

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular stipulates the inspection of normative legal documents and the handling of illegal normative legal documents of the State Bank of Vietnam (hereinafter referred to as the State Bank).

Article 2. Applicability

This Circular applies to agencies, organizations, and individuals related to the inspection of normative legal documents under the State management of the State Bank.

Article 3. Documents subject to inspection and handling

1. Normative legal documents issued by the Governor of the State Bank (hereinafter referred to as the Governor), including: Circulars, joint circulars.

2. Documents of the State Bank when there are requests or recommendations from agencies, organizations, individuals, mass media, or discovered by State Bank staff or units during the inspection process indicating signs of illegality, including:

a) Documents signed by the Governor containing legal norms but not issued in the form of circulars or joint circulars;

b) Documents with the format and content similar to normative legal documents, documents with a format that is not a normative legal document but containing legal norms issued by heads of State Bank units.

3. Circulars of Ministers, Heads of ministerial-level agencies; joint circulars between Ministers, Heads of ministerial-level agencies; joint circulars between Ministers, Heads of ministerial-level agencies with the President of the Supreme People's Court, the Procurator General of the Supreme People's Procuracy; resolutions of provincial People's Councils; decisions, directives of provincial People's Committees related to the State Bank's management areas concerning currency, banking activities, and foreign exchange.

Article 4. Content of document inspection and legal basis for determining illegal content in inspected documents

1. The content of document inspection shall be carried out in accordance with Article 3 of the Government Decree No. 40/2010/NĐ-CP dated April 12, 2010 on the inspection and handling of normative legal documents (hereinafter referred to as Decree No. 40/2010/NĐ-CP) and Article 3 of the Ministry of Justice Circular No. 20/2010/TT-BTP dated November 30, 2010 detailing the implementation of certain provisions of Decree No. 40/2010/NĐ-CP (hereinafter referred to as Circular No. 20/2010/TT-BTP).

2. The legal basis for determining illegal content in inspected documents shall be carried out in accordance with Article 6 of Decree No. 40/2010/NĐ-CP and Article 4 of Circular No. 20/2010/TT-BTP.

Article 5. Methods of document inspection

1. Inspection of documents sent by the agency or person authorized to issue the document, including: Self-inspection of documents issued by the Governor or joint issuance; Inspection within authority of documents issued by Ministers, Heads of ministerial-level agencies, provincial People's Councils, provincial People's Committees related to currency, banking activities, and foreign exchange.

2. Inspection of documents upon receiving requests or recommendations from agencies, organizations, individuals, and mass media reflecting signs of illegality in State Bank documents.

3. Inspection by topic, region, sector, or field.

Chapter II
SELF INSPECTION AND HANDLING OF DOCUMENTS

Article 6. Responsibility for self-inspection of documents

The Head of the Legal Department is responsible for assisting the Governor in implementing self-inspection of the following documents:

1. Documents prescribed in Clause 1, Article 3 of this Circular, immediately after issuance of the document.

2. Documents prescribed in Clause 1 and Clause 2, Article 3 of this Circular when there are requests, complaints, or notifications from agencies, organizations, individuals, mass media, or when signs of violation of laws are discovered during inspections by officers or units under the State Bank.

Article 7. Procedures and steps for self-inspection and handling of documents issued by the Governor

1. For documents prescribed in Clause 1, Article 3 of this Circular, after issuance, the Office shall be responsible for sending one (01) copy to the Legal Department for self-inspection.

2. Upon receipt of the document, the Legal Department shall conduct the inspection. Within three (03) working days from the date of receiving the letter requesting provision of materials from the Legal Department, the head of the drafting unit (hereinafter referred to as the drafting unit) shall be responsible for providing relevant files and materials related to the content of the inspected document.

3. When discovering that the document contains illegal content, the Legal Department shall promptly notify the drafting unit. The drafting unit and the Legal Department shall cooperate to determine the illegal content of the document, agree on measures to handle it, and prepare a draft document for handling. If necessary, the Legal Department or the drafting unit may organize meetings to seek opinions from experts, units under the State Bank, or other relevant agencies and organizations concerning the issues mentioned above.

4. After reaching agreement on the handling of the document, the drafting unit and the Legal Department shall jointly establish a file for inspecting the document and report the results of the self-inspection to the Governor.

The document inspection file includes: The inspected document, legal basis documents for determining the illegal content of the inspected document, the document inspection form, and other related materials (if any).

The report on the results of the self-inspection of the document shall include the following main contents: Examination and evaluation of the content and degree of illegality of the document and the handling direction; measures to remedy consequences caused by the document (if any); deadline for handling the document; determination of causes and responsibilities of officials and civil servants involved in drafting, reviewing, and approving the document.

5. In case the Legal Department and the drafting unit cannot reach an agreement on the handling of the document, the drafting unit shall submit a document to the Governor stating its viewpoint, with one (01) copy sent to the Legal Department. At the same time, the Legal Department shall establish a document inspection file and report the results of the document inspection to the Governor.

6. Based on the file of the document containing illegal content, the Governor shall examine and decide on the handling of the illegal document.

Article 8. Procedures and steps for inspection and handling of documents upon receipt of notification, request, or suggestion

1. Within two (02) working days from the date of receipt of notification, request, or suggestion from agencies, organizations, individuals, or mass media regarding documents suspected of being illegal, the Office, the Inspection and Supervision Agency, and other units under the State Bank shall report to the Governor and simultaneously transfer relevant materials to the Legal Department for inspection.

In case officers or units under the State Bank discover signs of illegality of a document during inspection, they shall be responsible for notifying and transferring relevant materials to the Legal Department.

2. Within two (02) working days from the date of receipt of the document and materials provided by the units, the Legal Department shall issue a notice for the drafting unit to conduct self-inspection of the document, while the Legal Department conducts the inspection.

3. Within five (05) working days from the date of receipt of the notice from the Legal Department, the drafting unit must conduct self-inspection of the document and send the results of the self-inspection to the Legal Department.

4. After obtaining the inspection results, the drafting unit and the Legal Department shall cooperate to determine the illegal content of the document and the handling measures. The process of agreeing on inspection contents and reporting to the Governor shall be carried out according to the provisions of Clause 3, Clause 4, and Clause 5 of Article 7 of this Circular.

5. After the Governor concludes on the handling of the document, the drafting unit shall be responsible for submitting the Governor's signature on the State Bank's document announcing the results of the self-inspection and handling of the document to the agencies, organizations, individuals, and mass media that made the notification, request, or suggestion. The announcement document of the State Bank shall be sent one (01) copy to the Legal Department for monitoring.

6. The inspection period for documents upon receipt of notification from the competent authority to inspect the document is thirty (30) days from the date of receipt of the notification.

Article 9. Procedures and processes for inspecting and handling consolidated documents jointly issued by the Governor of the State Bank

The procedures and processes for inspecting consolidated documents jointly issued by the Governor of the State Bank shall be carried out in accordance with the provisions of Article 7 of this Circular, simultaneously coordinating with the issuing agency to review the entire content of the document. Determination of illegal content in the document and measures for handling shall be conducted based on coordination and consensus with the issuing agency.

Article 10. Inspection of documents in cases involving state secrets

The inspection of documents containing content related to state secrets shall be carried out in accordance with the provisions of this Circular and the laws on protecting state secrets.

Chapter III
INSPECTION AND HANDLING OF DOCUMENTS IN ACCORDANCE WITH AUTHORITY

Article 11. Authority to inspect documents

1. The Governor has the authority to inspect the documents specified in Clause 3, Article 3 of this Circular.

2. The Head of the Legal Department shall coordinate with the Governor to organize the implementation of the inspection of the documents specified in Clause 3, Article 3 of this Circular.

Article 12. Procedures and processes for inspecting documents in accordance with authority

1. The Legal Department shall maintain a "Document Receipt Register" to monitor the sending and receipt of documents sent for inspection according to authority.

2. The person assigned to inspect the document shall conduct the inspection, focusing on regulations related to the State Bank's management areas concerning currency, banking activities, and foreign exchange.

3. The person assigned to inspect the document must sign and clearly record the date of inspection at the top corner of the inspected document (to confirm the inspection and the inspection date) and prepare a report along with a list of documents assigned for inspection.

4. When discovering signs of illegality in the inspected document, the person assigned to inspect the document must report the inspection results and propose handling through the "Document Inspection Form". Depending on the degree and nature of the illegal content in the inspected document, its consequences for society, and the nature and degree of fault of the issuing agency or individual, the inspector proposes:

a) Handling the document with illegal content according to the forms prescribed in Article 15, or amending the document according to the provisions of Article 16 of this Circular.

b) Considering and handling responsibility for the agency or individual who issued the illegal document according to the laws on disciplinary responsibility and criminal liability. The person assigned to inspect the document also proposes considering and handling responsibility for officials and civil servants involved in drafting, reviewing, examining, and approving the illegal document if they are at fault.

5. After preparing the inspection form, the person assigned to inspect the document must establish a "File on Documents with Illegal Content" and submit it to the Legal Department leadership.

6. The Legal Department leadership reports and recommends the Governor to sign a notification for the issuing agency or individual to self-inspect, handle, and report the results of self-inspection and handling according to the law.

The notification document includes the following main contents: Name of the inspected document; name and content of the legal basis document for determining the illegal content of the inspected document; opinion on the illegal content of the inspected document; request for the issuing agency or individual to self-inspect, handle, and report the results of self-inspection and handling according to the law.

In cases where conflicting, overlapping, or outdated content is discovered during inspection, the notification document shall also recommend that the issuing agency or individual study, review, and handle the outdated content according to the law.

Article 13. Handling of illegal documents through inspection within the authority

Upon expiration of the time limit specified in Clause 1, Article 23 of Decree No. 40/2010/NĐ-CP, if the agency or person who issued the document with signs of illegality does not report on the results of self-inspection and handling of the document, or if the Governor disagrees with the handling result, then within 15 (fifteen) days, the Governor shall report to the superior authority for examination and handling as follows:

1. Propose the Minister, Head of a ministerial-level agency, or the Prime Minister to suspend the implementation, revoke, or annul partially or entirely the illegal document issued by the Ministers or Heads of ministerial-level agencies related to the sector or field under the State Bank's management.

2. Propose the Prime Minister to suspend the implementation of the resolution of the People's Council at provincial level that is contrary to the Constitution, laws, resolutions of the National Assembly, ordinances, resolutions of the Standing Committee of the National Assembly, decrees of the President, decisions of the Chairman of the State, or documents issued by the Government or the Prime Minister, or contrary to the documents of the State Bank regarding the sector or field under the State Bank's management.

3. Suspend the implementation and propose the Prime Minister to revoke or annul partially or entirely the decision or directive of the People's Committee at provincial level that is contrary to the documents of the sector or field under the State Bank's management.

The reporting dossier includes: Report of the State Bank; the document subject to inspection; legal basis for inspection; document inspection form; opinions of relevant agencies (if any); notification letters from the inspecting agency; documents explaining and reporting the results of self-inspection and handling by the agency issuing the inspected document (if any), and other related documents.

Article 14. Inspection of documents by topic, region, or sector

The inspection of documents by topic, region, or sector is carried out according to the provisions of Article 15 of Decree No. 40/2010/NĐ-CP and Article 10 of Circular No. 20/2010/TT-BTP.

Chapter IV
FORMS OF HANDLING ILLEGAL DOCUMENTS

Article 15. Forms of handling illegal documents

1. Suspension of implementation of part or all of the content of the document:

The form of suspending the implementation of part or all of the content of the document is applied in cases where such illegal content, if not promptly amended, supplemented, revoked, or annulled, may cause serious consequences, affecting the interests of the State, the rights and legitimate interests of organizations and individuals.

2. Revocation of part or all of the content of the document:

a) The form of revoking part or all of the content of the document is applied in cases where the document was issued without proper authority in terms of form, content, or it is inconsistent with the provisions of the law from the date of issuance.

b) For documents under Clause 2, Article 3 of this Circular:

Entirely revoke the document in cases where the document has the form and content similar to normative legal documents issued by the Heads of units under the State Bank;

Revoke the legal norms in the document issued by the Governor but not in accordance with the prescribed document form under the law; the legal norms in the document issued by the Heads of units under the State Bank.

3. Annulment of part or all of the content of the document:

The form of partially or entirely annulling the content of the document is applied in cases where part or all of the document serving as the basis for issuing the inspected document has been replaced by another document of a competent state agency, leading to the content of the document no longer being consistent with current laws or changes in economic and social conditions.

Article 16. Correction of Documents

During the inspection process, when discovering that a document only contains errors in the cited legal basis, format, and presentation technique, but the content of the document is consistent with legal provisions and ensures constitutional and legal validity, the drafting unit shall be responsible for drafting a correction document to submit to the Governor.

Article 17. Examination of Liability for Agencies and Individuals Issuing Illegal Documents

1. The examination and handling of liability for agencies and individuals issuing illegal documents shall be carried out in accordance with the provisions of Article 34 of Decree No. 40/2010/NĐ-CP.

2. The results of handling illegal documents must be publicly announced, reported on mass media, and published in the Official Gazette and on the electronic information website of the State Bank no later than three (03) working days from the date of the decision on handling.

Chapter V
CONDITIONS TO ENSURE FOR THE INSPECTION AND HANDLING OF DOCUMENTS

Article 18. Staffing and Budget for Document Inspection

1. Based on functions, tasks, workload, nature, and specific characteristics of the work, the Director of the Legal Department shall advise and submit to the Governor for allocation of staffing to ensure effective implementation of the assigned document inspection tasks.

2. The State Bank shall allocate the budget to ensure the document inspection work according to the guidelines of the Ministry of Finance and the Ministry of Justice. Annually, based on current regulations regarding the budget for ensuring document inspection work, the Legal Department shall prepare a budget estimate for document inspection work to be sent to the Administrative Affairs Bureau for inclusion in the annual operating budget of the State Bank. Management, expenditure, and settlement of the budget shall be carried out in accordance with the current financial system.

Article 19. Organization and Management of the Team of Inspectors Collaborating with the State Bank for Document Inspection

1. Document inspectors collaborating with the State Bank are experienced experts in document construction and inspection in monetary, banking, and foreign exchange activities within State Bank units, credit organizations, judicial bodies, central and local state management agencies, legal researchers and teachers at legal research and training institutions, and other relevant agencies and organizations appropriate to the field of inspected documents.

2. The Legal Department, authorized by the Governor, shall enter into cooperation contracts with the inspectors and shall be responsible to the Governor for organizing and managing the team of document inspectors.

3. Inspectors operate under a quota or contract system, subject to business guidance, task assignment by the Legal Department, and are accountable to the Legal Department for the progress and quality of the assigned work.

4. Inspectors are entitled to remuneration based on the number of documents they review, travel expenses when participating in specialized, regional, sectoral, and field inspection teams, and enjoy other benefits according to the guidelines of the Ministry of Finance and the Ministry of Justice.

Article 20. Construction and Management of Information Database for Document Inspection and Handling

The construction of the information database for document inspection and handling shall be carried out in accordance with point d Clause 1 Article 35 of Decree No. 40/2010/NĐ-CP and Article 15 of Circular No. 20/2010/TT-BTP.

IN DOCUMENT INSPECTION WORK

Chapter VI
RESPONSIBILITIES OF UNITS UNDER THE STATE BANK OF VIETNAM

IN THE DOCUMENT REVIEW PROCESS

Article 21. General responsibilities of units in checking and handling documents

1. Self-inspect documents drafted by their own unit, report periodically every six months and annually on self-inspection and document handling activities of their unit to the Legal Department before May 31 and before November 10 each year.

2. Coordinate with the Legal Department in checking and handling documents of the State Bank generally and those drafted, submitted for issuance by their own unit, related documents when requested, to ensure timely and lawful document inspection.

3. Regularly review documents issued by the Governor within the assigned scope, promptly identify contents that are no longer suitable for socio-economic development, management requirements, or when higher-level agencies issue new documents to propose amendments, supplements, replacements, or revocations.

4. When discovering documents issued by the State Bank or competent authorities related to the State Bank's management areas containing unlawful contents, contradictions, overlaps, or unsuitability for socio-economic development, management requirements, or upon receiving notifications, requests, suggestions, complaints, units, officers, and civil servants under the State Bank shall promptly reflect to the Governor, the Head of the Legal Department, and the Head of the drafting unit for inspection and handling.

Article 22. Specific responsibilities of units in assisting the Governor in checking and handling documents

1. Legal Affairs Department

a) Serve as the main unit assisting the Governor in checking and handling documents according to laws on document inspection and handling.

b) Organize and lead the construction and management of database systems serving document inspection and handling work.

c) Bear responsibility before the Governor for constructing and managing the team of document inspectors.

d) Advise the Governor and coordinate with relevant units to organize training for the team of document inspection officers.

đ) Report periodically every six months and annually to the Ministry of Justice on the State Bank’s document inspection and handling work.

e) Annually, coordinate with the Administrative Bureau and the Finance-Accounting Department to prepare and settle the budget for document inspection work according to laws on budget management and use for document inspection work.

g) Coordinate with the Ministry of Justice and other units in organizing document inspection and handling in monetary, banking, and foreign exchange activities.

h) Perform other tasks as prescribed by laws on document inspection and handling.

2. Office

a) Serve as the main unit collecting documents from sources as stipulated in Articles 7 and 8 of this Circular, send them to the Legal Department for document inspection.

b) Coordinate with the Legal Department in building database systems serving document inspection and handling work.

c) Coordinate with the Legal Department in organizing meetings to implement document inspection work.

d) Coordinate with the Legal Department in announcing results of unlawful document handling.

3. The Banking Information Technology Department

Coordinate with the Legal Department in building and managing database systems serving document inspection and handling work.

4. The Finance-Accounting Department and the Administrative Bureau

Coordinate with the Legal Department in reviewing budgets, allocating funds, and settling the budget for document inspection work.

Chapter VII
IMPLEMENTING PROVISIONS

Article 23. Effectiveness of Implementation

1. This Circular takes effect from November 13, 2011. Decision No. 38/2006/QĐ-NHNN of the Governor of the State Bank dated August 1, 2006, promulgating the regulation on document inspection and handling of the State Bank, ceases to be effective from the date this Circular takes effect.

2. Other contents regarding document inspection and handling not specified in this Circular shall be implemented according to the provisions of Decree No. 40/2010/NĐ-CP and Circular No. 20/2010/TT-BTP.

Article 24. Responsibility for Implementation

The Director of the Office, the Head of the Legal Department, and the Heads of units under the State Bank are responsible for implementing this Circular./.