Thông tư 101/2013/TT-BTC

CIRCULAR

PROVIDING GUIDANCE ON THE FUND FOR PROTECTION OF POLICYHOLDERS

Pursuant to the Law on Insurance Business No. 24/2000/QH10 dated December 09, 2000;

Pursuant to the Law on Amendments to the Law on Insurance Business No. 61/2010/QH12 dated November 24,

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

Pursuant to the Government's Decree No. 123/2011/NĐ-CP dated December 28, 2011,elaborating the implementation of the Law on amendments to the Law on Insurance Business and amendments to the Government's Decree No. 45/2007/NĐ-CP dated March 27th 2007, detailing the implementation of a number of articles of the Law on Insurance Business;

At the request of the Director of the Department of Insurance Management and Supervision;

The Minister of Finance issues a Circular providing guidance on the management and use of the Fund for protection of policyholders.

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular provides guidance on the contribution to, the use, management, finance, and bookkeeping of the Fund for protection of policyholders (hereinafter referred to as the Fund) and responsibilities of relevant units according to the Government's Decree No. 123/2011/NĐ-CP dated December 28, 2011,elaborating the implementation of the Law on amendments to the Law on Insurance Business and amendments to the Government's Decree No. 45/2007/NĐ-CP dated March 27th 2007, detailing the implementation of a number of articles of the Law on Insurance Business.

Article 2. Subjects of application

This Circular is applicable to:

1. Policyholders.

2. Insurers, including: non-life insurance companies, health insurance companies (hereinafter referred to as non-life insurance companies), and life insurance companies.

3. Branches of foreign non-life insurers (hereinafter referred to as branches)

4. Association of Vietnamese Insurers.

5. Organizations and individuals concerned.

Article 3. Fund management principles

1. The Fund for protection of policyholders is managed by Association of Vietnamese Insurers, used, managed, and monitored to serve life insurance and non-life insurance;

2. The Fund for protection of policyholders has accounts at commercial bank and may use the seal of Association of Vietnamese Insurers;

3. The Fund for protection of policyholders must be managed and used properly and in accordance with legislation on insurance, relevant legislative documents, and this Circular.

Chapter 2.

SPECIFIC PROVISIONS

SECTION 1. CONTRIBUTION TO THE FUND

Article 4. Contribution amount

1. The amount of money contributed to the Fund must not exceed 0.3% of the total revenue from insurance premium of original insurance contracts in the previous fiscal year of the insurer or the branch. The contribution amount shall be announced in writing by the Ministry of Finance before April 30 every year.

2. Contribution to the Fund shall be made until its scale reaches 5% of total assets of the non-life insurance company or the branch, or until the scale of the Fund of the life insurance company reaches 3% of its total assets in the previous year.

Article 5. Deadlines for making contribution to the Fund

1. Before the 30^th of June every year, insurers and branches shall remit 50% of the contribution to the Fund of the previous fiscal year.

2. Before the 31^st of December every year, insurers and branches shall remit the remaining 50% of the contribution to the Fund of the previous fiscal year.

SECTION 2. USING THE FUND

Article 6. Rules for drawing on the Fund

1. The Fund shall be used to pay insurance money, surrender values, indemnity, and insurance premium refunds under insurance contracts when the insurer or branch is insolvent, or the insurer is bankrupt.

2. The Fund shall only pay for the original insurance contracts and pay a lump sum for each claim for insurance money, surrender values, indemnity, and insurance premium refund.

3. When the insurance contract is transfer from an insolvent insurer or branch or a bankrupt insurer to another insurer or branch (the transferee), the amount paid by the Fund, within the limits in Article 7 of this Circular, shall be directly remitted to the transferee.

4. When an insurer or branch is insolvent, the Fund shall only pay for the difference between the contractual amount payable and the amount that the policyholders received from the insurer or branch.

5. When an insurer is bankrupt, the Fund shall only pay for the difference between the contractual amount payable and the amount that received by the policyholders in accordance with legislation on bankruptcy.

6. Where the policyholder owes a debt to the insurer or branch according to the insurance contract and law, the Fund shall only pay for the difference between the amount received by the policyholder and the debt the policyholder owes to the insurer or branch.

Article 7. Limits on payment

1. For life insurance contracts, the Fund shall pay for up to 90% of the liability of the life insurance companies, but the amount must not exceed 200 million VND/policyholder/contract. The liability of the life insurance company:

a) If the insured event has occurred but benefits are not provided, liability of the insurance company is the contractual benefits>

b) For saving contracts with effective surrender values, liability of the insurer is proportional to the refundable value of the contract at the time the insurance company is declared insolvent or bankrupt by competent authorities;

b) For saving contracts with effective refundable values, liability of the insurer is proportional to the surrender value of the contract at the time the insurance company is declared insolvent or bankrupt by competent authorities;

d) For effective joint investment contracts with, liability of the insurer is proportional to client’s account value at the time the insurance enterprise is declared insolvent or bankrupt by competent authorities;

dd) Where a life insurance contract covers multiple policyholders, the maximum payment of the Fund in Point a, Point b, Point c, and Point d Clause 1 of this Article is applicable to individual policyholders, unless otherwise agreed by the policyholders and the insurer in the insurance contract.

2. For health insurance contracts:

a) The fund shall pay up to 90% of the liability of the insurer or branch, but the amount shall not exceed 200 million VND/policyholder/contract.

b) Where a health insurance contract covers multiple policyholders, the maximum payment of the Fund in Point a Clause 2 of this Article is applicable to individual policyholders, unless otherwise agreed by the policyholders and the insurer/branch in the insurance contract.

3. For life insurance contracts:

a) For compulsory vehicle insurance contracts, the Fund shall cover the whole liability of the insurer or branch within the insurance scope in accordance with current law;

b) For contracts for other insurance services, the Fund shall pay up to 80% of the liability of the insurer or branch, but the amount shall not exceed 100 million VND/ /contract.

Article 8. Procedure for using the Fund

1. The insurer or branch shall send a dossier to Association of Vietnamese Insurers, comprising:

a) A written application for the use of the Fund;

b) The Decision made by the Ministry of Finance on ending the measures for restoring the solvency (if the insurer or branch is insolvent) or a written attestation to the completion of asset division (if the insurer is bankrupt);

c) A list of policyholder according to the form in Appendix 1 to this Circular and the claims for insurance money, surrender value, indemnity, and insurance premium refunds according to the insurance contracts which the insurer or branch fails to pay; the amounts payable to compensate for reinsurance transfer; claims on the third persons at the time the Ministry of Finance makes a decision to stop the measures for restoring the solvency (if the insurer or branch is insolvent) or when the asset division is done (if the insurer is bankrupt).

2. Within 30 days from the day on which the sufficient dossier is received, the Fund Management Council and Fund Administration Board shall perform the tasks below:

a) The Fund Administration Board shall check the claims for insurance money, indemnity, and insurance premium refunds received by the insurer or branch to determine the total payment;

b) The Fund Administration Board shall formulate and submit the plan for paying insurance money, surrender values, indemnity, and insurance premium refunds to the Fund Management Council. The Fund Management Council shall consider approving it and send a report to the Ministry of Finance before carrying out.

c) The Fund Administration Board shall announce the payment for policyholders on daily newspapers (at least on one central newspaper or local newspaper where the head office, branches and offices of the insurer/branch are situated) in 3 issues, and post the list of the beneficiaries at the head office, branches, and offices of the insurer/branches, on the websites of Association of Vietnamese Insurers, the insurer/branch. The announcement must specify the location, time, and method of payment;

d) The Fund Administration Board shall make payment using the method approved by the Fund Management Council. Where a commercial bank, which is established and legally operated in Vietnam, is authorized to make payment, the Fund Management Council shall sign an authorization contract with the bank in accordance with law. The authorization contract must specify the responsibility of the bank to use the amount sent by the Fund Management Council to make payment;

dd) The Fund Management Council shall report the payment to policyholders to the Ministry of Finance.

3. The beneficiaries of insurance money, surrender values, indemnity, and insurance premium refund must meet the conditions below:

a) Their names are in the list of beneficiaries enclosed with the dossier made by the Fund Management Council;

b) They have the papers proving their lawful rights to the payment, including: the ID card, the insurance contract, the Letter of attorney (if any).

4. The statute of limitations for filing lawsuits against the payment made by the Fund is 03 years from the day on which the decision on payment is made. The payment procedure shall comply with law.

Section 3. MANAGEMENT AND ADMINISTRATION OF THE FUND

Article 9. Organization, management and administration of the Fund

1. The administration apparatus of the Fund consists of:

a) The Fund Management Council;

c) The Fund Administration Board;

c) The Fund Control Board.

2. The administration apparatus of the Fund has the tasks, powers, and working mechanism defined in Article 10, Article 11, and Article 12 of this Circular.

Article 10. The Fund Management Council;

1. The Fund Management Council is established by the Ministry of Finance and consists of:

a) The President of the Fund Management Council is the President of the Association of Vietnamese Insurers;

b) Members of the Fund Management Council:

- A senior representative of the Department of Insurance Management and Supervision - The Ministry of Finance;

- Senior representatives of 03 life insurance companies and 03 non-life insurance companies and branches that have biggest market shares in Vietnam when the decision to establish the Fund Management Council is made.

2. Every member of the Fund Management Council has a 03-year tenure and may be re-designated.

3. Tasks and powers of the Fund Management Council:

a) Take responsibility before the law and the Minister of Finance for the management, administration, and use of the Fund;

b) Establish the Fund Administration Board, Fund Control Board; designate and dismiss members of the Fund Administration Board and the Fund Control Board with the approval of the Ministry of Finance;

c) Promulgate a Working Regulation applicable to the Fund Management Council, the Fund Administration Board, and the Fund Control Board with the approval of the Ministry of Finance;

d) Promulgate a Regulation on the management and use of the Fund, a Regulation on the Fund investment, and other relevant regulations with the approval of the Ministry of Finance;

d) Approve the plan for investing idle capital, receipt and expenditure estimation, financial statements, operation reports, and working plans of the Fund;

e) Manage the receipt sources of the Fund, supervise and urge the remittance to the Fund in accordance with the Law on Insurance Business and its guiding documents;

g) Perform the tasks defined in Point b, Point d, and Point dd Clause 2 Article 8 of this Circular;

h) Make statistical reports in accordance with Clause 1 Article 19 of this Circular;

i) Carry out periodic inspections or unscheduled inspections of the management and use of the Fund;

k) Facilitate the inspection and supervision carried out by the Ministry of Finance.

4. Working mechanism of the Fund Management Council:

a) The Fund Management Council shall adhere to the Working Regulation mentioned in Point c Clause 3 of this Article;

b) For the common issues on insurers and branches, the Fund Management Council shall consider making decisions within the competence in Clause 3 of this Article.

c) For the issues related to life insurance companies, the President of the Fund Management Council, the representative of the Department of Insurance Management and Supervision - the Ministry of Finance, and members of the Fund Management Council that are senior representatives of the 03 life insurance companies mentioned in Point b Clause 1 of this Article shall consider making decisions within the competence in Clause 3 of this Article.

d) For the issues related to non-life insurance companies/branches, the President of the Fund Management Council, the representative of the Department of Insurance Management and Supervision - the Ministry of Finance, and members of the Fund Management Council that are senior representatives of the 03 non-life insurance companies/branches mentioned in Point b Clause 1 of this Article shall consider making decisions within the competence in Clause 3 of this Article.

Article 11. The Fund Administration Board

1. Composition of the Fund Administration Board:

a) The Chief of the Fund Administration Board is the Deputy President of the Association of Vietnamese Insurers;

b) The Deputy of the Fund Administration Board is the Secretary-general of the Association of Vietnamese Insurers;

c) Members of the Fund Administration Board are representatives of 03 life insurance companies and 03 non-life insurance companies and branches that have of which the market shares in Vietnam are ranked 4^th or 6^th when the Fund Administration Board is established.

2. Every member of the Fund Administration Board has a 03-year tenure and may be re-designated.

3. Tasks and powers of the Fund Management Council:

a) Take responsibility before the law and the Minister of Finance for the management, administration, and use, and bookkeeping of the Fund in accordance with law, Resolutions and Decisions of the Fund Management Council;

b) Provide sufficient documents at the request of the Fund Management Council and the Fund Control Board; prepare documents for meetings of the Fund Management Council;

c) Develop methods for managing and using the Fund, the plan for investing idle capital, making receipt and expenditure estimates, financial statements, operation reports, and working plans of the Fund, and submit them to the Fund Management Council for approval;

d) Collect documents from insurers and branches to exercise the right to claim from the third person and collect compensation for reinsurance transfer in accordance with law;

dd) Performing the financing and accounting tasks of the Fund in accordance with law;

e) Converge the receipt sources of the Fund, urge insurers and branches to remit money to the Fund in accordance with the Law on Insurance Business and relevant guiding documents;

g) Perform the tasks defined in Point a, Point b, Point c, and Point d Clause 2 Article 8 of this Circular;

h) Make use of the personnel of Association of Vietnamese Insurers during the operation;

i) Facilitate the inspection and supervision carried out by the Fund Management Council, the Fund Control Board, and competent authorities;

k) Perform other tasks assigned by the Fund Management Council.

4. Working mechanism of the Fund Administration Board:

a) The Fund Administration Board shall adhere to the Working Regulation mentioned in Point c Clause 3 Article 10 of this Circular;

b) For the common issues on life insurance companies, non-life insurance companies and branches, the Fund Administration Board shall consider making decisions within the competence in Clause 3 of this Article.

c) For the issues related to life insurance companies, the Chief, the Deputy, and members of the Fund Administration Board that are representatives of the 03 life insurance companies mentioned in Point c Clause 1 of this Article shall consider making decisions within the competence in Clause 3 of this Article.

d) For the issues related to non-life insurance companies/braches, the Chief, the Deputy, and members of the Fund Administration Board that are representatives of the 03 non-life insurance companies/branches mentioned in Point c Clause 1 of this Article shall consider making decisions within the competence in Clause 3 of this Article.

Article 12. The Fund Control Board.

1. Composition of the Fund Control Board:

a) The Chief of the Fund Control Board is a representative of an insurer/branch, voted for by insurers and branches, and designated by the Fund Management Council;

b) Members of the Fund Administration Board are representatives of 03 life insurance companies and 03 non-life insurance companies and branches that have of which the market shares in Vietnam are ranked 7^th or 9^th when the Fund Control Board is established.

2. Every member of the Fund Control Board has a 03-year tenure and may be re-designated.

3. Tasks and powers of the Fund Management Council:

a) Take responsibility before the Fund Management Council for controlling the whole operation of the Fund;

b) Take responsibility before the law and the Minister of Finance for the management, administration, and use, and bookkeeping of the Fund in accordance with law, Resolutions and Decisions of the Fund Management Council;

c) Aggregate assessments and recommendations on the finance of the Fund, and send them to the Fund Management Council every quarter and every year;

d) Inspect and supervise the management and use of the Fund at the request of the Fund Management Council;

dd) Perform other tasks assigned by the Fund Management Council.

4. Working mechanism of the Fund Control Board:

a) The Fund Control Board shall adhere to the Working Regulation mentioned in Point c Clause 3 Article 10 of this Circular;

b) For the common issues on insurers and branches, the Fund Control Board shall consider making decisions within the competence in Clause 3 of this Article.

c) For the issues related to life insurance companies, the Chief and members of the Fund Control Board that are representatives of the 03 life insurance companies mentioned in Point c Clause 1 of this Article shall consider making decisions within the competence in Clause 3 of this Article.

d) For the issues related to non-life insurance companies/branches, the Chief and members of the Fund Control Board that are representatives of the 03 non-life insurance companies/branches mentioned in Point b Clause 1 of this Article shall consider making decisions within the competence in Clause 3 of this Article.

Article 13. Procedure for giving approval of the Ministry of Finance

1. The Fund Management Council must obtain a written approval from the Ministry of Finance before performing the tasks below:

a) Establish the Fund Administration Board, Fund Control Board; designate and dismiss members of the Fund Administration Board and the Fund Control Board;

b) Promulgate the Working Regulation applicable to the Fund Management Council, the Fund Administration Board and the Fund Control Board; the Regulation on the Fund investment; the Regulation on the management and use of the Fund, a Regulation on the Fund investment, and other regulations on relevant issues;

c) Approve the investment trust plan according to Clause 3 Article 16 of this Circular.

2. The application for the approval:

The Fund Management Council shall submit an application for approval to the Ministry of Finance, comprising the documents below:

a) A written request signed by the President of the Fund Management Council;

b) Profiles on participants in the Fund Administration Board and the Fund Control Board (in the cases mentioned in Point a Clause 1 of this Article), including:

- Written decisions to assign those persons to participate in the Fund Administration Board and the Fund Control Board made by their employers;

- Their résumés certified by their employers.

c) The draft of the Regulation that need approval (in the cases mentioned in Point b Clause 1 of this Article);

d) The intended method of investment trust, including the analyses, assessments, and documents proving the capacity of the entrusted organization; responsibilities of the parties; the structure of investment portfolio and estimated profit (for the cases in Point c Clause 1 of this Article).

3. Within 30 days from the day on which the sufficient application is received, the Ministry of Finance shall issue a written approval or rejection. If a rejection is given, the Ministry of Finance must provide explanation.

SECTION 4. FINANCE AND BOOKKEEPING

Article 14. Receipts of the Fund

Receipts of the Fund include:

1. Annual contributions of insurers and branches.

2. Collected compensations for reinsurance transfer.

3. Claims on the third persons.

4. Collections from investment of the Fund.

5. Collections from liquidating fixed assets.

6. Other receipts defined by law.

Article 15. Expenditures of the Fund

1. Expenditures of the Fund include:

a) Expenditures on paying insurance money, surrender values, indemnity, insurance premium refunds according to insurance contracts when insurers/branches are insolvent or insurers are bankrupt;

b) Expenditure on investments from idle money of the Fund as prescribed;

c) Expenditures on the Fund management, including allowances, expenditures on purchasing, repairing assets, services, and other expenditures related to the management and use of the Fund as prescribed. The expenditure must not exceed 0.5% of the total annual contribution.

2. The expenditures in Clause 1 of this Article must adhere to the limits and regime in the Regulation on the management and use of the Fund.

Article 16. Making investment of idle money of the Fund

1. Investment of idle money of the Fund must be safe, efficient, and ensure the preservation of capital.

2. Investment of idle money of the Fund shall only be made in Vietnam to:

a) Buy Government bonds without limitation;

b) Buy the corporate bonds guaranteed by the Government, provided more than 5% of the idle money of the Fund is used to buy corporate bonds of an enterprise, and no more than 10% of the total idle money of the Fund is used to buy corporate bonds;

c) Deposit money at the commercial banks, which are established and lawfully operated in Vietnam, provided no more than 10% of the idle money of the Fund is deposited at a bank, and no more than 50% of the total idle money of the Fund is deposited. The commercial banks where the Fund deposits money must have health finance, effective operation, and high liquidity according to the Regulation on Fund investment.

3. The Fund Management Council and the Fund Administration Board shall directly make investment or authorize an organization licensed to make financial investment and provide financial safety assurance, which have more than 05 years’ experience, to make investment.

Article 17. Financial statements of the Fund

1. The fiscal year of the Fund begins on the 01^st of January and ends on the 31^st of December of the calendar year.

2. Annual financial statements of the Fund must be audited by an independent audit organization.

Article 18. Bookkeeping

1. The Fund must do bookkeeping in accordance with legislation on accounting. Life insurance and non-life insurance must be separately monitored.

2. Life insurance companies shall make contributions to the Fund specialized in life insurance; non-life insurance companies and branches shall make contributions to the Fund specialized in non-life insurance.

3. The rules for distributing assets, receipts and expenditures between the fields of life insurance and non-life insurance:

a) The assets, receipts and expenditures on separate fields shall be separately recorded;

b) The assets, receipts and expenditures serving the common operation shall be distributed proportionally to the contributions to the field of life insurance and non-life insurance.

Article 19. Statistical reports

1. The Fund Management Council is obliged to:

a) Submit the annual financial statements, certified by an independent audit organization according to Appendix 3 to this Circular, to the Ministry of Finance before the 31^st of March of the next fiscal year;

b) Report the investment to the Ministry of Finance, using the form in Appendix 2 to this Circular, within 30 days from the end of the quarter.

2. Within 90 days from the end of the fiscal year, insurers and branches shall send the Association of Vietnamese Insurers the audited financial statements, reports on collected insurance premium in the fiscal year, using the form in Appendix 4 (applicable to non-life insurance companies and branches) or the form in Appendix 5 (applicable to life insurance companies).

Chapter 3.

IMPLEMENTATION

Article 20. Implementation

1. This Circular takes effect on September 15, 2013.

2. Difficulties that arise during the implementation should be reported to the Ministry of Finance for consideration and settlements./.

Appendix 1

(Issued together with the Circular No. 101/2013/TT-BTC of the Ministry of Finance dated July 30, 2013)

LIST OF DOCUMENTS CONCERNING THE REQUEST FOR INSURANCE PREMIUM AND SURRENDER VALUE PAYMENT; INSURANCE COVERAGE CLAIM; PREMIUM REFUND

Name of the insurer/ foreign branch: ………………………………………………………

1. Life insurance sector:

1.1. With respect to the insurer that has become insolvent:

1.2. With respect to the insurer that has been declared bankrupt:

2.1. With respect to the insurer or foreign branch that has become insolvent:

2.2. With respect to the insurer that has declared bankrupt:

We shall undertake that those stated information are true.

Appendix 2

 (Issued together with the Circular No. 101/2013/TT-BTC of the Ministry of Finance dated July 30, 2013)

REPORT ON INVESTMENT ACTIVITIES OF THE FUND FOR PROTECTION OF POLICYHOLDERS

- Reporting period (quarter):............................from...............................to................................

Non-life insurance sector:

II. Non-life insurance sector:

III. Aggregate report on investment outcomes in the non-life and life insurance sector:

We shall undertake that those stated information are true.

Appendix 3

 (Issued together with the Circular No. 101/2013/TT-BTC of the Ministry of Finance dated July 30, 2013)

FINANCIAL STATEMENT OF THE FUND FOR PROTECTION OF POLICYHOLDERS

Reporting year:...................

I. BALANCE SHEET

UoM: million VND

II. OPERATIONAL OUTCOME

UoM: million VND

We shall undertake that those stated information are true.

Appendix 4

 (Issued together with the Circular No. 101/2013/TT-BTC of the Ministry of Finance dated July 30, 2013)

PREMIUM INCOME STATEMENT

- Name of the insurer/ foreign branch: ………………………………………………………………………………………

- Reporting period (quarter):...........................from...............................to..........................

UoM: million VND

We shall undertake that those stated information are true.

Note:

Item (9) is the difference between item (3) and aggregation of items (4), (5), (6), (7) and (8).

Appendix 5

 (Issued together with the Circular No. 101/2013/TT-BTC of the Ministry of Finance dated July 30, 2013)

LIFE INSURANCE PREMIUM INCOME STATEMENT

- Name of the insurer: …………………………………………………………………………

- Reporting quarter (year):............................from...............................to.........................

UoM: million VND

We shall undertake that those stated information are true.

Note: Sections I, II, III and IV are consistent with lines of insurance that insurers are permitted, and are arranged into specific types of insurance products, including personal insurance, group insurance and below or above-5-year term insurance products.

1 In accordance with point a, b, c or d clause 1 Article 7 of the Circular No. 101/2013/TT-BTC

2 In accordance with point a, b, c or d clause 1 Article 7 of the Circular No. 101/2013/TT-BTC

3 In accordance with clause 2 or clause 3 Article 7 of the Circular No. 101/2013/TT-BTC

4 In accordance with clause 2 or clause 3 Article 7 of the Circular No. 101/2013/TT-BTC