THE
GOVERNMENT
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence Freedom Happiness
|
No.
138/2007/ND-CP
|
Hanoi,
August 28, 2007
|
DECREE
ON THE ORGANIZATION AND OPERATION OF LOCAL DEVELOPMENT
INVESTMENT FUNDS
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the November 26, 2003 Law on Organization of Peoples Councils and
Peoples Committees;
Pursuant to the December 16, 2002 State Budget Law;
Pursuant to the November 29, 2005 Investment Law;
Pursuant to the December 12, 1997 Law on Credit Institutions and the May 16,
2004 Law Amending and Supplementing a Number of Articles of the Law on Credit
Institutions;
At the proposal of the Minister of Finance,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.
Governing scope
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Article 2.
Interpretation of terms
In this Decree, the terms below
are construed as follows:
1. Operating capital means the
total of owner capital and raised capital of a local Development Investment
Fund at a given point of time.
2. Direct investment in projects
means investment by a local Development Investment Fund of its operating
capital in projects, whereby the Fund may directly manage the projects in
accordance with the law on investment and construction management.
3. Syndicated lending means
joint provision by a local Development Investment Fund and other organizations
of loans for investment in a project, whereby the Fund or another organization
acts as the major coordinating body.
Article 3.
Legal status of local Development Investment Funds
1. A local Development
Investment Fund is a locally based state financial institution functioning to
make financial and development investments. A local Development Investment Fund
has the legal person status, charter capital, its own balance sheet and seal.
It may open accounts at the State Treasury and commercial banks lawfully
operating in Vietnam.
2. The name of a local
Development Investment Fund is Development Investment Fund combined with the
name of a province or centrally run city.
Article 4.
Scope of activities of local Development Investment Funds
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1. To raise medium- and
long-term capital from domestic and foreign organizations and individuals in
accordance with law.
2. To make investment, including
direct investment, in projects; to provide investment loans; to contribute
capital to setting up enterprises engaged in socio-economic infrastructure
development.
3. To entrust others to provide
investment loans and recover debts; to be entrusted to manage investment
capital, provide investment loans, recover debts, allocate investment capital
and issue local administration bonds in order to raise capital for local
budgets under authorization of Peoples Committees of provinces or centrally run
cities (below referred to as provincial-level Peoples Committees for short).
Article 5.
State management of local Development Investment Funds
1. Provincial-level Peoples
Committees shall decide on the setting up of local Development Investment
Funds, provide for organizational apparatuses and approve operation charters of
local Development Investment Funds, directly manage the operation and decide on
other matters of local Development Investment Funds which fall within their
competence defined in this Decree and current laws.
2. The Ministry of Finance shall
perform the state management of financial matters; promulgate a model charter
on the organization and operation of local Development Investment Funds and a
financial management regulation applicable to local Development Investment
Funds; and supervise, examine and inspect the operation of local Development
Investment Funds.
Chapter II
OPERATION OF LOCAL
DEVELOPMENT INVESTMENT FUNDS
Section 1.
DIRECT INVESTMENT IN PROJECTS
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Direct investment is targeted to
infrastructure investment projects under programs and objectives according to
socio-economic development strategies and plans approved by Peoples Councils of
provinces or centrally run cities (below referred to as provincial-level
Peoples Councils for short), including:
1. Projects on the construction
of technical infrastructure;
2. Projects on the construction
of infrastructure of industrial parks, export-processing zones, economic zones
or hi-tech parks; subsidiary projects outside fences of industrial parks,
export-processing zones, economic zones or hi-tech parks;
3. Investment projects on the
construction of dwelling houses and projects on the development of new urban
centers;
4. Projects on environmental
protection and improvement;
5. Other key investment projects
as decided by provincial-level Peoples Committees.
Article 7.
Investment conditions
1. Investment projects for which
investment decisions have been made under the provisions of law.
2. Investment projects must be
efficient and capable of directly retrieving capital.
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1. A local Development
Investment Fund may make investment in the capacity as an investor or, together
with other organizations, contribute capital to making investment, and take
responsibility for its investment decisions according to responsibility
decentralization by the provincial-level Peoples Committee.
2. A local Development
Investment Fund may directly manage investment projects or hire professional
organizations to do so in accordance with law.
Article 9.
Investment forms
1. Depending on specific
conditions, a local Development Investment Fund may select the following
investment forms:
a/ Making investment under
Build-Operate -Transfer (BOT) contracts, Build-Transfer-Operate (BTO) contracts
or Build-Transfer (BT) contracts in accordance with law.
b/ Seeking projects, performing
investment preparations, then making investment, or transferring projects to
other investors for investment.
2. A local Development
Investment Fund shall make investment in accordance with the law on investment
and construction management.
Article 10.
Investment-deciding competence
1. A local Development
Investment Fund may decide on the investment capital amount for a project
accounting for up to 10% of owner capital of the Fund;
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Section 2.
PROVISION OF INVESTMENT LOANS
Article 11.
Investment loan-eligible objects
Loan-eligible objects are
infrastructure investment projects with direct retrieval capital plans under
programs or objectives according to socio-economic development strategies or
plans approved by provincial-level Peoples Councils, including:
1. Projects in the domains of
communications; water supply; dwelling houses in urban centers and residential
areas; relocation and reorganization of production establishments; and
treatment of urban wastes;
2. Important projects as decided
by provincial-level Peoples Committees.
Article 12.
Loan provision conditions
A local Development Investment
Fund shall only provide loans to an investor that fully meets the following
conditions:
1. Having completely carried out
investment procedures in accordance with law;
2. Having a profitable
production and business plan and a plan to secure the payment of debts;
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4. Being an organization having
the legal person status or an enterprise of any economic sector.
Article 13.
Competence to decide on investment loans
1. A local Development
Investment Fund may decide on the loan amount for a project accounting for up
to 15% of owner capital of the Fund;
2. The provincial-level People
Committee may decide on the loan amount for a project accounting for over 15%
of owner capital of a local Development Investment Fund.
Article 14.
Loan term
Loan term shall be determined
based on capital retrieval capability suitable to each projects production and
business characteristics and the investors debt payment but must not exceed 15
years. Provincial-level Peoples Committees shall make decisions on special
loans with a term of over 15 years.
Article 15.
Lending interest rates
1. Lending interest rates set by
local Development Investment Funds for projects must, in principle, not be
lower than the States investment credit interest rates.
2. Sub-lending interest rates
applied to ODA-funded projects comply with the Governments regulations on
management of the provision of foreign loans and the payment of foreign debts.
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Depending on each project, local
Development Investment Funds shall apply loan security measures according to
law.
Article 17.
Provisions on syndicated lending
1. Local Development Investment
Funds may act as major bodies in providing syndicated loans or, together with
credit institutions or other organizations, contribute capital to providing
loans for projects.
2. The provision of syndicated
loans must be made in contracts and comply with the provisions of Articles 11,
12, 13, 14, 15 and 16 of this Decree.
Article 18.
Classification of debts, setting up of risk provisions for investment loans
Local Development Investment
Funds shall classify debts and set up risk provisions for investment loans like
credit institutions.
Article 19.
Handling of risks
Risks incurred due to objective
causes to projects borrowing loans of local Development Investment Funds shall
be handled as follows:
1. When state policy changes
directly affect project activities, thus causing difficulties to investors in
repaying loans, investors may be considered for debt prolongation, loan
interest remission or reduction, or debt freezing;
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a/ Using investors financial
sources for debt retrieval according to regulations;
b/ Getting insurance agencies
compensations (if any);
c/ Considering the remission of
part or all of the remaining debts.
Article 20.
Risk handling competence
1. An authority which decides to
provide loans may decide to prolong debts. The debt prolongation duration must
not exceed one-third of the term of the loan.
2. The Management Council may
decide on the remission of interest debts.
3. Provincial-level Peoples
Committee presidents may decide to freeze debts or remit principal debts, and
shall, after deciding to remit debts, report such decision to provincial-level
Peoples Councils.
Section 3.
CAPITAL CONTRIBUTION FOR SETTING UP ECONOMIC ORGANIZATIONS
Article 21.
Capital contribution forms
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Article 22.
Competence to decide on capital contribution
1. A local Development
Investment Fund may decide on capital amount contributed to an enterprise
accounting for up to 10% of owner capital of the Fund.
2. The provincial-level Peoples
Committee may decide on capital amount contributed to an enterprise accounting
for over 10% of owner capital of a local Development Investment Fund.
Section 4.
ENTRUSTMENT ACCEPTANCE AND ENTRUSTMENT
Article 23.
Entrustment acceptance
1. Local Development Investment
Funds may be entrusted to manage investment capital, provide investment loans
and recover debts, and allocate investment capital for works or projects funded
with the state budget, by the Vietnam Development Bank, enterprises, and
domestic and foreign organizations and individuals under entrustment acceptance
contracts between local Development Investment Funds and entrusting
organizations or individuals.
2. Local Development Investment
Funds may be entrusted to manage the operation of credit guarantee funds for
small- and medium-sized enterprises, and housing development funds set up by
provincial-level Peoples Committees.
3. Local Development Investment
Funds may issue local administration bonds under authorization of
provincial-level Peoples Committees in order to raise capital for local budgets
in accordance with law.
4. Local Development Investment
Funds are entitled to entrustment acceptance service charges. Specific charge
levels shall be agreed and written in entrustment acceptance contracts.
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1. Local Development Investment
Funds may entrust credit institutions and the Vietnam Development Bank to
provide loans and recover debts for projects loaned by local Development
Investment Funds under entrustment contracts between local Development
Investment Funds and entrusted organizations.
2. Entrusted organizations are
entitled to entrustment service charges. Specific charge levels shall be agreed
and written in entrustment contracts.
Section 5.
INVESTMENT LIMITS
Article 25.
Investment limits
1. Direct investment capital of
a local Development Investment Fund in projects must not exceed 50% of its
operating capital at the time of investment.
2. Loans for a project must not
exceed 15% of the operating capital of a local Development Investment Fund at
the time of lending.
3. Capital contributed for
setting up economic organizations must not exceed 20% of the operating capital
of a local Development Investment Fund at the time of capital contribution.
Chapter
III
OPERATING CAPITAL OF
LOCAL DEVELOPMENT INVESTMENT FUNDS
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1. Owner capital of a local
Development Investment Fund is formed from the following sources:
a/ Charier capital: is included
in the expenditure estimate or the increased revenue of the annual local budget
and added with capital from the development investment fund under the
provisions of Point b, Clause 6, Article 40 of this Decree;
b/ Voluntary contributions and
aid of domestic and foreign organization and individuals, and other revenues as
prescribed by law.
2. The provincial-level Peoples
Committee shall decide to adjust the charter capital of a local Development
Investment Fund and notify the Ministry of Finance of such adjustment; however,
the charter capital must not be lower than the minimum level specified in
Clause 2, Article 30 of this Decree.
Article 27.
Raised capital
Local Development Investment
Funds may raise medium- and long-term capital from domestic and foreign
organizations and individuals by:
1. Borrowing loans from domestic
and foreign financial and credit institutions. The borrowing of foreign loans complies
with legal provisions on foreign loans and debts;
2. Issuing their bonds in
accordance with law;
3. Applying other forms of
capital raising in accordance with law.
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The total capital amount raised
by a local Development Investment Fund in the forms specified in Article 27 of
this Decree may be up to 6 times its owner capital at a time.
Article 29.
Entrusted capital
Entrusted capital provided for
in Article 23 of this Decree is not included in the operating capital of a
local Development Investment Fund.
Chapter IV
ORGANIZATION OF LOCAL DEVELOPMENT INVESTMENT FUNDS
Article 30.
Conditions for setting up a local Development Investment Fund
1. There is a scheme on setting
up a local Development Investment Fund, approved by the provincial-level
Peoples Council.
2. The charter capital of a
local Development Investment Fund by the time of its establishment must be at
least VND 100 (one hundred) billion.
3. Personnel of the
organizational apparatus of a local Development Investment Fund must possess
professional capacity and skills suitable to the Funds operating requirements.
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5. The head of the Control Board
of a local Development Investment Fund must possess a university degree in
finance, accountancy or banking and at least 3 years managerial or
administration experience in the finance, accountancy or banking domain.
Article 31.
Order of setting up a local Development Investment Fund
1. The provincial-level Peoples
Committee shall elaborate a scheme on setting up a local Development Investment
Fund and submit it to the provincial-level Peoples Council for approval. Such a
scheme comprises:
a/ The provincial-level Peoples
Committees report on the necessity to set up the Fund; operation scale and
scope, and organizational structure of the Fund;
b/ The provincial-level Peoples
Committees plan to allocate charter capital for the Fund;
c/ A draft charter of
organization and operation of the Fund which is compliant with the model
charter on organization and operation of local Development Investment Funds,
promulgated by the Ministry of Finance;
d/ A tentative operation plan
for the first 2 (two) years, attached with a tentative list of investment
projects at the time of approval;
dd/ Written explanations
on the Funds organizational and operational apparatuses, as required in Clauses
3, 4 and 5, Article 30 of this Decree.
2. The provincial-level Peoples
Committee shall decide to set up, and approve the organization and operation
charter of, a local Development Investment Fund.
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Article 32.
Operation principles of local Development Investment Funds
1. Local Development Investment
Funds shall operate on the principles of enjoying financial autonomy,
preserving and developing capital, offsetting expenses and taking risks by
themselves. State budget funds shall not be allocated for the operation of the
apparatuses of local Development Investment Funds.
2. Local Development Investment
Funds shall take limited liability within the limits of their owner capital.
Article 33.
Responsibilities of local Development Investment Funds
1. To make investment under
investment plans and structures approved by provincial-level Peoples Committees
in each period in conformity with socio-economic development strategies and
plans approved by provincial-level Peoples Councils.
2. To use investment capital for
proper purposes.
3. To implement accounting,
statistical and financial reporting regimes in accordance with law.
4. To submit to inspection and
examination by competent state management agencies according to law; to supply data
on, and publicize, their financial situation in accordance with law.
5. To buy asset insurance, risk
insurance and insurance of other kinds according to law.
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Article 34.
Powers of local Development Investment Funds
1. To carry out activities in
line with their operation objectives and scope in accordance with this Decree.
2. To select efficient projects
in conformity with provincial-level Peoples Committees investment plans and
structures in order to decide on investment. Special cases shall be decided by
provincial-level Peoples Committees.
3. To recruit, arrange, employ
and train laborers in accordance with law.
4. To refuse individuals or
organizations request for supply of the Funds information or other resources if
such request contravenes laws or their organization and operation charters.
5. To contact local functional
branches and relevant units in order to seek and formulate investment projects.
6. To invite and receive foreign
investment and business partners; send their officials and employees for
overseas working missions, study tours or field surveys according to law.
Article 35.
Managerial and administration apparatuses of local Development Investment Funds
1. Local Development Investment
Funds are organized to operate on an independent basis.
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Article 36.
Composition of the Management Council
1. The Management Council is
composed of up to 7 members. The provincial-level Peoples Committee shall,
based on practical conditions, decide on the number of members of the
Management Council on the principle that it must be an odd number.
2. The chairman, the vice
chairman and other members of the Management Council shall be appointed,
relieved from office or dismissed by the provincial-level Peoples Committee
president.
3. The composition, structure,
criteria, number of members and term of the Management Council are specified in
the model organization and operation charter of local Development Investment
Funds.
Article 37.
Tasks and powers of the Management Council
1. To consider and approve
operation orientations, capital raising plans, investment plans, and long-term
and annual financial plans for submission to provincial-level Peoples Committee
presidents for approval; to verify and approve finalization reports of the
local Development Investment Fund.
2. To supervise and inspect the
administration apparatus of the local Development Investment Fund in the
observance of policies and laws and the implementation of its decisions.
3. To consider and approve
interest-rate brackets for providing investment loans and submit them to the provincial-level
Peoples Committee president for approval.
4. To consider and decide on
investment in projects falling within its competence.
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6. To consider and settle
complaints lodged by organizations or individuals involved in the operation of
the local Development Investment Fund in accordance with law.
7. To submit to the
provincial-level Peoples Committee president the appointment, relief from
office or dismissal of the head of the Control Board of the local Development
Investment Fund; decide on other members of the Control Board at the proposal
of the Control Boards head.
8. To promulgate its operation
regulation and assign tasks to its members.
9. To promulgate professional
regulations of the local Development Investment Fund at the proposal of the
Funds director.
10. Other powers defined in the
organization and operation charter of the local Development Investment Fund.
Article 38.
Control Board of a local Development Investment Fund
1. The Control Board has the
following tasks and powers:
a/ To inspect and supervise the
implementation of policies, regimes and professional operations of the local
Development Investment Fund in order to ensure the operation efficiency of and
asset security for the Fund;
b/ To work out plans and
periodically or extraordinarily report on supervision and inspection work to
the Management Council. The Control Boards head may request the Management
Councils chairman or, in case of the Management Councils disapproval, request
the provincial-level Peoples Committee president to convene an irregular
meeting to report on urgent matters that negatively affect the Funds operation;
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2. The Control Board is composed
of up to 5 members who are entitled to allowances and other benefits as
prescribed by the Management Council.
Article 39.
Administration apparatus of a local Development Investment Fund
1. The administration apparatus
of a local Development Investment Fund is composed of the Board of Directors
(the director and deputy director) and professional sections and departments.
2. The Funds director is a
member of the Management Council and appointed by the provincial-level Peoples
Committee president. The director is a legal-person representative of the Fund
and answerable before the provincial-level Peoples Committee, the Management
Council and law for all professional operations of the Fund.
3. The Funds director shall
propose the Management Council to consider and submit to the provincial-level
Peoples Committee president the appointment, relief from office or dismissal of
the Funds deputy director and chief accountant.
4. The Management Council shall,
based on the Funds practical operation, decide on the organization of the Funds
professional sections and departments in conformity with the guidance in the
model organization and operation charter of local Development Investment Funds.
5. The director of a local
Development Investment Fund has the following tasks and powers:
a/ To manage and administer the
Funds activities strictly according to the Funds organization and operation
charter, the Management Councils decisions and laws;
b/ To submit to the Management
Council for promulgation the Regulation on the Funds professional operations;
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d/ To periodically or
extraordinarily report on the Funds operation to the Management Council, the
provincial-level Peoples Committee and the Ministry of Finance;
dd/ To directly manage
assets and operating capital, and are responsible for preserving and developing
capital and assets of the Fund in accordance with law;
e/ To decide on the appointment,
relief from office or dismissal of heads of professional sections or
departments or persons holding equivalent and lower posts;
g/ Other powers defined in the
Funds organization and operation charter.
Chapter V
FINANCIAL, ACCOUNTING
AND AUDIT REGIMES
Article 40.
Financial regime
1. A fiscal year of a local
Development Investment Fund starts on January 1 and ends on December 31.
2. Deductions for risk
provisions for providing investment loans shall be accounted as operating
expenses of a local Development Investment Fund.
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4. A local Development
Investment Fund shall fulfill its obligations towards the state budget in
accordance with law.
5. The operation outcome of a
local Development Investment Fund is the balance between total receivables and total
payables which are rational and valid. If total revenues are larger than total
expenditures, their balance is distributed in the following order:
a/ Offsetting accumulated loss
amounts by the time of finalization;
b/ Paying fines for violation of
law which fall within the Funds responsibilities in accordance with law;
c/ Deducting 10% for the
financial risk provision until this provisions balance is equal to 25% of the
charter capital of the Fund;
d/ The balance after subtracting
the amounts specified in Points a, b and c, Clause 5 of this Article shall be
deducted in the following order:
- At least 30% for the
development investment fund;
- Up to 5% for setting up the
reward fund of the Management and Administration Board of the Fund. The
deducted amount must not exceed VND 500 million;
- A maximum amount equal to 3
months paid salaries for the reward fund and the welfare fund. The specific
deduction level shall be decided by the Management Council of the Fund;
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6. Use purposes of funds
a/ The financial risk provision
is used to offset losses resulting from irrecoverable assets or debts in the
course of operation;
b/ The development investment
fund is used to supplement the charter capital;
c/ The reward fund is used to
grant periodical or extraordinary rewards to officials and employees based on
their labor productivity and working achievements;
d/ The welfare fund is used to
cover expenses for officials and employees public welfare activities and works
and for social welfare;
dd/ The Management and
Administration Councils reward fund is used to give rewards to the Management
Council and the Board of Directors of the Fund.
Article 41.
Accounting and audit regimes
1. A local Development Investment
Fund shall implement accounting, statistical and reporting regimes in
accordance with current provisions of law.
2. Financial statements of a
local Development Investment Fund must be audited by an independent audit
organization.
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Chapter VI
IMPLEMENTATION PROVISIONS
Article 42.
Implementation effect
This Decree takes effect 15 days
after its publication in CONG BAO.
Article 43.
Reorganization of local Development Investment Funds operating on a pilot basis
1. Within 12 months from the
effective date of this Decree, local Development Investment Funds operating on
a pilot basis shall re-register their organization and operation charters and
reorganize their operation in accordance with this Decree.
2. Within 3 years from the
effective date of this Decree, local Development Investment Funds which have
the actual charter capital of under VND 100 (one hundred) billion each shall
increase their charter capital to the level specified in Clause 2, Article 30
of this Decree. Past that time limit, those Funds with the actual charter
capital of under VND 100 (one hundred) billion each must terminate their
operation.
3. Within 3 years from the
effective date of this Decree, provincial-level Peoples Committees shall direct
local Development Investment Funds to reorganize their operation after an
independent model in accordance with this Decree. Based on their operation
nature, the Funds may organize a complete administration apparatus as
stipulated in Article 39 of this Decree or authorize other organizations to
conduct some operations such as project evaluation, capital disbursement, debt
collection and investment capital management.
Article 44.
Implementation guidance
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Article 45.
Organization of implementation
Ministers, heads of ministerial-level
agencies, heads of government-attached agencies and presidents of
provincial-level Peoples Committees shall implement this Decree.
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung