THE
STATE BANK
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom Happiness
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No.
1627/2001/QD-NHNN
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Hanoi,
December 31, 2001
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DECISION
ON ISSUING REGULATIONS ON LENDING BY CREDIT INSTITUTIONS TO
CLIENTS
THE GOVERNOR OF THE STATE BANK OF VIETNAM
Pursuant to the Law on State
Bank of Vietnam and the Law on Credit Institutions dated 12 December 1997;
Pursuant to Decree 15-CP of the Government dated 2 March 1993 on duties, powers
and responsibilities for State administration of ministries and ministerial
equivalent bodies;
On the proposal of the Director of the Department of Monetary Policy;
DECIDES:
Article 1
To hereby
issue with this Decision the Regulations on Lending by Credit Institutions to
Clients.
Article 2
This
Decision shall be of full force and effect as of 1 February 2002. The
Regulations on Lending by Credit Institutions to Clients issued with this
Decision shall replace the Regulations on Lending by Credit Institutions to
Clients issued with Decision 284-2000-QD-NHNN1 of the Governor of the State
Bank dated 25 August 2000.
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In the
case of credit contracts which were entered into prior to the date of
effectiveness of this Decision and under which the loans have not been
disbursed or not fully disbursed, and in the case of credit contracts with
outstanding loans as at the end of 31 January 2002, credit institutions and
clients shall continue to implement them in accordance with the clauses in the
signed contracts until the loans are fully repaid, or they may agree to amend
and add to the credit contracts in order to make them consistent with the
Regulations on Lending by Credit Institutions to Clients issued with this
Decision.
Article 4
Heads of
units under the State Bank, directors of State Bank branches in cities and
provinces under central authority, chairmen of boards of management and general
directors (directors) of credit institutions, and clients borrowing from credit
institutions shall be responsible for implementation of this Decision.
THE
GOVERNOR OF THE STATE BANK
Le Duc Thuy
REGULATIONS
ON LENDING BY CREDIT INSTITUTIONS TO CLIENTS
(Issued with Decision 1627-2001-QD-NHNN1 of the Governor of the State Bank
dated 31 December 2001)
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These Regulations provide for
lending in Vietnamese dong and foreign currency by credit institutions to
clients not being credit institutions in order to satisfy capital requirements
for production, business, services, investment and development, and living
conditions.
Article 2
Applicable subjects
1. Credit institutions
established and conducting lending in accordance with the Law on Credit
Institutions. In the case of lending in foreign currency, credit institutions
must be licensed for foreign exchange activities.
2. Clients borrowing loans from
credit institutions, comprising:
(a) Vietnamese legal entities
and individuals, comprising:
- Legal entities being State
owned enterprises, co-operatives, limited liability companies, shareholding
companies, enterprises with foreign owned capital, and other organizations
satisfying all conditions stipulated in article 94 of the Civil Code;
- Individuals;
- Households;
- Co-operative groups;
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- Partnerships;
(b) Foreign legal entities and
individuals.
Article 3
Interpretation of terms
In these Regulations, the
following terms shall have the meanings ascribed to them hereunder:
1. Lending means a form of
extension of credit whereby a credit institution provides a client with an
amount of money to be used for a certain purpose and within a fixed period of
time as agreed on the basis of the principle of repayment of both principal and
interest.
2. Loan term means the period of
time calculated from the date on which the client commences to receive the loan
funds to the date on which principal and interest have been repaid in full as
agreed in the credit contract between the credit institution and the client.
3. Repayment periods means the
periods of time within the term of a loan which are agreed between the credit
institution and the client whereby at the end of each period the client must
repay part or the whole of the loan to the credit institution.
4. Adjustment of repayment
periods means an agreement between the credit institution and the client to
change the repayment periods previously agreed in the credit contract.
5. Extension of the loan term
means the approval of a credit institution to extend the loan term agreed in
the credit contract for another period.
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7. Credit limit means the
maximum amount of a loan which is maintained within a fixed period as agreed in
the credit contract between a credit institution and the client.
8. Financial capacity of
borrower means the capacity of the capital and assets of the borrower to ensure
regular operations and to discharge payment obligations.
Article 4
Compliance with foreign exchange control regulations
When lending in foreign
currency, a credit institution and the client must strictly comply with the
regulations of the Government and the guidelines of the State Bank of Vietnam
on foreign exchange control.
Article 5 Right
of credit institutions to autonomy in lending
Credit institutions shall be
responsible for their own decisions on lending. No organization or individual
may illegally interfere in the autonomy in lending of credit institutions.
Article 6
Principles of borrowing
A client borrowing from a credit
institution must ensure compliance with the following principles:
1. It must utilize the loan
capital for the correct purpose agreed in the credit contract;
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Article 7
Conditions for borrowing
A credit institution shall
consider and decide on lending when a client satisfies all of the following
conditions:
1. The client has civil legal
capacity and capacity for civil acts and bears civil responsibility as
stipulated by law, in particular:
(a) In the case of a borrower
being a Vietnamese legal entity or individual:
- A legal entity must have civil
legal capacity;
- An individual or an owner of a
private enterprise must have civil legal capacity and capacity for civil acts;
- A representative of a
household must have civil legal capacity and capacity for civil acts;
- A representative of a
co-operative must have civil legal capacity and capacity for civil acts;
- A partner of a partnership
must have civil legal capacity and capacity for civil acts;
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2. It must have a lawful purpose
for utilizing the loan capital;
3. The client must have the
financial capacity to ensure repayment of the loan within the time-limit
undertaken;
4. It must have an investment
project or plan for production, business and services which is feasible and
effective, or it must have an investment project or a feasible plan to service
living conditions which complies with the law;
5. It must comply with the
regulations of the Government and the guidelines of the State Bank of Vietnam
on security for loans.
Article 8
Types of loans
A credit institution shall
consider and make a decision on lending to a client the following types of
loans, being short term, medium term or long term, to meet capital requirements
for production, business, services and living conditions or for investment and
development projects:
1. Short term loans means loans
with a duration of up to twelve (12) months;
2. Medium term loans means loans
with a duration of over twelve (12) months up to sixty (60) months;
3. Long term loans means loans
with a duration of over sixty (60) months.
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1. A credit institution may not
provide loans for the following objects:
(a) In order to procure assets
and for costs which will form assets the purchase and sale, transfer or
disposal of which is prohibited by law;
(b) In order to make payment for
transactions which are prohibited by law;
(c) In order to satisfy
financial requirements of transactions which are prohibited by law.
2. A credit institution must
conduct loan re-structuring in accordance with the specific regulations of the
State Bank of Vietnam.
Article 10
Loan term
A credit institution and its
client shall agree on a loan term based on the cycle of production or business,
the period for recovery of investment project capital, the repayment capacity
of the client, and the capital sources of the credit institution which are
available for lending. In the case of Vietnamese and foreign legal entities,
the loan term shall not exceed the remaining duration of operation pursuant to
the decision on establishment or operating licence in Vietnam; and in the case
of foreign individuals, the loan term shall not exceed the permitted period of
residence of the foreigner in Vietnam.
Article 11
Loan interest rates
1. The loan interest rate shall
be agreed by the credit institution and its client in accordance with the
regulations of the State Bank of Vietnam.
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Article 12
Lending limits
1. A credit institution shall
base its decision on its lending limits on the borrowing requirements of
clients and their capacity to repay and on the available capital sources of the
credit institution.
2. The total outstanding loans
to a single client shall be implemented in accordance with article 18 of these
Regulations.
3. The total outstanding loans
to the subjects stipulated in article 20 of these Regulations may not exceed
five per cent of the equity of a credit institution.
Article 13
Repayment of principal and interest
1. A credit institution and a
client shall agree on the following with respect to repayment of principal and
interest:
(a) Principal repayment periods;
(b) Interest payment periods,
which may coincide with principal repayment periods or which may be separate;
(c) Currency of repayment and
security for the whole value of the principal in appropriate forms in
accordance with the provisions of the law.
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3. With respect to early
repayment of a debt by a client, the credit institution and the client may
agree on the conditions, the amount of loan interest and the fees payable.
4. Repayment of debts in foreign
currency: any type of lending in foreign currency must be repaid both as to
principal and interest in that same foreign currency; if it is repaid in
another foreign currency, it must be done so in accordance with an agreement
between the credit institution and the client which is consistent with the
regulations of the Government and the guidelines of the State Bank on foreign
exchange control.
Article 14
Loan files
1. A client wishing to borrow a
loan shall submit to the credit institution a loan proposal and documents
necessary to prove that all conditions for borrowing stipulated in article 7 of
these Regulations have been satisfied. Clients shall be responsible before the
law for the accuracy and lawfulness of documents that they submit to credit
institutions.
2. Credit institutions shall
guide clients on the types of documents that they require from them in
accordance with the characteristics of each type of client and the type of
loan.
Article 15
Evaluation and decision on lending
1. Credit institutions shall
establish a process of consideration and approval of lending on the basis of
the principles of ensuring independence and making a clear distinction between
personal responsibility and joint responsibility between the stages of
evaluation and decision on lending.
2. In order to make a decision
on lending, credit institutions shall consider and evaluate the feasibility and
effectiveness of the investment project or plan for production, business and
services or the investment project or plan for servicing living conditions and
the capacity of the client to repay the loan.
3. Credit institutions shall
stipulate and display publicly their own specific rules on maximum time-limits
within which to notify a client of a decision on lending or refusal to lend
from the date when the credit institution receives a complete and proper loan
file and the other necessary information it requires from the client. In the
case of a decision to refuse to lend, the credit institution must notify the
client in writing of its reasons.
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A credit institution and the
borrowing client shall agree on the choice of one of the following methods of
lending:
1. Individual lending: On each
occasion that a loan is provided, the client and the credit institution shall
carry out the necessary procedures and enter into a credit contract.
2. Lending pursuant to a credit facility:
The credit institution and the client shall determine and agree on a credit
facility to be maintained for a fixed period.
3. Lending pursuant to an
investment project: The credit institution shall provide a loan for a client to
implement an investment project for development of production, business and
services or an investment project for servicing living conditions.
4. Syndicated lending: A group
of credit institutions shall provide a loan for the loan project or loan plan
of a client, whereby one credit institution acts as the focal institution for
making arrangements and co-ordinating with the other credit institutions.
Syndicated lending shall be carried out in accordance with these Regulations
and with the regulations on co-financing by credit institutions issued by the
Governor of the State Bank of Vietnam.
5. Lending on instalment
repayment: When providing the loan, the credit institution and the client shall
determine and agree on the amount of loan interest that must be paid in
addition to the amount of principal which shall be divided into repayment
periods during the loan term.
6. Lending pursuant to a reserve
credit facility: The credit institution shall undertake to make loans available
to a client within the limit of a fixed credit facility. The credit institution
and the client shall agree on the period of validity of the reserve credit
facility and the fees payable for the reserve credit facility.
7. Lending by way of issuance
and use of credit cards: The credit institution shall approve the use by a
client of a loan amount within the limit of a credit facility to pay for
purchasing goods and services or to withdraw cash at automatic telling machines
or at the cash advance agencies of the credit institution. For lending by way
of issuance and use of credit cards, credit institutions and clients must
comply with the regulations of the Government and of the State Bank on issuance
and use of credit cards.
8. Lending pursuant to an
overdraft facility: The credit institution shall agree in writing with the
client on making payments in excess of the account balance of the client,
consistent with the regulations of the Government and of the State Bank on
payment operations by credit institutions providing payment services.
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Article 17
Credit contracts
Lending by a credit institution
to a client must be implemented by way of a credit contract. The credit
contract must stipulate the loan conditions, the purpose of loan utilization,
the method of lending, the loan amount, the interest rate, the loan term, the
form of loan security, the value of security assets, the method of repayment,
and the other undertakings agreed by the parties.
Article 18
Lending limits
1. The total outstanding loans
to a single client may not exceed fifteen (15) per cent of the equity of the
credit institution, except in cases of loans funded by capital sources
entrusted by the Government, by organizations or by individuals. If the capital
requirements of a client exceed fifteen (15) per cent of the equity of the
credit institution or if a client wishes to raise capital from a number of sources,
credit institutions may enter into a syndicated loan in accordance with
regulations of the State Bank.
2. In special circumstances,
credit institutions may provide loans in excess of the lending limits
stipulated in clause 1 of this article, but only upon approval by the Prime
Minister of the Government on a case-by-case basis.
3. The equity of credit
institutions on the basis of which the lending limits stipulated in clauses 1
and 2 of this article are calculated shall be determined in accordance with regulations
of the State Bank.
Article 19
Circumstances in which lending is not permitted
1. A credit institution may not
provide loans to the following clients:
(a) Members of the board of
management or inspection committee, the general director (director) or deputy
general director (deputy director) of the credit institution;
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(c) Parents, spouses or children
of the members of the board of management or inspection committee, of the
general director (director) or deputy general director (deputy director).
2. The provisions of clause 1 of
this article shall not apply to co-operative credit institutions.
3. Credit institutions may
consider and decide whether or not to apply clause 1(c) of this article to
lending to the parents, spouses or children of the director or deputy director
of a branch.
Article 20
Loan restrictions
A credit institution may not
provide loans without security, or loans with preferential conditions on
interest rates and lending limits, to the following subjects:
1. Auditing organizations or
auditors responsible to carry out audits of the credit institution; inspectors
conducting an inspection of the credit institution; the chief accountant of the
credit institution;
2. Major shareholders of the
credit institution;
3. Enterprises in which more
than ten (10) per cent of the charter capital is owned by one of the subjects
specified in article 77.1 of the Law on Credit Institutions.
Article 21
Inspection and supervision of loans
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Article 22
Adjustment of schedule for repayment of principal and interest and extension of
term for repayment of principal and interest
1. Adjustment of schedule for repayment
of principal and extension of term for repayment of principal:
(a) Where a client is unable to
repay the principal on the due date as agreed in the credit contract and makes
a written request to adjust the schedule for repayment, the credit institution
may consider the re-scheduling of debt repayment.
(b) Where a client fails to
repay the whole of the principal within the loan term as agreed in the credit
contract and makes a written request to extend the term of the debt, the credit
institution may consider a debt extension. For short term loans, the maximum
period of debt term extension shall be twelve (12) months; for medium and long
term loans, the maximum period of debt term extension shall be equal to one
half () of the loan term agreed in the credit contract. If the client requests
an extension beyond these limits for objective reasons, in order to enable the
client to repay the debt, the chairman of the board of management or the
general director (director) of the credit institution shall consider an
extension and report it to the State Bank immediately after implementing the
decision to extend the loan term.
2. Adjustment of schedule for
repayment of interest and extension of term for repayment of interest:
(a) Where a client is unable to
repay interest on the due dates as agreed in the credit contract and makes a
written request to adjust the schedule for interest repayments, the credit
institution may consider the re-scheduling of such repayments.
(b) Where a client fails to
repay the whole of the interest within the loan term as agreed in the credit
contract and makes a written request to extend the term of interest repayment,
the credit institution may consider an extension of the term for repayment of
the whole of the interest. The maximum extension of the term for repayment of
interest shall be the same as stipulated in clause 1(b) above.
Article 23
Exemption from and reduction of loan interest
Credit institutions may decide on
exemption from and reduction of loan interest payable by a client on the basis
of the following principles:
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2. The rate of exemption from or
reduction of loan interest must be consistent with the financial capacity of
the credit institution;
3. Credit institutions may not
exempt or reduce loan interest for clients being subjects stipulated in article
78.1 of the Law on Credit Institutions;
4. Credit institutions must
issue regulations on exemption from and reduction of loan interest for clients,
which have been approved by the board of management. A credit institution may
only exempt or reduce loan interest for clients in accordance with such
regulations.
Article 24
Rights and obligations of clients
1. A borrower shall have the
following rights:
(a) To refuse to satisfy any
requirement of a credit institution which is inconsistent with the terms agreed
in the credit contract;
(b) To lodge complaints or to
institute legal proceedings in accordance with law for any breach of the credit
contract.
2. A borrower shall have the
following obligations:
(a) To provide full information
and documents relating to the loan and to be responsible for the accuracy of
such information and documents;
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(c) To repay the loan principal
and interest in accordance with the terms agreed in the credit contract;
(d) To be responsible before the
law for failure to perform properly the terms for repayment agreed in the
credit contract and the terms relating to obligations for loan security
undertaken in the credit contract.
Article 25
Rights and obligations of credit institutions
1. A credit institution shall
have the following rights:
(a) To require the client to
provide documents proving the feasibility of the investment project or plan for
production, business and services or investment project or plan for servicing
living conditions, and proving the financial capacity of the client and of the
guarantor, prior to making a decision on lending;
(b) To refuse the loan
application of a client if it considers that the lending conditions have not
been satisfied or the lending project or plan is not effective or is
inconsistent with the law, or if the credit institution has insufficient
capital sources to provide the loan;
(c) To inspect and supervise the
processes of lending and of loan utilization and repayment by the client;
(d) To cease lending and to make
early recovery of the debt upon discovery that the client has provided false
information or has breached the credit contract;
(dd) To institute legal
proceedings in accordance with law against a client for breach of the credit
contract or against a guarantor;
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(g) To implement exemptions from
or reductions of loan interest, debt term extensions, and adjustments of
repayment periods in accordance with these Regulations; to trade in debts in accordance
with regulations of the State Bank and to carry out debt re-structuring, debt
blockade or debt write-off in accordance with regulations of the Government.
2. A credit institution shall
have the following obligations:
(a) To comply strictly with the
agreements in the credit contract;
(b) To maintain credit files in
accordance with the provisions of the law.
Article 26
Preferential lending and lending for investment projects funded by investment
and development capital of the State
1. Credit institutions may
provide loans to clients entitled to the preferential credit policy in
accordance with the regulations of the Government and the guidelines of the
State Bank from time to time.
2. State owned credit
institutions which provide loans for investment projects funded by investment
and development capital of the State shall comply with the provisions of the
laws relating to investment and development capital of the State.
3. With respect to State owned
credit institutions which are designated by the Government to provide loans to
clients entitled to preferences or to provide loans for investment projects
funded by investment and development capital of the State, if they discover any
interest difference or loan losses arising for objective reasons, then they
shall deal with them in accordance with the regulations of the Government and
the guidelines of the State Bank and of related ministries and branches.
4. Prior to providing loans to
clients entitled to preferences or providing loans for investment projects
funded by investment and development capital of the State, credit institutions
shall appraise the effectiveness of the loan project or plan and shall report
to the authorized State body any cases considered ineffective or unable to
repay loan principal and interest.
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1. Credit institutions may
provide trust loans as authorized by the Government and by domestic or foreign
organizations and individuals in accordance with trust lending contracts
entered into with a representative body of the Government or with domestic or
foreign organizations and individuals. Trust lending must be in accordance with
current provisions of the law on banking credit and trust contracts.
2. Credit institutions providing
trust loans shall be entitled to trust fees and other benefits as agreed in the
trust lending contracts in accordance with the provisions of the law and
international practice in order to ensure off-set of all costs and risks and
profitability.
Article 28
Implementing provision
1. Credit institutions and
borrowers shall be responsible for implementation of these Regulations. Based
on these Regulations and the provisions of relevant legal instruments, credit
institutions shall issue specific guidelines for loan business in accordance with
their own conditions, characteristics and charter.
2. The Governor of the State
Bank shall make decisions on amendments of and additions to these Regulations.
THE
GOVERNOR OF THE STATE BANK
Le Duy Thuy