STATE
BANK OF VIETNAM
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|
THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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|
No:
04/2012/TT-NHNN
|
Ha
Noi, March 08, 2012
|
CIRCULAR
REGULATIONS
ON ENTRUSTMENT PROFESSION AND ENTRUSTMENT RECEIVING PROFESSION OF THE FOREIGN CREDIT
INSTITUTIONS AND BANK
BRANCHES
Pursuant to the Law on State
Bank of Vietnam No.46/2010/QH12 dated June 16, 2010;
Pursuant to to the Law
on credit institutions No. 47/2010/QH12 dated June 16, 2010;
Pursuant to the Decree No. 96/2008/ND-CP
dated August 26,
2008 of
the Government regulating
the functions, duties, powers and organizational structure
of
the State Bank
of Vietnam;
At the proposal of the
Director of Monetary
Policy Department;
The Governor of the State Bank
of Vietnam has
issued the Circular on the entrusted profession and entrusting
profession of the foreign credit institutions and bank branches in the areas related to the
banking
activities in
accordance with the Law on the credit institutions,
SECTION 1.
GENERAL REGULATION
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This Circular specifies in detail the entrustment profession and entrustment receiving
profession of the foreign credit institutions and bank branches in the
areas related to
the banking
activities in
accordance with the Law on the credit institutions, including: the
foreign credit
institutions and bank
branches
entrusted from other foreign credit institutions and bank branches and other
organizations that are not the foreign credit institutions and bank branches; the foreign
credit institutions and bank branches entrusting the other credit
institutions and bank
branches.
Article 2.
Subject of application
1. The entrusted parties that are
the foreign credit
institutions and bank branches of foreign are established and
operate under
the provisions
of the
Law on credit
institutions, including the commercial banks, financial companies,
the financial
leasing companies, the cooperative banks, people's credit funds, micro financial
institutions
and
foreign
bank branches.
2. The entrusting parties
including:
a) The foreign credit
institutions and bank branches that are established and
operate under
the provisions
of the
Law on credit
institutions: the commercial
banks, financial
companies, cooperative
banks,
micro financial
institutions
and
foreign
bank branches.
b) The other domestic
organizations that are not the credit institutions
and bank branches (hereinafter
referred to other
organizations) are
the legal entity with
the legal capacity
of the
civil
law as
prescribed by law.
c) The organization in
foreign countries is
the legal entity that is established and operates under the law of the foreign
country where that organization is established and has the civil legal capacity
under the
provisions of the
Civil Code on
the civil
legal
capacity
of the foreign
legal entity.
Article 3.
Explanation of term
In this Circular, the terms
below are construed as follows:
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2. Receiving the entrustment in the
areas related
to the banking
activities is that the entrusted party performs
the activities the professions related
to
banking
activities in
accordance with the Law on Credit Institutions and provisions
of
relevant
law;
the entrusted
party is entitled to enjoy the entrustment fees paid by the entrusted party.
3. Loan entrustment is that the entrusting party hands over the capital to the entrusted party to perform
the lending to customers in accordance with the Law on Credit Institutions and the provisions
of
relevant
law;
the
entrusting party
must make
payment of entrustment fee of the loans to the entrusted foreign credit
institutions and
branches of
foreign banks for the loan.
4. Loan entrustment receiving
is that the entrusted party receives the capital of the entrusting party to
perform the lending to the customers in accordance with the Law on
Credit
Institutions and
the provisions of
relevant
law;
the entrusted party enjoys the entrustment fee of the loans paid by the
entrusting party.
5. Contract of entrustment receiving and entrustment in the areas related to the banking activities is
a written
agreement
between the
entrusted party
and
entrusting party
to
establish,
change or terminate
the rights
and obligations of
the parties concerning the entrustment and entrustment receiving.
6. Contract of entrustment receiving and entrustment for loans is a written
agreement between the entrusted party and the entrusting party for the lending
to establish, change or terminate the rights and obligations
of the parties
about the loan entrustment (hereafter referred to as loan entrustment
contract).
7. Time limit for entrustment
is the period from the time the entrusted party begins the professional
implementation related to the banking activities to the end time of the work
under the contract of entrustment receiving and entrustment.
8. Time limit for loan
entrustment is the period from the time the entrusted party begins to receive
the entrusted capital to the time of full payment of the entrusted capital and
loan interest to the entrusting party under the loan entrustment contract
9. Entrustment fee is the
amount the entrusting party pays to the entrusted party in order to perform the
work under the contract of entrustment receiving and entrustment.
10. Customers that are in
relation to the entrustment receiving and entrustment of the foreign credit
institutions and bank branches are other organizations and individuals
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Article 4.
Scope of operation
1. The foreign credit institutions
and bank branches are entitled to perform the entrustment receiving and/or
entrustment of a number of professions related to the banking activities in
accordance with the Law
on Credit
Institutions and
the contents specified in the License issued by the State Bank of Vietnam to the
foreign credit institutions and bank branches.
2. The foreign credit
institutions and bank branches are not entitled to receive the entrustment of
the individuals.
Article 5.
Mechanism of application
1. The entrustment receiving and
loan entrustment of the foreign credit institutions and bank branches for
customers comply with the provisions as prescribed in Section 3 of this
Circular.
2. The entrustment receiving and
loan entrustment of the financial companies for the financial leasing comply
with the regulations of the State Bank of Vietnam concerning the financial
leasing operations of the financial leasing companies.
3. For the
receiving of entrustment
and entrustment
of the foreign
credit institutions and bank branches to conduct the professions
specified
in clause 1 and
2 of this
Article and evaluated as efficiency by the foreign credit institutions
and bank branches for
the business
activities of the foreign
credit institutions and bank branches and in accordance with the provisions of
relevant law,
the
foreign credit
institutions and bank branches shall build the implementation
process
and
submit a written
request
to the State
Bank of Vietnam
for
consideration and approval. the foreign credit institutions
and bank branches only make the performance only when the State Bank of Vietnam approves
in writing.
Article 6.
Classification of debt and setting up of provision and risk handling
1. The entrusting party is
responsible for handling the risks upon performing the entrustment profession
in the areas related to the banking activities.
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Article 7.
Accounting record, statistics and report on the profession of entrustment
receiving and entrustment of the
foreign credit
institutions and bank branches.
1. The foreign credit
institutions and bank branches perform the accounting record of
the profession of entrustment receiving and entrustment under the provisions of
the State Bank of Vietnam concerning the regulation on accounting and
statistics for the
foreign credit
institutions and bank branches.
2. Each month, the foreign
credit institutions and bank branches shall make the statistics
and send the report on the situation of performing the profession of
entrustment receiving and entrustment to the State Bank of Vietnam under the
annex attached to this Circular and the regulations of relevant law.
SECTION 3.
REGULATION ON THE PROFESSION OF ENTRUSTMENT RECEIVING
AND ENTRUSTMENT FOR LOAN OF THE
FOREIGN CREDIT
INSTITUTIONS AND BANK BRANCHES
Article 8.
Entrusted party and entrusting party for loan
1. The entrusted party is the foreign
credit institutions and bank branches that are established and operate
in accordance with the regulation of the Law on credit institutions including:
Commercial banks, financial companies, cooperative banks, people’s credit
funds, micro financial organization and foreign bank branches.
2. The entrusting party for loan
including:
a) The
foreign credit
institutions and bank branches that are established and operate
in accordance with the regulation of the Law on credit institutions including:
Commercial banks, financial companies, cooperative banks, people’s credit
funds, micro financial organization and foreign bank branches.
b) Other organizations that are
domestic legal entity.
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Article 9.
Principles of entrustment receiving and entrustment for loan
1. The
foreign credit
institutions and bank branches are entitled to perform the
entrustment receiving and/or entrustment for loan in accordance with the
regulation of the Law on credit institutions and the content specified in the
License issued by the State Bank of Vietnam to the
foreign credit
institutions and bank branches
2. The entrustment receiving and
entrustment for loan are performed through the loan entrustment contract in
conformity with the provisions in this Circular and the regulations of the
relevant law.
3. The
foreign credit
institutions and bank branches receiving the entrustment from
other organizations for loan must calculate the business loan from the
entrusted capital reresources to
the total credit
outstanding.
4. The
foreign credit
institutions and bank branches receiving the entrustment are not
entitled to make the re-assignment to the third party for loan making.
5. The
foreign credit
institutions and bank branches receiving the loan entrustment
shall make loan to customers as prescribed by the regulation of the State Bank
of Vietnam concerning the loan regulation of the
foreign credit
institutions and bank branches for customers and the regulations
of the relevant law.
Where the foreign
credit institutions and bank branches receive the loan entrustment in
foreign currency, they must comply with the regulations of the State Bank
of Vietnam on
loans
in foreign currency of
the foreign
credit institutions and bank branches for customers who are the residents,
the provisions
of the law
on foreign
exchange management and the provisions of relevant laws.
Where the foreign
credit institutions and bank branches receive the loan entrustment for
customers,
who are not
residents, they must
comply with the
regulations of the
State Bank of
Vietnam on loan making and foreign debt recovery of the foreign
credit institutions and bank branches, the provisions of the law on foreign exchange
management and
the provisions
of relevant
laws.
Where the foreign
credit institutions and bank branches receiving the loan entrustment from
the foreign orgnizations (including the case the foreign bank branches receive
the entrustment from the mother banks) must comply with the regulations of law
concerning the loan and repayment of foreign loans, foreign exchange
management and
other provisions
of relevant law.
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6. The
entrusting party for loan shall make the payment of entrustment fee to the foreign credit
institutions and bank branches receiving the entrustment for
loan. The entrustment fee shall be agreed upon and specified in the loan entrustment
contract.
Article 10.
Conditions for the foreign credit institutions
and bank branches receiving the entrustment for loan making.
The foreign credit
institutions and bank branches that are entrusted to make loan
upon meeting the conditions as follows:
1. There is the content of the
operation of entrusment receiving for loan in the License of establishment and
operation issued by the State Bank of Vietnam.
2. Promulgation of the process
of entrustment receiving for loan in conformity with the regulations in this
Circular and the law on the lending activities and the relevant law.
3. Ensuring the safety assurance
ratios in
the operation of the foreign credit institutions
and bank branches under
the provisions of the
State Bank of Vietnam.
4. Having head offices, networks
and personnel to make loan under the loan entrustment contract and ensure
the safety and efficiency for the lending activities.
Article 11.
Conditions for the entrusting party for loan
The entrusting party is entitled
to entrust the foreign
credit institutions and bank branches for loan
making upon meeting the following conditions:
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a) There is the content of the
operation of entrusment for loan in the License of establishment and operation
issued by the State Bank of Vietnam.
b) Promulgation of the process
of entrustment for loan in conformity with the regulations in this Circular and
the law on lending activities and the relevant law.
c) Ensuring the safety assurance
ratios in
the operation of the foreign credit institutions
and bank branches under
the provisions of the
State Bank of Vietnam.
2. For other domestic
organizations:
a) Being the legal entity with
the civil legal capacity as
prescribed by civil law;
b) Being entitled to entrust the
foreign
credit institutions and bank branches for loan
making as prescribed by the relevant law;
c) Having no credit outstanding
debt at the time of entrustment for loan at the foreign credit institutions and bank branches.
3. For the foreign
organizations:
a) Being the legal entity with
the civil legal capacity as
prescribed by the civil Code on the civil capacity of the foreign legal entity
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Article 12.
Currency for the entrustment receiving and enstrustment for loan.
The currency for the entrustment
receiving and enstrustment for loan is Vietnam dong and foreign currencies
Article 13.
Loan entrustment contract
Loan entrustment contract includes the contents
of
the
agreement
of the entrusting party and
the entrusted credit
institutions: Name
and address of
the entrusting
party, entrusted
party
for loan; enstrusted amount for loan; customer subjects for loan; loan demands;
loan currency, term of entrustment for loan, loan term for customers; loan
interest; re-struture of debt repayment term; measure for loan security;
entrustment fee, the party responsible for loan assessment and supervision of
loan capital use; the responsibility for risk handling of the entrusting party;
rights and obligations of the parties, the exemption and reduce of loan
interest; the cases of termination of loan entrustment contract before due;
handling of contract breach and other contents agreed by the parties in
conformity with the regulations of the relevant law
Article 14.
Rights and obligations of the entrusted party for loan
1. The entrusted party for loan
has the right:
a) To refuse the requirements of
the entrusting party contrary to the agreement and commitment specified in the
loan entrustment contract.
b) To require the entrusting
party to provide necessary information, materials and means for the loan making
under the loan entrustment contract.
c) Entitled to receive the
entrustment fee for loan
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dd) The rights of the lending party
for customers as prescribed by law on the lending activities.
2. The entrusted party for loan
has the obligations:
a) To make loan to customers in
conformity with regulations of law concerning the lending activities of the
foreign credit institutions and bank branches for customers, loan entrustment
contract and regulations of the relevant law.
b) To notify the entrusting
party on the loan making under the loan entrustment contract, provide
information and materials on the financial capacity, customer subject,
disbursement situation, debt recovery ability, classification debt and
necessary information and materials relating to the lending under the loan
entrustment contract; take responsibility for the accuracy of the information
and materials provided to the entrusting party.
c) To return the entrusted
funds
and interest
earned from
the lending
activities for
the customers to the entrusting party under the loan entrustment contract.
d) To perform the debt
classification for the business loan under the loan entrustment
contract in order to correctly assess the financial situation and ability of
debt repayment to serve the work of credit risk management.
dd) To implement the inspection
and supervision the process of capital borrowing and using of loan capital and
debt repayment of the customers under the content agreed with the entrusting
party in the loan entrusment contract.
e) To keep the dossier of
entrusted loan as prescribed by law on the keeping of credit dossier
3. To perform the other rights
and obligations under the contents of the loan entrustment contract in
conformity with the regulation of relevant law or upon the requirements from
the competent state agencies.
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1. The entrusting party for loan
has the right:
a) To make a decision on the
choice of the entrusted party for loan in order to ensure the use of the
entrusted capital safely and efficiently in accordance with the regulations of
the relevant law.
b) To require the entrusted
foreign credit institutions and bank branches to announce the implementation of
lending under the loan entrustment contract; to provide the evidencing
documents of the financial capacity of the customers, the disbursement
situation, debt recovery ability, the necessary information and materials
relating to the borrowing customers and the lending and debt recovery under
entrustment.
c) To deny the
request of
entrusted foreign credit
institutions and bank branches entrusted contrary to the
agreements
in the loan
entrustment contract.
d) To receive back the
entrustment capital and loan interest for the customers from the entrusted foreign credit
institutions and bank branches under the loan entrustment
contract.
dd) To handle under the
authority or initiate the suit agains the entrusted foreign credit institutions
and bank branches that breach the loan entrustment contract.
2. The entrusting party for loan
has the obligations:
a) To perform the transfer of
entrusted capital and make payment of the entrustment fee to the entrusted
party and the agreements under the loan entrustment contract.
b) To take responsibilities for
the legality of the entrusted capital resources.
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d) To keep the dossier of
entrusted loan in conformity with the regulations of law.
3. To implement other rights and
obligations under the content of the loan entrustment contract in conformity
with the regulations of the relevant law or upon having the requirements from
the competent state agencies.
SECTION 4.
IMPLEMENTATION ORGANIZATION
Article 16.
Implementation organization
1. This Circular takes
effect on May
02, 2012 and supersedes the Decision No. 742/2002/QD-NHNN dated
July 17, 2002 of
the
Governor of the State
Bank of
Vietnam on the
promulgation of
the Regulations
on entrustment and entrustment receiving for loan of the credit institutions.
2. For the loan
entrustment
contracts of
the foreign credit
institutions and bank branches signed before the effective date
of this Circular,
the entrusting
party and the entrusted foreign credit institutions and
bank branches shall keep on performing the contents specified in the loan
entrustment contract signed in conformity with the regulation of law coming
into force at the time of signing that contract or making agreement on
amendment and supplementation of the loan entrustment contract in accordance
with regulation in thid Circular.
3. The Chief of office, Director of Monetary
Policy Department and the Heads of units under the State Bank of Vietnam,
Director of the State Bank of Vietnam of branches in centrally run provinces
and cities; Chairmans of the Board, Chairman of the Member Board and General
Director (Director) of the foreign credit institutions and
bank branches, other organizations and individuals concerned are liable to
excute this Circular.
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PP.
GOVERNOR
DEPUTY GOVERNOR
Nguyen Dong Tien
Name of the foreign credit
institutions and bank branches:
REPORT ON PROFESSION OF ENTRUSTMENT AND ENTRUSTMENT
RECEIVING
Month….year…
(Promulgated
together with the Circular No. 04/2012/TT-NHNN dated March 08, 2012)
Target
Debt
balance/Balance
(billion
dong)
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1. Business
loan by the entrusted capital reresources
1.1. Making loan by the
entrusted capital resources from the domestic credit institutions and bank branches
1.1.a. Business loan classified by the period
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- Medium and long term
1.1.b. Business loan classified by type of currency
- In VND
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- In foreign currency
1.2. Making loan by the
entrusted capital resources from other domestic organizations
1.2.a. Business loan classified by the period
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- Short term
- Medium and long term
1.2.b. Business loan classified by type of currency
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- In foreign currency
(converted into VND)
1.3. Making loan by the
entrusted capital resources from foreign organizations
- Short term
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- Medium and long term
2. Outstanding debt
entrusted for other foreign credit institutions and
bank branches for loan making
2.1. Outstanding
debt entrusted for loan classified by the time limit
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- Short term
- Medium and long term
2.2. Outstanding
debt entrusted for loan classified by the type of currency
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- In foreign currency
(converted into VND)
3. The balance of the entrusted
operations and/or other entrusting operations (not entrustment receiving,
entrustment for loan) approved by the State Bank of Vietnam in writing
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Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Maker
Controller
Date…..
General
Director
Note:
1. Target (1) = (1.1) + (1.2)
+ (1.3)
Target (1.1) = (1.1.a) = (1.1.b)
Target (1.2) = (1.2.a) = (1.2.b)
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Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
2. Time limit for report
submission: Monthly, on the 12th date of the month following the
reporting month
3. Report receiving unit:
The Monetary
Policy Department – State Bank of Vietnam 49 LyThai To - Hoan
Kiem - Hà Noi (email: phongcstd@sbv.gov.vn, fax: 04.38246953 - 04.38240132)
4. It is requested that
the full name and phone number of the person in charge of answering the report
details upon the requirement from the State Bank of Vietnam.