THE
GOVERNMENT
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence Freedom Happiness
|
No.
104/2007/ND-CP
|
Hanoi,
June 14, 2007
|
DECREE
ON PROVISION OF DEBT COLLECTION SERVICES
THE GOVERNMENT
Pursuant to the December 25, 2001
Law on Organization of the Government;
Pursuant to the June 14, 2005 Civil Code;
Pursuant to the November 29, 2005 Law on Enterprises;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative
Violations;
At the proposal of the Minister of Finance,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.
Scope of regulation
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2. Debt collection services
defined in this Decree may only be provided for debts that:
a/ Are proved lawful on
sufficient grounds;
b/ Are overdue.
3. Not subject to this Decree
are debts currently udder legally effective court judgments or rulings; debts
owed to or payable by political organizations, socio-political organizations,
state agencies or peoples armed forces units, or debts between Vietnam and
international organizations or other countries.
Article 2.
Subjects of application
This Decree applies to economic
organizations and individuals involved in debt collection services in Vietnam,
including:
1. Creditors;
2. Debtors;
3. Debt collection service
enterprises;
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Article 3.
Interpretation of terms
In this Decree, some terms are
construed as follows:
1. Debt means a liability that
must be fulfilled by an economic organization or individual toward another;
2. Creditor means an economic
organization or individual that has the right to claim a debt;
3. Debtor means an economic
organization or individual that is obliged to pay a debt;
4. Overdue debt means a debt not
yet paid by the debtor to the creditor upon the expiration of the time limit
for debt payment as agreed upon by the creditor and the debtor or decided by a
competent state agency.
Article 4.
Principles for provision of debt collection services
1. Only enterprises possessing
debt collection service registration certificates may provide debt collection
services.
2. Debt collection service
enterprises may not conduct other business lines and provide services other
than debt collection services.
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4. Debt collection services are
provided under mandate contracts between creditors or debtors and debt
collection service enterprises within the scope of rights recognized by law.
Article 5.
Fulfillment of tax obligation and observance of accounting, auditing and
reporting regulations
1. Debt collection service
enterprises shall fulfill tax obligations according to the tax law.
2. Debt collection service
enterprises shall conduct accounting, statistical, auditing and reporting
activities according to relevant provisions of law applicable to enterprises.
Chapter II
DEBT COLLECTION SERVICES
Article 6.
Specific debt collection services
1. Representing creditors in
identifying debts and contents related to the fulfillment of the debt payment
obligation by debtors; urging debtors to pay debts; collecting debts.
2. Representing creditors in
working with related organizations or individuals for the purpose of collecting
debts.
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4. Providing legal consultancy
to creditors or debtors on identifying debts, or measures and procedures for
settling debts.
Article 7.
Measures to be taken in debt collection services
1. Debt collection service
enterprises may represent creditors in:
a/ Taking appropriate measures
to collect, analyze and compare relevant information for clearly identifying
debts;
b/ Notifying debtors of the debt
collection and requesting them to supply information, coordinating with,
supporting, or applying appropriate and lawful measures against debtors to make
them pay debts;
c/ Receiving under authorization
by creditors assets handed over by debtors or other related organizations or
individuals for performing debtors debt payment obligation.
2. Debt collection service
enterprises that represent debtors may apply appropriate measures specified in
Clause 1 of this Article to negotiate with creditors on matters as mandated by
debtors.
Article 8.
Responsibilities and powers of creditors and debtors
1. To cooperate with one another
and with debt collection service enterprises in clearly identifying debts;
debtors have the responsibility to pay debts to creditors.
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3. To supply debt-related
information, documents and necessary means to debt collection service
enterprises.
4. To pay service charges and
other reasonable expenses to debt collection service enterprises under signed
contracts.
5. To refuse to work with
representatives of debt collection service enterprises if these representatives
fail to present lawful papers or commit prohibited acts defined in Clause 2,
Article 11 of this Decree.
6. To request debt collection
service enterprises to fully and regularly report on the performance of debt
settlement activities under signed contracts.
7. To request the handover of
assets obtained from debts or return of documents and assets already given to
debt collection service enterprises under signed contracts.
8. To work directly or assign
their authorized representatives to work with representatives of debt
collection service enterprises.
9. To bear no joint
responsibility for illegal acts committed by debt collection service
enterprises.
Article 9.
Responsibilities and powers of debt collection service enterprises
1. To perform professional operations
as mandated by creditors or debtors within the scope permitted by law; not to
assign or sub-mandate individuals outside their enterprises or other
organizations to perform these operations, unless sub-mandated organizations
are also debt collection service enterprises and the sub-mandate is agreed upon
in writing by creditors or debtors (parties having signed mandate contracts
with debt collection service enterprises).
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3. To preserve and return to
creditors or debtors documents and assets which creditors or debtors have
supplied to them for providing debt collection services under signed contracts.
4. To fully and regularly report
to creditors or debtors on the performance of activities they are mandated to
perform under contracts.
5. To pay compensations to
creditors or debtors for damage caused by their breaches of contract, loss of
or damage to documents or assets supplied to them and assets obtained from
debts.
6. To collect debts and hand
over assets obtained from debts to creditors under signed contracts.
7. To bear responsibility before
law for commission of prohibited acts specified in Clause 2, Article 11 of this
Decree and acts beyond the scope of their mandate.
8. To issue papers of
introduction to their employees who are assigned to personally conduct debt
collection service activities.
9. To grant staff cards to their
employees fully qualified to conduct debt collection service activities under
the provisions of Articles 14 and 15 of this Decree. Such card must display the
photo, full name and position of the card wearer, and the enterprises seal.
10. To request creditors or
debtors to supply necessary information, documents and assets related to debts.
11. To be paid service charges
and other expenses by creditors or debtors as agreed in writing.
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Article 10.
Responsibilities of employees of debt collection service enterprises in
conducting debt collection activities
1. To perform only tasks within
the scope of lawful operation of their enterprises.
2. Not to commit prohibited acts
defined in Clause 2, Article 11 of this Decree.
3. Persons who do not wear staff
cards or have no papers of introduction of debt collection service enterprises
may not work directly with creditors or debtors or related organizations and
individuals.
Article 11.
Prohibited acts in debt collection services
1. For creditors or debtors:
a/ Mandating debt collection
service enterprises to conduct activities falling beyond their rights
recognized by law;
b/ Committing directly or
indirectly through other persons acts of defrauding, using force or threatening
to use force against staff of debt collection service enterprises.
2. For debt collection service
enterprises:
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b/ Using information obtained
through performing debt collection services for purposes other than those of
activities they are mandated to conduct or disclose such information to other
organizations and individuals to the disadvantage of creditors and debtors,
unless otherwise provided for by law;
c/ Conducting activities or
taking acts which are beyond their rights recognized by law or the scope of
activities they are mandated by creditors or debtors to conduct;
d/ Representing both creditor
and debtor in settling the same debt.
Article 12.
Debt collection service charge
Creditors or debtors and debt
collection service enterprises shall agree on debt collection service charges
and state them in contracts signed between them.
Chapter
III
CONDITIONS FOR PROVIDING
DEBT COLLECTION SERVICES
Article 13.
Condition on capital
Legal capital for the debt collection
service business is VND 2,000,000,000 (two billion).
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Article 14.
Condition on criteria of managers and directors of branches of debt collection
service enterprises:
1. Having full civil act
capacity.
2. Possessing a university or
postgraduate diploma in economics, administration, law or public security.
3. Having no criminal records.
4. Persons who have worked for
other debt collection service enterprises which had their debt collection
service registration certificates revoked must also satisfy the condition that
they have not acted as managers of these enterprises for the latest three
years.
Article 15.
Condition on criteria of employees involved in debt collection services
1. Being recruited under labor
contracts of an unspecified term or of a term of six months or more.
2. Having full civil act
capacity.
3. Possessing an intermediate or
higher education diploma in economics, administration, law or public security.
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Article 16.
Dossiers of registration of debt collection service provision
Apart from satisfying the legal
provisions on business registration dossiers, an enterprise registering to
provide debt collection services must also submit:
1. A dossier evidencing
satisfaction of the condition on capital, comprising:
a/ A written record of capital
contribution by founding shareholders, for joint-stock companies, or founding
members, for limited liability companies with two or more members; the
corporate owners decision of capital assignment, for one-member limited
liability companies owned by organizations; the corporate owners registration
of investment capital, for private enterprises and one-member limited liability
companies owned by individuals;
b/ For capital amounts
contributed in money, there must be certification by a commercial bank licensed
to operate in Vietnam of deposited money amounts of founding members. Deposited
money amounts must be equal to contributed capital amounts of founding members
and may be released only after the enterprise is granted a debt collection
service registration certificate.
c/ For capital amounts
contributed in asset, there must be a deed issued by a valuation organization
in Vietnam certifying the results of valuation of assets contributed to the
enterprises capital. That deed must remain valid by the date of submission of
the dossier to a competent business registry office.
2. A dossier evidencing
satisfaction of the condition on criteria of managers and directors of branches
of the enterprise, comprising:
a/ Valid copies of university
diplomas in any of the disciplines specified in Clause 2, Article 14 of this
Decree. For diplomas granted by foreign universities, their notarized
Vietnamese translations are required.
b/ Judicial record cards.
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Article 17.
Change of managers, directors of branches of enterprises and their charter
capital
When changing their managers,
directors of their branches or their charter capital, debt collection service
enterprises shall strictly comply with current provisions of law on business
registration and satisfy all conditions on capital and criteria of managers and
directors of branches of enterprises specified in Articles 13 and 14 of this
Decree.
Chapter IV
STATE MANAGEMENT OF DEBT
COLLECTION SERVICES
Article 18.
Responsibilities of the Ministry of Finance
1. To elaborate and propose to
competent authorities for promulgation or promulgate according to its competence
legal documents on provision of debt collection services.
2. To guide, inspect and
supervise activities of debt collection service enterprises.
Article 19.
Responsibilities of provincial/ municipal Peoples Committees
1. To inspect and supervise the
provision of debt collection services in their provinces or cities, and handle
acts of violation in the provision of debt collection services according to
their competence.
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Article 20.
Responsibilities of business registry offices
1. To receive and examine
dossiers of registration of debt collection services and grant debt collection
service registration certificates to enterprises if these dossiers satisfy all
the conditions specified in Articles 13, 14 and 16 of this Decree.
2. To report to
provincial/municipal Peoples Committees on the grant of debt collection service
registration certificates to enterprises (or the grant of operation
registration certificates to their branches).
Chapter V
SANCTIONING OF
ADMINISTRATIVE VIOLATIONS IN DEBT COLLECTION SERVICE PROVISION
Article 21.
General provisions on sanctioning of administrative violations in debt collection
service provision
1. Particular acts of violation
in debt collection service provision to be administratively sanctioned under
this Decree include:
a/ Acts of violation of
provisions on subjects permitted to provide debt collection services;
b/ Acts of violation of
provisions on conditions for providing debt collection services;
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2. Acts of violation in debt
collection service provision not specified in Clause 1 of this Article shall be
handled according to other current provisions of law.
3. Sanctioning principles,
statute of limitations for sanctioning, aggravating and extenuating
circumstances, sanctioning procedures and enforcement of sanctioning decisions
against acts of violation specified in this Decree comply with current
provisions of law on handling of administrative violations.
Article 22.
Forms of sanctioning administrative violations in debt collection service
provision
Acts of violation in debt
collection service provision specified in Clause 1, Article 21 of this Decree
are subject to either of the following administrative sanctioning forms:
1. Caution;
2. Fine;
The maximum fine level is VND
70,000,000 (seventy million).
3. In addition to the
sanctioning forms specified in Clauses 1 and 2 of this Articles, debt
collection service enterprises that commit acts of violation are forced to
comply with this Decrees provisions on debt collection services as a measure to
remedy consequences.
4. In addition to the
sanctioning forms specified in Clauses 1, 2 and 3 of this Article, debt
collection service enterprises that commit acts of violation may also be
subject to the additional sanctioning form of revocation of business
registration certificates according to the provisions of law on handling of
administrative violations in business registration.
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1. A fine of between VND
40,000,000 and 50,000,000 shall be imposed on organizations and individuals
that are not debt collection service enterprises and commit for the first time
acts of illegally providing debt collection services.
2. A fine of between VND
60,000,000 and 70,000,000 shall be imposed on organizations and individuals
that are not debt collection service enterprises and relapse into committing
acts of illegally providing debt collection services.
3. Consequence remedy: coerced
immediate termination of activities of providing debt collection services.
Article 24.
Administrative sanctions against acts of violation of provisions on conditions
for debt collection service provision
1. A caution shall be imposed on
debt collection service enterprises for any of the following first-time acts of
violation:
a/ Conducting other business
lines or providing services other than debt collection services defined in this
Decree;
b/ Failing to maintain the legal
capital level specified in this Decree;
c/ Electing or appointing
persons unqualified according to the provisions of this Decree as enterprise
managers or enterprise branch directors.
2. A fine of between VND
15,000,000 and 20,000,000 shall be imposed on debt collection service
enterprises for each re-commission of any of the acts of violation specified in
Clause 1 of this Article.
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a/ Coerced immediate termination
of business activities other than debt collection services.
b/ Coerced satisfaction of the
conditions on capital and criteria of managers or directors of branches of
enterprises.
Article 25.
Administrative sanctions against acts of violation of provisions on
professional requirements for debt collection service provision
1. A caution shall be imposed on
debt collection service enterprises for any of the following first-time acts of
violation:
a/ Failing to grant staff cards
to their employees assigned to personally conduct debt collection service
activities;
b/ Granting staff cards which do
not have all required details;
c/ Failing to issue papers of
introduction to their employees assigned to personally conduct debt collection
service activities;
d/ Their employees who are
assigned to personally conduct debt collection service activities wear no staff
cards or present no papers of introduction when working directly with debtors,
creditors or other related organizations and individuals.
2. A fine of between VND
10,000,000 and 15,000,000 shall be imposed on debt collection service
enterprises for any of the following acts of violation:
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b/ Re-committing any of the acts
of violation specified in Clause 1 of this Article.
3. A fine of between VND
20,000,000 and 25,000,000 shall be imposed for each re-commission of any of the
acts specified at Point a, Clause 2 of this Article.
4. Consequence remedies:
a/ Coerced immediate termination
of sub-mandate to organizations and individuals not permitted to provide debt
collection services;
b/ Coerced restoration of the
original state altered due to sub-mandate to organizations and individuals not
permitted to provide debt collection services;
c/ Coerced strict compliance
with this Decrees provisions on grant of staff cards and issuance of papers of
introduction.
Article 26.
Competence to impose administrative sanctions for acts of violation specified
in Articles 23, 24 and 25 of this Decree
1. Presidents of Peoples
Committees at all levels may impose administrative sanctions for acts of
violation specified in this Decree within their sanctioning competence provided
for in Articles 29 and 30 of the Ordinance on Handling of Administrative
Violations.
2. When on duty, inspectors of
the Ministry of Finance and provincial/municipal Finance Services may:
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b/ Apply the consequence
remedies specified in this Decree.
3. Chief inspectors of
provincial/municipal Finance Services may:
a/ Impose cautions;
b/ Impose fines of up to VND 20,000,000;
c/ Apply the consequence
remedies specified in this Decree.
4. The Chief Inspector of the
Ministry of Finance may:
a/ Impose cautions;
b/ Impose fines of the highest
level specified in this Decree;
c/ Apply the consequence
remedies specified in this Decree.
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IMPLEMENTATION PROVISIONS
Article 27.
Effect
This Decree takes effect 15 days
after its publication in CONG BAO.
Article 28.
Applicability to enterprises licensed to provide debt collection services
before the effective date of this Decree.
1. For enterprises engaged only
in debt collection service provision:
a/ Enterprises that fully
satisfy the conditions specified in Articles 13, 14 and 15 of this Decree are
not required to carry out business registration procedures anew but shall make
and send, within 60 days from the effective date of this Decree, dossiers
evidencing their satisfaction of these conditions to business registry offices.
A dossier comprises:
A document evidencing
satisfaction of the condition on capital: The accounting balance sheet of the
enterprise at the end of the latest month;
Documents evidencing
satisfaction of the condition on criteria of managers and branch directors of
the enterprise as stipulated in Clause 2, Article 16 of this Decree.
b/ Enterprises that do not fully
satisfy the new conditions for providing debt collection services shall strive,
within 60 days from the effective date of this Decree, to fully satisfy these
conditions and send their dossiers made under Item a, Clause 1 of this Article
to business registry offices. Failing to do so, they will have their business
registration certificates revoked.
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Article 29.
Organization of implementation
1. The Minister of Finance shall
guide the implementation of this Decree.
2. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies and
presidents of provincial/municipal Peoples Committees shall implement this
Decree
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung