THE GOVERNMENT
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|
THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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|
No.
39/2014/ND-CP
|
Hanoi,
May 7, 2014
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DECREE
ON OPERATION OF FINANCIAL COMPANIES AND
FINANCIAL LEASING COMPANIES
Pursuant to the December
25, 2001 Law on Organization of the Government;
Pursuant to June
16, 2010 Law on the State Bank of Vietnam; Pursuant to June 16, 2010 Law on
Credit Institutions;
At the proposal of
the Governor of the State Bank of Vietnam,
The Government
promulgates the Decree on operation of financial companies and financial
leasing companies.
Chapter I
GENERAL
PROVISIONS
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This Decree provides
the operation of financial companies and financial leasing companies.
Article 2. Subjects of application
1. Financial
companies and financial leasing companies established and operating in Vietnam.
2. Organizations and
individuals related to the operation of financial companies and financial
leasing companies specified in Clause 1 of this Article.
Article 3. Interpretation of terms
In this Decree, the
terms and phrases below are construed as follows:
1. General financial company means a financial company which may perform activities
prescribed in
the Law
on Credit Institutions and this
Decree.
2. Specialized financial
companies include factoring financial
companies, consumer credit financial companies and financial
leasing
companies as defined in this Decree
and
guided by the
State
Bank
of Vietnam (below referred
to as the State Bank).
3. Factoring financial company
means a specialized financial company mainly engaged in factoring activities
under this Decree.
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5. Financial leasing company
means a specialized financial company
mainly
engaged in financial leasing under
this Decree. Financial leasing debit
balance must make
up
at least 70% of
the total credit balance.
6. Consumer credit means a form of credit provided to individuals for
their consumption purpose through provision of loans, including amortized loans, consumer
loans
and
issuance of credit cards.
7. Financial leasing means medium-term and long-term credit activities
based on financial leasing contracts between the lessors and the
lessees.
The
lessors commit to buying assets for financial leasing at the request of
the lessees and hold the ownership over financially leased assets during the lease
term. The lessees use the leased assets and pay
rents therefor during the lease
term
under the financial leasing contracts.
8. Assets for financial leasing (below
referred to as leased assets) means machinery, equipment and other assets prescribed by the State Bank. The State Bank shall guide in detail types
of leased asset in each period.
9. Financial lessor (below referred
to as lessor) means a
financial leasing company or financial company.
10. Financial lessee (below referred
to as lessee) means an organization
or
individual that is operating in Vietnam and directly uses the leased assets
for its/his/her
operation.
11. Rent means an amount payable by a lessee to a lessor as
agreed upon in a financial leasing contract.
12. Financial leasing contract means an irrevocable contract between a lessor and a lessee on financial leasing of one
or some leased assets.
13. Purchase and sub-lease in the form of financial leasing (below
referred to as purchase and sub-lease) means that a
financial lessor purchases
machinery, equipment or other assets which are lawfully owned by a lessee
and
sub-leases such assets to the lessee in the form
of
financial leasing for continued use
to
serve their activities.
In the purchase and sub-lease
transactions, the lessee is
also
the supplier of assets for
leasing.
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1. General financial companies may add or modify contents of their
operation under this
Decree to be transformed into specialized financial
companies.
2. Specialized financial companies may not add contents of operation to be
transformed into general financial companies.
3. Based on results of the State Bank’s inspection,
examination and
supervision and in the course of restructuring of financial companies, the State Bank shall decide on the merger or transformation of financial
companies.
Chapter II
OPERATION OF FINANCIAL COMPANIES
Article 5. Banking operations of financial
companies
The general
conditions for a financial company to conduct banking operations prescribed in
Clause 1, Article 108 of the Law on Credit Institutions include:
1. Its banking
operations are indicated in its establishment and operation license granted by
the State Bank (below referred to as the license).
2. It has a
contingent of professionally qualified employees, physical facilities,
technologies, means, equipment and internal regulations in accordance with law
for conducting banking operations indicated in the license.
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4. It satisfies all
professional conditions for banking operations prescribed by the State Bank.
Article 6. Issuance of deposit
certificates, promissory notes, bills or bonds to raise capital from
organizations
Financial companies may issue deposit certificates, promissory notes, bills
or bonds
to raise capital from organizations
if satisfying all
the following conditions:
1. The conditions prescribed in Article 5 of
this Decree.
2. Their minimum operation duration, operation and business results are prescribed by the State Bank.
3. Their long-term valuable paper issuance plans are approved by
the Shareholders’ General
Meeting, the Board of Directors
or the
Members’ Council in accordance
with law.
Article 7. Borrowing loans from domestic and
overseas credit institutions and financial institutions
Financial companies
may borrow loans from domestic and overseas credit institutions and financial
institutions if satisfying all the following conditions:
1. The conditions
prescribed in Article 5 of this Decree.
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Article 8. Borrowing loans from the State
Bank in the re-financing form
Financial companies
may borrow loans from the State Bank in the form of re-financing if satisfying
all the following conditions:
1. The conditions prescribed
in Article 5 of this Decree.
2. They satisfy all
the conditions for borrowing loans in the form of re- financing prescribed by
the State Bank.
3. Their loan
borrowing purposes comply with the objectives of the State Bank’s monetary
policy management for each period.
Article 9. Provision of loans, including amortized loans and consumer
loans
Financial companies may
provide loans, including amortized loans and consumer loans, if
satisfying all the
conditions prescribed in Article 5 of this
Decree.
Article 10. Bank guarantee
Financial companies
may provide bank guarantee if satisfying all the following conditions:
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2. They satisfy all
the conditions on the guaranteed and the guarantors prescribed by the State
Bank.
Article 11. Factoring
1. Financial
companies may provide factoring if satisfying all the following conditions:
a/ The conditions
prescribed in Article 5 of this Decree;
b/ They have internal
regulations on process, procedures and principles of client identification to
strictly supervise and prevent the abuse of financial companies for money
laundering, terrorism financing and other criminal activities.
2. Financial
companies established and operating before the effective date of this Decree
may add factoring operation if meeting all the conditions prescribed in Clause
1 of this Article and the following conditions:
a/ Conducting
profitable business operation in the year preceding the year of requesting the
operation addition;
b/ Having a minimum
operation duration and factoring operation plan prescribed by the State Bank;
c/ Complying with
regulations on safety ratios in banking activities, classification of debts and
deduction for setting up risk provisions in all quarters of the year preceding
the year of requesting the operation addition;
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dd/ Not being
sanctioned for administrative violations in the monetary and banking fields in
the year preceding the time of requesting the operation addition.
Article 12. Issuance of credit cards
1. Financial
companies may issue credit cards if meeting all the conditions prescribed in
Clause 1, Article 11 of this Decree.
2. Financial
companies established and operating before the effective date of this Decree
may add the issuance of credit cards if meeting all the conditions prescribed
in Clause 1 of this Article and the following conditions:
a/ The conditions
prescribed at Points c, d and dd, Clause 2, Article 11 of this Decree;
b/ Having profitable
business operation for at least two consecutive years preceding the year of
requesting the operation addition;
c/ Having a minimum
operation duration and a credit card issuance operation plan prescribed by the
State Bank.
Article 13. Financial leasing
1. Financial
companies may conduct financial leasing activities under the provisions on
financial leasing in Chapter III of this Decree if satisfying all the following
conditions:
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b/ Having internal
regulations on process, procedures and principles of client identification to
strictly supervise and prevent the abuse of financial companies for money
laundering, terrorism financing and other criminal activities.
2. Financial
companies established and operating before the effective date of this Decree
may add the operation of financial leasing if meeting all the conditions
prescribed in Clause 1 of this Article and the following conditions:
a/ The conditions
prescribed at Points a and b, Clause 2, Article 12 of this Decree;
b/ Having a minimum
operation duration and a financial leasing plan prescribed by the State Bank.
Article 14. Other activities of financial
companies
Financial companies may
perform other activities specified in Articles 109 thru 111 of the Law on
Credit Institutions.
Article 15. Operations of factoring financial
companies and consumer credit financial companies
1. Conditions for
factoring financial companies to conduct factoring activities:
a/ The conditions
prescribed in Clause 1, Article 11 of this Decree;
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2. Factoring financial
companies may perform the activities specified at Points a and e, Clause 1,
Article 108 of the Law on Credit Institutions, Articles 6, 7, 8, 11 and 14 of
this Decree if satisfying all the conditions prescribed in this Decree, except
the following:
a/ Guaranteeing the
issuance of corporate bonds and buying and selling corporate bonds;
b/ Receiving
entrusted capital from the Government, organizations and individuals for
investment in production and business projects;
c/ Entrust capital to
other credit institutions to grant credits.
3. Conditions for
consumer credit financial companies to provide consumer credit:
a/ The conditions
prescribed in Article 9 and/or Article 12 of this Decree;
b/ The consumer credit
debit balance makes up at least 70% of the total credit balance or equals
another ratio prescribed by the State Bank for each period.
4. Consumer credit
financial companies may conduct the activities specified at Points a and e,
Clause 1, Article 108 of the Law on Credit Institutions, Articles 6, 7, 8, 9,
12 and 14 of this Decree if satisfying all the conditions prescribed in this
Decree, except those prescribed at Points a, b and c, Clause 2 of this Article.
Chapter III
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Article 16. Operation of financial leasing
companies
1. Financial leasing
companies may conduct the operations specified in Articles 112 thru 116 of the
Law on Credit Institutions and this Decree.
2. Purchase and
sub-lease.
3. Sale of payable amounts
from financial leasing contracts to organizations and individuals under the
State Bank’s regulations.
Article 17. Rights
of lessors
1. To own leased
assets throughout the lease term and not to be affected in case the lessee goes
bankrupt, is dissolved or involved in a dispute or lawsuit at court related to
a third party. Leased assets are not regarded as assets of the lessee upon the
handling of assets for payment of debts to other creditors.
2. To affix their
ownership signs onto leased assets throughout the lease term.
3. To request lessees
to pay deposits or to apply other security methods in accordance with law if
necessary.
4. To request lessees
to provide information on suppliers, quarterly reports on their production and
business activities, annual financial settlement as well as matters related to
lessees and leased assets.
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6. To transfer their
rights and obligations in financial leasing contracts to other financial
lessors. In this case, lessors shall notify such in writing to lessees.
7. To request lessees
to pay compensations when the latter violates terms and conditions of financial
leasing contracts.
8. To terminate leasing
contracts ahead of schedule and request lessees to pay the remaining rent and
expenses arising during the termination of financial leasing contracts ahead of
schedule as lessees violate terms and conditions which constitute grounds for
termination of contracts as prescribed in financial leasing contracts.
9. To recover leased
assets if lessees use and exploit leased assets in contravention of provisions
of financial leasing contracts; to request competent state agencies to apply
methods in accordance with law to ensure that lessors exercise the owner’s
rights to leased assets.
10. To recover
irreparably damaged leased assets, request lessees to pay their remaining rent
and expenses arising in the course of recovery of leased assets.
11. Other rights prescribed
in financial leasing contracts.
Article 18.
Obligations of lessors
1. To assess the
financial capacity and prestige of legally operating suppliers; leased assets,
including their technical specifications, types, prices and time limits for
delivery, installation and warranty; the feasibility and efficiency of
production and business investment projects, conditions on financial leasing,
leased asset use purpose and lessees’ debt payment capacity.
2. To purchase and
import assets already agreed upon by both parties in financial leasing
contracts.
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4. To take no
responsibility for the non-delivery of assets or failure to deliver the assets
under the conditions already agreed upon between lessees and suppliers.
5. To implement
properly other terms and conditions in financial leasing contracts.
Article 19. Rights
of lessees
1. To receive and use
leased assets under provisions of financial leasing contracts.
2. To decide on
purchase or continued lease of assets upon the expiry of the lease term.
3. To request lessors
to pay compensations for their violation of terms and conditions of financial
leasing contracts.
4. Other rights prescribed
by financial leasing contracts.
Article 20.
Obligations of lessees
1. To be responsible
for the selection of leased assets, suppliers, terms and conditions relating to
leased assets, including technical specifications, types, prices and time
limits for delivery, installation and warranty and other leased asset-related
terms and conditions.
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3. To provide
information on suppliers, quarterly reports on their production and business
activities, annual financial settlement as well as matters related to leased
assets at lessors’ request; to create conditions for lessors to check leased
assets.
4. To pay rents and
pay other expenses related to leased assets under provisions of financial
leasing contracts.
5. To bear all risks
of loss of leased assets, all expenses for maintenance, repair or replacement
of leased assets throughout the lease term and be responsible for all
consequences caused by the use of leased assets to other organizations and
individuals in the course of using leased assets.
6. To refrain from
erasing or damaging lessors’ ownership signs affixed on leased assets.
7. To refrain from
using leased assets for mortgage, pledge or use as security for performance of
other obligations.
8. To pay the remaining
rent and expenses incurred to lost or irreparably damaged leased assets or upon
the termination of financial leasing contracts ahead of schedule as lessees
violate terms and conditions which constitute grounds for terminating contracts
prescribed in financial leasing contracts.
9. To properly
implement other terms and conditions in financial leasing contracts.
Article 21.
Termination of financial leasing contracts ahead of schedule
1. A financial
leasing contract may terminate ahead of schedule in one of the following cases:
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b/ The lessee is declared
bankrupt or dissolved;
c/ The lessor
violates one of other terms and conditions constituting grounds for terminating
the contract under provisions of the financial leasing contract;
d/ The leased assets
are lost or irreparably damaged;
dd/ The lessor and
lessee agree to the latter’s payment of the remaining rent ahead of schedule
prescribed by the financial leasing contract.
2. Lessors and
lessees shall provide in detail the termination of contracts in financial
leasing contracts specified in Clause 1 of this Article.
Article 22.
Handling of financial leasing contracts terminated ahead of schedule
1. In case a
financial leasing contract is terminated ahead of schedule under Points a and
b, Clause 1, Article 21 of this Decree, the lessee shall immediately pay the
remaining rent. If the lessee fails to pay the rent, the lessor shall handle
the leased assets as follows:
a/ The lessor shall
notify in writing to the lessee, the People’s Committee and the public security
office of the place where the lessee’s head office and leased assets are
located the recovery of the leased assets and request such agencies, within the
ambit of their functions, tasks and powers, to apply methods in accordance with
law to maintain security and order in the course of recovery of the leased
assets, to ensure the lessor’s exercise of the owner rights to the leased
assets; immediately recover the leased assets (except the leased assets being
subjects and material evidences of criminal cases handled in accordance with
the criminal law); grant compulsory loans to the lessee to pay the cost of
recovering the leased assets upon its/his/her breach of the financial leasing
contract and involuntary transfer of assets;
b/ The lessee shall
immediately cease the use and return the leased assets to the lessor at the
latter’s request, refrain from any act to hinder the recovery of the leased
assets or continued possession or use of the leased assets; pay the remaining
rent under provisions of the financial leasing contract and expenses arising
from the recovery of the leased assets; accept compulsory loans offered by the
lessor to pay for the cost of recovering the leased assets upon the lessee’s
breach of the financial leasing contract and involuntary transfer of assets.
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3. In case a
financial leasing contract is terminated ahead of schedule under Point d,
Clause 1, Article 21 of this Decree:
a/ If the leased
assets are lost or irreparably damaged, the lessor shall notify in writing the
administration of the locality where the lessee’s head office and leased assets
are located of the lost or irreparably damaged assets and request the
application of methods within its competence in accordance with law to ensure
the lessor’s exercise of the owner rights to the leased assets; send the lessee
a notice of recovery of the lost assets and request its/him/her to pay the
remaining rent under provisions of the financial leasing contract and expenses
relating to the recovery of the leased assets;
b/ The lessee shall
transfer the damaged leased assets at the request of the lessor, pay the latter
the remaining rent under provisions of the financial leasing contract and
expenses arising from the recovery of the leased assets.
Article 23.
Certificates of leased asset ownership
In the course of leasing term, the lessor shall keep the original of the certificate of
ownership
of the
leased
assets.
The lessee may use copies certified by competent state agencies in legal relations involving
the use of leased assets.
Article 24.
Registration of financial leasing contracts
The registration of
financial leasing contracts complies
with law.
Chapter IV
IMPLEMENTATION PROVISIONS
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1. Within 12 months
from the effective date of this Decree, financial companies and financial
leasing companies established and operating with licenses granted by the State Bank
before the effective date of this Decree must fully satisfy the conditions on
conditional operations prescribed in this Decree.
2. Within 18 months
from the effective date of this Decree, general financial companies, consumer
credit financial companies and financial leasing companies already established
and operating with licenses granted by the State Bank before the effective date
of this Decree shall terminate their activities conducted not under this
Decree.
3. For financial
leasing contracts and loan contracts signed before the effective date of this
Decree, financial leasing companies and clients shall comply with signed
agreements until the expiry of such contracts. The above contracts shall be
modified or supplemented if the amended and modified contents comply with
provisions of this Decree.
4. For financial
leasing contracts in which the leased assets are ships and boats operating on
domestic and international routes signed before the effective date of this
Decree, the lessees may keep and use original certificates of ownerships of
leased assets in international legal relations involving the use of leased
assets, while lessors shall keep copies certified by competent state agencies.
5. The State Bank
shall guide in detail the transition of financial companies specified in Clause
1 and 2 of this Article.
Article 26. Responsibilities of ministries and
sectors
1. The Ministry of
Public Security, the Ministry of Justice and the Ministry of Transport shall, based
on their functions and tasks, guide or coordinate in guiding, and prescribe the
grant and use of the certificate of ownership of leased assets and copies of
such certificate, the registration of ownership of leased assets to ensure the
owner’s right to the leased assets during the lease term.
2. The Ministry of
Justice shall, based on its functions and tasks, guide or coordinate with the
State Bank and related ministries and sectors in guiding the registration of
financial leasing contracts.
3. The Ministry of
Justice, the Ministry of Public Security, the State Bank and related local
authorities shall, based on their functions and tasks, guide or coordinate in
guiding the recovery and handling of leased assets.
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Article 27. Effect
1. This Decree takes
effect on June 25, 2014.
2. This Decree
replaces the Government’s Decrees No. 79/2002/ND-CP of October 4, 2002, on
organization and operation of financial companies, No. 81/2008/ND-CP of July
29, 2008, amending and supplementing a number of articles of the Government’s
Decree No. 79/2002/ND-CP of October 4, 2002, on organization and operation of
financial companies, No. 16/2001/ND-CP of May 2, 2001, on organization and
operation of financial leasing companies, No. 65/2005/ND-CP of May 19, 2005,
amending and supplementing a number of articles of the Government’s Decree No.
16/2001/ND-CP of May 2, 2001, on organization and operation of financial
leasing companies, and No. 95/2008/ND-CP of August 25, 2008, amending and
supplementing a number of articles of the Government’s Decree No. 16/2001/ND-CP
of May 2, 2001, on organization and operation of financial leasing companies.
Article 28. Implementation responsibility
Ministers, heads of
ministerial-level agencies, heads of government- attached agencies,
chairpersons of provincial-level People’s Committees and the subjects defined
in Article 2 of this Decree shall implement this Decree.-
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung