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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
101/2012/NĐ-CP
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Hanoi,
November 22, 2012
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DECREE
NON-CASH PAYMENTS
Pursuant to the Law on Government
organization dated December 25th 2001;
Pursuant to the Law on the State bank of
Vietnam No. 46/2010/QH12 dated June 16th 2010;
Pursuant to the Law on credit institutions
No. 47/2010/QH12 dated June 16th 2010;
At the proposal of the Governor of the State
bank of Vietnam;
The Government promulgates a Decree on
non-cash payments,
Chapter 1.
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Article 1. Scope of
regulation
This Decree deals with the non-cash payments,
including: opening and using payment accounts, non-cash payment services,
payment intermediary services, organizing, managing, and supervising the
payment systems.
Article 2. Subjects of
application
1. Providers of non-cash payment services.
2. Providers of payment intermediary services
3. Users of non-cash payment services and
payment intermediary services (hereinafter referred to as service users)
Article 3. Payments in
foreign currencies and international payments
1. Payments in foreign currencies and
international payments must be made in accordance with laws on foreign
currencies management and international agreements on payment to which Vietnam
is a signatory.
2. Apply the international practice to the
international payments that are not regulated by Vietnam’s law, as long
as they are not at odds with fundamental principles of Vietnam’s law.
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In this Decree, the terms below are construed as
follows:
1. Non-cash payment services (hereinafter
referred to as payment services) includes the payment services via payment
accounts and some payment services without payment accounts of clients.
2. International payments are payments that are
made by parties, at least one among which has payment accounts outside
Vietnam’s territory.
3. Providers of non-cash payment services
(hereinafter referred to as providers of payment services) include: the State
bank of Vietnam (hereinafter referred to as the State bank), banks, branches of
foreign banks, people's credit funds, microfinance institutions, and other
organizations.
4. Providers of payment intermediary services
are organizations that are not banks and are issued with the License to provide
payment intermediary services by the State bank.
5. Payment account owner is the person that
opens the account. The account owner of an individual’s account is the person
that opens the account. The owner of an account of an organization is the
legal representative or authorized representative of the organization that
opens such account.
Article 5. State management
responsibility of the State bank for the non-cash payment
1. Promulgate or request competent agencies to
promulgate legal documents on non-cash payments.
2. Organize, manage, operate, and supervise the
national payment system; participating in the organization and supervision of
the operation of payment systems in the economy.
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4. Carry out inspection, supervision, and handle
the violations committed by organizations and individuals relevant to non-cash
payments.
5. Manage and supervise the international
cooperation in payment.
Article 6. Prohibited acts
1. Forging, falsifying, replacing payment
facilities, payment documents; storing, circulating, transferring, and using
fake payment facilities.
2. Intruding or attempting to intrude, sabotage,
or illegally changing the software and electronic database used in payment;
taking advantage of the computer network errors to make profit.
3. Provide inaccurate information during the
provision and use of payment services and payment intermediary services.
4. Illegally revealing and providing the
information about the deposit of account owners.
5. Opening or holding anonymous or impersonation
payment accounts.
Chapter 2.
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Article 7. Opening and using
payment accounts
The payment accounts must be opened and used
under contracts signed by relevant parties, specifying the rights and
obligations of the parties in accordance with law.
Article 8. Opening and using
payment accounts of the State bank
1. The State bank shall open payment accounts
for State Treasuries, credit institutions, and branches of foreign banks as
prescribed in Clause 2 and Clause 3 Article 27 of the Law on the State bank of
Vietnam, and Article 101, Article 109, Article 114, Clause 4d Article 118, and
Article 121 of the Law on credit institutions.
2. The State bank shall open payment accounts
for State Banks of other countries, foreign banks, international monetary
institutions, and international banks in accordance with the International
Agreements to which Vietnam is a signatory. In case Vietnam is not a signatory,
the payment accounts shall be opened in accordance with the Prime Minister’s
decisions.
3. The State bank shall opens payment accounts
at State Banks of other countries, open payment accounts and make payments
overseas in accordance with the International Agreements to which Vietnam is a
signatory.
Article 9. Opening and using
payment accounts among credit institutions
1. Payment accounts among credit institutions
must be opened and used in accordance with the Law on credit institutions. The
payment accounts among credit institutions only serve the payment, not other
purposes.
2. The State bank shall allow banks and branches
of foreign banks that engage in the foreign currencies market to open payment
accounts in foreign currencies. The payment accounts in foreign currencies must
be opened and used in accordance with laws on foreign currencies.
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1. Banks and branches of foreign banks shall
guides clients to open payment accounts in accordance with the regulations of
the State bank and other relevant laws.
2. The account openers being individuals must be
capable of civil acts; or people at the age of 15 to under 18 that have their
own property. Minors must open payment accounts with their guardians as
prescribed by law.
3. Shared payment accounts are payment accounts
undersigned by at least two subjects.. Owners of shared payment accounts are
organizations or individuals. The use purposes of shared payment accounts,
rights and obligations of owners of shared payment accounts and the regulations
on the use of shared accounts must be specified in writing.
Article 11. Using and
authorizing the use of payment accounts
1. Account owners may use their payment accounts
for crediting, withdrawing cash, and request the providers of payment services
to make legitimate payment. Account owners are entitled to request
providers of payment services to provide information about the transactions and
the balance of their payment accounts.
2. Account owners may authorize other people in
writing to use payment accounts as prescribed by law.
3. Account owners must comply with the
regulations on opening and using payment accounts of providers of payment
services, and have enough money in their payment accounts to execute the
payment order, unless otherwise agreed with providers of payment services.
4. Providers of payment services must promptly
and completely execute the valid payment orders of account owners.
5. Providers of payment services are entitled to
refuse invalid payment orders of account owners, or there is not enough money
in payment accounts, unless otherwise agreed. The providers of payment services
must immediately explain their refusal to account owners.
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1. A payment account shall be partly or totally suspended
when the at the request of the account owner or as agreed by the account owners
and the provider of payment services.
2. A payment account shall be partly or totally
blocked in the following cases:
a) Competent agencies requests in writing as prescribed
by law;
b) The provider of non-cash payment intermediary
services finds mistakes during the money transfer;
c) When the provider of payment services detects
signs of fraud and violations of laws on payment;
d) There are disputes over shared payment
account owners.
3. The payment account is blocked upon the
decision of the competent agency as prescribed by law, or the disputes
prescribed in Clause 2 this Article are settled.
4. If the payment account is illegally blocked
and cause damage to the account owner, the party that make the order to block
such account must pay compensation as prescribed by law.
Article 13. Closing payment
accounts
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a) The account owner requests, and has fulfilled
the obligations related to the payment account;
b) The account owner being an individual is
dead, lost, or incapable of civil acts;
c) The organization that has the payment account
is shut down as prescribed by law;
d) The account owner violates the contract to
open and use the payment account signed with the providers of payment services;
dd) The account owner or the provider of payment
services violates Article 6 of this Decree and other laws on payment;
e) Other cases as prescribed by law.
2. When closing payment accounts, the remainder
shall:
a) Paid at the request of the account owner or
their heir, the legal representative of the heir in case the account owner
being an individual is dead, lost, or at the request of the legal guardian in
case the account owner being a individual is not capable of civil acts;
b) Be paid under the Court’s Decision;
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Chapter 3.
PAYMENT SERVICES AND
PAYMENT INTERMEDIARY SERVICES
Article 14. Payment
services
1. Payment services via the clients’ payment
accounts, including:
a) Provision of payment facilities;
b) Provisions of payment services via cheques,
payment order, collection order, bank cards, letter of credit, bank transfer,
payment authorization;
c) Other payment services.
2. Payment services via the clients’ payment
accounts:
a) The State bank shall provide the payment
services for the clients that open payment accounts at the State bank;
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c) Cooperative banks may provide some payment
services prescribed in Clause 1 this Article after obtaining the approval from
the State bank.
3. Payment services via clients’ payment
accounts, including: money transfer services, payment authorization, and other
payment services.
4. Payment services without clients’ payment
accounts:
a) The banks prescribed in Clause 2 this Article
may provide payment services without payment accounts for their clients;
b) The people's credit funds may provide money
transfer services, and provided services of authorized payment and authorized
collection for their members;
c) The microfinance institutions may provide
services of authorized collection, authorized payment, and money transfer to
microfinance clients
d) Other organizations that provide payment
services without payment accounts must comply with the regulations of the State
bank.
Article 15. The payment
intermediary services and conditions thereof
1. Payment intermediary services include:
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b) Payment service support;
c) Other payment intermediary services as
prescribed by the State bank.
2. Requirements for providing payment
intermediary services
The organizations not being banks that wish to
provide payment intermediary services must satisfy the following requirements:
a) Having a License for establishment or
Certificate of business registration issued by competent State agencies, in
which the provision of payment intermediary services is one of their primary
businesses;
b) Having an approved plan for payment
intermediary service provisions in accordance with the regulations on investment
authority prescribed in their charter;
c) Having at least 50 billion VND of charter
capital;
d) Requirements of human resources:
The legal representative, the General Director
(Director) of the applying organization must have proficiency or experience in
business administration or their discipline.
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dd) The technical and professional conditions
include: facilities and technical infrastructure that suit the requirements for
providing payment intermediary services and the regulations of the State bank;
the back-up technical system independent from the primary system that ensures
the safe and continuous service provision when the primary system has problems;
the technical and professional process in the provision of payment intermediary
services that ensures the safety, security, and suite the laws on electronic
transaction; the process of internal inspection of payment intermediary
services in electronic transactions as prescribed by current law.
Article 16. The procedure
and documents for issuing, revoking, and reissuing the Licenses to provide
payment intermediary services
1. The procedure for issuing the License
a) The applicant shall send the dossier of
application for the License (including 05 sets), by post or directly, to the
State bank as prescribed in Clause 2 this Article. The applicant is responsible
before law for the accuracy of the information provided;
b) Based on the dossier of application, the
State bank shall examine the dossier according to the conditions in Clause 2
Article 15 of this Decree;
c) Within 60 days as from receiving the complete
and valid dossier, the State bank shall appraise and issue the License, or the
written refusal to issue the license and specify the reasons;
d) The organization that is issued with the
License to provide payment intermediary services must pay fees as prescribed by
law.
2. 2. The dossier of application for the Licenses
to provide payment intermediary services includes:
a) The written application for the License
according to the form provided by the State bank;
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c) The scheme for the provision of payment
intermediary services;
d) The description of technical solution and the
written acceptance of technical experiment with another organization;
dd) The documents about personnel: the résumés,
the authenticated copies of the qualifications proving the capability and
proficiency of the legal representative, General Director (Director), Deputy
General Director (Deputy Director) and the senior officers that execute the
Scheme for the provision of payment intermediary services;
e) The License for establishment or Certificate
of business registration issued by competent State agencies, the Charter of
organization and operation (authenticated copy);
3. License period
The period of the License is 10 years as from
the day the organization is issued with the License by the State bank.
4. Revoking the License
a) The organization shall have its License
revoked, and have to terminate the provision of payment intermediary services
in one of the following cases:
The organization fails to commence the provision
of licensed payment intermediary services without legitimate reasons within 06
months as from the date of issue of the License; the organization fails to
rectify the violations within 03 months as from the State bank notifies the
organization of one of the violations of the requirements prescribed in Clause
2 Article 15 of this Decree, and requests it to rectify; the organization is
dissolved or bankrupt as prescribed by relevant laws.
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When the licensed organization commits one of
the violations prescribed in Point a Clause 4 this Article, the State bank
shall send written notification to the licensed organization of the revocation
of the License, and provide the explanation. The State bank shall announce the
License revocation of such organization on the State bank’s website.
When receiving the written notification from the
State bank of the revocation of the License to provide payment intermediary
services, the organization that has its License revoked must immediately stop
providing payment intermediary services.
Within 30 days as from receiving the notification
from the State bank, the organization that has its license revoked must send
written notification to relevant organizations and individuals to liquidate the
contracts and settle the obligations among them.
5. Reissuing the License
Within 30 days as from receiving the application
for reissuing the License, the State bank shall consider and issue the License,
or the written refusal to issue the license enclosed with the explanation in
one of the following cases:
a) The License expires
At least 60 days before the License expires, the
organization must apply for reissuing the License and a copy of the unexpired
License to the State bank.
b) The License is revoked
After 6 months as from the reasons for revoking
the License are completely rectified, the organization that had its Licensed
expired may send an explanation and application for reissuing the License to
the State bank.
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If the organization wishes to change the content
of the License, its must make and send a written request, specifying the
amendment and the reason for it, enclosed with a copy of the unexpired License,
to the State bank.
d) In case the License in lost or damaged, the
organization must send a written application for reissuing the License and, and
the explanation, to the State bank.
Article 17. Service charges
1. The providers of payment services and the
providers of payment intermediary services must fix and post their service
charges.
2. If the banking activities are unpredictable,
the State bank shall provide a mechanism for determining the charges for
payment services and charges for payment intermediary services.
Article 18. Compensation
The providers of payment services and providers of
payment intermediary services must pay compensation for damage if they violate
the agreements among the relevant parties, or violate laws.
Article 19. Dispute
settlement
If there is no agreement on the dispute
settlement in the contract, the dispute shall be settled as prescribed by law.
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Providers of payment services and
providers of payment intermediary services must take measures for ensuring the
safe payment as prescribed by law. Service users must implement the safety
measures when making payment guided by the service providers.
Chapter 4.
INFORMATION, REPORTS,
AND INFORMATION SECURITY
Article 21. The rights
about information and reports
1. The State bank is entitled to request providers
of payment services and providers of payment intermediary services to provide
periodic and irregular information about the payments.
2. Providers of payment services and providers
of payment intermediary services are entitled to request their clients to
provide relevant information.
Article 22. Obligations
about information and reports
1. Providers of payment services and providers
of payment intermediary services are obliged by law to provide information for
competent State agencies.
2. Providers of payment services and providers
of payment intermediary services are obliged by law to provide information
about the transactions and the payment account balance for account owners as
agreed.
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1. The right to refuse to provide information
Providers of payment services and providers of
payment intermediary services are entitled to refuse the request for
information about the account owners, transactions, and the balance in their
clients’ payment accounts, unless such request is made by competent State
agencies as prescribed by law, or the information provision is agreed by the
account owner.
2. Obligation to secure information
Providers of payment services and providers of
payment intermediary services are responsible for secure the information
related to the account owners, the transactions, and the balance on their
clients’ payment accounts, unless otherwise prescribed by law.
Chapter 5.
ORGANIZING, MANAGING,
OPERATING, AND SUPERVISING THE PAYMENT SYSTEMS
Article 24. Organizing,
managing, operating, and supervising the National payment system
1. The State bank shall organize, manage,
operate, and supervise the National payment system to ensure the steadiness,
safety, and efficiency of payment activities in the banking system,
contributing to the stable development and safety of the National financial
system
2. The State bank shall promulgates the
conditions and procedure for joining the National payment system, the measures
for ensuring the safety of the National payment system.
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1. Providers of payment services shall organize,
operate, and supervise their internal payment system in order to ensure the
provision of safe and quality payment services via accounts for their clients,
and efficiently regulate the capital in the system.
2. Provider of payment services violates shall
introduce the procedures and measures of ensuring the safety of the internal
payment system.
Article 26. Supervising the
payment systems in the economy
1. The State bank shall formulate the
strategies, policies, and regulations on supervising the payment systems in
order to ensure the stable, safe, and effective operation of the payment
systems in the economy.
2. The State bank shall introduce the criteria
and determine the important payment systems under the supervision of the State
bank.
3. The State bank shall supervise the payment
systems by remote supervision, on-the-spot inspection, and other measures if necessary.
4. The organizations that operate the payment
systems must comply with the regulations and recommendation on the supervision
of the State bank; promulgate the internal regulation on risk management and
ensuring the continuous operation of the system.
Chapter 6.
IMPLEMENTATION
PROVISIONS
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1. This Decree takes effect on March 26th
2013.
2. This Decree supersedes the Government's
Decree No. 64/2001/NĐ-CP dated September 20th 2001, on making
payments via provider of payment services.
Article 28. Implementation
responsibilities
1. The Governor of the State bank is responsible
for guiding the implementation of this Decree.
2. The Ministers, Heads of ministerial-level
agencies, Heads of Governmental agencies, Presidents of People’s Committees of
central-affiliated cities and provinces are responsible for implementing this
Decree./.
FOR THE
GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung