THE
STATE BANK OF VIETNAM
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.284/2000/QD-NHNN1
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Hanoi,
August 25, 2000
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DECISION
REFERRING TO THE ISSUING OF A REGULATION ON CREDIT
INSTITUTIONS' LENDING
THE GOVERNOR OF THE STATE BANK
In accordance with the Law on the State Bank
of Vietnam and the Law on Credit Institutions dated December 12, 1997;
In accordance with Government Decree No.15/CP March 2, 1993 on tasks, rights
and State management responsibilities of ministries and ministerial-level
bodies;
In accordance with the proposal of the Head of the Department of Monetary
Policy,
RESOLVES
Article 1:
To issue in attachment to
this Decision the Regulation on Credit Institutions' Lending.
Article 2:
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Article 3:
For credit contracts
signed before the date this Decision becomes effectives, but where funds have
not been either totally or partially disbursed, and for credit contracts that
report outstanding loan balances by the end of September 14, 2000, credit
institutions and customers shall continue to follow the concluded provisions
until all debts are recovered or the agreements are amended, and the credit
contracts are supplemented, in order to be responsive to the Regulation on
Credit Institutions' Lending issued in attachment to this Decision.
Article 4:
Heads of units under the
State Bank of Vietnam, directors of State Bank branches in centrally-governed
provinces and cities, chairpersons of management boards and general directors
(directors) of credit institutions, and customers who take out loans from
credit institutions shall assume the responsibility to implement this Decision.
GOVERNOR OF THE STATE BANK
Le Duc Thuy
REGULATION
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(Issued in
attachment to Governor of the State Bank Decision No.284/2000/QD-NHNN1 dated
August 25, 2000)
Chapter I
GENERAL REGULATIONS
Article 1: Scope of
adjustments
This Regulation applies to loans from credit
institutions, in Vietnamese dong and foreign currency, to meet capital needs
for production, sales, services, development investment and daily lives.
Article 2: Objects of
application
1. Credit institutions founded and
carrying out professional lending in consonance with the Law on Credit
Institutions;
2. Customers borrowing from credit
institutions. These include:
a/ Those having a legal status: State-owned
enterprises, co-operatives, limited companies, joint stock companies,
foreign-invested businesses and other organisations meeting all conditions
decreed in Article 94 of the Civil Code;
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c/ Families;
d/ Co-operatives;
e/ Private businesses;
f/ Companies under collective names.
Article 3: Explanation of
terms
In this Regulation, the terms are interpreted as
follows:
1. Lending is a form of credit where
credit institutions provide customers a sum of money for use for specific
purposes and over a specific period of time according to the agreement and the
rule of refunding both principal and interest.
2. Loan time-limit is a span of time
beginning when the customer receives a loan and extends to the moment of
refunding all principal and interest following agreements in the credit
contract between the credit institution and the customer.
3. Due dates are within the time-limit of
landing that is identified in the agreement between the credit institution and
the customer where, by the end of each span of time, the customer must pay part
or the entire amount of loan to the credit institution.
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5. Extention of a loan is when the credit
institution agrees to extend the loan beyond the time-limit of the loan agree
in the credit contract.
6. Investment project, production, sale and
service scheme, or investment project and a scheme to cater to livelihoods are
a range of proposals on capital needs, mode of capital use and responsive
results reported during a specific period in specific activities targeting
production, sales, services, development investment or catering to livelihoods.
7. Credit limit is the maximum level of
an outstanding loan maintained during a specific agreed period, in the credit
contract, by the credit institution and the customer.
Article 4: Observation of
the regulations on management of foreign exchange
While lending in foreign currency, credit
institutions and customers must follow Government regulations and State Bank
instruction on foreign exchange management.
Chapter II
DETAILED REGULATIONS
Article 5: Credit
institutions' right to self-control in lending
Credit institutions are personally-responsible
for their lending decisions. No organisations or individuals are permitted to
illegally intervene in credit institutions right to autonomy in lending.
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Customers borrowing from credit institutions
must observe the following rules:
1. Properly use loans in accordance with
the agreements in the credit contract;
2. Refund principal and loan interest as
agreed in the credit contract;
3. Loan underwriting must follow the
regulations of the Government and the Governor of the State Bank.
Article 7: Conditions of
borrowing
Credit institutions shall consider and determine
loans after customers meet all of the following conditions:
1. Take full responsibility for observing
civil laws and civil acts and take civil responsibility according to legal
regulations. Concretely:
a/ The legal person must have full civil
capacity;
b/ Individuals and private business owners must
have full legal capacity and full competence for civil acts;
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d/ Representatives of co-operatives must have
legal capacity and competence for civil acts;
e/ Collectively-named members of
collectively-named companies must have legal capacity and competence for civil
acts;
2. Be financially capable of securing
loan repayments within the committed term;
3. The purpose of using loans must be
lawful;
4. Investment projects; schemes for
production, sales and services must be feasible and effective; or feasible
investment projects and feasible schemes must cater to livelihoods associated
with feasible refund schemes;
5. The Regulations on loan underwriting
must be implemented in conformity with Government stipulations and the Governor
of the State Bank instructions.
Article 8: Types of loans
1. Short-term loans: Credit institutions
provide customers with short-term loans to meet their capital needs for
production, sales, services and livelihoods.
2. Medium-term and long-term loans:
Credit institutions provide customers with medium-term and long-term loans to
accomplish projects for investment to develop production, sales, services and
livelihoods.
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1. Credit institutions shall provide
loans with the following objectives:
a/ Loans shall have the value of materials,
goods, machinery and equipment including the value added tax (VAT) that is
included in the local value of the batch of goods, and expenses, for implementing
investment projects, schemes for production, sales and services, or investment
projects and schemes to cater to livelihoods;
b/ Loans shall meet the financial needs of the
following:
- The amount of import-export taxes that
customers must pay in order to fulfill import-export procedures for that batch
of goods, the value of which is partly paid for in loans from the credit
institution;
- The amount of loan interest paid to the credit
institution that lends during the period of construction when the project is
not yet transferred and fixed assets are not yet used. Such loans are either
medium or long term and are for investment in fixed assets; and payable
interest is calculated on those fixed assets;
- The amount of money that the customer borrows for
payment of financial borrowings (in cash) for foreigners which are underwritten
by a domestic credit institution and meet the following conditions: the
investment projects, the scheme for production, sales and services, or the
investment project and the scheme to cater to basic survival that use the above
noted borrowing are being implemented productively; the borrowing is within the
term for debt payment; the customer obtains more favourable conditions for
borrowing loans or for cutting expenditures in comparison with foreign loans,
and the customer is solvent;
- Other financial needs in production, sales,
services and basic survival according to the State Bank regulations.
2. Credit institutions must not lend for
the following payments:
a/ The amount of tax contributed directly to the
State Budget; excluding the amount of export and import taxes clarified in the
first paragraph of b of 1 of this Article;
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c/ The amount of loan interest paid to the
lending credit institution; excluding the case of lending at an interest rate
defined in the second paragraph of b of 1 of this Article.
Article 10: Loan time-limits
Credit institutions and customers agree on loan
time-limits in two forms:
1. Short-term lending: The maximum
time-limit is 12 months and is identified corresponding to the production and
sale cycle and customer's solvency.
2. Medium-term and long term lending: The
loan time-limit is defined in correspondence with the term for recovering
capital of investment projects, customer's solvency and the characteristics of
the credit institution:
a/ Medium-term loan time-limits: From more than
12 months to 60 months;
b/ Long-term loan time-limits: More than 60 months,
but not exceeding the remaining operational term according to the enterprise's
Establishment Decision or the Establishment Licence applicable for legal
persons and no longer than 15 years for loan projects to assist in basic
survival.
Article 11: Loan interest
rates
1. The loan interest rate is agreed upon
by the credit institution and the customer and follows the State Bank
regulations on loan interest rates effective at the moment of signing the
credit contract. The credit institution shall take the responsibility to
publicly inform customers of loan interest rates.
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3. In cases where the loan is transformed
into overdue debts, overdue debt interest rates are obligatorily applied at the
moment of signing the credit contract, according to the Governor of the State
Bank's regulations.
Article 12: Lending rates
1. Credit institutions shall consider the
customer's need for the loan, Governmental regulations in Decree
No.178/1999/ND-CP clarifying the lending rates over the value of security
assets, customer solvency and credit institutions' capital before making a
decision on lending rates.
2. Customer's total outstanding loan
balance must not exceed 15 per cent of the credit institution's equity capital,
except in the case of loans from sources of consigned capital of the
Government, organisations and individuals, or in cases where the borrowing
customer is a credit institution.
3. The total outstanding loan balance of
those parties identified in Article 21 of this Regulation must not exceed five
per cent of the credit institution's equity capital.
Article 13: Payment of
principal and interest
1. Based on the actual status of
production, sales, services, financial capacity, income and customer's source
of debt payments, the credit institution and the customer shall agree on
payment of principal and loan interest as follows:
a/ Due dates for refund of principal;
b/ Due dates for payment of loan interest and
due dates for payment of principal or particular due dates;
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2. When payment of a debt is due or when
the loan term ends, if the customer is unable to repay the debt in a timely
manner or adjust the due date for the debt or extend the debt or the amount
due, the unpaid debt shall be transformed into overdue debt, and the customer
must be subject to overdue debt interest rates for the amount of overdue debt.
3. In cases where the customer repays a
debt prior to the due date, the credit institution and the customer shall agree
on the amount of payable loan interest which must not exceed the interest rate
already specified in the credit contract.
Article 14: Borrowing
formalities
1. When seeking a loan, the customer
shall send the credit institution the following documents:
- A request, in writing, for borrowing capital.
The request document must specify the following: name and address of the
borrower; amount of requested loan; purpose of borrowing; the commitments to
using the loan, paying the debt, paying interest and other commitments;
- Documents necessary for testifying a
customer's meeting of all the conditions for borrowing a loan are decreed in
Article 7 of this Regulation;
The customer must take legal responsibility for
the accuracy and legality of the documents addressed to the credit institution.
2. Credit institutions shall provide
detailed regulations on the various types of documents that need to be sent by
customers and correspond to specific characteristics of each kind of customer
and each type of loan according to the regulations in 1 of this Article.
Article 15: Lending
examination and decision
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2. The credit institution shall check the
documents sent by the customer, while examining and evaluating the feasibility
and efficiency of the investment project, the scheme for production, sales and
services, or the investment project, the scheme to promote basic survival, and
customer's ability to repay the debt.
In case of necessity or according to legal
regulations, the credit institution is allowed to either form a credit council
or hire related consulting bodies to examine and assess the customer's
investment project, the scheme for production, sales and services, or the
customer's investment project and spending for basic survival.
3. The credit institution must take a
decision and announce whether it will lend or not the customer no later than 10
working days after it receives lawful loan documents and necessary information
from the customer, in the case of short-term loans, and no later than 4 working
days, in the case of medium-term and long-term loans. In case loan requests are
rejected, the credit institution must inform the customer, in writing,
specifying the reasons for refusal.
Article 16: Mode of lending
Based on the customer's actual request for use
of each loan and the ability to check and supervise customer's use of loans,
the credit institution shall agree with the customer on choosing a lending
scheme in one of the following modes:
1. One shot lending: For each specified
loan, the customer and the credit institution shall fulfill necessary lending
procedures and sign a credit contract.
2. Lending according to the credit
limits: The credit institution and the customer shall identify and agree on a
credit limit to be applied over a specific term or according to the production
and sales cycle.
3. Lending according to the investment
project: The credit institution shall provide a loan to the customer for
executing projects to invest to develop production, sales and services and
those projects to support basic survival.
4. Lending a pool of capital: A group of
credit institutions may act in concert to make loans for a customer's project
to borrow capital or a scheme to borrow capital; where one credit institution
acts as a leader in the arrangement and co-ordination with other credit
institutions. The lending of a capital pool shall observe this regulation and
the regulations on co-financing by credit institutions issued by the Governor
of the State Bank.
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6. Lending according to standby credit
limits: The credit institution shall commit to lend the customer funds within a
specific credit limit. The credit institution and the customer shall agree on
the effective term of the standby credit limit and the fee payable for the
standby credit limit.
7. Lending via issuing operations and
using credit cards: The credit institution shall allow the customer to use the
loan within the credit limit for payment for purchase of goods, services and
withdrawal of cash at automated teller machines or at cash provision point
which are agents of the credit institution. When issuing and using credit
cards, the credit institution and the customer must follow the regulations of
the Government and the State Bank of Vietnam regarding the issuance and use of
credit cards.
8. Other modes of lending shall
correspond to this regulation and other State Bank regulations.
Article 17: Lending in
foreign currency
1. Credit institutions authorised to
operate foreign exchanges are allowed to lend foreign currency to customers who
are residents, following the Government regulations and State bank instructions
on management of foreign exchange.
The term "resident" is defined
according to the regulations in Article 4 of Government Decree No.63/1998/ND-CP
dated August 17, 1998 on management of foreign exchange.
2. Loan procedures: Apart from the
documents identified in Article 14 of this Regulation, customers must provide
the credit institution with the following: the Import Licence or Import Quota
(if any); the import or consigned import contract; and other papers relating to
using the loan.
3. Payment of principal and interest:
Debts must be paid in the same foreign currency as the loan. Payment of debts
in other foreign currency, or in Vietnamese dong, shall be made in accordance
with the agreement between the credit institution and the customer, and shall
be based on the exchange rate or the rule on identifying exchange rates already
agreed in the credit contract. Foreign-invested businesses subject to
self-balancing of foreign currency must not pay foreign currency debts in
Vietnamese dong.
Article 18: Credit contract
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Article 19: Lending limits
1. A customer's total outstanding loan
balance must not exceed 15 per cent of the credit institution's equity capital,
excluding loans from sources of consigned capital of the Government, organisations
and individuals. In cases where the customer's demand for capital exceeds 15
per cent of the credit institution's equity capital, or where the customer
needs to raise capital from different sources, credit institutions shall
jointly lend according to the Governor of the State Bank's regulations.
2. In special cases, credit institutions
will only be only be allowed to lend in excess of the lending limit defined in 1
of this Article after the Prime Minister approves each specific case.
3. The calculation of credit
institutions' equity capital that provides a basis for estimation of loan limit
stipulated in 1 and 2 of this Article shall follow the State Bank
regulations.
Article 20: Cases of
forbidden loans
1. Credit institutions must not lend to
the following customers:
a/ Members of the management board or of the
control board, general director (director), or deputy general director (deputy
director) of the credit institution;
b/ Auditors, examiners and approvers of loans;
c/ The father, mother, wife or child of a member
of the management board or the control board, or of the general director (the
director) or of the deputy general director (the deputy director).
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Article 21: Loan
restrictions
Credit institutions must not lend without
security, or lend at preferential interest and loan rates, to the following
parties:
1. Auditing organisations, auditors who
are auditing at the credit institution; chief accountants, or inspector;
2. Large share holders of credit
institutions;
3. Businesses having one of the objects
that are identified in 1 of Article 77 of the Law on Credit Institutions
and own more than 10 per cent of those businesses' chartered capital.
Article 22: Audit and
supervision of loans
1. Credit institutions shall assume the
responsibility to audit and supervise customer's borrowing a loan, using the
loan and repaying the debt.
2. Credit institutions shall audit and
supervise before, during and after lending in corresponding with the
operational characteristics of the credit institution and the characteristics
of the customer's business and loan use.
Article 23: Extension of
loans and adjustments of the deadlines for debt payment
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a/ The maximal time-limit for extending a
short-term loan shall equal a cycle of production and sales, but must not
exceed 12 months; except in special cases that are either allowed by the
Governor of the State Bank or transferred to the credit institution for consideration
and termination;
b/ The maximal time-limit for a medium-term and
long-term loan is half of that for the lending already agreed in the credit
contract; except for special cases that are either allowed by the Governor of
the State Bank or transferred to the credit institution for consideration and
termination;
c/ Debts that are due, but are not repaid in a
timely manner and are not extended, must be transformed into overdue debt and
overdue debt interest rates must be applied.
2. In cases where the customer is unable
to pay debt as timely as agreed in the credit contract due to natural reasons
and has a proposal, in writing, the credit institution shall consider the
adjustment of the deadline for debt payment. If unable to adjust the deadline
for debt payment, the credit institution shall transform that amount of due
debt into overdue debt.
3. The proposal for extension of the
debt, adjustment of the deadline for the customer's debt, as well as the credit
institution's determination on debt extension and adjustment of the debt
deadline must be made before the due date; and the parties are permitted to
amend the credit contract following the new time-limit for debt payment.
4. Over the time-limit for which the debt
is either extended or adjusted, the interest rate (agreed in the credit
contract of the loan shall continue to apply on the initial time-limit until
the time-limit either extended or adjusted.
Article 24: Exemption and
reduction of loan interest
Credit institutions are free to decide on exemption
and reduction of loan interest payable to customers under the following rules:
1. Customers report a loss of assets
relating to the loan and stemming from natural causes that result in a
financial standstill;
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3. Credit institutions must not exempt
and reduce loan interest for customers subject to the regulations in 1
of Article 78 of the Law on Credit Institutions;
4. Credit institutions must issue a
regulation on exemption and reduction of loan interest for customers that are
approved by the management board. The exemption and reduction of loan interest
for customers is only effective when the credit institution has a regulation on
exemption and reduction of loan interest.
Article 25: Rights and
obligations of customers
1. Borrowers have the following rights:
a/ To refuse demands of credit institutions that
are beyond the agreements in the credit contract;
b/ To complain and bring a sue against the
violations of the credit contract according to the laws;
2. Borrowers have the following
obligations:
a/ To provide comprehensive and truthful
information and documents relating to borrowing loans and to be responsible for
the accuracy of the information and documents provided;
b/ To use the loan for proper purpose and
closely follow the agreements in the credit contract;
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d/ To assume legal responsibility for not
observing the agreements on payment of debts and to fulfill all obligations in
securing the debt as committed to in the credit contract.
Article 26: Rights and
obligations of credit institutions
1. Credit institutions have the following
rights:
a/ To require customers to provide documents
that testify to the feasibility of the investment project and the scheme for
production, sales and services, or the investment project and the scheme to
promote their survival; and their financial capacity and that of the guarantor,
before making a loan decision;
b/ To refuse a customer's request for a loan
when the customer does not meeting the conditions for borrowing a loan, or when
the credit institution determines that the project or the borrowing scheme is
ineffective and unresponsive to the legal regulations; or when the credit
institution does not have enough capital to provide the loan;
c/ To examine and supervise the process of a
customer's borrowing, use of the loan and repayment of it;
d/ To cease lending and to withdraw the debt
before the due date when detecting customer fraud and violation of the credit
contract;
e/ To bring suit against the customer who
violates the credit contract or against the guarantor according to the laws;
f/ When the debt is due, but the customer does
not repay it, and if the parties do not have additional agreements, the credit
institution has the right to attach the loan-securing assets as agreed in the
contract, in order to call back the loan according to the legal regulations; or
to require the guarantor to fulfill the security obligation in cases where the
customer has secured the loan;
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2. Credit institutions have the following
obligations:
a/ To fulfill the agreements in the credit
contract;
b/ To file credit procedures in consonance with
legal regulations.
Article 27: Provision of
preferential loans and loans for basic construction under the State plans
1. Credit institutions shall lend to
customers enjoying credit preferences according to the Government's regulations
and the State Bank's instructions in each period.
2. State-run credit institutions lending
for investment in construction under the State plans shall follow the legal
regulations on construction investment and the Government's regulations on
credit for construction investment under the annual State plans.
3. For State-owned credit institutions
that the Government appoints to make loans to customers subject to its
priorities and to provide loans for construction investment under the State
plans; and in case of reporting differentials in interest rates and a loss of
loans due to natural causes, resolution of this problem shall be in accordance
with the Government's regulations and the State Bank's instructions and the
guidelines of related ministries and branches.
4. Before providing preferential loans
and loans for construction investment under the State plans, credit institutions
shall examine the efficiency of the project or the scheme to borrow loans. If
the projects are deemed inefficient with little capacity to refund the loan
principal and interest, the credit institution shall report to competent State
bodies, and if necessary, report to the Prime Minister, for consideration and
resolution.
Article 28: Consignment
lending
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2. Credit institutions lending on
consignment shall enjoy consignment fees and other benefits as agreed in the
consigned loan contract in accordance with legal regulations and international
rules and capacity to fully cover expenses and risks and earn profits.
Chapter III
IMPLEMENTATION PROVISIONS
Article 29: Credit
organisations and borrowers have the responsibility to fulfill this Regulation.
Based on this Regulation and other related legal regulations, credit
organisations shall issue documents guiding detailed professional operations in
accordance with their conditions, characteristics and rules.
Article 30: Organisations
and individuals violating these regulations will be punished according to the
character and level of violation, and may be punished for administrative violations
or be prosecuted in accordance with the laws.
Article 31: Any
amendments and supplements to this regulation will be subject to determination
by the Governor of the State Bank.