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THE
STATE BANK OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence-Freedom-Happiness
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No.
44/2006/QD-NHNN
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Hanoi,
September 5, 2006
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DECISION
ON THE ISSUANCE OF THE REGULATION ON PROCEDURES OF DRAFT
COLLECTION THROUGH COLLECTING PERSON
THE GOVERNOR OF THE STATE BANK
- Pursuant to the Law on the
State Bank of Vietnam in 1997 and the Law on the amendment, supplement of
several Articles of the Law on the State Bank of Vietnam in 2003.
- Pursuant to the Law on Credit Institutions in 1997 and the Law on the
amendment, supplement of several articles of the Law on Credit Institutions in
2004;
- Pursuant to the Law on assignment instruments in 2005;
- Pursuant to the Decree No. 52/2003/ND-CP dated 19 May 2003 of the Government
providing for the function, assignment, authority and the organizational
structure of the State Bank of Vietnam;
Upon the proposal of the Chief of the Payment Board,
DECIDES:
Article 1.
To issue in conjunction with this Decision “the
Regulation on procedures of draft collection through collecting person”.
Article 2.
This Decision shall be effective after 15 days since its
publication in Official Gazette.
Article 3.
Director of the Administrative Department, Chief of the Payment
Board, Heads of units of the State Bank of Vietnam, Managers of the State Bank
branches in provinces, cities under the central Government’s management,
Chairperson of the Board of Directors, General Managers (Managers) of banks,
other payment services suppliers shall be responsible for the implementation of
this Decision.
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FOR
THE GOVERNOR OF THE STATE BANK OF VIETNAM
DEPUTY GOVERNOR
Nguyen Dong Tien
REGULATION
ON PROCEDURES OF DRAFT COLLECTION AUTHORIZATION THROUGH
COLLECTING PERSON
(Issued in conjunction with the Decision No. 44/2006/QD-NHNN dated 5
September 2006 of the Governor of the State Bank)
Chapter I.
GENERAL PROVISIONS
Article 1.
Governing scope
1. This Regulation shall govern procedures
of delivery, receipt, inspection, control, presentation, payment, treatment for
cases which are refused, or are not paid or for cases where bills of exchange,
promissory notes (hereinafter referred to as draft) are lost when they are
collected by collecting persons who are operating within the territory of
Vietnam.
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Article 2.
Subjects of application
1. Banks, other payment services
suppliers which are permitted by the State Bank of Vietnam to provide the draft
collection service
2. Organizations, individuals
that are related to drafts to be collected by collecting persons
Article 3.
Interpretation
In this Regulation, following
terms shall be construed as follows:
1. Collecting person is banks or
other payment services suppliers which are permitted by the State Bank of
Vietnam to provide the draft collection service.
2. Collection asking customer is
the legal beneficiary of the draft who hands over the draft to a collecting
person for the collection of the amount stated in the draft.
3. Payer is the one who is
obliged to make payment of the amount stated in the draft upon receiving the
draft to be presented under the instruction in the draft collection Proxy of
the collection asking customer.
4. Collecting person who accepts
the draft collection proxy of the collection asking customer (hereinafter
referred to as collection accepting person) is the collecting person to whom
the collection asking customer hands his draft over and authorizes to collect
the amount stated in the draft.
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6. Draft collection proxy is a
written document, which the collection-asking customer draws, grants authority
to the collecting person to carry out the presentation and collection of the
amount stated in the draft
Article 4.
Fees of the draft collection service
General Managers (Managers) of
banks, other payment services suppliers shall be entitled to provide for the
fee level of the draft collection service supplied by their own units providing
that it is in line with provisions of the State Bank of Vietnam on the
collection of payment service fees through banks
Chapter
II.
SPECIFIC PROVISIONS
Article 5.
Conditions of drafts to be collected by collecting person
1. Draft to be collected by the
collecting person must fully satisfy following conditions:
a. The draft is drawn, issued,
guaranteed, assigned, mortgaged in accordance with provisions of the Law on
assignment instruments, guiding documents of the Law on assignment instruments
and other provisions of rated laws on preparation of accounting vouchers. The
draft and subordinate sheet attached (if any) shall fully, clearly, accurately
state the contents without any correction, erasure, wrinkling, smear, tearing,
patching up, connecting in any form and must be supported by the signature and
seal (if any) of the drawer (for bill of exchange) or of the issuer (for
promissory note). There shall not exist the word phrase “To give up, to cancel”
or other phrases with the similar meaning
b. In respect of a bill of
exchange that needs accepting prior to payment, it must be the draft that has
been signed for acceptance by the drawee in compliance with the form and
contents provided for in Article 21 of the Law on assignment instruments.
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d. The draft must not be in the
list of drafts to be returned, to be refused for payment or not to be paid or
to be informed by the Credit information Center of the State Bank of Vietnam of
being lost.
2. Besides the conditions
provided for in Paragraph 1 of this Article, the collection accepting person
and collection asking customer shall be entitled to make further agreements
about conditions of the draft if these agreements do not contrast with
provisions of applicable laws
Article 6.
Procedures of the delivery, receipt of the draft to be collected
1. In order to ask the
collecting person for the draft collection, the collection asking customer
shall state on the back of the draft with the word phrase “transfer for
collection”; name of the collection accepting person; date of draft transfer;
signature of collection asking customer and append unit’s stamp (if any). After
that, drawing a draft collection proxy (according to Appendix No. 01) enclosed
with the draft to be collected, the draft’s subordinate sheet and invoices,
vouchers of goods delivery (if any) to hand over to the collection accepting
person. The number of sheets of the draft collection proxy and mode of
delivery, receipt of draft to be collected between the collection asking
customer and the collection accepting person shall be stipulated by the
collection accepting person providing that the delivery, receipt of the draft
are controlled, treated in compliance with provisions of applicable laws.
2. Upon receipt of the draft
collection proxy enclosed with the draft and invoices, vouchers of goods
delivery (if any) from the collection asking customer, collection accepting
person shall be responsible for inspection to ensure that: the draft satisfies
conditions of collection in accordance with provisions in Article 5 of this
Regulation; the matching and accuracy between elements stated in the draft
collection proxy and the draft to be collected and its attached subordinate
sheet (if any); collection asking customer shall be acknowledged in the
assignment chain in accordance with provisions of the Law on Assignment
Instruments and the draft to be assigned to the collection asking customer
shall not contain the word phrase “assignment is forbidden” or other phrases
with similar meaning.
3. After inspection, if the
draft satisfies conditions of collection, collection accepting person shall
acknowledge receipt of vouchers with customer by signing his name, appending
seal on all sheets of the draft collection proxy; stating on the back of the
draft the word phrase “accepting the transfer for collection”; the date (day,
month, year) of transfer acceptation and stating in the book for following up
drafts they accept to collect.
4. In order to carry out the
draft collection under the draft collection proxy of collection asking
customer, the collection accepting person shall present the draft to ask the payer
to make payment in accordance with provisions of applicable laws or transfer
the draft to another collecting person under the instruction on the draft
collection proxy of the collection asking customer or to any collecting person
who he finds appropriate (if the collection asking customer does not clearly
state that in the Proxy) for collection of the amount stated in the draft.
Where the collection accepting
person transfers the draft to another collecting person for collection, this
transfer shall be made right within the day when he is authorized to collect
the draft or in the morning of the following day at the latest. Procedures of
the delivery, receipt of the draft to be collected between collecting units
shall be agreed upon by the parties to ensure the promptness, convenience,
safety and in line with provisions of applicable laws on draft transfer.
Article 7.
Presentation of draft for payment
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2. In respect of the draft with
the payment period right after the presentation, the collecting person to be
asked for collection must present it to ask the payer to make payment in due
course in accordance with the instruction on the draft collection Proxy.
3. The collecting person to be
asked for collection may present payment draft in form of registered mail sent
via public postal service. Time of presentation of draft for payment in this
case shall be determined under the date on the seal of the post office where
the registered mail is sent.
4. If the presentation of the
draft is not performed in due course because of the force majeure or objective
obstacle, the collecting person to be asked for collection shall return the
draft enclosed with a notice, which clearly states the reason thereof, to the
collection accepting person (according to the Appendix No. 02). The return of
draft in this case must be performed in the morning, at the latest, of the day
after the day when the presentation of draft is not performed
5. Where the collection
accepting person carries out the draft presentation for payment, the
presentation shall be performed in accordance with provisions in Paragraph 1,
2, 3 and 4 of this Article.
Article 8.
Payment of draft to be collected
1. Within a period of 3 working
days from the receipt of the draft presented by the collecting person to be
asked for collection, the payer shall make payment or refuse to make payment of
the draft to the collection asking customer. Where the draft is presented in
the form of registered mail via public postal service, this time limit shall
begin from the date when the payer acknowledges receipt of the draft. The draft
payment of the payer shall be performed by direct payment in cash to the
collecting person to be asked for collection or preparing a Payment Order
(Payment Proxy or other appropriate payment voucher) and asking account holder
of the payer to deduct from the payer’s deposit account for payment of the
amount stated in the draft
2. After a period of 3 working
days since the receipt of the draft presented, if the payer fails to make
payment of the draft (refuses to make payment, fails to prepare a payment order
or has prepared the payment order but loses his payment capacity), the
collecting person to be asked for collection shall carry out the draft
treatment in accordance with Article 9 of this Regulation.
3. If the collection accepting
person carries out the draft presentation and the draft is paid, depending on
each specific case to determine measures for treatment accordingly:
a. Where the total amount stated
in the draft is paid and the payer has enough money to make payment, the
collection accepting person shall
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- Use 01 sheet of the payment
order or cash Deposit Slip (in case of cash deposit) as a voucher to Credit the
deposit account of the collection asking customer or appropriate account (if
the collection asking customer does not have an account); send Credit Advice to
the collection asking customer
- Record out-entry in the book
for following up drafts to be collected
b. Where only one part of the
amount stated in the draft is paid and the payer has enough money to make
payment, the collection accepting person shall:
- Perform the accounting in
accordance with provisions in Point a, Paragraph 3 of this Article
- Stamp the phrase “already paid
partially, amount......” in the front side of the draft. The collection
accepting person shall retain the draft and the subordinate sheet attached (if
any) and in the morning or the following working day at the latest shall return
them to the collection asking customer with a notice clearly stating the reason
of return (according to the Appendix No. 02). Invoices, vouchers of goods
delivery (if any) shall be used in accordance with the instruction in the draft
collection Proxy.
c. For the draft which the payer
has prepared a payment Order to make payment, but the payer does not have
enough money to make payment (partially or totally amount stated in the draft),
the collection accepting person shall keep documents of draft collection in the
file of unpaid drafts and at once inform the collection asking customer, the
payer for their knowledge and taking treatment measure. When the payer has
enough money for payment, the date of payment shall be stated in the front side
of the draft for treatment in accordance with provisions at Points a or b
Paragraph 3 of this Article. After the period of 3 working days since the
receipt of the presented draft, the payer still does not have enough money to
make payment of the draft, the collection accepting person shall treat the
draft in accordance with Article 9 of this Regulation.
4. If the collecting person to
be asked for collection carries out the draft presentation and the draft is
paid:
a. At the collecting person to
be asked for collection
- Upon receipt of the draft
collection Proxy, draft enclosed with invoices, vouchers of goods delivery (if
any) from the collection accepting person, collecting person to be asked for
collection must check to ensure that the draft fully satisfies conditions of
collection in accordance with applicable provisions; all contents on the draft
collection Proxy have been clearly, fully and accurately stated; quality of
invoices, vouchers of delivery attached is stated fully and in line with the
draft collection Proxy.
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+ Basing on the Payment Order,
Debit against the payer’s deposit account to transfer to the collection
accepting person for making payment to the collection asking customer. Where
the payer uses cash for draft payment, shall Debit against appropriate account
(that was Credited previously upon collecting money from draft payer) to
transfer for payment. Stamp the phrase “Already paid totally” in the front side
of the draft to deliver to the payer enclosed with the subordinate sheet and
invoices, vouchers of goods delivery (if any);
- Where only one part of the
amount stated in the draft is paid and the payer has enough money to make
payment, the accounting and voucher treatment shall be performed as for the
case where the draft is paid totally, but the collecting person to be asked for
collection shall retain the draft after it is stamped with the phrase “already
paid partially, amount.......” and in the morning of the following working day
at the latest shall return it to the collection accepting person with a notice
clearly stating the reason of return (according to the Appendix No. 02).
Invoices, vouchers of goods delivery (if any) shall be treated in accordance
with the instruction in draft collection Proxy.
- For the draft which the payer
has prepared a payment order to make payment, but the payer does not have
enough money to make payment (partially or totally amount stated in the draft),
the collecting person to be asked for collection shall keep documents of draft
collection in the file of unpaid drafts and inform the collection accepting
person, the payer for their knowledge within the day when the draft is not paid
or in the morning of the following working day at the latest. When the payer
has enough money for payment, the date of payment shall be stated in the front
side of the draft for treatment in accordance with provisions at point c
Paragraph 3 of this Article.
b. At the collection accepting
person:
- Upon receipt of transfer
voucher from the collecting person to be asked for collection, the collection
accepting person must inspect the legality, validity of the Money Transfer
Order, if correct, that voucher shall be used as a basis to Debit against
appropriate account, Credit the deposit account of collection asking customer
or the account “payables to customers” (if the collection asking customer does
not have an account) and send a Credit Advice to collection asking customer.
- In case of receiving the
notice of the draft return enclosed with the returned draft, the collection accepting
person must immediately notify (by phone or other modes under agreement of
parties) to the collection asking customer.
Article 9.
Dealing with drafts which are refused or are not paid due to the payer’s
insolvency
1. When a draft is refused or is
not paid due to the payer’s insolvency, the collecting person to be asked for
collection or collection accepting person (if the collection accepting person
performs the presentation) shall request the payer to clearly state the refusal
reason in writing and complete procedures to deliver the draft to the
collection accepting person or to the collection asking customer enclosed with
the notice of the return reason (according to the Appendix No. 02). Where the
draft is presented in form of registered mail via public postal service, the
payer shall return the refused draft to the collecting person with a document
clearly stating the reason thereof.
Where the draft is refused, and
the payer does not clearly state the reason thereof in writing, the collecting
person to be asked for collection shall have the right to return the draft to
the collection accepting person or the collection asking customer enclosed with
a notice clearly stating “the draft was presented on.........but was refused
and the payer did not clearly state the reason thereof in writing”.
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Article 10.
Controlling, dealing with lost drafts
1. When a draft is lost, its
beneficiary must immediately give a written notice to the drawee, drawer or
issuer. The beneficiary must inform of the case where the draft is lost and
clearly state all information, data concerning the lost draft: Full name,
address of the issuer, drawer, drawee, payment place, amount stated in the
draft, date of issue and payment period of the draft and take responsibility
for the honesty of his notification. The beneficiary shall inform by phone or
other modes if it is agreed upon by the parties.
Where the lost draft is the bill
of exchange, the beneficiary shall directly or through his previous draft
assigners, ask the drawer to give a notice of the payment suspension for the
lost draft to the drawee.
2. Where a person who loses the
draft is not the beneficiary, he must immediately give a notice to the
beneficiary for his treatment under Paragraph 1 of this Article.
3. When the drawee, drawer,
issuer receive the notice of the draft loss, they must at once verify
information concerning the lost draft and enter that information into the book
for following up drafts which have been notified to be lost. The drawee, issuer
shall not be paid for the draft to be notified to be lost
Where the draft that has been
notified to be lost is presented for payment, the drawee, issuer shall be
responsible for drawing a minutes to seize and keep that draft and inform the
person who issued the notice of the draft loss for settlement.
4. The drawee, issuer shall not
be responsible for damages resulting from the misuse of the lost draft if that
draft has been presented and paid in accordance with provisions of applicable
law prior to the receipt of the loss notice.
If, after receiving the notice
of the draft loss, the drawee and issuer still make payment for that draft,
then they shall be responsible for damage compensation to the beneficiary
5. The drawee, the drawer,
issuer shall be responsible for archive of information of the draft to be
notified to be lost and giving a written notice to Credit Information Center of
the State Bank of Vietnam
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Where, after being handed over
with the draft, the collecting person loses the draft during the collection
process, he must immediately inform the collection asking customer for
treatment in accordance with Paragraph 1 of this Article.
Article 11.
Right and responsibility of the collection asking customer
1. Collection asking customer
shall have the right
a. To ask the collecting person
to guide, clearly explain provisions of applicable laws on procedures of draft
collection
b. To ask the collecting person
to make compensation for damages in case where the draft is not paid due to the
collecting person’s fault
2. Collection asking customer
shall be responsible
a. to correctly, fully comply
with provisions on procedures of draft collection through collecting person
stipulated by the State Bank of Vietnam and by the collecting person
b. To follow up the payment of
the draft to be collected to coordinate with the collecting person to timely
deal with obstacles; to fully, timely pay fees of draft collection service and
other related fees stipulated by the collecting person
c. To receive again drafts to be
collected which are returned by the collecting person in following cases: the
Draft does not satisfy fully conditions of collection as provided for in
Article 5 of this Regulation; draft is not presented, is refused for payment;
is paid partially; the draft is not paid due to the payer’s insolvency, due to
force majeure or objective obstacles.
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Article 12.
Right and responsibility of the collecting person
1. The collecting person shall
have the right:
a. To perform some following
rights of the beneficiary who asks for the draft collection: Right to present
draft for payment; right to receive the amount stated in the draft; right to
hand the draft over to other collecting person for collection
b. To refuse to collect the draft
which is not qualified for collection in accordance with provisions in Article
5 of this Regulation.
c. To return the draft to the
collection asking customer in following cases: where the draft can not be presented,
draft is refused for payment, is paid partially, is not paid due to the payer’s
insolvency or due to force majeure or objective obstacles. The collecting
person shall not take any responsibility for the lateness, or damages causing
to related parties when the draft is not paid because it is returned in above
cases.
d. To collect fees of draft
collection service and other related fees in accordance with the fee levels
listed in the fee tariff of payment services at their unit. In case where the
draft is returned in accordance with provisions in Point c, Paragraph 1 of this
Article, the collecting person shall not have to refund the collected service
fees.
2. The collecting person shall
be responsible:
a. To collect draft in lieu of
customers in accordance with provisions of applicable laws
b. To correctly, fully comply
with the contents stated in the draft collection proxy and explain the
collection asking customer about provisions on procedures of draft collection;
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d. To timely inform the
collection asking customer or collection accepting person in cases where the
collection of draft cannot be performed because the draft can not be presented;
the draft is refused for payment, is paid only partially, is not paid due to
the payer’s insolvency, due to force majeure, or objective obstacles
dd. To make damage compensation
to the collection asking customer, if the collecting person does not present
the draft in due course to ask for payment or fails to present the draft in
accordance with the instruction in draft collection Proxy. In this case, the
amount which the collecting person must compensate the collection asking customer
shall be limited to be equal to the amount stated in the draft at the maximum.
Chapter
III.
IMPLEMENTING PROVISIONS
Article 13.
Guidance on the implementation and execution
1. Chairman of the Board of
Directors, General Manager (Manager) of banks, other payment services suppliers
which are permitted to provide draft collection service shall be responsible
for guiding, organizing the implementation for their subsidiary units and
customers, ensuring that the draft collection through the collecting person
shall be performed promptly, quickly, accurately and safely in terms of asset.
2. Organizations, individuals
that are related to the draft to be collected through the collecting person
should report any obstacle that may arise during the implementation of this
Regulation to their collecting person for treatment; where the collecting
person has any obstacle that can not be treated, he shall be responsible for
reporting to the State Bank branches in provinces, cities under the central
Government’s management in the same area for treatment; where the State Bank
branches in provinces, cities under the central Government’s management can not
treat those obstacles, they shall be responsible for reporting to the State
Bank of Vietnam for study and solution.
Article 14.
Dealing with violations
Organizations, individuals
committing violation acts relating to this Regulation shall be, depending on
the nature, seriousness of violation, subject to discipline, administrative
punishment or prosecuted for criminal liability; if causing any damage, they
shall be subject to the compensation in accordance with provisions of
applicable laws.
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APPENDIX NO. 01:
SAMPLE OF DRAFT COLLECTION PROXY
Name of the collection accepting
person:...............................................................................
Address:...............................................................................................................................
PROXY OF DRAFT COLLECTION
No.:....................
Drawn on ....../....../......
Name of the collection asking
customer:................................................................................
Number of ID:.......................................................................................................................
Address:...............................................................................................................................
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Amount to be asked for
collection: (in number):......................................................................
(in
words):.......................................................................
Vouchers enclosed with the draft
include:...............................................................................
Date of draft presentation to
ask for payment: /..../....../ ........... at (place):..............................
Payer:...................................................................................................................................
Address:...............................................................................................................................
Account
number........................ at........................................................................................
When the money collection is
completed, please Credit the account No................ at ............... or
give a notice to us under the following address:
Where the draft collection is
not performed, please give a notice to us under the following address:...........................................
and by the mode of.....................
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Collection
asking customer
(Sign, clearly state the full name)
For the collecting person only
Collection
accepting person
Received the draft on........................
Already controlled and sent on...........
Collecting
person to be asked for collection
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Presented on.....................................................
Paid/made money transfer on.............................
TRANSACTOR
CONTROLLER
(Sign and seal)
TRANSACTOR
CONTROLLER
(Sign and seal)
Collection accepting person
Received money transfer
at...........o’clock..... date........
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TRANSACTOR
CONTROLLER
(Sign and seal)
Note: The
collecting person may provide for further contents or rearrange elements on the
sample draft collection proxy in line with his unit’s requirement, but he must
ensure that this sample Proxy contains sufficient contents as provided for.
APPENDIX NO. 2:
NOTICE OF THE RETURN OF THE DRAFT TO BE COLLECTED
Collecting person (Name
of the unit which draws the notice)
No………………………..
Notice of the return of the
draft to be collected
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To:........................
We would like to return
........................ the bill of exchange/promissory note No..... issued
on............ and are authorized to collect under the draft collection Proxy
No. ............. dated.................
Collection asking customer is:...............................................................................................
Address................................................................................................................................
Reason for the return of draft.................................................................................................
This notice is sent at..........
hour......... minutes........... on ...........
DRAWER
CONTROLLER
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Note: It is
required to draw a separate notice for each draft to be returned (except for
the case where the drafts are returned to the same collection asking customer
with the same reason)