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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.
07/2006/TT-NHNN
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Hanoi, September 7, 2006
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CIRCULAR
PROVIDING
GUIDANCE ON PURCHASE AND SUBLEASING ACTIVITY IN FORM OF FINANCE LEASING IN
ACCORDANCE WITH THE PROVISIONS OF THE DECREE NO. 16/2001/ND-CP DATED 02/5/2001
AND THE DECREE NO. 65/2005/ND-CP DATED 19/5/2005 OF THE GOVERNMENT
Pursuant to Article 42 of the Decree No.16/2001/ND-CP dated 02/5/2001
of the Government on the organization and operation of finance leasing
companies, Article 3 of the Decree No. 65/2005/ND-CP dated 19/5/2005 of the
Government providing for the amendment, supplement of several articles of the
Decree No.16/2001/ND-CP dated 02/5/2001 of the Government on the organization
and operation of finance leasing companies, the State Bank of Vietnam would
like to provide guidance on some contents concerning the purchase and
subleasing activity in form of finance leasing in accordance with the
provisions in these Decrees as follows:
1. Interpretation
In this Circular, the following
terms shall be construed as follows:
1.1. “Purchase and subleasing in
form of finance leasing” (hereinafter referred to as purchase and subleasing)
means a finance leasing company purchases assets that belong to the lessee’s
ownership and leases those very assets to the lessee in form of finance leasing
so that the lessee continues to use and serve its activities. In a purchase and
subleasing transaction, the lessee shall be concurrently the supplier of
leasing assets.
1.2. “Purchaser and sublessor”
(hereinafter referred to as the lessor) is finance leasing companies that are
permitted to establish and operate in Vietnam.
1.3. “Seller and sublessee”
(hereinafter referred to as the lessee) is organizations and individuals
provided for in point 1.1 paragraph 1, Circular No. 06/2005/TT-NHNN dated
12/10/2005 of the Governor of the State Bank providing guidance on the
implementation of several contents in the Decree No.16/2001/ND-CP dated
02/5/2001 of the Government on the organization and operation of finance
leasing companies and the Decree No. 65/2005/ND-CP dated 19/5/2005 of the
Government providing for the amendment, supplement of several articles of the
Decree No.16/2001/ND-CP dated 02/5/2001 of the Government on the organization
and operation of finance leasing companies. The lessee shall directly sell its
assets to the finance leasing company and sublease those assets in form of
finance leasing for continuous use and serving its activities.
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1.5. “Purchasing price of
leasing assets” means the amount payable by the lessor to the lessee when it
purchases leasing assets. The purchasing price of leasing assets shall be
determined in line with provisions of applicable laws on assets trading.
1.6. “Contract of assets
purchase” is a written agreement between the lessor and the lessee about the
leasing assets trading.
2. Principles of purchase and subleasing
2.1. The purchase and subleasing
transaction shall be performed through a contract of assets purchase and a
finance leasing contract between the lessor and the lessee. The assets purchase
contract shall take effect from the effective time of the finance leasing
contract.
2.2. In the purchase and
subleasing transaction, the lessor shall hold the leasing assets’ ownership and
sublease them to the lessee in form of finance leasing in line with applicable
laws on finance leasing. The transfer of the assets’ ownership from the lessee
to the lessor shall be performed in accordance with provisions of applicable
laws. The registration of leasing assets’ ownership shall be performed in
accordance with provisions in paragraph 7 Article 1 of the Decree No.
65/2005/ND-CP dated 19/5/2005 of the Government providing for the amendment, supplement
of several articles of the Decree No.16/2001/ND-CP dated 02/5/2001 of the
Government on the organization and operation of finance leasing companies.
2.3. The lessor shall select
leasing assets and the lessee who is capable of debt repayment to carry out the
purchase and subleasing transaction safely and efficiently
3. Conditions of leasing assets:
3.1. They must belong to the
legal ownership of the lessee;
3.2. They are not assets being
in use to ensure the performance of other obligations
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3.4. They are operating normally
4. Contract of assets purchase shall contain following main
contents: name, address of the parties; purpose of assets purchase; assets
description; purchasing price of assets; payment mode; time limit, place, mode
of contract implementation; rights and obligations of the parties;
responsibilities due to contract violation; penalty for the contract violation.
Besides, the parties may agree
about other contents in line with provisions of applicable laws on assets
trading.
4.2. The finance leasing
contract shall be performed in accordance with the provisions in the Decree
No.16/2001/ND-CP dated 02/5/2001 of the Government on the organization and
operation of finance leasing companies, the Decree No. 65/2005/ND-CP dated
19/5/2005 of the Government providing for the amendment, supplement of several
articles of the Decree No.16/2001/ND-CP dated 02/5/2001 of the Government on
the organization and operation of finance leasing companies and other related
legal documents.
5. Currency used in the purchase and subleasing transaction
Currency used in the purchase
and subleasing transaction shall be Vietnamese Dong. For purchase and
subleasing transactions, which are performed in foreign currency, the lessor
and the lessee must comply with guidance of the State Bank and provisions of
current laws on foreign exchange control.
6. Rights and obligations of the lessor and the lessee
6.1. Rights and obligations of
the lessor
a. To request the lessee to fully
supply information and documents relating to leasing assets
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c. To request the lessee to make
compensation for damages resulting from disputes relating to the ownership of
the leasing assets
d. To make payment of the amount
agreed upon in the assets purchase contract to the lessee
dd. To correctly and fully comply
with articles as agreed upon in the assets purchase contract and finance
leasing contract
6.2. Rights and obligations of
the lessee
a. To receive money from the
sale of assets that the lessor pays under the price as agreed upon in the
assets purchase contract
b. To fully, accurately and
honestly supply all information, reporting documents upon request of the lessor
c. To issue a legal sale
invoice, hand over all origins of documents on the ownerships and other
invoices, vouchers concerning related rights and interests of leasing assets to
the lessor upon its request
d. To make compensation for
damages resulting from disputes relating to the ownership of leasing assets
dd. To correctly and fully
comply with articles as agreed upon in the assets purchase contract and finance
leasing contract
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7. Tax for purchase and subleasing transaction:
Tax imposed on the purchase and
subleasing transaction shall be performed in accordance with the guidance of
the Ministry of Finance.
8. Dealing with violations
Organizations, individuals that
commit violations act for this Circular shall, depending on the nature,
seriousness of violation acts, be dealt with in accordance with provisions of
applicable laws
9. Implementing organization
9.1. Finance leasing companies
shall issue internal regulations on the implementation of the purchase and
subleasing transaction in line with this Circular and current laws;
9.2. The State Bank’s
Inspectorate shall organize the inspection, supervision for the implementation
of the purchase and subleasing transaction; carry out settlement under its
competence and petition the State Bank’s Governor for dealing with cases of
violating this Circular
10. This Circular shall be effective after 15 days since its
publication in the Official Gazette.
11. The Director of Administrative Department, Director of Banks
and Non-Banking Credit Institution Department, Heads of units of the State Bank
of Vietnam, Managers of the State Bank branches in provinces, cities under the
central Government’s management, Chairman of the Board of Directors, General
Directors (Directors) of Finance Leasing Companies shall be responsible for the
implementation of this Circular.
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FOR THE GOVERNOR OF THE STATE BANK OF
VIETNAM
DEPUTY GOVERNOR
Dang Thanh Binh