THE STATE BANK
OF VIETNAM
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THE SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.: 18/VBHN-NHNN
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Hanoi, July 12,
2023
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CIRCULAR
PRESCRIBING
LENDING TRANSACTIONS OF CREDIT INSTITUTIONS AND FOREIGN BANK BRANCHES WITH
CUSTOMERS
The Circular No. 39/2016/TT-NHNN dated December
30, 2016 of the Governor of the State Bank of Vietnam prescribing lending
transactions of credit institutions and foreign bank branches with customers,
coming into force from March 15, 2017, is amended by:
The Circular No. 06/2023/TT-NHNN dated June 28,
2023 of the Governor of the State Bank of Vietnam providing amendments to the
Circular No. 39/2016/TT-NHNN dated December 30, 2016 of the Governor of the
State Bank of Vietnam prescribing lending transactions of credit institutions
and foreign bank branches with customers, coming into force from September 01,
2023.
Pursuant to the Law on the State Bank of Vietnam
dated June 16, 2010;
Pursuant to the Law on Credits Institutions
dated June 16, 2010;
Pursuant to the Government’s Decree No.
156/2013/ND-CP dated November 11, 2013 defining functions, tasks, powers and
organizational structure of the State Bank of Vietnam (SBV);
At the request of the Director of the Monetary
Policy Department;
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Chapter I
GENERAL PROVISIONS
Article 1. Scope and regulated
entities
1. This Circular deals with lending transactions of
credit institutions and/or foreign bank branches (hereinafter referred to as
“credit institutions”) with customers.
2. This Circular shall not cover lending
transactions between credit institutions.
Article 2. Definitions
For the purposes of this Circular, the terms below
shall be construed as follows:
1. Lending refers to a form of extension of a line
of credit under which a credit institution offers or undertakes to offer a
customer a sum of money for specific uses within an agreed time period provided
that the customer adheres to the principle that both principal and interest
arising must be repaid.
2. Lending credit institution refers to a credit
institution established and operating under the Law on Credit Institutions,
including:
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b) Cooperative banks;
c) Non-bank credit institutions;
d) Microfinance institutions;
dd) People’s credit funds;
e) Foreign bank branches.
3. Customer performing a borrowing transaction with
a credit institution (hereinafter referred to as “borrowing customer”) refers
to any legal entity or individual, including:
a) Legal entities established and operating within
the territory of Vietnam and/or those established abroad and legally operating
within the territory of Vietnam;
b) Vietnamese and/or foreign nation.
4. Loan for personal or living expenses (consumer
loan) refers to a credit institution's granting a loan to an individual
customer’s demands for borrowed funds to pay consumption or living expenses for
his/her personal or family purposes.
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6. Plan to use a borrowed fund is a collection of
information about use of the borrowed fund by a customer, including at least
the following information:
a) Total fund needed, details of capital constituents
of total fund needed (inclusive of the fund borrowed from credit institutions);
purposes of fund; fund spending time;
b) Customer’s available sources of debt repayment;
c) [2]
The plan or project serving business purpose or living purpose such as house
purchase, construction or renovation or receipt of transfer of land use rights
for building house.
7. Financial capacity refers to a customer’s
capacity with respect to capital, asset or financial resources.
8. Loan term refers to a period of time starting on
the day following the day when a credit institution begins to disburse the
borrowed fund to a customer and ending on the day when that customer has to
repay principal and interest amounts in full as agreed upon between the credit
institution and customer. Where the last day of loan term is a holiday or
weekly day-off, the next day will be taken as the last day of loan term. If a
loan term is not a full day, the provision enshrined in the Civil Code on the
date of commencement of a term is applied.
9. Repayment period refers to a set period of time
constituting the agreed loan term and, at the end of each of these time
periods, a customer is obliged to repay loan principal and/or interest amounts
in part or in whole to a credit institution.
10. Debt rescheduling refers to a credit
institution’s consent to adjustment to a repayment period or extension of a
loan term according to the following provisions:
a) Adjustment to a repayment period is defined as a
credit institution's agreeing to extend the agreed period of repayment of loan
principal and/or interest in part or in full (including cases in which there is
no change to the number of agreed repayment periods) while the loan term is
kept unchanged;
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11. Overdue principal is composed of:
a) The outstanding amount of principal to become delinquent
as prescribed in Article 20 hereof;
b) The outstanding amount of principal on which a
customer is delinquent in the event of a credit institution’s termination of a
loan or collection of debt prior to the due date as stipulated by Clause 1
Article 21 hereof.
12.[3]
Loan for financial offsetting refers to a credit institution’s grant of a loan
to a customer to offset that customer’s own funds or funds borrowed from
another individual or organization (other than a credit institution) used for
paying or covering its costs incurred from a plan or project serving business
purpose or living purpose.
Article 3. Autonomy of a credit
institution
1. A credit institution shall have autonomy over
its lending operations and assume sole responsibility for its own lending
decision. None of entities or individuals shall be allowed to illegally
interfere in lending operations performed by a credit institution.
2. A credit institution shall be accorded the right
to refuse customer’s demands in violation of regulations hereof and loan
agreements.
Article 4. Lending and
borrowing rules
1. Lending transactions between a credit
institution and a customer shall be performed according to an arrangement
between that credit institution and customer and in conformity with regulations
laid down herein and other relevant laws, including the legislation on
environmental protection.
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Article 5. Application of
relevant legal instruments
1. Lending operations carried out by a credit
institution shall be required to comply with provisions of the Law on Credit
Institutions, this Circular and other relevant legislation.
2. With respect to specific lending operations
covered by regulations provided in particular documents of the Government,
Prime Minister and State Bank of Vietnam, these regulations shall apply; to the
extent of whether particular documents of the Government, Prime Minister and
State Bank of Vietnam prescribe application of this Circular or contents
relating to lending operations are not prescribed in particular documents, relevant
provisions set forth in this Circular shall apply. Specific lending operations
encompass:
a) Syndicated loan;
b) Loan extended to customers for their outward
investments;
c) Loan extended to customers doing business
operations in socio-economic policies and programs of the Government or Prime
Minister;
d) Foreign-currency loan extended to resident
customers;
dd) Foreign loan extended to, or collection of
foreign debt owed by, non-resident customers;
e) Loan offered by people's credit funds or microfinance
institutions;
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h) Other specific loans prescribed by particular
documents of the Government, Prime Minister or State Bank of Vietnam.
Article 6. Language usage
1. A loan agreement shall be made either in
Vietnamese or both in Vietnamese and other foreign language.
2. With respect to other documents concerning
lending operations that use any foreign language, if there is any request of a
regulatory authority for translation into Vietnamese, the translation copy must
be certified by a competent person of a credit institution, or be legally
notarized or authenticated.
Article 7. Eligibility
requirements for a loan
A credit institution shall consider granting a
decision to offer a loan to a customer who meets the following requirements:
1. If that customer is a legal person, it must have
civil capacity in accordance with the civil law jurisdictions. If that customer
is a natural person, (s)he must be aged exactly 18 years or older and have full
capacity for civil conduct in accordance with the civil law jurisdictions, or
must be aged between exactly 15 and nearly 18 years and must not have his/her
incapacity or restricted capacity for civil conduct as provided by laws.
2. Demonstrate that customer’s demands for a loan
to be used for legally accepted purposes.
3. Establish that customer’s plan for effective use
of borrowed fund.
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5.[4]
(abrogated).
Article 8: Rejected loan
demands [5]
Credit institutions shall not be allowed to approve
the following loan demands:
1. Loans used for doing business or investing in
sectors or activities prohibited by the Investment Law.
2. Loans used for paying expenses or meeting
financial demands of business or investment in sectors or activities prohibited
by the Investment Law and other transactions or activities prohibited by laws.
3. Loans used for purchasing or using goods or
services in the list of prohibited sectors and activities under the Investment
Law.
4. Loans used for buying gold bullion.
5. Loans used for repaying loan debts owed to
lending credit institutions, except those used for paying loan interests
arising during the construction process which are accounted for in the total
construction cost estimate approved by a competent authority in accordance with
regulations of law.
6. Loans used for repaying foreign loan debts
(excluding foreign loans granted in the form of deferred payment for purchased
goods) or repaying loan debts owed to other credit institutions, except for a
loan used for making early repayment of an existing loan that meets the
following conditions:
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b) The old loan has not yet undergone any debt
rescheduling.
7. Loans used for sending money to deposit
accounts.
8. Loans used for making capital contribution to,
buying or receiving transfer of stakes of a limited liability company or a
partnership, or shares of a joint-stock company that is not yet listed on the
securities market or registered for trading on the Upcom system.
9. Loans used for making capital contributions
under capital contribution contracts, investment cooperation contracts or
business cooperation contracts for executing investment projects that are unfit
for sale or for business operation as prescribed by laws when the credit
institution issues its lending decision.
10. Loans used for financial offsetting purposes,
except for those meeting the following conditions:
a) The customer has used their own funds for paying
costs incurred from their business project for a period of less than 12 months
by the time of grant of lending decision by the credit institution;
b) Costs paid using the customer’s funds for
executing a business project are costs to be covered using the fund borrowed
from the credit institution under the plan to use borrowed fund submitted to
the credit institution when applying for a medium-term or long-term loan for
executing that business project.
Article 9. Loan application
When there is a demand for a loan, a customer must
send a credit institution documents evidencing its eligibility for such loan in
accordance with Article 7 hereof and others as referred to in the credit
institution's instructions.
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A credit institution shall consider granting a
decision to offer a loan to a customer which is divided into the following
categories:
1. Short-term loan, defined as loans having the
maximum loan term of 01 (one) year.
2. Medium-term loan, defined as loans having the
loan term between above 01 (one) year and 05 (five) years at the maximum.
3. Long-term loan, defined as loans having the loan
term of more than 05 (five) years.
Article 11. Currency units
used for extending loans or repaying debts
1. Credit institutions and their customers shall
agree on a loan denominated either in Vietnamese dong or another foreign
currency unit as appropriate to provisions laid down herein and relevant
legislation.
2.[6]
Currency unit used for debt repayment is the one used in a loan. The repayment
of loan debts in another currency shall be subject to specific agreements
between the credit institution and the customer in conformity with relevant law
provisions.
Article 12. Loan limit
A credit institution shall consult the plan to use
the borrowed fund, financial capability of a borrowing customer, credit lines extended
to the borrowing customer and available capital source of the credit
institution in order to enter into an agreement with the customer on the loan
limit.
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1. A credit institution and its customer shall
agree on the interest rate depending on capital demands and supplies on the
market, loan demands and creditworthiness of customers, unless otherwise
stipulated by the State Bank's regulations on the maximum interest rate set
forth in Clause 2 of this Article.
2.[7]
If the customer has been rated transparent and healthy in its financial status
by the credit institution, the credit institution and the customer shall agree
on the interest rate on short-term loan in VND which shall not exceed the maximum
lending interest rate decided by SBV’s Governor over periods of time in order
to meet certain demands for borrowed fund as follows:
a) Loans taken out to support the agricultural and
rural development sector under the Government’s regulations on credit policies
for agricultural and rural development;
b) Loans taken out to implement the export business
plan in accordance with the Law on Commerce and its instructional
documents;
c) Loans taken out to finance business activities
of small and medium-sized enterprises under the Law and the Government’s
regulations on support for development of small and medium-sized enterprises;
d) Loans taken out to develop ancillary industries
under the Government’s regulations on development of ancillary industries;
dd) Loans taken out to finance business operations
of enterprises that apply high technologies included in the List of prioritized
high technologies approved by the Prime Minister and other high-tech
enterprises under the provisions of the Law on High Technology and its
instructional documents.
3. Terms and conditions of an agreement on the
interest rate shall comprise interest rate levels and methods for calculating
the interest rate on a loan. Where the interest rate is not converted into
%/year and/or the method for calculating the interest rate based on the actual
outstanding amount of debt and time length of maintenance thereof is not
applied, the loan agreement must include terms and conditions of the interest
rate converted into %/year (one year is calculated as three hundred and sixty
five of days) according to the actual outstanding amount of debt and time
length of maintenance thereof.
4. If a customer fails to repay or fully repay the
agreed amount of loan principal and/or interest at the payment due date, the
customer shall be obliged to repay loan interest as prescribed hereunder:
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b) If a customer fails to make due payment of
interest as prescribed by Point a of this Clause, that customer must pay late
payment interest charged at the interest rate agreed upon between the credit
institution and customer which is not allowed to exceed 10%/year interest rate
on the outstanding balance of late payment interest in proportion to the period
of late payment;
c) Where a debt has become delinquent, the customer
owing a delinquent debt must pay interest on the outstanding amount of
principal which is overdue in proportion to the period of late payment for
which the interest rate charged is not allowed to exceed 150% of the interest
rate charged on due repayment that is determined upon the date of such debt
becoming delinquent.
5. Where the variable interest rate is applied, a
credit institution and customer must enter into an agreement on principles and
factors for determination of the variable interest rate, and on the date of
adjustment to the loan interest rate. In cases where referring to factors for
determination of the variable interest rate results in different loan interest
rates, the credit institution shall apply the lowest loan interest rate.
Article 14. Fees related to
lending activities
The credit institution and its customer must agree
on collection of fees related to lending operations, including:
1. Exit fee paid by a customer for repayment of
debt before the due date.
2. Fee paid for provisional credit limit.
3. Fee paid for syndicated loan arrangement.
4. Fee paid for a commitment to borrowed fund
withdrawal during the period from the date of entry into force of the loan
agreement to the date of initial disbursement of borrowed fund.
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Article 15. Borrowed fund
guarantee
1. The credit institution and its customer shall
agree on whether or not a security for a borrowed fund is implemented.
Agreement on security for the borrowed fund between the credit institution and
its customer must conform to regulations of the laws on security and relevant
legislation.
2. The credit institution shall make its decision
on and bear responsibility for any unsecured loan.
3. The customer and guarantor must liaise with the
credit institution to treat assets pledged as collateral for loans when there
are sufficient grounds for such treatment under terms and conditions of loan
agreements, loan guarantee contracts, laws and regulations.
Article 16. Provision of
information
1. The credit institution shall be responsible for
providing the customer with all necessary information before establishment of a
loan agreement, including such information as loan interest rate, principles
and factors for determination of interest rate, date of determination of
interest rate in case of application of variable interest rate; interest rate
charged for overdue principal; interest rate charged for interest of which
payment is late; method for calculation of loan interest rate; type and amount
of loan fee; criteria for classifying borrowing customers by loan interest
rates as referred to in Clause 2 Article 13 hereof.
2. The customer shall provide information for the
credit institution and assume legal responsibility for accuracy, authenticity
and integrity of submissions to the credit institution, including the following
documents or materials:
a) Those stipulated by Article 9 hereof;
b) Report representing use of loan and evidence
that the loan fund is used to serve the purposes specified in the loan
agreement;
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Article 17. Assessment of loan
application and grant of decision to offer a loan
1. The credit institution shall assess customer’s
ability to satisfy loan requirements as prescribed by Article 7 hereof in order
to consider granting a decision to offer a loan. In the course of such
assessment, the credit institution can use the internal credit rating system
associated with information available at the National Credit Information Center
of Vietnam and other communications channels.
2. The credit institution must establish loan
approval procedures according to the principle of assignment of
responsibilities in the assessment and decision-making stages.
3. In the event of refusal to offer a loan, the
credit institution shall notify the customer submitting loan application of
reasons for such rejection.
Article 18. Repayment of loan
principal and interest
1. The credit institution and its customer must
agree on the period of loan principal and interest repayment in either of the
following manners:
a) Separate periods of repayment of loan principal
and interest;
b) Same period of repayment of loan principal and
interest.
2. The credit institution and its customer shall
agree on repayment of debt prior to the due date.
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4.[8]
The credit institution and its customer must agree on the priority order for
collection of principal and interest amounts. With respect to a loan overdue,
the credit institution shall observe the order in which collection of principal
amount will take priority over that of interest amount. With respect to a loan
for which one or some payments are past due, the credit institution shall
collect debts according to this order: overdue principal amount, unpaid
interest on overdue principal amount, principal amount due, and interest on the
principal amount which is not paid when due.
Article 19. Debt rescheduling
The credit institution shall consider deciding
whether the debt rescheduling is necessary at the customer’s request and
depending on the financial capability of that credit institution and results of
assessment of the customer's capability to repay debt as prescribed hereunder:
1. If the customer is incapable of making due
repayment of loan principal and/or interest, and is rated by the credit
institution as having capacity for fully repaying loan principal and/or
interest within the adjusted repayment period, the credit institution shall
consider adjusting the period of repayment of that principal and/or interest as
appropriate to the customer's source of financing for debt repayment without
prejudice to the loan term.
2. If the customer is incapable of paying off loan
principal and/or interest in full within the agreed loan term, and is rated by
the credit institution as having capacity for fully repaying loan principal and/or
interest within a specified period of time following the said loan term, the
credit institution shall consider extending the period of debt repayment as
appropriate to the customer’s source of financing for such debt repayment.
3. The debt rescheduling shall be performed prior
to or within a period of 10 (ten) days from the agreed date on which debt
repayment is due.
Article 20. Delinquent debts
The credit institution shall perform delinquency
procedures for the principal amount of which repayment is not made by the
agreed due date and rescheduling is not accepted by the credit institution;
notify the customer of such delinquency. That notification shall include at
least the following contents: outstanding amount of overdue principal, time of
delinquency of such debt and interest rate charged for that overdue principal
amount.
Article 21. Loan termination,
debt treatment, loan interest or fee exemption or reduction
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2. Where the customer fails to make repayment of
debt due, the credit institution shall be entitled to apply methods for debt
recovery under terms and conditions of a loan agreement, loan guarantee
contract and regulations of relevant laws. If the amount of money obtained
after application of methods for debt recovery is not adequate to fulfill
obligations to pay debt owed to the credit institution, the customer shall keep
on assuming responsibility for paying off loan principal and interest in full
to the credit institution.
3. Where the customer or guarantor is affected by
the court’s decision to open the bankruptcy proceedings or declaration of
bankruptcy, the credit institution's recovery of debt owed by the customer and
guarantor shall be carried out under regulations of the law on bankruptcy.
4. The credit institution shall have the right to
decide to offer the customer loan interest or fee exemption or reduction in
accordance with internal rules of the credit institution.
Article 22. Internal rules
1.[9]
Subject to the provisions of the Law on Credit Institutions, this Circular and
other relevant laws, the credit institution shall issue its internal rules on
lending, including regulations on digital lending (if any), and management of
loans granted as appropriate to its operational characteristics (hereinafter
referred to as “internal rules on lending).
2. Internal rules on lending of the credit
institution shall be implemented in a consistent manner within the entire
network of the credit institution and address the following minimum contents:
a) [10]
Loan eligibility requirements, including criteria for determining demands for borrowed
funds for legitimate purposes, feasible plans to use borrowed funds and
customers that have sound financial capability to repay debts; rejected loan
demands; lending methods; lending interest rates and methods for calculating
loan interest rate; criteria for rating customers transparent and healthy
in their financial status and eligible to get loans with the lending interest
rate specified in Clause 2 Article 13 of this Circular; customer’s lending
application dossiers and other documents and data sent to the credit
institution which must be appropriate to loan features, types of loans and
target customers; debt collection; conditions, business processes and
procedures for debt rescheduling; debt delinquency; eligibility requirements
for unsecured loans, and delegation of authority to decide grant of unsecured
loans.
b) [11]
Procedures for assessing, approving a loan application and deciding to grant a
loan, including:
(i) The maximum duration for assessing a loan
application and decide to grant a loan; delegation or assignment of rights and
responsibilities to each individual or department in loan application
assessment, approval and issuance of lending decisions, including those for
digital lending operations prescribed in Article 32dd of this Circular (if
any); other workloads as part of loan application assessment, approval and
lending decision-making procedures;
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(iii) In case of a loan used for making cash
payment as security for performing an obligation, measures for freezing amounts
of borrowed funds disbursed by the lending credit institution in accordance
with regulations of law, and under specific agreements of the parties included
in the loan agreement until fulfillment of the secured obligation;
c) [12]
Procedures for inspection and supervision of loan application, use of borrowed
funds and debt repayment by customers, including:
(i) Delegation or assignment of rights and
responsibilities to each individual or department for inspection and
supervision of loan application, use of borrowed funds and debt repayment by
customers;
(ii) In case of loans used for making capital
contributions under capital contribution contracts, investment cooperation
contracts or business cooperation contracts for executing investment projects,
measures for inspecting, supervising and evaluating the customer’s financial
status and sources of funding for debt repayment, ensuring the possibility of
receiving loan principal and interest amounts in full by the agreed due date,
and controlling the customer’s use of borrowed funds for right purposes;
(iii) In case of a loan used for making cash
payment as security for performing an obligation, measures for ensuring the
recovery of the loan principal amount in case the parties fail to fulfill the
secured obligation as agreed;
d) Requirements concerning security for loans,
assessment of assets pledged as collateral for loans; management, supervision
and monitoring of collateral appropriate to loan security, collateral features
and customers;
dd) Loan termination, debt treatment; loan interest
rate and fee exemption and reduction;
e) [13]
Identification of risks that may arise; regulations on risk management,
assessment and control; measures for treatment of risks arising during the
lending process (including digital lending process);
g) [14]
Control of extension of loans serving the purpose of repaying loan debts owed
to the credit institution, repaying foreign loan debts in order to prevent and
stop any deviation in reporting on the credit quality. Control of
extension of rollover loans and revolving loans in order to manage the
customer’s cash flow to assure possibility of recovering loan principal and
interest amounts in full by the agreed due date and reliable reporting on the
credit quality. Control of extension of loans used for investing in
securities; trading real estate; executing investment projects in the form of
public-private partnerships; serving demands for large amounts of borrowed
funds for living purposes as assessed by the credit institution; loans granted
adopting digital lending method.
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Article 23. Loan agreement
1. The loan agreement must be made in writing,
including the following minimum requirements:
a) Name, address and corporate identity code of the
lending credit institution; name, address, number of identification card or
citizen identification card or passport of the customer;
b) Loan amount; loan limit for a line of credit
loan; provisional credit limit for a provisional line of credit loan; overdraft
limit for a current account overdraft facility;
c) Loan purposes;
d) Currency unit used for extending a loan or
repaying debt;
dd) Lending method;
e) Loan term; duration to maintain the loan limit
for a line of credit loan, effective period of provisional credit limit for a
provisional line of credit loan; duration to maintain the overdraft limit for a
current account overdraft facility;
g) Agreed lending interest rate and interest rate
converted into percent (%)/year which is calculated on the basis of the actual
amount outstanding and duration of maintenance thereof as prescribed by Clause
3 Article 13 hereof; principles and factors of determination of interest rate,
time of determination thereof in case of application of variable interest rate;
interest rate charged on the outstanding amount of overdue principal; interest
rate charged on late payment interest; type and amount of loan fee applied;
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i) Loan principal and interest repayment, and
priority order of recovery of loan principal and interest; early debt
repayment;
k) Debt rescheduling; delinquency of the principal
amount that a customer fails to repay at the agreed due date and the credit
institution refuses to agree to reschedule; form and contents of notification
of such delinquency referred to in Article 20 hereof;
l) Responsibilities of a customer for cooperating
with the credit institution and providing documents regarding a loan in order
for the credit institution to assess application for and grant a decision to
offer a loan, inspect and supervise use of borrowed fund and debt repayment of
the customer;
m) Cases of loan termination; collection of debt
prior to the due date; delinquency of the principal amount that the customer
fails to repay prior to the due date in the event of the credit institution's
loan termination or collection of debt prior to the due date; form and contents
of notification of thereof as prescribed by Clause 1 Article 21 hereof;
n) Loan debt treatment; penalty for loan default
and compensation for any loss incurred; rights and liabilities of parties
involved;
o) Entry into force of a loan agreement.
2. In addition to provisions set forth in Clause 1
of this Article, parties can agree on other terms and conditions in compliance with
provisions of this Circular and relevant laws.
3. The loan agreement referred to in Clause 1 and 2
of this Article shall be established in the form of either a specific loan
arrangement, or both framework and specific arrangement.
4. Where using contract templates or general terms
and conditions during conclusion of a loan agreement, the credit institution
shall be obliged to:
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b) [15]
provide adequate information on the standard form contract or contract
containing general terms and conditions for the customer before entering into
the loan agreement, and obtain the customer’s confirmation that the credit
institution has already provided all necessary information.
Article 24. Inspection of loan
use
1. The customer shall be responsible for using loan
funds and repaying debts as agreed; reporting and providing documents
evidencing use of such loan at the request of the credit institution.
2.[16]
Credit institutions shall be entitled and obliged to carry out inspection and
supervision of use of borrowed funds and debt repayment by their customers in
accordance with regulations of law and their own internal rules referred to in
Point c Clause 2 Article 22 of this Circular.
Article 25. Penalty and
compensation in case of defaulting on a loan
1. The credit institution and its customer shall be
allowed to agree on penalty and compensation in accordance with laws in the
event that either the credit institution or the customer defaults on a loan
agreement, unless otherwise stipulated by Clause 4 Article 13 hereof.
2. The credit institution and its customer can
agree on whether the defaulting party is only subject to a penalty for
violation without being held liable for a compensation for loss incurred or
both of these actions. Where the credit institution and its customer have
mutually agreed on a penalty for violation instead of both of these actions,
the defaulting party shall only be subject to the penalty for violation.
Article 26. Other provisions
In the course of extending a loan, the credit institution
shall assume the following responsibilities:
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2.[17]
Use payment facilities for disbursement of borrowed funds in accordance with
SBV’s regulations on methods for disbursement of funds lent by credit
institutions to their customers.
3. Categorize and set aside an amount of money as a
provision and use such provision for managing risks associated with lending
operations of the credit institution.
4. Carry out recording of accounting entries of and
prepare statistical reports on lending transactions in accordance with
applicable laws on bookkeeping and statistical reporting regime of credit
institutions.
5.[18]
In case a loan is given for making cash payment as security for performing an
obligation, the credit institution shall freeze amounts of borrowed funds
disbursed by the lending credit institution in accordance with regulations of
law, and under specific agreements of the parties included in the loan
agreement until the secured obligation has been fulfilled.
Chapter II
SPECIFIC PROVISIONS
Section 1. BUSINESS LOAN
Article 27. Lending methods
The credit institution shall agree with its
customer on application of the following lending methods:
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2. Syndicated loan: At least two credit
institutions are together offering a loan to a customer for the purpose of
implementing one fund borrowing plan or project.
3. Loan for crop season interval: The credit
institution extends a loan to a customer in order to cultivate or raise seasonal
plants or livestock used in the next production cycle within a given year, or
plants of which roots are retained and industrial crops which are annually
harvested. Accordingly, the credit institution and its customer shall
agree that the outstanding amount of debt existing in the previous production
cycle can be used for the following production cycle, but shall not be allowed
to exceed the time length of 02 consecutive production cycles.
5.[21]
Temporary line of credit loan: The credit institution undertakes to grant loans
to its customer up to the agreed temporary credit limit (in addition to
the agreed credit limit). The credit institution and its customer shall agree
on the validity period of temporary credit limit which is not allowed to
exceed 01 (one) year.
6. Current account overdraft facility: The credit
institution approves an overdraft limit within which the customer is allowed to
spend more money than the amount available in the current account in order to
render payment services on that current account. The overdraft limit is
maintained within the maximum period of 01 (one) year.
7. Revolving loan: The credit institution and its
customer agree to extend a loan to meet the demand for fund used in the
business cycle which is less than 01 (one) month and the customer is allowed to
use the outstanding amount of principal incurred in the previous business cycle
for the following one provided that the loan term remains fewer than 03 (three)
months.
8. Rollover loan: The credit institution and its
customer agree on a short-term loan under the following conditions:
a) On the payment due date, the customer is
entitled to repay debt or extend the period of repayment of part or whole of
the outstanding amount of loan principal for another specified time period;
b) Total loan term is not allowed to exceed 12
months from the initial disbursement date and one business cycle;
c) On the date when a loan application is
considered, the customer does not incur any bad debt owed to credit
institutions;
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9. Other lending methods not mentioned above shall
be combined with those referred to in Clause 1, 2, 3, 4, 5, 6, 7 and 8 of this
Article as appropriate to business conditions of the credit institution and
loan features.
Article 28. Loan term
1. The credit institution and its customer shall
refer to the business cycle, duration of fund recovery and solvency of the
customer, source of loan fund and the remaining duration of operation of the
credit institution in order to agree on the loan term.
2. The term of a loan offered to a customer that is
a legal person established and operated within the territory of Vietnam, or a
legal person established abroad and legally operated within the territory of
Vietnam shall not exceed the remaining duration of legal operation of that
customer, and to a customer that is a foreign citizen residing within the
territory of Vietnam, shall not exceed the residual duration of legal residence
in Vietnam.
Article 29. Storage of loan
documentation
1. The credit institution shall create loan
documentation including:
a) Loan application dossiers;
b) Loan agreement;
c) Report on actual financial status sent by the
customer to the credit institution within the loan period, including: financial
statements submitted to competent authorities and/or audited financial
statements in case the customer is required to prepare financial statements as
prescribed by laws; reports on the customer’s financial status prepared
according to the credit institution’s instructions [22].
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dd) Decision to offer a loan signed by the
authorized person; if the decision is collectively made, the minutes recording
that decision must be included;
e) Materials arising during the period of use of
the loan which relate to the loan agreement under the credit institution’s
instructions.
2. The credit institution must store its loan
documentation; the duration to store such loan documentation shall be subject
to laws and regulations.
Section 2. CONSUMER LOAN
Article 30. Lending methods
The credit institution shall agree with its
customer on application of the following lending methods:
1. The lending methods shall be subject to
regulations set forth in Clause 1, 4 and 6 Article 27 hereof.
2. Those other than the aforesaid lending methods
shall be combined with the ones referred to in Clause 1 of this Article as
appropriate to business conditions of the credit institution and loan features.
Article 31. Loan term
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2. The term of a loan offered to a customer that is
a foreign citizen residing within the territory of Vietnam shall not exceed the
residual duration of legal residence in Vietnam.
Article 32. Storage of loan
documentation
1. The credit institution shall create loan documentation
including:
a) Loan application dossiers;
b) Loan agreement;
c) Report on income generated by the customer
during the loan term under the credit institution’s instructions;
d) Documents relating to loan guarantee;
dd) Decision to offer a loan signed by the
authorized person; if the decision is collectively made, the minutes recording
that decision must be included;
e) Materials arising during the period of use of
the loan which relate to the loan agreement under the credit institution’s
instructions.
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Section 3. DIGITAL LENDING
Article 32a. Digital lending
rules
1. Credit institutions shall adopt the digital
lending method in a manner that is appropriate to their business conditions and
loan features, and ensures security, safety and protection of data messages as
well as confidentiality of information in accordance with regulations of laws
on anti-money laundering and electronic transactions, SBV’s risk management
guidelines and other relevant law provisions.
2. The information system used for carrying out
digital lending activities must satisfy level-3 or higher-level information
system security requirements laid down in the Government’s regulations on
security of information systems by classification and SBV’s regulations on
security of information systems in banking operations.
3. Credit institutions shall store and manage
information and data in accordance with regulations of law; information and
data must be stored safely, kept confidential, duly backed up and have their
adequacy and integrity ensured to facilitate access or use, where necessary, or
to serve the inspection, verification and resolution of trace requests,
complaints or disputes, or to be provided at the request of competent
authorities.
4. Each credit institution shall itself decide to
adopt measures, forms and technologies for carry outing digital lending
activities, accept all risks that may arise from digital lending, and must meet
the following minimum requirements:
a) It has adopted solutions and technologies for
ensuring the accuracy, confidentiality and safety during the collection, use
and verification of information and data;
b) It has adopted measures for examining, checking,
updating and verifying information and data; measures for preventing acts of
forging, intervening and falsifying information and data;
c) It has developed measures for monitoring,
identifying, measuring and controlling risks; risk treatment methods;
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5. Credit institutions shall consider deciding to
carry out digital lending activities as prescribed in Section 3 of this
Circular. Relevant provisions of this Circular shall apply to other digital
lending-related contents which are not mentioned in Section 3 of this Circular.
Article 32b. Identifying
customers, verifying customer identification information
1. Each credit institution must adopt solutions and
technologies for identifying its customers and verifying customer
identification data during its provision of digital lending services; shall
assume responsibility for all risks that may arise, and meet the following
minimum requirements:
a) A customer’s identification information and
biometric data (including biological factor/characteristics that are
specifically used to identify a person, cannot be forged, and are rarely
matched with those of another person such as fingerprints, face, iris, voice
and other biometric factors) must match corresponding information and biometric
data included in documents/data necessary to identify that customer in
accordance with regulations of the law on anti-money laundering and as
requested by the credit institution, or that customer’s personal identity data
certified by competent authorities, or included in citizen identity card
database/national population database, or provided by electronic certification
service providers in accordance with regulations of the law on electronic
certification and identification, or provided by other credit institutions;
b) It has developed procedures for managing,
controlling and assessing risks, including measures for preventing acts of
forging, intervening, altering or falsifying customer identification
information during the lending process; measures for checking and verifying
customer identification information to ensure that the customer is the one
conducting electronic transaction; technical measures for certifying the
identified customer’s consent to the loan agreement. Risk management and
control procedures must be regularly reviewed and revised according to updated
information and data;
c) It must store and manage customer identification
information and biometric data of its customers; sounds, images, videos and
recordings; telephone numbers used for conducting transactions; and transaction
logs used during lending process in an adequate and detailed manner.
2. Provisions on customer identification and
verification of customer identification information in Clause 1 of this Article
shall apply to individual customers who apply for loans for living purposes and
start a relationship with the credit institution. If an individual customer
that applies for a loan for living purposes has established a relationship with
the credit institution and completed procedures for customer identification and
verification of customer identification information, the credit institution
shall be entitled to decide measures, forms and/or technologies employed for
verifying that customer’s identification information during the digital lending
process which should match the known information about that customer.
Article 32c. Outstanding
loan balance
The outstanding amount of loans for living purposes
given by a credit institution to an individual customer who has been identified
or has his/her identification information duly verified as prescribed in
Article 32b of this Circular shall not exceed VND 100.000.000 (one hundred
million).
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When there is a demand for a loan, a customer must
send a credit institution documents/data evidencing its eligibility for such loan
as prescribed in Article 7 of this Circular, and others as referred to in the
credit institution’s instructions.
Article 32dd. Assessment of
loan applications and issuance of lending decisions
The credit institution shall organize assessment
and approval of digital loan applications according to the principle of
assignment of responsibilities to each individual or department for
establishment and operation of the information system used for loan application
assessment and lending decision-making stages. The credit institution
must adopt mechanisms for determining the individual or department responsible
for a risk whenever it arises, and promptly take actions against such a risk so
as to ensure its efficient and safe assessment and approval of digital loan
applications.
Article 32e. Loan agreement
A loan agreement shall be made in writing. If a
loan agreement is made in the form of an electronic contract, it shall comply
with regulations of law on electronic transactions. A loan agreement must meet
minimum information requirements laid down in Article 23 of this Circular.
Article 32g. Retention of
loan documentations
1. The credit institution shall create loan
dossiers in the form of data messages in conformity with regulations of the
archives law, law on electronic transactions and relevant laws. Such a loan
dossier includes:
a) Loan agreement;
b) Report on the customer’s actual financial
status;
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d) Customer identification information and data (if
any); information and data arising during the use of the loan which relate to
the loan agreement under the credit institution’s instructions.
2. The credit institution must store its loan
documentation; the duration to store such loan documentation shall be subject
to laws and regulations.
Article 32h. Payment
facilities used for disbursement of borrowed funds
Credit institutions shall use payment facilities
for disbursement of borrowed funds in accordance with SBV’s regulations on
methods for disbursement of funds lent by credit institutions to their
customers. If an individual customer applies for a loan for living purposes and
has been identified or has his/her identification information duly verified as
prescribed in Article 32b of this Circular, the credit institution shall be
allowed to decide the disbursement of borrowed funds to that customer’s
checking account opened at a licensed payment service provider so that he/she
can make payments to relevant beneficiaries according to his/her stated loan
purposes.
Chapter III
IMPLEMENTATION
[24]
Article 33. Effect
1. This Circular comes into force from March 15,
2017.
2. As from the entry into force of this Circular,
the documents listed hereunder shall be repealed:
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b) The Decision No. 28/2002/QD-NHNN dated January
11, 2002 of the Governor of the State Bank of Vietnam on revision of Article 2
of the Decision No. 1627/2001/QD-NHNN dated December 31, 2001 of the Governor
of the State Bank of Vietnam on introduction of the regulations on credit
institutions’ lending transactions with customers;
c) The Decision No. 127/2005/QD-NHNN dated February
03, 2005 of the Governor of the State Bank of Vietnam on revision of several
articles of the regulations on credit institutions’ lending transactions with
customers issued together with the Decision No. 1627/2001/QD-NHNN dated
December 31, 2001 of the Governor of the State Bank of Vietnam;
d) The Decision No. 783/2005/QD-NHNN dated May 31,
2005 of the Governor of the State Bank of Vietnam on revision of Clause 6
Article 1 of the Decision No. 127/2005/QD-NHNN dated February 3, 2005 of the
Governor of the State Bank of Vietnam on revision of several articles of the regulations
on credit institutions’ lending transactions with customers issued together
with the Decision No. 1627/2001/QD-NHNN dated December 31, 2001 of the Governor
of the State Bank of Vietnam;
dd) The Circular No. 12/2010/TT-NHNN dated April
14, 2010 of the Governor of the State Bank of Vietnam guiding credit
institutions to extension of Vietnamese dong loans to customers at the agreed
interest rate;
e) The Circular No. 05/2011/TT-NHNN dated March 10,
2011 of the Governor of the State Bank of Vietnam prescribing collection of
loan fees paid by customers to credit institutions and/or foreign bank
branches;
g) The Circular No. 33/2011/TT-NHNN dated October
08, 2011 promulgated by the State Bank’s Governor on amending and supplementing
the Circular No. 13/2010/TT-NHNN dated May 20, 2010 on providing statutory
provisions on prudential ratios for business transactions of credit
institutions and regulations for granting loans to customers, issued together
with the Decision No. 1627/2001/QD-NHNN dated December 31, 2001 promulgated by
the State Bank’s Governor;
h) The Circular No. 08/2014/TT-NHNN dated March 17,
2014 of the State Bank of Vietnam prescribing short-term loans denominated in
Vietnamese dong which are offered by credit institutions to customers to meet
the demand of fund used in certain economic sectors or activities.
Article 34. Transition
If a credit contract is signed before the entry
into force of this Circular,
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2. With respect to application of the method of
extending a line of credit loan, provisional line of credit loan or current
account overdraft facility, unless the duration of maintenance of a credit or
overdraft limit on the current account or the effective period of provisional
line of credit is agreed upon in terms and conditions of the credit contract,
the credit institution and its customer shall be allowed to continue
implementation of terms and conditions of the credit contract signed in
accordance with laws and regulations which enter into force on the date of
signing of that credit contract under which the duration of maintenance of
credit limit, overdraft limit on the current account or the effective period of
a provisional line of credit shall not exceed 01 (one) year from the entry into
force of this Circular.
Article 35. Implementation
organization
1. Setting the internal rules for lending
transactions with customers by credit institutions shall be subject to this
Circular.
2. Chief of the Ministry’s Office, the Director of
the Monetary Policy Department, Heads of units affiliated to the State Bank of
Vietnam, Directors of branches of the State Bank of Vietnam in provinces and
central-affiliated cities, Chairpersons of the Boards of Directors,
Chairpersons of the Boards of Members and General Directors (Directors) of
credit institutions shall implement this Circular./.
CERTIFIED BY
PP. GOVERNOR
DEPUTY GOVERNOR
Doan Thai Son
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“The Law on the State Bank of Vietnam dated June
16, 2010;
The Law on Credit Institutions dated June 16,
2010 and the Law on amendments to the Law on Credit Institutions dated November
20, 2017;
The Government's Decree No. 102/2022/ND-CP dated
December 12, 2022 prescribing functions, tasks, powers and organizational
structure of the State Bank of Vietnam;
And at the request of the Director of the
Monetary Policy Department;”
[2]
This Point is amended according to Point a Clause 1 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank branches
with customers, coming into force from September 01, 2023.
[3]
This Clause is amended according to Point b Clause 1 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[4]
This Clause is abrogated according to Article 2 of the Circular No.
06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN dated
December 30, 2016 of the Governor of the State Bank of Vietnam prescribing
lending transactions of credit institutions and foreign bank branches with
customers, coming into force from September 01, 2023.
[5]
This Point is amended according to Clause 2 Article 1 of the Circular No.
06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN dated
December 30, 2016 of the Governor of the State Bank of Vietnam prescribing
lending transactions of credit institutions and foreign bank branches with
customers, coming into force from September 01, 2023.
[6]
This Clause is amended according to Clause 3 Article 1 of the Circular No.
06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN dated
December 30, 2016 of the Governor of the State Bank of Vietnam prescribing
lending transactions of credit institutions and foreign bank branches with
customers, coming into force from September 01, 2023.
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[8]
This Clause is amended according to Clause 5 Article 1 of the Circular No.
06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN dated
December 30, 2016 of the Governor of the State Bank of Vietnam prescribing
lending transactions of credit institutions and foreign bank branches with
customers, coming into force from September 01, 2023.
[9]
This Clause is amended according to Point a Clause 6 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[10]
This Point is amended according to Point b Clause 6 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[11]
This Point is amended according to Point c Clause 6 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[12]
This Point is amended according to Point d Clause 6 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[13]
This Point is amended according to Point dd Clause 6 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[14]
This Point is amended according to Point e Clause 6 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[15]
This Point is amended according to Clause 7 Article 1 of the Circular No.
06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN dated
December 30, 2016 of the Governor of the State Bank of Vietnam prescribing
lending transactions of credit institutions and foreign bank branches with
customers, coming into force from September 01, 2023.
[16]
This Clause is amended according to Clause 8 Article 1 of the Circular No.
06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN dated
December 30, 2016 of the Governor of the State Bank of Vietnam prescribing
lending transactions of credit institutions and foreign bank branches with
customers, coming into force from September 01, 2023.
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[18]
This Clause is amended according to Point b Clause 9 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[19]
This Clause is amended according to Point a Clause 10 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN dated
December 30, 2016 of the Governor of the State Bank of Vietnam prescribing
lending transactions of credit institutions and foreign bank branches with
customers, coming into force from September 01, 2023.
[20]
This Clause is amended according to Point b Clause 10 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[21]
This Clause is amended according to Point c Clause 10 Article 1 of the Circular
No. 06/2023/TT-NHNN providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank
branches with customers, coming into force from September 01, 2023.
[22]
The phrase “trong thời gian vay vốn:” (“within the loan period:") is
replaced with the phrase “trong thời gian vay vốn: Báo cáo tài chính nộp cho cơ
quan nhà nước có thẩm quyền và/hoặc báo cáo tài chính đã kiểm toán đối với trường
hợp khách hàng phải lập báo cáo tài chính theo quy định của pháp luật; báo cáo
tình hình tài chính của khách hàng theo hướng dẫn của tổ chức tín dụng”
(“within the loan period, including: financial statements submitted to
competent authorities and/or audited financial statements in case the customer
is required to prepare financial statements as prescribed by laws; reports on
the customer’s financial status prepared according to the credit institution’s
instructions”) according to Clause 4 Article 1 of the Decision No. 312/QD-NHNN
dated March 14, 2017 providing amendments to the Circular No. 39/2016/TT-NHNN
dated December 30, 2016 of the Governor of the State Bank of Vietnam
prescribing lending transactions of credit institutions and foreign bank branches
with customers, coming into force from March 15, 2017.
[23]
This Section, including Articles 32a, 32b, 32c, 32d, 32dd, 32e, 32g and 32h, is
amended according to Clause 11 Article 1 of the Circular No. 06/2023/TT-NHNN
providing amendments to the Circular No. 39/2016/TT-NHNN dated December 30,
2016 of the Governor of the State Bank of Vietnam prescribing lending
transactions of credit institutions and foreign bank branches with customers,
coming into force from September 01, 2023.
[24]
Articles 3 and 4 of the Circular No. 06/2023/TT-NHNN providing amendments to
the Circular No. 39/2016/TT-NHNN dated December 30, 2016 of the Governor of the
State Bank of Vietnam prescribing lending transactions of credit institutions
and foreign bank branches with customers, coming into force from September 01,
2023, stipulate as follows:
“Article 3. Responsibility for implementation
The Chief of Office, the Director of the
Monetary Policy Department, heads of SBV’s affiliated units, and credit
institutions are responsible for the implementation of this Circular.
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1. This Circular comes into force from September
01, 2023.
2. With regard to a loan agreement or credit
contract signed before the effective date of this Circular, the credit
institution and its customer shall continue complying with terms and conditions
of the signed loan agreement or credit contract in accordance with regulations
and laws in force at the date of signing of that loan agreement or credit
contract. Any revisions to the signed loan agreement or credit contract must
comply with the provisions of this Circular./.”