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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
144/2006/ND-CP
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Hanoi,
November 27, 2006
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DECREE
ON TONTINE
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on Organization
of the Government;
Pursuant to the June 14, 2005 Civil Code;
At the proposal of the Minister of Justice,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Governing scope
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Article 2.- The State
policies on tontine
1. The legitimate rights and interests of
persons participating in tontine for the purpose of mutual assistance among
people under the provisions of this Decree and other relevant legal documents
are protected by law.
2. It is strictly forbidden to organize tontine
to practice usury, commit swindling, trust abuse or other illegal acts in order
to appropriate properties of other people.
Article 3.- Interpretation
of terms
In this Decree, the terms below are construed as
follows:
1. Annuity share means a determined sum of money
or another asset which, as agreed upon, a member must contribute in a tontine
opening. Annuities must be the negotiable properties.
2. Tontine opening time means a time when a
member receives the total annuities as agreed upon by all the members.
Article 4.- Types of
tontine
Tontine covers interest-free tontine and
interest-bearing tontine. Interest-bearing tontine includes interest-bidding
tontine and commission tontine.
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Tontine holder means a person who organizes and
manages a tontine, collects annuity shares and hands those shares to the member
entitled to receive them in each tontine opening till the last one, unless
otherwise agreed upon. Tontine holders must have full civil act capacity.
Article 6.- Members
Members are persons who participate in a
tontine, contribute annuity shares and receive the tontine. A member may
contribute one or many annuity shares for a tontine.
Article 7.- Forms of
tontine agreement
Tontine agreement can be expressed verbally or
in writing. Written agreements on tontine may be notarized or authenticated if
so requested by members.
Article 8.- Contents of
tontine agreement
Depending on each type of tontine, tontine
participants may agree on the following contents: the tontine holder, number of
participants, annuity share, tontine opening, annuity-contributing and
-receiving procedures, rights and obligations of tontine participants,
liabilities for breach of obligations, transfer of annuity shares, the
withdrawal from tontine, termination of tontine and other contents.
Article 9.- Tontine books
1. The tontine holder must open and keep a
tontine book. In case of absence of a tontine holder, tontine participants may
authorize a member to open and keep the tontine book.
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a/ Names and addresses of the tontine holder and
members;
b/ The annuity share, tontine opening and annuity-contributing
and -receiving procedures;
c/ The tontine money sum and other assets
contributed or received as annuities;
d/ The transfer of annuity shares;
e/ The tontine withdrawal and termination;
f/ Signatures or fingerprints of tontine members
when they contribute or receive annuities;
g/ Other contents relating to activities of the
tontine group.
Article 10.- Interest rates
In case of interest tontine, the interest rate
on annuity shares shall comply with the provisions of Article 476 of the Civil
Code.
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INTEREST-FREE TONTINE
Article 11.- Interest-free tontine
Interest-free tontine means a tontine whereby
members, as agreed upon by tontine participants, receive annuities upon the
tontine opening without having to pay interests to other members. The member
who receives the annuities is obliged to contribute its annuity shares so that
other members can receive the annuities until when the last member receives the
annuities.
Article 12.- Determination
of annuity-receiving order
Unless otherwise agreed upon, the
annuity-receiving order in interest-free tontine is determined by drawing lots.
Article 13.- Obligations
of members
1. To contribute annuity shares as agreed upon
to the tontine holder, in cases tontine holders are available, or to the
annuity-receiving member.
2. To pay damages to tontine participants, if
causing damage due to breach of obligations.
3. To perform other duties as agreed upon.
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Article 14.- Rights of
members
1. Upon the tontine opening, the
annuity-receiving member is entitled to receive annuities from the tontine
holder or other tontine members.
2. To protect their legitimate rights and
interests if they are infringed upon.
3. To transfer their annuity shares in
accordance with Articles 309 thru 317 of the Civil Code.
4. To withdraw from the tontine as agreed upon.
5. To request the tontine holder or tontine book
keeper to give the tontine book to see and to supply information related to the
tontine.
6. Other rights as agreed upon.
Article 15.- Obligations
of the tontine holder
1. To open and keep the tontine book and papers
related to the tontine.
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3. To hand over the annuities to the
annuity-receiving members.
4. To pay annuity shares on behalf of members if
so agreed upon in cases when members fail to contribute their shares upon the
tontine opening.
5. To let members see the tontine book and
supply information related to the tontine upon request.
6. Other obligations as agreed upon.
Article 16.- Rights of the
tontine holder
1. To request tontine members to contribute
annuity shares.
2. To request annuity-receiving members to
receive the annuities upon the tontine opening.
3. To request members who fail to contribute
their annuity shares to refund the annuity shares contributed on their behalf
by the tontine holder.
4. Other rights as agreed upon.
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INTEREST-BEARING TONTINE
Article 17.- Interest-bearing tontine
Interest-bearing tontine means a tontine
whereby, as agreed upon by the tontine participants, members receiving the
annuities upon the tontine opening shall pay interests to other members. The members
who receive the annuities are obliged to contribute their respective annuity
shares so that other members can receive them until the last member receives
the annuities.
Article 18.- Determination
of annuity-receiving members in interest-bearing tontine
1. Unless otherwise agreed upon, the
annuity-receiving member at a tontine opening is the one who offers the highest
interest rate.
2. Unless otherwise agreed upon, if at a tontine
opening many members offer the same highest interest rate, these members will
draw lots to identify the member eligible to receive the annuities.
3. Except for the case specified in Clause 4 of
this Article, members who have received the annuities may not participate in
offering interest rates in subsequent tontine openings.
4. If a member contributes more than one annuity
share in a tontine, he/she is entitled to offer interest rates until the number
of times of annuity receipt corresponds the number of annuity shares he/she has
contributed in a tontine.
Article 19.- Interest-bidding
tontine
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Article 20.- Obligations
of interest-bidding tontine members
1. To contribute annuity shares.
2. To pay interests to other members upon
receipt of annuities.
3. To pay damages to tontine participants if
causing damage due to breach of obligations.
4. Other obligations as agreed upon.
Article 21.- Rights of
interest-bidding tontine members
1. Except for the case specified in Clause 3, Article
18 of this Decree, to offer interest rate at each tontine opening.
2. To enjoy interests from the annuity-receiving
members.
3. The rights specified in Article 14 of this
Decree.
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The interest-bidding tontine holder has the
obligations specified in Article 15 of this Decree.
Article 23.- Rights of the
interest-bidding tontine holder
1. To receive the annuities at a tontine
opening.
2. To request the members who fail to contribute
their respective annuity shares to refund the shares paid on their behalf by
the tontine holder.
3. Not to pay interests to other members.
Article 24.- Commission
tontine
Commission tontine means a tontine whereby, as
agreed upon among tontiners, the tontine holder has the responsibility to
collect annuity shares from the tontine members and hand them to the
annuity-receiving members. The annuity-receiving members must pay interests to
other members and commissions to the tontine holder. The commission levels are agreed
upon by the tontine participants.
Article 25.- Obligations
of commission tontine members
1. To pay commissions to the tontine holder.
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Article 26.- Rights of
commission tontine members
Commission tontine members have the rights
specified in Article 21 of this Decree.
Article 27.- Obligations
of the commission tontine holder
The commission tontine holder has the
obligations specified in Article 15 of this Decree.
Article 28.- Rights of the
commission tontine holder
1. To enjoy commissions from annuity-receiving
members.
2. To request members to contribute annuity
shares.
3. To request members who fail to contribute
annuity shares to refund the annuity shares they have contributed on their behalf.
Chapter IV
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Article 29.- Liabilities of the tontine
holder for failure to hand annuities to annuity-receiving members
If the tontine holder has collected annuity
shares from members but fail to hand them to annuity-receiving members, the
tontine holder must, at the request of the latter, hand the collected annuities
to them and pay damages, if any.
The tontine holder must pay interests on the
late-handed annuities at the rate agreed upon by the parties; if no agreement
is reached, the basic interest rate announced by the State Bank at the time of
handing the annuities corresponding to the duration of late hand-over shall be
applied.
Article 30.- Liabilities
of members for failure to contribute annuity shares
1. If members fail to contribute their
respective annuity shares upon the tontine opening, they must pay the
outstanding annuity amounts corresponding to the duration of non-payment until
the tontine termination and pay damages if any.
2. If members fail to contribute their
respective annuity shares and the tontine holder has contributed them on their
behalf, those members must repay the tontine holder the late annuity shares and
the interests thereon. The interest rate shall be agreed upon by the parties; if
no agreement is reached, the basic interest rate announced by the State Bank at
the time of repayment of the annuity shares corresponding to the duration of
late payment shall be applied.
Article 31.- Settlement of
disputes
Disputes that arise over or from the tontine
shall be settled through negotiations, conciliation or, at request of one or
many tontiners, be settled at a court in accordance with the law on civil
procedures.
Chapter V
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Article 32.- Implementation effect
This Decree takes effect 15 days after its
publication in "CONG BAO."