THE STATE BANK
OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom - Happiness
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No.
15/2016/TT-NHNN
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Hanoi, June 30,
2016
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CIRCULAR
AMENDMENTS AND
SUPPLEMENTS TO A NUMBER OF ARTICLES OF GOVERNOR OF STATE BANK OF VIETNAM’S
CIRCULAR No. 30/2015/TT-NHNN DATED DECEMBER 25, 2015 STIPULATING ISSUANCE OF
LICENCES, ORGANIZATION AND OPERATION OF NON-BANK CREDIT INSTITUTIONS
Pursuant to the Law on the State Bank of Vietnam
No. 46/2010/QH12 dated June 16, 2010;
Pursuant to the Law on credit institutions No.
47/2010/QH12 dated June 16, 2010.
Pursuant to the Government’s Decree No.
39/2014/ND-CP dated May 07, 2014 stipulating operation of finance companies and
finance leasing companies;
Pursuant to the Government's Decree No.
156/2013/ND-CP dated November 11, 2013 defining the functions, tasks,
entitlements and organizational structure of the State bank of Vietnam;
At the request of the Banking Chief Inspector,
The Governor of the State Bank of Vietnam promulgates
the Circular on amendments and supplements to a number of articles of the
Governor of State Bank of Vietnam’s Circular No. 30/2015/TT-NHNN dated December
25, 2015 stipulating issuance of licences, organization and operation of
non-bank credit institutions.
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1. Heading of Section 2, Chapter II shall be
changed into “REGULATIONS ON FOUNDING SHAREHOLDERS, OWNERS, FOUNDING
MEMBERS/PARTNERS”
2. Article 11 is amended as follows:
“Article 11. Regulations on founding
shareholders
1. At least two founding shareholders as
organizations;
2. Be responsible for legality of contributed
capital;
3. Founding shareholders shall provide financial
support to non-bank credit institutions for difficulties in capital, solvency
and liquidity;
4. Founding shareholders must not join other credit
institutions established and operating in Vietnam as a strategic shareholder,
founding shareholder, owner or founding member.
5. Founding shareholders’ financial capacity must
be sufficient to contribute capital to the establishment of non-bank credit
institutions without using capital in trust, raised capital or loans provided
by foreign credit institutions, branches of foreign banks, other organizations
or individuals as contributed capital.
6. In addition to provisions as set out in Clauses
2, 3, 4, 6 of this Article, a founding shareholder that is an individual must:
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b) Not banned from establishing enterprises
according to the Law on Enterprises, the Law on Cadres and Civil Servants;
7. In addition to provisions as set out in Clauses
2, 3, 4, 5 of this Article, a founding shareholder that is an organization
must:
a) Be established according to laws of Vietnam;
b) Have a profitable business for three straight
years preceding the year in which the application for the licence is submitted
and by the time the complete application for the licence is submitted;
c) Have fulfilled its tax and social insurance
obligations according to laws by the time the application for the licence is
submitted;
d) If the organization is a Vietnamese enterprise
(except Vietnamese commercial bank), it must:
(i) Have at least VND 500 billion in owner’s
equity, at least VND 1,000 billion in total assets for three straight years
preceding the year in which the application for the licence is submitted. If
the enterprise operates in the areas that require a certain level of legal
capital, ensure that the amount remaining after the legal capital is subtracted
from the owner’s equity according to the audited financial statement of the
year preceding the time the application for the licence is submitted is not
smaller than the promised capital contribution;
(ii) If the enterprise is licensed to operate in
the areas of securities, insurance, the contribution of capital must be
compliant with relevant law provisions;
dd) If the organization is a Vietnamese commercial
bank, it must:
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(ii) Not violate the minimum safety limits, ratios
for transactions as prescribed by the State Bank conducted in the year
preceding the year in which the application for the licence is submitted and by
the time the complete application for the licence is submitted;
(iii) Ensure minimum capital adequacy ratio after
contribution of capital for the establishment of a non-bank credit institution;
(iv) Not be penalized for administrative violations
against regulations on currencies and banking for two straight years preceding
the year in which the application for the licence is submitted and by the time
the complete application for the licence is submitted."
3. Article 12 is amended as follows:
“Article 12. Regulations on owners, founding
members
1. A founding member that is a Vietnamese
enterprise (except Vietnamese commercial banks) must:
a) Comply with provisions set out in Clauses 2, 3,
4, 5 and Points a, b, c, Clause 7, Article 11 herein;
b) Have at least VND 1,000 billion in owner’s
equity, at least VND 2,000 billion in total assets for three straight fiscal
years preceding the year in which the application for the licence is submitted.
If the enterprise operates in the areas that require a certain level of legal
capital, ensure that the owner’s equity according to the audited financial
statement of the year preceding the time the application for the licence is
submitted is not smaller than the promised capital contribution;
c) If the enterprise is licensed to operate in the
areas of securities, insurance, the contribution of capital must be compliant
with relevant law provisions;
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3. The owner, founding member as a foreign credit institution
must:
a) Comply with Point b, Clause 7, Article 11
herein;
b) Have at least US$ 10 billion in total assets at
the end of the year preceding the year in which the application for the licence
is submitted;
c) Not commit serious violations of regulations on
banking and other laws of its home country for five straight years preceding
the year in which the application for the licence is submitted and by the time
the complete application for the licence is submitted;
d) Have experience of international transactions,
be rated ‘stable’ or better by international credit rating organizations, be
able to fulfill financial commitments and normal activities even under
unfavorable economic conditions;
dd) Be evaluated by competent agencies of its home
country as able to ensure capital adequacy ratio and other safety ratios,
comply fully with regulations of the home country on risk management and
establishment of provisions for risks from the year preceding the year in which
the application for the licence is submitted and by the time the complete
application for the licence is submitted;
e) Not be a strategic shareholder, owner or
founding member of other credit institutions established and operating in
Vietnam;
g) If the foreign credit institution is a leasing
company, the balance for finance lease and provision of loans must account for
at least 70% of the company’s total assets.
4. Within five years since the licence is granted,
owners and founding members shall own 100 percent of the charter capital of the
limited liability non-bank credit institution.”
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“b) Name of the non-bank credit institution
applying for establishment, type of business, name of a province/city where it
is expected to be headquartered, operation duration, charter capital, scope of
activities and capacity to meet requirements for banking activities of a
non-bank credit institution as prescribed in the Government's Decree No.
39/2014/ND-CP dated May 07, 2014 on activities of finance companies and finance
leasing companies (hereinafter referred to as “Decree No. 39/2014/ND-CP”);
5. Point h, Clause 4, Article 15 is amended as
follows:
“h) Reports made by founding shareholders as
Vietnamese commercial banks, Vietnamese enterprises on satisfaction of
requirements as prescribed in Clause 7, Article 11 herein from the time the
application for the licence is submitted to the time the complete application
for the licence is submitted;
6. Point dd, e, Clause 7, Article 16 are amended as
follows:
“dd) Reports made by Vietnamese commercial banks,
Vietnamese enterprises on satisfaction of requirements as prescribed in Clause
7, Article 11 herein from the time the application for the licence is submitted
to the time the complete application for the licence is submitted;
e) Evaluation in writing by the home country’s
competent agency of satisfaction of requirements as prescribed in Points a, c,
dd, Clause 3, Article 12 herein by the foreign credit institution from the time
the application for the licence is submitted to the time the complete
application for the licence is submitted;”
7. Clause 3, Article 17 is amended as follows:
“3. Any other additional credit activities to be
performed by the non-bank credit institution must be approved by the State
Bank; procedures and applications for addition of such activities to the
licence shall be provided for in a separate document of the State Bank and by
other relevant law provisions.”
8. Point c(ii), Clause 2, Article 19 is amended as
follows:
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9. Point d(i), Clause 2, Article 19 shall be
amended and supplemented as follows:
“(i) The plan for factoring operation must include
at least: A necessity of factoring operations; measures to manage and control
risks in factoring operations; plans for effective organization and
implementation of factoring operations and measures to ensure compliance with
regulations on safety in banking activities after factoring operations are
added;”
10. Point dd(i), Clause 2, Article 19 shall be amended
and supplemented as follows:
“(i) The plan for credit card and finance lease
operations must include at least: A necessity of credit card and finance lease
operations; measures to manage and control risks in credit card and finance
lease operations; plans for effective organization and implementation of credit
card and finance lease activities, and ensure compliance with regulations on
safety in banking activities after credit card and finance lease operations are
added;"
11. Clause 1a is added to Article 23 as follows:
“1a. The non-bank credit institution that performs
finance lease activities shall promulgate internal regulations on finance lease
operations throughout the entire system and ensure availability of a mechanism
of internal control and audit, risk management in finance lease operations of a
finance lease company. Such regulations must include at least:
a) Criteria for determining a customer, a customer
and a relevant person as prescribed, policies on finance lease for a customer,
a customer and a relevant person, process of appraising and deciding a finance
lease, principles of decentralization, authorization and responsibility of
individual members, departments for appraising and deciding a finance lease,
re-structuring finance lease payment term for the lessee;
b) Conditions for a finance lease, cases in which a
finance lease is not granted, restrictions on finance lease according to laws,
types of assets ineligible for a finance lease; finance lease interests and
method for determination of lease interests; an application for a finance lease
and other documents delivered to the lessor by the lessee in accordance with
characteristics of the leased asset and the customer; collection of lease
payments; requirements for re-structure of a finance lease payment term,
transfer of an overdue debt;
c) Regulations on diversification of risks in
finance lease activities; methods for monitoring and management; decisions on a
finance lease for a customer, a customer and a relevant person from one percent
of the lessor's self-financed capital, ensuring transparency from appraising
cases for a finance lease to re-structuring a finance lease payment term,
prevention of conflict of interests among the appraiser, decider and customer;
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dd) Process of inspecting and monitoring finance
lease activities, use of the leased asset and payment of rentals by the lessee
including activities before, during and after the lease; decentralization,
authorization and responsibility of individual members, departments for doing
so;
e) Decisions on a finance lease and on
re-structuring of lease payment term (including extension of payment terms,
revision of payment periods) shall be made on the principle that the person who
makes decision on the re-structuring of the payment term is not the person who
makes decision on the finance lease except in case that the finance lease is
passed by Board of Directors, Member Assembly;
g) Termination and settlement of a finance lease
contract terminated ahead of time; exemption and reduction of interests, fees;
h) Identification of risks likely to be arising
during the lease; process of monitoring, assessing and controlling the risks;
risk handling measures.”
12. Clause 4, Article 27 is amended as follows:
“4. Transfer of stakes must ensure the charter
capital contribution ratio as prescribed in Clause 3, Article 6 herein and meet
following regulations:
b) A transferee as a Vietnamese commercial bank
shall comply with provisions set out in Clause 2, Article 12 herein;
c) A transferee as a foreign credit institution shall
comply with provisions set out in Clause 3, Article 12 herein.”
13. Clause 5, Article 27 is amended as follows:
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Re-purchase of stakes of a limited liability
non-bank credit institution shall meet following regulations:
a) The request for re-purchase of stakes of capital
contributors, payment and settlement of stakes are conformable with the
provisions on re-purchase of stakes prescribed in the Law on Enterprises;
b) After all re-purchased stakes are fully paid,
the non-bank credit institution shall is still able to fully paid the debts and
fulfill other liabilities, maintain adequacy ratio in banking activities, and
ensure that actual value of the charter capital is not smaller than level of
legal capital.
c) Regulations on risk management and establishment
of provisions for risks are fully complied with when the request for
re-purchase of stakes is submitted to the State Bank for approval;
d) The business is profitable for five straight
years preceding the year in which a request for re-purchase of stakes is made
without accumulated loss;
dd) No penalties are imposed by the State bank for
administration violations against regulations on currencies and banking for
five straight years preceding the year in which a written request for
re-purchase of stakes is made and by the time a written request for re-purchase
of stakes is submitted to the State Bank for approval.”
14. Article 28 is amended as follows:
“Article 28. Operation of a finance company
1. A finance company may perform activities
provided for in Articles from 108 - 111 of the Law on Credit Institutions when
meeting conditions as prescribed in Articles 5, 6, 7, 8, 9, 10, 11, 12, 13, 15
of the Decree No. 39/2014/ND-CP.
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3. The finance company shall perform finance lease
operations according to Article 35 herein.”
15. Clause 7, Article 35 is amended as follows:
“7. Principles of financial leasing in foreign
currency:
a) The lessor shall make payment in foreign
currency to the supplier for the import of the leased asset; The lessee shall
make payment for the debt in foreign currency;
b) The lessee shall use the leased asset to serve
his/her business;
c) The lessee shall has sufficient foreign currency
from production or business to pay the debt.”
16. Point d is added to Clause 1, Article 36 as
follows:
“d) Purchase and sub-lease may be carried out in
either domestic or foreign currency. Purchase and sub-lease shall be carried
out in foreign currency if:
(i) The sublet asset is the leased asset as
prescribed in Clause 12, Article 3 herein, imported and lawfully owned by the
seller, operates normally and without disputes;
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(iii) The seller shall use the sublet asset to
serve his/her business and has sufficient foreign currency from production or
business to pay rentals;
(iv) Payment for purchase of the sublet asset in
foreign currency:
- The buyer shall purchase and sublet the asset if
the seller provides sufficient legal documents concerning the asset. If the
bank or the supplier is holding the documents concerning the asset, the buyer
shall make the payment after negotiations on provision of such documents with
the bank or supplier are completed;
- The buyer shall make direct payment for the
purchase of the sublet asset to the bank or foreign supplier in foreign
currency in proportion to value of the asset. If the price for purchase of the
sublet asset is greater than credit balance at the bank or debt to the foreign
supplier, the buyer shall pay the difference in Vietnam dong to the seller
according to the exchange rate of the commercial bank agreed by the two parties
at the time of payment;
(v) After the buyer makes payment for the purchase
of the sublet asset, the seller shall acknowledge receipt of the debt and pay rentals
in foreign currency according to applicable regulations on finance lease.
Article 2. Articles 29,
30, 31, 32, 33, Clause 2, Article 34, Clause 5, Clause 6, Article 36 of the
Circular No. 30/2015/TT-NHNN are hereby annulled.
Article 3. Implementary provisions
This Circular takes effect from July 01, 2016.
Article 4. Implementation
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PP THE GOVERNOR
DEPUTY GOVERNOR
Nguyen Phuoc Thanh