1. LEGAL DOCUMENTS ARE EFFECTIVE FROM 01/03/2019
1.1. Circular No. 30/2018/TT-NHNN guidance for determination of state capital of equitized enterprises being credit organization
- Name of legal document: Circular No. 30/2018/TT-NHNN issued on 12/12/2018 by the State Bank of Viet Nam guidance for determination of state capital of equitized enterprises being credit organization (hereinafter referred to as the “Circular No. 30/2018/TT-NHNN”).
- Effective date: 01/03/2019.
The contents should be noted: Clause 2 Article 2 of Circular No. 30/2018/TT-NHNN stipulates on regulated entities of the Circular as follows: “2. Regulated entities:
a) Equitized enterprises are credit institutions, including:
(i) State-owned one-member limited liability companies with 100% of the charter capital prescribed in Clause 2, Article 2[1] of Decree No. 126/2017/ND-CP are credit institutions;
(ii) One-member limited liability companies invested by state enterprises with 100% charter capital prescribed in Clause 3[2], Article 2 of Decree No. 126/2017/ND-CP are credit institutions;
b) The agency representing the owner and agencies, organizations and individuals involved in the determination of the state capital of equitized enterprises is the credit institution specified at Point a of this Clause.”
1.2. Circular No. 51/2018/TT-NHNN regulating conditions, records, order and procedures for approving the capital contribution, share purchase of credit institutions
- Name of legal document: Circular No. 51/2018/TT-NHNN issued on 31/12/2018 by the State Bank of Viet Nam regulating conditions, records, order and procedures for approving the capital contribution, share purchase of credit institutions (hereinafter referred to as the “Circular No. 51/2018/TT-NHNN”).
- Effective date: 01/03/2019.
Some contents should be noted:
- Firstly, regulating conditions of capital contribution, purchase of shares of credit institutions.
Specifically, Article 4 of Circular No. 51/2018/TT-NHNN stipulates as follows: “Article 4. Conditions of capital contribution, purchase of shares of credit institutions
1. Conditions for making capital contribution and share purchase to establish and buy subsidiary companies specified at Points a and c, Clause 1, Article 1 of this Circular (except for subsidiary companies operating in the field of management debt and asset exploitation):
a) License for establishment and operation of credit institutions with contents of capital contribution and share purchase;
b) Ensuring the minimum capital adequacy ratio as prescribed in Point b, Clause 1, Article 130 of the Law on Credit Institutions in the 24 months preceding the proposed month and at the time of completing the capital contribution and buying shares according to approval of the State Bank;
c) Ensuring the ratio of capital contribution and share purchase in accordance with Article 129 of the Law on Credit Institutions in the 24 months preceding the proposed month and at the time of completion of capital contribution and share purchase as approved by the State Bank;
d) The real value of charter capital at the time of completion of capital contribution or share purchase is not lower than the legal capital;
dd) The results of profitable business activities according to the financial statements of the year preceding the year of request for audit have been audited by an independent auditing organization;
e) Not be sanctioned for administrative violations in debt classification, appropriation and use of reserves to handle risks, contribute capital, buy shares in 12 consecutive months preceding the proposed month;
g) Having a bad debt ratio compared to the total outstanding debt of less than 3% in the 12 months preceding the proposed month;
h) There is an organizational structure, the Board of Directors, the Members’ Council, the Control Board, the General Director (Director) in accordance with the Law on Credit Institutions and the regulations of the State Bank.
2. Conditions for making capital contribution and share purchase for establishment and acquisition of associated companies specified at Points a and c, Clause 1, Article 1 of this Circular (except for affiliate companies operating in the field of debt management and asset exploitation):
a) Conditions specified at Points a, d, dd, e, g and h, Clause 1 of this Article;
b) Ensuring the minimum capital adequacy ratio as prescribed in Point b, Clause 1, Article 130 of the Law on Credit Institutions in the 12 months preceding the proposed month and at the time of completing the capital contribution and buying shares according to approval of the State Bank;
c) Ensuring the ratio of capital contribution and share purchase in accordance with Article 129 of the Law on Credit Institutions in the 12 months preceding the proposed month and at the time of completion of capital contribution and share purchase as approved by the State Bank.
3. Conditions for capital contribution and share purchase to establish and acquire subsidiaries and associated companies operating in the field of debt management and asset exploitation:
a) Conditions specified at Point a, Clause 1 of this Article;
b) Ensuring the ratio of capital contribution and share purchase in accordance with Article 129 of the Law on Credit Institutions at the time of completion of capital contribution and share purchase as approved by the State Bank;
c) Having a bad debt ratio compared to the total outstanding debt of over 3% in the 12 months preceding the proposed month.
4. Conditions for making capital contribution or share purchase for other enterprises operating in the fields specified at Point b, Clause 1, Article 1 of this Circular:
a) The conditions specified in Clause 1 of this Article;
b) Ensuring the maximum ratio of short-term capital sources used for medium- and long-term loans under the provisions of Point c, Clause 1, Article 130 of the Law on Credit Institutions and the regulations of the State Bank in 24 Next month before the proposed month.
5. Conditions for converting debts into contributed capital specified at Point d, Clause 1, Article 1 of this Circular:
a) Conditions specified at Points a, b, c, d, dd, e and h, Clause 1 of this Article;
b) Debts converted into contributed capital must be bad debts and the transfer of debts into contributed capital is to handle bad debts. Bad debts are debts determined by the State Bank’s regulations on classification of assets, deduction levels, methods of setting up risk provisions and the use of risk provisions in the operation of credit institutions, branches of foreign bank.”
- Secondly, prescribing the order and procedures for approving capital contribution and purchase of shares of credit institutions.
Specifically, Article 6 Circular No. 51/2018/TT-NHNN stipulates: “Article 6. Order and procedures for approving capital contribution and purchase of shares of credit institutions
1. Credit institutions shall make 02 sets of dossiers as prescribed in Article 5 of this Circular and send them to the State Bank (via the Banking Inspection and Supervision Agency). In case the dossier is incomplete or invalid, within 7 days after receiving the dossier, the Banking Inspection and Supervision Agency shall send a written request to the credit institution to supplement the dossier.
2. Within 07 days from the date of receipt of a complete and valid dossier, the Banking Inspection and Supervision Agency shall send a written document enclosed with the dossier for sending comments:
a) State Bank branches in provinces, cities where the credit institutions are headquartered on meeting the conditions prescribed in this Circular;
b) Units of the State Bank on capital contribution, share purchase, debt transfer into contributed capital of credit institutions (if necessary).
3. Within 10 days from the date of receiving the written opinions of the Banking Inspection and Supervision Agency, the consulted units specified in Clause 2 of this Article shall have their written opinions sent to Banking Inspection and Supervision on the contents to be consulted.
4. Within 14 days from the date of receiving the comments of the relevant units, the Banking Inspection and Supervision Agency shall appraise the dossier and submit it to the State Bank Governor for consideration, approval or disapproval of the capital contribution, share purchase, debt transfer into contributed capital at the request of the credit institution.
5. Within 45 days from the date of receipt of a complete and valid dossier, the State Bank shall issue a written approval or disapproval of the capital contribution, share purchase and debt transformation into contributed capital of a credit institution; In case of disapproval, the State Bank shall issue a document clearly stating the reason.
6. Within 12 months after the State Bank issues a written approval, the credit institution must complete the capital contribution, share purchase, and debt transfer into contributed capital. Beyond this time limit, the State Bank’s written approval shall automatically expire.”
7. Quarterly (by the 03rd of the first month of the reporting quarter), the converting bank must submit reports to the SBV (the Foreign Exchange Management Department, the Financial Policy Department and the Operations Center) on the estimated amounts of foreign currency to be converted by project enterprises/ investors in the next quarter and the foreign currency balancing plan to meet such amounts.”
1.3. Circular No. 53/2018/TT-NHNN regulations on the network of non-bank credit institutions
- Name of legal document: Circular No. 53/2018/TT-NHNN issued on 31/12/2018 by the State Bank of Viet Nam regulations on the network of non-bank credit institutions (hereinafter referred to as the “Circular No. 53/2018/TT-NHNN”).
- Effective date: 01/03/2019.
Some contents should be noted:
- Firstly, regulations on conditions for establishing branches of non-bank credit institutions
Specifically, Article 7 of Circular No. 53/2018/TT-NHNN stipulates: “Article 7. Conditions for establishing branches
1. A non-bank credit institution with a period of operation of 12 months or more (calculated from the date of opening operation to the time of request) is allowed to establish no more than 3 branches in a fiscal year when meeting the following conditions:
a) The actual value of charter capital as at December 31 of the preceding year is not lower than the legal capital level;
b) Interest-bearing business activities according to the consolidated financial statements and audited separate financial statements of the preceding year preceding the year of proposal. This condition does not apply to non-bank credit institutions submitting their application for the second year from the date of opening;
c) At the time of the proposal, the competent agency does not apply measures not to expand the area of operation;
d) At the time of the proposal, it does not violate the regulations on safety ratio in the operation of non-bank credit institutions;
dd) The ratio of bad debt to total outstanding debt as of December 31 of the preceding year preceding the year of proposal and at the time of the proposal does not exceed 4% or another rate decided by the Governor fin each period;
e) At the time of proposal the Board of Directors, the Members’ Council, and the Control Board to have the quantity and structure strictly according to the provisions of law, no vacancies to the General Director (Director) title;
g) At the time of the proposal does not violate the regulations on internal control system and internal audit; asset classification and risk provisioning;
h) There is a Regulation on network management in accordance with Article 6 of this Circular;
i) Has a scheme to establish a network unit.
2. Non-bank credit institutions with operating duration of less than 12 months (from the date of opening operation to the time of proposal) are allowed to establish no more than 2 branches when meeting the following conditions:
a) The real value of charter capital at the time of proposal is not lower than the legal capital;
b) The ratio of bad debt to the total outstanding debt at the latest time of the proposal does not exceed 4% or another rate as decided by the Governor in each period;
c) The provisions at Points c, d, e, g, h and i, Clause 1 of this Article.”
- Secondly, annulling Decision No. 01/2008/QD-NHNN dated January 9, 2008 of the Governor of the State Bank of Vietnam promulgating regulations on opening and terminating operations of branches and representative offices of groups non-bank credit institutions.
Specifically, Clause 2 Article 25 of Circular No. 53/2018/TT-NHNN stipulates: “Article 25. Implementation effect
…
2. To annul Decision No. 01/2008 / QD-NHNN dated January 9, 2008 of the Governor of the State Bank of Vietnam promulgating regulations on opening and terminating operations of branches and representative offices of groups non-bank credit institutions.”
1.4. Circular No. 01/2019/TT-NHNN on amendments to the Circular No. 30/2015/TT-NHNN dated December 25, 2015 by the Governor of the State Bank of Viet Nam on licensing, organization and operation of non-bank credit institutions
- Name of legal document: Circular No. 01/2019/TT-NHNN issued on 01/02/2019 by the State Bank of Viet Nam on amendments to the Circular No. 30/2015/TT-NHNN dated December 25, 2015 by the Governor of the State bank of Vietnam on licensing, organization and operation of non-bank credit institutions (hereinafter referred to as the “Circular No. 01/2019/TT-NHNN”).
- Effective date: 20/03/2019.
Some contents should be noted:
- Firstly, modify, supplement the explanation of the phrase “Lessee”.
Specifically, Clause 1 Article 1 of Circular No. 01/2019/TT-NHNN stipulates: Article 1. Amendments to the Circular No. 30/2015/TT-NHNN dated December 25, 2015 by the Governor of the State Bank of Vietnam (“SBV”)
1. Clause 14 Article 3[3] is amended as follows:
“14. Lessee (including the seller of an asset that then leases that asset under a finance lease contract) refers to a legal entity or individual that operates in Vietnam and directly uses the leased asset to serve their operations.
When a household, artel or organization without a legal status wishes to enter into a finance lease contract, such finance lease contract must be concluded by its member or authorized representative.”.”
- Secondly, the phrase “Cục Thanh tra, giám sát ngân hàng” (“Bank Supervision and Inspection Office”) is changed into “Cơ quan Thanh tra, giám sát ngân hàng (đối với địa bàn có Cục Thanh tra, giám sát ngân hàng)” (“Bank Supervision and Inspection Authority (for province where the Bank Supervision and Inspection Office is established)”)
Specifically, Clause 3 Article 2 of Circular No. 01/2019/TT-NHNN stipulates: “Artilce 2.
…
3. The phrase “Cục Thanh tra, giám sát ngân hàng” (“Bank Supervision and Inspection Office”) is changed into “Cơ quan Thanh tra, giám sát ngân hàng (đối với địa bàn có Cục Thanh tra, giám sát ngân hàng)” (“Bank Supervision and Inspection Authority (for province where the Bank Supervision and Inspection Office is established)”) at Point a Clause 3 Article 10, Point d Clause 1 Article 41, Article 7 Appendix No. 09A, Article 7 Appendix No. 09B, Article 7 Appendix No. 09C, Article 7 Appendix No. 09D of the Circular No. 30/2015/TT-NHNN.”
1.5. Decree No. 16/2019/ND-CP amending and supplementing decrees on business conditions under the state management of the State Bank of Viet Nam
- Name of legal document: Decree No. 16/2019/ND-CP issued on 01/02/2019 by the Government of Viet Nam amending and supplementing decrees on business conditions under the state management of the State Bank of Viet Nam (hereinafter referred to as the “Decree No. 16/2019/TT-NHNN”).
- Effective date: 20/03/2019.
The content should be noted: amending and supplementing conditions for a credit information company to obtain a certificate of eligibility for credit information-related activities.
Specifically, Article 4 of Decree No. 16/2019/ND-CP stipulates: “Article 4. Amending and supplementing certain articles of the Government’s Decree No. 10/2010/ND-CP dated February 12, 2010 on credit information-related activities
Clause 5 Article 7[4] (as amended and supplemented in Article 1 of the Government’s Decree No. 57/2016/ND-CP dated July 01, 2016 providing amendments to Article 7 of the Government’s Decree No. 10/2010/ND-CP dated February 12, 2010) is amended and supplemented as follows:
“5. There are at least 15 credit institutions, branches of foreign banks (except banks for social policies, cooperative banks, people’s credit funds and microfinance institutions) that commit to provide credit information; these credit institutions and branches of foreign banks do not give similar commitments to any other credit information provider.””
1.6. Circular No. 02/2019/TT-NHNN amending and supplementing a number of articles of the circular no. 23/2014/TT-NHNN dated august 19, 2014 of the State Bank of Vietnam guiding the opening and use of payment accounts at payment service suppliers
- Name of legal document: Circular No. 02/2019/TT-NHNN issued on 28/02/2019 by the State Bank of Viet Nam amending and supplementing a number of articles of the circular no. 23/2014/TT-NHNN dated august 19, 2014 of the State Bank of Vietnam guiding the opening and use of payment accounts at payment service suppliers (hereinafter referred to as the “Circular No. 02/2019/TT-NHNN”).
- Effective date: 01/03/2019.
Some contents should be noted:
- Firstly, amending and supplementing regulations on authorization in using payment accounts.
Specifically, Clause 2, Article 1 of Circular No. 02/2019/TT-NHNN stipulates: “Article 1. Amending and supplementing a number of articles of Circular No. 23/2014/TT-NHNN of August 19, 2014 of The State Bank of Vietnam guides the opening and use of payment accounts at payment service suppliers
…
2. Clause 1 and Clause 2 of Article 4[5] are amended and supplemented as follows:
“1. The account holder has the right to authorize another person to use his or her payment account.
- The authorization in the use of payment accounts must be in writing and comply with the law on authorization.””
- Secondly, supplementing regulations on handling checks and complaints in using payment accounts.
Specifically, Clause 11 Article 1 of Circular No. 02/2018/TT-NHNN stipulates: “Article 1. Amending and supplementing a number of articles of Circular No. 23/2014/TT-NHNN of August 19, 2014 of The State Bank of Vietnam guides the opening and use of payment accounts at payment service suppliers
…
11. “Article 15a. Handling checks and complaints in using payment accounts
1. Banks and branches of foreign banks are responsible for receiving customers’ inquiries and complaints during the process of using payment accounts to ensure compliance with the following principles:
a) Applying at least two forms of receiving information of inspection and complaint including via telephone switchboards (with sound recording) and through transaction points of banks and branches of foreign banks; ensure the verification of basic information that customers have provided to banks and foreign bank branches;
b) Developing a form of request for investigation and complaint for customers to use when requesting investigation and complaint. In case of receiving information via telephone switchboards, banks and branches of foreign banks require customers to supplement inspection requests and complaints according to forms within the prescribed time of banks and branches of foreign banks to act as the official basis for handling investigation and complaints. In case of authorizing other people to request examination, complaint, customers shall comply with the provisions of law on authorization;
c) Banks and branches of foreign banks are allowed to agree on and specify the time limit for customers to be entitled to request for investigation and complaint but not less than 60 days from the date of the transaction for requesting investigation, complaint.
2. Time limit for handling investigation and complaints:
a) Within 30 working days after receiving customers’ requests for first-time inspection and complaint according to one of the receiving forms prescribed at Point a, Clause 1 of this Article, the banks or branches of foreign banks shall be responsible for handling customers’ requests for investigation and complaints;
b) Within 5 working days from the date of notification of inspection results, complaints to customers, banks and branches of foreign banks shall be refunded to customers according to the agreement and current law for losses arising out of the customer’s fault and/or not subject to force majeure circumstances as agreed upon terms and conditions for opening and using payment accounts;
c) In case of expiry of the time limit for handling the control and complaint specified at Point a of this Clause, but the cause or error of any party has not been determined yet, within the next 15 working days, the bank or branches of foreign banks shall agree with customers on the plan of handling investigation and complaints.
3. If the case shows signs of a crime, the bank or branches of foreign banks shall notify the competent state agency in accordance with the law on criminal procedures and report to the State Bank (Payment Department, Banking Inspection and Supervision Agency, State Bank of provinces and cities in the area); at the same time, notify customers in writing about the status of handling requests for investigation and complaints. The handling of results of inspection and complaints falls under the handling responsibility of competent state agencies. In cases where competent state agencies announce the settlement results without criminal elements, within 15 working days from the date of conclusion of competent state agencies, banks or branches of foreign banks agreed with customers on the plan of handling results of investigation and complaint.
4. In case the banks, branches of foreign banks, customers and related parties cannot reach an agreement and/or disagree with the process of requesting a investigation or complaint, the dispute resolution shall be made according to regulations of laws.””
[1] “Article 2. Regulated entities
…
2. State-owned enterprises including:
a) Wholly state-owned single-member limited liability companies (LLCs) that are parent companies of state-owned economic groups, parent companies of state corporations (including state-owned commercial banks) or parent companies in groups of parent companies and subsidiaries (hereinafter referred to as “parent companies”).
b) Wholly state-owned single-member LLCs.
c) Wholly state-owned enterprises that have not been converted into single-member LLCs.”
[2] “Article 2. Regulated entities
…
3. Single-member LLCs with 100% of charter capital invested by state-owned enterprises (hereinafter referred to as “level II enterprises”).”
[3] “Article 3. Interpretation of terms
In this Circular, some terms are construed as follows:
…
14. The lessee (including sub-lessee) includes organizations and individuals operating in Vietnam including legal and natural persons and other civil subjects according to civil laws who have the use of the leased assets for their own purposes.”
[4] “Article 7. Conditions for a credit information company to obtain a certificate of eligibility for credit information-related activities
…
5. Having at least 20 commercial banks that commit to provide credit information exclusively to the company”
[5] “Article 4. Authorization in using payment account1. In the process of using the payment account, the account holder, the chief accountant or the person in charge of accounting (if any) may authorize another person.”
This amount is amended by Clause 2 Article 1 of Circular 32/2016/TT-NHNN
“Article 1. Amending and supplementing a number of articles and appendices of Circular No. 23/2014/TT-NHNN dated August 19, 2014 of the State Bank of Vietnam guiding the opening and use of payment accounts at payment service suppliers”
…
2. Clause 1… Article 4 is amended and supplemented as follows:
“1. The account holder has the right to authorize another person to use his or her payment account.”
“2. Authorization in the use of payment accounts must be in writing and comply with the law on authorization. Authorization in using the organization’s payment account must be approved in writing by the account opening organization.”
This clause is amended by Clause 2 Article 1 of Circular 32/2016/ TT-NHNNĐ
“Article 1. Amending and supplementing a number of articles and appendices of Circular No. 23/2014/TT-NHNN of August 19, 2014 of The State Bank of Vietnam guides the opening and use of payment accounts at payment service suppliers
…
2. … Clause 2 of Article 4 is amended and supplemented as follows:
… 2. Authorization in the use of payment accounts must be in writing and comply with the law on authorization. “”
