Pursuant to the law on organization of the Government of 25 December 2001;
Pursuant to the law on State budget of 16 December 2002;
Pursuant to the law on public debt management, June 17, 2009;
Considering the recommendation of the Minister of finance DECREE: article 1. Scope of this Decree regulates the granting of Government guarantees; the guarantee management and accountability of government agencies in the provision and management of Government guarantees for loans in Australia and overseas, including the account of domestic bonds, international bonds.
Article 2. Explanation of terms In this Decree, the terms below are interpreted as follows: 1. The guarantee is the person who has ownership of a part or the entire loan, the account was released on bail bonds. The guarantee covers the lender, who buy bonds and those of the assignee who received legal transfer of the lender and the lender is understood in the loan agreement, the agreement to release the bonds.
2. The assignee of the guarantee or the guarantee of the recipient is the recipient of the whole or part of the rights and obligations of the guarantee or the guarantee in the assignment.
3. The recipient of the transfer of the guarantee or the guarantee of the recipient is the recipient of the whole or part of the rights and obligations of the guarantee or the guarantee of delivery.
4. the payment obligation is the accounts payable consists of the original debt, debt interest rates according to the contract, the interest rate is slow to pay, the fees and costs, compensation for losses (if any) as defined in the loan agreement or the agreement of specific bonds and accepted in the letter of guarantee.
5. The representative receiving the record of the proceedings is Vietnam's representative offices abroad or an organization authorized to receive and confirm the received the records of the proceedings relating to the guarantee of the Government and move the entire profile on to the Finance Ministry.
6. legal opinion is written by the Ministry of Justice released consistent with the provisions of the law of Vietnam at the time of release; in accordance with the international treaties to which Vietnam is a member and in accordance with the usual financial, credit, trade and international investment.
Article 3. Form of guarantee 1. The Government guarantee is a guarantee of high legitimacy for Vietnam. Guarantee commitments the Government made in the form of letters of guarantee, the guarantee contract or guarantee decision (hereinafter referred to as "letter of guarantee").
2. The Government provided only guarantee, non-renewable guarantee.
Article 4. The responsibility of the coordinating bodies 1. Ministry of Justice: a) participated in the negotiations and have opinions on legal matters in foreign loan agreements, the agreement on international bonds, letters of guarantee before the Prime Minister decided; Join comments on the legal problems in the loan, repayment of foreign enterprises and economic organizations in the country as suggested by the borrower, the lender and the Ministry of finance;
b) chaired the negotiations and issued a legal opinion in respect of the foreign loan agreements, the agreement on international bonds, letters of guarantee, the guarantor and the guarantee;
c) in collaboration with the Ministry of finance to handle legal disputes relating to the implementation of the letter of guarantee.
2. Ministry of Foreign Affairs: in collaboration with the Ministry of finance specifies the appropriate representative body of Vietnam abroad is authorized as the representative receiving the record of the proceedings relating to the guarantee of the Government in the case of proceedings was the agreement in the loan agreement and the guarantee letter has represents regulations receiving the record of the proceedings is the representative body like combination of Vietnam abroad.
Article 5. Make the loan guarantee limits the Government's 1. The Ministry of Finance made the guarantee level of Government under the Prime Minister's decision with respect to each loan or bond issue within the limits of foreign loans and Government guarantees.
2. where the guarantee limits the Government has approved in the year granted expired but still suggested the Government guarantee level for projects, key projects, major projects are urgent and special importance for socio-economic development of the country was a National Assembly The Prime Minister, the decision advocates the investment, the Ministry of finance is responsible for reporting the Prime regulators of the Government guarantee limit that year but must make sure to meet the safety requirements of the national debt.
Article 6. The program, the project is considered a Government guarantee level 1. The program, the project is considered the level of guarantees the Government made under the provisions of article 33 of the law on management of public debt.
2. Prime the specific regulations about the program, application of high technology projects, projects in the fields of energy, mining, mineral processing or manufacturing project of goods, provision of services for export; programs, projects in the field, the area was promoted as stipulated in paragraph 2, paragraph 3, article 33 of the law on management of public debt.
Article 7. Conditions of guarantee the Government in addition to the conditions stated in article 34 of the law on public debt management, a number of detailed rules about the level of Government guarantee conditions as follows: 1. With respect to the program, project: a) must be in the list of programs, the project was guaranteed by the Government, the Prime Minister decided in each period;
b) with respect to the program, special projects not included in the list must be the Prime decision according to each program, the project.
2. With respect to the loan, bond issuers: a) Is the business programme, projects are established and operating in Vietnam in accordance with the law. Businesses must comply with the regulations on the activities, financial management, accounting, and auditing in accordance with the law;
b) for the State policy banks, credit financial institutions are prime credit program delivery policy, targeted credit programs of the State;
Financial institutions, credit must reach a safe minimum capital ratio according to government regulations or under provisions of the State Bank of Vietnam.
3. for loans, terms of release of bonds: a) Is located within the guarantee limit Government was the Prime Minister for approval in accordance with article 5 of this Decree;
b) for foreign loans, international bonds account:-must be in foreign commercial borrowing limit is registered with the State Bank of Vietnam;
-Loan Type is freely convertible currency;
-Meets the conditions of international bonds issued under the provisions of the law of international bonds.
c) for loans, issuing bonds in water:-meet the conditions on domestic bonds issued under the provisions of the law on domestic bonds;
Bond due to the State's policy Bank (Vietnam Development Bank, Bank for social policy) guarantee by the Government under the plan capital mobilization and lending policies to be approved by the Prime Minister;
-Bonds issued by enterprises to mobilize capital for investment projects according to the mission was the Prime Government guarantee.
Article 8. Extent of the guarantee the guarantee Level does not exceed 80% of the total investment of the project, program, which already includes all the costs of borrowing are related, except in cases specified in point 34 of the law on Article 2 paragraph e management of public debt.
For business case involving a capital contribution of foreign investor to implement the project to the Government guarantee level referred to in Article 32 of the law on public debt management, the guarantee was only made for the corresponding loan with Vietnam-party responsibility in business.
Article 9. Records suggest that the level of guarantee 1. Written request to have the Government guarantee of the lender sends the loan; writing grant proposals guarantee the borrower, the Government issued bonds.
2. The texts of legal decisions include established businesses or business registration certificate of the enterprise's investment program, project.
3. Investment decision attached project profiles according to the current rules.
4. The project loans, bonds, loan schemes, repayment, which clearly define: a) investment funds (including equity capital, loans);
b) viability of the loan, the account bonds on loan conditions;
c) the ability of the refund program, project.
5. a salute of the lender attached the draft loan agreement, the project and the issuance of bonds.
6. The financial statements of the most recent 3 years audited. For the case of newly established enterprises or not enough 3 years of operation, they must have the written commitment of the representative of the owner, the owner's or the parent company about the ability to guarantee repayment.
Content of the commitment of the representative of the owner, or the owner of the parent company in order to ensure the availability of repayment in the event of change of business are guarantee difficulty in repayment.
7. Written commitment as defined in annex II of this Decree.
Article 10. The order of evaluation and the level of guarantee 1. Evaluation of the program's financial schemes, investment project within 30 days from the date of receiving the recommended records issued the guarantee full and valid from the borrower, who released the bonds prescribed in article 9 of this Decree, the Ministry of finance financial options evaluation and recommended records issued the guarantee with the following content : a) appraisal object, type of program, the project ensures the conditions stipulated in Articles 32 and 33 of the law on management of public debt and satisfy the conditions of article 6 and article 7 of this Decree;
b) appraise the program's financial approach, the project loan, which issued the bond. Authentication method is specified in detail in annex I attached to this Decree;
c), in the case of projects, key projects, major projects are urgent and special importance for socio-economic development of the country are the National Assembly, the Prime Minister decided to investment undertakings; commercial loans go with non-refundable aid or ODA loans to make up for funding in the form of a mixed credit (project has been assigned according to the accompanying funding), the Finance Ministry and Prime Minister's decision to grant bail based on the financial plan of the program , the project has been approved by the authority.
2. After the evaluation, the Finance Ministry reported the content of the evaluation process of decision-making by the Prime Minister on the policy to grant bail.
3. content negotiation loan agreements, the agreement issued bonds, guarantee letter content and content of legal opinions.
a) after the Prime Minister's decision to approve the guarantee level Government advocates, who are guaranteed the loan agreement negotiations proceed, the agreement releases the bonds with the participation of the Ministry of finance. Foreign lenders case or international bond issuance must have the participation of the Ministry of Justice.
At least within 3 working days before proceeding to negotiate legal documents related to the loan account, bonds, who was the guarantee provided to the Ministry of finance, the Ministry of justice the following documents: the draft loan agreement, the agreement to release the bonds; signed commercial contracts; draft letters of guarantee.
The case of the loan or bond issuance in the country, the letter of guarantee is released in the form of the Ministry of finance. In the case of foreign loans or issuing international bonds, these documents must also be submitted to the Ministry of Justice attached to the draft legal opinion; The Finance Ministry chaired the negotiation messages and guarantee justice chaired negotiations legal opinion content (if any) for loans, terms of release of bonds. The message content of guarantee after agreement was reached to be the Finance Ministry and the Prime Minister for approval.
b) signed the agreement: Unity talks after the content in the loan agreement, the agreement issued bonds, who guarantee the authority approved and signed the loan agreement, the agreement to release the bonds;
c) perfecting the guarantee level profile: after the signing of the loan agreement, the agreement issued bonds, the guarantee provided to The loan agreement, financing agreement bonds signed and written commitment of the governing body on the upper level (if available) according to the model in annex II attached to this Decree to improve the profile of guarantee.
4. Approval of the Prime Minister pursuant to the report of the Finance Ministry, the prime consideration, decision: a) the message approval guarantee and delivered the Finance Ministry released on bail;
b) Assigned the Ministry of Justice issued a legal opinion about the foreign loan agreements, the agreement on international bonds, letters of guarantee, the guarantor and the guarantee in case of foreign lending, international bond issuance;
c) Ministry of Foreign Affairs in cooperation with the Ministry of finance specifies the appropriate representative body of Vietnam abroad is authorized or approved by an organization as the representative receiving the record of the proceedings in the case of proceedings in foreign loan agreements, the agreement on international bonds asked to have a representative receiving the record of the proceedings;
d) approval of the guarantee fee applied for loans, account issued in the country or outside the country.
5. Release the letters guarantee a) released the letter of guarantee: after you complete the entire profile level guarantee, on the basis of the decision of the Prime Minister approved the granting of the guarantee, the Ministry of finance will issue letters of guarantee.
The letter of guarantee is issued once only for loans, terms of bonds issuance program, project, or be released once for each loan, account issued by decision of the Prime Minister but does not exceed the total cost of borrowing, expected release has been the Prime Minister for approval for the program , that project.
In the case of foreign lending, international bond issuance: letter of guarantee be issued four (4) main version, in which the Finance Ministry records a (1) a person who is on bail, save one (1) a justice, save one (01) a and a (1) is transferred to the lender or guarantor release; in the case of loans, issuance of domestic bonds, letters of guarantee are released three (3) main version, in which the Finance Ministry records a (1) a person who is on bail, save one (01) a and a (1) is transferred to the lender or guarantor release;
b) in the case of foreign loans, international bonds, who is guaranteed to send the text of the enclosed letter of guarantee is the official Ministry of Justice to the Ministry of Justice issued a legal opinion for foreign loans, account of international bonds on the content has been decided by the Prime Minister.
6. legal opinion and foreign loan registration, account of international bonds.
a) register loans: for loans abroad, international bonds, after the letter of guarantee is released, people are guaranteed foreign loans registration, account of international bonds issued in the State Bank of Vietnam under the provisions of paragraph 1 to article 35 of the law on public debt management, and according to the regulations of the State Bank of Vietnam on the management of loans charged the foreign debt of the business;
b) confirm reception of representative proceedings document: in the case of proceedings specified in the loan agreement, the agreement on international bonds and letters of guarantee that requires the representative receiving the record of the proceedings, the Ministry of finance in cooperation with the State Department designate Vietnam representative offices in foreign countries or the appropriate choice of an organization was commissioned the right to make representations to receive resumes the proceedings for the guarantee and the Ministry of finance.
According to the proposed text attached form authorized by the Ministry of finance, Vietnam representative body authorized or selected organizations to sign the text agreed as the representative receiving the record of the proceedings to transfer to the recipient of the guarantee and copies sent to the Ministry of finance;
c legal opinion) levels guarantee and foreign loan agreements, the agreement on international bonds: within 10 working days, on the basis of the proposal of the guarantee, the Ministry of Justice issued a legal opinion into two (2) originals, a (1) a guarantee recipients and send a (1) a retention by the Ministry of Justice.
Article 11. The message content of guarantee 1. The content required in the guarantee include: a) the guarantor;
b) Who are guarantors;
c) reference the relevant commercial contracts, loan agreements;
d) the required level of guarantees, loan type;
DD) the commitment of the Ministry of finance for the recipient of the guarantee on the obligation of the guarantee and the Ministry of finance;
e) the rights and responsibilities of the recipient of the guarantee;
g) validity and revocation of letters of guarantee;
h) regulators and Law bodies, the location, the language used in the resolution of disputes;
I) location, day, month and year release signed letters of guarantee.
2. what other content do the parties to the agreement but are not contrary to the provisions of the law of Vietnam.
3. Letter of guarantee was revoked when the entire debt obligation guarantee has been completed or the recipient of the guarantee to send the text for the Finance Ministry confirmed the letter of guarantee concerned has expired.
Article 12. The guarantee fees 1. The Ministry of finance based on the results of the evaluation of the financial schemes of the program, projects on the financial situation of the business to prescribed fees specific to each program, the project depending on the level of risk, but not to exceed the maximum of 1.5% per year on the outstanding balance is guaranteed. The guarantee fees are specified in annex III of this Decree.
2. the guarantee fees are as follows: a) the guarantee Fees are quoted in the currency of the loan, calculated starting on the first drawing and was filed on the cumulative repayment Fund according to the instructions of the Ministry of finance;
b) Fee guarantee are on at the same time with the payment of interest on the loan guarantee. At the suggestion of the guarantee, the guarantee fee in the loan's grace period can be levied when the project goes into operation, but must bear interest rates with interest equal to the interest rate of the loan guarantee;
c the guarantee Fee is collected by) the type of loan or converted Vietnam Dong rates sell out due to joint stock commercial bank for foreign trade of Vietnam officially announced at the time of submission of the guarantee fees;
d) slow case file charges guarantee the guarantee is subject to penalty interest rates slowly charged on the amount of the guarantee fee charged on the day of filing slow slow submission. The interest rate is calculated by applying the interest rate of the loan, the account bonds are guaranteed.
3. The Ministry of finance is 1.5% of the number of actual guarantee fee collected to offset the costs related to the provision and management of Government guarantees and the content of the genus is the Prime allows.
Article 13. Mortgage assets 1. Except for loans, account issued by the Bank's policy was the Government guarantees, asset formation from a Government loan guarantee as collateral ensuring the implementation of the obligations of the borrower with the Ministry of Finance according to the proportion of the loan form the property.
2. do not use the assets formed from capital guarantee by the Government to ensure the implementation of the civil service.
3. Collateral not sold, exchanged except with the consent of the Ministry of finance. In case of sale of collateral, the proceeds or property from the proceeds become alternative collateral for the assets sold.
4. mortgage registration: after the Finance Ministry released the letters of guarantee and at the latest 6 months after the property has been the official trials, the guarantee made the registration of collateral for secured government guarantee under the provisions of the law of secured transactions.
Article 14. Collateral processor
1. in the case of the guarantee do not make or made incomplete repayment obligations that Ministry of Finance has made the entire obligation of repayment and replacement guarantee does not have the ability to reimburse the Treasury collateral shall be treated to ensure the recovery of arrears for the Finance Ministry.
2. The method of handling the collateral and the accept this property made under the provisions of the law of secured transactions.
3. Proceeds from the disposal of collateral is made for debt accumulation Fund as a source of repayment for the guarantee clause.
Article 15. The obligation of the guarantee 1. Perform the obligations of the borrower, who issued the loan agreement, signed release agreement.
2. Make the registration of collateral under the provisions of the law of secured transactions.
3. At the time of the Ministry of finance to consider the level of guarantee, the guarantee must be committed within the Government guarantee is in effect: a) the guarantee was only transfer a portion or all of the shares or capital of organizations, individual foreign investors for Vietnam when it has completed the payment of the entire debt obligation for lenders (who receive guarantee) for the remaining debts corresponding to the rate of expected stock transfer and notice in writing to the Ministry of finance. Within 15 working days, after receiving the written notice, the Ministry of Finance has text replies to the guarantee.
b) organizations and individuals owning shares or capital contributions from 5% of the real capital contribution or over must together to commit in writing to holding a minimum of 65% of food donations for the duration of the guarantee is in effect. Business (the guarantee) to register the list of the shareholders, the individual had to say on the stock exchange or in the center of the securities under the guidance of the Ministry of finance.
The case of the investors in the list of subscribed demand transfer of the shares or capital to investors other than the list of registered shareholders, the new assignee must meet the criteria of financial capacity are the Ministry of finance approved.
Business case release more equity or call more capital, the business must register the additional investors to ensure maintaining the rate of capital commitment.
c) special case, the Ministry of finance the prime consideration, decide not to apply the commitments outlined in point a and point b of this paragraph.
4. Facilitate the Finance Ministry to check the implementation of programs and projects as needed.
5. When to repay, the case is no guarantee made or made incomplete repayment obligation they must notify in writing to the Ministry of Finance before the term of the debt a minimum 45 days, stating reasons does not have the ability to service debt and pledged to refund the amount that the Treasury will replace the entire public debt charges the fact concerning the repayment instead. The case of the guarantee do not inform the Ministry of finance about the difficulties when implementing debt obligations causing damage directly to the State budget, the guarantee is responsible for reimbursing the whole physical damage for the State budget.
6. Before the repayment be replaced, the guarantee must sign the loan agreement required under the following conditions: a) on the interest rate: the interest rate is the interest rate specified in the loan agreement, the agreement to release the bonds. Interest period is calculated from the day the Finance Ministry paid instead of the guarantee until the Finance Ministry to seize funds;
b) about the loan duration: duration required by the Minister of finance review the decision depending on the repayment ability of each project, but must not exceed 5 years;
c) lending Source is taken from the cumulative Fund repayment under Article 36 paragraph 1 d of the law on management of public debt.
7. In case the guarantee violation committed in the loan agreement required in 3 States, in addition to the rules on collateral specified in this Decree, the guarantee must open the "special account" and the entire revenue of the guarantee must be routed through this accounts to ensure the priority of payment of government loans have been told head. The minimum balance in the special account with 100% of the amount of debt the next term and will have to maintain for 1 year in a row. After this period, if the guarantee made the right commitment, then applying this account will be deleted.
Article 16. Transfer, transfer the obligation of guarantee 1. The assignment, transfer, loan account released on bail bonds that the Government must be approved by the Ministry of finance.
2. The recipient of the transfer, the transfer of the recipient is obliged to guarantee for loans, terms of release of bonds guaranteed by the Government corresponds with the scope of the assignee or transferred from the guarantee.
Article 17. Adjust, modify the letter of guarantee 1. In the process of implementation of the guarantee, the guarantee is responsible to report in writing to the Ministry of finance any changes related to the conditions of the loan contract when there is a change.
2. If the content adjust loan contract does not increase total loan guarantee, the Government authorized Prime Minister of finance decision and released letters or Appendix adjust the letter of guarantee.
3. If the content of the loan contract adjustment increases the more valuable the loan guarantee, the Ministry of finance is responsible for the Prime Minister's decision before the release of the message or Appendix adjust the letter of guarantee.
Article 18. Handle the case of violation of the obligation of repayment of the guarantee the guarantee cases do not have the ability to make timely debt service obligations in full, for the lender, led to the Ministry of finance debts: 1. If the person is having difficulty guarantee temporarily not repayment of interest : a) within 3 States of repayment, the Finance Ministry asked the owner or representative of the parent company's guarantee of repayment. The case represents the owner or parent company's inability to pay the debt, the Finance Ministry was allowed to advance from the Fund accumulated debt to repay;
b) On 3 States of repayment, the Finance Ministry asked the owner or representative of the parent company (if any) of the person is guaranteed debts. If the owner or representative of the parent company still does not pay the debt or in case the guarantee has no owner or representative of the parent company, the Finance Ministry asked the superior governing body of the person is guaranteed check processing measures, recommendations sent to Finance Ministry reported the Prime Minister decided measures to handle.
2. If the guarantee serious trouble led to no repayment of principal and interest incurred and after the application of the measures stipulated in paragraph 6 article 15 of this Decree, the Ministry of finance, in collaboration with the agency owner or governing body of the superior guarantee progress check , determine the cause and build process to report the Prime Minister decided in each case specifically.
3. where the guarantee completely lost the ability to pay the debt, the Finance Ministry reported the Prime Minister decided to handle the collateral according to article 14 of the Decree. The case of the processing of mortgage assets are not enough to recover the loan debt, the Finance Ministry reported the Prime Minister handled under the provisions of the law.
4. In every case of non-repayment, if determined by the subjective cause, Ministry of finance the Prime recommendations delivered to the Agency processed under the provisions of the law of personal status leads to infringement does not pay the debt.
Article 19. Report mode 1. Quarterly, annual, the guarantee is responsible for submitting financial reports to the Ministry of finance. As for the reported years need to be certified by the State Audit Agency or independent audit. In case of need, the Finance Ministry may ask who are the guarantee to report on the related content.
2. report the situation to the exit (days and times each value funds) repayment, outstanding six months according to the loan terms, bonds are guaranteed according to the form prescribed in annex IV attached to this Decree.
3. report the implementation of the programme, the project six months during the exit until the end of the construction phase.
4. To report at the end of the period of construction.
5. The report reviews the project after the project ends.
Article 20. Checking and monitoring 1. The Ministry of finance is responsible for regular monitoring of the implementation of the obligation of the guarantee.
2. In case the guarantee has signs of financial difficulty or incurred bad debt was not paid according to article 15 of this Decree, the Ministry of finance conducted to check the financial situation of the project, identify the cause of the loss of the ability to pay and the Prime report processing measures.
Article 21. Effect 1. This Decree is in effect enforced since February 5, 2011.
2. Annul the decision No. 272/2006/QD-TTg dated 28 November 2006 from the Prime Minister's issued the regulation and management of Government guarantees for foreign loans.
3. With regard to the terms of the guarantee the Government has issued before the enactment of this Decree and still in effect done, issues arising under the guarantee will be made according to the provisions of this Decree.
Article 22. Responsibility of Ministers, heads of ministerial agencies, heads of government agencies, the Chairman of people's Committee of the province, central cities, businesses, organizations, individuals responsible for the implementation of this Decree.