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Decree 21/2001/nd-Cp: On The Organization And Operation Of Financial Leasing Companies

Original Language Title: Nghị định 16/2001/NĐ-CP: Về tổ chức và hoạt động của Công ty cho thuê tài chính

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The DECREE on the Organization and activities of a financial leasing company _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ the GOVERNMENT pursuant to the law on Government Organization, 30 September 1992;
Pursuant to the law the State Bank of Vietnam no. 01/1997/QH10 on 12 December 1997;
Pursuant to the law of credit institutions the number of content 02/1997/QH10 on 12 December 1997;
According to the proposal of the Governor of the State Bank of Vietnam, the DECREE: chapter I GENERAL PROVISIONS article 1.
1. Financial Leasing is active medium and long term credit through the lease of machinery, equipment, means of transport and other property on the basis of the lease between lessor with lessees. Lessor undertakes to purchase machinery, equipment, means of transport and other property at the request of the party and hold the ownership of the rental property. Use rental property rent parties and payment of rent during the term rent was two sides agreed.
2. The end of the lease, lessees are choosing to buy back your property rent or continue to rent according to the conditions agreed in the contract of financial leasing. The total amount of rent a property type specified in the lease financing, at least equal to the value of the property at the time of signing the contract.
3. financial leasing activities on the territory of Vietnam must be made through the financial leasing company was founded and operating in Vietnam and in accordance with the provisions of this Decree.
4. financial leasing activities of leasing companies abroad are made according to the provisions of this Decree and other relevant provisions of the law of Vietnam or the parties may agree to apply the international customs, if that Customs is not contrary to the law of Vietnam.
Article 2. Financial leasing company is a non-bank credit organization, legal personality is Vietnam. Financial leasing company was founded and operated in Vietnam under the following forms: 1. financial leasing companies in the State.
2. financial leasing company shares.
3. financial leasing company of affiliated credit institutions.
4. financial leasing company joint venture.
5. financial leasing company 100% foreign capital.
Article 3.
1. financial leasing company was founded by venture capital between the Vietnam side consists of one or more credit institutions, Vietnam business and foreign parties consisting of one or more foreign credit institutions, on the basis of joint venture agreement.
2. financial leasing company 100% foreign capital was established with capital of one or more of the foreign credit institution in accordance with the law of Vietnam.
Article 4.
1. The parties to the leasing company venture was the transfer of its shares under the provisions of article 26 of Decree No. 13/1999/ND-CP on 17 March 1999 by the Government and must be a priority assignment for parties in the financial leasing company joint venture. The transfer of capital leasing company joint venture are set forth in the Charter of the company and in accordance with the provisions of the law.
2. financial leasing company 100% of foreign capital have the right to transfer their capital but must give priority to The organization of Vietnam.
Article 5.
1. The time limit for the operation of the financial leasing company in Vietnam to a maximum of 50 years. The case of the need to extend the duration of activities must be approved by the State Bank. Each extension not exceeding 50 years.
2. for the financial leasing company was founded and granted the operating licence before this Decree in force, the duration of operation is applied as specified in the operating licence was granted.
Article 6. The State Bank of Vietnam is State Management Agency about the leasing activity, have the duty to grant and withdraw the license to establish and operate; monitoring and inspection activities of leasing companies; the competent State agencies issued or issued under the authority of the text of regulations on financial leasing activities.
Article 7. In this Decree, the terms below are interpreted as follows: 1. the lessor is financial leasing company was established and functioning according to the law of Vietnam.
2. Lease is held and individuals operating in Vietnam, direct use of the rented property for the purpose of their activities.
3. Rental property is machinery, equipment, means of transport and other property.
Chapter II ORGANIZATION and ADMINISTRATION of the FINANCIAL LEASING COMPANY category 1 LICENSING ESTABLISHED and OPERATION article 8.
1. The conditions to be granted a license to establish and operate for the leasing company: a) has a needs financial leasing activities on the area of activity, please;
b) has enough capital according to the regulations of the Government in Decree No. 83/1998/ND-CP dated 10 October 1998;
c) founding members are organizations, individuals and financial capacity;
d) administrators, executives have the capacity for civil acts and full professional level consistent with the activity of leasing companies;
DD) Has drafted the Charter of the Organization, operations consistent with the provisions of the law of credit institutions and the rule of law;
e) Have viable business plans.
2. In addition to the conditions stated in paragraph 1 of this article, the foreign party in the joint venture or 100% foreign-owned company, must be held to have jurisdiction under the provisions of the law allow foreign venture, allows financial leasing operations in Vietnam.
Article 9.
1. Application for a license to establish and operate for the leasing company: a) an application for a license to establish and operate;
b) draft Charter;
c) active 3 years approach, which stated the effectiveness and economic interests of the company;
d), résumé, list the certification diploma, professional qualification of the founders, the members of the Management Board, supervisory board and General Director (Director);
DD) capital contribution projects and a list of the individual, the Organization, which is;
e) financial situation and other relevant information regarding the major shareholders;
g) approval of the people's Committee of the authority, where the headquarters of the leasing company.
2. In addition to the documents prescribed in paragraph 1 of this Article, the Please license and operations for rental companies and venture finance leasing company 100% of foreign capital have to enclose the following documents: a) the Charter of the Organization's activities abroad;
b) permits operation of overseas organizations;
c) text of the foreign organizations have the authority to allow foreign parties to operate in Vietnam;
d) financial balance sheet, profit and loss results tables have been audited and reported the situation to the nearest 3 years of activity of the Organization;
DD) draft joint venture agreement.
3. Application for a license prescribed in clause 2 of this is made in 2 sets, a set by Vietnamese and a Foreign Ministry. State Bank regulations the documents in the record in a foreign language must be consular legalization. The Vietnamese copies and translations from foreign languages out of Vietnamese to be certified agency or Vietnam diplomatic missions, Consulate of Vietnam abroad confirm.
Article 10. Financial leasing companies established according to the provisions in clause 1, 2 and 3 of article 2 of this decree must pay licensing fees and for each renewal of a license to establish and operate using 0.1% level of capital.
The fees of financial leasing companies, leasing companies 100% foreign capital to comply with the provisions of article 18 Decree No. 13/1999/ND-CP dated 17 March 1999 from the Government.
Article 11.
1. To go into operation, leasing company must have the following conditions: a) Charter was the State health standard bank;

b) has enough capital, whose consistent with operational requirements for financial and lease has been issued a certificate of business registration;
c) part capital contributed by the money to be deposited into my account blocked in the State Bank before the 30-day minimum activity;
d) Posted the central message, as defined by local law for the content specified in the licence.
2. Within a period of 12 months from the date of establishment licensing and operation, leasing companies are launching activities.
Article 12. Revocation of the license of the financial leasing company is made according to the provisions of article 29 of the Law of credit institutions and to the instructions of the State Bank.
Item 2 ORGANIZATIONAL STRUCTURE, management, administration and CONTROL of the FINANCIAL LEASING COMPANY article 13.
1. The opening of branches, representative offices in the country, outside of the financial leasing company must be approved by the State Bank in writing.
2. The established companies have legal personality, independent accounting of financial leasing companies to operate on a number of areas in finance, banking, insurance follow the Bank's rules.
Article 14. Condition record, the procedure to open a branch, Representative Office of the financial leasing company is applied under article 33 of the Law of credit institutions and to the instructions of the State Bank.
Article 15. Management, administration, control, inspection systems, internal audit and financial leasing companies performed as specified in section 3 and section 4 of chapter II of the law on credit institutions.
Chapter III OPERATION of FINANCIAL LEASING COMPANY article 16. Business activities of leasing companies include 1. Financed from the following sources: a) term deposits received from a year or more of individual organization according to the regulations of the Bank;
b) Are bonds, certificates of deposit and other valuable papers on a term of years to mobilize capital of organizations, individuals in the country and abroad when he was Governor of the State Bank approved;
c) Are loans of financial institutions, domestic and foreign credit;
d) received the other funds as provided by the State Bank.
2. Financial leasing.
3. Buy and rent back in the form of financial leasing (hereinafter referred to as the buy and rent back). In this way, the financial leasing company acquisition of machinery, equipment, means of transport and other property owned by the party rental and party rental for rent back the property to continue to use the service for their activities.
4. Advise clients on matters related to financial leasing business.
5. Perform trust services, asset management and guarantees related to leasing activities.
6. Other activities when the State Bank allowed.
Article 17.
1. financial leasing contract is the agreement between the lessor and the party about a rental or lease some of the machinery, equipment, means of transport and other property under the provisions of article 1 of this Decree, in accordance with the rights and obligations of the parties.
2. financial leasing contract must be made in writing in accordance with the law. The contract must specify the handle when the contract termination before term.
3. Parties and party rental for rent not be unilaterally cancelled the contract of financial leasing (except for the cases stated in article 27 of the Decree).
Article 18. Leasing companies are directly imported the machinery, equipment, transport and estate which lessees have been allowed to buy, import and use according to the current provisions of the law (hereinafter referred to as rental property is imported).
Article 19. Finance rental property must be registered in the central register of transactions are secured. The guide details the registration of leasing assets.
Article 20. For rental property is the means of transport, boats caught seafood certified registration, leasing companies hold a registration certificate, the main party when using the media used copies are certified by the State and certified by the leasing company , to use the media in the lease. Financial leasing company just confirmed on a copy of the certificate of registration of the media after already certified by the State. If the property on active participation on international financial leasing company, keep a copy of the certificate of registration of the certified agency certification.
Article 21. For the rental property must have the license to use, the Agency has the jurisdiction to review the license used for the lease on the basis of proof of ownership of rental property leasing Corporation and lease financing. The State Bank in collaboration with the authority to license the use of property regulation implementation guide.
Article 22.
1. Tax for machinery, equipment, means of transport and other property leasing company purchased in the country or imported to lease are applied as in the case of direct hire side buy or import the assets.
2. Rental property was recovered under the provisions of paragraph 1 Article 28 of this Decree, if the recovered property is the property of foreign imports, the export tax not upon export.
3. In the case of rental property ownership was transferred to lessees at the end of the rental term cede, sell the rental property, rent parties not stamp tax.
Article 23. Lessor reserves 1. Request the lessees to provide quarterly reports, financial settlement and the situation in production and business activities and issues related to rental property.
2. check the management and use of the property for rent.
3. Buy, import the rental property at the request of the party.
4. Attach the symbol property on rental property during the term of hire.
5. Transfer of rights and obligations in the financial leasing contract for a financial leasing company. In this case, just hire party prior notice in writing to the lessees.
6. Request the lessees latest betting deposit or surety perform financial leasing contract if necessary.
7. rent Reduction, extend the time limit for paying the rent, the sale of rental property as specified by the State Bank.
8. Request the lessees in damages when the party breach of contract hire leasing.
Article 24. The party had obligation rental 1. Signed a contract to buy the property with the supply side under the conditions agreed between the parties and party rental supply. Lessor shall not be responsible for the rental property not assigned or assigned incorrectly with the conditions set by lease agreement with the supply side.
2. Registration of ownership, the procedures to buy insurance for rental property.
3. the full, proper implementation of these terms has committed in the contract.
Article 25. Lessees have the right 1. Selection, deals with the supply side of technical characteristics, types, prices, ways and time limit for delivery, installation and maintenance of the property for rent.
2. rental property received directly from the supply side as agreed in the contract to buy the property.
3. Decide on the purchase of property or continue to rent after the conclusion of the contract of leasing.
4. Request the lessor compensation when parties for breach of contract hire leasing.
Article 26. Lease obligations 1. Provide quarterly reports, financial settlement and the situation in production and business activities, the problems relating to the rental property when the lessor requests; create the conditions to check rental-party rental property.
2. Responsibility for selection, the agreement referred to in paragraph 1 of article 25 of this Decree.

3. Use the right rental property the purpose agreed in the contract of financial leasing; not transfer the right to use the leased asset for individuals and organizations without lessor agrees in writing.
4. Pay the rent as agreed in the contract of financial leasing and the payment of the costs related to the import, tax, registration fees, insurance for rental property.
5. Bear all risk of loss, damage to the rental property and take responsibility for any consequences resulting from the use of rental property caused for other individuals and organizations in the process of use of rental property.
6. Maintenance, repair of rental property lease. No erasing, damage the property sign mounted on the property lease.
7. Is not used rent property to mortgage, pledge or to ensure the implementation of other obligations.
8. the full, proper implementation of these terms has committed in the contract.
Article 27.
1. the lessor has the right to terminate the contract of financial leasing before maturity when one of the following cases: a) lessees do not pay rent as stipulated in the contract of financial leasing;
b) party violated the terms of the contract of financial leasing;
c) lessees bankrupt, dissolved;
d) surety went bankrupt, the lessor and not to approve the proposal to terminate the guarantee or suggest other alternative guarantor of lessees.
2. the Parties may terminate the rental contract before maturity when the lessor violates one of the following cases: a) lessor not time rental property;
b) rental-party breach of contract.
3. financial leasing contract is terminated before the lease term in the case of rental property lost, damaged cannot repair recovery.
4. financial leasing contract is terminated before the end of the rental period in the event lessor approval to lease the entire rent payment ahead of time recorded in financial rental contract.
Article 28.
1. In the case of leasing contract is terminated before the deadline in one of the cases specified in article 27 paragraph 1 of this Decree, the party must pay the full amount of the rental right remains for the lessor. If the rent is not paid money to rent, rent parties have the right to recover the property immediately for rental and lease is material compensation to the lessor. After the recovery of assets for lease lessor has the right to transfer or to the other side of the rental property.
2. Ownership of the lessor with respect to rental property during the term of lease is not affected in the event of a bankruptcy, the rental party dissolved, lost the ability to pay. Rental property are not considered assets of the party when the handling of assets to repay for creditors.
3. In the case of financial leasing contract termination before maturity under paragraph 2 of article 27 of this Decree, the lessor must compensate the damage to the party.
4. In the case of financial leasing contract termination before term under article 27 paragraph 3 of this Decree, the lessor must refund to the amount of rental property insurance when hiring party has paid enough money to pay the rent for the rental and party when the lessor has received insurance money by billing insurance agency.
Article 29. Leasing companies are not leasing for the object specified in item 1 Article 77 of law of credit institutions.
Article 30.
1. non-financial leasing company was leasing with preferential conditions for the object specified in clause 1 Article 78 of law of credit institutions.
2. The total value of rental property for the object specified in paragraph 1 of this article shall not exceed 5% of the own capital of the leasing company.
Article 31.
1. financial leasing company must maintain security rate specified in article 81 of the Law of credit institutions and the text direction of the State Bank.
2. financial leasing limit for a client: a) General leasing rates for one client may not exceed 30% of own capital leasing companies, except for financial leasing payments from the Government's trust funds, of the organizations , personal or institutional customer credit;
b) where a customer's rental needs exceeds 30% own capital leasing companies or clients wishing to rent from many sources, the leasing companies are inherently integrated rental as specified by the Governor of the State Bank. In special cases, made according to the provisions in point c paragraph 1 to article 79 of the law on credit institutions.
Chapter IV financial, ACCOUNTING and Report 32. Financial leasing company is allowed to open an account at the State Bank and the banks operating on the territory of Vietnam. The opening deposit accounts in banks outside Vietnam territory must be licensed by the State Bank.
Article 33.
1. The financial year of the company leasing start from October 1 each year and end on December 31 of the calendar.
2. currency, finance, corporate accounting financial lease made under the provisions of the Government on the financial regime of The credit organization.
Article 34. Financial leasing companies to extract accounting and risk prevention on operational costs. The extract and backup use the risk made pursuant to the State Bank.
Article 35. Profits and extracted set of funds leasing companies follow government rules on financial mode of credit institutions.
Article 36. The transfer of profits, property transfer abroad of foreign parties in financial leasing companies, leasing companies 100% foreign capital to comply with the provisions of article 112 of the law on credit institutions.
Article 37. Leasing companies are not buying, investment into fixed assets so his own 50%.
Article 38. Leasing company must perform the accounting regime, statistics and auditing in accordance with the Government on the financial regime of The credit organization.
Chapter V INSPECTION, control, bankruptcy, DISSOLUTION, liquidation Article 39.
1. financial leasing company subject to inspection, check under the provisions of the law.
2. The Inspector of the State Bank for the operation of the financial leasing company in Vietnam to follow specified in section 1, chapter IX the law of credit institutions.
Article 40. The special control, bankruptcy, dissolution, liquidation for leasing companies to comply with the provisions of chapter V, the law on credit institutions.
Article 41. Reward treats breaches of financial leasing operations undertaken in accordance with Chapter X of the law on credit institutions.
Chapter VI ENFORCEMENT PROVISIONS Article 42. This Decree takes effect after 15 days from the date of signing and replacing Decree No. 64/CP DATED September 10, 1995 by the Government.
The State Bank of Vietnam presided, in cooperation with the relevant agencies to guide the implementation of this Decree.
43 things. The Ministers, heads of ministerial agencies, heads of government agencies, the Chairman of the people's committees of provinces and cities under central authority responsible for the implementation of this Decree.