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Circular 05/2006/tt-Nhnn: A Guide To Some Of The Content On The Financial Leasing Activities And Fiduciary Services For Financial Lease Under The Provisions Of Decree No. 16/2001/nd-Cp Dated 10/5/2001 And Decree S. ..

Original Language Title: Thông tư 05/2006/TT-NHNN: Hướng dẫn một số nội dung về hoạt động cho thuê tài chính và dịch vụ ủy thác cho thuê tài chính theo quy định tại Nghị định số 16/2001/NĐ-CP ngày 02/5/2001 và Nghị định s...

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CIRCULAR guide some content about financial leasing activities and fiduciary services for financial lease under the provisions of Decree No. 16/2001/ND-CP dated 10/5/2001 and Decree No. 65/2005/ND-CP dated 19/5/2001 of the Government _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ pursuant to article 42 of Decree 21/2001/ND-CP dated 10/5/2001 of the Government on the organisation and operation of the rental company Finance, article 3 of Decree 65/2005/ND-CP dated 19/5/2005 of the Government regulations on the amendments and supplements to some articles of Decree No. 16/2001/ND-CP dated 10/5/2001; The State Bank of Vietnam guide some content about financial leasing activities and fiduciary services for financial lease under the provisions of this Decree are as follows: i. the FINANCIAL LEASING ACTIVITIES 1. Financial leasing company performs leasing for financial lease is the organization or individual operating in Vietnam (hereinafter the lessees) tenant property is machinery, equipment, transport and other properties to make the production investment project business, service or project to serve the life in the country.
This circular does not guide the financial leasing company performs leasing operations abroad.
2. leasing conditions 2.1. Leasing company must be established and made operational for financial lease under the provisions of the law on credit institutions.
2.2. the rental Party must have the following conditions: a) Has the capacity of civil law, the capacity for civil acts prescribed by law:-for the rental party is held and Vietnam: individual organizations must have legal capacity; individuals, private business owners, representatives of families, representatives of the cooperative must have the capability of civil law and civil behavior capability.
-For the rental party is held and foreign individuals: the Organization must have the capability of civil law under the provisions of the laws of the Socialist Republic of Vietnam; individual must have the capacity for civil law and the capacity for civil acts under the provisions of the law of the Socialist Republic Vietnam, except where the laws of the Socialist Republic of Vietnam have other rules. Applicable law bases for the Organization and individual are made according to the provisions of law in civil relations with foreigners.
b) Have investment projects in manufacturing, trading, or service projects serving the life feasible, effective, consistent with the rule of law and the use of rented property to the project.
c) Have the financial capacity to ensure payment of rent in the lease had committed.
2.3. financial leasing transactions must satisfy the conditions prescribed in item 1 article 1 of Decree 65/2005/ND-CP dated 19/5/2005 of the Government and the relevant legal texts.
3. The currency used in the transaction of financial leasing leasing company performs leasing transactions in Vietnam. Case of financial lease transaction made in foreign currency, finance and leasing companies lease follow the provisions of foreign exchange legislation and guidance in this circular.
4. financial leasing transactions performed in foreign currency 4.1. Financial leasing transactions performed in foreign currency is the leasing company for the lease of machinery, hire of equipment, means of transport and other property leasing company imported under financial leasing contracts with lessees; lessees get debt and financial lease payment in foreign currency.
4.2. In addition to the conditions following the instructions in paragraph 2 of this circular, financial leasing transactions performed in foreign currency must meet the following conditions: a) for financial leasing company: registered financial leasing operations in foreign currency with the State Bank of Vietnam under the provisions of the law on foreign exchange.
b) for party hire:-use of rental property to serve the production, sales, service;
-There is a source of revenue in foreign currency or foreign currency purchased at credit institutions are allowed to Trade Forex to pay rent.
5. financial rent and the expenses related to leasing activities 5.1. Financial lease include: a) the original Debt is determined on the basis of the purchase price of the rental property and the reasonable expenses related to the purchase of the property;
b interest on Debt) is determined on the basis of the original debt, interest and lease financing.
5.2. Other costs related to leasing activities that lessees are charged for the leasing company due to financial leasing companies and lease agreements in accordance with the law.
6. financial leasing interest 6.1. Leasing interest due to leasing companies deal with lessees in the leasing contract.
6.2. The interest rate applicable to the original debt financial rent repayment term due too the company leasing agreements with lessees in the financial leasing contract, but not exceeding 150% of the leasing interest rate applied in the financial lease had been signed or adjustments in financial rental contract.
7. Time limit and term of lease finance 7.1. Leasing period is the time period from the time of receipt of rental-party debt financing rent until paying off rent arrears was agreed in the contract of financial leasing. Upon financial lease debt due to the company leasing agreements with lessees.
Financial leasing company and the party base production cycle rental business, the time limit for the recovery of capital investment project, the possibility of payment of rent to rental-party rental agreement. For Vietnam and foreign institutions, leasing period not exceeding the time limit for the remaining activities under decision established or operating licence in Vietnam; for foreign individuals, leasing period not exceeding the time limit allowed to live and work in Vietnam.
7.2. financial leasing term is the period of time within the financial lease was agreed in the contract of financial leasing, which at the end of each period which lessees have to pay part or the full amount of rent for financial leasing companies.
7.3. financial leasing companies and lease agreement on the repayment of debt principal and interest on financial lease are as follows: a) The original repayment term;
b) The term of repayment of interest along with the original repayment term or term.
8. Evaluation and financial 8.1 rental decision. Financial rental companies consider leasing decisions for the party to hire on the basis of assessing the feasibility, effectiveness of investment projects in the manufacturing, trading, or service projects serving life, conditions of financial leasing and the repayment ability of the lessees.
8.2. financial leasing company build process evaluation, review of financial leasing under the principle of a clear delineation of responsibilities between stitching authentication and leasing decisions, responsibility of the individuals concerned.
9. financial leasing records 9.1. The paper suggested the financial party rental, in that particular record name enclosed rental property documents that qualify as financial lease.
9.2. The company leasing guide the type of document that the party submit a rental for leasing companies conform with provisions of the law on financial leasing activities and operational characteristics of the leasing company.
9.3. Lessees are held responsible before the law for the accuracy and legality of the documents sent to the leasing company.
10. financial leasing contract

10.1. the leasing contract is the agreement between the company and finance lease rental of the financial leasing under the provisions of the law on leasing activities, the guidelines of this circular and the provisions of other relevant laws.
10.2. financial leasing contract must be made in writing in accordance with the provisions of the law of contract and must have the content server to love: the name, address of the company leasing and lease; conditions for rent; name, type and quality of rental property; the purpose of use of the rented property; the original money and finance lease interest rates, other expenditures; upon the debt and lease financing; term of repayment deadlines and financial lease; the rights and obligations of the parties, handled the case of a lease contract termination before term. The content of financial leasing contracts by leasing companies and lease agreement.
11. Restructuring the repayment period, transfer the overdue debt 11.1. Financial leasing companies make the repayment term restructuring financial rent for party in one of the two following methods: a) to adjust the term of repayment is the leasing company approves the repayment term with changes in financial rent, but do not exceed term of leasing agreement earlier in your rental contract the main.
b) renewal of debt is the leasing company approves extended by a period of financial lease repayments exceeded the agreed rental term earlier in the leasing contract.
11.2. financial leasing companies make the repayment term restructuring financial rent for the lease as follows: a) financial leasing companies decide to restructure the repayment term of the finance lease as proposed by parties and on the basis of financial ability of beginner slopes , resulting in the ability to repay the party for the following cases:-party cannot afford the repayment of principal and/or interest on financial lease right term of repayment within the time limit agreed in the lease contract of financial leasing and the financial leasing company was rated as having the ability to repay in the next term , the leasing companies consider adjusting the repayment term of principal and/or interest on financial lease.
-Party does not have the ability to pay off the debt principal and/or interest on financial lease time agreed in the lease contract of financial leasing and leasing company reviews is likely to pay the debt within a certain period of time after the term of lease, the leasing company look to extend the time limit for suit hire available the repayment ability of the lessees.
b) leasing company issued the process of restructuring the repayment period the financial suitable rent with the guidance of this circular and the provisions of relevant laws on leasing activities, submit for inspection of the State Bank of Vietnam at the latest after 5 days from the date of promulgation.
11.3. financial leasing companies make the move overdue financial rent for lease are as follows: the party does not have the ability to pay off the debt principal and/or interest on financial lease time agreed in the lease contract of financial leasing and leasing company reviews is the inability to pay the debt within a certain period of time After the deadline for the rent, not approval to restructure the repayment term of financial lease, the original balance of the contract of financial leasing which is overdue.
12. Falling interest rates financial rent 12.1. Leasing companies are considered, the decision to reduce interest rates for financial lease rent according to the following rules: a) lessees of property losses lead to suffer financial difficulties, inability to pay interest on financial lease.
b interest rate reduction levels) the financial suitable rent with the possibility of financial leasing companies.
c) is not reduced interest on financial lease for the rental party is the object prescribed in clause 1 Article 78 of law on credit institutions.
12.2. leasing companies must reduce the interest rate regulation issued financial rent for lease. Interest rate reduction regulation of financial lease due to the company's Board for approval under the rules in this clause 12.1 points; for financial leasing company affiliated to the credit institution, by the Management Board of the credit organization that approval. Reducing interest rates financial rent for lease only made after the interest rate reduction regulation of financial lease is issued.
13. Check, monitoring for financial leasing activities 13.1. Financial leasing company is responsible and has the right to check and supervise the process of use of rental property and repay the financial rent party.
13.2. financial leasing company build process and perform checks, monitoring the process of renting your property, use the property rental and repay the party line with characteristics of its activities.
14. financial leasing company perform the sort, extract and use backup to handle credit risks for financial leasing amounts according to the regulations of the State Bank of Vietnam on classification of debt, set up and use the reserve to handle credit risks in the banking operations of credit institutions.
15. financial leasing company perform the statistical reports for the financial leasing activities according to regulations of the State Bank of Vietnam statistics reporting regime applicable to credit institutions.
II. FIDUCIARY SERVICES LEASING 16. Fiduciary services leasing is the leasing company performs leasing according to the Trustees of the trust parties.
17. fiduciary and beneficiary Parties entrusted leasing 17.1. The party delegating financial leasing include: a) financial leasing company;
b) Organization, personal Vietnam;
c) Organization, foreign individuals.
17.2. the party outsourced financial leasing is financial leasing company was permitted to establish and operate the financial leasing in Vietnam under the provisions of the law on credit institutions.
18. The method of delegating financial hire outsourced Party made the trust service the financial leasing according to one of the two following methods: 18.1. Received by the trustee of the property of the parties entrust to financial leasing for lessees.
18.2. Outsourced by fiduciary party money to buy machinery, equipment and other property lease finance for lessees.
18.3. fiduciary services related to financial leasing activity: outsourced Parties do one or some of the financial leasing activities under the agreement with the trust party.
19. The principle of delegating and outsourced 19.1. Trusts and trust receipt finance lease are made by agreement between the Commission and the party receiving the trustee in trust contract for financial leasing.
19.2. The condition for rent, rents, rental, interest rates, restructuring the repayment term of rent, handling of risk and other services related to the leasing activity due to the fiduciary and beneficiary parties entrusted the agreement consistent with the guidance in this circular and the provisions of relevant laws.
19.3. financial leasing operations must be done through the financial leasing company under the provisions of the law on financial leasing activities and guidance in section I of this circular.
20. Commission Fee and payment of benefit arising from the contract of trust the trust beneficiary entitled to the trust fees and other benefits arising from fiduciary contract agreement with the trust party.
21. the trust contract

Fiduciary contract leasing has the following principal contents: name, address of the Commission and the party receiving the trust, the trust assets for financial lease, the amount and duration of financing for rental by lessees, the rights and obligations of the trust parties and party trustee. The content of the contract of financial leasing trust by fiduciary and beneficiary parties entrusted the agreement consistent with the provisions of the law.
22. fiduciary risk processing and outsourced 22.1. The trust beneficiary is responsible for handling the risks incurred by violation of the provisions of the law on leasing activities, the agreement with the trust party recorded in the trust contract. With regard to the risks arising out of this cause by the fiduciary responsible party treats.
22.2. the trust Party and the party receiving the Trustees make the handling of risks under current law.
23. the rights and obligations of Trustees 23.1. Outsourced parties have the following rights: a) refused the request of the trust parties opposed the agreements stated in the contract of financial leasing trust.
b) petitioner fiduciary party breach of contract leasing trust according to the provisions of the law.
23.2. Beneficiary trust has the following obligations: a) offers a full, honest to the Trustees about the information regarding the rental and party rental property, financial capacity and the ability to repay the rent party, information and other materials related to the trust services financial leasing; responsible for the accuracy of the information, the materials were provided.
b) using property for lease finance for lease in accordance with the agreed content recorded in the fiduciary contract and the provisions of relevant laws.
c) full refund, time and interest to rent Parties authorize by agreement recorded in the trust contract.
24. The rights and obligations of the trust parties 24.1. The trust parties have the following rights: a) requires parties to receive the mandate to provide information related to rental and party rental property, financial capacity and the ability to repay the rent party, information and other materials related to the trust services leasing.
b) refused the request of the receiving party mandate is inconsistent with the provisions of the law, or contrary to the terms stated in the contract of financial leasing trust.
c) check, monitoring the process of leasing activities of Trustees for lessees and the implementation of the commitment to repay the financial lease of trustee for the trust party.
d) sue the outsourced party breach of contract leasing trust according to the provisions of the law.
24.2. fiduciary Party has the following obligations: a) done right the agreement recorded in the contract of financial leasing trust.
b) Transfer rental property or money to buy rental property in accordance with the time limit agreed in the contract of mandate.
c) paying the full mandate, time has an agreement with the receiving party trustee.
d) in combination with the trust beneficiary in the classification of debt, set up and use the reserve to handle risks to financial leasing amounts under the contract of mandate.
III. IMPLEMENTATION Of 25. This circular has the effect after fifteen days from the date The report. The following text is most effective: circular No. 03/2004/TT-NHNN dated 25/5/2005 guides financial leasing companies make restructuring the repayment period, transfer the overdue for leasing activities; No. 1358/NHNN-CSTT on 25/11/2004 on reducing financial lease interest and no. 18/NHNN-CSTT on 7/1/2003 on the financial leasing transactions are made in foreign currency.
26. financial leasing company pursuant to this circular and the text of the relevant law, issued the text of specific guidance consistent with the conditions, characteristics and its Charter.
27. The Chief, Director of monetary policy and the heads of the units of the State Bank, Director of the State Bank branch in the province, central cities, Chairman of the Board and ceo (Director) financial leasing companies are responsible for the implementation of this circular.
  KT. GOVERNOR LIEUTENANT GOVERNOR (signed) Nguyen Dong Tien